Residency Requirement Revealed

Elections are, by their very nature, contentious and this summer’s primary election in the 3rd Ward has become contentious before it even gets off the ground. That is because the City Clerk has told one of the announced Democratic Party candidates that he is not eligible to be on the ballot.

The issue is residency in the ward and whether the candidate, Bob Dascola, has lived in the ward and been registered to vote there for the amount of time required by the City Charter:

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.

Dascola grew up in Ann Arbor and works in the city as a barber, but for many years has lived in Grass Lake and listed his residence on an official city document as Grass Lake as late as last December. He registered to vote in the 3rd Ward in January of this year. I have known Bob Dascola for many years and find him solid and well-intentioned. Why would he declare an invalid candidacy, especially when there is already another announced Democratic Party candidate, Julie Grand?  It’s because he is being guided by Tom Wieder, an attorney and township resident who has an axe to grind against Grand and other city Democratic Party members.

Wieder has filed suit on behalf of Dascola in Federal Court in Detroit. He claims the City Charter eligibility provision is unconstitutional. He is wrong, and is wasting a lot of other people’s time and energy spinning his wheels but here is why he thinks he’s right:Constitution

In 1971 and 1972, candidates from the Human Rights Party challenged the City Charter’s eligibility requirement and won. The Federal Court said the Charter violated the Equal Protection clause of the U.S. Constitution. The HRP had argued that moving from place to place is a fundamental right, that poor people are more likely to move around a lot, and that the residency requirement has a disproportionate impact on people who change residences. Wieder thinks those court orders ought to be enforced.

But residency requirements for all kinds of elected offices are very common. For many state, federal , and local lawmakers, it hasn’t seemed like a good idea to allow someone who may be out of touch with constituents to represent them. So, there have been many court challenges and decisions about residency requirements and after the 1970’s, the courts went in the opposite direction from those 1971 and ’72 Detroit Federal Court rulings.

To understand how courts could look at the same situation and come up with different opinions, you need to understand how a court weighs certain issues and then decides them. It’s called “scrutiny” and not all constitutional issues are scrutinized evenly. Courts limit their highest level of scrutiny to fundamental rights and protected classes of people. For example, a First Amendment case involving political speech will warrant high scrutiny because that’s a fundamental right. What that means is that the courts will be extremely suspicious of any law that has an impact on political speech, so the government will have to show a “compelling interest” to enforce the law. When you see the term “compelling interest,” think “impossible to uphold.”  Similarly, if the law adversely affects certain protected groups of people – according to race or (now) sexual orientation, for example – a compelling interest is the standard.

When a law does not have an impact on a protected group or fundamental right, the courts can use a lower level of scrutiny and thus decide according to a less-rigorous standard. Such a law only has to be justified by a “rational basis” instead of a “compelling interest.” That’s a low bar. Almost any logical reason will convince a court that the legislature or council has acted correctly.

Modern courts have looked at residency requirements under the “rational basis” standard and that’s a U-turn from how those 1970s Ann Arbor cases were decided. A local judge, Tim Connors, applied the modern theory to uphold Ann Arbor’s residency requirement the last time Wieder challenged it. Then, he represented a Republican, Scott Wojack, who also did not meet the Charter’s terms. That was in 2002. The most recent Michigan decision was just last June, when the Court of Appeals upheld Detroit’s residency law and Mike Duggan had to run as a write-in candidate. That court went through a detailed history of residency-law-jurisprudence. Here are some excerpts (I have done some liberal editing):

We find that the charter provision will have a minor effect, if any, on intrastate travel, as it applies only to individuals who wish to run for elected office as described in charter § 2-105(A)(13). It does not prohibit anyone from moving into or out of Detroit, and was not designed to discourage intrastate travel. Rather, according to the charter’s commentary to § 2-101, it was meant to “make it more likely that elected officials will be intimately familiar with the unique issues impacting their communities.” We also consider that “the benefit denied is not itself a fundamental right (such as voting) nor a basic necessity of life (such as welfare benefits for the poor)….”  The charter provision thus does not “penalize” the exercise of the right to travel, it merely places an insignificant impediment to running for office once moving into the city. The charter provision does not sufficiently infringe upon the right to travel such that strict scrutiny must be applied.

Accordingly, the compelling-state-interest test is inappropriate here. See In re Contest of November 8, 2011 General Election, 210 N.J. at 53, 40 A.3d 684 (“Since the Supreme Court’s decision in Bullock, there has been general consensus that strict scrutiny should not apply to requirements that candidates live in a district or municipality for a particular duration.”).

We now turn to the governmental interests asserted in support. [T]he significant governmental interests include:

(1) the interest in exposing candidates to the scrutiny of the electorate, so voters may make informed choices; (2) the interest in protecting the community from outsiders who are interested only in their own selfish ends and not seriously committed to the community; and (3) the interest in having officeholders who are familiar with the problems, interests, and feelings of the community.

