In Phillips v. Snyder[i] the federal district court in Michigan repeatedly stated that,
“The Supreme Court has had multiple opportunities to find a fundamental right to vote, and has passed each time. There are plenty of compelling arguments that the right to vote should be a fundamental right, but it is not this court’s place to extend the law. . . . The Act [Michigan PA 436 that was being challenged] does not take away a fundamental right to vote, because such a right has never been recognized by the courts.”[ii]
WOW! And we proudly declare that America is the model of democracy! Wow!
This case involved a Michigan law that stripped elected officials of their legitimate powers and invested complete control of Detroit in the hands of a Governor appointed “Emergency Manager.” Detroit being in bankruptcy, the State acted under a government general interest in the welfare of the people.
In other words, the Act was subject to a loose “rational basis” for validity rather that the strict basis that requires a necessary and compelling reason for the law. Strict scrutiny is for violations of fundamental rights and the Court held that the right to vote was not a fundamental right. The strict scrutiny criteria did not allow a law to “burden a fundamental right.”
The Court held that the Act did not remove the people’s right to vote and they could still vote for elected officials, ignoring the fact that these officials had no power whatsoever. “The Constitution does not compel a particular method of choosing state or local officers or representatives.” The law did not violate the Guarantee Clause, according to the court, that all states be a republican form of government.
Therefore, the Act granting powers to the Emergency Manger did not violate the Constitution. Its rationale was, “Since local governments are considered ‘convenient agencies’ whose powers depend on the discretion of the state, maintenance of republican form at the state level is sufficient to satisfy the Guarantee Clause.” So what if the subdivision of the state, the City of Detroit, was not republican.
And there were other similarly decided positions by the Court that I omit here.
As Evan McKenzie so well stated in his Privatopia Blog, “As for HOAs, if the state can take away your power to choose the city council and the mayor, making constitutional rights arguments about HOA elections would seem like a lost cause. So this case is significant.”[iii]
I am concerned that if a state can do as it pleases with respect to local governments, it can do even more than we now encounter with HOA private governments. The district court’s logic, if upheld, casts a dangerous shadow over what can come next in HOA-Land.
References
[i] Phillips v. Snyder, No. 2:13-CV-11370 (E.D. Mich.2014). (On appeal in the 6th Cir. Plaintiff’s brief).
[ii] The argument here centered around the constitutional equal protection of the law clause, and only voting that was not equal for all the people was unconstitutional.
[iii] Evan McKenzie, “Michigan Lawsuit Shows U.S. Voters May Not Technically Have the Right to Elect Their Mayors – CityLab”
HOA Constitutional Government 