A new source of delay is developing over the printing of ballots. In his decision, Judge Mitchell also ordered that the Election Commission "forthwith have printed, and appropriately distributed, ballots containing the resolution in the petition." But the Election Commissioners have found it impossible to go ahead with the printing of ballots, they say, because of the City's competitive bidding statutes. Any contract over $500, they say, must be advertised in local newspapers for two weeks before bidding begins. The bidding then must be kept open for another week, amounting in all to a built-in three-week delay.
CNCV lawyer Hans F. Loeser viewed this latest source of delay as a contrived tactic, and a weak one. He claimed that the only Cambridge competitive bidding statute which mentions the two-week period for advertising applies to contracts over $2000. (It will cost just $1700 to print the 60,000 ballots for the peace resolution, according to the Election Commission.) Further, Loeser argued, the court order to print the ballots immediately excused the City from complying with such statutes. The fact is, though, that the City isn't printing ballots--and isn't close to printing them.
Today, the City will appeal Judge Mitchell's ruling that the petition is legal. Councillor Cornelia B. Wheeler last week issued a public statement urging the City to forego the appeal to the Supreme Judicial Court, and all other "stalling measures." McCarthy, however, opposed Wheeler's suggestion and explained why the City should appeal the lower court decision. "We feel this is an important enough matter to be decided by the highest court in the state," he said. "The CNCV would have appealed had the lower court ruling gone against them, so why shouldn't we?" he asked.
The City's case against the CNCV petition is based on a narrow interpretation of the right of popular initiative. The purpose of an initiative petition is to enact a law, not express an opinion, McCarthy argues. The CNCV resolution is clearly beyond the legislative domain of the City of Cambridge, and therefore it is not a proper subject for an initiative petition, he reasoned. "If they want to hold a public opinion poll, they should go talk to WBZ," McCarthy said last week.
Loeser countered that the real purpose of the initative petition is to empower the people to do whatever a city council or other legislative body can do. City councils make a general practice of memorializing on matters over which they have no legislative authority. Therefore, Loeser reasoned, the people can use an initiative legitimately to express an opinion.
The Cambridge City Council, Loeser pointed out, has passed numerous resolutions which are no more than expressions of opinion--on Vietnam, foreign relations between Czechoslovakia and the United States, and the Portuguese Navy, to name just a few.
Judge Mitchell upheld the broad interpretation of the right of initiative: "I ... rule that whatever the Cambridge City Council may lawfully do of its own motion may be accomplished by citizens of the City of Cambridge by initiative petition...."
If the Supreme Judicial Court has not acted on its appeal before Nov. 7, the City will ask for a "stay of execution," on Judge Mitchell's orders. If the stay is granted, that's all for the peace plank, at least in this election. So Loeser will be doing everything in his power to speed up the appeals process. Thus far, the City--under pressure from Loeser--has cooperated in expediting some aspects of the legal battle. For example, Superior Court hearings were scheduled for Oct. 10 by Judge Mitchell, but McCarthy agreed to move them up to Oct. 6 at Loeser's request. McCarthy was optimistic last week that arrangements could be made to get a verdict out of the high court in time for the election.
If the court upholds the petition, will ballots be ready? McCarthy promised last week they would be, in spite of the City's current flirtation with a competitive bidding statute which seems to rule out signing a contract for the printing of ballots until Nov. 6, the day before the election.
What will the City Council do with the CNCV resolution? All the Council's own resolutions on Vietnam have been hawkish. Yet, "there is a possibility," McCarthy said Friday, "that the Council will adopt this [dove] statement ... anything can happen ... who knows?" That would be one sure way to keep the question off the ballot.
Some observers contend that the Councillors view the peace resolution as a serious threat to their political skins and will do almost anything to keep it off the ballot. The resolution would undoubtedly draw to the polls many people who have never before bothered to vote in a municipal election. All the Councillors are up for re-election and they are worried, some say, that the new voters will swing their weight against them.
Mayor Daniel J. Hayes remarked Thursday, "I wouldn't mind a referendum on the war being on the ballot--one day after the local election.