REUTERS/Kevin LaMarque

In an ongoing suit against Michigan’s emergency manager law, the state argued residents have no legal right to elect their mayors, and a federal court agreed.

Civil rights attorneys knew that Public Act 436, Michigan’s current emergency manager law, was likely illegal and unconstitutional way back when it was first enacted, in December 2012. This was well before the Flint water crisis, which not only exposed many of the emergency management system’s failings, but also the real life-or-death consequences of them. In March 2014, lawyers at the Center for Constitutional Rights and The Sugar Law Center for Economic and Social Justice filed a lawsuit against it, outlining the many constitutional rights the law violates—not least of which is the right to vote.

Public Act 436 transfers all governing powers from mayors and city councils to an appointed emergency manager for cities that Michigan has determined to be in financial crisis. This effectively erases residents’ voting rights in those cities, the lawsuit argued, since the politicians who residents elected to run the city no longer have any authority. A U.S. District Court disagreed, however, in its November 2014 ruling. Judge George Caram Steeh wrote that there was nothing wrong with Michigan replacing an elected mayor in a city like Flint with an un-elected, state-appointed custodian because city residents have no real voting rights in this manner. From Steeh’s order:

Public Act 436 seeks to put local governments on better financial footing. It does this by appointing an [emergency manager] in jurisdictions where the Governor and State Treasurer have determined that the local government was experiencing a financial emergency. The Act does not take away a fundamental right to vote, because such a right has never been recognized by the courts.

That’s right. A federal judge quietly ruled in 2014 that Michigan can replace any mayor voted into office with someone it has decided is more fit for the job. The attorneys challenging the emergency manager law also argued that it violates free speech, equal protection, and due process rights, as well as the Voting Rights Act. The only thing Steeh conceded was that it might have some unequal protection problems, but he saw no voting rights concerns because people are still able to vote.

“[Steeh] said that the right to vote simply encompasses the right to physically cast a ballot,” says the Center for Constitutional Rights’ Darius Charney, one of the lead attorneys on the case, “even if that ballot is meaningless—meaning the person you elect will not have any actual power to govern those who elected them.”

Charney’s legal team asked Steeh to reconsider the other voting rights, free speech and due process claims, but he refused. Though not totally defeated, the case fell dormant in 2015 as Chaney’s team put together a suitable appeal.

As they built that new case, 2015 turned out to become a year when much of the bad fruit from the emergency manager law began to fall. This was especially clear in the city of Flint. The Flint water crisis put the state’s emergency managers on blast, with lawmakers fingering them as the main culprits behind the contaminated water scandal. Michigan Governor Rick Snyder’s Flint Water Advisory Task Force strongly urged the state in its final report last month to significantly scale back the emergency manager law. Snyder has not prioritized this as much as he has the other recommendations from his task force, such as more lead screening for children.

Meanwhile, Charney’s legal team officially rebooted the case last November when it asked the U.S. Court of Appeals to have Steeh reconsider all of the other claims against the law. Charney’s team filed the first brief on that matter on March 10 this year, which states plainly:  

The District Court’s analysis arrives at a conclusion that, because cities are mere instruments of the state, the state is free to suspend or deny voting rights in local elections. This conclusion is incorrect.

Much of this argument is based on the fact that what Michigan did is unprecedented. Yes, there are plenty of cases of states sending in financial managers for municipal fiscal emergencies that courts have upheld. But not on Michigan’s scale, which hands all executive and legislative authority to the state-appointed emergency manager. The brief breaks down how this destroys voting rights for the people living in cities subjected to this rule:

  • By removing all governing powers from elected officials, the statute substantively revokes their right to vote for local officials in cities where [emergency managers] are appointed, while preserving that right in all other communities;
  • At best, the statute renders elected officials to an advisory position in EM communities. Citizens in [emergency manager] communities thus lose voting power on state legislative matters in comparison to other Michigan citizens and their vote is thereby debased and/or diluted in relation to all other communities; and
  • Through their vote for the Governor, all Michigan citizens receive an equal indirect vote in the governing official of cities with an [emergency manager]. In cities without an [emergency manager], only residents of those cities elect their governing officials. As a result, the voting power of residents in cities that do not have an [emergency manager] is greater than [emergency-managed] residents whose right to vote is thereby further debased and/or diluted.

