LarryKestenbaum.com
An improvised personal weblog.

I'm the creator and webmaster of PoliticalGraveyard.com
and the Washtenaw County Clerk / Register of Deeds.
Contact: kestenbaum@gmail.com


November 18, 2014

 

Friends,

It is an honor and a pleasure for me to serve as county clerk and register of deeds. The time is now approaching for me to ask the voters for another four years' tenure in this position.

Washtenaw County is one of the best constituencies I could imagine representing, but getting out a message to this electorate is a challenge. Our population of over a third of a million people is constantly refreshed with new arrivals, and relatively few take much time to focus on local politics.

To be successful in campaigning on this scale requires resources. In a new world where secretive donors and PACs sow anger and confusion with saturation media buys, I need to prepare by starting early and seeking broad support in smaller contributions from many individuals.

This is the way I have always done it. In my first campaign for county clerk in 2004, my Republican opponent and predecessor had more money, but I had three times as many contributors.

Here's what I'm looking for right now:

First, I am planning to hold a low-key fundraising party in the early evening of Presidents Day, February 16, 2015, co-sponsored with my colleague, County Treasurer Catherine McClary. I just need to find a venue.

If you have a suitable home or location and would like to volunteer it, please let me know.

Second, I will need some volunteers to help with this event.

And finally, if you feel moved to contribute to my campaign, and don't want to wait for Presidents Day, you can send a check to Kestenbaum for Clerk, P.O. Box 2563, Ann Arbor MI 48106.

Many thanks!


July 11, 2014

 

This has been a difficult couple of weeks for me and my office. If you've been following local news, you know that we printed ballots for the August 5 primary election which accidentally left out the name of one candidate for Ann Arbor city council. Some four hundred of those wrong ballots were sent to 3rd Ward absentee voters.

As soon as we discovered the error, we arranged for the ballots to be reprinted with the correct list of city council candidates. The new ballots were mailed out to absentee voters, a few days after the first set. Voters who submitted the incorrect ballot were contacted and asked to re-vote on the new ballot, which would replace their earlier one. Most did immediately.

Primary election day is still more than three weeks off, and most of the absentees had not yet voted. Probably very few votes on the incorrect ballots will be unreplaced by new ones -- less than ten, or maybe none at all.

So how did this happen?

Our ballots are programmed by a firm called Governmental Business Services (GBS). We transmit the information to GBS's programmer, and she constructs the ballot programming, which is used both to print ballots and to program the tabulators which count them.

We used to perform this function in-house, but we no longer have programmers on staff to do it.

The ballots were programmed based on the candidates who had filed for office. Later, one candidate, Bob Dascola, was added under federal court order. The ballots, including Mr. Dascola's name, were printed and sent out as proofs to all the candidates and all the local clerks.

As usual, some corrections had to be made. In particular, the city of Ypsilanti told us that their all-uncontested city council primaries should not appear on the August 5 ballot. The programmer was notified -- and she erroneously deleted the Ann Arbor city council primaries.

This error was detected the same day, and she was instructed to put the Ann Arbor city council primaries back on the ballot. Unfortunately, it wasn't possible to simply reverse the deletion, rather, she used the original list of candidates, which didn't include Mr. Dascola's name.

And we didn't notice this. Not I, not my election director, not the other members of the Election Commission.

Nor were new proofs sent to the city or anyone else, because late corrections are not thought to require this, and pressure to meet ballot deadlines precludes a second 48-hour review period.

We unknowingly sent the incorrect programming to the printer; the ballots were printed and delivered. The city clerk's office received them and mailed them to voters.

Administering an election requires getting thousands of details just right. Normally, we manage this quite well. Making a big mistake like this shatters the illusion that we are perfect. I am very embarrassed by this, and apologize to everyone who has been inconvenienced.

One local blog, Middle of the Left, has posted a long critical essay, titled "Why elected officials should not comment on blogs".

Obviously, being an inveterate blogger and commenter, I have many points of disagreement with this. Quotes from that article and my responses follow.

 

Should elected officials comment on blogs or underneath news articles?

Definitely. Certainly this has been my approach.

