A decision handed down by federal district judge Lawrence Zatkoff on May 20 had an immediate impact on Ann Arbor city elections: Bob Dascola’s name will now appear on the Ward 3 city council Democratic primary ballot, alongside those of Julie Grand and Samuel McMullen.
Even though the immediate issue appears to be resolved, a longer-term question is still open. That’s because the result of the federal court ruling is that the city of Ann Arbor has no legally enforceable eligibility requirements for service as mayor or city councilmember.
Anyone at all is now eligible to serve – even youngsters under 18 years old, who would not even be allowed to vote for themselves in the election – just as long as they submit the minimum number of signatures on nominating petitions.
So it’s time for the council to put a charter amendment on a future ballot that would establish some sort of eligibility requirements for elected officials. The council has a choice about what kind of requirements to put on that ballot for voters to decide.
In broad strokes, I think the eligibility requirements for elected officials should pose only a minimal barrier to the ballot. It would be perfectly adequate if the requirement were something like the following: To be an eligible elected official, a person must be a registered voter in the geographic area the person seeks to represent, from the time that person files their paperwork to qualify as a candidate.
Before making a case that this is a perfectly reasonable and adequate requirement, it’s worth considering how we arrived at a place where the city now has no legally enforceable eligibility requirements for elected officials.
After the city of Ann Arbor informed Dascola that he could not serve as an elected official, because he did not meet city charter requirements, he filed a lawsuit to assert his eligibility to serve. Those charter requirements say a person is only eligible to serve on the city council if the person has been a registered voter in the city and a resident of the ward the person seeks to represent – for at least a year prior to election. Dascola contended he met the residency requirement, but conceded that he fell short of the voter registration requirement. He did not register to vote in the city of Ann Arbor until Jan. 15, 2014.
But Dascola successfully argued in federal district court that both of Ann Arbor’s city charter requirements were unenforceable – because they had been ruled unconstitutional, null and void in federal court cases dating from the early 1970s. The city had essentially argued that the charter eligibility requirements would be found constitutional, if those 1970s cases were litigated today, based on subsequent case law. But the court ruled that the city needed to legislatively re-enact those city charter requirements, before they could be enforced.
In fact, the ruling this week permanently enjoins the city of Ann Arbor from enforcing those one-year durational requirements before re-enacting them. And that re-enactment would need to take place according to the orderly process called for in Michigan’s Home Rule City Act.
That process is for the city council to decide upon some charter language and then put a ballot question before voters to establish eligibility requirements. This was actually attempted in 2003, but the charter amendment was not approved by a majority of voters. [For more detailed background on that attempt, see: "Ann Arbor's Dumb Old Charter."]
By any objective standard, the 2003 attempt was flawed – for at least two reasons. First, the ballot language mischaracterized the existing wording of the charter. Second, the proposed amendment would have established a requirement for elected officials that a person be registered to vote in the geographic area they sought to represent only at the time they took office.
The proposed 2003 requirement seems so weak as not to be practical. Voters have a legitimate interest in knowing that a candidate who has been qualified for the ballot is also qualified to serve, if elected. If the eligibility requirement is applied only at the point when the person takes office, it’s possible that a candidate might win election and then decide not to register to vote in the appropriate geographic area. That would lead to an outcome where the winning candidate would not be eligible to serve. That kind of scenario is clearly not in the public interest.
The kind of requirement I’ve proposed above would apply a voter registration requirement – with its attendant requirements on age and citizenship – at the point when a candidate files paperwork. It would be an easy fact for the city clerk’s staff to check at that time.
Deadlines for submission of paperwork start in mid-April for the general election in November. So the kind of rule I’m proposing would impose a shorter durational requirement than a year. One year is the span mentioned in the words of the current city charter.
Now, some might argue it’s important that a person be registered to vote in the geographic area they seek to represent for at least one year. And people are free to make that argument – in the context of a democratic election campaign.
For example, if someone thinks that Bob Dascola should not serve as a Ward 3 city councilmember because he has not been registered to vote for at least a year in Ward 3 and should be counted as a carpetbagger, that person is free to make that argument – or any other argument against Dascola – and to urge others not to vote for him. That’s exactly what city planning commissioner Diane Giannola did in a post on her blog, middleoftheleft.com: “I say don’t…don’t vote for [Dascola] if he happens to find his way on to the ballot.”
If the city council is not persuaded I’m right, and believes that a one-year durational voter registration requirement – or some other requirement – is preferable to the one I’ve proposed, then the council should put that different requirement in front of voters.
It’s important for the council eventually to act in some manner, because right now the city of Ann Arbor has no legally enforceable eligibility requirements at all for elected officials. And I don’t think that just anyone should be eligible to step into the center ring of our local governance.
This issue should have been addressed back in 1972 when the federal courts first ruled. And when the attempt in 2003 to establish eligibility requirements was unsuccessful, the city council should have tried again. It’s not necessarily an emergency requiring immediate action, because the ultimate check on eligibility is the election itself.
But now, as long as a lot of people are thinking about this issue, it would be a good time for the council to try again to get this part of the city charter cleaned up.
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