Amendment 1 in the August Election Creates An Uneven Playing Field and Shrinks Rather Than Expands Democracy

The proponents of Amendment 1 in Metro Nashville Council may have good intentions, presumably to counter the anti-tax and hyper-conservative 4 Good Government group that seeks to paralyze the county’s finances. In the past year, the group tried to push through a referendum that has many disqualifiers: it is poorly written; it hogties the county’s revenue stream; and rather than being one proposal, it is a collection of multiple referenda that raises legal concerns about severability.

Despite the excesses of the 4 Good Government group, Amendment 1 is an overreach. There are good parts in Amendment 1, but it disadvantages non-moneyed groups. Instead of curtailing well-financed and politically-connected interests, it privileges them over low-wealth and grassroots coalitions seeking to advance referenda. That is, if adopted, Amendment 1 will give a greater advantage to the 4 Good Government group and similar organizations over those that care deeply about advancing ameliorative policies that Metro Council is unwilling or unable to support.

Amendment 1 raises the threshold for getting a charter referendum petition on the ballot in that it must be signed by 10% of registered or qualified voters in Davidson County. This requirement is higher than the guidelines for petition-backed charter referenda in Knox and Shelby Counties. It is higher than the current threshold that requires petitions from registered or qualified voters equal to 10% of turnout in the previous general election in Davidson County. Several court decisions, along with the state constitution, have interpreted this to mean that petition-led referenda must be signed by registered voters equal to 10% of the turnout in previous, local general elections such as mayor or criminal court clerk elections. These petitioners must be in-precinct voters designating that their current addresses must match their election precincts.

Petition drives by grassroots groups are much harder than advertised. Since 2014, I worked on three referendum petitions. We had no mailers for the petition drives. Through canvassing and targeted outreach, our coalitions collected petitions in mostly working-poor and working-class neighborhoods, some that I count as excessively marginalized — most politicos, including the Mayor, rarely venture into these neighborhoods.

All the petition drives were self-funded with assistance from civil rights and social justice organizations. One was approved by the election commission (the referendum for the Community Oversight Board) and adopted by voters in November 2018. Two failed, one of which because the election commission discarded 1,800 petitions that were apparently signed by incarcerated persons, purged voters (victimized by the secretary of state’s purging procedures), and out-of-precinct voters.

Petition drives coordinated by grassroots organizations have other disadvantages. They have no direct access to the Metro Law Department, which is prohibited from offering legal advice to private groups. The election commission is reluctant to assist these groups if they need assistance clarifying procedures. Petition drives, particularly those led by Blacks, also face stigma from established politicos that often dismiss activists who challenge the status quo.

Why launch a petition drive if a group is part of a Poor Peoples’ Movement? The simple answer is that the legislative and mayoral processes for advancing ameliorative policies is regularly cut off from these groups. Madisonian democracy at the local level works for the middle-class, but it can be burdensome for under-resourced communities.

Admittedly, Amendment 1 has some virtues. It prevents Nashville from becoming a place where referenda are perpetually entrenched in the political process. It creates additional checks and balances by giving the Charter Revision Commission muscular influence in referendum campaigns. It guards against a partisan takeover of the election commission.

However, Amendment 1 creates an extraordinarily high barrier for referenda. It disadvantages moderate-income communities and grassroots organizations that are outside of and oppose the pro-growth and neoliberal stakeholders that have sway over the political economy.

If Amendment 1 had been in place, it would have been virtually impossible to get a Community Oversight Board in 2018. The Metro Council and Mayor stubbornly opposed an oversight board even though the reform measure was initially proposed by Nashville activists four decades ago.

The recent iteration of an oversight board proposal originated from canvassing drives by the Justice for Jocques Coalition immediately following MNPD’s killing of Jocques Clemmons in the Cayce neighborhood in February 2017. The killing (or what grassroots folks call “murder”) of Mr. Clemmons was the most high-profile use-of-force incident in recent years. It came after the widely-circulated Driving While Black report authored by Gideon’s Army in late 2016.