 

sometimes their comments can create a perception that is unintentional ... or is it?

I prefer that "perceptions" be accurate.

 

In previous posts ... I wrote about why I was upset that Bob Dascola was suing the City of Ann Arbor in order to run for city council even though he did not meet the residency eligibility requirements in our city charter.

I was rather startled that you took this position. That residency requirement was struck down decades ago, and the city has no right to revive it without amending the charter.

 

Now thanks to our County Clerk's office we have an election nightmare that no one could have imagined.

Yes, there's a problem with the ballot, and yes, it's my fault, at least in the sense that I could have prevented it. With all due respect, I think "nightmare" overstates the case.

 

So what happens now if a voter files an incorrect ballot but never sends in the correct ballot?

First of all, votes for governor, senator, and so on would all count. The only question is whether votes cast for 3rd ward city council on incomplete ballots would be counted or not.

There has been some dispute and uncertainty on this point. On Friday, the state Bureau of Elections told the Ann Arbor Chronicle that the votes SHOULD NOT count. On Monday, the Bureau came out with a statement that they SHOULD be counted. Subsequently, Dascola's attorney filed a motion in federal court, seeking an order that the votes NOT be counted. The city filed a response which took no position.

 

This is not just a city election where our city clerk is in charge of the ballots.. The county clerk/county election commission is the one responsible for the final ballot proofing and for the printing of the ballots for this election. So why is the city getting sued instead of the county? I think it is because the city runs the elections and counts the ballots, but the county clerk's office prints the ballots.

You are correct: the ballots are delivered to the city, used by the city, tabulated by the city, and never touched by the county. Questions about vote counting are appropriately directed to the city. Also, the parties (Dascola and the city) are already in court together, and the motion is part of their ongoing case.

 

Despite the fact that the county clerk's office is the party that screwed up, the city has to handle the fallout.

Local government and election administration in Michigan is complicated and often counter-intuitive.

Moreover, GBS, which employs the programmer who made the error, is voluntarily paying half the cost of reprinting the ballots.

 

Yet Dascola and his lawyer keep insinuating that this was the city's fault.

I'm guessing this is part of their legal strategy. I think normally a federal judge would refuse to rule ahead of time on these ballots, because the controvery is not "ripe" yet.

 

My first problem with this is that the Larry Kestenbaum, our County Clerk, has been silent about this whole situation. At least I have not seen or read any public statement from him. The buck should stop with him. He needs to explain how this could happen.

I have not been silent. The buck DOES stop with me.

But I don't think people are lacking an explanation about the course of events. You quoted a very accurate summary from the Chronicle.

The focus of our attention since we learned of the error has been on fixing the problem.

 

you would think that he would step up and explain that the mistake happened on his watch and had nothing to do with the city or the previous court case and decision.

Yes, it happened on my watch. Had I done a better job, I could have prevented it. It had nothing to do with that case.

 

He is throwing the city clerk under the bus in order to save his hide.

That is complete nonsense. The city clerk had nothing to do with this, and I am NOT casting any blame on her.

 

When the ballot was corrected due to the Ann Arbor/Ypsi races being edited incorrectly the city clerk was never presented with a second ballot to proof. Why not?

Under the law and the standard process, there is one round of proofs sent to all the candidates and local clerks. There are almost always corrections to be made after that. To flood everyone with a new round of proofs after every change would be a waste of time, and delay printing the ballots.

In this case, the change was not as minor as most late changes to the ballot programming. In retrospect, we should have realized this was not the usual situation. We wrongly assumed that the programmer restored the Ann Arbor races exactly as they were, rather than reconstruct them from scratch.

 

Was the rest of the county election commission told of the omission and the correction related to the City of Ypsilanti? It appears that they just blindly assumed everything was normal.

Yes, we did. Almost all of the discussion was over the incumbency designation in the Probate Court race. We went over the law to assure ourselves and the other candidates that such a designation was appropriate.

 

Why didn't Larry Kestenbaum who is part of the county election commission explain what happened? And if he did explain, then why didn't the election commission notice the mistake? We deserve some public answers.

