Courts May Complicate Term Limits
By Michael Lanza
The New York City Council may be damned if they do and damned if they don’t in the ongoing dispute to change the City’s term limits law.
As the council approaches its Thursday vote, a legal battle to negate any measure is brewing. That’s because two existing laws – the Voting Rights Act and the Municipal Home Rule Law – may place any efforts to extend term limits, whether by legislation or special election referendum, on shaky ground.
Mayor Mike Bloomberg made the case for legislation to reporters on Tuesday, insisting that a referendum to extend term limits by special election could leave the City open to years of litigation and that a council vote is the only viable option.
He said a special election was “much more likely to be litigated” and could potentially entangle the City’s election process in a high-stakes court battle under the Voting Rights Act, which protects the rights of minorities to vote and could be manipulated by opponents for political gain.
“It would leave the City with civil rights challenges that could go on for years,” Bloomberg said.
Councilman Lewis Fidler (D-Brooklyn), who favors overturning the law by legislation, agreed. Fidler, who is also an attorney, said that the special election process would simply take too long and leaves the 2009 elections vulnerable to catastrophic legal disputes.
“In 1991, in the City of New York, the Justice Department canceled the city council elections the night before the primary.” Fidler said. “The precedent for havoc is real.”
He said the referendum process includes a charter committee review, a mandatory 60-day waiting period between a proposal and an actual vote and a 90-day Voting Rights Act review by the U.S. Department of Justice. An optimistic estimate would put official results out in May, Fidler said, at which point it would become vulnerable to legal wrangling in state and federal courts.
“It really is too late. If you actually calendar it out, and say let’s look at this objectively – it is too late,” Fidler said. “Unfortunately I left my time machine home and I can’t go back six months in time and have this entire thing done the way it should have been done. This option’s not real.”
But opponents of the mayor’s proposal and many legal experts say the argument against a referendum holds little weight.
“What Bloomberg said today is nonsense. There is no serious threat of litigation that would arise out of a referendum process,” Richard Emery, a Manhattan voting rights lawyer and former member of Gov. Mario Cuomo’s Commission on Integrity in Government, said. “The likelihood of any serious litigation, that will disrupt the election process if there’s a referendum held at the behest of city council legislation, is extremely small. He’s setting up a straw-man that will be blown away by the facts.”
Emery insisted that serious challenges under the Voting Rights Act would be unlikely because the process would be highly publicized, highly democratic and not discriminatory towards minorities.
According to Emery, the council should be more concerned about the legal consequences of overturning the law through legislation.
“There’s a 100 percent chance that there will be litigation – how serious I don’t know yet – to any City council legislation that extended term limits,” Emery said. “I think in balance, the safer process – in terms of litigation – is to go through the referendum process.”
By voting to overturn term limits through legislation, council members may be leaving themselves vulnerable under the Municipal Home Rule Law, which prohibits changing the structure of a legislature without a referendum and may scuttle their own third-term ambitions.
“That would be one of the major challenges and litigation strategies if the City council passes the extension of term limits. A city council change of the structure of government by adding a third term – if that can be considered a structure of government or a change in the form of government – could violate the Municipal Home Rule law if it’s done without a referendum.” Emery said. “It could totally backfire if council passed the extension of term limits because it wouldn’t even benefit them.”