Earlier this year, longtime downtown barbershop owner Bob Dascola announced his intent to compete for the Democratic nomination to represent Ward 3 on the Ann Arbor city council. And on March 12, 2014, Dascola took out nominating petitions from the city clerk’s office.
But Dascola was subsequently notified by the city clerk that he did not meet city charter eligibility requirements to represent Ward 3 on city council for this election cycle.
Dascola will be challenging the city clerk’s conclusion based on court cases from the early 1970s.
The Ann Arbor city charter includes two time-based eligibility requirements for city office: (1) a requirement that any local elected official must have been registered to vote in the city for a year before election to office; and (2) a requirement that a city councilmember must have been a resident of the ward they’re elected to represent for at least a year before being elected.
Dascola has lived on Baldwin Avenue in Ward 3 for about a year and a half, he told The Chronicle, but he did not register to vote in the city until Jan. 15, 2014. So he appears to meet the residency requirement, but not the voter registration requirement.
However, both of those Ann Arbor city charter provisions were explicitly ruled unconstitutional in federal court cases dating from the early 1970s.
So Dascola will be asserting his right to compete in the Ward 3 primary. He is represented in the matter by attorney Tom Wieder.
In a telephone interview on March 15, Wieder indicated that if “friendly persuasion” does not result in a change to the city’s position, then he’s prepared to move forward to file a lawsuit to ensure that Dascola can run.
And in the meantime, Wieder told The Chronicle, Dascola will be collecting signatures and submitting them to the city clerk as soon as possible. Dascola confirmed by phone that he was collecting signatures on the afternoon of March 15 – a change from an earlier strategy of waiting until the matter is sorted out.
Wieder ventured it is possible that based only on the charter language, someone might in good faith think that Dascola would not be eligible to represent Ward 3 if he were elected this year. But two separate federal court orders – one from Jan. 12, 1972 and the other from March 29, 1972 – struck down as unconstitutional the Ann Arbor city charter residency requirement and voter registration requirement, respectively.
It does not appear likely that a July 30, 2002 ruling by 22nd circuit court judge Timothy Connors might play any role in the resolution to Dascola’s case. The Wojack case – also handled by Wieder – involved the 2001 candidacy of Republican Scott Wojack to run in Ward 1. Wojack was told he could not run based on the in-ward residency requirement. He was allowed to run. But after the 2001 election, Connors issued an opinion upholding the charter residency requirement.
However, according to Wieder: “A state court cannot overturn an existing, binding decision of a federal court on the same subject.” Further, the Wojack case involved the residency requirement, not the voter registration requirement. And it is the voter registration requirement that appears to be the basis of the city’s conclusion on Dascola’s ineligibility.
Ann Arbor City Charter: Two Requirements
The charter provisions on eligibility for office come from Chapter 12: “Officers.” Two one-year requirements are included – the first on voter registration and the other on in-ward residency.
The phrase “registered elector of the city” can be glossed as “registered to vote in the city.” From the charter [emphasis added]:
Eligibility for City Office – General Qualifications
Section 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City office if the person has been a registered elector of the City, or of territory annexed to the City or both, and, in the case of a Council Member, a resident of the ward from which elected, for at least one year immediately preceding election or appointment. This requirement may be waived as to appointive officers by resolution concurred in by not less than seven members of the Council.
According to Dascola, he moved to his Ward 3 address on Baldwin Avenue from Grass Lake, Mich., about a year and a half ago. So Dascola appears to meet the requirement that he be a resident of Ward 3 for at least a year immediately preceding election.
However, Dascola indicated that he did not register to vote in the city until Jan. 15, 2014. That would put him outside the charter requirement for voter registration in the city – by about two months.
City’s Position: Residency or Voter Registration?
It’s not completely clear if the city’s position is that Dascola doesn’t meet the residency requirement or that he doesn’t meet the voter registration requirement, or both. The document maintained by the city clerk’s office to track petitions includes an asterisk by Dascola’s name with the notation: “Not eligible doesn’t meet one year residency requirement.”
City clerk staff provided that document to The Chronicle – with its asterisk and note – on March 13, the day after Dascola took out petitions to run. That came in the course of a regular in-person visit by The Chronicle to the clerk’s office to check on recent petition activity. At the office counter, city clerk Jackie Beaudry indicated that her conclusion that Dascola was not eligible was based on his voter registration date, which is public information that can easily be verified.
Wieder described the language in a letter Dascola received from the clerk’s office as somewhat unclear on the question of residency or voter registration. But he indicated that it suggests that the city’s conclusion is based on the one-year voter registration requirement.
Federal Court Cases
Two separate federal court cases from almost a half-century ago – about three months apart – struck down first the residency requirement and then the voter registration requirement of the Ann Arbor city charter.