The Election Commission used to do a very exacting reading of paper copies of every version of the entire ballot, to make sure they were correct.

In the last few years, as the number of ballot styles has multiplied and the time to review them been squeezed, often to mere hours, this task was neglected.

I assure you, it will not be neglected in the future. At our meeting on Monday (June 30) to approve the new 3rd ward ballots, we agreed that, from now on, no ballot will be authorized until we have adequate time to review it.

 

Larry Kestenbaum likes to comment on blogs/websites. He does it often and even gives quotes about his opinion on elections to local media. Plus, he likes to support specific candidates openly in elections that occur under his watch. He likes to support candidates who are listed in races on ballots that he and his office are responsible for printing.

Like every county clerk in Michigan, I am a partisan elected official. It can be inferred that, as someone elected on the Democratic ticket, I support others running on the same ticket with me. I am a political leader, and I do sometimes endorse specific candidates in primaries and non-partisan races. (As it happens, however, I have made no endorsements in the current city primaries.)

Some other county clerks, past and present, have been more involved than I am, even serving as chairs of their political parties.

Michigan's election system, top to bottom, is run by partisan officials. The Secretary of State is partisan. Every county clerk and every township clerk is partisan. State and county boards of canvassers, which examine and certify the results of every election, are each made up of two Democrats and two Republicans.

And every election worker in every precinct is required to be partisan, because every sensitive task requires one Democrat and one Republican to handle it together.

 

That is all well and good until...the county clerk's office screws up and you now look biased or worse.

Yes, we made a mistake. I would much rather this not have happened. I don't get how this "looks biased".

You then quote my comment on the court decision in Dascola's case. Apparently I did not express myself clearly enough. It had nothing to do with the specific candidate.

My point was that the charter provision was rightly disregarded as void in 1999, so there is absolutely no justification for reviving it in 2014.

Plus, it's just grossly unfair to apply it to others (now) and not to me (in 1999)!

 

So it appears that Kestenbaum is a Dascola supporter.

I don't live in the 3rd Ward and have made no endorsement there.

I would have praised the federal court ruling no matter who the candidate was. It's the principle of the thing.

 

Would 400 disqualified AV ballots help his preferred candidate?

Now really, this is verging on tinfoil hat territory. You think I would deliberately embarrass myself to fraudulently influence a city council primary?

 

Kestenbaum's comments about Dascola are now read in a different light now that his office may have given Dascola up to 400 votes if the court rules that no incorrectly printed ballots can be counted.

Four hundred votes?! We took quick action to remedy the error, and provide the absentees with correct ballots. By Election Day, the number of incorrect ballots that will need to be counted will be less than 10, maybe as low as zero.

 

I am not actually saying that Kestenbaum did this on purpose, intentionally, with any ill will in mind,

Thank you.

 

but the pro-Dascola commenting along with his comments in news articles sure makes you ponder the question.

It does? You're really pondering whether I deliberately engineered this whole screw-up?

 

Kestenbaum is also featured in a Ann Arbor Observer July 2014 article speaking about the judge races for the August 14 election.

Nitpick: the election is on August 5.

 

He gives his opinion on who has the better chance at prevailing in the election and who he endorses. Really? Is this appropriate? Should the person in charge of printing the local election ballots be giving his opinion on who is his preferred candidate or on who might win the race?

See the discussion above. Note that, twice every four years, those ballots include MY name, and that of my opponent. During those times, I certainly urge people to vote for me.

I stake my reputation on being fair, but I can hardly claim to be neutral.

Moreover, while I am the county's chief election official, that is not my whole job. Based on number of staff, the election division is the smallest one in my office.

Again, each county and township clerk is a partisan elected official, but Michigan has a well-regarded election system which rarely generates accusations of bias or fraud.

 

Yes, I know that this is a partisan office, but maybe it shouldn't be? Of all elected officials, the one who runs the elections and prints the ballots should be neutral in the race, don't ya think?

Some states have non-partisan officials in charge of elections. That has not been a panacea. For example, the creator of Florida's infamous butterfly ballot in 2000 was elected on the non-partisan ballot.

