A mere question of choice?

Can Memphis residents be fairly represented by leaders elected with less than a majority of the vote? The federal court ruling disallowing citywide at-large voting may have run its course.

J. O. Patterson Jr.'s loss to Dick Hackett in a mayoral runoff election in November 1982 was an exclamation point for African-Americans that the city's electoral process was designed to keep black people from winning citywide office.

Patterson was the top vote-getter in a special election to replace Wyeth Chandler, who had resigned to accept a Circuit Court judgeship.

But the winner had to receive more than 50 percent of the vote to avoid a runoff. Patterson got 40.6 percent; Hackett was second with 30 percent.

The two faced off in a Nov. 30 runoff, which, given the city's racial makeup and voting patterns, Hackett predictably won, 54.6 percent to Patterson's 45.6.

(When Chandler resigned, Patterson, who was City Council chairman, became the city's first African-American mayor for a short period.)

Years later, a federal district judge ruled that the runoffs diluted the voting strength of African-Americans in Memphis. His ruling barred runoffs in citywide elections for mayor, at-large council and school board races, and city clerk and city judges. He allowed runoffs in district races.

That ruling by the late Judge Jerome Turner changed the face of Memphis politics.

It allowed Mayor Willie Herenton to win the first of five terms on Oct. 3, 1991, beating Hackett by 142 votes.

The runoff provision allowed Hackett to win an election, where he initially came in second. Ending runoffs in citywide races ended his mayoral career.

Seventeen-plus years

Here we are in the summer of 2009 and Herenton, who was elected to his fifth term in October 2007, says he is stepping away from the job Thursday.

A special election to fill the remainder of Herenton's term has been scheduled for

Oct. 27 -- if the mayor actually leaves.

With as many as 15 possible candidates in the race -- many of them proven vote-getters -- it's possible that a candidate could be elected with 30, or less, percent of the vote, hardly a mandate to lead a city.

Given the city is now about 63 percent African-American, it's reasonable to ask whether the runoffs should be re-instated.

Righting a wrong

When the late Dr. Talib-Karim Muhammad filed his lawsuit in November 1988, challenging the election system that allowed at-large seats on the City Council, it set off a string of other lawsuits challenging the city's election process.

At the time, the city was changing demographically. White residents were moving to the suburbs. African-Americans were on their way to becoming a majority of the city's population.

U.S. Census figures for 1980 showed African-Americans were 49 percent of the city's population. That percentage jumped to 56 percent in 1990.

The city's changing racial makeup made some people question whether the lawsuits were necessary.

Others predicted there would come a time, like now, when some citizens would wish runoffs were in place.

Herman Morris, the former Memphis Light, Gas and Water Division CEO, who finished third in the 2007 mayor's race, was president of the Memphis chapter of the NAACP when the organization filed a petition to intervene in the case in 1991.

"The wisdom of the NAACP (at the time) was that it was a good lawsuit, but it was 10 years too late," said Morris, who is considering entering the race to replace Herenton.

Morris said the NAACP wanted to have a voice in the issue, but there was a lot of debate within the organization about what the voice should say.

"After a century of living under the old system, there was a feeling that we just wanted to get rid of it.

"The other sentiment was that (because of changes in the city's demographics) the system could now work for us and we ought to keep it.

"The court was persuaded by the history and was convinced that the runoffs had to go," Morris said.

Criminal Court Judge W. Otis Higgs unsuccessfully challenged Chandler twice, in 1975 and 1979, losing in runoff elections. He was among a group of candidates to challenge Hackett in 1983. Hackett won that race without a runoff.

Unlike Patterson, Higgs was never the top vote-getter in his campaigns against Chandler.

Higgs was attorney for seven African-American residents -- including Revs. Samuel "Billy" Kyles, Bill Adkins and L. LaSimba Gray -- who filed a similar suit in 1990, challenging at-large council and school board elections.

On Feb. 15, 1991, the U.S. Justice Department also filed suit, challenging at-large elections and runoffs. The suit also challenged annexation procedures.

Turner consolidated the three lawsuits.

"Historically, I was witness to a system that was set to insure that a white majority would prevail in major city races," Higgs said.

The "system" played on racial voting patterns, in which African-Americans traditionally overwhelmingly voted for other African-Americans and whites overwhelmingly voted for whites.


Higgs said, personally, he never agreed with those, black or white, who said an African-American could not win a citywide race. Newspaper clippings about his three campaigns back him up.

Adkins, pastor of Greater Imani Church and Christian Center, said the runoffs were "inherently discriminatory, designed to single out a white candidate against an African-American candidate."

Shelby County Election Commissioner Shep Wilbun was a member of the City Council as the voting rights battle raged.

