The ‘what the hell is going on again?’ guide to the charter on trial

Illustration by Peter DeHart

“I’m sure a couple of typographical errors won’t change the accuracy of the documents,” District Judge John Trahan deadpanned in court on Monday. He appeared to smirk, if you squinted. I squinted. Anyway, it was hard to hear. That courtroom was an acoustic mess. The 15th Judicial District judge was referring to a raft of exhibits offered by city-parish attorneys into the record of a legal proceeding that, no exaggeration, could change everything. But it sounded like he was talking about the technical errors in the charter amendments that could break them like bad programming code.

A faction of folks who opposed last year’s vote to create separate city and parish councils has seized upon a potentially fatal legal technicality to upend the result of the election, filing a legal challenge that will come to a conclusion at trial on May 8. Until then, election bids for the new councils are up in the air. Thousands of bumper stickers and foam-core signs are at risk of obsolescence.

At its heart, the legal challenge filed by council candidate Keith Kishbaugh and aided by the secretary of the state is a political aftershock, an ugly postscript to a bitter campaign. The run-up to this culmination has delivered its own fits of political theater, none of which may ultimately matter when Trahan delivers a ruling. His decision could make an election result disappear. All eyes are on the court.

It didn’t have to go this way, but here we are. And if you’re still confused how this all ended up in a mumblecore courtroom drama, here’s an explainer on the legal meanderings from 10,000 feet high.  

Hit me with basics, XN. You got it. Last December, Lafayette voted to change its government. More specifically, voters said yes to a series of amendments to the city-parish constitution — the Home Rule Charter — that, among other things, created separate city and parish councils. The campaign and everything surrounding it was not without controversy. Like the good Americans we are, the issue spawned factions for and against the changes. For ease and brevity, we’ll call those in favor of the split “pro-charter” and those against the split “anti-charter.”

The new form of government is slated to take effect in 2020, with candidates now running for the new split councils, sharing ballots with the gubernatorial election this fall.

Here’s the thing: Candidates need districts to run in, but the districts for the new city council are broken. The parish districts are just fine, thank you very much. The problem is in the legal descriptions of the city districts — literally words describing a map — that are used to assign voters to individual precincts. That’s how you know where to vote. How did they get broken? The demographer who created the maps sent in the wrong set of legal descriptions to city-parish attorneys, who wrote them into the amended charter, mismatching a draft revision of the language with the corresponding city map. Womp.

That may not seem like a big deal, except that it is. Uncorrected, the errors would leave a couple hundred voters without representation on the city council. Voting being the essence of democracy, that’s a problem. It would seem simple enough to fix. And in fact, that’s what the current City-Parish Council did, passing an ordinance earlier this year that matched the legal descriptions with the maps through a redistricting method called reapportionment. That’s an important term in this explainer. Hang on to it.

Typos weren’t the only problem. So those legal descriptions — which to be clear only a sentient computer can understand — are baked into the Home Rule Charter. In drafting the amended charter, city-parish attorneys opted to include the legal descriptions in the document itself because that’s how the original consolidated charter was written. The trouble is, on a strict reading of the law, any change to the charter is an amendment, and by law an amendment must be voted on by election. You want to upload the right file? Well, according to the secretary of state, the attorney general and a bunch of people who opposed the charter amendments, you’ll have to hold another election. That dispute is at the heart of the legal challenge — whether the snafus can be fixed the easy way (reapportionment) or must be fixed the hard way (an election).

OK. What’s all that about reapportionment? I’ve got other tabs in my browser to click. Since consolidation took effect in 1996, the City-Parish Council has changed the precinct lines almost 20 times through a legal process called reapportionment. Reapportionment is a way of responding to population changes — either after a census or periodically between them — to make sure voting precincts are somewhat evenly distributed. Sometimes precincts are merged. Sometimes they’re split. In all cases, here in Lafayette Parish anyway, that process has been governed by the council, not the voters. And that’s despite the hardwiring of the original consolidated districts into the charter. Changes are footnoted at the bottom of each new edition, and no seemed to have a problem with the process until now.

There emerges a corollary argument here about intent. “The odd thing about it is the public didn’t vote on the precincts the first time [in December],” Assistant City-Parish Attorney Mike Hebert quipped in court Monday. What he’s getting at is that no one was misled or fooled by the erroneous legal descriptions because no one even saw them on the ballot. The court more or less agreed. “Only an extremely diligent and educated voter would have known the precinct descriptions,” Trahan pointed out. Exactly, like I said, sentient computers.

This is what a “legal description” looks like in the Home Rule Charter.