Unfortunately, in Michigan, nonpartisan offices such as judgeships tend to be won by candidates with appealing names, especially Irish ones. Why do you suppose there are so many Hathaways on the Wayne County Circuit Court?

If you really want neutrality, the election officials should not themselves be elected. To achieve that would take many changes to the state constitution. Did you support revision of the constitition when it was on the ballot in November 2010? I did!

 

Notice I said non-political NOT non-partisan necessarily.

Partisan officials are partisan. I think that is inescapable.

 

I wish [the county clerk's office] would take real responsibility instead of indirectly insinuating that the city clerk was at fault.

Again, I have never said or insinuated that the city clerk is at fault. She is not!

 

I don't like it when any elected official comments on articles and blogs especially on controversial topics.

Are you serious? So elected officials shouldn't send out newsletters or campaign literature either? I shouldn't testify at state legislative committee hearings?

 

They should not argue or debate the public in a forum setting.

Members of Congress shouldn't hold those town hall meetings?

 

They should not show that their mind is made up before all the facts about an issue are brought forward. They are supposed to listen to the public and take all opinions in to consideration. How can they actually listen if their strident opinions are being forced on to the public in a comment under an article or a blog?

A blog comment "forces" my opinion on to the public? My goodness!

I think you have a very different notion about the role of an elected official than I do.


January 21, 2014

 

(I wrote this a few weeks ago, but I thought it might be worth sharing here.)

I'm a little exasperated with some colonial New Englanders. I came across them while trying to figure out the kinship between some politicians.

You see, some time in the seventeenth century, in Connecticut, Stephen Freeman and Hannah Astwood got married, and had a daughter, Sarah Freeman. Sarah Freeman married Thomas Judd, son of William Judd, and had a son, William Judd.

Sounds totally normal, no?

But just once wasn't enough. They did it all TWICE.

Stephen Freeman (born 1580) married Hannah Astwood (born 1584), and had a daughter, Sarah Freeman (born 1612). Sarah Freeman married Thomas Judd (born 1608), son of William Judd (born 1583), and had a son William Judd (born 1636).

Stephen Freeman (born 1630) married Hannah Astwood (born 1640), and had a daughter, Sarah Freeman (born 1669). Sarah Freeman married Thomas Judd (born 1667), son of William Judd (born 1636), and had a son William Judd (born 1689).

A few of those birthyears are approximate, but you get the idea.

And yeah, the 1636-born William Judd is the same guy in both scenarios.

What are the odds of all this happening by chance? Connecticut in 1680 had less than 10,000 people.

Sure, a lot of them were named Stephen and Hannah and Sarah and Thomas and William.

But Astwood?

I was thinking somebody must have transcribed a bunch of this stuff wrong.

But the more I look, the more actual documentation I find for BOTH sets of circumstances.


November 5, 2013

 

Today, I had to run up to Lansing to testify before the Michigan House Elections and Ethics Committee.

I didn't bother to complain about a hearing on election law changes being held on Election Day; others had done that already.

The package of bills under consideration would restrict which election dates schools, libraries, and local governments could put property tax increase proposals on the ballot: in August primaries or November general elections, and not at the February and May elections.

The sponsors of these bills, and evidently most of the committee, are concerned about the possibility of tax increases ("millages", in Michigan parlance) being slipped through with few people noticing.

I was speaking, as a county clerk, on behalf of the Michigan Association of County Clerks. We wanted to convey that the little "fix" in these bills misses the point about larger problems with Michigan's election schedule.

Here's what I said:

 

Less than ten years ago, an election could be held on practically any day of the year. Even regularly scheduled elections were all over the place: February and April elections in some cities, March elections in villages, June school board elections, in addition to August and November elections in both even and odd years. Some elections were on Monday, others Tuesday.

Moreover, any taxing jurisdiction could call a special election for a millage at any time. There were notorious "stealth" elections for passing significant tax increases with little public awareness.

The election consolidation law, which took effect at the beginning of 2005, limited most elections to just four dates, one each in February, May, August, and November. At the time, this seemed like a radical step.

