Opposition Brief — May v. Town of Mountain Village

No. 97-1738

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Ea I I a i

In The

Supreme Court of the United States

4-

October Term, 1997

JOAN MAY, WILLIAM FELICELLI, JOHN RIELLY, PETER

CHADMAN, VIRGINIA OGLESBY and DAVID

HOLUBETZ,

Petitioners,

TOWN OF MOUNTAIN VILLAGE, a Colorado Municipal

Corporation, ef al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

J. DAVID REED MICHAEL T. GILBERT

J. DAVID REED, P.C. Counsel of Record

1047 South First Street 1200 Seventeenth Street

P.O. Box 196 Suite 1420

Montrose, Colorado 81402 Denver, Colorado 80202

(970) 249-3806 (303) 572-6700

Attorneys for Respondents

) utz

(800) 274-3321 * (800) 359-6859 EA ppelliate

A DIVISION OF COUNSEL PRESS Services, inc

QUESTION PRESENTED

Does the Equal Protection Clause of the Fourteenth

Amendment require strict scrutiny for claims of vote dilution

based upon state laws that expand the right to vote in general

municipal elections?

il

PARTIES TO THE PROCEEDING

The petition fails to identify properly the parties to the

proceeding. In addition to the Town, which is named as a

respondent, Petitioners sued individual Town Council members

in their official! and personal capacities, and, pursuant to

42 U.S.C. § 1983, Petitioners sought both compensatory and

punitive damages. The individuals sued below were Darrell

Huschke, Julie Cram, David Disick, David C. Flatt, Steve

Hilbert, Doug Tueller, and Linda Rodgers. Although the

individual Respondents were appellees in the Tenth Circuit,

Petitioners fail to identify them in the petition.

lil

TABLE OF CONTENTS

Page

ee epee ce wees eee i

Py OP I III 6k ks ccc cnn c ne wesneeseens ii

a ets Ai oo bd oes Vas 6 oa 8 ili

RR OR Ce pre a iv

Constitutional Provision Involved But Not Set Forth In

ee erie ha GG Wh ewe sdices

ee rie ere eee 2

ee OP a say pc ek a badd eee ceces 2

B. Home Rule Towns in Colorado Expressly Have

Been Granted Plenary Power Over Local

ee i aa tae 4c h.6 sce wows vice ees s 4

C. Petitioners Are an Ill-Defined Minority Seeking

To Overturn the Vote of the Town’s Residents.

URRMIEU AGS (Cao Vee ene sat evscawees 5

iil. Reasons for Denying the Writ ................. 6

A. There Is No Conflict Among the Circuits: Lower

Courts Uniformly Have Applied Rational Basis

Review to Claims of Vote Dilution Based upon

Expanding the Right To Vote. .............. 6

Contents

Page

|. Decisions from the Second, Fifth, and Sixth

Circuits Have Applied Rational Basis Review

to State Laws that Allow Nonresident

Landowners To Vote in General Municipal

OE Pee ery eee eee re toe ier 6

2. Decisions from the Fifth, Sixth, Seventh,

Tenth, and Eleventh Circuits Have Applied

Rational Basis Review to State Laws that

Allow Nonresidents To Vote in Special

District and School Board Elections. .... 8

B. The Tenth Circuit’s Decision Is Correct, and Is

Not Contrary to any Relevant Decisions of this

e.g Cee Fae bon es i age Ie ee 12

C. The Present Issue Rarely Arises. ............ 15

D. Even if the Present Issue Were Certworthy, this

Would Not Be an Appropriate Case To Review

because Petitioners Expressly Conceded Below

that Strict Scrutiny Was Not the Appropriate

URE UE OU S.. ak dee Ma Aes a % 16

ekp SNE Gay Sick ola Koen EGR ER Oka eo wite ws 17

TABLE OF CITATIONS

Cases Cited:

Abate v. Mundt, 403 U.S. 182 (1971) .............. 13

V

Contents

Page

Alexander v. Town & Country Estates, Inc., 535 ¥.2d4

ie 4 A eee oe re rerr Serer 17

Andrews v. Linden, 284 So. 2d 398 (Fla. Ct. App. 1973)

Oe ee ET Pe eee ee eer 8

Angel v. City of Fairfield, Tex., 793 F.2d 737 (Sth Cir.

