So does a city have to elect a mayor, or is it kosher if a town decides its leader will be decided on the basis of an annual “feats of skill” contest, or heredity, or whatever?
I would imagine this varies by state, so has there ever been an instance of a town having some kind of recognized leader without an election?
Well, some cities in CA have a strong City Manager, and the Mayor is selected by the City Council (from amoung the elected City Council) and is more or less only the Chair.
But I don’t know of any where the Mayor hasn’t been elected at all. However, there are some very small "cities’ in CA, so it’s possible.
Yes. Article IV of the Federal constitution guarantees each state a democratic/republican form of government, and the cities and such are the legal creations of the states.
This is of course not to say that a given official must be elected. It may be that you choose one man to represent you on a governing council, commission, or board, and that board names an appointive executive and all other officials and bureaucrats.
Of course, any equitable means of breaking a tie vote at the polls is considered legally valid in most jurisdictions – a coin toss, for example, is regularly resorted to.
With respect, while the state itself must have a republican form of government, the city is not the state. So the analysis is faulty. :dubious:
The Supreme Court has, for the most part, left the issue to Congress as a non-justiciable question.
What is a city then? A city has no constitutional status – cities aren’t mentioned in the Constitution. Cities are not sovereign entities. So they are merely arms of the state government. As arms of the state government, they are subject to the same constitutional provisions as state governments.
To be precise, the Supreme Court has, for the most part, left the entire issue of Section 4 up to Congress as a non-justiciable question, not the specific question of how city governments must be formed.
You can make dubious smileys all you want, but you’re wrong. As Polycarp said, cities are creations of states. Any constitutional prohibition which applies to states applies to local governments created under the authority of states. That’s why towns and school districts regularly get hauled into court over things like violations of the establishment clause and restrictions on freedom of speech.
In the unlikely event that a state allowed its cities to declare themselves hereditary monarchies, the federal government would be justified in intervening under the guaranty clause.
Perhaps one should also read the respective state constitutions and /or state laws. After all, there are instances where elections are decided on the flip of a coin. Surely there must be a legal basis for a heads or tails election outcome, especially after hundreds (thousands?) of votes have been cast resulting in a tie.
Yes, the legal basis is what has been written into state (or municipal) law, specifying what tie-breaking measures are permissible or required.
IACNAL (I am certainly not a lawyer), but the Supreme Court-upheld concept of “one person, one vote” may come into play in this discussion.
For decades, NYC’s legislative authority was vested in a body called the Board of Estimate. Each of the city’s five boroughs had equal (or near-equal) representation on the BOE. There were vast differences in population from borough to borough, so residents in the lesser-populated boroughs had, in effect, a disproportionate amount of influence over citywide matters.
In the 1970s or 80s omeone challenged the legality of the arrangement, and, IIRC, the case reached the Supreme Court. The Court ruled that NYC had to restructure its government because the old arrangement violated the “one person, one vote” rule. In 1989, NYC got a new charter that gave legislative authority to a population-representative City Council.
This actually happened for some state-level position (I think it was a legislator) in Montana, some years back. But I still prefer Nevada’s method: Allegedly, in the event of a tie, the candidates play a single round of five-card stud. Same effect as a coin flip, but more style, I think.
Hereditary monarchy is definately out. But what’s to stop a state from having all mayors and/or councils appointed by the governor? Or using a technocratic system where officials are selected based on skill instead of popularity?
I’m curious about the election process in single-use non-residential cities that have only a few citizens, like Lakeside, Colorado (amusement park incorporated as a city), or Industry, California.
Actually, he isn’t.
This is so over-broad as to be more wrong than right. Cities are generally set up by processes set forth by the state legislature, as explained below. That does not make them “creations of the state.” Many municipalities in the U.S. pre-date the states in which they are situated and therefore obviously are not creations of the state. Cities generally have to be incorporated by their residents; they generally cannot be declared into being by a state.
Constitutional prohibitions apply to local government entities because they are local government entities, not because they are subdivisions of the state. In many cases, they are not. If you are injured by the actions of the Madison Police Department, you cannot sue the State of Wisconsin, because they are not the same political entities and one is NOT a subset or subdivision of the other. This is not an unimportant distinction; Eleventh Amendment immunity protects the States (unless they waive it, as many have) but does not extent to municipalities, as it would have to if they were “merely” creatures of the states. Fourteenth Amendment liability does extend to municipalities, but independently, as local government entities, not because they are subdivisions of the states. They’re not.
