A case of first impression addressing the legality of term limits for council members of Texas home rule cities1 presents this issue:
Motivated by frustration with their political institutions, can citizens of a Texas home rule city legally trade a part of their birthright (the less fettered power to choose their rulers) for a mess of pottage (de facto government by unelected albeit capable and dedicated career public servants)?
Invoking the account of Esau2 and for the reasons stated below, this Court answers in the affirmative.
It is appropriate to begin with what this matter is not: a political philosophy debate about the merits and demerits of term limits. On this, reasonable minds have differed since the founding of the Republic. Compare Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in VI The Writings of Thomas Jefferson 385, 389 (Andrew Lipscomb & Albert Bergh eds., 1903) (“I dislike and strongly dislike [in the new Constitution] the abandonment, in every instance, of the principle of rotation in office....”) withThe Federalist No. 53 (James Madison) (“No man can be a competent legislator who does not add ... a certain degree of knowledge ... acquired by means of ... actual experience in the station which requires the use of it.”) withThe Records of the Federal Convention of 1787, 632–33 (Max Farrand ed., 1937) (Elbridge Gerry [of gerrymandering fame] listed “the duration and re-eligibility of the Senate” as reason for not signing Constitution); cf. David Broder, Washington Post Writers Group, The Problem of Term Limits,Dallas Morning News, February 9, 1994, at 25A (“Moving legislation ... takes experience, the one commodity that the term-limits are determined to eliminate from legislative bodies.”); George F. Will, Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy 3 (1992) (term limits necessary to restore government to competence); Rick Casey, San Antonio Light, July 12, 1990 (opposing term limits because of too much power with city staff); T.R. Fehrenbach, The San Antonio Express News, May 22, 1994 (term limits are “our best long-range hope for incisive reform of *589 government.”). Indeed, the sovereign people of the United States exhibited ambivalence on the issue by electing Franklin Roosevelt four consecutive times to the presidency, but shortly thereafter imposed a two-term limit through appropriate processes of amending the Constitution.3
Moreover, this Court is not sitting in loco parentis to decide whether unlimited or limited service on a city council results in better government for the citizenry. If history judges the term limits movement an idea whose time should not have come, the evolutionary experiment called democracy includes the right to make mistakes and, ultimately, delivers just about the kind of government voters deserve. On a personal note, this author finds inconsistency between the ideal of a well-informed electorate choosing its leaders and the reality of lazy reliance on term limits in lieu of the vigorous exercise of the right to vote for which so many paid so much. But of course it is not an ideal world. Further, it is doubtful that supporters of term limits seek to fly on commercial airships piloted by rookies to be intellectually consistent with their philosophy about the piloting of the ship of state.
What is before the Court is City of San Antonio Ordinance 73584 (“the Ordinance”), amending the city charter to include a term limitations provision,4 and its legality in relationship to other higher constitutional and statutory provisions, both state and federal. The City of San Antonio is a home rule city. Tex. Const. art. XI, § 5. As a general proposition, citizens of home rule cities may write their basic rules so long as charter provisions do not conflict with higher law. Id. For example, a city charter clearly could not prevent women from voting in city elections in contravention of the Nineteenth Amendment to the United States Constitution. This Court is petitioned to make the initial judicial determination of that relationship.
BACKGROUND
The plaintiff, Helen Dutmer, a citizen who has given many years of service to the community as a San Antonio City Council Member and Bexar County Commissioner, filed as a candidate for an additional term on city council in excess of that allowed by Ordinance 73584. City Clerk Norma Rodriguez, following her duty to enforce the city charter, disallowed the filing. Mrs. Dutmer challenges the enforcement of the Ordinance, contending it is in conflict with and therefore must legally yield to higher authority because:
1) the term limits provision to the city charter violates section 2 of the Voting Rights Act;
2) the term limits provision violates plaintiff's First and Fourteenth Amendment rights guaranteed by the United States Constitution;
3) the term limits provision is unconstitutional because it imposes an additional eligibility requirement which is not expressly provided by the Texas Constitution and the laws of the State of Texas.
The defendant City of San Antonio contends Mrs. Dutmer has no standing under the Voting Rights Act to challenge the term limits amendment and further argues it is not precluded by the Texas Constitution and the United States Constitution from amending the city charter to adopt term limits for elected city council members.
* First, plaintiff must suffer an “injury in fact—an invasion of a legally protected interest, which is (a) concrete and particularized, and (b) actual and eminent, not conjectural or hypothetical.”
* Second, there must exist a causal connection between the injury and the conduct of which is complained.
* Third, it must be likely, and not “merely speculative,” that the injury will be redressed by a favorable decision.
Because it is uncontroverted Mrs. Dutmer is not a member of a group protected by the Voting Rights Act, she cannot meet the standing requirements of having suffered an “injury-in-fact”; she has not alleged she has been denied the opportunity to participate in the electoral process by reason of her race or language. Mrs. Dutmer does allege the term limits provision has a “potential for creating inequities in the opportunities of minority and white voters to elect their preferred representatives.” Assuming for the sake of argument such potential exists, allegation of some possible future harm does not present a controversy ripe for adjudication. Laird v. Tatum, 408 U.S. 1, 12–13, 92 S.Ct. 2318, 2325–26, 33 L.Ed.2d 154 (1972).
