Tom Wieder. (Photo provided by Wieder. The margins of The Chronicle inline layout required cropping out the person next to whom Wieder is standing.)

The Chronicle has previously covered the various lawsuit filings in a fair amount of detail. The central issue in the case is whether Ann Arbor city charter requirements that were struck down as unconstitutional and declared null and void in 1972 can still be applied today.

While we’re waiting for a decision to be handed down, we thought it would be useful to get a possibly more accessible, spoken-word treatment of the lawsuit’s subject matter. To that end, we talked with Dascola’s attorney, Tom Wieder.

Wieder litigated a case similar to Dascola’s back in 2001.

Some highlights from the conversation include the fact that Wieder thinks the city council potentially has a role to play in the city’s handling of the case – based on the fact that the city attorney is accountable to the city council. The city’s legal stance should be determined by the council, Wieder says, not by the city attorney.

And Wieder talks about the fact that a council controlled by Democrats should allow the Democratic Party principle of free and open access to the ballot to guide their thinking on this matter – given that there are at least two plausible points of view on the enforceability of the city charter’s eligibility requirements.

The council’s particular responsibility as a group of Democrats leads to some discussion of the idea that Ann Arbor Democrats, who dominate city politics today, might be a different stripe from the Democrats of the early 1970s and 1980s, who fought for fewer eligibility requirements on candidates for city office.

It’s fair to point out that that Wieder was involved in two key changes to Ann Arbor’s electoral process that could reasonably be analyzed as leading to Ann Arbor’s current political life being dominated by Democrats: (1) redrawing ward boundaries in 1991; and (2) shifting elections from April to November.

Wieder also ventures that the Democratic dominance of local city politics might have lessened an historically strong Democratic interest in the value of process, and not just doing the right things, but doing things the right way: “… I think the fact that the Democrats have now been in charge pretty much for a while, there may be less self-examination when it comes to process and basic political principles than when somebody else was controlling those levers.”

Asked what he thinks the eligibility requirements for city council and mayor should be, Wieder suggests these requirements: At the time of filing petitions for office, a mayoral candidate should be a registered voter in the city; and at the time of filing petitions for office, candidates for city council should be registered voters in the wards they seek to represent.

One unsuccessful attempt to clean up the city charter – so that there are clear and constitutional eligibility requirements – was made in 2003. No matter how Dascola’s lawsuit turns out, Wieder thinks the city council needs to make a better effort to clean up the city charter – by establishing clear and constitutional eligibility requirements for mayor and city council. The council could propose different charter language on eligibility requirements for elective office and place a charter amendment before voters.

During the conversation, Wieder describes how the Wojack case led the city to print up two different sets of ballots, one with Wojack’s name and another set without it. If the Dascola case is resolved by early June, that contingency would not be necessary this time around.

The conversation with Wieder is presented in Q & A format below, with some re-ordering and editing. 

Links to Subsections

The conversation was edited so that the material falls sequentially into the following categories, which link internally to the spot in the conversation where that section begins:

• Background of the Case
• Should the City Council Be Involved?
• An Issue for Ann Arbor Democrats?
• Ann Arbor Democrats: Different Now?
• After 1972: Attempts to Fix the Charter
• What Should Happen, Win or Lose?

Background of the Case

Chronicle: So, I don’t think we need to wallow around in the legal arguments too much, but can you by way of entry into this topic just summarize what the Bob Dascola case is about? How would you describe the situation to a very bright four-year-old?

Tom Wieder: A very bright four-year-old? Well, the case stems from the 1970s, actually, when the requirements in the city charter to be eligible for elective office – either mayor or council – were all struck down as unconstitutional and void, by two different federal court decisions in 1972. And Bob Dascola filed to run for office based on the assumption that those requirements were not enforceable and have not been for decades. The city is taking the position that they can enforce those provisions because of cases that have been decided since the original decisions were handed down.

Chronicle: So what is the legal fight about in this case?

Tom Wieder: The argument in the current lawsuit is about whether those decisions from 1972 still hold and determine what the city is allowed to do today. We argue that those decisions are just as enforceable and valid as the day they were handed down, and that is because of a legal principle that says: When you find something unconstitutional, it’s as if it were never written, it sort of goes away, it’s not really there anymore. And so it can’t be enforced. The city argues that these voided provisions of the charter can be enforced, because of decisions in other cases that happened since, and allowed the charter provisions to be revived and used today.

