Citizens stand little chance when it comes to ballot-access: or the plight of a citizen’s initiative in the Capital City

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Eye from Albany
September 2005

Citizens stand little chance when it comes to ballot-access: or the plight of a citizen’s initiative in the Capital City
by Paul M. Bray

I never would have thought I’d be in the middle of an effort to get a referendum question on the ballot this summer. I am not enthusiastic about the notion of initiative and referendum. While representative government isn’t perfect by any means, allowing ballot access to public issues seemed flawed to me. I feared the herd mentality that can come from fear and perceived self interest (Prop 13) and the ability of rich and powerful interests to manipulate public opinion.

Our legislative bodies and chief executives at every level are not immune from fanning public fears and prejudices nor, of course, are they free from the influence of money. But our system of checks and balances and other forces moderate the worst possibilities especially to minority rights that I fear from direct democracy. But, if in a city like Albany where the checks and balances are so weak and the population has historically been so docile, ballot access becomes more attractive or perhaps the only possible way to bring some reform.

So, here I was in the middle of a citizen’s Charter Petition Initiative in the City of Albany and it is insightful to see how well the system is rigged to keep a referendum on charter reform off the ballot. Let me share the story.

Background. Albany’s Mayor Gerald Jennings is running for his 4th term in November 2005 with only marginal opposition in a primary and general election. He has a war chest of over $400,000 (more than 10 times what his primary opponent has) and has a well developed my-way-or-the highway approach to doing business. (Jenningisms include “Albany is my city” and “I don’t want to hear that I don’t listen to people”.) Albany has a declining population and 8000 vacant building yet has a polished downtown veneer and the bread and circuses of events like the free Live at Five and Park Playhouse covering its rotting piers. With lots of state money for research facilities, Albany is part of a tech wannabe region.

Its four century history including a 20th century political machine history left a city with a fearful and cynical population. In Mayor Corning’s biography, author Paul Grondahl writes that Former University at Albany Professor William Rowley believed that “Albanians were trained over the course of generations to act as docile sheep beneath the firm, guiding hands of a succession of shepards”. He quotes Corning’s city planner Dick Patrick as saying: “The history of Albanians is like sheep. Albanians seem to be bred to be sheared. They have an inbred sense of being scared. They always expect the worst, I’ve found. They’re naturally pessimistic and it’s easy to lead those kind of people.”

The Common Council is weak in powers and as well as in the will to take on the Mayor on issues like public safety, code enforcement and public finance. Two code enforcement positions, for example, were added in this year’s budget, but, as usual, the Mayor ignored the matter and these positions were not filled. The Mayor controls the archaic mechanism of a Board of Estimate so he has the ability to move around 4% of the budget for items like an automobile for the City Treasurer-County Democratic Chair even when money can’t be found for police vehicles and pay raises for top officials.

So, what can the citizens do? In the 2004 election, thanks to the Working Families Party and Citizen’s action amongst others, a young attorney in the District Attorney’s office was able to defeat the Jenning’s picked incumbent in a primary. What an upset. The suburban democrats are exerting their muscle by overriding the Mayor’s choice for the Board of Election. This year, some including the Working Families Party and Citizen’s Action, are supporting progressive candidates for the Common Council in an effort to establish a progressive majority. This chips away at the Jenning’s machine strategy. Note that it is a highly personal machine and not the “party” machine of the last century.

Others, through an organization of concerned citizens (including myself) that called itself the Albany Civic Agenda (ACA), ( put forward the notion of petitioning to have City Charter reforms on the ballot this November. This was envisioned as both a catalyst for demonstrating that citizens can have influence (are not just sheep) and a means for some basic reforms to strengthen “checks and balances” in the structure of city government.

Section 37 of the Municipal Home Rule Law spells out what needs to be done to get the propositions on the ballot.

What we discovered was an almost impossible labyrinthine process capable of derailing even the best of citizen efforts at ballot access. Success at each step is met with the need to get past a lethal dragon in order to move on.

(Phase 1, Dragon 1) To begin a citizen’s initiative there is the need to generate public support and build alliances. We needed to find common ground between the poorer downtown neighborhoods and the middle class uptown wards to have credibility. Towards this end, Jim Tierney, a participant in ACA, carried draft charter amendments to neighborhood and political activists and others throughout the community.

Initial drafts provided for giving the Common Council the power of advise and consent for appointments to head city agencies (hardly revolutionary), increasing the influence of the Common Council on the Board of Estimate and Apportionment so the Council could better satisfy its financial stewardship responsibilities and requiring the Mayor to produce a universal budget that included the finances of off budget entities like the Water Board.

While there was a lot of enthusiasm for placing proposed amendments on the ballot there was a robust debate on whether to go with the softer items like advise and consent or to propose what might be more controversial proposals, for example, in the area of public safety. Inner city residents with real public safety and city hiring issues were suspicious of uptown residents. Thanks in large part to Tierney’s skills and tenacity, a consensus was established to go forward with the basic and more conservatives reforms as a first step. With success at this level, the opportunity for more far reaching reforms would be greater. The dragon of class and race suspicion was avoided and a diverse coalition of supporters took shape. Somehow, Tierney was able to get 8 members of the Common Council to declare they would support placing the amendments on the ballot of the statutory number of signatures were collected. Some Council members even collected signatures.