The state of Michigan responded in its own brief filed on April 12, in which it doubles down on the notion that city residents have no established voting rights when it comes to local elections. It also reinforces the idea that Charney referenced: that the right to vote only means you have the right to physically cast a ballot, nothing more and nothing less. Reads the brief:

Here, Plaintiffs are still free to vote in federal and state elections. And they offer no adequate support for the proposition that the right to vote in local elections, once extended, becomes a fundamental right as opposed to simply a right to participate on equal footing. ...Nor do Plaintiffs’ cited cases offer support for a recognized right to participate in local political processes, even where the local unit is a legislative body.

Plaintiffs’ alleged injury really rests on the fact that the local government elected officials may not (at least temporarily) perform the duties of their elected office while under emergency management. This alleged injury is not a recognized violation of the right to vote.

Charney’s team is basically pushed into a position where the burden is on them to prove that city residents have the constitutional right to elect the officials who actually govern the city.

If Michigan’s argument holds up—that city residents have no such right—then that means the state could appoint the cast of Saturday Night Live in charge of a city. And the state would be legally covered in doing so as long as it still allows people to vote for the officials who they actually want in office—even if those elected officials would have no governing power whatsoever and would have to defer to the SNL cast.

How this ultimately plays out could rest on the fact that the law does appear to place African-American Michigan residents under a severe disadvantage compared to white residents. This is something that even Judge Steeh agrees with. There’s no getting around the fact that, since Public Act 436 was passed, 52 percent of the state’s black population has been subjected to emergency manager rule. The percentage of white Michigan residents subjected to it? Two.

Michigan argues in its new brief that, since there are currently no cities under emergency management, this is water under the bridge. However, the system still exists such that the state can decide any day now to add another fiscally struggling city to emergency management control. Michigan has been criminally cavalier about how it has made those determinations when it comes to cities with large black populations. While there have been just as many, if not more, predominantly white cities in financial distress, they have not been taken over by the state emergency management system like majority black cities have. As explained in the legal brief from Charney’s team:

[T]he Michigan Department of Treasury maintains a scoring system to determine the financial health of the state’s cities and townships. The latest information available from the state is for fiscal year 2009. Fiscal indicator scores between 5 and 7 place a municipality on a fiscal watch list, while scores between 8 and 10 result in the community receiving consideration for review. However, six out of seven communities (85%) with a majority population of racial and ethnic minorities received [emergency managers] when they had scores of 7. At the same time, none of the twelve communities (0%) with a majority white population received an EM despite having scores of 7 or higher.  

This is the equal protection claim that Steeh was willing to uphold back in 2014. There’s no denying that kind of glaring discriminatory outcome, which is why Steeh wrote in that ruling that, “This confers enormous discretion to state decision makers and creates a significant potential for discriminatory decisions.”

Unfortunately, Charney’s team had to drop this finding from its case in order to keep it alive on appeal. As Charney explained to CityLab, lawyers can’t take a case to the U.S. Court of Appeals until it’s fully resolved with the lower courts. Since Steeh allowed that one unequal protection claim to stand, Charney’s team had the option of moving forward on that one issue, at the expense of all the rest. Or, it could drop that issue so the case could be closed out in the lower court and all of the original claims restored for the appeal. Charney’s team chose the latter, effectively sacrificing a rook to keep the case in the game. However, if the U.S. Court of Appeals rules in favor of a hearing later this summer, then all of the claims—unequal protection, voting rights, free speech, due process—would have to be reconsidered by Steeh.

The goal, says Charney, is to have Public Act 436 completely overhauled. While the Flint water crisis seems like compelling evidence that the emergency manager law is unsound, it technically can’t come up in the upcoming hearings, because it was filed years before the disaster happened. Charney says he believes the Appeals Court will allows some discussion of Flint, but that for the most part he’ll have to stick to the issues brought up in the original 2013 court filings against the law. However, he notes that the Flint crisis will still be “hanging over” the current proceedings.

“Flint is a powerful, concrete reason for why the right to elect local officials matters,” says Charney. “When people are unaccountable to the people they are ruling over, they can make terrible decisions that can hurt people’s lives and their welfare, which undermines democracy. The appeals court will have to come down and affirmatively decide: What does the right to vote mean?”

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