When high-priced lawyers swoop on a courthouse to argue a case that can only come out one way, you know taxpayers must be picking up the tab.
Litigants are never that dumb with their own dollar.
It is the taxpayers of Kenner who are being taken for a ride on this occasion, but our sympathy should not be unalloyed. The stupid rule that gave rise to this lawsuit wouldn't be there if they hadn't voted overwhelmingly for it.
Most of the blame, however, belongs to the city council, which put a charter amendment on the ballot in 2012 decreeing that unclassified employees “shall not participate in any political activity on behalf of any city candidate in the City of Kenner elections.” The council had twice before tried to impose such a ban by ordinance but pulled back when legal advisers pointed out its patent unconstitutionality.
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No true Louisiana politician is going to be deterred by such technical niceties as the First and 14th Amendments, however, and the council sought to accomplish by plebiscite what it could not legislate, evidently failing to appreciate that the Constitution is there to preserve the Republic from the wisdom of the masses.
Municipal rules already forbade non-civil service employees to politick during work hours, but they were naturally keen to support the boss and his allies in their spare time.
When a bunch of them challenged the charter amendment in court, federal judge Nanette Jolivette Brown, in issuing a temporary injunction, went on at such length about its constitutional infirmities that there can be no doubt how she will eventually rule.
Nobody, save politicians looking for advantage in the endless tin-pot power struggles that are Kenner politics, will have reason to mourn the amendment when it is finally put out of its misery. Council members, who managed to persuade 70 percent of the voters that they were striking a blow for fair elections with the amendment, had an obvious ax to grind.
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The lawsuit left Mayor Ben Zahn in a cleft stick. Not only did his office require him to uphold city law, but he was named as a defendant. He cannot have been an enthusiastic champion of the amendment, however, since it harms his own re-election prospects. City employees whose jobs depend on his favor could round up plenty of votes if allowed to play a campaign role.
That is the way the system has always worked. While classified employees are required to abandon partisan politics in return for job security and other perks, their colleagues who serve at hizzoner's pleasure have retained the same rights as the rest of the citizenry. After an election, the winner's friends get jobs, and everyone else gets good government.
One objection to politicking by public employees is that they can be forced to campaign for the boss. But, if your livelihood is at stake, no coercion is required to put up a yard sign. In any case, if the object is to ensure the integrity of the democratic process, locking voters out of it is an odd way to achieve it.
If, indeed, voters is what unclassified employees are under the charter amendment, which proscribes “any political activity” without defining it.
It is unlikely that the council's intent was to disfranchise the mayor's supporters, if only because that exceeds the authority of municipal officials. But, as Brown observed, “the city has not adequately explained how the plain text of the Charter Amendment can be interpreted such that it does not include the act of voting or simply stating who one is voting for.”
In order to secure a temporary injunction, litigants must demonstrate a “substantial likelihood of success” at trial. Brown decided the plaintiffs had done so here by showing that the charter amendment is too vague and “overbroad” to be constitutional, and that it violates their right to free speech. Her decision can have surprised nobody.
Kenner taxpayers are already on the hook for the law firm hired by the city to defend the charter amendment, but there will be plenty more billable hours to come as the case drags on. Once the plaintiffs have won the case, they will expect to be awarded their lawyers' costs as well as damages, so taxpayers will be left wondering how they ever got hornswoggled into this one.
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