|Legal Opinion: |
Text of Document: August 21, 2003
Re: nonresident voters
Dear City Manager,
Your Management Consultant has advised me of your question concerning whether the city may amend a charter provision addressing the voting rights of nonresident property owners. The city may not alter any charter provision through passage of an ordinance. As the city is a general law chartered city, it may only change a charter provision through passage of a public act in the legislature, which will impact all cities chartered under the city manager commission general law.
Before discussing the amendment, we should examine the section at issue and recent changes in the election law which may have an impact. The charter provision which the city wants to change is Section 6-20-106(d), which states:
in any city having a population of not less than one thousand nine hundred forty (1,940) nor more than two thousand (2,000) according to the 1980 federal census or any subsequent federal census, a registered voter who resides outside the boundaries of the city, but who owns at least eight thousand (8,000) square feet of real property located within the boundaries of the city, shall be entitled to vote in all municipal elections and municipal referenda held in the city; provided, that in any case of multiple ownership of such real property, the nonresident voter must own at least one-half (½) interest of such property. This subsection shall have no effect unless it is approved by a two-thirds (2/3) vote of the board of commissioners of any city to which it applies. Its approval or nonapproval shall be proclaimed by the presiding officer of such board and certified by such presiding officer to the secretary of state.
The federal census of 2000 found that your city has a population of 2025, which would place the city outside the population bracket for application of this section of the charter. If the city opted into this provision before exceeding the population bracket numbers, by approval of 2/3 vote of the board of commissioners, and that approval was certified to the secretary of state, then this section of the general law charter is still applicable to your city. Once a city falls within a population bracket contained in the general laws, and takes any necessary affirmative steps for application of the code section, the city does not “fall out” of the law when the population rises above the maximum bracket for application of the law. Harbert v. Mabry, 61 S.W.2d 652 (Tenn. 1933). The Supreme Court states on this issue:
This Court has held that a statute made applicable to a county or counties within certain population brackets according to the last Federal Census or any subsequent federal census is constitutional; that it applied to all counties coming within its provisions when passed; that it remains in force and effect notwithstanding subsequent population changes and it may become applicable to other counties when their population becomes such as to bring them within the specified population brackets. Perry v. Banks, 521 S.W.2d 549, 551 (Tenn. 1975) (Dissenting opinion).
Therefore, if your city followed the stated procedure for adoption of this section of the city charter when its population fell within the bracket of 1940 to 2000 residents, then this section of the charter is still applicable to the city. If the city did not take the necessary steps before its population exceeded 2000 residents, then it may not now take action to adopt this section permitting nonresident property owners to vote in municipal elections.
I find no other section contained in your Charter under which nonresident property owners may be permitted to vote in municipal elections.
Public Act 134, passed during the 2003 legislative session, may impact how this section of the charter is applied. The act amends T.C.A. § 2-2-107(a)(3) to state as follows:
Notwithstanding any provision of the law to the contrary, if a municipal charter provides for property rights voting, no more than two (2) persons shall be entitled to vote based upon the ownership of an individual tract of property regardless of the number of property owners.
If the city took action to adopt the charter provisions at issue when the population was at or below 2000, then this new law could arguably impact how that section of the charter is applied. As this is a new law, it is unclear precisely how it will impact application of T.C.A. § 6-20-106(d). It is important to note that the subject matter of the new law is the number of persons entitled to vote as owners of a piece of property, rather than the size of property. It is also important that no other sections of T.C.A. § 6-20-106 contain any reference to the size of the property owned. It can be argued that it was not the intent of the legislators to remove the 8,000 square foot requirement and replace the qualification with the term “individual tract of property,” as the general law, manager-commission charter itself was not amended to reflect this change.
In my opinion, 2003 Public Chapter 134 does not impact the 8,000 square foot requirement for ownership of real property before voting rights may be exercised by the nonresident property owner. As the charter provision already requires the nonresident to have at least ½ ownership interest in the property, this new law has no impact on application of this charter section, in my opinion. I have included discussion of this new law so that you are aware of its existence and potential application.
That being said, we now turn to the specific question of amendment of the charter section at issue. It is my understanding that the city wants to decrease the 8,000 square foot requirement. This may only occur through a general law amendment to T.C.A. § 6-10-106(d), which removes the requirement. This will require the city to enlist other general law, manager commission chartered cities to support the change, as it will impact all cities chartered under this section of the general law.
Cities with general law charters may in certain circumstances “supplement” their general law charters by private act, as long as the private act doesn’t conflict with the general law charter. The change which your city wants to make, to decrease the amount of land a nonresident must own in order to vote in city elections, would clearly conflict with the current charter provision so this may not be accomplished through a private act.
In summation, the City Charter section 6-20-106(d) is only applicable to the city if it was adopted by a 2/3 vote of the commission while its population fell within the 1940 to 2000 bracket. The city may only change this provision of its charter through a public act passed by the legislature, which will effect all cities chartered under the city manager commission general law provisions. In my opinion, 2003 Public Chapter 134 will have no effect on the application of section 6-20-106(d), but any amendment made must be consistent with the new law and require that only 2 owners of the property be allowed to vote.
I hope this information answers your question. Please contact me if you need further assistance in this or in any other matter.
Thank you for consulting with MTAS.
Melissa A. Ashburn