Can Tennessee limit a city annexation referendum to property owners, or to residents and nonresident property owners?

Subject

Opinion No. 13-106, Right of Non-Resident Property Owners to Vote in Annexation Referendum, December 20, 2013

Plain-English summary

Rep. Mark Pody asked three questions about how Tennessee could structure voter eligibility in a hypothetical annexation referendum.

1. Property-owners only? Unconstitutional. Limiting the franchise to property owners (excluding non-property-owning residents) cannot survive strict scrutiny under the Equal Protection Clause. Hayward v. Clay, 573 F.2d 187 (4th Cir. 1978), held annexation is a matter of general community interest because it affects municipal services every resident receives. Federal cases on bond elections, City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970), and Cipriano v. City of Houma, 395 U.S. 701 (1969), established the same principle: when the legislature extends voting rights at all, it can't carve up "general interest" elections by property ownership unless it shows a compelling state interest. Higher property taxes on owners after annexation, by itself, is not a compelling enough interest.

2. Both residents and nonresident property owners? Defensible if narrowly drafted. Clay v. Buchanan, 162 Tenn. 204, 36 S.W.2d 91 (1931), confirms the General Assembly may extend the franchise in municipal elections to nonresident property owners. But the design must avoid two problems: (a) Brown v. Board of Commissioners of the City of Chattanooga, 722 F. Supp. 380 (E.D. Tenn. 1989), invalidated a Chattanooga ordinance that allowed any nonresident with even trivial property interests (as many as twenty-three co-owners of one parcel) to vote, because such owners did not have a "substantial interest" in city affairs. So statutory drafting should require a minimum property interest. (b) Duncan v. Coffee County, Tennessee, 69 F.3d 88, 97 (6th Cir. 1995), warns that extending the vote to nonresident property owners can unconstitutionally dilute resident votes if, in particular factual circumstances, nonresidents outnumber residents.

3. U.S. citizenship, age 18+, Tennessee residency requirements? Constitutional. Under Tenn. Code Ann. § 2-2-102, a qualified Tennessee voter must be a U.S. citizen, 18 or older, and a state resident, and not disqualified (e.g., by felony). The AG concluded the General Assembly could constitutionally require these qualifications of all annexation referendum voters, whether residents of the territory or nonresident property owners. Citizenship requirements are constitutional. People v. Rodriguez, 111 Cal. Rptr. 238 (Cal. Ct. App. 1973); Skafte v. Rorex, 553 P.2d 830 (Colo. 1976). Age 18+ is constitutional (the 26th Amendment prohibits denying the vote to citizens 18+ on account of age, but doesn't require extending it to younger voters). State residency is constitutional under settled equal-protection law.

For nonresident property owners specifically, who have no fundamental right to vote in annexation referendums, further qualifications need only have a rational basis. The AG found a rational basis for each of citizenship, age 18+, and state residency: ensuring maturity, ready ascertainment of eligibility, and reasonable opportunity to be informed about the election.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee's annexation framework changed significantly after 2013, with the General Assembly enacting reforms restricting annexation by ordinance and requiring resident consent in many cases. The constitutional principles in this opinion remain operative, but the specific statutory landscape they're applied to has shifted.

Background and statutory framework

Annexation authority is statutory. Cities can only annex by exercising the powers the General Assembly grants. State ex rel. Hornkohl v. City of Tullahoma, 746 S.W.2d 199, 201 (Tenn. Ct. App. 1987). There's no constitutional right to vote on annexation; the General Assembly chooses whether to require a referendum at all. Tenn. Att'y Gen. Op. 13-58 (July 25, 2013).

Tenn. Const. art. IV, § 1 sets the basic Tennessee voter qualifications (U.S. citizen, 18+, state resident, county registered, no other qualification "attached to the right of suffrage"). But this provision applies to general state and county elections; it doesn't apply to municipal corporations. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036 (1910); Tenn. Att'y Gen. Op. 08-122 (July 10, 2008).

Strict-scrutiny precedent for franchise restrictions. Kramer, Phoenix, Cipriano, Hill v. Stone: when the legislature extends the right to vote in elections of general interest, restrictions beyond age/citizenship/residency must serve a compelling state interest with narrow tailoring. Salyer, 410 U.S. 719 (1973), recognized a narrow exception for special-purpose districts (water storage districts) whose powers are limited to discrete property-affecting projects with assessment-based costs.