Mayors Megan Barry and David Briley opposed the oversight board proposal. Instead, they threw their support behind the NYU Policing Project’s front-end policing model. The Policing Project was relatively new at the time, reportedly founded in 2015. Currently, the group is embroiled in a growing controversy. NYU law students and watchdog groups are organizing against it for allegedly partnering with police surveillance companies.

For her part, the Barry administration published a report called Nashville’s Dialogue on Race, Equity and Leadership in 2017 (an earlier version may have been circulated in 2016). The section on “Public Safety” in the report sanitized police-community relations. It excluded the killing of Mr. Clemmons and the protests spearheaded by the Justice for Jocques Coalition. In fact, the report omitted all of the police accountability groups that had been in the streets since 2014, while exalting established or respectable groups — some African American — that were more conciliatory, if not genuflective, to MNPD.

Also troubling was that the Metro Nashville Law Department indicated that oversight boards cannot have subpoena power, according to a March 8, 2017 memo. Community Oversight Now, the leading coalition that advocated for an oversight board, believed the memo was politically motivated. We consulted with four or five attorneys that refuted the memo. A year later, we asked Representative Brenda Gilmore to request a legal opinion from the Tennessee Attorney General. The opinion affirmed what we understood — and directly contradicted the law department’s memo — stating that local governments can extend subpoena power to oversight or civilian review boards.

I provide this overview not to reopen old wounds or to attack public officials. The point is that grassroots-backed policies, especially those with a footprint of Black activists, are difficult to advance through established institutions and stakeholders. The political process, both formal and informal (e.g., elected officials, legal department, influential lobbyists, and stakeholders), are arrayed against groups that support these policies.

In the battle over police accountability, the council process was heavily stacked in favor of the Fraternal Order of Police, the powerful police union that provides the stiffest opposition to civilian oversight policies. The police could have shot several Black people in the back. The Mayor, Council, and police union were ‘not’ going to support an oversight board — at least, not one backed by a group that was stigmatized the moment they walked in the council chambers.

Certainly, there is a danger in having a city/county governed by a hamster wheel of referendum elections. Yet, for grassroots folks, referenda may be their only route to exercise grievances. It may be their last option and a rarely used one for advancing policies when the legislative process has been shut off.

There would be no Community Oversight Board if the petition guidelines for Amendment 1 had been in place in 2018. Based on the charter, it needed 4,700–4,800 valid petitions to get on the ballot. This seems like a low threshold, but as a reminder, these petitioners had to be in-precinct, registered voters, meaning their current addresses had to be in the election precincts where they registered to vote.

Any coalition that has gathered referendum petitions quickly discovers that they must overperform. To account for petitions that are disqualifiable, referendum groups must exceed the required amount by 20–30%.

Petition drives in low-wealth neighborhoods are much harder than in middle-class ones. The former are areas where voters may not have updated registration forms, have higher numbers of purged voters and incarcerated persons, and are impacted by transitional housing patterns such as gentrification, foreclosures, and evictions.

Petition drives are costly as well. Community Oversight Now started with a budget deficit when it launched the oversight board petition in April 2018. As the old folks say, we were po’. Instead of money, we had a dedicated group of volunteers and unusually high morale. Three of our coalition members, including Sheila Clemmons Lee (the mother of Jocques Clemmons), had close families members killed by police. These members sustained our morale and provided encouragement when we experienced major setbacks.

There are 480,000 registered voters in Davidson County, and the number is growing. Amendment 1 requires that 10% or 48,000 registered or qualified voters must sign a referendum petition. Given that some petitions will be discarded, groups will have to collect between 60,000–70,000 petitions. A group that can get 60,000 petitions, which may require microtargeting and data analyses, is a group with built-in advantages: money, prestige, paid staff, media access, and political connections. These resources are not available to low-wealth groups or the type of coalitions that spearheaded the Community Oversight Board referendum.

A potential legal dispute presents another hurdle for low-wealth groups. The Fraternal Order of Police legally challenged the Community Oversight Board referendum. Although our coalition prevailed (partly due to our excellent election attorney Jamie Hollin), in most cases, low-wealth groups do not have the funding or access to election lawyers to withstand costly legal challenges.

