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Voting Rights Minutes Released

July 21, 2019

LOWELL —Before agreeing to change the way residents elect local officials, experts and attorneys warned City Councilors that winning the voting rights lawsuit would be a long-shot.

″(Assistant City Solicitor Rachel) Brown noted data and statistical analysis indicated that prevailing at trial would be difficult for the City and that attempts to settle matter would be in the City’s best interest,” according to notes taken during an executive session meeting of the City Council on Jan. 22.

Councilors’ discussions of the voting rights lawsuit prior to the city’s May settlement were released Friday in response to a public record request from The Sun. City Council voted to release the minutes on June 25.

The minutes, prepared by City Clerk Michael Geary, detail discussions of the lawsuit during City Council executive session meetings from July 25, 2017 to May 21, 2019. Two redacted sections in the notes pertain to other cases, according to the law department.

The minutes offer further insight into the making of the consent decree agreed upon by the city and the coalition of Latino and Asian American residents who brought the suit in 2017.

The agreement does not concede any violation of the Voting Rights act, but does require the city to change the system of electing City Council and School Committee members. The plaintiffs argued the current system dilutes the vote of communities of color by allowing white voters to vote as a block. The consent decree approved by a federal judge requires a public education and input process preceding a decision by the City Council to implement one of four alternate options for the 2021 elections.

Some of the highlights from the newly released minutes are:

• The lawsuit was filed in 2017 when the city was under the leadership of the previous city manager, Kevin Murphy, and the previous City Council.

In the first executive session on the topic, on July 25, 2017, several councilors expressed frustration.

Former Councilor James Leary called it a “frivolous suit” in the minutes. Councilor Rita Mercier mentioned the city’s history with diversity and “noted that some individuals want something without putting in the work,” according to the minutes.

Former Councilor Corey Belanger said he was unhappy there was no discussion prior to the filing and, at the following meeting, questioned the motives of the plaintiffs.

• It was at this Oct. 3 meeting, that City Solicitor Christine O’Connor said a settlement offer from the plaintiffs would require the city to admit to violating the Voting Rights Act.

This, she said, “would not be an acceptable result for the city,” according to the minutes.

The final settlement reached a year and a half later did not include this admission.

O’Connor also mentions submitting a motion to dismiss the case. Later that month a federal judge did not uphold the request, allowing the case to continue.

• The possibility of a settlement came up again at the next executive session meeting on Jan. 30, 2018. This was the first meeting under the current City Council.

At the meeting, the new mayor, William Samaras, “noted that present election results are good evidence of no violation.”

Councilors Rodney Elliott and Vesna Nuon suggested a ballot question or referendum to resolve the issue. Councilor Ed Kennedy expressed a “preference for parties to resolve and to limit attorney involvement.” An ad hoc subcommittee seeking input from residents on the city’s voting system should remain active, he said.

• After a brief update over the summer, City Council met again on August 28, 2018.

The meeting opened with a warning from the law department that the case was using a lot of its resources and a suggestion from City Manager Eileen Donoghue, who started in the position earlier that year.

“Manager Donoghue suggested it may be time to look into resolving matter short of trial, which is a common practice and she was exploring if that were an option for council,” according to the minutes.

O’Connor also warned the city would be open to future lawsuits even if the city won at trial. Kennedy said “listening sessions” with community groups indicated a preference among these residents for a mixture of district and city-wide representatives.

While not all councilors believed the city’s election system was a problem — Mercier said the city had done nothing wrong and the plaintiffs were crippling the city — the council unanimously voted to begin the process of entering into settlement discussions.

• The Council met again on Nov. 13, 2018 to discuss an upcoming mediation.

The discussion was wide-ranging and includes an announcement by Brown that settling would require a change to the city’s government, meaning the status quo would not be an option.

• Over the next few months, City Councilors weighed alternative election systems and a possible referendum.

By Jan. 8, 2019, an expert retained by the city, Theodore Arrington, was phoning into meetings. One of the options that came up and, as Samaras described, “has some resonance with council,” was limited voting, a system where voters have less votes than positions available.

Arrington said limited voting “increases minorities’s chances of success” in elections, but when a draft settlement came back from the plaintiffs this was not one of the choices.

According to the minutes from the April 9, 2019 meeting, O’Connor said the “Council request for limited at large system would be a non-starter to resolve matter and would just move to trial.”

• On Jan. 22, 2019, the law department discussed census and election data they received through the court, which they believed would make the case difficult to win.

“Atty. Brown indicated if matter went to trial and the city did not prevail then they would not have involvement in how elections would be done in the future and that costs would be increasing and that payment of attorney fees for the other side would be substantial,” according to the minutes.

The following meeting on Feb. 5, Arrington discussed his review of 2015 election data and, though plaintiffs did not use his preferred methodology of analyzing the data, “the trends were consistent and ... it could not be defeated by the City at trial.”

The meeting minutes do not detail these trends, however his presentation followed a discussion of different methods used to evaluate how certain groups vote. Council also discussed meetings held by a City Council subcommittee where residents commented on the current election system.

“Kennedy outlined the subcommittee meetings in neighborhoods recognizing the people who attended were not happy with the current system so they would want change,” according to the meeting minutes.

Later that same meeting, councilors unanimously voted to commit to change the electoral system for municipal elections.

At the next meeting on April 2, council discussed a settlement agreement proposed during mediation, but did not approve it. Council voted 4-5 against approving the consent decree. Councilors David Conway, Kennedy, John Leahy, Mercier and Samaras voted against.

The councilors who voted in opposition raised a variety of concerns. Samaras asked why limited voting was not included. Kennedy wanted fees to be resolved prior to the agreement and to ensure the mayor stay on the School Committee. Additionally, referendums are phrased as yes or no questions so voters could turn down all new systems if asked to vote, he said.

Mercier and Conway requested an option to keep the system the same. O’Connor “suggested that would go a long way to proving the case for the plaintiffs,” according to the minutes.

The following week on April 9, the draft consent decree came before the City Council again. From the minutes it’s unclear how, if at all, it varies from the document that came before council on April 2.

Council approved this agreement 7-2 with Conway and Leahy in opposition.

The two councilors also voted in opposition to the execution of the consent decree on May 21 in a 6-2 vote. Kennedy was absent.

Between these votes, the council opted to include placing options on the 2019 ballot to guide the council’s final decision.

• A motion by Councilor Conway made during public session on Jan. 22, 2019 and sent to executive session was also a topic of conversation during several meetings early this year.

In the motion, Conway requested a citywide ballot question on the future of city elections. He argued during an executive session, also on Jan. 22, “the public would have no input in a change of government and that would be unfair,” according to the minutes.

Brown said the motion would not stop a trial, but likely ensure one. At the following meeting on Feb. 5, O’Connor said “such a course would not be beneficial to the city and may be a detriment as the Court would enter any data in the matter as evidence in the trial,” according to the minutes. Councilor James Milinazzo described the motion as “grandstanding,” according to the minutes. Conway disagreed.

Conway also pushed to request copies of bills and time sheets from the plaintiffs’ attorneys as the city will be paying these fees. O’Connor said the other side would not produce time sheets, for about 7,050 hours in all, because of the delay it would cause. On April 23, O’Connor told council she asked for the fees to be cut in half and the other side agreed. At the meeting she said the attorneys’ fees and costs would be $293,000 in all.

In the settlement released to the public, the city agreed to pay $280,000 to cover the plaintiff’s attorneys’ fees and costs.

Follow Elizabeth Dobbins on Twitter@ElizDobbins

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