Do these 2 Tarrant school districts block the election of Black, Hispanic board members?

In Reality Check stories, Star-Telegram journalists dig deeper into questions over facts, consequences and accountability. Read more. Story idea? RealityCheck@star-telegram.com.

After receiving warning letters saying their election systems may violate federal voting rights laws, school board members in two Tarrant County districts are left to decide what to do next.

The Arlington Independent School District and the Eagle Mountain-Saginaw Independent School District both elect their board members at large, meaning every voter in the school district votes for candidates for every seat. A Dallas law firm says those election systems violate the Voting Rights Act of 1965.

But is that the case? Maybe, said Justin Levitt, a professor at Loyola Law School at Loyola Marymount University in Los Angeles.

“It could be true, but it’s not necessarily true. It’s not inherently true,” Levitt said.

Law firm: districts don’t represent community diversity

The Dallas law firm Brewer Storefront sent warning letters to the Arlington and Eagle Mountain-Saginaw school districts in Tarrant County, and 11 districts across Texas, saying their at-large school board seats and off-cycle elections deny diverse representation on their school boards and limit voting by people of color.

The law firm sent the letters on March 6 stating neither district represents the diversity of their communities. Neither district commented on the letters before publication time. Arlington ISD’s board discussed pending litigation in a closed session during a meeting Thursday, and Eagle Mountain-Saginaw ISD’s board is scheduled to do the same Monday. It’s not clear if those conversations were prompted by the law firm’s letter.

William Brewer III, founding partner of Brewer, Attorneys & Counselors, and its pro bono arm, Brewer Storefront, has been involved in voting rights litigation with local school boards and city councils for the last decade.

The firm has worked with experts like demographers, statisticians and historians to map old school districts across Texas to strategize what school districts are violating the Voting Rights Act of 1965 and where they had an opportunity for quick, effective change that would have a positive impact on the education of children.

The law firm ties the issue to other problems in schools: “A lack of diversity and equitable geographic representation on school boards often leads to underfunded schools, school and student achievement gaps, and disenfranchised voters,” it says in a news release.

Lawyers from Brewer Storefront have used the firm’s voting rights initiative to challenge school districts in Irving, Frisco, Grand Prairie and Carrollton-Farmers Branch.

The letters sent to the 11 school districts will continue the law firm’s mission to advocate for these school districts to have single-member districts to ensure minority voters have a fair opportunity and can participate in the electoral process, Brewer said.

“We represent parents who live in the areas where we believe change is demanded by the statute,” Brewer told the Star Telegram. “Whose children will be the beneficiaries of a different system.”

At-large voting dilutes Black and Hispanic vote

Scott Hofer, a professor of political science at St. Francis College in New York, said at-large elections can dilute the power of voters of color in communities that have large Black and Hispanic neighborhoods.

In many cities across the South, where housing patterns are still affected by discriminatory policies from decades ago, Black residents might make up the overwhelming majority of certain neighborhoods, but a much smaller share of the city overall. In a single-member district voting model, voters in predominantly Black neighborhoods elect school board and city council members from within their own communities, Hofer said, and those representatives usually look like the communities they serve. But under at-large voting models, those voters generally find their voices drowned out, he said.

Hofer, who previously taught political science at the University of Houston, was one of three researchers who released a white paper in 2018 looking at the trade-offs between at-large voting systems and single-member districts. There’s a certain amount of consensus among scholars that city and school leaders who established at-large voting systems a century or more ago largely did so with the intent of limiting the power of non-white voters, he said.

Decades later, those voting systems are still entrenched in many communities, he said. In some cases, those systems persist because of simple inertia, he said. In others, he said, it’s because the people who have the most power to change the systems are also the candidates who get elected under them.

Voting Rights Act combats discriminatory election laws

Levitt, the Loyola Law School professor, said at-large elections for seats on school boards or city councils could be a part of a system that violates the Voting Rights Act. But at-large voting models aren’t necessarily illegal in and of themselves, he said.

