AMHERST — Acting on the language in the new town charter adopted by voters last month, the Select Board on April 18 agreed to recommend that Town Meeting seek support from the Legislature to schedule the first Town Council election this fall.
But the board’s 4-0 decision advising Town Meeting to petition the Legislature for a Nov. 6 election date may violate the federal and state constitutional rights of college students who vote in Amherst, according to two Amherst lawyers who addressed the board.
John Bonifaz, a constitutional voting rights attorney who founded the National Voting Rights Institute and is co-founder of Free Speech for People, said if the main election coincides with the state gubernatorial election Nov. 6, nomination forms would be available June 1 and would have to be returned Aug. 1 — both dates when a vast majority of students at the University of Massachusetts, Amherst College and Hampshire College are away.
“This exclusion of student voters from the process of nominating candidates for the town council would violate their federal constitutional rights under the equal protection clause of the 14th Amendment and under the 26th Amendment,” Bonifaz said.
Bonifaz said voting is a bedrock right of democracy. “We must ensure that this right is protected for all eligible voters in Amherst,” he said.
The fact that voters approved the text of the charter by a wide margin March 27 doesn’t remove these constitutional concerns, Bonifaz said, observing that one set of voters, no matter how big a majority, can’t deprive another set of voters of their rights.
Sarah McKee of Chadwick Court gave the board a letter signed by herself, Bonifaz and three other residents, including Charter Commission member Julia Rueschemeyer.
McKee said the board’s recommendation in favor of the fall election date could put the town at risk of a lawsuit.
“This would not only be fundamentally wrong, but it also could subject the town unnecessarily to litigation,” McKee said.
Town Meeting will make the final decision whether to petition the Legislature at a special session that will begin at the middle school auditorium at 6:59 p.m. April 30, just before annual Town Meeting commences.
If the election goes forward on this schedule, the Town Council would be seated Dec. 3.
Should the petition article fail, or the Legislature not act on the matter, the Town Council election would be set for Jan. 24, 2019, with nomination forms available Aug. 31 and due Oct. 22. The Town Council would be seated Feb. 4.
Select Board member Alisa Brewer said both town counsel KP Law and the attorney general’s office approved the language in the charter, and likely would have raised red flags if there were problems with the earlier date.
“I do object to (you) saying I’m taking away people’s rights by recommending this,” Brewer said.
The election date still does allow for student participation, though Brewer acknowledged that if a primary is needed on Sept. 4, that could make it difficult for students to vote. A preliminary election will be needed for the 13-member Town Council if any of the five districts, or three townwide seats, have more than twice as many candidates as positions available.
Select Board member Andy Steinberg said the alternative date of Jan. 24, 2019, is just before or after college students return for the spring semester and doesn’t provide any real advantage.
“It’s going to be a challenge in any event,” Steinberg said. “We need to give the best advice we can to Town Meeting.”
Placing a date in late January, Steinberg said, would likely mean fewer students voting than if the election is in November.
Board Chairman Douglas Slaughter said the dates of the potential elections have been known since the charter was brought before voters.
Both Bonifaz and McKee also raised the case of political activist Eric “The Rat” Walgren, who in the 1970s sued Amherst over an election calendar that set the caucus during the winter break for UMass and the colleges. Two years later, though, the U.S. Court of Appeals refused to set aside the 1973 town election.
But that ruling included an admonishment from U.S. District Court Judge Arthur Garrity that the board should not schedule elections when local university and college students are not in session.
The issue of the students’ right to vote came up again in 1991, when the Select Board scheduled a special election for a vacant seat and mandated that nominations be closed Aug. 20, and again in 2008, when it originally set a special election for Sept. 16 to fill a Select Board seat, before pushing it back to Nov. 4.
The Select Board has previously reaffirmed a policy statement that municipal elections should be held at times when “all registered voters” are in town.
Scott Merzbach can be reached at smerzbach@gazettenet.com.