Annexation-specific case. Hayward v. Clay applied strict scrutiny to annexation specifically, holding that "annexation will affect municipal services that every citizen receives whether or not he is a freeholder" and that property-based voter classifications are no less constitutionally suspect in annexation than in bond elections or school district elections.

The Brown problem. In Brown, 23 nonresidents had registered to vote on a single piece of city property, and 15 on one $100-assessed parcel. The trivial-interest extension of the franchise failed rational basis review. So a Tennessee statute extending the franchise to nonresident property owners should set a minimum property value or interest threshold.

The Duncan dilution warning. In Duncan v. Coffee County, the Sixth Circuit cautioned that even where nonresidents have a substantial interest, "grave constitutional concerns" arise if residents have "little or no chance to control their own school board" because nonresidents outnumber them. The same risk applies to annexation referendums in territories where nonresident property owners might outvote residents.

Common questions

Why can't we limit the vote to people who'll pay the new city property tax?

Because everyone in the annexed territory is affected: nonproperty-owning residents will receive new municipal services (police, fire, sanitation), be subject to new municipal regulations, and have a vote in future municipal elections. Hayward v. Clay and Phoenix v. Kolodziejski both reject "property owners pay more" as a sufficient reason to exclude others from the franchise.

Why not exclude residents who don't own property because they have a smaller "stake"?

Same answer. The Equal Protection Clause forbids that classification absent a compelling state interest.

Could Tennessee draft a statute that includes nonresident property owners?

Yes, but it needs to: (a) require a substantial property interest (a minimum value or acreage threshold), and (b) be drafted so resident votes are not diluted in particular annexation referendums where nonresidents might outnumber residents.

What about voting in the annexing city itself, not just in the territory to be annexed?

The opinion addresses voter eligibility within the territory to be annexed. Voting in the existing city is governed by the city's existing rules.

Can a county-level resident be required as a condition of voting on annexation?

Probably yes for residents of the territory, who are already presumably county residents. For nonresident property owners, the AG addressed a Tennessee-residency condition as constitutional, but did not specifically opine on whether they could be required to be county residents.

Citations

Tenn. Const. art. IV, § 1; U.S. Const. amends. XIV, XXVI; Voting Rights Act § 2. Tenn. Code Ann. §§ 2-2-102, 40-20-112. Cases: State ex rel. Hornkohl v. City of Tullahoma, 746 S.W.2d 199 (Tenn. Ct. App. 1987); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036 (1910); Dunn v. Blumstein, 405 U.S. 330 (1972); Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969); Carrington v. Rash, 380 U.S. 89 (1965); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969); Hill v. Stone, 421 U.S. 289 (1975); Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973); Hayward v. Clay, 573 F.2d 187 (4th Cir. 1978); Clay v. Buchanan, 162 Tenn. 204, 36 S.W.2d 91 (1931); Brown v. Board of Commissioners of the City of Chattanooga, 722 F. Supp. 380 (E.D. Tenn. 1989); Glisson v. Mayor and Councilmen of the Town of Savannah Beach, 346 F.2d 135 (5th Cir. 1965); McGowan v. State of Maryland, 366 U.S. 420 (1961); Duncan v. Coffee County, Tennessee, 69 F.3d 88 (6th Cir. 1995); People v. Rodriguez, 111 Cal. Rptr. 238 (Cal. Ct. App. 1973); Skafte v. Rorex, 553 P.2d 830 (Colo. 1976). Prior AG opinions: Op. 13-58 (July 25, 2013); Op. 13-45 (June 11, 2013); Op. 08-122 (July 10, 2008).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-106.pdf

Original opinion text

Best-effort transcription. See linked PDF above for authoritative source.

December 20, 2013

Opinion No. 13-106

Right of Non-Resident Property Owners to Vote in Annexation Referendum

QUESTIONS

1. If the General Assembly enacted legislation requiring a referendum to validate a city ordinance annexing property, could this legislation constitutionally restrict participation in the referendum to the property owners in the territory to be annexed, excluding from participation people who reside in the territory but do not own property in it?

2. Could this legislation constitutionally allow both residents and nonresident property owners within the territory to be annexed to vote in the referendum?