Chronicle: Right. And one of those other cases is the one that you also litigated back in 2001 – the Scott Wojack case.

Tom Wieder: Right. We had a similar situation there, in that Scott Wojack wanted to run for council and he was told by the city clerk that he couldn’t run, because he had not lived in the ward for a year that he wanted to run in. He’d lived in the city for that long, and he’d been registered to vote, but he changed his residence and was no longer in the same ward. That provision was one of the provisions that was struck down by one of the two federal court decisions in 1972.

And I represented Wojack in the case to force the clerk to put him on the ballot – because that barrier to him being on the ballot was not valid any more legally. We filed the case and there were some things going back and forth between us and the city. And then the city kind of did an about-face and said: OK, we will put him on the ballot and we’ll have the judge decide at some later time whether we can enforce this old provision in the charter. And it was a little strange because the only real practical thing involved in the case was whether he got on the ballot.

I say it’s strange because we already had a federal district court say it was not constitutional. And I’m not sure that there’s any basis for a Washtenaw County circuit judge to have any effect on, or overrule, or anything of the kind, a standing final judgment of a federal district court. He is certainly entitled to offer his opinion about something, but I’m not sure that it carried any legal weight, and in fact, I don’t think it does. [The opinion of judge Tim Connors in the Wojack case was that the city charter's durational residency requirement for councilmembers was constitutional.]

Chronicle: Yet, that is the court in which the case was filed. Your point is that you don’t believe the state court had the authority to overrule the federal court, so why would you file that case in the state court in the first place?

Tom Wieder: Well, the only relief we were seeking was to compel the city to put Scott Wojack on the ballot. It certainly could have been filed in federal court. In retrospect, we probably would have. But we were essentially seeking to compel a state officer to perform his duty – all city employees and officers draw all their power from the state, the Home Rule Cities Act – and therefore it’s perfectly appropriate, if you’re asking them to perform one of their duties, to ask a state court to order them to do so.

Chronicle: I assume it’s going to be decided one way or another in a couple weeks or so. …

Tom Wieder: Well, first of all to assume anything that a federal court might do is dangerous. Yes, it will come out in the next several weeks, I think. But the judge has been told by the city that the sort of drop-dead deadline in terms of knowing who’s going on the ballot doesn’t come until early June, when the ballots have to get printed.

And of course, even that is not etched in stone – because what happened in the Wojack case was: They printed two sets of ballots, because it was so close to the election. … They did double printing. One set with Wojack on and one set not. I’m not saying that the court would push it that far – I don’t think so. I just want to be careful that we not assume too much about that.

Should the City Council Be Involved?

Chronicle: So let me go back to something you said earlier. You said that during the Wojack case, the city at some point seemed to do, from your perspective, an about-face. In the most recent filing by the city in the Dascola case, there is a footnote … with words to the effect that the city attorney at the time recognized that Wojack had no likelihood of being elected, and so decided to allow him to be on the ballot, with the legal issue to be decided after the fact. Is that consistent with your recollection at the time as to why the city decided to allow Wojack on the ballot?

Tom Wieder: Let me start by answering that that footnote is one of the oddest things I have ever seen in a legal brief. And the language you’re talking about said “The then city attorney” – that’s Abigail Elias, who was later removed as city attorney and now is chief assistant city attorney – “recognized that Mr. Wojack had no likelihood of election, and that the validity of his candidacy could be decided if he were to win.” Basically the city is stating in its legal brief that “We ignored what we thought was a valid city charter provision for eligibility to run for office and let somebody we believed ineligible to get on the ballot anyway, because we were sure he was going to lose.” Which is just bizarre!

You asked about my understanding at the time. My understanding is mostly based on just rumor and grapevine, because the city obviously didn’t share with us their reasoning on doing things. What I heard at the time was that councilmembers weren’t too comfortable with the idea of keeping somebody off the ballot based on the legal position that the city had at the time – that these requirements that had been declared unconstitutional had somehow come back to life and could be enforced. And that this discomfort with denying somebody a place on the ballot under that reasoning led them to have the attorney go with this alternative, which was to have Wojack be on the ballot and have the judge decide afterwards whether the provisions could be enforced or not.

