A longtime Gonzales ordinance that designates one City Council seat as set aside specifically for a black member is under fire this election season, 24 years after local leaders adopted it to ensure minority representation.
For the first time since it went into effect in 1992, a white candidate is vying for the seat, and highlighting the unusual construction of the law. Wade Petite, editor and publisher of the online news website Pelican Post News, qualified to run in July, saying he is "compelled to run" even though he believes he has little chance of victory.
"Division D is 'designated as a black minority division' and that cannot stand in a democracy based upon Equal Protection of the Law for every citizen," Petite wrote on his website.
Gonzales elects all of its City Council members "at large," meaning the five divisions are elected from voters across the entire city. In the late 1980s, black voters sued in federal court, saying this meant the deck was stacked against black candidates to get elected.
Eventually, city leaders came up with a solution: restrict Division D to black candidates. The U.S. Department of Justice, which previously had to sign off on all changes to voting districts in Louisiana, approved the idea in 1991.
For 24 years, until last month when Petite threw his hat in the ring, nobody challenged the Gonzales law.
But lawyers asked about the law said it's questionable and even the current mayor agrees with Petite that it is unconstitutional.
When asked if he thought it was ever legal to specify the race of the people who can run for a seat or if the Justice Department should have approved the ordinance, LSU Law professor Paul Baier said, flatly, "No."
"It would disenfranchise people," he said.
Two decades ago when the ordinance was drawn up, such a step "was a part of the affirmative action approach to remedy discrimination against African Americans, which was a fact of life," Baier said.
"The Justice Department was quite willing to sign off on the ordinance" then, Baier said.
"Now, after all these years, it would limit a white man's chance to get that seat," he said.
Baton Rouge attorney Christina Peck, who practices election law at the Roedel Parsons law firm, said that she had never heard of such an arrangement. "I've never known a situation where they've designated a person of a particular race — not in an elected body" for a seat on that body.
In situations where an election is at-large and a minority group feels the system is diluting their vote, the group will often request a voting district where minority residents are in the majority be established.
The ordinance, enacted in 1992 and found in Chapter 2, Section 3 of the Gonzales city code, puts City Council races into five divisions — with voters citywide still able to cast ballots for all five council members. But it names Division D, as "herein and after designated as a black minority division."
For two decades, white candidates have voluntarily opted to run for one of the other four seats on the council. The ordinance doesn't spell out any type of enforcement policy and doesn't include wording that excludes non-black candidates from running in Division D.
Petite said he first considered filing a lawsuit against the city after discovering the ordinance while covering the Gonzales City Council in recent years.
"I read it, I read it, I read it," Petite said of his first encounter with the city law.
"'Yes, this means you have to be black to run in this division,'" he said he realized.
Petite, a former attorney, said that instead of filing a lawsuit, he decided to run for the District D seat.
"I'm not going to buy signs. I don't want anybody's money," Petite said of his candidacy.
Aside from his website, Petite has recently gained a larger profile in Ascension Parish politics. He helped another Gonzales City Council candidate, Wayne Lawson, make secret recordings of what the two described as attempts to bribe Lawson to drop out of his race, in a different division, leading to an investigation by the local district attorney.
They accused Parish President Kenny Matassa of participating in the bribery attempts. Matassa has countered that he was trying to help an old friend with advice and a loan.
The work on the Gonzales ordinance Petite is now challenging was done more than 20 years ago "all in good faith, with working relationships" among the parties on both sides of the lawsuit filed in federal court against the city in 1987, said state representative Johnny Berthelot, R-Gonzales, who was mayor of Gonzales then.
Blacks made up about 20 percent of the city's population at that time, a population that has since grown to 44 percent of the population.
Gonzales has a total of 6,509 registered voters today, according to the Ascension Parish Registrar of Voters Office, with blacks and whites about evenly represented: there are 3,028 registered black voters, making up 46.5 percent of voters in the city, and 3,117 white registered voters, making up 47.8 percent of voters.
The lawsuit sought a black single-member geographical district in the city. But Gonzales city officials argued that the city was so well integrated that it would be difficult to create a district where black residents had the majority.
"There were never any confrontations," Berthelot said of the ensuing work on an ordinance that would provide for a black council member.
"It was an agreement we had worked on and felt at that time was the right thing to do," he said.
Berthelot said that he and then city attorney Ryland Percy and attorney Alvin Turner Jr. — now chief judge in the 23rd Judicial District Court who served as attorney for the plaintiffs — brought the proposed ordinance, drawn up in the summer of 1991, to Justice Department officials in Washington, D.C., who approved the city's new law.
A U.S. Justice Department spokesperson last week confirmed that the department received in 1991 a "preclearance submission from Gonzales ... regarding this ordinance and sent a letter ... notifying the city that the department would not interpose an objection under section 5 of the Voting Rights Act" referring to the part of the law that required advance approval of any change to election laws in certain states, including Louisiana.
"The preclearance by the Attorney General of a voting change does not constitute the certification that the voting change satisfies any other requirement of the law beyond that of section 5," said the spokesperson, who added that the department declined to comment further.
In 2013, the U.S. Supreme Court struck down the requirement that the Justice Department agree to changes in districting in Southern states.
Justice approval of the Gonzales ordinance two decades ago was quickly followed by approval by a federal judge in Baton Rouge.
"Personally, I'm proud of what we did and what we accomplished," Percy said. "But perhaps the time has come when we don't need it anymore."
Turner said he felt it wouldn't be appropriate for him to comment on the ordinance for this story, since one of his sons, Tyler Turner, is running for the Division D seat on the Gonzales City Council this fall, along with Petite and a third candidate, Tim Riley. The incumbent, Terance Irvin, who has held the seat since 2000, is running for mayor.
Since Division D was designated as a minority district, black candidates have been successful getting elected in other divisions as well.
Timothy Vessel was elected to the council, in Division C, in 2012. He was recalled from office two years later. This year, Vessel is running for a council seat again, challenging Division B incumbent Kirk Boudreaux.
Harold Stewart was elected to the Gonzales City Council in March 2015 in a special election to fill Vessel's seat after the recall. This fall, he faces a challenger, Willie "Coach" Robinson.
Gonzales Mayor Barney Arceneaux said after the qualifying period, "We do think (the ordinance) is unconstitutional" but said he doesn't expect the city to take any action at the present time.
Arceneaux said he does, however, believe the city will be looking at the matter in the future.
City Attorney Erin Lanoux said she's advised the City Council and mayor that if the law were put into question before a court "it may not pass legal muster, based on other cases."
If Gonzales wanted to change the law and create a majority-black district for the five-member council, city leaders would need to carve out a geographically compact district that makes up one-fifth of the city's population, said Peck, the elections lawyer.
She notes that a city council can make such a move to set up such a geographical district without going to court.
The first black member of the Gonzales City Council — then a Board of Aldermen — was actually elected to that body in 1988, before the ordinance went into effect. There had, however, been unsuccessful black candidates in the previous four municipal elections, news reports from the time said.
Frank "Flash" Gordon became the first black Gonzales alderman when his opponent, incumbent Wallis "Wally" Waguespack dropped out of the runoff election. Waguespack said at the time he was dropping out because he thought it would perhaps stop the federal government from possibly ordering a new election in the face of the federal lawsuit pending against the city.
Gordon went on to be re-elected in 1992 — to the newly created Division D — and again in 1996. Terance Irvin was elected in 2000 and has been re-elected four times since then.
Berthelot said he's been asked over the years if the Gonzales law mandating a minority division on the City Council is constitutional.
His answer, he said: "Every city ordinance passed is constitutional until it's proven not to be constitutional."