Restoring Democracy in Michigan
By David Bergh
Associate Editor, Volume 23
In the wake of the economic destruction wrought by the Great Recession of 2008, many Michigan municipalities fell into dire financial straits.[1] Faced with cities that were sliding into insolvency, the Michigan Legislature passed so-called “emergency manager laws,” in the hope that, by putting the municipality’s finances in the hands of an outside expert, disaster could be averted.[2] Michigan’s existing emergency manager statute was deemed too weak, so the Legislature passed Public Act 4, which was signed by Governor Snyder and went into effect in March 2011.[3] Public Act 4 allowed the State to appoint emergency managers for cities or school districts, and gave them broad power over all financial decisions.[4] This power was then augmented by the passage of Public Act 436, which went into effect in March 2013.[5] Public Act 436, which was given the Orwellian title “Local Financial Stability and Choice Act,” empowered emergency managers to control virtually all aspects of local governance, essentially ending democracy at the local level.[6]
Since the first new Emergency Manager Law took effect in 2012, eight cities and three school districts have been brought under state control.[7] The cities brought under state control, which include Detroit, Pontiac, Flint, and Hamtramck, share the common theme of being majority minority.[8] The impact of the Emergency Manager Law on minority communities was so severe, that in 2013 more than half of Michigan’s African American population lived in cities under the control of unelected bureaucrats.[9]
Racism has a long history in Michigan – from the KKK nearly getting their candidate elected mayor of Detroit, to the now forgotten 1943 Race Riot during which white mobs, enraged by the presence of black people on Belle Isle, roamed the streets of Detroit unhindered by the police, resulting in the deaths of 24 African Americans.[10] This history is not consigned to the past – cross burnings have occurred in the Detroit area as recently as 2005.[11] Given this history of white supremacy in Michigan, the apparent indifference towards the political rights of black citizens is more than troubling.[12] It is also worth noting that narratives of “financial mismanagement” are false. While local officials deserve some blame for the situation in their cities, the State has been aggressively cutting back on revenue shared with municipalities since 2002.[13] Combined with the impact of the Great Recession, this meant that less affluent communities were simultaneously squeezed by falling tax revenue and declining contributions from the State.[14]
The stewardship of the emergency managers has hardly been benign. The Flint water crisis stemmed directly from the decision of an emergency manager to take the city off water provided by Detroit.[15] Instead of saving a few dollars, this decision has cost the people of Flint their access to clean water, and the state unquantifiable sums in bad publicity.[16] Additionally, the Detroit Public School system, which has been under the control of an emergency manager since 2009, has been allowed to deteriorate to the point that school buildings are nearly uninhabitable.[17] The Snyder Administration, for its part, has responded to the issue by arguing in federal court that the children of Detroit have no right to an education that the State is bound to respect.[18]
Legal challenges to the Emergency Manager Law have thus far proved unsuccessful. A lawsuit alleging that the Emergency Manager Law violated the Equal Protection Clause and a substantive due process right to vote for local officials was dismissed by the District Court in Detroit,[19] and the dismissal was upheld by the Sixth Circuit on appeal.[20] The Sixth Circuit held that there was no substantive due process right to choose local officials, and that the law did not violate the Equal Protection Clause as the law rationally related to a legitimate state purpose.[21] The Supreme Court refused to grant certiorari to review the case, essentially affirming the Sixth Circuit’s decision.[22] Given that challenges to the Emergency Manager Law on constitutional grounds have thus far proved unsuccessful, if democracy is going to make a comeback in Michigan in the near future, it will have to be effected through politics.
