[EL] Election that includes non-resident property owners
Douglas Carver
dhmcarver at gmail.com
Wed Jan 29 07:13:16 PST 2014
Frank --
NCSL did a short piece on this issue a number of years back:
http://www.ncsl.org/research/elections-and-campaigns/nonresident-property-owners-voting-local-elections.aspx
It
is not a comprehensive piece, but it lists 10 states (as of 2008) that had
statutes in place that would allow non-resident voting.
Douglas Carver
Santa Fe, NM
On Tue, Jan 28, 2014 at 10:40 AM, Gardner, James <jgard at buffalo.edu> wrote:
> 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
> Room 514, O'Brian Hall
> Buffalo, NY 14260-1100
> voice: 716-645-3607
> fax: 716-645-2064
> e-mail: jgard at buffalo.edu
> www.law.buffalo.edu
> 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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>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> 949.824.0495 - fax
>
> rhasen at law.uci.edu
>
> hhttp://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
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(I have loved justice and hated iniquity, therefore I die in exile.)
-- the last words of Saint Pope Gregory VII (d. 1085)
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