But the concern behind these new bills shows that the four election schedule did not go far enough. February millage elections can still be "stealth" elections, just like in the bad old days.

The fundamental problem here is that we allow for having elections every 90 days. That is too much! Let's get rid of the awkward February and August dates, and consolidate ALL scheduled elections to May and November.

The current August primary (followed by a 14 day canvass period, followed by recounts) is too close to November. It's very difficult to meet federal deadlines for getting November ballots printed and mailed to overseas military voters. To miss those deadlines would mean having to hold an election open past Election Day – a consequence that Congress intended to be onerous.

Other states in our region, including Ohio and Indiana, hold their primaries in early May. That's because it's the most sensible time for primary elections.

May and November are six months apart; this evens out the election workload through the year. That would be the most efficient and thrifty schedule we could have.

Why should Michigan taxpayers be spending unnecessary millions of dollars on more frequent elections that draw little participation?

In partisan races below the state level, the real race is usually in the primary. Since primaries are critical for determining leadership at all levels of government, we ought not relegate them to the depths of summer, when many people are away.

Two specific concerns with these bills:

(1) The definition of which millages go on which election dates needs to be crystal clear.

(2) The lengthy ballot language (full of legalese) required for millage elections needs to be greatly reduced, to save space on the ballot. We want to avoid having to use two physical ballots per voter.


The committee members showed little reaction to my speech.

The only question was about all the arguably unnecessary things which a ballot question raising property taxes may (or may not) be legally required to explicitly mention on the printed ballot itself, such as the names of every tax increment financing district in the jurisdiction. Of course, the Legislature has the power to change what is legally required.

After that, I hurried back to Ann Arbor.


November 1, 2013

 

When I listen to a song, my mind often seizes on certain sets of words, a line or two, which stay with me and become the focal point whenever I hear the song again. These both reflect and have influenced my ways of thinking, speaking, and writing.

So here's a small collection of personally memorable lines from songs — meaningful, funny, evocative or ridiculous. You'll recognize many of the songs, I'm sure. You may even recognize the way these words and themes and rhythms show up in my own communications.

~ A letter of marque came from the King
   To the scummiest vessel I'd ever seen.

~ Always hoped that I'd be an apostle
   Knew that I would make it if I tried
   When we retire, we can write the gospels
   So they'll still talk about us when we've died

~ A mistress to magicians, and a dancer to the gods

~ And here I sit so patiently
   waiting to find out what price
   you have to pay to get out of
   going through all these things twice

~ And I lay traps for troubadours
   Who get killed before they reach Bombay

~ And I recall the gentle courtesy you showed me as I tried
   To dissemble in politeness all the love I felt inside

~ And the goldenrod he has cast in
   To see what the lake might yield.

~ An old man wandering lonely.
   Taking time the only way he knows.

~ Blow your whistle, up through the pines
   Out across the mountains to the Clinchfield line

~ Down among the weeds and tincans
   Soon the light was growing dim
   When she let me up for air, it's
   No time like now to learn to swim

~ Es vet a poyk tun undzer trot -- mir zaynen do!

~ Even though she sleeps upon your satin;
   Even though she wakes you with a kiss.
   Do not say the moment was imagined;
   Do not stoop to strategies like this.

~ Get ready for the big time
   Tap dancing on a land mine

~ Guys I went to school with want to see me outside.

~ He looks around and around
   He sees angels in the architecture

~ He said, "I love you"
   She said, "You poor jerk."

~ How do the angels get to sleep
   When the Devil leaves his porch light on?

~ I can't complain, but sometimes I still do.

~ I'd like to get some sleep before I travel
   But if you got a warrant, I guess you're gonna come in

~ If I shiver, please give me a blanket
   Keep me warm, let me wear your coat

~ I found a ticket in my pocket, all the way from Port of Spain
   And the warm wind from the Indies carried me again

~ If the real thing don't do the trick
   You better make up something quick

~ I know what your game is
   You're falling like a star
   From heaven to Calcutta
   Did you think you'd fall so far?