This means that as the state gears up to select gubernatorial candidates for the 2018 elections, special attention should be paid to the positions that candidates are taking on the Emergency Manager Law. While one would be forgiven for thinking that support for democracy at the local level would be a non-partisan issue, that is unfortunately not the case. The good news is that the four major candidates for the Democratic ticket, Abdul El-Sayed, Bill Cobbs, Shri Thanedar, and Gretchen Whitmer all support repeal of the law.[23] On the other side of the aisle, presumptive Republican nominee, Bill Schuette, has taken no public position on the issue, but given the fact that Schuette has overseen the defense of the law in federal court and argued that voters have no right to choose their local government, it seems unlikely that he opposes the law.[24] As we head towards the 2018 elections, voters should hold candidates responsible for upholding the values that this republic was founded on, such as the idea that citizens should have the right to choose their local government, rather than being subjected to the rule of autocrats appointed from afar.
[1] Sydney L. Hawkins, Do Desperate Times Call for Desperate Measures in the Context of Democracy?, 41 N.Y.U. Rev. L. & Soc. Change 181, 182.
[2] Id.
[3] 2011 Mich. HB 4214, https://www.legislature.mi.gov/documents/2011-2012/publicact/htm/2011-PA-0004.htm.
[4] Hawkins, supra note 1, at 183.
[5] Mich. Comp. Laws § 141.1549
[6] Id.
[7] Hawkins, supra note 1, at 183.
[8] Id.
[9] Id.
[10] B.J. Widick, Detroit: City of Race and Class Violence, (1989), 3, 100-4.
[11] Francesca Chilargi, Detroit: Two Men to Face New Trial in Cross-burning Case, Nᴇᴡꜱ-Hᴇʀᴀʟᴅ, (July 18, 2009), http://www.thenewsherald.com/news/detroit-two-men-to-face-new-trial-in-cross-burning/article_b51b6ae4-db3b-517d-a55b-5487586f3e1d.html.
[12] For more on the history of racism in Michigan see generally Thomas Sugrue, The Origins of the Urban Crisis, (1996); B.J. Widick, Detroit: City of Race and Class Violence, (1989); Todd E. Robinson, A City Within A City: The Black Freedom Struggle in Grand Rapids, Michigan, (2012).
[13] New Report Details How State Policies Have Damaged Michigan Cities, Michigan Municipal League, (2016), http://www.mml.org/newsroom/press_releases/2016-5-25-New-Report-Details-How-State-Policies-Have-Damaged-Michigan-Cities.html.
[14] See id.
[15] Flint Water Crisis Facts, CNN, (2017), http://www.cnn.com/2016/03/04/us/flint-water-crisis-fast-facts/index.html.
[16] See id.
[17] Valerie Strauss, How Bad are Conditions in Detroit Public Schools? This is Appalling, The Washington Post (Jan. 20, 2016), https://www.washingtonpost.com/news/answer-sheet/wp/2016/01/20/how-appalling-are-conditions-in-detroit-public-schools-this-appalling/?utm_term=.c8c46178ef60.
[18] Jennifer Chambers, State Says Literacy Not a Right in Detroit, The Detroit News, (Nov. 20, 2016), http://www.detroitnews.com/story/news/education/2016/11/20/state-says-literacy-right-detroit/94193032/.
[19] Phillips v. Snyder, 2014 WL 6474344, (E.D. Mich., 2014).
[20] Phillips v. Snyder, 836 F.3d 707 (6th Cir., 2016).
[21] Id., at 715, 718.
[22] Bellant v. Snyder, 2017 WL 1300221 (2017) (cert petition denied).
[23] Paul Egan, In Flint Democratic Candidates Call for Repeal of Emergency Manager Law, Detroit Free Press, (Aug. 12 2017), http://www.freep.com/story/news/local/michigan/flint-water-crisis/2017/08/12/flint-democratic-candidates-call-repeal-emergency-manager-law/561828001/.
[24] Rick Pluta, Snyder, Schuette: No Right for Local Voters to Choose Their Leaders, WDET, (Apr. 25, 2016), https://wdet.org/posts/2016/04/25/82966-snyder-schuette-no-right-for-local-voters-to-choose-their-leaders/.