This Court holds Mrs. Dutmer is not a proper party under the Voting Rights Act and therefore has no standing to assert a voting rights violation. The Court does not reach the substance of the allegations. Summary judgment is granted in favor of the City of San Antonio without prejudice to the pursuit of voting rights claims by a proper party.
THE CONSTITUTIONALITY OF TERM LIMITS
A. The Ordinance in Relation to the United States Constitution
Mrs. Dutmer asserts Ordinance 73584 violates her First and Fourteenth Amendment rights. Though the Supreme Court has not determined the constitutionality of term limits upon municipal elected officials, it has provided a framework for evaluation of state election laws. Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983). This analysis requires balancing the magnitude of the asserted injury to a plaintiff's federal constitutional rights against the precise interest asserted by the state to justify the election law. Id. (referred to as the “two-prong test”). When evaluating the defendant's interests, lower courts must consider the legitimacy and strength of the state's interests and the extent to which those interests make necessary the burden on plaintiff's rights. A state's “important regulatory interests generally are sufficient to justify reasonable, nondiscriminatory restrictions.” Id. at 788, 103 S.Ct. at 1570;see also Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992). Even though the right to vote is fundamental, compared to the non-fundamental right of candidacy, not all candidate restriction rules “impose constitutionally suspect burdens on voters' rights to associate or to choose among candidates.” Anderson, 460 U.S. at 788, 103 S.Ct. at 1569;see also Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843–44, 73 L.Ed.2d 508 (1982) (right to candidacy is not fundamental right).
To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualifications of *592 voters, the selection or eligibility of candidates, or the voting process itself, inevitably affects—at least to some degree—the individual's right to vote and his right to associate with others for political ends. Nevertheless, the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.
Miyazawa v. City of Cincinnati, 825 F.Supp. 816 (S.D.Ohio 1993), aff'd,45 F.3d 126 (1995), is instructive. Plaintiff argued an amendment to the city charter limiting the terms of city council members was unconstitutional under the First and Fourteenth Amendments of the United States Constitution and the Ohio Constitution. Miyazawa, 825 F.Supp. at 819. The First Amendment grants voters the right to associate to express their views through their candidates and their votes, but there must be as a practical matter substantial regulation in order for elections to be fair. Id. at 820. The Fourteenth Amendment guarantees equal treatment under the law, but the right to run for office is not an unlimited one. Id. at 821. To determine whether the term limits violated plaintiff's constitutional rights, the court applied the two-prong test of Anderson. Id. at 819–23 (citing Anderson, 460 U.S. at 789, 103 S.Ct. at 1570). First considered was the character and magnitude of the alleged injury to the rights protected by the First and Fourteenth Amendments. Miyazawa, 825 F.Supp. at 819–22. Second, the interests of the city were identified and evaluated. Id. at 822–23. The term limit was held constitutional under the First and Fourteenth Amendments because it served a legitimate public policy in incumbency reform without creating an invidious class distinction or unreasonably restricting voters' freedom of association. Id. at 823;see also League of Women Voters v. Diamond, 923 F.Supp. 266, 268 n. 2 (D.Me.1996) (“[N]o lower court to have examined the constitutionality of term limits ... has found them to violate First or Fourteenth Amendment rights”).
1. Application of the First Anderson Prong: The Character and Magnitude of the Alleged Injury.
This Court also looks to Anderson, 460 U.S. at 789, 103 S.Ct. at 1570.6 In the Constitution, as in the challenged Ordinance, there are limitations upon the holding of federal office and the right to vote:
Only a natural born citizen, who has attained the age of thirty-five years and been fourteen years a resident is eligible to hold office of President of the United States.
* U.S. Const. amend. XXVI, § 1:
Citizens under eighteen years of age are denied the right to vote.
Not unlike the alleged injury here—the lifetime ban passed by San Antonio voters—the right to run for federal election is not an unlimited one: “[n]o person shall be elected to the office of the President more than twice....” U.S. Const. amend. XXII, § 1.
Sovereignty emanates from the people. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403, 4 L.Ed. 579 (1819) (Marshall, C.J.) (“[T]he Constitution derives its whole authority ... from the people”). If these voluntary relinquishments of sovereignty by the people in their national government are reasonable restrictions, this Court cannot divine a federal constitutional basis to hold local government Ordinance 73584 unreasonable.
Moreover, there is no indication the term limits provision creates an invidious class distinction. The Ordinance affects all registered voters in San Antonio and no identifiable group—distinct from San Antonio voters at large—is adversely or uniquely impacted. The same principle is true when applying the term limitation provision from a candidate's perspective. See Miyazawa, 825 F.Supp. at 822.
*5932. Application of the Second Anderson Prong: Identification and Evaluation of Interests.
