Knowledgebase-Unconstitutional Requirements of Candidacy


Information Product

Title:Unconstitutional Requirements of Candidacy
Summary:MTAS was asked what a city should do when a candidate for public office is
in arrears for payment of taxes.
Original Author:Leydorf, Donna
Co-Author:
Product Create Date:10/19/2000
Last Reviewed on::05/08/2017
Subject:Elections; Tax collection--Delinquent taxes
Type:Legal Opinion
Legal Opinion: Unconstitutional Requirements of Candidacy Public.doc

Reference Documents:

Text of Document: October 19, 2000

Re: Qualifications for Public Office

You have requested an opinion from MTAS on what you should do since a candidate for public office is in arrears for payment of taxes. You sent a copy of Section 4(b) of your charter that states:

Furthermore, no one domiciled in the town shall be eligible to run for or hold the office of mayor or alderman if at the time of qualification for such election said candidate owes the town real estate taxes more than one (1) year in arrears.

While I agree with you about the “plain meaning” of the language quoted, I cannot agree that you should take any action on it, as the language may be unconstitutional.

The "right to run for office is seen as a fundamental right and restrictions upon it can be constitutionally permissible only where they serve a compelling state interest". McQuillin, Municipal Corporations, 3rd Ed., Vol. 3, 12.58, page 295. Whenever the courts consider the right to be a fundamental right, then they apply the most stringent review of the restriction being imposed, known as strict scrutiny. This means that the government must prove that the restriction is absolutely necessary to further an extremely important purpose.

The first question to ask then, is what purpose is furthered by requiring a candidate to be current in his or her payment of property taxes? Since there are other remedies available to compel payment of the taxes, it is highly doubtful that any legitimate, much less compelling, state interest is served by the requirement of being paid up for property tax. I cannot imagine any reason for this requirement that could be put forth to justify the interference with the fundamental right of running for office.

There is a long line of cases including the United States Supreme Court case of Turner v. Fouche, 396 U.S. 346 (1970) and Quinn v. Millsap, 491 U.S. 95 (1989), which have decided on several “requirements” for a candidate for public office. For example, the courts have found there is no "compelling" purpose served by requiring a candidate to own property, and that such a requirement violates the equal protection clause of the Fourteenth Amendment.

There are some qualifications for holding public office that are considered reasonable, such as being a resident of the city or ward for a particular period of time. Obviously, one cannot be familiar with or vested with the same degree of concern or interest in local government if they are not a resident of that local government. Similarly, certain age requirements are upheld as reasonably ensuring that persons with a certain level of maturity and experience are in positions of leadership.

The requirement you have asked about would not withstand legal challenge and should not be enforced.

Please let me know if you need additional information.

Sincerely,


Donna M. Leydorf
Legal Consultant

Please remember that these legal opinions were written based on the facts of a given city at a certain time. The laws referenced in any opinion may have changed or may not be applicable to your city or circumstances.

Always consult with your city attorney or an MTAS consultant before taking any action based on information contained in this database.