MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
February 16, 2004
RE:
Voting Base Required For Election Of Aldermen
You have the following question: Are the aldermen of the City required to be elected by
the voters of the wards they represent? As I understand the facts you related to me, presently
they are elected from wards, but at large.
In my opinion, the aldermen must be elected by the voters of the wards they represent,
although I concede that this may be a very close question.
According to an e-mail sent by Mr. A to Mr. B, the city holds its at large elections from
wards under the authority of its old private act charter [Private Acts 1909, Chapter 406, as
amended], and that Ms. C put the imprimatur of the state election commission on that method of
election. If what Mr. A says is an accurate reflection of the state election commission’s position,
that position has support in a reading of both Private Acts 12908, Chapter 406, and in the
provisions of the general law mayor-aldermanic charter related to elections in cities incorporated
under that charter before June 30, 1991. I do not agree with that position from wherever it came,
but I admit it has strength.
There appears to be no controlling Tennessee state law on this question. Tennessee Code
Annotated, ' 68-53-110, provides that:
(a) Notwithstanding any other provision of the law or charter to the
contrary, no member of the legislative body of a municipality, a
popularly elected school board, or other similar constituted or
elected body or commission of a county or municipality shall be
elected to such office through an election procedure requiring
candidates to be nominated from a district and elected at large, but
such members shall be elected from districts as established by the
appropriate county or municipality.
But subsequent subdivisions of that statute contain population limitations that do not
apply to the City, and further require the statute to be adopted by a 2/3 vote of county or
municipality or other political entity.
The records of MTAS indicate that the City adopted the general-law mayor aldermanic
charter in 1987. Article I, Section 2 of that charter did permit the board of mayor and aldermen
to divide the city into wards, and further prescribed the division of the city into four wards until
the board changed them. Article I, Section 2 of the charter said that there would be eight
aldermen “elected by the qualified voters of the town.” The language “elected by the qualified
voters of the town” strongly implies that they were to be elected at large. But the charter was
silent on the question of whether the aldermen were required to live in the wards, either before or
after they were elected.
However, ' 6-1-304 of the general law mayor-aldermanic charter in effect at the time the
City adopted that charter in 1987, said:
When the adoption has been made and the Secretary’s certificate
registered, then such town or city shall have all the powers, rights,
privileges and benefits of corporations organized under part 2 of
this chapter, with the new charter, and the former charter shall be
deemed and held forever renounced and surrendered.
The general law mayor-aldermanic charter contained the following provisions governing
elections at the time the City adopted it in 1987:
-Section 6-1-401: Provided options for the division of the city into wards, or for only one
ward.
-Section 6-1-402: The mayor was required to have lived in the city for one year, and
aldermen were required to have lived in the wards for one year, next preceding their election.
-Section 6-1-403: If the alderman “removed” from his ward during his term, he was
presumed to have vacated his office.
However, in neither those provisions, nor in any other provision in the charter, was
there an express requirement that aldermen be elected only by the voters in their wards, or by all
the voters of the city.
The general law mayor-aldermanic charter was totally revised in 1991. Under that
revised charter, cites were divided, for election purposes, into two categories: Those cities
incorporated under that charter after June 30, 1991, and those cities incorporated under that
charter before June 30, 1991. Because the City was incorporated before June 30, 1991, the latter
provisions apply to it. Those provisions follow:
Section 6-3-102: Under this section, a city “may” (but appears not to be required to)
change the number of wards and the number of aldermen, change terms, etc., but it must be done
“in accordance with ' 6-3-101.” Subsection (c) is the provision in Section 6-3-101(c) which
governs the increase and decrease in wards and aldermen. Subsection (c) requires that the change
in the number of aldermen or ward must be accomplished by ordinance passed by a 2/3 vote of
the board, and prescribes a list of things the ordinance must contain. But none of the things that
must be contained in that ordinance speaks to what voting base applies to elections for aldermen.
-Section 6-3-103: Provides that an alderman must have resided within the ward at least
one year next preceding the election, and that if he moves from his ward he is presumed to have
vacated his office.
As is the case with the election provisions of the general law mayor-aldermanic charter
when the City adopted it in 1987, in neither those provisions, nor in any other provision of the
charter, is there an express requirement that aldermen be elected only by those voters in their
wards, or by all the voters of the city.
But the inquiry does not end there. If the City surrendered its old private act charter when
it adopted the general law mayor-aldermanic charter in 1987, it must find support for its at large
election system in that charter. Indeed, it has some. As pointed out above, with respect to cities
incorporated under the general law charter before June 30, 1991, the general law mayoraldermanic charter did not/does not speak one way or another about whether aldermen are elected
from districts by the voters of those districts, or by the voters at large. It does provide that if a
city wants to increase or decrease the number of aldermen or wards, it must do so in accordance
with Section 6-3-101 of the charter, which prescribes the passage of an ordinance containing
certain information. For those reasons, it can be strongly argued that the voter base by which
persons are elected to office contained in charters surrendered by the adoption of the general law
mayor-aldermanic charter prior to 1978 survives the adoption of that charter.