These justifications — which were in part cited by the city in establishing the provision — support the charter’s requirement that candidates must be registered voters for one year when filing for office. We further observe that the people of Detroit recently considered the durational residency requirement when adopting the latest version of the charter in the November 2011 election and chose to include it. The interests of the people in adopting the charter must be balanced with the interest of voters to have their choice of candidates. [T]here is no constitutional right to vote for an individual who did not meet the eligibility requirements to have their name placed on the ballot. Indeed, voters have the right to expect that the candidates appearing on ballots have met the requirements set by the citizens in the charter.

The substantial interest of the city in prescribing candidate eligibility requirements also weighs in favor of the charter provision. The United States Supreme Court indicated that the interests of the state of Texas in a durational residency requirement for elected officials were sufficient to warrant the “de minimis” interference with the individual’s interests in candidacy. Clements v. Fashing, 457 U.S. 957, 971-972, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (plurality opinion).

Note that the court mentioned that Detroit’s durational residency requirement was subject to a vote by the people. The same is true for Ann Arbor’s Charter requirement. After Wieder lost the Wojack case in 2002, he convinced the city council to put the residency requirement to a vote, which it did. In the November 2003 election, citizens voted to keep the one-year residency provision. The following is a copy of the Ann Arbor News article from the Ann Arbor District Library database (I didn’t create a link because you need an AADL login to get to it):

Voters retain rule for council

Ann Arbor News (MI) – Wednesday, November 5, 2003

Readability: >12 grade level (Lexile: 1340L)
Author: TOM GANTERT

Ann Arbor voters on Tuesday rejected a ballot proposal that would have eased residency rules to run for City Council, as well as those for city appointees and volunteers on commissions.

Proposal A was defeated by 11,369 votes, or 57 percent, to 8,540 votes, according to unofficial results.

The proposal would have eliminated the requirement that City Council candidates live in the ward they want to represent for at least one year before being elected. Candidates would have had to live in the their wards on the date they are elected or appointed.

“It’s absolutely clear to me that voters in Ann Arbor believe that candidates should be residents of the ward for at least a year before they run for office,” said Council Member Mike Reid, R-2nd Ward.

Attorney Thomas Weider has said the ballot would have cleaned up the city charter language by imposing residency requirements for City Council and mayoral candidates.

Weider said requirements now in the charter have been struck down by federal court opinions. The city, however, says the opinions are unpublished and have been overturned by appellate courts.

Proposal A was overshadowed by the greenbelt millage Proposal B. The original signs made in August for the Friends of Ann Arbor Area Open Space supporting Proposal B just said “Yes.”

The group changed its signs to “Yes on B” after they learned there were two proposals on the ballot.

Tom Gantert can be reached at tgantert@annarbornews.com or (734) 994-6701.

Page: B1
Record Number: 0414757674
Copyright, 2003, The Ann Arbor News. All Rights Reserved.

So, the summary is:  1) A Federal court finds the Charter provision unconstitutional in 1972; 2) subsequent court rulings find no constitutional problem with durational residency requirements for elected officials; 3) Wieder sues to stop Ann Arbor from enforcing its law and loses; 4) Ann Arbor voters decide to keep the residency requirement.

Now, in 2014, Wieder continues to contend that a court order is a court order and the orders from the 1970s, though no longer good law, meant the Charter provision was essentially erased from existence. That is wrong, too, though. Laws are enacted by legislative bodies and don’t go away unless the process is legislative. This issue has come up before.

In 1918, Congress enacted a minimum wage law for Washington, D.C. In 1923, the U.S. Supreme Court held that minimum wage laws were unconstitutional. Later, in 1937, the U.S. Supreme Court reversed itself and said minimum wage laws were constitutional. The question arose, in a 1952 D.C. Court of Appeals case, as to whether a woman who was denied a minimum wage could sue under the original law. The court agreed with an opinion by the U.S. Attorney General, who said, “The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute, and that notwithstanding a decision holding it unconstitutional a statute continues to remain on the statute books; and that if a statute be declared unconstitutional and the decision so declaring it be subsequently overruled the statute will then be held valid from the date it became effective.”

In other words, a law that is found unconstitutional lies dormant and can be “revived” if later court decisions say that type of law is not constitutionally flawed. This is especially true when, in the case of Detroit and Ann Arbor, the law is put to a vote and the citizens themselves revive it.

There doesn’t seem to be a good legal reason for the new lawsuit against the city. The real reason for it might be best explained by some recent research that looks at another motive – spite.

Update: Judge Zatkoff disagreed with my assessment (but most importantly, that of the city attorney) and ordered that Ann Arbor’s residency requirement is non-existent and Bob Dascola’s name must be on the August primary ballot.