July 14, 2024

Tuesday night the Lowell City Council discussed how to fill a vacancy on the council. The precipitating cause was the coming resignation of John Leahy, something reported by the Lowell Sun last Sunday and confirmed by Leahy during this meeting. He said he would begin his new job with the Lowell School Department this coming Monday, July 15, 2024, and that he would formally resign from the city council at its next regularly scheduled meeting on Tuesday, July 23, 2024.

Traditionally, outgoing councilors make valedictory remarks at their final meeting and often have friends and family in attendance. I expect that is what Councilor Leahy intends to do.

John Leahy’s first campaign for elective office came in 2001 when he ran for the Lowell School Committee and won the sixth and final seat on the committee that year. He was reelected to the school committee in 2003 (finishing first); 2005 (finishing second); 2007 (finishing third); and 2009 (finishing second).

In 2011, Leahy ran for city council but finished eleventh and did not win a seat since only the top nine were elected back then. However, on August 28, 2012, Council Kevin Broderick resigned, but tenth place finisher Armand Mercier had passed away in January 2012, so Leahy, as the eleventh-place finisher, filled the vacant seat for the remainder of that term. He was reelected to a full council term in 2013 (finishing ninth); 2015 (finishing fourth); 2017 (finishing third); and 2019 (finishing sixth). At the start of that last term in January 2020, Leahy’s colleagues elected him mayor.

In the first election in the new district/at large hybrid system in 2021, Leahy ran for the District 3 or Belvidere seat. That contest had three incumbent city councilors – Leahy, Bill Samaras, and Dave Conway – running for one seat. Conway (who was elected to the school committee in 2023) was eliminated in the preliminary election and Leahy beat Samaras in the general election.

Leahy ran for reelection to the District 3 seat in last fall’s city election. He was unopposed, which brings us to the question of who will succeed him.

From the time Lowell first adopted the Plan E form of government in the 1940s, a vacancy on the city council was filled by the losing candidate in the prior city election with the most votes, provided that person was still eligible and willing to serve. That was how a vacant seat was filled when councilors were elected by proportional representation (now known as ranked choice voting), and it remained the method of filling a vacancy in the “vote for nine all at large” system that began in the late 1950s and ended in 2019.

Indeed, the losing candidate with the most votes remains the method of filling a council vacancy, provided there is a losing candidate. But because Leahy ran unopposed in the last election, there is no runner up candidate to fill the vacancy.

It’s easy to now say that how to fill such a gap should have been addressed when the new system was first adopted, but that ignores the political reality that the settlement achieved was the result of long and contentious negotiations driven by a vigorously litigated lawsuit with a pressing trial schedule. Nevertheless, it has been apparent since the adoption of this new system that the circumstances we now face would occur at some point, but as is often the case in government, there is always some more pressing issue than a hypothetical situation. It is only when a vacancy with no successor finally occurred that everyone’s attention became focused.

However, it is inaccurate to say that there is no existing method of choosing a replacement when no runner-up candidate exists. There is such a procedure in place, only most of the current city councilors don’t like it.

Specifically, Massachusetts General Laws chapter 43, section 102 “Vacancies in elective bodies” states:

Except as provided in this section, a vacancy in any elective body shall be filled in the manner provided in section thirteen of chapter fifty-four A. If, under said section, no regularly nominated candidate of the city council or school committee remains, the vacancy shall be filled for the unexpired term by a majority vote of the remaining members, except that if the remaining members fail to fill such vacancy within thirty days after they shall have been notified by the city clerk that such vacancy exists, such vacancy shall be filled by the appointment of any qualified voter of the city by the mayor, or, if there is no mayor, by the vice-chairman, or if there is no mayor or vice-chairman, by the member of the council or of the school committee, as the case may be, senior in length of service, or, if more than one have so served, then the member senior both in age and length of service.

(Chapter 54A, which dealt with the use of proportional representation in cities and towns, was repealed in 1972 but Lowell had already jettisoned proportional representation so it no longer applied here.)

Chapter 43, section 102 (the one reproduced above) states that if a vacancy occurs and there is no losing candidate available, then absent some other method of filling the vacancy already adopted by the council, the replacement would be chosen by “a majority vote of the remaining members” of the council (which would be six of the ten remaining councilors).

Tuesday night, Councilor Rita Mercier made a motion to fill the coming vacancy in the manner provided by section 102. Since that section leaves some of the details to the council, Mercier added that anyone who has lived in the district for more than one year and who is interested in serving should submit their name to the City Clerk prior to the next city council meeting (now scheduled for July 23) and that the council at that meeting will then choose the person to fill the vacancy from among the names submitted. This passed by a vote of seven in favor and three against with Councilor Leahy voting “present.” Voting YES were Councilors Chau, Descoteaux, Jenness, Mercier, Scott, Yem, and Mayor Rourke. Voting NO were Councilors Gitschier, Nuon, and Robinson.

All of the councilors who spoke expressed a preference for filling the vacancy through a special election rather than a vote of the council, however, those who voted YES on Mercier’s motion questioned whether the legislation that would allow for a special election could be passed in a timely manner and, rather than leave the residents of Belvidere without a district councilor for an indefinite period, they opted to fill this vacancy by a vote of the council.

As for the fate of the legislation that would allow for a special election, several councilors referred to an email received from State Senator Edward Kennedy just prior to the council meeting which suggested that the bill setting up a special election procedure was near passage but required some minor amendments by the city before it could receive a final vote by the legislature.