(Dragon 2) Almost immediately after the coalition announced the Citizen’s Petition Initiative at a press conference on the steps of City Hall, the Mayor announced the appointment of his own Charter Commission with people the local newspaper called his “cronies”. His reason was simple. Any proposal from a Mayor’s Charter Commission bumps all other proposals from the ballot whether they come from citizen petitions or a proposal generated by a city council. Former Mayor Guiliani and current Mayor Bloomberg in New York City and a mayor in Yonkers successfully used this cynical ploy.

The Mayor first attacked unnamed political opponents for the Citizen’s initiative and then ACA for being out to get him. He never throughout this whole episode addressed the merits of the two proposals. A Mayor’s Charter Commission in the late 90s made very modest changes that had minimal effect on the Mayor’s almost absolute powers. In its wake it left a lot of bad feeling.

The Mayor’s Commission was criticized in the newspaper for failing to have members of ACA or the large number of government experts in Albany appointed. Fortunately, as it appeared at the time for the good guys, the Mayor appointed a former judge, Larry Rosen, as chair and Rosen almost immediately announced that the Commission would not be used to block a democratic citizen’s initiative. I was told that Rosen was very protective of his reputation and wouldn’t let the Mayor drag it down. So, that this dragon was avoided. (But stay tuned as it came back.)

(Phase 2) The next hurdle was collecting the 3031 signatures specified in Section 75 (10% of the vote in Albany during the last gubernatorial election). Never having collected petition signatures, I had no idea how challenging this task would be especially by a broad but unorganized coalition that was a mile wide but only a few feet deep. The designating petition for Mayor in Albany, for example, only calls for only 1000 signatures and these petitions are carried by a well-organized army of committee people. The citizen’s effort did not have an organizational base and relied on scores of volunteers (with a couple of students hired at the end in a last ditch effort to meet the goal).

As much as I like people, I found out I don’t like going door to door (intruding on people) soliciting signatures. At the first door I went to a school teacher neighbor I had known for a couple of decades had fear in her eyes when I asked for her signature and finally refused to sign. In the end I collected about 50 signatures. Somehow 3675 signatures were collected from voters in all wards of the City. It was a remarkable exercise in citizen involvement and diversity. About 125 people volunteered to carry petitions with a lot of help of people like Jim Tierney, Sue Bartle and Carol June Washington.

(Dragon 2) But we were far from getting on the ballot. Next the petitions had to be delivered to the City Clerk who reviews the petitions and certifies to the Common Council whether we met the statutory goal. I made the delivery after a press conference on the steps of City Hall.

New York State is known nationally for its nitpicking technicalities in order for signatures to be validated. That is why candidates try to collect many more signatures than required, something we were only able to modestly do. In recent years, State law has changed to encourage a less technically absolute review of signature validity.

The City Clerk invalidated about 700 signatures and reported to the Common Council that we were 122 signatures short of the 3031 specified in the Municipal Home Rule Law. (So close and yet so far.)

We argued that the language of the Municipal Home Rule law allowed the Council to “consider” the report from the City Clerk but still to be able to place the proposed amendments on the ballot without the 3031 signatures. Of course, the Corporation Council disagreed with us and a number of the Council members saw this as the way to get off the hook of voting on ballot access. So, dragon 2 had us by the throat but we weren’t dead yet.

(Phase 3) Jim Tierney found us a pro bono attorney to appeal the invalidation of 224 of the signatures for reason like Jeffrey signing his name Jeff and some people not using their middle initial or having moved since the last election. Jim, Sue Bartle and some others did a masterful job combing the petitions and organizing the presentation of signatures that should be validated based on comparing them with the buff cards from the Board of Election.

Off to court we went and whether by a cruel turn of fate or not we ended up with Supreme Court Judge Thomas Spargo hearing our petition as we faced off against the Corporation Counsel who now wanted to invalidate another 170 signatures previously validated by the City Clerk and have us subpoena the signers we wanted validated to appear in Court. Sure, let them take time off from work to prove that Sue Jones is the Sue W. Jones on the voter registration roles. Judge Spargo, a former election lawyer for the Republicans, veteran of the Bush election in Florida in 2000 and under investigation by the Commission on Judicial Conduct, owed his cross endorsed judicial nomination to Albany’s Mayor.

The hearing was interesting. The citizens were represented masterfully by attorney Lannie Walters. Spargo likes to ingratiate himself to everyone but it was apparent he knew what he needed to do. To make this long, three day chapter short, Spargo rejected the claims of the Corporation Council, validated 136 signatures giving us more than the needed 3031 and then pulled the rug from under us by ruling that the 336 signatures on petitions carried by witnesses residing outside the City of Albany were invalid because of the witnesses’ residents. That ignored the fact that the City Clerk had validated most of those signatures gotten by out of town subscribing witnesses, hadn’t raised this issue and there was a Federal Appeals Court precedent that out of town residents have a constitutional right to carry petitions. So, we were down but not out as we could appeal or the Council could place the amendments on the ballot without the 3031 signatures, as unlikely as that would be. The dragon still had us by the throat.

