On January 22, 2007, the council unanimously adopted a revised ordinance that would still require apartment complexes to verify the lawful immigration status of their tenants, but would use a framework the city claimed was similar to the kind used by the U.S. Department of Housing and Urban Development. Nationally syndicated conservative radio personality Mike Gallagher presented the City Council with a $10,075 check for its legal defense fund, raised by selling shirts that read, "This is America. Please speak English." David Koch, the real-estate attorney and intermediary between IRLI and the council (and who was also preparing to make a run at a council seat), proffered a check for $2,100 on behalf of farmersbranchlegaldefensefund.com.
On the final day of voting, May 12, City Hall saw the largest turnout in Farmers Branch history. Voters approved the new ordinance by a two-to-one margin. Attorneys for the ACLU, MALDEF and Bickel & Brewer quickly filed for another temporary restraining order. A federal judge granted it. The following month, the plaintiffs got a preliminary injunction pending the outcome of a trial.
Determined to craft an ordinance that would survive a legal challenge, the city adopted its third and final ordinance in January 2008 with the help of Kobach. It was due to take effect 15 days after whatever ruling came from the federal court. Two months later, U.S. District Judge Sam Lindsay issued a permanent injunction, deeming the second immigration ordinance an unconstitutional encroachment on a federal prerogative. The City Council vowed its third ordinance would soon take effect. Again, Bickel & Brewer sued the city on behalf of apartment complex owners and succeeded in securing yet another temporary restraining order. By 2009, Farmers Branch was on the hook for a nearly half-million dollar mediated settlement to apartment owners and tenants. It was estimated it had incurred some $2 million in legal fees related to defending the ordinances. In March 2010, another federal judge permanently blocked the city from enforcing its third ordinance. The council voted unanimously to appeal. By that time, the toll was more than $3 million.
The city's doggedness gained it nationwide media attention. By last December, the feds took notice. In an amicus brief to the 5th U.S. Circuit Court of Appeals, attorneys for the Justice Department argued that the city's ordinance rested upon a fundamental misunderstanding of immigration law. The federal program the city intended to use to verify the immigration status of a prospective tenant could tell them whether a non-citizen was subject to removal proceedings, but would not reveal the outcome.
Kobach is a true believer in the inherent authority of states and municipalities to enforce federal immigration law. And so he waved off practical considerations that could make verification tricky.
"The so-called problems with verification are a complete fabrication of the ACLU," Kobach scoffed.
But consider the volunteer English teacher, Rolando Puga, who possesses a master's degree in business administration. "I lost my work permit," he says. "I guess you could say I'm 'illegal.'"
Puga, now 39, emigrated to this country when he was 18. Before he lost his work visa, he was the international trade administrator for a bank, he says. Now he does whatever contract work he can get. "I tell people I do not have the privilege of working," he says. His case before the immigration court is pending, but years might pass before he sees a judge. Until then, no official or database can tell the Farmers Branch building inspector whether or not he has the right to live here. Like the many who remain, even as the council seemed to regard them as "barriers" to prosperity, he learned to cope.
"There was a lot of talk about it, and every day it's like, 'Did you hear the news?'" says Claudia Ortiz, manager of Paletería San Marcos, a shop her family has owned since 1998. "You sort of move on, even though it's looming over your head."
In July 2010, Bickel & Brewer sued Farmers Branch, charging that its at-large electoral system robbed the Latinos of council representation. The case will go before a judge later this month. The current system, the complaint alleges, "permits the possibility that the City Council could reside on the same street ..." They weren't far off. The entire City Council lived east of Webb Chapel, primarily in Brookhaven and Wooded Creek. On the west side of town, Hispanics could undoubtedly turn out in sufficient numbers to choose from one of their own in a single-member district scheme.
But in a citywide, at-large system, they'd never voted in sufficient numbers to overwhelm the voting bloc on the east side. As a result, Farmers Branch has only ever known white council members, though it wasn't for lack of trying.