Part of that battle involved changing the system for electing the council members. Under a 1967 plan, Memphis voters chose seven district council members and six at-large members.

The effect was to guarantee that only a handful of African-Americans would be elected to the council.

That changed when Turner issued his order to end runoffs, but he left it up to the council to come up a different way to elect its members. That plan would be presented to voters.

Coming up with a plan was a battle royal, which brought criticism to the council from Turner and others connected to the lawsuits.

The council eventually agreed to a plan, approved by voters, that kept the seven districts, abandoned the six at-large districts and created two superdistricts from which three councilmen each would be elected by voters who live in the superdistricts.

Wilbun, who like Muhammad, wanted district-only races, echoed the feelings of others about reinstating runoffs.

No way. The system carried too much racial angst.

"To me, the whole issue of having a second election to try to elect a majority candidate is suspect because there is no guarantee that the best candidate will win.

"There is strong evidence that second elections are discriminatory and unfair ... because you're asking a candidate to use double the resources to win," Wilbun said.

Going back to runoffs also could have another negative impact. Turnout for runoff elections is notoriously low and African-Americans, in particular, tend to show up for runoffs in lower percentages than whites.

Going back to the old system could inadvertently undo an injustice the court wanted to fix.

Lawyer and activist Dan Norwood, who got involved in the case because of the proposed Hickory Hill annexation, which some felt could further dilute African-American voting strength, said the runoff requirement held Memphis back for many years.

"Black candidates couldn't get elected, moderate white candidates would get squeezed out and conservative whites would win.

"We should never go back. I would hope that people have stopped voting along racial lines. ... I would hate to go back to something that polarizes folks," Norwood said.

Without a mandate

There is, however, general agreement that electing a mayor with a small percentage of the vote is not an ideal situation.

"In these times, the potential of having a mayor elected without a majority or near-majority vote -- well, you need someone with some kind of mandate," Morris said.

(Herenton, by the way, won his last election with 42 percent of the vote.)

Higgs concurs, but offers a different take.

"We ought to keep it the way it is. In a democratic system of government, the minority has always been protected. Under the old system, the minority didn't have a voice. Nowadays they are protected.

"The way you do that is by compromise and coalition. So, if someone is elected with only 20 percent of the vote, for example, the losers still have a voice through compromise and coalition."

The candidates, Higgs said, still have to present a broad range of perspectives for voters.

"Besides, who's to tell someone they shouldn't run? Saying who is qualified to run should be decided by the ballot process," Higgs argued.

Possible solutions

Those interviewed for this story said the easiest way to address the "mandate" concern is to have partisan primary elections like contests for county, state and federal offices.

Candidates for city offices are not listed on the ballot under political party labels.

Primaries narrow a race down to the respective winners of the two primary contests.

"I wish we had partisan politics in Memphis," Adkins said. "You can screen out the candidates that way."

He added: "What I'm seeing today. ... I never dreamed that we would see 9-10 people running for the same office. It's a travesty. ... It's bizarre. Some people aren't running to serve. They are running for a job and a reason to be served."

Also, a citizen could petition the federal court to lift its ruling banning citywide runoffs. The city itself would have a better standing to make such a request, but those familiar with the process said the Justice Department likely would oppose such as move.

Higgs wondered what arguments could be made to underscore a request.

"What would the points of argument be? Would whites argue that they have been disenfranchised? Could Hispanics argue the same thing?

"You could not find a constitutional argument to restore runoffs," Higgs said.

Rhodes College political scientist Marcus Pohlmann said an argument perhaps could be made that, because of current demographics, Memphis has moved beyond the need for such federal safeguards.

"You could probably argue before a federal judge that we're institutionally beyond the court order ... kind of like school desegregation orders that have been lifted," he said.

Shelby County Democratic Party officials have explored hosting a convention to pick a candidate to endorse in the special election to replace Herenton.

Party chairman Van Turner said it's important for the party to back one candidate so Democrats don't split the vote.

The irony

Muhammad, who filed the original lawsuit in 1988 that put an African-American in the mayor's seat and increased the number of African-Americans on the City Council and the Memphis Board of Education, had mixed feelings when Judge Turner issued the permanent voting system order on Jan. 30, 1997.

Muhammad, who died in 1997 after a long battle with cancer, had wanted all council members elected by single-seat districts. He started something that grew into a legal challenge to the entire city election process and brought sweeping changes to city government.

When Turner issued the permanent order, Muhammad was a councilman representing Superdistrict 8.

He told a reporter for The Commercial Appeal that January day that he felt the superdistricts were no more than another way to maintain at-large voting.

"That's the irony of the thing, that I would end up getting elected to a district that was the same thing I sued against."
