** Photograph, Grady County Courthouse (Jury Box), Cairo, Georgia. 1976. By Jim Dow (used with permission of Mr. Dow)
BREAKING NEWS: December 11, 2008:
Statement of David Randolph Smith & Sean Lewis:
"The Tennessee Supreme Court, on December 11, 2008, issued aper curiam order (without comment or reasoning) denying the Plaintiff's motion for rehearing. Our appeals are concluded. The election will now go forward.
We asked the Tennessee Supreme Court to do precisely what the Oklahoma Supreme Court did in a similar English-only referendum constitutional challenge--enjoin, pre-election, a facially unconstitutional election. The Quinteros lawsuit caused Metro to say, on the record in this case, that the measure is unconstitutional. (Their Answer filed in Chancery Court). This admission should certainly aid the "No" campaign now that the pre-election constitutional challenge will not be heard by the Courts.
Also, the Tennessee Supreme Court has stated it was not passing on merits of the ripeness issue & the City of Memphis case. This is a plus for future cases (and will provide a framework to fend off future "harebrained" ballot measures sponsored by groups that seek to divide our city or divest minority groups of rights guaranteed under the laws and Constitution(s). We recognize that Councilman Crafton and others sought to mis-characterize this constitutional challenge as an effort to "stop democracy." But "populism" or "direct democracy" is a danger (if not a fraud) where outside professional petition gatherers (in this case "ProEnglish" from Arlington, Virginia) seek to in effect hijack local government and impose serious costs on the government to fend off an unconstitutional ballot measure.
Scholars have written extensively that these type of initiatives are fundamentally at odds with the the Constitutional guarantee of a republican form of government--that we elect representatives to govern and pass laws (and also to buffer against deprivation of rights by majorities against minorities).
We remain committed to the legal proposition we advanced: that "it would be a disservice to the citizens of [Nashville] to submit a petition which could not withstand a constitutional attack to a vote." In re Petition No. 366, p. 125.(words from the Oklahoma Supreme Court decision that enjoined, pre-election, a similar English only petition-referendum). This is especially so given the "Hear the People" ballot measure [the other measure on the ballot] --sponsored by the same professional petition drive & funded by "Pro English"-- would allow Crisp, Crafton et al or others to bring serial (annual) ballot measures perhaps on such issues as vouchers, school prayer, abortion, etc.. The second ballot measure would allow annual petition drives based upon 1% of the voters signing such petitions. Where does it end?
Our lawsuit sought to have the Courts define the parameters to preclude facially unconstitutional measures. 1% of the electorate might sign petitions to reinstitute slavery. We appealed this case because we do not believe the law does, or should allow, such a result by "jurisdictionally" refusing pre-election review. We respect, and are thankful for, the careful review of our case by Tennessee Supreme Court. We had hoped the Court would consider following the Oklahoma Supreme Court's ruling. Courts, however proceed and rule based upon numerous legal factors and reasons which litigants and lawyers do not always fully appreciate or understand. In our view this English-only measure is unconstitutional. Significantly, this was been conceded in the case by the Metro government in its pleadings. If the measure somehow passes (likely because voters fail to understand how the law violates the First Amendment) we would predict it will be declared unconstitutional, at further cost to the taxpayers.
We hope, and believe, that our efforts will assist in speeding that result. We do not think that the pre-election constitutional challenge we filed has or will hurt the prospects of defeating the measure. David Randolph Smith and immigration attorney Sean Lewis have worked hard on this case pro bono, because in our legal judgment the election itself is unconstitutional state action and would needlessly harm and divide our city. We brought our challenge under well-reasoned precedents. We now urge people to go to the polls on January 22nd (with early voting at the Howard School starting January 2nd) and vote against both amendments. We are reminded of Edmund Burke's famous line: "All that is necessary for the triumph of evil is for good men to do nothing."
On November 19, 2008 David Randolph Smith and Nashville immigration attorney Sean Lewis filed a lawsuit in Chancery Court on behalf of Rosa Quinteros, an immigrant from Honduras with lawful refugee status, against the Metropolitan Government of Nashville and the Davidson County and the Davidson County Election Commission contending that the proposed English-only amendment to Metro's charter is unconstitutional and calls on the government to overstep the limits of its power. The suit seeks an injunction barring the Election Commission from preparing for or holding the special election, now set for Jan. 22. Early voting is to begin Jan. 2.
The case is being handled as a pro bono publico case. Meaning it is a case handled without payment or fee and without expectation of payment or fee to the attorneys and because it is of important constitutional significance (and directly affects minorities & persons of limited means). The attorneys have no expectation of payment or fee. If the court awards fees allowed by statute (42 U.S.C. § 1988) any awarded fees will be donated to refugee/immigrant charities. This is specifically provided for in The ABA Pro Bono Rule 6.1: Voluntary Pro Bono Publico Service. See: https://www.abanet.org/legalservices/probono/rule61.html
A version of this English Only law offered as an ordinance by the same proponents was vetoed by prior Metro Mayor Bill Purcell and was declared unconstitutional by a formal opinion of the Metro Law Department
In November of 2006, the Nashville Metro Council passed resolution RS2006-1650, clarifying that TN state law already establishes English as the official language, and expressing concern that further English-only legislation could actually be bad for English acquisition
Links re Eric Crafton, "Nashville English First" & ProEnglish
Metro Council member Eric Crafton rolled out his English Only law by invoking the fall of the Roman Empire, which he said was "overrun with illegal immigrants . . . who at first worked as servants but then came so fast they did not learn the Latin language or the Roman form of government." Read full article
The Executive Director of ProEnglish K.C. (Kenneth Courtenay) McAlpin issued a press release stating: " We are confident that the citizens of Nashville will join dozens of other cities across the country that already have chosen to make English the official language of government operations. And we are pleased that ProEnglish played a key role in giving them the opportunity to make that choice."
The Associated Press provided this background :"K.C. McAlpin, executive director of the Arlington, Va.-based nonprofit ProEnglish, says if voters approve the referendum, Nashville would become the largest city ever to pass such a measure. Nashville has about 600,000 residents. Councilman Eric Crafton sponsored the petition drive, which spent about $20,000 contacting voters through automated phone calls and postcards, an unusually organized effort for the city. Crafton initially refused to disclose the source of the funding, but McAlpin said this week his group gave about $19,000 to "Nashville English First." McAlpin said he contacted Crafton after a similar ordinance he had sponsored was vetoed by then Mayor Bill Purcell, who called it unconstitutional, unnecessary and mean-spirited."
McAlpin also formerly served as deputy director of the immigration restriction organization "FAIR"(Federation for American Immigration Reform). The Southern Poverty Law Center includes FAIR as a "hate organization": "The founder, chief ideologue and long-time funder of FAIR is a racist. Key staff members have ties to white supremacist groups, some are members, and some have spoken at hate group functions. FAIR has accepted more than $1 million from a racist foundation devoted to studies of race and IQ, and to eugenics--the pseudo-science of breeding a better human race that was utterly discredited by the Nazi euthanasia program. It spreads racist conspiracy theories. Its political ads have caused numerous politicians, Democratic and Republican, to denounce it."
"I believe that the American people are increasingly aware that parts of their country are being colonized by alien cultures - often with the assistance of their own government - and they are increasingly upset about it. And, we should be. . . According to recent estimates, the number of Muslims living in the United States already outnumbers the number of Jews. This colonization by alien cultures is only possible because of mass immigration. Without it the threat would disappear."