Local government design, mayoral leadership, and law enforcement reform.

• Author: Kasner, Alexander J.
• Position: Continuation of II. Mayoral Power and Redesigning Law Enforcement Oversight B. Civic Engagement and Representativeness through Conclusion, with footnotes, p. 577-602

1. Exit

   Apathy's practical disenfranchisement of minority residents in cities has led some to give up the cause of a fix and focus attention elsewhere. This is what we might call the "exit" strategy of minority influence through democratic representation. Where turnout is low due to apathy fostered by structural barriers and perpetual defeatism, exit calls for voters to find submunicipal modes of political participation instead.

   Erwin Chemerinsky and Sam Kleiner have noted that traditional citywide governance makes it "difficult for minorities to gain significant political representation." (167) Accordingly, minority representation in proportion to its majority population status must sometimes cede to "minority rule without sovereignty." (168) That is to say, when minority populations cannot elect members to City Hall in proportions equal to their representation in the general population, they must turn to neighborhood-based associations to discuss and petition.

   Recognizing the same phenomenon, Heather Gerken has called for submunicipal "[s]pecial purpose institutions" as a way to impact municipal policy when representation by voting in city elections is such a lost cause. (169) The goal, suggests Gerken, is to provide localized institutions that "provide minorities with a chance to exercise voice inside the system, [even if they cannot] set policy outside of it." (170) For Gerken, this comes in the form of nonsovereign institutions that nonetheless wield immense power: "juries, school committees, zoning commissions, administrative agencies, local prosecutors' offices, and the like." (171)

   In a sense, meaningful minority participation in government might require what one commentator has called a "polycentric [city] government." (172) In this formulation, Gerken's institutions can take form in more autonomous "school boards, water districts, utility districts, and transit commissions." (173) And these submunicipal institutions can also be divided on a geographic basis, whether in the form of neighborhood councils (174) or "enterprise zones, tax increment finance districts, special zoning districts, and business improvement districts." (175) But adopting this model of minority participation as a replacement rather than a supplement to meaningful participation in higher levels of local government is largely unhelpful, as a good deal of public safety and policing policy is tasked to those higher levels.

2. Structural reform

   In contrast, we might attempt to overcome minority underrepresentation through structural changes to either municipal elections or governance. The challenges and potential solutions become clear in a case like Ferguson, Missouri. The population of Ferguson is almost 70% African American. (176) In the last mayoral election, (177) 11.7% of the city's eligible population voted-17% of white eligible voters and 6% of African American eligible voters. (178) At that time, five of Ferguson's six city councilmembers, its mayor, and fifty of its fifty-three police officers were white. (179) In responding to this disjunction, commentators have suggested that electoral reform is needed. (180) Their focus has been on moving city elections on cycle with national elections, where turnout--especially among minority voters--is likely to be higher. (181)

   The data bear out the wisdom of this switch but also suggest an addition: switching to a mayor-council governance structure. As one study determined, only two factors independently increased election turnout: holding local elections concurrent with national elections and the empowerment of the city mayor. (182) Controlling for several salient variables such as African American population percentage, voter turnout was predicted to be highest in mayor-council cities (34.68%); this was about nine percentage points higher than in council-manager cities with an independently elected mayor (25.89%) and more than eleven percentage points higher than in strict council-manager cities (22.96%). (183) However intuitive the result--a centralized figure with increased visibility and accountability will energize an electorate--the link between turnout numbers and mayoralty has evaded scrutiny in the wake of recent events.

   This is all the more worrisome given that minority voting turnout may itself be the single largest driver of the social and civil rights improvements of minority populations. As Pamela Karlan and Samuel Issacharoff have explained, it was "business set-asides, affirmative action, and government employment," not civil rights litigation, that proved the turning point in minority empowerment during the later portions of the civil rights movement. (184) These were gains won "precisely because blacks were able to elect their candidates of choice in majority-minority districts." (185) In short, it was the "vigilance of a black political class" that led to the "creation of a black middle class." (186) As Heather Gerken also notes, pulling from a recent study, the election of African American mayors correlates with the number of African American municipal employees, including in public safety and law enforcement divisions. (187)

   It is possible that a greater number of African American police officers may not lead to less violence and tension between law enforcement officers and city residents. (188) But there are good reasons to cautiously draw a connection. David Sklansky points to three possible benefits of greater diversity in law enforcement: competency effects, community effects, and organizational effects. (189) While the competency effects might be low--that is, some studies have shown that black officers fire their weapons and are subject to disciplinary actions at the same rate as white officers (190) -the latter two effects may be stronger.

   Community effects materialize on both the micro and macro levels. On the micro level, a black officer may have more credibility than a white colleague in a predominantly black neighborhood. (191) And on a larger scale, "a department that recruits, retains, and promotes a significant number of black officers may find the credibility of its entire force enhanced in black neighborhoods." (192) Finally, the largest impact may be at the organizational level, in the interactions within police departments between diverse officers. (193) Sklansky notes that there is both anecdotal and statistical evidence that contact between partners of diverse backgrounds--white and minority, male and female, straight and openly gay--can change attitudes and lead to diminished use of force and better response to minority populations. (194)

3. Litigation

   There is a third strategy to consider: combating underrepresentation through litigation. Where barriers to minority representation in cities are compounded by institutional choices, a cognizable claim may emerge under either the Constitution or a statute. (195) Of course, with the Supreme Court's recent neutering of the Voting Rights Act (VRA) in Shelby County v. Holder, (196) the efficacy of such a strategy is unclear. There are articles to be written, studies to be conducted, and arguments to be made on the effect of Shelby County on our cities moving forward. (197) At bottom, the use of litigation on its own as a strategy to mitigate civil rights issues is increasingly difficult, with institutional and governmental design choices moving to the forefront.

   It should also be noted that the move to a strong mayor system could itself implicate potential VRA challenges. VRA claims have been made on the basis of a number of local governmental design choices, including the debate between at-large and ward system elections and the annexation of suburban districts into city limits. (198) A strong mayor system presents at least potential intersections with the VRA because it will likely require the move to an at-large election, which might raise vote dilution claims under section 2 of the VRA. (199) And this is to say nothing of the collection of state voting rights acts, like the 2002 California Voting Rights Act, which makes vote dilution suits in at-large elections potentially easier to win than they would be under federal law. (200) Accordingly, a switch to an at-large mayoral election could face challenges under state and federal law if designed to consolidate executive power in an official that minority residents have no chance at influencing.

4. Aligning expectations and power

   Increasing voter turnout among minority populations is a necessary, but not sufficient, step. After all, voting only carries the full force of accountability if voters' beliefs as to which actors hold which powers align with the reality of power distribution. (201) And the ways in which executives--be they at the federal, state, or local level--struggle with power deficits in the face of overwhelming responsibilities has been well documented since Richard Neustadt famously observed that presidential power needs to expand informally to meet outsized voter expectations. (202)

   However, council-manager government--and especially adapted government--tends to exacerbate voter malfunction by confusing voters as to the extent of the mayor's powers and responsibilities. The error for voters thinking about their mayor in this system comes in the mayor's decreased official capacity, far below that of voter expectations. Voters tend to overestimate the powers and responsibilities of mayors in adapted cities and, to a lesser extent, council-manager cities, thus leading to voter malfunction. (203)

   Particularly, the powers and stature of federal, state, and local executives from other cities can imprint on citizens of an adapted city and skew their beliefs of what their mayor can and should do. (204) "The notion of the strong executive is deeply embedded in American political culture," writes Richard Schragger. (205) Yet while this impression of an inherently strong executive matches actual political powers to some degree at...