The Voting Rights Act of 1965 was put into place at the height of the Civil Rights Movement, to, among other things, combat local policies that intentionally diluted the power of non-white voters, Levitt said — policies like at-large elections for school boards or city councils. Voting rights advocates say at-large elections are discriminatory because they allow the majority of a community to dominate every board seat, effectively denying minority voters a voice on those boards.

But the Voting Rights Act is “relentlessly context-specific,” Levitt said, meaning it demands that specific details about each case be taken into account. Although it’s safe to expect attorneys to emphasize racial and ethnic mismatches in any lawsuits they eventually file, Levitt said it isn’t enough to show that an elected body doesn’t look like the jurisdiction it serves. Attorneys need to be able to show that a large demographic group can’t get its preferred candidates elected.

Generally, that means attorneys have to look at voting patterns in past elections, he said. For example, if a large community of Black voters tends to support Democratic candidates, but the elected body is made up entirely of Republicans, those voters might be able to make a successful case under the Voting Rights Act. But the issue doesn’t always fall along party lines, he said — for example, if a community generally favors one brand of Republican candidate, but candidates from another wing of the GOP dominate, a Voting Rights Act claim could still be possible.

Attorneys making a Voting Rights Act claim also often look at whether a state or local jurisdiction has a history of discrimination in how it conducts its elections, Levitt said. Texas has a pronounced history of racial discrimination against Black and Latino would-be voters dating back to the 1840s. If attorneys can show that election policies and systems put into place decades ago put non-white voters at an unfair disadvantage today, they may succeed in having those policies overturned.

Most districts across the country that have been ordered to change their school board election systems have adopted a single-member district model, in which voters elect candidates to represent their geographic areas, Levitt said. But that isn’t the only solution, he said. In the mid-1990s, about three dozen school districts, city councils and community college districts shifted to a cumulative voting model after settling Voting Rights Act claims.

In 1995, then-Gov. George W. Bush signed a bill into law allowing school boards and other elected bodies to shift to a cumulative voting model. Under that system, elections remain at large, but voters get a number of votes that corresponds with the number of candidates on the ballot. Voters can distribute those votes any way they choose. For example, in a five-person race, a voter could give five votes to a single candidate, one vote to all five candidates or two votes to one candidate and three to another.

Carrollton-Farmers Branch offers possible preview

One district that shifted to cumulative voting more recently was the Carrollton-Farmers Branch Independent School District. The district adopted that model in 2016, after settling a Voting Rights Act lawsuit.

Randy Schackmann, a current board member in the district, served on the board at the time the district made the change. After the lawsuit was filed, school leaders began working with demographers to try to find an equitable way to divide the district into single-member voting districts, he said. At the same time, board members met with mediators to try to work out a settlement.

The idea of cumulative voting came up during mediation, Schackmann said. At the time, he said, no board members had heard of the idea. But several school trustees found the idea appealing, he said, mostly because it offered a way to resolve the lawsuit quickly. The board voted 5-2 to adopt the model and settle the suit, with Schackmann as one of the two votes against.

Schackmann said most of his initial concerns about the settlement had to do with a provision that was unrelated to the voting plan. But years after the change, he still has concerns about how Carrollton-Farmers Branch ISD elects its school boards.

Schackmann said his biggest concern about the model is that voters largely don’t understand it. In each election, large percentages of voters don’t cast every vote they’re allowed, he said. During his re-election campaign, he tried to explain to voters that, because there were three candidates on the ballot, they could vote for him as many as three times. Some reacted with incredulity or outright suspicion, he said. For others, his explanation seemed to go over their heads.

Part of the reason for that misunderstanding could be the large number of people who move into the Dallas-Fort Worth area every year, Schackmann said. Most new voters who arrive in the district haven’t heard of cumulative voting before, he said, so they assume they can only cast one vote in each race.

But Schackmann said he also thinks most voters just don’t pay close attention to local races like school board elections until the last minute and walk into the voting booth without understanding how the system works. A voting system that most voters can’t understand doesn’t create a framework for fair elections, he said.

“People do not understand cumulative voting. I don’t care how much we’ve tried to educate them — and we have, a number of ways,” he said. “... I believe that cumulative voting has disenfranchised more voters than it enfranchised.”