Although opponents of term limits have the right to disagree and convince voters to join them, the City of San Antonio advances legitimate reasons for the majority passage of limits on candidate eligibility.7 The Court holds plaintiff has not met her burden of showing the alleged injury to her federal constitutional rights outweighs the interests asserted by the City to justify term limits. Accordingly, the Ordinance does not violate the First or Fourteenth Amendments. See Anderson, 460 U.S. at 789, 103 S.Ct. at 1570.
B. The Ordinance in Relation to the Texas Constitution and Texas Statutes
Mrs. Dutmer contends the Ordinance must yield to higher authority of the Texas Constitution and Texas Election Code. Although the Court is unaware of any living person who has read the entire Texas Constitution, counsel submitted what is believed to be the relevant state constitutional and statutory provisions regarding candidate eligibility:
Laws shall be made to exclude from office ... those who may have been or shall hereafter be convicted of bribery, perjury, forgery, and other high crimes.
Every person shall be disqualified from holding any office of profit, or trust, in this State, who shall have been convicted of having given or offered a bribe to procure his election or appointment.
The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.
A Home Rule City may provide by charter or charter amendment ... for a longer term of office than two (2) years for its officers, either elective or appointive, or both, but not to exceed four (4) years....
No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.
Different age and residence requirements from those prescribed by Section 141.001 may be prescribed by a home-rule city charter, but a minimum age may not be more than 21 years and a minimum length of residence in the state or city may not be more than 12 months immediately preceding election day.
(2) determine the method for selecting officers; and
(3) prescribe the qualifications, duties, and tenure of office for officers. (emphasis added).
Perforce, the Texas Constitution provides a prescription of prohibitions and preclusions preventing perjurers, perverts, “preverts,” purloiners, purse-snatchers, polygamists and parolees from performing in public office. In addition to the negative state constitutional provisions, the statutory election code states in a positive manner the qualifications to be met by a candidate; however, these are nonexclusive. Tex.Elec.Code Ann. § 141.001(a)(6) (Vernon 1986); Tex.Local Gov't Code Ann. § 26.041 (Vernon 1988).
Analysis and interpretation of the legal relationship between Texas home rule cities and the State of Texas calls for guidance from the jurisprudence of Texas courts:
Other courts have held term limits constitutional based upon language similar to the Texas Constitution and statutes. In Roth v. Cuevas, 158 Misc.2d 238, 248, 603 N.Y.S.2d 962, 969,aff'd,82 N.Y.2d 791, 604 N.Y.S.2d 551, 624 N.E.2d 689 (1993), the court held the proposed amendment to limit terms of office of elected city officials was not beyond the legislative authority granted by the New York Constitution and Municipal Home Rule Law providing for local governments to retain the power to adopt and amend municipal laws relating to “[t]he powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees.”
This Court holds San Antonio Ordinance 73584 is not unharmonious with Texas constitutional and statutory authority.
CONCLUSION
Those who believe the Ordinance a malignancy on the body politic may have to await the appearance of symptoms to attempt persuasion of a majority to perform corrective surgery at the ballot box. The Court has addressed voting rights standing and has applied the appropriate standards of review, presumptions of validity and burdens of proof. The Court does not find Ordinance 73584 constitutionally or statutorily unreasonable, capricious, arbitrary or invidiously and illegally discriminatory. Defendant's Motion for Summary Judgment is GRANTED and plaintiff's Motion for Summary Judgment is DENIED without prejudice to a proper party asserting a Voting Rights Act claim.
JUDGMENT IS ORDERED ENTERED in favor of the City of San Antonio.
Ordinance 73584 provides: “No person shall be eligible for any elected position who has already served two full terms in that office.” The Ordinance passed in 1991, when a majority of San Antonio citizens in each of ten city council districts voted for the amendment by significant majorities.
Section 1973(a) of the Voting Rights Act provides:
No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in 1973b(f)(2) of this title, as provided in subsection b of this section.
No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.
The Court is aware no voter challenges the constitutionality of Ordinance 73584. However, as evidenced by the discussion herein, the rights of candidates and the rights of voters are intertwined. See Anderson, 460 U.S. at 787–88, 103 S.Ct. at 1569–70.
Although not involving municipal term limits, in United States Term Limits, Inc. v. Thornton, 514 U.S. 779, ––––, 115 S.Ct. 1842, 1847–71, 131 L.Ed.2d 881 (1995), the Supreme Court held unconstitutional an amendment to the Arkansas constitution which precluded persons who served a certain number of terms in the United States Congress from having their names placed on the ballot for election to Congress. The Court explained that states may not impose qualifications for offices of United States representative or United States senator in addition to those set forth by the federal constitution. Id. at ––––, 115 S.Ct. at 1871.Thornton is distinguishable because:
1) Ordinance 73584 does not seek to impose limits on State legislators analogous to a state imposing limits on a member of Congress as in Thornton; and
2) The Texas Constitution and statutes cited herein do not deny and explicitly reiterate the power to define the tenure of office for municipal officials. Tex.Local Gov't Code Ann. § 26.041 (Vernon 1988).