But there is a stronger contrary argument. That argument is based on the fact that the
Private Acts 1909, Chapter 409 did not contain any residential requirements for aldermen, but
that both the general law mayor-aldermanic charter in effect when the City adopted it in 1987,
and the present general law mayor-aldermanic charter contain such a requirement. [Sections 61-403 and 6-1-103, respectively]. In addition, Tennessee Code Annotated, ' 8-48-101, provides
that “Any office in this state is vacated by....(3) ceasing to be a resident of state, or of the district,
circuit or county for which the incumbent was elected or appointed.” It is not clear that statute
applies to municipalities, but State ex rel. v. Wyrick v Wright, 678 S.W.2d 61 (Tenn. 1984)
appears to imply that it does. Logic suggests an important policy behind a residential
requirement for elected representatives. That logic is supported by School District No. 1,
Multnomah County v. State Board of Education, 441 P.2d 343 (Or. 1968). There a statute
provided that:
The area educations district board of education shall be comprised
of seven qualified members elected at large for four year terms
from the residents of the area education district or, if required in
the petition for formation of the district, from the residents of
zones established by the state board.....if the area education district
has been zoned, the members shall reside in the zone from which
he is elected or appointed.
The area education district in the case had been zoned. The question was whether
members of the district were required to be elected at large or from the zones. Holding that the
members were required to be elected from zones, the Court declared that the statute was capable
of being interpreted both ways, and therefore ambiguous, and reasoned:
A logical purpose of zoning is to get all parts of the district
represented on the district’s board of directors. It is clear that a
director would probably more closely represent the interest of the
voters of his zone if he were elected by them rather than by the
voters of the entire district. If elected at large, a director could be
the choice of a minority of those residing in the district he
represents and still be elected....While it is true that the legislature
has in some instances provided that the representatives of zones
should be elected by the voters of a larger area of which the zone is
a part, we believe that where zones are established and no
provision or ambiguous provisions are included for the election of
the zone’s representative, the method of election should be adopted
which more completely carries out the theory of the purpose of
zoning, which is representation for the residents of all zones within
the larger area. [At 246]
That logic seems compelling where a statute provides for wards, and requires the
representatives of those wards to live in them, to the extent that if they remove from the wards
they are either presumed to have vacated, or actually have vacated, their offices. I think that the
Tennessee courts would pay a great deal of attention to the policy recited in School District No.
1.
In fact, in an oblique way, the Tennessee Supreme Court has already independently done
so. In State ex rel. Lockert v. Crowell, 631 S.W. 702 (Tenn. 1983), the Court said this about
crossing county lines for redistricting purposes:
While the Constitution contains no express denunciation of two or
more representatives being elected at-large in a multi-county
district, permitting such districts would collide head-on with the
purpose and rationale of the provision mandating that counties
having two or more representatives be divided into single member
districts. The 1956 Constitutional Convention mandates singlemember districts for urban counties and it would be antagonistic to
that decision to allow at-large elections of legislators in multicounty districts. We think it was clearly their intent that the entire
state have single member districts and we feel compelled to hold
that Article II, Section of the Tennessee Constitution prohibits two
or more representatives from being elected at-large in a multi-
county district.
While the United States Supreme Court has not held multi-member
districts in apportionment plans unconstitutional per se, the Court
in Chapman v. Maier, 420 U.S. 1, 95 S. Ct 751, 42 LED.2d 766
(975) perhaps evinced disapproval of such districts in identifying
their disadvantages to the electorate as follow:
Notwithstanding the past acceptance of multi-member
districting plans, we recognize that there are practical weaknesses
inherent in such schemes..... First, as the number of legislative
seats within the district increases, the difficulty for the voter in
making intelligent choices among candidates also increases.
[citations omitted] Ballots tend to become unwieldy, confusing,
and too lengthy to allow thoughtful consideration. Second, when
candidates are elected at large, residents of particular areas
within the districts may feel that they have no representative
especially responsible to them. Third, it is possible that block
voting by delegates from a multi-member district may result in
undue representation of residents of these districts relative to voters
in single member districts. [At 844-45]
Both Crowell [and Crowell II, 631 S.W.2d 762 (1982)], dealt with reapportionment in
which the protection of minority voting rights was an issue, and those cases were later banged
around by the U.S. Sixth Circuit Court of Appeals, but both still reflect the Tennessee Supreme
Court’s position on the policy supporting elections from districts. That appears especially true of
the second reason cited in Crowell, above. Indeed, while the U.S. Supreme Court has never
found at large elections a violation per se of minority voting rights, it is clear that where such
violations have occurred, the courts have tossed out at-large elections in favor of district elections
because in district elections the person elected to represent the district will more likely represent
its interests. I will not go into those cases because it appears to me that in Crowell, Tennessee’s
own Supreme Court has recognized that advantage of district elections, even in state elections.
For policy reasons, then, I think that where a charter mandates both that wards be
established and that persons elected to represent those wards live in the wards they represent, but
is silent as to the voting base from which such persons are to be elected, the Tennessee courts
would require they be elected only by the voters in those wards. The cardinal rule of statutory
construction is the intent of the legislature, and it appears to me that where the above conditions
are present in a charter, such as the general law mayor-aldermanic charter, it is the intention of
the legislature that aldermen be elected by their wards.