In addition, Amendment 1 gives too much authority to the Charter Revision Commission, which will be required to certify petitions before they are circulated. This creates another barrier that disadvantages low-wealth groups. Will the Charter Revision Commission certify petition-led referenda backed by groups such as the Chamber of Commerce or the Mayor or wealthy developers and contractors or high-dollar law firms that have contracts with the city? Probably, yes. If the guidelines for Amendment 1 had been in place in 2018,would the Charter Revision Commission have certified a petition such as the Community Oversight Board that was opposed by two mayors, most councilmembers, the Metro Law Department, and the Fraternal Order of Police? Probably, not. Certification may have less to do with the legality of the petitions and more to do with political pressures.

There has been some discussion about the 1996 stadium referendum coordinated by Concerned Citizens for Metro Nashville. The group collected more than 40,000 petitions in less than a month in February of that year. The argument is that if this group can do it, then so can others and thus Amendment 1’s new threshold for collecting petitions is no big deal.

There are significant differences between the 1996 effort and more recent referendum campaigns, the first of which is that the former was a stadium-funding dispute and the latter ones petitioned for changes to the charter.

Second, the 1996 petition drive actually started in December 1995, prior to the official formation of CCMN, instead of a month before the deadline for submitting signatures. The petition drive that collected over 40,000 signatures was the second attempt by activists to collect petitions. The first effort failed, but it allowed what later became CCMN group to gain momentum that assisted with the recruitment volunteers, identifying the dos and don’ts of petition drives, and mobilizing councilmembers.

Third, established stakeholders played leading roles in the CCMN petition drive: Councilmembers Eric Crafton and David Kleinfelter, as well as former mayoral candidate and banker Red McClary. These figures undoubtedly boosted the campaign, along with the fact that the stadium vote was a salient issue that received a high volume of news coverage and political attention. At the time of the petition drive, 10 legislative measures (six ordinances and four resolutions) were deliberated in council.

Fourth, the referendum group had resources that are mostly unattainable to low-wealth groups. In addition to the political resources described above, the group had financial resources. Several news organizations characterized CCMN as cash strapped. Yet, money is relative. CCMN had a budget shortfall compared to the Chamber of Commerce-linked organizations and investor class that supported the Titans Stadium. Yet compared to grassroots organizations such as Community Oversight Now, CCMN had a significant amount of resources.

Take the CCMN mailers as an example. In 1996, the group sent petition mailers to 67,000 of the 270,000 registered voters. (Only 475,000 people lived in Davidson County at the time.) Granted that the mailers did not have pre-paid postage to return the petitions. Even still, this was a costly activity that allowed CCMN to reach close to 25% of registered voters in Davidson County in less than 20 days.

Further, referendum petition drives are unregulated unlike referendum elections. The latter requires financial disclosure if the sponsoring group establishes a PAC or single-issue referendum committee. It is unclear how much money and related expenditures (e.g., paying for volunteers, political advertisements, out-of-pocket costs) CCMN spent on the petition drive.

With that said, the 1996 referendum drive makes the best case as to why voters should oppose Amendment 1. If adopted, Amendment 1 advantages groups like CCMN and 4 Good Government. These groups will have a decisive advantage in petition-led referenda because they have financial and political resources.

Let’s be clear about my position. I oppose both Amendment 1 and the 4 Good Government group. Where I stand, Metro Council should have proposed charter amendments that places guardrails around the charter referendum process, while protecting moderate-income communities that want to access the petition process.

What are some options that were available to council? Metro Council could have excluded the 10% registered voter requirement for petition referenda. It could have required financial disclosure of petition drives. It made a mistake in giving too much power to the Charter Revision Commission. If checks and balances are needed such as certification by the Charter Revision Commission and the Metropolitan Clerk before the petitions are circulated, then legal resources should be afforded to petition groups.

Although the architects of Amendment 1 may have good intentions, the referendum proposal has too many deficits. It creates an uneven playing field and shrinks rather than expands democracy. In the rare circumstances when referendum petitions are launched, wealthy and politically-connected groups will have a greater advantage than Poor Peoples’ Movements. As such, voters should vote against the ratification of Amendment 1 in the election.

The last day of early voting is July 30 and election day is August 4.

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