‘Michigan law carries badge and stigma of slavery’
By T. Kelly
The Michigan Citizen
DETROIT — Attorneys argued April 29 before U.S District Court Judge George Caram Steeh that Michigan’s Emergency Manager law is unconstitutional.
It violates citizens’ — especially Black citizens’ — protected rights of free speech, right to vote, equal protection, due process and right to representative government. And it violates the 13th Amendment of the U.S. Constitution
Attorney Herb Sanders told Judge Steeh the EM law carries the “badge and stigma of slavery.”
Attorneys for the plaintiffs included Sanders, Julie Hurwitz from the National Lawyers Guild, John Philo, from the Sugar Law Center and Cynthia Heenan. They filed the suit a year ago and the hearing April 29 was on the state’s motion to dismiss the case because it lacked plausibility.
Michael Murphy, from the state attorney general’s office, argued the U.S. Constitution recognizes only two sovereign entities, the federal and state governments. All rights belong to the state when it comes to local government, Murphy argued.
“There is no guarantee of any local government having a republican form of government. There is no due process for local government matters,” he said.
Several times attorneys noted voters had overturned an earlier version of the Emergency Manager law, Public Act 4. Sanders argued that with the implementation of PA 436, lawmakers violated the Michigan statute that requires a vote of the people to reinstate what has been overturned by referendum. When voters defeat a law by referendum, the legislature can’t reenact it unless the people vote it in, he said.
Murphy said Michigan does not govern by referendum. “We are not California yet.”
Views were black and white when it came to whether race mattered.
According to Murphy, PA 436 has nothing to do with race. The law is “economic in nature, passed for the health, safety and welfare of the public.” He added, the EM law was unique, but it was necessary for unique times, referring to the great recession that began in 2007.
“The banks almost failed, it was unprecedented what faced communities under emergency managers,” Murphy said. “Municipalities are creatures of the state and the state couldn’t let them go under.”
Eight percent of the state’s population is African American, but over 50 percent of African Americans in Michigan live under emergency management, the judge said. He asked Murphy whether under PA 436 “the minority population” doesn’t suffer a greater burden.
The cities under emergency management were “left behind by people who voted with their feet,” he said. “The analysis is based on money, not the color of the community, only the color green matters. It is the inability of communities to manage their cash.” The state decided on EMs using objective criteria, analysis and review.
Murphy cited Hazel Park — a majority white city — as a community that “took steps to get its finances in order” when confronted with emergency managers.
Lawyers for the plaintiffs said 12 white communities met the criteria for imposition of PA 436. Not one of the 12 were put under emergency management, even though some had economic crisis scores exceeding the eight cities with majority Black population that were all put under emergency management.
Philo said there was no finding of mismanagement required under PA 436.
“The assumption of mismanagement is a stigma that has long been leveled (at cities under EM),” he said, noting that whether a city goes under PA 436 is discretionary, up to Gov. Rick Snyder.
Attorney Herb Sanders went further.
“It is unlawful under the 13th amendment to implement or effectuate the badges and incidents of slavery. There is a clear connection between slavery and disenfranchisement,” Sanders said. He quoted Frederick Douglass who said, “I want the franchise on the basis of my color. To rule us out is to make us inferior, to brand us with the stigma of inferiority.”
The Jim Crow-era stigma of having to count bubbles on a bar of soap or leaves on a fig tree to vote are found in the imposition of PA 436, Sanders said. PA 436 is the modern day bar of soap, the modern day fig tree, he said — an arbitrary determination.
“The stigma of PA 436 is that African Americans are incapable of self-government,” Sanders said. “I submit the denial of the right to vote through the exercise and implementation of PA 436 is to impose the badge and incidents of slavery.”
Sanders cited previous cases where the courts found the denial of Blacks’ right to purchase real estate, enter private schools and closing streets based on race are all the badge and stigma of slavery.
The right to vote was never taken away, Murphy said to groans from the packed courtroom. These are cities that spend more than they take in. They spend like they used to. The legislature understood this,” he said. “The cities and school districts obviously haven’t managed their finances.” Murphy said everybody who wanted to vote, voted.
Philo told the judge the vote of citizens under EM is diluted. When people in Birmingham vote for the governor, they get a say in Detroit. When Detroit votes for the governor, they get no say in what happens in Detroit or Birmingham, he said.
Sanders said when people vote for local officials, they expect those persons to be accountable and represent them. “To the extent the officials fail them, they can recall them, they can vote them out of office. That right is denied through PA 436; the right to cast a vote effectively.”
We are setting up two forms of government in the state, Philo said. One is democratic, republican and for the wealthy; one for the poor. If the state can dissolve a municipality, “you have to do it within federal law, within the constitution. Eight constitutional claims trump or curtail that power.”
The judge said he would take the state’s motion under advisement and render a written opinion later. No evidence has been gathered yet in the case. To date all action has been to overcome legal roadblocks erected by the Snyder administration and the federal bankruptcy judge.