Column: Time to Fix Eligibility Rules
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.
What, if any, durational requirements should there be on elected officials? It’s time for the city council to take a step towards establishing legally enforceable eligibility requirements for elected officials.
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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As an aside, this is the first mention I’ve seen online that identifies the author of the Middle of the Left blog.
“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.””
Nice to finally put a face to all the vile and rants. A pitty she never ran for Council in the 4th Ward as rumored at one time. She’s created quite a list of amusing quotes over the years that would have been fun to toss back at her furing a campaign.
A big question is who in City Hall authorized the defense of this fiasco that may cost the City of Ann Arbor thousands and thousands in attorney fees to reimburse Mr. Wieder.
Jack Eaton has stated that City Council is the only authorized body to do so and they never gave any express permission for the defense of the action.
Will Postema appeal? Will he settle the attorney fee liability issue without the necessity of an evidentiary hearing?
My suggestion: make the eligibility requirement that a person must be a registered voter in the appropriate ward at the time of filing. (Eliminate duration of either residence or registration requirements.) Presumably if one is registered to vote at an address, one resides at that address.
Some language needs to be devised that requires the seat to be surrendered if the person moves outside the city or into another ward.
Re (4) “Some language needs to be devised that requires the seat to be surrendered if the person moves outside the city or into another ward.”
That language already exists in a separate section of the Charter:
“SECTION 12.10. A city office shall become vacant upon the occurrence of any of the following events: Expiration of the term of office; death of the incumbent; resignation; removal from office; ceasing to be an inhabitant of the City, or of the ward, from which elected or appointed…”
In effect, the voiding of the section 12.2 eligibility requirements means that an elected office holder must live within the City (for Mayor) or Ward (for Council) while serving. The office would become vacant if the elected person failed to move into the City/Ward before being sworn into office.
Re (3) “Will Postema appeal?” MLive is reporting that the City Attorney said he will not appeal. [link]
The City Council is the City Attorney’s client. The Council acts by majority vote. The City Attorney did not seek direction from his client, the Council, before defending against the Dascola suit. Similarly, the Council has not provided the City Attorney with any direction on the decision whether or not to appeal.
The Council’s opinion about appealing this decision may seem obvious, but one must still ask whether an attorney should ever presume to know his or her client’s wishes without actually asking.
Jack,
I take a different view of the impact of SECTION 12.10, based on the semantics of “ceasing.” To have a “ceasing of X” event you need to have some prior state/condition at which X was true. So I don’t think someone can cease to be a resident of a ward of which they were never a resident.
So I think that the impact of SECTION 12.10, absent eligibility requirements, is that a hypothetical John Doe could be elected to represent Ward 4, despite residing in Lansing, and could represent Ward 4 while residing in Lansing, because there’d be no “ceasing” event to trigger SECTION 12.10. But a hypothetical Jane Doe, who resided in Ward 4 when elected, then moved to Lansing, could no longer serve after the move – because of SECTION 12.10. That different treatment of John Doe and Jane Doe with respect to their ability to represent Ward 4 is absurd – and I would trace the absurdity to the fact that there are no eligibility requirements that would prevent John Doe from representing Ward 4 in the first place.
So, I would take SECTION 12.10 as an additional argument that the council should act towards establishing some sort of eligibility requirements. Not that it’s an emergency – as I don’t think it’s likely that Ward 4 residents would elect someone to represent them who lived in Lansing, or that some resident of Lansing would want to take on the task of representing residents in Ward 4 (or any Ann Arbor ward).
Dave,
You make a good point, but I disagree. I think section 12.10 expresses the intent to require residency during an elected official’s term, although the 1972 litigation changed the antecedent conditions.
More important, I did not mean that section 12.10 was a reason not to amend section 10.2. I’m pretty sure Council will draft something to present to the voters. Hopefully, that will happen soon enough to appear on the fall ballot.
I appreciate this column because we, as a community, will need to decide what qualifications should replace the voided section 12.2 provisions. It is good of you to start this discussion.
:dusts off law degree: Dave, I think you are correct. I seem to remember having a discussion about the issue of ceasing and preexisting conditions in law school in (I think it was) Civ Pro class. I have faith that we would not be silly enough to vote for someone who lives elsewhere but we should have something in writing. Vivienne’s idea is solid.
:puts law degree back in drawer, tries to purge memories:
At TeacherPatti:
There is no requirement that a person reside in a U.S. Congressional District in order to run for the seat in that district.
In fact, Chuck Yob ran for the seat in Michigan’s First U.S. Congressional District (covering the U.P. and northern Lower Peninsula)a few years back even though he did not live in that district and Don Volaric opposed Sander Levin for his set in the 10th District even though he was domiciled just outside the district in northern Macomb County.
Michigan judges, however, who leave their circuit or district residences are deemed to have vacated their office.
Ann Arbor City Council has been a lawless bunch for years. Why change now?
Re: (9), Dave is technically correct. You can not cease doing something if you have never done it.
When Courts construe language that was adopted by approval of the voters, they give the terms the meaning the voters would have reasonably attached to the words when they approved them. Additionally, Courts will avoid an interpretation that causes an absurd result.
I would argue that section 12.10 was understood by the voters to mean that the Mayor or Council person must live in the City or Ward. The voiding of section 12.2 leaves us without the pre-election residency requirements, but does it change the understanding the voters had when they approved section 12.10?
I would hope that a court would avoid applying a meaning to section 12.10 that would allow a person to represent a Ward without ever having lived in the Ward while finding that a representative who moves from the Ward after an election has vacated that seat. To me, that seems absurd.
I concede that Dave has a substantive argument. Courts will often look no further than the plain meaning of the words in the provision that is being applied. I also believe that there is a substantive argument to the contrary.
Recall that Hillary Clinton ran for Senate to represent the State of New York before living there. There are several such examples. Isn’t there someone from the Dingell district running for Congress in the U.P. this year?
I hope that we put in an explicit residency requirement. Given the emerging importance of money and organization even in local politics, we shouldn’t assume that a resident could beat an out-of-towner. I’d hate to see us governed by people who don’t live here and don’t have the interests of residents at heart.
Hillary Clinton actually moved to New York (barely) before she announced her candidacy. The Clintons moved to Chappaqua in early January 2000, and announced in early February.
Also, how Giannola could describe Dascola, who has been in business in the city for 40 years, as a “carpetbagger” is beyond me.
Re (14) Doubtless true but the campaign had been a big item in the news for months before that. Scott Brown is now thinking of New Hampshire (from Massachusetts). I’m not going to try to do fact-checking on any more examples, but I believe they are numerous.
Nevertheless, Clinton *was* a resident of NY when she filed, as legally required. I’m sure Scott Brown’s case is the same, as was Bobby Kennedy’s. Even House members have to “inhabit” (per the Constitution) the state they’re representing, just not the district. The Vice President, has 49 states to choose from.
You’re right, though–House member/district “mismatches” are extremely common.
Does anyone know whether or not a liability insurance carrier will pick up the City of Ann Arbor’s attorney fee liability to Mr. Dascola associated with the 42 USC 1988 award of Judge Zatkoff.
You cannot blame Tom Wieder for seeking an attorney fee award herein against the City of Ann Arbor when Postema made a request for the court in his Motion to Dismiss to impose costs and attorney fees against Mr. Dascola. Sauce for the goose is sauce for the gander.