Slogging Through the Campaign Rhetoric

I have often lamented the fact that so much in Ann Arbor politics is decided in low-turnout, August primary elections. What that means is that very small but loud interest groups can dominate the conversation and influence politicians who have to pander to them in order to get elected. The upcoming August 5 election may see a higher turnout because there is a competitive race for mayor.City Hall

All of the candidates are either implicitly or explicitly distancing themselves from the current mayor, John Hieftje and that’s not a good thing. John Hieftje was elected because he presented a vision and he won re-election six times because he was consistent in promoting that vision. The criticism of his policies comes from those small interest groups who have been successful in getting their candidates elected to council precisely because of the August primary voter anemia.

It’s time to send those I-hate-everything-new naysayers a message about how backward they really are, but to do so requires slogging through some of the mayoral campaign rhetoric. There have been a number of mayoral forums already and it’s not too hard to distinguish who the candidates are and what they’re all about.

Let me make things easy for you and point out that you can eliminate 3rd Ward Councilmember Steve Kunselman right off the bat.  Kunselman says his main achievement on council has been to restrict the Downtown Development Authority and it’s a good example of his form-over-substance politics. The DDA is a great punching bag for a bully like Kunselman because it can’t fight back. Kunselman can waste countless hours harping on the power of the DDA and it is a very tidy way to divert attention from the fact that as a council representative he has done nothing for his constituents. I am a member of the DDA board, so I have a bias here, but I also have firsthand knowledge of whether Kunselman has actually done anything that matters.

His insistence on pitting the downtown against the “neighborhoods” has resulted in the following changes to the DDA:  The DDA’s total income is now capped – at a figure that it will not reach for many years to come, so it has not put one cent back into the city’s coffers. Moreover, capping the DDA’s money means that eventually money that could be spent in the city of Ann Arbor will go elsewhere. He and his followers on council – Lumm, Eaton, Kaliasapathy, and Anglin – told the DDA to spend more on affordable housing, something the DDA was already doing. They also have now mandated term limits for board members, a change that makes little difference and will have exactly zero impact on anyone who is not using it as a fake campaign claim.

He champions his initiation of the old Y-lot sale, which resulted in a perpetually vacant lot sitting in one of the best locations in the city. He is proud of ending the Percent-for-Art program but what has that done for you? Not one cent of the money that could be spent on artwork that enriches our environment is being spent on anything that will make any difference to the average citizen.

But perhaps his most laughable claim is that he is a champion of the people because of his work on the Taxicab Board. No, that is not an autocorrect error. Lately, the really big problem facing Ann Arbor has been the incursion of non-city-regulated car sharing, with Uber and Lyft. Kunselman  touts his fight against Uber and Lyft as protection of public safety because the other taxi drivers are regulated by the city and therefore certified. As what? Have you ever ridden in an Ann Arbor taxi? The one with the obese, alcoholic, cigar-smoking driver in the car with no seatbelts and torn seats? I think I’ll take my chances with the free market. Again, Kunselman is only talk – form over substance.

That leaves three other candidates for mayor, all of whom are intelligent and capable.

Christopher Taylor is the kind of Renaissance man that many of us like to think is typical of Ann Arbor. He is a lawyer but is also a fine tenor and has several UM degrees. It is a pleasure to hear his articulate answers to questions and occasional literary allusions. He doesn’t beat his chest and repeat meaningless phrases like “public health, safety and welfare.” Instead, he points out that the day-to-day business of the city – fixing roads, removing snow – gets done regardless of who the mayor is. Like Hieftje, Taylor says we need to think about issues that take more planning and thought, such as climate action and transportation.

Taylor talks about his experience and judgment and I think he’s right about how important those are. He is someone who is good at analyzing problems and finding solutions, good at the kind of writing and drafting that makes for sensible legislation, and good at listening to all sides before coming to a conclusion.  Those are the kinds of qualities we want in a leader and in a person who will be the face of the city to many.

Sabra Briere has been involved in Ann Arbor politics for a long time. As the First Ward councilmember, she has built a reputation on championing historic districts and having close constituent relations. She is another person who listens to what people have to say and is not guided by ego but by commitment to public service. She does not shoot from the hip but would rather convene a task force to study a problem before coming to any conclusions. When Ward 2 Councilmembers Lumm and Petersen sought to repeal Ann Arbor’s progressive crosswalk ordinance because their moneyed constituents were miffed at having to slow their SUV’s for pedestrians, Briere was opposed to it and initiated a pedestrian task force that has been meeting and will be very useful. The mayor had to veto the council’s repeal of the crosswalk ordinance, by the way.

Becoming a champion for a particular cause has its drawbacks. Briere is beholden to the often hysterical historic preservation constituency, which has led her to some unfortunate decisions. She was not helpful in the debacle over the potential housing development just south of the Library on Fifth Avenue and that resulted in demolition of the historic homes that were there and some very ugly and mundane buildings instead of an attractive row of apartments. She also voted against the apartment building at 413 E. Huron, a building that fit squarely within the zoning regulations that Briere, along with others, had worked on and approved.

Briere, like others, talks a lot about neighborhoods but I don’t really know what that means. All Ann Arbor politicians have to talk about neighborhoods because people who live here like to pretend it’s a quaint city with lots of little quaint neighborhoods. Maybe that’s true in some places but those neighbors eventually start to fight with each other about dogs or driveways and nobody spends the weekends hoping to pal around with their neighbors anymore. When was the last time you borrowed sugar from a neighbor? I thought so.

The fourth candidate, Sally Petersen, has the least experience, having served almost one term on council. As she will quickly tell you, she has an MBA from Harvard. Her marketing experience means she knows she has to carve out a niche in the campaign and her niche is spearheading economic development. Petersen is definitely smart and capable and her heart is in the right place on this one, but she makes the mistake many business-minded people make when it comes to government. Running a city is not like running a company. All that business experience makes understanding spreadsheets and fancy marketing terms much easier but city government is a different kind of animal.

I haven’t heard any concrete suggestions for how Ann Arbor can encourage economic development. She also talks about better relations with the University of Michigan, which is an easy thing to talk about because it is impossible. Petersen has been cautious as a councilmember, often wanting to consult constituents before making a decision. Sometimes leadership means taking a stand and educating your constituents and she may be working on that with her emphasis on economic development but it’s hard to get a grip on the elements of her plan.

BallotLuckily, there have been numerous opportunities to hear the candidates’ positions. Check out www.annarborchronicle.com for more information than you could possibly digest. Most important, if you think you may be away on August 5, vote absentee. You can either request a ballot or just go over to City Hall and fill out your absentee ballot right now.

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.