Chronicle: Well, if that’s what happened, then I guess it must have happened through back channel conditions between individual councilmembers and the city attorney.

Tom Wieder: Yes, of course. … It’s a question of how the council, and I’ll speak mostly of my fellow Democrats, deals with some issues like this. You know, there is the principle that the Democrats in 1971 filed suit over – it was, I think, an important principle. And it somewhat saddens me and disappoints me that the council does not recognize what the underlying issue is about all of this. And if they do recognize it, they don’t seem to be willing to act upon it – because whatever you might say about this case, this is not black-and-white that the only reasonable position the city could take is to say: Oh, yes, these voided provisions are alive again. They could just as well see it as we do and say: No, they are gone; they were declared unconstitutional and void and they essentially disappeared. There would be nothing inappropriate in the city saying: We give – we’re not going to keep fighting that.

Chronicle: So does it make any difference that it is now the city that is enforcing this and it’s up to Bob Dascola to file suit to get on the ballot? One could imagine a different scenario – a situation more like the one in the Barrow case [concerning the 2013 mayor's race in Detroit] – where some other Ward 3 candidate says: Hey, Bob Dascola shouldn’t be allowed on the ballot, and I’m going to file suit to keep him off the ballot.

Tom Wieder: Are you asking me if it makes a difference to me whether it is the city trying to do it or a third party trying to? Yes! I mean, third parties will do something in their own self-interest, which is probably to help themselves in an election or hurt somebody they don’t like. The responsibility of council – and therefore the city – is a bit different.

It is a council decision ultimately as to the legal stance that the city attorney takes, because the city attorney works for the council. And if there are two or more legally legitimate and plausible arguments and stances to take in a case, you sort of expect that the councilmembers, in deciding what course to take, might apply their political values and principles to making that decision.

And to me, what I would hope to see is Democrats who control the Ann Arbor council say: We’re not so sure that the argument – that these provisions are enforceable – is the right one, and the other argument sounds plausible too, and it fits with our approach to open government and letting more people participate. So we’re going to instruct our city attorney and our city clerk to go that way. Instead, it seems that this is being led by the city attorney’s preferences here, and not the political philosophy of the council.

Chronicle: Isn’t there some value, though, in getting a decision from someone who’s wearing a black robe? So that in the future, if indeed these two provisions are null and void, that nobody will get the idea, based on some different political philosophy, that we want to keep people off the ballot using those provisions? … I’m saying let’s consider what would have happened if it had become public that the city clerk notified Bob Dascola that he didn’t seem to meet the eligibility requirements, then you [Tom Wieder] basically come in and use the art of … “friendly persuasion” and the city said, “Oh, OK, we forgot,” or “You make a reasonable case,” and they let him on the ballot, and it doesn’t get into court. … The door would still be open to [someone else] to try to enforce the two charter provisions.

Tom Wieder: If the result of this case were a decision that those things are still null and void, that really ought to answer it permanently.

Chronicle: That’s why I’m saying: There’s some value in the city taking the position that they’re going to defend the enforcement of those two provisions.

Tom Wieder: … I don’t agree at all. I don’t agree. You say maybe we could get a court to repeat what it ordered 40 years ago, now we will listen to it the second time?! The idea that that has some value doesn’t really ring any bells for me. A decision was made.

An Issue for Ann Arbor Democrats?

Chronicle: Thinking about the current situation, do you think it would be helpful to the cause to have councilmembers convey their opinion one way or another to the city attorney with respect to just going ahead and allowing Dascola on the ballot? …

So for Bob Dascola’s specific cause of getting on the ballot, of course, it would be helpful. … [But] I take it that you do have some either personal or professional special interest in this topic area. I think the last time that your name was included in Ann Arbor Chronicle coverage was back when ward redistricting was being voted on in 2011, and the city attorney was planning to use different boundaries for the general election than were used in the primary. You and several others in the legal community weighed in, and what happened was the city held off its decision to implement the ward boundary changes. I’m sure you recall that episode. In my mind, ballot access issues and ward boundary issues, they seem to be in the same general category.

So maybe instead of asking “Does it help the cause?” maybe a better question is: Do you have a special interest in this topic area? Is this a “cause” for you?

