Honor the ‘process’ in ‘due process’

The question before us is this: Can Fayette County legally hold a special election confined to District 5?

Widower Bernie Coston and the Fayette County NAACP want the successor to the late District 5 Commissioner Pota Coston to be chosen in the same way as last fall’s general election — with both the candidates and the voters confined to the geographic limits of District 5.

They and many other black residents of north Fayette say that’s only fair since that was how Pota Coston was elected, following federal District Judge Timothy Batten’s order last year outlawing at-large voting for both the Board of Commissioners and the Board of Education.

There is much sympathy for their position across racial and political lines. I have sympathy for their position.

Here’s the problem with that approach. On Jan. 7 of this year, a three-judge panel of the federal 11th Circuit Court of Appeals in Atlanta overturned Batten’s order, saying that the judge committed a reversible error by issuing a summary judgment.

The appeals court vacated his order and sent the case back to Judge Batten, directing him to hold a bench trial in which all sides get to present witnesses. Judge Batten will hear the evidence and then issue a ruling on whether at-large voting stays or goes. So far, for reasons not disclosed to the public, Judge Batten has set no date for that bench trial.

The problem for district voting supporters and sympathizers is that district voting is — strictly speaking — no longer legal in Fayette County.

From a strictly legal perspective, it is as if Judge Batten never issued his order last year outlawing at-large voting. No federal court order now exists that requires district voting in Fayette County.

Since, legally speaking, Judge Batten’s order no longer exists, the county is back to where it started before Batten issued his summary judgment: At-large voting is the law.

Of note is this: The appeals court did not criticize Batten’s legal reasoning nor his finding that racial bloc voting existed in Fayette County, thus triggering the remedy of district voting. The three-judge panel simply said, in effect, you used the wrong legal process to get to your ruling, so go back and do it over using the proper process, a bench trial.

It is entirely likely, even probable, that Judge Batten will reach the same conclusion following the bench trial as he did before — that at-large voting in Fayette runs afoul of the federal Voting Rights Act and must be discarded.

But until then — or until a court issues a stay of the special election in Fayette pending the outcome of the bench trial — existing state law and the county charter are the only laws on the books. And those laws require an at-large vote to fill the District 5 vacancy.

The Elections Board has no legal wiggle room here, despite strong feelings that might exist otherwise. If it chooses to disregard the existing law and call for a district-only vote, that decision is almost certain to be challenged in court. And since the board can appeal to no existing law or court ruling in support of their position, their decision will almost certainly be overturned.

And passions aside, do we really want non-judicial public officials arbitrarily to set aside written law in favor of their own sense of what the law ought to be, instead of obeying what the law actually says?

If we discard the rule of law, what protects any of us from the passions of the few, or of the many?

Let us all have the wisdom, the patience and the forebearance to allow due process of the law — the entire process.

[Cal Beverly is editor and publisher of The Citizen and TheCitizen.com.]