~ In the east, the wind is blowing
   The boats across the sea
   And their sails will fill the morning
   And their cries ring out to me

~ I've seen a rich man beg, I've seen a good man sin, I've seen a tough man cry
   I've seen a loser win, and a sad man grin, I heard an honest man lie

~ I was lying in a burned out basement
   With the full moon in my eyes

~ I would send a message to find out if she's talked
   But the post office has been stolen, and the mailbox is locked

~ Je ne demande rien pour me d├ędommager

~ Let me hear your balalaika's ringing out
   Come and keep your comrade warm

~ Lights flicker from the opposite loft
   In this room, the heat pipes just cough.

~ Listen son, said the man with the gun
   There's room for you inside

~ Look out, you rock 'n rollers

~ Mercy on the mourners, someone's mourning all the while.

~ No sugar tonight in my coffee
   No sugar tonight in my tea
   No sugar to stand beside me
   No sugar to run with me

~ Now watch what you say or they'll be calling you a radical,
   Liberal, fanatical, criminal.

~ Only mad dogs and Englishmen go out in the midday sun.

~ People couldn't believe what I'd become.

~ Rebels storm the palace, what do they find
   In the cabinets of power, secrets left behind?
   Is it judgment, judgment stripped to the bone?
   No, it's 19-carat bath-taps, ivory telephones
   Black satin sheets, crates of German beer
   Pornographic movies, a shattered chandelier
   Sharkskin tuxedos, crystals on the sleeve
   Closets full of objects you would not believe

~ Return to sender
   Address unknown
   No such number
   No such zone

~ She tells me, keep your money
   Some things you only get for free

~ 66 is modern poetry; 44 is modern art
   66 ain't got no mystery; 44 ain't got no heart.

~ Spider spins his heart out, fox goes home alone
   Wisdom lies in wait for me, a snake beneath a stone

~ Staccato signals of constant information

~ Take a minute to concentrate
   And she opens up her eyes

~ The angel opens her eyes
   Pale blue colored iris, presents the circle
   And puts the glory out to hide, hide

~ The little towns blossomed
   soon there were many
   All scattered like fireflies
   across the dark night.

~ The papers holds their folded faces to the floor
   and every day the paper boy brings more

~ There's a train, every day, leaving either way
   There's a world, you know, there's a way to go
   You'll soon be gone, it's just as well
   This is my opening farewell

~ The rivers are full of crocodile nasties
   And he who made kittens put snakes in the grass

~ The smell of hospitals in winter

~ The waitress is practicing politics

~ They took all the trees, and put em in a tree museum
   And they charged the people a dollar and a half to see them

~ Through the flower scented garden
   Down the steps into the street

~ Voices red with anger, burning in my ears
   This is bedlam calling, roaring down the years

~ When I was the patron saint of losers
   Strange days came knocking on my door

~ When Love laid out her table, were you down there with the bums?
   Did I see you in the alley? Were you grateful for the crumbs?

~ When we meet again, introduced as friends
   Please don't let on that you knew me when

~ Who are these amigos, all scattered like dry leaves?
   The radio says they are just deportees.

~ Who's that lounging in – my – chair?
   Who's that casting devious stares in my direction?
   Mama, this surely is a dream

~ Wise guys are grinning, street lights are spinning
   The night is just beginning, and it comes on strong

~ You know there ain't no Devil, there's just God when he's drunk

~ You're the joke of the neighbourhood
   Why should you care if you're feeling good?

~ You've been all over
   And it's been all over you


October 26, 2013

 

Among a recent catalog of the downsides of living in Ann Arbor was the following:

 

3) The erosion of funkiness. Change is inevitable, yes, but do we really need CVS, Walgreen, and 7-11 on State Street? I'd much rather have Shaman Drum, Michigan Book & Supply, and the Frieze Building. I mourn the losses of Village Corner and Blimpy. Sometimes it feels like Ann Arbor is a theme park of sorts, where you can come for your pretend dose of anti-corporate counterculture and radical community. And you can get a Slurpee with that!

This is terrible, yes, but local culture and institutions are rapidly disappearing everywhere in the U.S. Just compare any town this size or smaller with the way it was 25 years ago, and count the unique things that are gone today. I'm thinking of places like Sedalia, MO, or Watertown, NY, or Amarillo, TX, or Sebastopol, CA. Collectively, the losses are just staggering.