The legislative process has been a long one for the city council although some of the delays have been self-inflicted. Back on May 25, 2021, the city council then in office (which was the current council with John Drinkwater instead of John Descoteaux) unanimously endorsed a vote of the council that “authorized the filing of Special Legislation relative to filling vacancies in Elective Bodies in the City of Lowell.”

In relevant part, the vote stated:

“It is the desire of the City of Lowell that, in the event of a vacancy of a member of either the city council or the school committee, it should be filled by the candidate who is eligible to serve and who received the next highest number of votes as set forth above. However, in the event that no such candidate exists, a vacancy shall be filled by a joint session of the city council and the school committee selecting a candidate through a public application process . . .”

This is the method that’s long been used to fill a vacancy on the Greater Lowell Vocational School Committee. However, that process seemed not to be to the liking of the legislature (likely because having school committee members picking a city councilor made no sense) so it was quietly shunted off for a “study” which is Beacon Hill-ese for killing it. The proposal did die at the end of the two-year legislative term, but Representatives Vanna Howard and Rodney Elliot dutifully refiled it in the new legislative session as H3721.

On April 6, 2023, this bill was referred to the Committee on Election Laws but before any substantive action could be taken, the city council changed its mind and sent a different proposal.

On April 23, 2024, the city council voted to request the state legislature to take up the council’s newly proposed “Act relative to vacancies on the city of Lowell city council and school committee.” This was filed by State Senator Ed Kennedy on May 2, 2024, as S2762.

This new proposal appears to dispense entirely with the “losing candidate in the last election with the most votes” method of filling vacancies and instead creates the following special election process:  If a vacancy on either the city council or the school committee occurs during the first twelve months of the term, the vacancy shall be filled by a special election that must occur between 60 and 120 days after the council declares a vacancy to exist with the date of the election set by the council.

However, if a vacancy on the city council is declared during the second twelve months of the term, there are three options. The first would be to call a special election within 60 to 120 days of the vacancy being declared; the second would be to appoint an eligible voter to fill the vacancy; the third would be to do nothing. Any of these actions would require the vote of six city councilors.

If the vacancy in the second twelve months is on the school committee, there are also three options. The school committee may request the city council call a special election to fill the vacancy; the school committee may appoint an eligible voter to fill the vacancy; the third would be to do nothing. Any of these actions would require the vote of four members of the school committee.

Assuming this bill was already in place, how might it apply in our current circumstances? Assuming the vacancy is declared at the next city council meeting on July 23, 2024, a special election would be mandated since the vacancy occurred during the first twelve months of the term. With the timelines proposed by the council for the new legislation, the election could be scheduled no earlier than September 21, 2024 (sixty days) and no later than November 20, 2024 (120 days).

It would be understandable to think, “The Presidential election is already scheduled for November 5, 2024, so why don’t we just add the special council election to that ballot?” But I suspect it would not be as simple as that. Because of all the other offices that are up for election as the same time as the office of President, that ballot is already a complex document with strict federal rules and timelines about when it must be printed and made available for early voting. Consequently, the Secretary of State might have concerns about adding another office that affects a district entirely different than any other already on that ballot. Consequently, a separate date would likely be needed for the special election.

One final twist came from the City Solicitor who said that because any changes to the method of electing local officials would fall under the consent decree that created the current district/at large electoral system, the plaintiffs in that lawsuit would have to concur with the proposed change. When the council not long ago proposed changing the method of electing a mayor, the plaintiffs had concerns about the proposed change, so the proposal went no further. Although in this instance, the solicitor does not anticipate an objection, he thought it best to consult with the litigants just in case.

I think the solicitor’s instincts are correct in both regards: that the plaintiffs should be consulted and that they won’t object. The likely reason the plaintiffs objected to the mayoral election proposal was that the main objective of the lawsuit in the first place was to throw off the utter dominance of city politics by the Belvidere neighborhood that existed in the all elected at large system. That new proposal to elect the mayor at large would revert back to that condition and give a single neighborhood an outsized voice in the selection of a mayor. To do that would run contrary to the primary objective of the lawsuit, so it’s no wonder they didn’t like it.

On the other hand, this “special election to fill a vacancy” proposal seems entirely consistent with the objectives of the lawsuit which is why I doubt there would be any concern. Still, it’s best to ask beforehand.

As for the status of the bill now pending in the legislature, the “Bill History” page shows it to be with the Senate’s Committee on Third Readings which is the final step before passage. One of the main tasks of that committee is to correct any technical defects in a proposal before it is enacted. That is consistent with the comments made by the City Solicitor regarding the bill’s current status. And since the council’s initial vote for this proposal also authorized the city manager to make minor technical changes without additional council authorization, it seems entirely possible that this legislation could be passed, signed by the governor, and become effective within a few weeks.

Personally, I’m fine with the vacancy being filled either by a vote of the council or by a special election. A more important issue is the lack of candidates in the first place. In last year’s city election, there was no need for a preliminary election for any office. In two council districts, there was no challenger to the incumbent and in the other seven districts, there were just two candidates. The same proportion existed in the at large race with six candidates for three seats. It was worse on the school committee where only a single district race was contested. In the other three districts and in the at large race, the number of candidates equaled the number of seats to be filled.

A lack of contested seats contributes to a lack of voter participation. When a lack of choices on the ballot dictates the outcome of the election, it’s predictable that residents will conclude their votes make no difference and skip the election. That’s likely why fewer than ten percent of all those registered participated. The 7,516 people who did vote in November 2023 was the fewest in any city election since the Civil War. The city council really should spend more time talking about that, but perhaps they prefer it to be that way. The fewer people who vote, the easier it is for incumbents to keep them satisfied.