The Canvass: States and Election Reform
A Newsletter for Legislatures
This article appeared in the October 2008 issue of The Canvass.
(Full Newsletter in PDF) (Engaging State Legislatures in Election Reform Homepage)
Nonresident Property Owners and Voting in Local Elections: A Paradigm Shift?
During the late summer and early fall, NCSL received a number of requests seeking information about voting by nonresident property owners in local elections. Nonresident voting has continued to attract election law interest as the seasonal homeowner population grows -- drawing more attention to property taxes. In some communities in Florida, Massachusetts, New York, Vermont and Wisconsin, seasonal residents, with support from apartment owners and businesses, have launched taxpayer associations to protest perceived property tax inequities.
At least 10 states (AZ, CO, CT, DE, IN, MT, NM, ND, TN and WY) have laws in place to respond to these changing dynamics. Rather than directly give nonresident property owners the right to vote, these states essentially delegate that authority to municipalities. In most states, residency is a cornerstone of the right to vote. Under Georgia's election code, for example, an eligible voter may vote only if he or she is a resident of the county or municipality in which he or she seeks to vote. Residence is typically defined as, "the place where a person dwells and intends to remain," i.e. "domicile."
However, in a growing number of states, local governments are free to enact ordinances permitting nonresidents to vote in some elections such as bond and tax elections. For example, Colorado authorizes municipalities, having a population of at least two thousand inhabitants, to enact charters that extend to all local and municipal matters. This delegation includes all powers pertaining to municipal elections -- including the eligibility of voters. This law has been invoked by resort towns and villages in Colorado such as the Town of Mountain Village near Telluride in the southern part of the state to give owners of real property the right to vote provided they have held at least a 50% ownership interest (fee title) in the property for a specified period of time.
Somewhat similar to Colorado, Delaware's statute provides that every municipal corporation with a population of at least one thousand may proceed under a home rule charter. The Delaware Code, however, provides that: "No municipal corporation charter which permits nonresident persons to vote in any municipal election ….shall be amended, pursuant to this chapter, so as to eliminate or limit the right of nonresident persons to vote." (22 Del C. Section 835)
In other words, once a chartered municipality enfranchises nonresidents to vote, it may not later amend its charter to revoke or curtail that right.
Connecticut's code broadly enfranchises nonresident property owners in local elections subject to limitations by individual towns. Connecticut's statute says that any adult citizen who is liable to the town, district or subdivision for taxes assessed of $1,000 or more is entitled to vote in a town election unless a municipal entity limits that right. (C.G.S.A. 7-6.)
Some states also allow special districts such as agricultural, improvement and water districts to conduct elections with property-based voting. For example, Arizona permits nonresident property owners to vote in pest control, agricultural improvement, power and water districts. (A.R.S. 48-404 and 48-2383) Montana permits nonresident property owners to vote in county and/or sewer districts. The Montana statute reads: "An elector owning real property within the district need not reside within the district in order to vote." (M.C.A. 7-13-2255)
On the opposite side of the spectrum, some states still require both residency and property ownership to vote on certain bond or property tax levies. Michigan's constitution requires property ownership qualifications to vote in bond elections or on certain proposals to increase the ad valorem property tax limit. Spouses of the property owners are also eligible to vote. (M.C.L.A. Const. Art. 2 Sec. 6) Like most states, Alaska requires residency, but also allows local governments to prescribe additional voting qualifications for bond issue elections. (AK Const. Art. 5, Sec. 1)
With taxes looking like a major issue at all levels of government this fall, it appears that nonresident property owners are also applying pressure to state legislatures and local governments to obtain voting rights or other means of tax relief. In Wisconsin, for example, Representative Sheryl K. Albers introduced Assembly Joint Resolution 101 (AJR 101) last February to amend the Wisconsin Constitution to permit nonresident property owners to vote in any election district in which they own property. Although the measure was not successful, it reflects the efforts of seasonal and other non-resident property owners to secure voting rights. In recent years, similar efforts were pursued in Michigan, New York and New Jersey -- although none have been successful to date. In Michigan, a resolution was introduced to amend the state constitution to permit nonresidents who pay ad valorem property tax the right to vote on local issues, tax limit increases or bond issues. S.J. Res. N, 91st Leg., 1st Sess. (Mich. 2001). "Taxation without representation" was the cry that started a revolution. More than 200 years later, it is still fueling a debate that could affect a shift in election law. O