(There's another side to this, of course: "the way things used to be" is usually seen through rose-colored glasses, as if it were a lost golden era. Standardization, nationalization, and the Internet have brought tremendous benefits during that time. Still, one of the consequences is the declining significance of place.)

Ann Arbor, as usual, is late to the party. A couple of examples from the political realm:

(1) When we arrived here in 1990, Ann Arbor was a veritable museum of archaic political structures. Not just the old-fashioned model of a partisan, ward-based city council, almost unique in Michigan and still in force today, but ward-based political parties (a "ward chair" of either party was an important figure) which were continuously active and held meetings, raised money, recruited candidates, etc. City elections were held on the first Monday in April, a date the rest of the state abandoned with the 1963 Constitution. "Democrat" and "Republican" had distinctly local meanings; Ann Arborites disdained the way those labels were used in Lansing or Washington. And the city was just about the very last place in the Midwest to use antique lever-handle voting machines, wonderful for voters, but terrifyingly intricate, and full of delicate parts that were no longer being made.

Ann Arbor's electorate, constantly refreshed with new arrivals from elsewhere, ultimately had no patience with these local folkways. City elections were moved to November, and the ward parties quickly died. The nationalization of American politics washed over us; Ann Arbor Democrats and Republicans are now exactly like Democrats and Republicans everywhere else in the U.S. And optical scan paper ballots, safe and sane and recountable, are the rule throughout the state.

(2) For years after most local newspapers had whittled down local content down to almost nothing, the Ann Arbor News continued to (for example) profile and photograph every local school board candidate, including the ones in outlying areas like Lincoln or Saline. Reporters were sent to every meeting of local legislative bodies. News columns were freely slanted according to the publisher's feuds and biases, not just in local politics and business, but in favor of certain high school sports teams and against others. Everybody hated the News, but almost everybody read it. Few realized that its style of journalism was so far out of step with the times.

Until, suddenly, it was taken away. Now, everybody mourns it. Even my 15-year-old daughter is still angry that executives in New York decided to kill our local paper. The number of professional local journalists is now a small fraction of what it once was. Only very engaged townies who have been here for years pay much attention to the boutique substitutes that have sprung up. The antics of local politicians are no longer immediate common knowledge, and participation in local elections is falling.

Just exactly like everywhere else in America.


October 23, 2013

 

Those of us of a certain age, who watched a lot of television in 1963 to 1970, are familiar with the theme music from the 1960 Western movie "The Magnificent Seven".

That's because it also became the theme music for Marlboro cigarettes, in thousands of commercials which were an inescapable part of TV viewing in that era. The Marlboro man was a rugged cowboy, usually on horseback, in a wide Western landscape. Eventually the whole set of images could be evoked with the phrase "Marlboro Country," backed with this tune.

Of the music, Wikipedia says: "Along with the iconic main theme and effective support of the story line, the score also contains allusions to twentieth-century symphonic works, such as the reference to Bartok's Concerto for Orchestra, second movement, in the tense quiet scene just before the shoot out."

Recently, I had occasion to play a recording of this theme in the presence of my 15-year-old daughter. She didn't recognize it, and insisted that she had never heard it before, never, not ever.

So, what does it make you think of?

Cowboys, she said.

That's one sturdy cultural meme!

This piece of classical music has no lyrics, no hoofbeats, no gunfire, no saloon piano. It alludes musically to the work of a Hungarian composer. Yet the tune, or the style, has become so encoded with cowboys and the Old West that it's obvious even to someone hearing it for the first time.

Wow.


October 18, 2013

 

DeBoer v. Snyder, a case in the federal district court in Detroit, may lead to a ruling for marriage equality in Michigan. A trial is scheduled in February 2014.

Both sides had moved for summary judgement, and at a hearing last Wednesday, October 16, a ruling mandating same-sex marriage was anticipated. Many county clerks around the state, including myself, were ready to issue marriage licenses to same-sex couples.

