ACLU-NJ Warns Lawmakers That AC Takeover Plans Raise Constitutional Concerns

May 24, 2016

Governor and Senate President’s proposal would jeopardize democratic values in Atlantic City

NEWARK – The ACLU-NJ sent a letter today warning lawmakers of constitutional and civil rights concerns raised by S1711 and the companion Assembly bill, A2569, the Atlantic City recovery legislation, which provides for state takeover if the city does not put in place a plan within 150 days that the state determines is "likely to achieve financial stability." S1711/A2569 would then allow the state to take over Atlantic City anytime within five years after the 150-day period. The letter urged members of the state Senate and Assembly, as well as Governor Chris Christie, to preserve local control for Atlantic City residents in the compromise governing Atlantic City's financial recovery, and to ensure that any compromise does not take a form that unduly impacts the voting rights of Atlantic City residents.

"The takeover plan included in the proposed compromise is exceedingly broad and raises several constitutional and civil rights concerns," said ACLU-NJ Executive Director Udi Ofer. "The state may unilaterally decide on a state takeover, which would then cede the rights of Atlantic City residents, who are predominantly low-income people of color, to an unaccountable and extremely powerful state overseer, essentially replacing a democratically elected local government. Fixing Atlantic City's financial situation is an important priority, but any solution must respect the rights of Atlantic City residents to a local government that is accountable to the people, and not undermine the right to vote."

The letter (PDF) calls the plan an unprecedented grant of locally held power to the state government. The ACLU-NJ explains that the plan puts residents' voting rights in jeopardy and disparately impacts low-income communities of color, which both raise concerns regarding equal protection of the law.

Under S1711/A2569, Atlantic City has 150 days to put forward a five-year fiscal recovery plan for State approval. If the State rejects the plan after 150 days, or any time in the five years thereafter, the State would take over all of Atlantic City municipal government's functions, including any mayoral responsibilities that the state determines could relate to financial rehabilitation. All city council functions would be subject to State review and veto, and the State would be empowered to dissolve any municipality, board, commission, or department.

Such a sweeping grant of authority would allow the State to override municipal decisions, whether on allowing residents to use public bathrooms that match their gender identities or on creating a civilian review board to oversee police, to cite examples the ACLU-NJ mentioned in its letter. These actions would trivialize the right to vote by essentially removing all power from locally elected public officials.

Just as troubling, the State itself exercises total discretion in determining whether to take over Atlantic City. The bills provide for the takeover if the Commissioner of Community Affairs determines, in his "sole and exclusive discretion, [that] the recovery plan is...not likely to achieve financial stability for the municipality."

Additionally, removing local control from low-income communities of color also raises equal protection concerns. The vast majority — 84 percent — of Atlantic City residents are people of color, compared with 41 percent statewide. The takeover bill refers specifically to a municipality's property values, a proxy for the wealth of its citizens, meaning the people set to lose their local democratic rights under this bill are those who live in poor communities.

"Removing local accountability for leadership is troubling, and we urge the Legislature to consider the long-term rights of Atlantic City residents in any compromise," ACLU-NJ attorney Rebecca Livengood said. "The difficult choices involved in returning Atlantic City to prosperity must be subject to local democratic review. The right to vote is fundamental, and removing all power from local elected officials renders that right meaningless."

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