Tom Wieder: Well, it’s certainly no secret that I’ve been active in local Democratic politics for nearly 40 years. So I have an interest as a Democrat. I’ve also been active in the American Civil Liberties Union for about that long or at least a member that long. And I take very seriously constitutional rights in general. But because of my interest in politics, I may take an even greater interest in those issues of civil liberties when they affect elections and the ability to run for office. … The original challenge to the charter was filed by Democrats in 1971 [the Feld case], challenging the requirement that a candidate for council had to have lived in the ward for a year before the election to be eligible to run.

And it was the feeling of Democrats back then that this was an unnecessary restriction on who could run for office – that this is a very transient city and people move a lot, and you shouldn’t be barred from running for city council because you happen to move a few blocks over and ended up in a different ward and couldn’t run for a year. If voters were concerned that you had not lived in the ward for a year, they certainly did not have to vote for you. But there was no reason to prohibit people from running on that basis.

They supported a much more open and accessible kind of election process that you might construct, and that’s what prompted filing that suit. I happen to agree to that approach to elections and people getting involved in them – we should put up as few barriers as possible. So when that case came down, I was pleased at that – I wasn’t directly involved in the case myself, but it certainly comports with my political viewpoint and my civil liberties viewpoint.

Chronicle: So you seem to be identifying the notion of having as few barriers to ballot access as possible as a Democratic value – Democratic with a capital D.

Tom Wieder: Certainly in this town I would say so. To be honest, we had a lot of disputes about that in Ann Arbor, but to the extent that it has arisen, I think you would find that … when we used to have a more visible group of Republicans, the Ann Arbor Democrats would have been more favorable to ballot access than Republicans.

Ann Arbor Democrats: Different Now?

Chronicle: Do you think that Ann Arbor Democrats of 40 years ago are somewhat of a different breed with respect to this type of issue than Ann Arbor Democrats of today? At the very first mayoral forum, the four candidates were assembled … and one of the candidates who has got, I think, unquestionable Democratic Party credentials – Stephen Kunselman – described the basic concept of what he thought a local government is as essentially a book of rules, and we have to follow the rules. Which is all well and good, but it’s not what I would necessarily think of as stereotypically Democratic Party principles.

Tom Wieder: I don’t know what Steve might have meant by that, but I would say that the tenor of the comment doesn’t strike me as what I would think of as the first principle that would come off the tongue of most of the liberal Democrats in Ann Arbor as the purpose of government. But maybe I’m not understanding what …

Chronicle: … well, I’m taking that somewhat out of context, and to be clear he was not trying to articulate in any explicit way what Democratic Party values are. But it is something that he said – in the context of explaining who he is and what he is about. So if indeed there has been a change in what it means to be an Ann Arbor Democrat over the last 40 years, would you be willing to accept some of the credit or perhaps blame for that? As I understand it, you were instrumental in redefining the ward boundaries back in [1991] … and with the shift of elections from April to November, and that pretty much gave us what we have today – which is, as you mentioned before, an invisible Republican Party.

Tom Wieder: That’s a complicated question and requires a somewhat complicated answer. Yes, I do think that Democrats of today in Ann Arbor are somewhat different from the Democrats of 30 or 40 years ago. I think that Democrats of 30 or 40 years ago in Ann Arbor were somewhat more process-oriented and civil-liberties-oriented. They didn’t just have substantive positions on delivery of city services and the like, but a lot of them came out of civil rights activity and anti-war activity and were very concerned about the government doing things in the right way – almost as much as what the city actually did. And when I say in the right way – in terms of individual rights and process. I think it has faded a bit with more recent Democrats, in general.

I think that part of that comes from the fact that Democrats had been in the minority for so long – you always tend to get a little more sensitive about process when someone else controls it! And for many decades, Republicans in Ann Arbor controlled the process. And that may have made Democrats more sensitive about it than they otherwise would be, but I think their instincts were also more in that direction, because of their political philosophy and experiences. Again … I think the fact that the Democrats have now been in charge pretty much for a while, there may be less self-examination when it comes to process and basic political principles than when somebody else was controlling those levers.