Michigan law provides for a three-day waiting period between the application for a marriage license and the issuance of a license. However, a county clerk has the authority to waive this waiting period. Individual counties handle this very differently. In some counties, such as Calhoun, the waiting period is automatically waived for all applicants. Others waive the waiting period when an applicant gives a reason to do so. Still others, including Washtenaw, charge a fee, ranging from $5 to $100. Our fee is $50, set by the Board of Commissioners at my request. Previously, the fee had been five dollars. But this fee, locally determined, can also be waived by the county clerk.

Given that same-sex couples in Washtenaw County had waited, in some cases, decades for the opportunity to become legally married, I announced that the $50 fee would be suspended, for all applicants regardless of genders, from the time of the decision until the end of the next business day.

On the 16th, a celebratory crowd came to my office, and 66 couples took numbers to apply for a license if and when a decision came down. Clergy and judges were on hand to perform marriages.

The judge, confounding expectations, rejected both motions for summary judgement, and set a trial date in February.

The day ended in disappointment, but I know marriage equality is coming.

I received many expressions of thanks and support, and only one email message of opposition from a constituent.

In my reply to the critical note, I attempted to explain the legal process under which I expect "Marriage Protection Amendment" to be overturned.

I'm sharing both letters here, in hopes that this exchange might be helpful to others.

 

County Clerk Kestenbaum,

I demand that you honor our constitution and the will of the people of Michigan who approved our Marriage Protection Amendment on the ballot in 2004. Please do not issue same-sex marriage licenses no matter what Judge Friedman rules.

Thank you.
[name omitted]
Saline, MI



Dear Mr. [name omitted]:

Thank you for your letter – and that's not just a greeting. I seriously appreciate your interest in the work of my office, and your willingness to contact me directly with your criticism and demand.

As you have surely heard, Judge Friedman rejected calls to issue an order today, and instead will proceed with a trial next year. At that time, the parties, and others who are concerned, will have the opportunity to present evidence and arguments.

In the meantime, at least until a final ruling is at hand, my office will continue to issue marriage licenses only to opposite-sex couples.

I took an oath to uphold the constitution of the United States, and the constitution of the State of Michigan, and I will do so to the best of my ability. All of the other county clerks in Michigan are doing the same.

Under our system of government, the United States Constitution is the supreme law of the land, and the U.S. Supreme Court is the final word on interpretation of the United States Constitution.

Other federal courts are required to follow the Supreme Court's rules and precedents, and those courts carry the authority which has been delegated to them.

If a federal court finds that a state statute, or a state constitutional provision, violates the United States Constitution, then the conflicting provision would be void under the Supremacy Clause. This has happened many times in our history.

If a law is ruled to be void, it disappears. It is no longer part of the body of laws that public officials are sworn to uphold.

Very often, a legal challenge to a state enactment is based on the argument that it violates the Fourteenth Amendment to the U.S. Constitution, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws."

Those challenges are usually dismissed. A court must reconcile the principle of equal protection with the reality that most laws necessarily discriminate in some way.

To oversimplify slightly: as long as the discrimination is not by race [or religion], a law is upheld if there is a "rational basis" for whatever kind of discrimination takes place.

The basic question before Judge Friedman is whether or not there is a rational basis for prohibiting marriages by same-sex couples.

I realize that the answer to that question seems obvious to you. I don't agree, but my personal opinion is legally irrelevant. The opinion that matters is that of the U.S. Supreme Court, and other federal judges acting under its authority.

I very much understand the frustration with a system that gives unelected judges this kind of power. Gary Glenn, of the American Family Association, is quoted as saying, "One Detroit lawyer in a black robe doesn't have the legitimate constitutional or moral authority to overturn the will of millions of Michigan voters."

Mr. Glenn is mistaken about that. A federal judge does have the constitutional authority, hence, he also has moral authority.

It would be impossible to have a government based on a written constitution, without an authoritative way to interpret it. If everyone were allowed to act on their own personal interpretation, the system would break down very quickly.

I would be glad to meet with you to discuss this further.

Very best wishes!

Lawrence Kestenbaum
Washtenaw County Clerk / Register of Deeds


There was no reply.


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