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Appeals court denies ACLU's request in Ferguson-Florissant voting rights appeal

File Photo | Carolina Hidalgo | St. Louis Public Radio

Updated 7:01 p.m. Jan. 05 with response from the court — Ferguson-Florissant's April school board elections will operate under its old at-large system. The 8th U.S. Circuit Court of Appeals has denied the NAACP's request to switch to the cumulative voting method a federal judge ordered earlier in the voting rights case. 

Depending on the results of the school district's appeal, Ferguson-Florissant's voting system could still change in the future. 
Updated 4:55 p.m. Dec. 22 with ACLU emergency filing — The American Civil Liberties Union filed an emergency motion with the federal appeals court on Thursday seeking to reinstate cumulative voting for the spring election for members of the Ferguson-Florissant school board.

U.S. District Rodney Sippel had ordered the cumulative voting last month, then ruled earlier this week to vacate that order. As a result, three seats on the board would be decided through at-large voting, as they have been in the past.

That voting process is at the heart of a suit filed by the ACLU on behalf of the NAACP that claims the membership of the school board has not accurately reflected the racial makeup of the voting-age population in the north St. Louis County district.

In its emergency motion with the 8th U.S. Circuit Court of Appeals, the ACLU said Sippel’s ruled this week “inexplicably” and without regard to the findings of the trial earlier this year.

“The court found that the Ferguson-Florissant School Board’s election system violates the federal Voting Rights Act,” said Tony Rothert, legal director for the ACLU of Missouri, “so allowing an election to go forward in April without a remedy would be illegal. Entering this stay is incorrect and we are seeking a review of this decision.”

The motion said that the NAACP “will be irreparably harmed by the stay…. The public interest cannot possibly be served by such a result.”

The motion noted that candidate filing has already begun with the understanding that cumulative voting would be used. “If anything,” it said of Sippel’s ruling this week, “the stay will cause candidate and voter confusion.”

If the appeals court will not reverse Sippel’s ruling right away, the ACLU asked for an expedited appeal so that the April election can be conducted with cumulative voting. It seeks to have briefs filed by Feb. 3 and oral argument set for the week of Feb. 6.

Updated 11:00 a.m. Dec. 22 with reaction from ACLU: Cumulative voting for members of the Ferguson-Florissant school board this spring is on hold following an order Wednesday by a federal judge.

U.S. District Judge Rodney Sippel said his November ruling that would have changed the way district voters chose school board members in April would be delayed while Ferguson-Florissant took its case to the 8th U.S. Circuit Court of Appeals. Unless things change, the election would be held with the standard at-large voting.

The district had announced last week that it was appealing Sippel’s earlier order, which came in response to a lawsuit filed by the American Civil Liberties Union. It was designed to force changes that the suit said would result in a makeup of the school board that more closely matches the racial makeup voting population in Ferguson-Florissant.

Sippel had called the current system of at-large elections for all members of the school board “legally unacceptable.”

Under cumulative voting, as many votes may be cast as there are seats up for election. Those votes may all be cast for the same candidate or may be spread around as a voter sees fit.

The ACLU brought the suit on behalf of the NAACP, which said that historically, the district’s school board did not reflect the African-American population in Ferguson-Florissant.

Cindy Ormsby, the attorney for the district, asked the judge for the stay of his earlier order.

"He did not want to yo-yo back and forth between two different voting schemes," she said. "He thought it would be confusing to the voters.

"We thought that it would be confusing to have cumulative voting, and then if we're successful in our appeal to then go back to at-large voting."

In an email Wednesday, Ormsby said she did not think the appeals court is likely to rule in the case prior to the election in April. She said the judge had the district notify any candidates who have already filed for the election about the latest situation.

Responding to the judge's order on Thursday, Tony Rothert, Missouri legal director for the ACLU, said in a statement:

“The court found that the Ferguson-Florissant School Board’s election system violates the federal Voting Rights Act, so allowing an election to go forward in April without a remedy would be illegal. Entering this stay is incorrect and we will seek a review of this decision.”

Announcing the decision to appeal the ruling, the current president of the board, Donna Thurman, noted that “in the time since the lawsuit was filed, district voters have elected two additional African-American board members. We are confident the present process is lawful and provides an equal opportunity for all candidates.”

Thurman is African-American as are Courtney Graves and Connie Harge. The terms of Thurman, Robert Chabot and Keith Brown expire in April.

Along with the cumulative voting plan, Sippel ordered Ferguson-Florissant to come up with a voter education program that would explain the new balloting process.

He said that cumulative voting, which had been proposed by the plaintiffs in the suit, would correct the racial imbalance on the board when used with staggered terms and off-cycle elections.

Follow Dale and Camille on Twitter: @dalesinger @cmpcamille.

Dale Singer began his career in professional journalism in 1969 by talking his way into a summer vacation replacement job at the now-defunct United Press International bureau in St. Louis; he later joined UPI full-time in 1972. Eight years later, he moved to the Post-Dispatch, where for the next 28-plus years he was a business reporter and editor, a Metro reporter specializing in education, assistant editor of the Editorial Page for 10 years and finally news editor of the newspaper's website. In September of 2008, he joined the staff of the Beacon, where he reported primarily on education. In addition to practicing journalism, Dale has been an adjunct professor at University College at Washington U. He and his wife live in west St. Louis County with their spoiled Bichon, Teddy. They have two adult daughters, who have followed them into the word business as a communications manager and a website editor, and three grandchildren. Dale reported for St. Louis Public Radio from 2013 to 2016.

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