This is by no means clear. First, a guarantee of republican government to the states does not necessarily provide grounds for “intervention” (as opposed to a law suit) by the federal government. Second, it’s not even clear that the Guarantee Clause presents a justiciable claim if a lawsuit is filed, as opposed to a “political question” over which the U.S. Supreme Court has no authority to intervene. See New York v. U.S., 505 U.S. 144, 183, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Third, the sort of “intervention” you are theorizing places the Article I Guarantee Clause in direct conflict with the Tenth Amendment.
Local municipalities don’t answer to the governor. They are generally formed under city/town charters and/or articles of incorporation, and those charters/articles, plus the regulations and municipal codes passed thereafter, set forth the muncipalities legal existence, rights, and responsibilties. The means for forming such cities are found in state statutes, usually in an entire section of the state code. Two sections, actually: one for “Cities and Towns” and one for “Counties.” The governor does not have the right to violate the state statutes or to effectively seize the municipalities (in the absence of an emergency). In so far as the municipality charters are concerned, there is nothing that says that local officials cannot be appointed instead of elected – provided that such a mandate is not found in state law, as if frequently is. Whether sheriffs, judges, and other local officials are elected is usually set forth in state law.
That’s pretty much what “creation of the state” means. They are created under laws that are enacted from the sovereign power of the state.
This is interesting as a historical matter, but irrelevant in a constitutional sense.
No, not obviously at all. Whatever the original history of a municipality, once it became part of the state it is now in, its existence and the conditions of its existence are wholly dependent upon the sovereign power of the state. The power of the New York City government flows not from the original sovereign authority of the government of New Amsterdam, but from the New York State Constitution.
This is the result of the choice of the sovereign authority governing the state. There is nothing to prevent a state legislature from sua sponte creating or eliminating municipal governments, so long as it is done in accordance with the state constitution.
Impossible, because the U.S. Constitution makes no reference to local government entities. The only way in which the Constitution applies to them is through their incorporation into the states.
Flowing from the sovereignty of the state …
Flowing from the sovereignty of the state …
Flowing from the sovereignty of the state …
The sovereign, so long as it followed the appropriate procedures, whether the legislative process or the constitutional amendment process, as appropriate, can change any of these rules. That makes municipal governments the creation of the state. There is no basis for the creation of local governments in the U.S. Constitution.
Doesn’t the constitution contain a penumbra of democracy? I’m actually not kidding about that. Considering how the constitution is routinely interpreted by the Supremes, if there is a penumbra of a right to privacy, there must be one for the right to democracy (at least of some sort). No?
I have no idea how that was allowed to exist so long. If the Supreme Court didn’t do something, I would expect that Congress, driven by Senate leadership, rise up to crush all such systems because they just can’t be tolerated.
No, that isn’t what “creation of the state” means, at least in my mind. “Creation of the state” means "created by the state. The state legislature sets out the process by which the cities and towns may be created. It does not create the cities and towns; the residents do.
It points out that the idea that cities are in every case “creations of the state” is patently incorrect in every case where the city pre-dates the state and therefore was not – could not have been – created by the state. It was not presented as a constitutional argument but rather as an obvious refutation to the idea that municipalities are in every case “creations of the state.”
There is a difference between the sovereignty of the state, taken as a whole and inclusive of all parts of it, and “the State” as a political entity, as distinguished from the counties and the cities existing in the geographical bounds of the state. The fact that local governments’ rights are enshrined in the the state constitution and therefore cannot be meddled with or overridden by the governor or the legislature reinforces, not refutes, my point, which is that municipalities are not legally speaking “creatures of” or “subdivisions of” the State, which is a separate legal entity. I am not saying that local governments are sovereign; obviously they are not. But there is a lot of ground between having a completely sovereign separate government and having one political entity be only a sub-set, subdivision, or creature of the other. The Department of Transportation is a creature of the State. The City of New York is not.
Well, hell’s bells! There’s nothing to prevent them from tattooing the faces of their citizenry green, so long as its done in accordance with the state constitution and federal constitutions! Which, whoopsie! Don’t allow it. In fact, the New York state constitution forbids the wholesale elimination of municipal governments, so perhaps you’d like to explain how they’d do that “in accordance with the state constitution.”
