Statement Of Arthur Eisenberg, Legal Director, NYCLU On Proposals To Suspend Term Limits In New York City’s Mayoral Contest

In an apparent effort to permit Mayor Giuliani to continue in office beyond the currently required termination of his tenure on January 1, 2002, two suggestions have emerged. First, Governor Pataki and others have invited voters to write-in Mr. Giuliani’s name on the ballots that they cast. Second, some have urged that New York City’s term limits law – which currently bars the Mayor from serving a third term – should be abrogated by the State Legislature or City Council.

One might reasonably debate the advantages and disadvantages of term limits. Consideration might appropriately be given to the prospective abolition of term limits in connection with future elections. But, to abolish term limits in the midst of the current electoral process and to do so for the reasons now suggested by its advocates would violate two basic constitutional principles.

The first principle holds that, as a matter of due process of law, we do not change the rules in the middle of an electoral contest. Second, constitutional principles of equal protection demand government neutrality in the administration of elections and prohibit the adoption of rules designed to advantage or promote a particular office seeker.

Elections are bounded ideological competitions with the rules set in advance of he contest so that all contestants can compete equally and fairly. On this case, New York City’s electoral contest began months ago with the circulation of nominating petition. Moreover, actual voting in this year’s election has already begun with the casting of absentee ballots by many voters on or before September 11. More significantly, the adoption of an electoral rule to promote a single individual conflicts with constitutional neutrality principles. It conveys the aura of an anointment, not an election.

We demonstrate the strength of our democracy by maintaining constitutional principles even in times of crisis. A hallmark of that democracy invites the peaceful transition of government through a fair and even handed electoral process. The transition should be permitted to move forward on Tuesday under the rules of the contest established in advance of the election.