The first case was brought by Daniel J. Feld, Charlene Parker Stern and Bruce S. Kahn. From Ann Arbor News coverage on Dec. 31, 1971:
In October, Feld attempted to take out nominating petitions to run for city council from the Second Ward. However, within the previous 12 months he had moved temporarily to the Fourth Ward and was ruled ineligible to run for the Second Ward by City Clerk Harold Saunders. Miss Stern and Kahn were involved in the suit as registered city voters who claimed they would be deprived of their rights to vote for the candidate of their choice if Feld was not allowed to enter the election.
From the court order by U.S. District Court Judge Lawrence Gubow, filed on Jan. 12, 1972 [emphasis in bold added]:
IT IS FURTHER ORDERED and declared that the portion of Section 12.2 of the Ann Arbor City Charter which requires all candidates for the office of councilman to have been residents of the ward from which they are elected for at least one year immediately preceding their election violates the equal protection clause of the 14th Amendment to the U.S. Constitution and is, therefore, unconstitutional and void. [From court order for Feld v. City of Ann Arbor]
The Ann Arbor News coverage of the Feld case highlights the difference between the residency requirement and the voter registration requirement:
Judge [Lawrence] Gubow ruled only on the one-year residency requirement, and did not rule unconstitutional the charter language requiring that a person be a registered voter for at least a year before assuming elective office. [City attorney Jerold] Lax said persons seeking elective office will have to have the one year of voter registration, stating that he asked Judge Gubow specifically if his ruling went beyond the residency requirement. The answer was “no.”
Even though Gubow’s ruling on the Feld case struck down only the Ann Arbor city charter’s residency requirement, just two and a half months later, the voter registration requirement was also struck down – by U.S. District Judge Ralph Freeman. That came in a ruling on a case brought by the Human Rights Party, David Black and Mark Dickman. Black was the HRP nominee for Ward 4 city council. Dickman was a registered voter who wanted to vote for Black. From Freeman’s order [emphasis in bold added]:
IT IS FURTHER ORDERED and declared that the portion of Section 12.2 of the Ann Arbor City Charter which requires all candidates for the office of councilman to have been registered electors of the City of Ann Arbor for at least one year immediately preceding their election violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and is, therefore, unconstitutional and void. [From court order for Human Rights Party et al v. City of Ann Arbor]
In the opinion written by Freeman, he begins by noting the outcome of the Feld case. He then contemplates application of either the “rational basis” test or the “compelling interest” test for the charter requirement. He decides that question in favor of the “compelling interest” test, citing a U.S. Supreme Court decision from 1972 [Bullock v. Carter] on which “a filing fee system imposed on prospective candidates in Texas could not be sustained merely upon the showing of a rational basis.” [Opinion in Human Rights Party et al v. City of Ann Arbor]
The “compelling interest” of the city was claimed to be that “a candidate has some commitment to the electoral process.” Freeman concluded that, “Certainly, this is a proper interest.” However, Freeman then notes that “those measures which the city takes to further its interest must be carefully fashioned to attain their purpose without unnecessary infringement on the rights of the electorate.”
Freeman’s opinion cites a number of state offices that do not impose an additional requirement that a candidate’s voter registration must persist for a year before taking office. Freeman then goes on to state:
We can see some merit in the proposition that registration to vote indicates a belief in, or commitment to, the electoral process, but we do not see that maintaining that status as a registered elector for a period of one year necessarily has any relationship to determining the commitment of the registered voter to that process.
Freeman drives home that point by quoting from another opinion, written by judge Damon Keith:
Judge Keith said in Green, supra, at p. 634, In our opinion a candidate is not like a fine vintage wine. His years of residency in a particular community do not necessarily make him a better candidate.
Wieder indicated it might be possible that someone could conclude in good faith – based on just the language of the charter and without knowledge of the two federal cases – that Dascola was not eligible to represent Ward 3.
Wieder said he’s hopeful that when the federal cases are pointed out to the city, it will be recognized that the two charter requirements no longer have any force. If “friendly persuasion” does not result in Dascola being allowed to run for city council, then Wieder indicated a lawsuit would be filed.
Context of Ward 3 Race
The only other candidate so far to take out petitions to run in the Ward 3 Democratic primary is Julie Grand, who also competed in the August 2013 primary. Incumbent Stephen Kunselman received more votes than Grand in that race.
Kunselman is not up for re-election in 2014, but is running for mayor, along with three other councilmembers: Sabra Briere (Ward 1), Sally Petersen (Ward 2) and Christopher Taylor (Ward 3). Because he cannot simultaneously run for mayor and run to retain his Ward 3 seat on the council, Taylor’s decision to run for mayor leaves that seat open.
Petitions for the partisan primary in August 2014 must be turned in by April 22. For councilmembers, 100 signatures are required from their ward. For mayor, the requirement is for 50 signatures from each of the city’s five wards, for a total of 250 signatures.
The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the Ann Arbor city council. We sit on the hard bench so that you don’t have to. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!