Municipalities are separate political entities. They are not necessarily treated the same for purposes of constituional law, as I already said. (See specifically the Eleventh Amendment.) This does not make them sovereign and I never said that it did. But you said “[T]hey are merely arms of the state government. As arms of the state government, they are subject to the same constitutional provisions as state governments.” This is in many cases simply incorrect. Unless you’d like to take a shot at explaining how, if they are “subject to the same constitutional provisions as state governments,” they are treated differently from state governments for purposes of the Eleventh Amendment?
The fact that they are part of the state in the sense of existing within it does not make them merely subdivisions of State government. They aren’t that, or not merely that, and you saying they are doesn’t make it so. They cannot be sued as subdivisions of the State, they do not share liabilitiy with the State, the services provided to and between the municipalities and the states are determined by contract or interlocal agreement. They enjoy constitutional protections that prevent “the State” from exercising the degree of control over them that you appear to be insisting it may exercise. There is a vast middle ground between “they are merely arms of the state” (WRONG) and "they are completely independent and sovereign from the state (also wrong). The difference is that I have never argued the latter, while you have argued the former. And your argument remains so overbroad as to be incorrect.
Not that I am aware of. But the individual rights of the citizens (due process and equal protection, specifically) would probably prevent the wholesale trash-canning of democracy at a local level.
[quote]
It points out that the idea that cities are in every case “creations of the state” is patently incorrect in every case where the city pre-dates the state and therefore was not – could not have been – created by the state.[q/uote]
No, it does not make that point at all. The fact that there was a city called New York which had some form of government before the State of New York existed under the 1789 U.S. Constitution is irrelevant to the question of whether the municipal government of the City of New York as currently constituted is a creation of the State of New York.
Not obvious at all.
No, all it means is that the state’s constitution is the supreme source of state law. The state constitution can be changed, and if it is, all of the subordinate governmental bodies will be subject to such change. If the New York constitution is amended to eliminate all municipal governments, then it is done. Connecticut, for example, has eliminated all county governments.
If the state constitution is changed, all the government bodies will be subject to such change – including the State government no less than the local governments. If the citizens of New York wanted to, they could abolish the State of New York entirely – carve it up and apportion it to Pennsylvania and Connecticut. This has nothing to do with whether local governments are generally (much less always) “merely arms of the State.” You can trace the authority of all government back to the constitutions (of the state or of the U.S.) and, through them, to the People. That doesn’t mean they all stack up neatly one underneath another, each existing wholly inside the one above it. That’s what “merely an arm of” indicates, and that’s wrong.
That, I think is far less clearly true. For instance, the U.S. Constitution has generally (at least since 1865) been held to forbid states from withdrawing from the U.S.
I think perhaps Jodi and acsenray are arguing different points. Jodi is correct in that municipaliites are seperate entities legally (as in her example that you can’t sue the state of NY for actions by a Buffalo police officer). Nobody at NYC reports to anyone in state government, any more than anybody in a company incorporated in New York state reports to anyone in the state government.
But the point germane to the OP that acsenray is making is that all legal powers of a city ultimately derive from the laws and regulations of the state (as opposed to deriving from the federal government, or from the people directly), just as all the legal powers of any other non-federal organization ultimately derive from the laws and regulations of the state.
Therefore, the state has the power to change what cities are allowed to do and how they do it (just as the state can change what corporations are allowed to do). For instance, the state legislature could pass a law requiring all cities to have elected dogcatchers, or conversely the state legislature could pass a law requiring that all city government offices (including mayor) must be filled by a competitive examination process with a lottery among the top scorers.
The point is that unless state law permitted it, no city government could pass such a local bylaw, and the U.S. Congress has no say in the matter at all.
Of course, there could be challenges to such a law, based on the various state constitutions (I don’t know the clause in the NY constitution about abolishing town governments, but it might be applicable in that case), and it’s probably an interesting question as to how federal constitutional protections would play out, too.
More interesting proposals than competitive examination with a lottery would be more likely to run afoul of constitutional issues, of course. Better constitutional scholars than myself could speculate on how they’d challenge a state law requiring (or even allowing) hereditary mayorships or choosing mayors by Feats of Strength at an annual fair.