(Phase 4) Now in a very short span of time we had to get our act together to be heard by the appellate division. This meant seeing if attorney Walter’s was willing to commit the time with the little prospect of much compensation, getting a brief written and raising some funds for transcript and filing cost and to pay the attorney as much as possible.

Miraculously, Walters agreed to be the appellate council, an appeal was filed, attorney Andy Beschard (another founder of ACA and a democratic committeeman) prepared a brief and enough funds to at least pay costs was raised.

The third department of the appellate division scheduled the appeal for September 7th. We needed to get Common Council action on the petitions at least 60 days before the general election. The Council was scheduled to meet on the 8th, so with the right decision we could bring the Council certified petitions on the 8th.

Walters did a brilliant job arguing the constitutional case that all subscribing witnesses whether they are carrying designating, nominating or section 37 petitions were covered by the a constitutional protection and that Judge Spargo over stepped his bounds by raising an issue stipulated to by the City and not raised by either party. The unanimous 5 judged court in Bray v. Marsolais (the City Clerk) ruled that we had enough signatures to be certified under state law. We Won!! and made some good law in the process. Just in time as the decision was handed down in the afternoon of the 7th.

Perhaps we got too cocky. A majority of 8 members of the Council had expressed their support for placing the amendments on the ballot if the petitions were certified. Some were clearly squirming, but I at least did not believe they could walk away from their previously stated commitment and stiff the voters. How naive I was.

(Phase 5, Dragon 3) Our message was simple: “Let the people decide”. We also called for open dialogue on the merits. The local newspapers had expressed their support in editorials. When I spoke with Rich Conti, a leader on the Council, we talked about getting more than the 8 votes we need.

But then the Mayor struck. First, I got a call in the morning of the 8th that local Assemblyman Jack McEneny had sent a leader to each Council member opposing the ballot access. Even though he has supported legislation (like a recent law to create a convention center public authority) creating public bodies with members appointed by the Mayor subject advise and consent from the Common Council, he now was claiming advise and consent would undercut the Mayor. He complained that the reformers were back room dealers as if 3675 signatures can be gathered in the back room. Jack has always been a good guy so this may pass as something many people feel is just inexplicable.

The other shoe dropped when I learned that Larry Rosen who wouldn’t get in the way of a democratic initiative was going to come to speak at the Council’s public comment period to do just that. The Mayor was putting on the heat.

I and more than 20 Albany residents made the case during the Common Council public comment period for letting the people decide while Rosen, as reported in the Times Union, “warned lawmakers that putting the issue of charter change before the voters through a citizen-driven petition process would be a ‘dangerous precedent’.”

A reporter also noted “several close Jennings aides like Joe Montana rarely seen at council meetings were present “frequently leaving the council chambers to make cell phone calls”. (Recently, Community Development Agency Director Joe Montana demolished an 1850s Greek revival row house that the was the first building targeted for restoration by the Albany Housing Authority and the Historic Albany Foundation under a 2-year old city-sponsored revitalization plan. Needless to say, he would not want to have to justify actions like this before the Council if it had authority for advise and consent.)

Rosen didn’t stick around after he spoke appearing as if he was very much part of something that he could not have been proud of.

The heat was on and despite the “herculean” effort by citizens, 9 of the 15 council members crumbled and voted to deny ballot access for the charter amendments. Three of the Council members who had committed to support ballot access voted to deny it. A Times Union editorial after the vote called the Council’s action “shameful”. The dragon slayed the citizens.

If the Council had failed to act, the citizen’s could have gotten the amendments of the ballot by collecting 1500 additional signatures, none of which could have been for the initial signers. That would be an almost impossible task.

What next? In the Mayor v. the People, the Mayor won this round. It is hard to tell what the citizens will do next. There is a lot to be proud about from the petition initiative. It was a coalescing force throughout the city and generated positives like a decision in Bray v. Marsolais that reinforces certain constitutional rights. But there may be a reinforcing effect to the centuries old fear and cynicism.

The Mayor’s Charter Commission exists, if only because of the petition initiative, and some Commission members want it to work as a vehicle for reform. But the Mayor fully controls a majority and has never shown a willingness to do anything not in his immediate self interest. One long time office holder predicted the Chair would try to move forward but would have trouble getting a quorum at meetings. As a result with the danger to the Mayor over, the Commission would fold. Certainly, ACA and other reform groups should monitor this Commission closely.

Stay tuned over whether the citizens will throw up their hands or will regroup to continue the effort to bring participatory democracy to Albany, your Capital City and the second oldest settlement in America. And certainly, a close look should be taken at state law on ballot-access to give the citizens a chance.

Richard Florida who identifies cities that have the right ingredients to become tech centers notes that successful cities have participatory leadership and my-way-or-the-highway Mayors doesn’t work. Despite all the state investment in Albany for high tech, don’t look expect much in the way of dividends in the Capital City until reform finally occurs.