[EL] Election that includes non-resident property owners

Tue Jan 28 09:40:42 PST 2014

Here's what Guy Charles and I have in our casebook on this issue:

            '        Voting by nonresidents.  It is clear from the case law that an American jurisdiction may constitutionally make residence, like citizenship, a condition of the vote.  But must a jurisdiction make residence a voting qualification?  Is residence a constitutionally minimal requirement, or may a jurisdiction choose to extend the vote to nonresidents?
            The Tenth Circuit considered this issue in May v. Town of Mountain Village, 132 F.3d 576 (10th Cir. 1997).  The town of Mountain Village is located near Telluride, Colorado, a popular and well-heeled ski resort area.  In 1996, the people of the town voted to adopt a Town Charter that extended the right to vote to any owners of real property located within the Town who are not legal residents of the Town, so long as they: (a) have been owners of record for at least 180 consecutive days immediately prior to the date of the election; (b) during that 180 days owned a minimum of 50% of the fee title interest in certain real property; (c) are at least 18 years old on the date of the election; and (d) are natural persons.  The provision limited the right of nonresidents to vote to matters of exclusively local interest.  As of January 2, 1996, a Town census disclosed that in addition to approximately 505 eligible resident voters in the Town, there were approximately 541 nonresident property owners eligible to vote pursuant to the Charter.  The court observed: "Nonresidents entitled to vote currently own over 34% of the assessed value of real property in the Town, while residents own only about 5%.  About 61% of the assessed value of real property in the Town is owned by nonresident corporations and trusts, which are not entitled to vote in Town elections.  Nonresidents pay over eight times more in property taxes than the residents do, and it is fair to state that in the future such nonresident property owners will continue to contribute significant revenues to the Town."
            Several permanent residents of the town sued to invalidate the extension of the franchise to nonresidents, arguing that permitting nonresidents to vote unconstitutionally diluted the value of the votes of permanent residents [vote dilution is taken up in Chapter 4].  The court analyzed the charter provision using the rational basis standard on the ground that "Section 2.4(b) of the Town Charter does not restrict the right to vote - it expands it to include nonresidents owning real property in the Town."  The extension of the franchise was rational, the court concluded, because "the Town. . . is a unique resort community where nonresident landowners own the majority of property and pay more than eight times the amount of property tax. . . .  Moreover, the nonresidents continue to bear the weight of the financial burden for the Town. [P]roviding the nonresident landowners the right to vote gives them a voice in the Town's future."
            Are you satisfied by the court's reasoning?  Has the court taken into account all the interests at stake?  Does it matter that this decision was made by the town residents themselves, i.e., was not imposed from above by the state legislature?

___________________________
James A. Gardner
Bridget and Thomas Black SUNY Distinguished Professor
SUNY Buffalo Law School
The State University of New York
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e-mail: jgard at buffalo.edu
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Papers at http://ssrn.com/author=40126

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, January 28, 2014 12:03 PM
To: Frank Reilly; law-election at uci.edu
Subject: Re: [EL] Election that includes non-resident property owners

See the Supreme Court's Salyer Land and Ball v. James opinions allowing such voting under certain conditions.  These are very common for Business Improvement Districts among other things.  Richard Briffault's writing on this is a great place to start.
On 1/28/2014 8:48 AM, Frank Reilly wrote:
I anyone familiar with a municipality or other political subdivision holding an election that includes non-resident property owners?  The election would be for approving a proposed bond pledged by tax revenues.

Frank Reilly
Potts & Reilly, LLP
P.O. Box 4037
Horseshoe Bay, TX 78657
512.469.7474

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