Local Voting Rights?

I’ve written before about the ways that metropolitan fragmentation affects not only the ability of citizens to cast ballots, but on the effects of those votes. Regarding metro Atlanta, I’ve argued that the formation of affluent and majority-white suburbs in north Fulton County has both removed significant resources from a countywide public where voters of color hold a slight majority and denied those voters the ability to influence the decision to form cities. The dismissal of the voting rights suit Lowery v. Deal in 2013 (which I wrote about in a study of metropolitan fragmentation and contemporary racism in Atlanta) closed the door on that line of argument, but the question of voting rights within the nested jurisdictions of states, counties, and localities, and the effects of those geographies on urban democracy, looks to become even more significant in coming years as states like Michigan (emergency management) and North Carolina (state pre-emption of local civil rights ordinances) allow state voters to override the will of locals–particularly when race, class, and partisan identifications separate an urban constituency from the rest of the state (this article by Campbell Robertson and Richard Fausset about the perilous position of gays and lesbians and social liberals in southern cities is a great example).

In Citylab, Brentin Mock points out some of the mental gymnastics required for a federal judge to accept the State of Michigan’s argument that its emergency manager law does not violate the Voting Rights Act. In essence, that argument is that as long as Flint residents have the ability to cast ballots for their preferred municipal officeholders, the nullification of those officeholders’ power by state voters is immaterial.

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.

What Mock tartly points out is, that if this ruling stands, it would mean that

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.

The initial ruling in the case is under appeal, and seems headed for rehearing. Unfortunately for residents of Michigan cities with significant populations of poor minorities (52 percent of Black Michiganders have lived under emergency management, versus two percent of whites), the Flint water crisis, which has demonstrated the negligence and indifference of state authorities, constitutes evidence that emerged after the filing of the original lawsuit. It should be technically inadmissible in court, though Mock notes that it would be difficult to imagine the events in Flint not influencing a judgment.

What is more unfortunate is that the lower court’s judgment is well in line with Dillon’s Rule, the 1872 doctrine that municipalities are “creatures of the state,” without independent constitutional status and subject to limits on their operations determined by the state governments that created them. I’ve written (an award-winning article!) about the ways that this state-city conflict impacts democracy in the age of austerity, and how today’s city-state conflicts reflect a century-old conflict, expressed in urban reformers’ demands for home rule powers to deal with the stresses of industrialization, immigration, and growth.

It’s Dillon’s Rule that constructs municipal voting rights as a category apart from, for example, voting rights at the state level. Per Mock’s summary of the plaintiff’s appeal, Michigan’s policies “dilute and debase” the votes of local voters under emergency management in comparison to residents of other municipalities in the state, who can vote to govern their own communities and those under emergency management through the election of the state’s Governor. Michigan’s response (per Mock)

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.

Before the Roberts Court’s Shelby County decision, when the United States had a functioning Voting Rights Act, the political work of making ballots cast meaningless was known as vote dilution. When it was practiced by a municipal government in creating its own legislative districts, it could be prosecuted (although, as with most voting rights jurisprudence, the application of strict scrutiny doctrines have been used, as Heather Gerken writes in Harvard Law Review, to limit the use of racial statistics for the purposes of ensuring minority empowerment). It’s a situation unique to the structure of American federalism that similar work can be performed by the imposition of a state government onto a city with impunity.

It’s worth revisiting a quote from the legal scholar Gerald Frug, who wrote in City Making: Building Communities Without Building Walls that

A city is the only collective body in America that cannot do something simply because it decides to do it. Instead, under American law, cities have power only if state governments authorize them to act.

Normalizing this proposition by extension means that the residents of cities can’t expect to exercise normally protected rights if that exercise conflicts with the prerogatives of state governments (and I’d be remiss in not pointing out the great influence of Frug’s scholarship on my work, notably his attention to the ways that the relative powerlessness of cities can reinforce racial and class inequalities in metropolitan America).

An irony of Michigan’s insistence on disciplining the governments (and indeed the voters) of cities like Flint and Detroit is that the seizure of power that emergency management represents is ultimately contrary to the stated goal of ensuring responsible local government. As Frug and David Barron write in City Bound: How States Stifle Urban Innovation,

Cities can retain their ability to enable people to learn the skills of self-government only if they are given sufficient power to make decisions that have tangible consequences. (49)

I’d suspect, of course, that beneath the rhetoric of responsible government, emergency management and state austerity regimes have little intention of allowing such power in the future.

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One comment on “Local Voting Rights?

  1. In a very brief post I wrote, using a graphic that shows that 1/2 of the US population lives in 146 counties (metropolitan areas), one comment pointed out that in Japan, metropolitan areas of a certain population are awarded the same rights and privileges of a Japanese state.

    That will never happen in the US because of how “federalism” works. But federalism doesn’t work because (1) we are Americans first (2) residents of states second, and (3) the state-sub-jurisdiction relationship doesn’t work for metropolitan areas, for the reasons you discuss and others. The state rights argument is mostly used to subjugate, not ennoble.

    Partly this is why I support city-county consolidations (e.g., for Pittsburgh or Baltimore). But at the same time, election results in Toronto and London demonstrate that suburban more conservative voters can outweigh and outvote people in the core, in the same way that you opine about Atlanta vs. Fulton County.

    Similarly, while I thought it was brilliant for the then mayor of Memphis to dissolve the city school district to force a merger with the separate county district, to rebalance resources, over time, like in Fulton County, various cities have opted out of the countywide school system and created their own.

    https://en.wikipedia.org/wiki/Shelby_County_Schools_(Tennessee)

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