By: Sydney Helsel
The Flint Water Crisis started with a 2014 money saving decision to switch Flint, Michigan’s water source to the improperly properly treated Flint River, resulting in the highly corrosive water causing lead from older pipes to leach into the tap water.[1] In 2016, an independent taskforce found that state-appointed emergency managers were responsible for the decisions that led to the Flint Water Crisis.[2] Despite this finding, and in the wake of a health crisis that drew national and international attention, Michigan’s emergency manager law still remains in place. As of 2018, there have been no state-appointed emergency managers in Michigan, marking the first time in 18 years that no emergency managers have overseen school districts or cities.[3]
Twenty states, including Michigan, have emergency manager laws.[4] These laws allow a varying amount of state control and intervention into local governments, from making key budget decisions to controlling a locality almost completely.[5] Michigan’s Public Act 436 allows a state-appointed emergency manager to exert expansive control over a city or school district’s decision making processes and policies after the state-led discretionary financial review.[6] This process overwhelmingly disenfranchises Michigan’s Black residents. In 2013, Michigan’s emergency managers controlled cities containing only nine percent of the state’s total population, but almost half of Michigan’s Black residents.[7] These laws disproportionately impacted Black residents’ ability to elect local officials with meaningful power and participate in local government.[8]
In several cases, emergency managers have done more harm than good. Detroit Public Schools went from a $115 million dollar surplus to a $1 million dollar deficit while under emergency management.[9] Flint’s emergency managers made a series of decisions resulting in the city’s water having lead levels almost fifty times the EPA’s action standard, and largely disregarded complaints about the water quality.[10] Even when a locality tries to avoid an emergency manager by entering into a consent agreement with the state, it often cannot negotiate the terms of the agreement.[11] Lincoln Park, Michigan was appointed an emergency manager immediately after the city council voted 4-3 to reject a draft consent agreement.[12]
Legal challenges to PA 436, even in the wake of the Flint Water Crisis have been largely unsuccessful.[13] A 2016 Sixth Circuit ruling in Phillips v. Snyder ruled that PA 436 was an appointive system and therefore did not fall under Section 2 of the Voting Rights Act.[14] The court stated that appointments under PA 436 did not replace locally elected officials, but failed to acknowledge that the emergency manager assumes almost all of the power of elected officials.[15]If the Sixth Circuit considered that appointments, while not replacing elected officials, still rendered them powerless, it could have analyzed PA 436 under Section 2 of the Voting Rights Act and declare the law invalid because it’s application produces discriminatory results.[16]
While three years have passed with no emergency manager appointments, PA 436 is still on the books.[17] To prevent the future disenfranchisement of Black residents, PA 436 needs to be repealed by the Michigan legislature and replaced with a more restrictive financial emergency law limiting state discretion and prioritizing local agency and choice. For accountability, the state should also create a public record of financial emergency declarations, emergency manager appointments, and other state action under PA 436 and previous emergency manager laws. Finally, the right to vote for local leadership should be enshrined in the state’s constitution. Limited state intervention may be needed to support localities during financial emergencies. Financial emergencies cannot justify disproportionately disenfranchising Black residents by stripping local elected leaders of their power and authority, as they do now under PA 436.
[1] See Melissa Denchak, Flint Water Crisis: Everything you Need to Know, NRDC (Nov. 8, 2016)https://www.nrdc.org/stories/flint-water-crisis-everything-you-need-know (detailing the timeline of the Flint Water Crisis).
[2] See Merrit Kennedy, Investigators: State Officials Mostly to Blame for Flint Water Crisis, Nat’l Pub. Radio (Mar. 23, 2016) https://www.npr.org/sections/thetwo-way/2016/03/23/471585633/independent-investigators-state-officials-mostly-to-blame-for-flint-water-crisis (discussing a report identifying decision makers responsible for the Flint Water Crisis).
[3] Jonathon Oosting, Michigan: No Emergency Managers for First Time Since ’00, Detroit News, (June 26, 2018) https://www.detroitnews.com/story/news/local/michigan/2018/06/27/michigan-no-emergency-managers-first-time-since-2000/737947002/.
[4] See Univ. of Mich. School of Pub. Health, Emergency Manager Law Primer, 2 (2018), available athttps://debeaumont.org/wp-content/uploads/2018/02/FlintPrimer.pdf.
[5] See id., Chris Lewis, Does Michigan’s Emergency-Manager Law Disenfranchise Black Citizens, The Atlantic (May 9, 2013) https://www.theatlantic.com/politics/archive/2013/05/does-michigans-emergency-manager-law-disenfranchise-black-citizens/275639/.
[6] See Local Financial Stability and Choice Act, 2012 PA 436 (Mich.) (changing “emergency financial manager” to “emergency manager” and expanding the scope of power to include almost all policy decisions); see generally Michigan St. U., A Review of Michigan’s Local Financial Emergency Law 4 (2017).
[7] See Lewis, supra, note 5.
[8] See id.
[9] See Oosting, supra, note 4.
[10] See Roni Dengler, Study Confirm how Lead got into Flint’s Water, PBS NEWS HOUR, (Aug. 1, 2017) https://www.pbs.org/newshour/science/study-confirms-lead-got-flints-water#:~:text=The%20absence%20of%20a%20water%20treatment%20%E2%80%94%20called,in%20the%20pipes%20to%20leach%20into%20the%20water.
[11] See Emergency Manager Law Primer, supra, note 5 at 5.
[12] See Khalil Al-Hajal, Lincoln Park Gets Emergency Manager after Rejection of Consent Agreement, MLive, (Jul. 3, 2014) https://www.mlive.com/news/detroit/2014/07/lincoln_park_gets_emergency_ma.html.
[13] See generally See Michigan St. U., A Review of Michigan’s Local Financial Emergency Law 9-11 (2017) (Highlighting some of the legal actions against emergency managers and the emergency manager law).
[14] See Phillips v. Snyder, 836 F.3d 707, 715 (6th Cir. 2016) (refusing to recognize electing local leadership as a fundamental right).
[15] See id at 721 (citing Presley v. Etowah County Comm’n, 502 U.S. 491 (1992); Sydney Hawthorne, Do Desperate Times Call for Desperate Measures in the Context of Democracy? Michigan’s Emergency Manager Law and the Voting Rights Act, 41 NYU Rev. L. & Soc. Change, 182, 229-31 (2017) (arguing that Michigan’s emergency manager law is a violation of the Voting Rights Act).
[16]See generally id. at 221 (arguing that the Phillips Court incorrectly applied precedent and failed to consider the reality of an emergency manager’s impact on the powers of local leadership).
[17] See, Oosting, supra, note 3