What people voted on was the new form of government, pro-charter folks say. The maps, which also didn’t appear on the ballot, represent how the council intended the districts to be drawn. The maps aren’t used in any legal sense — voter assignment relies on the legal description, which seems super antiquated considering things like GPS exist and we just took a picture of a black hole — but they reflect what the voters had in mind when they pulled the lever or pushed the buttons or whatever.

Besides asking the court to OK the ordinance, the pro-charter side argues the court itself can make the whole thing go away by simply acknowledging the legal intent of the council. This is a little wonky, so bear with me. In July, the council introduced the charter amendments and accompanied them with proposed city and parish voting maps. Over the course of several weeks, those maps changed from their initial versions, requiring further revisions to the legal descriptions, some made within days of the final council vote in August to send the amendment proposition to voters. In that last council meeting, instead of adopting the revisions whole, council members passed language that said, essentially, “make the legal descriptions match the maps,” which, as discussed, didn’t exactly happen.

Legislative intent matters in legal custom. Pro-charter attorneys argue the court can recognize what the council meant to do and essentially fix the discrepancies by order. It’s something of an end-around on the ordinance question.

That all seems practical. What’s the problem then? By all accounts, Trahan is a pragmatic judge; he may find that a pragmatic fix. But it’s certainly far from a slam dunk argument. This issue is pretty much uncharted and sopping with murkiness. While reapportionment is indisputably a power the charter gives to the council — although Attorney General Jeff Landry himself curiously suggested otherwise in a KPEL interview in March — it’s not indisputable that whatever the council voted on is, in fact, reapportionment. The essence of the anti-charter split side’s argument is just that — it’s not reapportionment, rather an amendment disguised as reapportionment and is thus illegal.

The best reading of that case is a slippery slope argument, one proffered by Assistant Attorney General Emily Andrews during Monday’s preliminary hearing. Andrews concedes that the council had good intentions in passing the reapportionment ordinance — it’s worth pausing to note that everyone agrees the errors need to be fixed — but warned that allowing the council to amend the charter on its own sets a precedent for councils with bad intentions to amend the charter to some malevolent end (I’m thinking world domination). That’s catastrophizing a very unique and limited circumstance, but it’s persuasive. Laws exist for a reason, and sometimes they get in the way of what we want to do.

Beyond that, the anti-charter side says to hell with good intentions — the flaws are fatal to what the public voted on. Because the amendments unconstitutionally disenfranchised voters, however inadvertently, the amendments are thus invalid. Nevermind most of the would-be disenfranchised voters in that neighborhood wanted the split councils — 70% of the voters in Elmhurst Park, the neighborhood in question, voted for the amendments. No council action can cure what’s constitutionally flawed. Dump the bathwater on the baby.

The “disenfranchised” portion of Elmhurst Park, precinct 74, circled on a map by the registrar of voters.

Ultimately, the state attorneys and Kishbaugh argue the council and city-parish attorneys trapped themselves in a box when the legal descriptions were etched into the amended charter. Sure, it would be great to change the boundaries by ordinance the way virtually every other parish in the state does, but the law simply can’t allow it. Tough cookies. You want to fix it? Amend the precincts by election. That’s expensive and risky? Not their problem.

I thought you said this was going to make me less confused. Yeah, this isn’t exactly straightforward, which is why it’s in court. Candidly, this is more of a toss up than anyone wants to admit. That’s the nature of the law; it actually requires interpretation, and lawyers are pretty much paid to gaslight. While it’s easy to dismiss the anti-charter case as an argument in bad faith, the motive won’t necessarily sway the court. We know this because the judge was disinclined to agree with the pro-charter side that the suit was essentially an attack on the election, despite very public statements from Landry, Kishbaugh and others that they are, in fact, attacking the election. The politics was noise outside the courtroom.

There are essentially three possible outcomes. One, the court concurs with a pro-charter argument and the errors are fixed. Elections this fall go forward as planned, and in 2020 we seat separate city and parish councils. Two, the court finds the election in error and throws out the whole thing, vacating the result. The current council would remain in place until new elections can be held, either under a second attempt at an amended charter or under the current consolidated mess. Three, the court takes something of the middle path, preserving the new government structure and other amendments but throwing out the ordinance and forcing an election to correct the legal descriptions by amendment. That third option is doubly problematic, as it would also delay the seating of the new government, leaving the current council roster in place, and pose the risk that voters would vote down the fix. What happens then? I have no idea. And I’m not sure anyone else really does, either.

One of three paths and then it’s over. Got it. Not so fast. Someone’s going to appeal. You can put money that.

Lord. Does the chaos ever end? No.