Important Constitutional Challenge in Michigan will impact rights in HOAs

By Deborah Goonan, Independent American Communities


When considering Constitutional freedoms – or lack thereof – in Association Governed Residential Developments such as Homeowners and Condominium Associations, it’s critical to recognize the erosion of democracy in U.S. Government at all levels.

Take, for example, the following City Lab report of Michigan’s Emergency Manager Law. In Michigan law, if the state determines a municipality to be under financial distress, it can appoint an Emergency Manager to take over for its elected municipal officials.

According to a Constitutional challenge brought by the Center for Constitutional Rights and The Sugar Law Center for Economic and Social Justice in 2014, during the time the appointed manager remains in authority, residents of that municipality have zero voting power, and signficant limitations upon civil liberties such as free speech and due process.

Incredibly, U.S. District Court Judge George Caram Steeh issued a ruling in November 2014 that residents of distressed cities possess no actual voting rights in local elections.

The case is currently pending appeal. You can read a summary of the situation in the following article.


U.S. Voters May Have No Constitutionally Protected Right to Elect Mayors


That’s right. A federal judge quietly ruled in 2014 that Michigan can replace any mayor voted into office with someone it has decided is more fit for the job. The attorneys challenging the emergency manager law also argued that it violates free speech, equal protection, and due process rights, as well as the Voting Rights Act. The only thing Steeh conceded was that it might have some unequal protection problems, but he saw no voting rights concerns because people are still able to vote.

“[Steeh] said that the right to vote simply encompasses the right to physically cast a ballot,” says the Center for Constitutional Rights’ Darius Charney, one of the lead attorneys on the case, “even if that ballot is meaningless—meaning the person you elect will not have any actual power to govern those who elected them.”

“Flint is a powerful, concrete reason for why the right to elect local officials matters,” says Charney. “When people are unaccountable to the people they are ruling over, they can make terrible decisions that can hurt people’s lives and their welfare, which undermines democracy. The appeals court will have to come down and affirmatively decide: What does the right to vote mean?”


Evan McKenzie, Political Science Professor at University of Illinois at Chicago, posted the following statement regarding this important issue on his blog, The Privatopia Papers:

I’ve posted about this case before. The State of Michigan says that as long as there are state and federal elections, the right to vote is not impaired–you have no right to vote for local government officials. If the state “extends,” i.e, give you out of the goodness of their heart, that right, then it still doesn’t include the right to choose the people who make the real decisions.
The implications go beyond Michigan. Extend the principle to other parts of the local government system. County boards, special districts, school boards, and the rest of the alphabet soup of local government entities. Do you have the right to choose the people who make the decisions on those bodies? Or can a governor put them in receivership?
As for HOAs, if the state can take away your power to choose the city council and the mayor, making constitutional rights arguments about HOA elections would seem like a lost cause. So this case is significant. It is in the District Court now, meaning the lowest level of federal court where trials are held. But if it goes up on appeal to the Sixth Circuit, it could become a major case on voting rights and autonomy of cities. The Center for Constitutional Rights is co-counsel, challenging the emergency manager law. You can read up on it there.

Full scale assualt on Constitutional rights

Now take this important Constitutional challenge on the assault of rights of citizens of municipalities in the state of Michigan….

combine that with state laws governing Special Districts that allow developers to retain autocratic control of entire public-private subdivisions for many years…

and recognize that one in five Americans resides in HOAs under so-called “contractual agreements” that allow Association Boards to avoid Constitutional constraints on governance of residents and private property rights.

The reader can only conclude that civil rights and civil liberties are under full scale assault on several battle fronts in the U.S.

The question is, what can be done about it? What must be done to uphold the rights of individuals in the U.S.?

And the answer is, make the public aware of widespread injustice and assault on our rights. Share this information with family, friends, and anyone else who will pay attention. Be consistent with the message that our rights have value. Share that message over and over again. Repetition works.

To illustrate the power of repetition, consider the pivotal role that the HOA industry has played in eroding Constitutional and democratic principles in the U.S. Real Estate special interests have done so by repeating the following misleading and untrue talking points over and over for at least 5 decades:

  • HOAs protect property values.
  • People freely choose to live in an Association Governed Residential Development, and agree to its Covenants, Rules and Restrictions.
  • Most HOA residents are satisfied with their Association and its board
  • HOA residents freely elect fellow homeowners to the HOA Board
  • Homeowners should be willing to give up some of their rights in exchange for amenities and other benefits of living in a common ownership development
  • Homeowners’, Condominium, and Cooperative Associations are – according to leading the industry trade group – “Community Associations.”

Here’s the truth

In reality, Mandatory Membership Associations are nothing more than non-profit or not-for-profit corporations created as a way to collectively manage common interests, mainly for the benefit of a developer. The overall goal is to reduce liability and accountability for developers, wealthy investors, and HOA corporate entities, and to shift the bulk of financial liability onto the backs of American households.

And public-private special districts that remain under developer control, or those with state appointed supervisors, are similarly conceived under the arrogant notion that a few elite state bureaucrats know better than the general public how to best manage communities and tax dollars.

These are two sides of the same coin.

Enough is enough. It’s time for the people of the U.S. to unite and stand up for our rights. Starting today.





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