October 10, 2006
Dear Administrator of Elections:
I have searched Tennessee law in vain for some clue as to how the county election
commission is supposed to determine which two nonresident property owners are entitled to vote
under Tennessee Code Annotated, ' 2-2-107(a)(3). I have also searched the law in other states in
vain for an answer to the same question.
The genesis of Tennessee Code Annotated, ' 2-2-107(a)(3) is probably Brown v. Board
of Commissioners of the City of Chattanooga, Tennessee, 722 F. Supp. 380 (E.D.
Tenn. 1989). There the Federal District Court for the Eastern District of Tennessee
held that the method of electing the City of Chattanooga=s Board of Commissioners
violated the Voting Rights Act of 1965, and that the Chattanooga charter provision
allowing nonresident property owners to vote on the basis of tiny amounts of
property ownership violated the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution.
With respect to nonresident property ownership voting, in 1989 Tennessee Code
Annotated, ' 2-2-107 did not provide a limit on how many people could vote on the basis of the
ownership of a single piece of property. The two person limit came with the passage of Public
Acts 2003, Chapter 134, codified in Tennessee Code Annotated, ' 2-3-107(a)(3). That limit
probably stems from what the Court said in Brown, above, about unrestricted numbers of voters
tied to one piece of property:
The difficulty, however, with Chattanooga=s charter provision is
that it contains no limitation as to any minimum property value
required for the exercise of the franchise. The record of this case
shows that as many as 23 nonresidents have been registered to vote
on a single piece of property in the city. By way of further
example, 15 nonresidents are registered to vote as co-owners of
one parcel of property which has an assessed value of $100. [At
399]
In footnote 24, the Court observed that, AAs plaintiffs have pointed out, the law currently
would permit Mummar el Qaddafi to buy a parcel of land in Chattanooga and deed it to
thousands of Libyans who would then be able to control the outcome of Chattanooga=s
elections.@ [At 399]
October 10, 2006
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The Court did not strike down nonresident voting in the City of Chattanooga, but
declared that the city=s nonresident property owner voting system violated the Equal Protection
Clause, and declared that, AIf Chattanooga wishes to give nonresidents the right to vote in
municipal elections, the city charter [Emphasis is mine.] must use means Amore finely tailored
to achieve the desired goal.@ [Citations omitted by me.] [At 399]
The Court said this about Tennessee Code Annotated, ' 2-2-107:
T.C.A. ' 2-2-107(a) is merely permissive, in that it only authorizes
municipalities to permit nonresidents to vote. Municipalities are
not specifically advised by the statute about how this might be
accomplished, and it would appear that municipalities have some
discretion as to this. The action of the municipality ultimately
determines whether and defines which [Emphasis is the court=s.]
nonresidents can vote. Therefore, T.C.A. ' 2-2-107(a) will be
construed only to authorize municipality to permit nonresidents to
vote consistent with the Fourteenth Amendment. [At 400]
But many years later, the question of the number of nonresident property owners entitled
to vote on the basis of a single piece of property was resolved for the state by Public Acts 2003,
Chapter 134, codified in Tennessee Code Annotated, ' 2-2-107. But that Act did not resolve the
question of which two nonresident property owners could vote. In theory, the gap between the
limit on two voters in Tennessee Code Annotated, ' 2-2-107(a)(3), could be filled by a private
act, but Tennessee Code Annotated, ' 2-2-103 says that, AAll elections for public office, for
candidacy for public office, and on questions submitted to the people shall be conducted under
this title.@ For that reason, I am not sure that a private act could resolve that question. In any
event, your City Charter contains no provision for making a determination as to which two
nonresident property owners can vote.
The obvious occurs to me: That the first two persons that register to vote should be
selected on the basis of AFirst in time, first in right.@ But I doubt that a municipality can
arbitrarily decide for itself which people are entitled to vote under Tennessee Code Annotated, '
2-2-107(a)(3). For that reason, I would check with the State Election Commission for a reading
on how that selection should be made in the upcoming election.
Sincerely,
Sidney D. Hemsley
October 10, 2006
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Senior Law Consultant
SDH/