3. Assuming this legislation could constitutionally allow nonresident property owners to vote in the referendum, could the General Assembly, as a condition of voting, constitutionally require such nonresident property owners to either be qualified voters for members of the General Assembly or citizens of the United States?

OPINIONS

1. Any such limit must be necessary to further a compelling state interest, and this Office is unaware of any compelling state interest to justify limiting the right to vote in an annexation referendum to property owners in the area to be annexed. The fact that property owners will be subject to property tax while nonproperty owning residents will not is not a constitutionally sufficient basis for excluding nonproperty owning residents from voting on an annexation referendum.

2. Such legislation may be constitutionally defensible if appropriately drafted. A provision extending the right to vote in annexation elections to nonresident property owners in the territory to be annexed should contain some minimum limits on property ownership to ensure that these owners have a substantial interest in the election. Extending the franchise to nonresident property owners is also subject to a challenge that, under particular facts and circumstances, the system unconstitutionally dilutes the votes of residents.

3. Under Tennessee law, in order to vote for a member of the General Assembly, a voter must be a citizen of the United States, eighteen years or older, reside in the legislative district, and not be otherwise disqualified, for example, by a felony conviction. These are all valid requirements for allowing residents in a territory to be annexed to vote. The General Assembly may constitutionally set these same qualifications on voting on an annexation referendum for nonresident property owners who own property in a territory to be annexed. Since property owners do not have a fundamental right to vote in an annexation referendum, further qualifications need only be supported by a rational basis. Each of these restrictions is rationally related to the State's legitimate interest of ensuring that voters in the referendum have a certain level of maturity, can be readily ascertained, and have a reasonable opportunity to inform themselves about the subject of the election. The General Assembly may also constitutionally extend the right to vote in an annexation referendum to persons who own property in an area to be annexed so long as they are United States citizens, subject to the qualifications noted in response to Question 2.

ANALYSIS

1. Allowing only Property Owners to Vote in Annexation Referendum

This opinion addresses who may constitutionally be allowed to vote, or be excluded from voting, on a referendum to approve a city's decision to annex unincorporated territory by ordinance. The first question is whether the right to vote on annexation could be limited to persons, whether resident or not, who own property in the territory to be annexed.

The power of a municipality to annex property and the right to challenge the exercise of this power are strictly statutory. State ex rel. Hornkohl v. City of Tullahoma, 746 S.W.2d 199, 201 (Tenn. Ct. App. 1987). As this Office recently observed, the General Assembly is not constitutionally required to allow any citizens to vote on whether territory where they reside or own property will be annexed to a municipality. Tenn. Att'y Gen. Op. 13-58, at 2 (July 25, 2013). Similarly, citizens have no constitutionally protected right to have their residential property annexed into a city. Tenn. Att'y Gen. Op. 13-45, at 3-4 (June 11, 2013). A Tennessee citizen's right to vote in federal, state, and local elections is set forth by the Tennessee Constitution art. IV, § 1. But this provision does not apply to municipal corporations. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1042 (1910); Tenn. Att'y Gen. Op. 08-122 (July 10, 2008).

Under the United States Constitution, any limitations on the right to vote beyond reasonable citizenship, age, and residency requirements are subject to strict scrutiny to determine whether they violate the "equal right to vote" under the Fourteenth Amendment to the United States Constitution. Dunn v. Blumstein, 405 U.S. 330, 336 (1972). Where a state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, courts must determine whether the exclusions are necessary to promote a compelling state interest. Kramer v. Union Free School District No. 15, 395 U.S. 621, 627 (1969).

For similar reasons, the United States Supreme Court has invalidated state laws limiting the right to vote on the issuance of local government general obligation bonds to property owners. City of Phoenix v. Kolodziejski, 399 U.S. 204, 213 (1970); Cipriano v. City of Houma, 395 U.S. 701, 706 (1969); Hill v. Stone, 421 U.S. 289, 297 (1975).

The Court has recognized that, in narrow circumstances, the legislature may constitutionally limit the right to vote to landowners in a district so long as the limit is relevant to achievement of the regulation's objective. Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 730 (1973). But Salyer addressed a special-purpose district, not a general-purpose annexation.