Chronicle: Do you think it could also be the simple fact that there are folks who are willing to accept the Democratic Party label on the ballot just as a practical step in order to gain election, and who are not in any way, shape or form actually Democrats? So take Stephen Rapundalo, who ran for mayor as a Republican. I don’t think that he had some deep political epiphany in the intervening years, but then he represented Ward 2 as a Democrat. From what I’ve read and from what I’ve heard, I don’t think that an early 1970s Ann Arbor Democrat would be inclined to prevent a guy like Tom Wieder from addressing a committee meeting for three minutes, and would have instead preferred to argue for three minutes about whether Wieder should be able to address a committee meeting – instead of actually letting him speak. I assume you remember the episode to which I’m referring?

Tom Wieder: Yeah, sure. I certainly think that I have seen things dealt with by the council controlled by Democrats in recent years that would not have been done that way by a council controlled by the Democrats I knew on council a number of years back. Now, I’m not sure that that’s a result of there being – as you would suggest – a number of Republicans in Democrats’ clothing. I think that the Democrats on council who I have no doubt are through-and-through Democrats, and not just wearing the label, are also different from the Democrats of old. So I don’t think it’s a question of there are too many not-real Democrats on there. And that’s why you see the change – because I think the real Democrats today are somewhat a different stripe than the Democrats of the ’70s and ’80s.

After 1972: Attempts to Fix the Charter

Tom Wieder: [After the 1972 federal court cases], the city sort of made up a rule, because there wasn’t any. They just sort of started a practice: People came in and were registered to vote in the city or the ward, and the city was taking their petitions. It’s just something that was made up – there’s nothing written about that anywhere. And they did it for 30 years. And that’s why we still have this question. Because what needed to be done was for new constitutional provisions to be put on the ballot and passed, and then it’s over because the city would have by its processes changed the charter. And then you don’t have to argue about whether the old charter provisions come back to life or anything, because you’ve replaced them with things that met the terms of the court decisions at the time. But nobody took the time or attention to do anything about that.

Chronicle: But you’d have to say that somebody tried to do something about that, in 2003 [when a ballot proposal was put before voters to put in new language for eligibility requirements] … Do you think that effort was in some way defective, and if so, what was the defect of that effort?

Tom Wieder: Well, the ballot language was horribly confusing. And in fact, it was wrong! … The way they described the change in charter language assumed existing charter provisions that never existed. … They threw in other things about volunteer and appointive officers, and I think a lot of people didn’t know what they were voting on. And it’s kind of an accepted principle of electoral politics that if people don’t understand a ballot question, they vote no. … Neither the city nor any independent group did anything to promote it, which is not really surprising on this kind of a change.

But there wasn’t anything that reached the average voter, except one Ann Arbor News article and an editorial – and they got almost everything wrong in that! They kind of missed the point that the two charter provisions had been struck down and made it sound like this was just something that came out of the blue to reduce the requirements to get on the ballot.

There was no hint of the fact that those charter requirements had been thrown out, and the idea was to establish some requirements. They editorialized against it, but the basic facts about what was being done were wrong.

If you thought that the Connors opinion [in the Wojack case] had no force or effect, when that ballot proposal was put on, the status was the same as it had been for 30 years, which was that we did not have any requirements. If you thought that Connors’ opinion did have force and effect, the only requirement would be that a candidate for council had to live in the ward for a year, and that’s it – there were no requirements for mayor, there were no requirements that require the candidate be a citizen or of voting age.

All the rest of that stuff went away with the other [HRP] case. The most you would’ve had is a requirement that council candidates live in the ward. That just didn’t come across [in the editorial] – what was portrayed is that we were going to get rid of these one-year requirements … and were going to make it so that you only had to be an elector at the time of election. But that just wasn’t true – that was not what was being done.

… [The ballot proposal] had this odd thing where it said it was going to make the requirement be that candidates for elective office had to be registered to vote by the date of the election. I don’t know how you could enforce that. Because someone could come in and file petitions and not be a registered elector, they get on the ballot, and then indicate, Well, yeah, I am going to register by Election Day.

Chronicle: I assure you I will absolutely register to vote by Election Day – yes, I promise!

Tom Wieder: So I suppose the result of such a thing if someone did not register by Election Day is that they would be declared ineligible and even if they won election, they could not take office. Normally we decide the eligibility for office at the time of filing. So in many ways, it was a screwed-up ballot proposal. It was not explained well and it was not written well.

Chronicle: … but you’d have to say that somebody tried to do something about this in 2003, even if it may not have been a super-great effort.