The United States Court of Appeals for the Fourth Circuit addressed this issue in Hayward v. Clay, 573 F.2d 187 (4th Cir. 1978), cert. denied, 439 U.S. 959 (1978). The court applied strict scrutiny to a state statute restricting the franchise in annexation referendums to property owners. The court stated: "A change in the entire structure of local government is a matter of general interest. Annexation will affect municipal services that every citizen receives whether or not he is a freeholder. . . . Therefore, a property-based classification of voters is of no less constitutional significance in an annexation referendum than when the question is the issuance of municipal bonds or the details of operating a school system." 573 F.2d at 190.

Under the reasoning articulated in Hayward, the right to vote in an annexation referendum cannot be restricted on grounds other than age, citizenship, and residence unless the restriction furthers a compelling state interest. The fact that property owners, unlike people who reside in the area, will be immediately subject to city property taxes does not by itself justify such restriction. This Office is unable to articulate any other compelling state interest to justify limiting the right to vote in an annexation referendum to property owners in the area to be annexed.

2. Allowing Nonresident Property Owners as well as Residents to vote in Annexation Referendum

The Tennessee Supreme Court has stated that the right of nonresident property owners to vote in municipal elections is dependent altogether upon the determination of the General Assembly. Clay v. Buchanan, 162 Tenn. 204, 36 S.W.2d 91, 93 (1931). Extending the right to vote in this way would also be subject to analysis under Section 2 of the Voting Rights Act and the Fourteenth Amendment to the United States Constitution.

In Brown v. Board of Commissioners of the City of Chattanooga, 722 F. Supp. 380, 389 (E.D. Tenn. 1989), the District Court for the Eastern District of Tennessee found invalid a city ordinance allowing nonresidents who owned even a trivial amount of property in the City of Chattanooga to vote in city elections. The court acknowledged that nonresident property owners have an interest in the conduct of city affairs but noted that the ordinance did not limit the number of people who could vote with respect to a piece of property or set any minimum property value required for the exercise of the franchise. As many as twenty-three nonresidents had been registered to vote on a single piece of city property, and fifteen nonresidents were registered to vote as co-owners of one parcel with an assessed value of one hundred dollars. The court concluded that the city ordinance did not further a rational governmental interest.

For this reason, a provision extending the right to vote in annexation elections to nonresident property owners in the territory to be annexed should contain some minimum limits on property ownership to ensure that these owners have a substantial interest in the election.

Extending the franchise to nonresident property owners may also be subject to a challenge that the system unconstitutionally dilutes the votes of residents. Where the government allocates the franchise in such a manner that residents of a separate area have little or no chance to control their own school board, for example, there may be "grave constitutional concerns," even where nonresident owners have a substantial interest in the issue. Duncan v. Coffee County, Tennessee, 69 F.3d 88, 97 (6th Cir. 1995).

3. Additional Qualifications for all Voters in Annexation Referendum

Under Tenn. Code Ann. § 2-2-102, a citizen of the United States eighteen years or older who is a resident of this state is a qualified voter unless the citizen is disqualified under the provisions of this title or under a judgment of infamy pursuant to § 40-20-112.

The General Assembly may constitutionally require each voter, both residents and nonresident property owners, in an annexation referendum to be a citizen of the United States, eighteen years or older, a state resident, and not otherwise disqualified.

United States citizenship is a valid and permissible criterion for determining who is allowed to vote. People v. Rodriguez, 111 Cal. Rptr. 238, 239 (Cal. Ct. App. 1973); Skafte v. Rorex, 553 P.2d 830, 832 (Colo. 1976), appeal dismissed, 430 U.S. 961 (1977). Under the Twenty-Sixth Amendment to the United States Constitution, United States citizens who are eighteen years of age or older may not be denied the right to vote on account of age. But there is no constitutional requirement that younger voters be extended the right to vote.

Since property owners do not have a fundamental right to vote in an annexation referendum, further qualifications need only be supported by a rational basis. Each of these restrictions is rationally related to the State's legitimate interest of ensuring that voters in the referendum have a certain level of maturity, can be readily ascertained, and have a reasonable opportunity to inform themselves about the subject of the election.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:

The Honorable Mark Pody
State Representative
203 War Memorial Building
Nashville, Tennessee 37243-0146