Tom Wieder: Well, that’s 30 years later, because we had one of those challenges to deal with. That’s a long time to wait and just go with some sort of jerryrigged method to determine who is eligible to run for office in the city. Well, okay, they tried it once – they could’ve tried it again.

I have to tell you that I did some lobbying, with some council people, to press the city attorney to give an opinion as to what the eligibility requirements were post-Wojack. What could the city do, what could the city not do? And those efforts were to no avail. So that the council could know what ticking time bomb was there about what requirements they still have, if any – it never happened. They made the one effort in 2003, it was unsuccessful, and then everybody ignored it again, and here we are back litigating what we litigated 40 years ago. And it should have been cleaned up by new charter provisions, so that nobody can argue whether they were valid or not. That’s why we are where we are today with another lawsuit about somebody getting on the ballot – because we never cleaned up the charter.

What Should Happen, Win or Lose?

Chronicle: If Bob Dascola wins the case, is there anything left to be done? Or do we say that’s now settled again, until somebody forgets?

Tom Wieder: The answer to that is a little complicated, because winning by Bob Dascola could take a couple of different forms. There are basically two different voided charter provisions that get involved in this. One is that the person running for council has to have been a resident of the ward for a year. The other is that a candidate for any elective office has to have been a registered voter of the city for a year before the election.

The city hasn’t quite conceded, but has come close to conceding, that Bob has lived in the ward for a year. There’s a few factual questions, but even in their pleadings they are indicating … there is a problem there. He could win by the court finding that both of those charter provisions are still null and void, in which case we don’t have to worry about how long he has lived in the ward or whether he is registered in the city or not. And that will give us exactly where we are now: The city doesn’t have any requirements.

Chronicle: Well, it would leave us exactly where we were right after the Feld and the HRP decisions – both were struck down in the 1970s, declared void … I can’t imagine that there would be anything left to do at that point, but that would be my question to you: What else, if anything, might the city council consider undertaking, even if that is the outcome?

Tom Wieder: If that is the outcome – that those two provisions remain voided – then the city needs to make another effort to put proper qualifications back in the charter.

Chronicle: So you’re saying a better effort than was made back in 2003?

Tom Wieder: Yes.

Chronicle: That covers at least some of the ground associated with what might need to happen if Bob Dascola gets on the ballot.

Tom Wieder: But not all of it. As I say, this gets a little complicated. One of the things that could happen is that the judge could decide that the one-year ward residency requirement has once again become enforceable – either because of the Wojack case, or other cases decided on the so-called durational residency requirement. But the court could decide that the other requirement about being a registered voter for a year has not been similarly reinstated, in which case Bob Dascola, if he can show that he has indeed been in the ward for a year, would get on the ballot.

But you would still have this hole in the requirements for mayor and other kinds of requirements for city council that would not have been fixed. You would just have the one-year ward residency requirement for councilmembers. So there would still be a gap in the charter, in terms of elective office that needs to be fixed, and that has needed to be fixed for 40 years.

Chronicle: On the other hand, if the judge in Dascola’s case upholds both of the requirements, is there anything to be done under that scenario? What do you think should happen if Bob Dascola does not get on the ballot?

Tom Wieder: If the judge finds that those charter requirements can now be used again, then nothing has to be done. But if you asked me what do I think should be done, I still believe that those requirements are too strict – as the Democrats did who filed the lawsuit in 1971. And I guess I would like to see a Democratic council take another shot at making the requirements less to get on the ballot.

Chronicle: What do you think the eligibility requirements should be?

Tom Wieder: I think the requirement should be what they were de facto for 30 years, when they didn’t have anything in the charter to go by: If someone came in by the filing deadline and filed a sufficient number of signatures, and was a registered voter in the city, then you got on the ballot. … The requirement I would have is that if you’re running for mayor, at the date of filing the nominating petitions … you have to be a registered elector of the city. And if you’re running for council, you have to be a registered elector of the ward.

Chronicle: So no durational residency requirement beyond that?

Tom Wieder: No, I think we can trust the voters. If they care that the person just moved into the city six months ago, then don’t vote for them. If they moved a half-mile across town and are now in a different ward and they think you have to actually live in the ward to know about the issues that might affect that ward, then you don’t have to vote for them. But why should we keep people off of the ballot?

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