PRNEE vasdcreudelv dbase veuescdes tive eee Ye

Avery v. Midland County, Tex., 390 U.S. 474 (1968) 5

Bau Me Jes. BST 3. Se ChE) ava > 6 00 be eae 14, 15

Bjornestad v. Hulse (Sierra Lakes Water Dist.), 281 Cal.

RT, 2e Cae , SE PE) ek Con veseuear 9, 11, 13, 14

Board of Estimate of City of New York v. Morris, 489

te Gt Re PEP ee eePe CPT ren pes se 13

Bobo v. Mayor of Savannah Beach, Tybee Island, 114

S.E. 2d 374 (Ga.), cert. denied, 364 U.S. 409

CRUE. abil ne ae craven CRA KOE wos 5 eee aan 12, 15

Brown v. Board of Comm'rs of Chattanooga, Tenn., 722

. Sepp. Jeu. CE.i). TOUR. TFG) ccccc ewes 8, 13, 14, 15

Bullock v. Carter, 405 U.S. 134 (1972) ............ 12

Burdick v. Takushi, 504 U.S. 428 (1992) ........... 12, 14

Cantwell v. Hudnut, 566 F.2d 30 (7th Cir. 1977), cert.

WONied, SIF Tie. EERO (CIGD oe oka wk hee ees ae

ve J

Contents

Capps v. Humble Oil & Refining Co., 536 F.2d 80 (Sth

Cie. 1976) «2+ ison eh aee eee e Urea tan haba ass

Castleberry v. NRM Corp., 470 F.2d 1113 (10th Cir.

GTZ) .. cvnvudewevnes eer eles eee yee

Cipriano v. City of Houma, 395 U.S. 701 (1969) ....

Clark v. Town of Greenburgh, 436 F.2d 770 (2d Cir.

1971) .vccweveaweats oon raee beware eee

Collins v. Town of Goshen, 635 F.2d 954 (2d Cir. 1980)

,etveahs ones €hengey eee i hae toe ad bide

Creel v. Freeman, 531 F.2d 286 (Sth Cir. 1976), cert.

denied, 429 U.3: FOR Gis Fe clk eo ee Rs

Davis v. Linville, 864 F.2d 127 (11th Cir. 1989) .....

Duncan v. Coffee County, Tenn., 69 F.3d 88 (6th Cir.

1995)

Dunn v. Blumstein, 405 U.S. 330 (1972)

Evans v. Corman, 398 U.S. 419 (1970)

Glisson v. Mayor & Councilmen of Savannah Beach,

Tybee Island, 346 F.2d 135 (Sth Cir. 1965)

Greenwood v. Singel, 823 F. Supp. 1207 (E.D. Pa.

1993)

Page

13,

17

nr

15

9

9

ae

vil

Contents

Page

Harper v. Virginia State Bd. of Elections, 383 U.S. 663

CE ge Oe a sr Ela wea hk a hee aoe 13

Hisgen v. Rileigh, 115 So. 2d 715 (Fla. Ct. App. 1959)

ae eee ie OL Wes Ga hd ke KEe CMN ewe kes 8

Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60

RE eo ay cea is kin 4 Cake bee CON CoO Ne RS 5, 11

Kramer v. Union Free School District, 395 U.S. 621

eS egy pa Ad baw A OS 13, 14

Locklear v. North Carolina State Board of Elections, 514

en Pee Sa RED) aw dbp e see seeds veckae 9

McDonald v. Board of Election Comm'rs of Chicago,

ee APL MD RENO), bb's seh bod a Reape open ww on 13

Minor v. Happersett, 21 Wall 162 (1875) ........... 12

Parham v. Hughes, 441 U.S. 347 (1979) ........4.. 6

People ex rel. Tate v. Prevost, 134 P. 129 (Colo. 1913)

ot OGG ESE ee oe ae tee he ee ee 6

Phillips v. Beasley, 78 F.R.D. 207 (N.D. Ala. 1978), rev'd,

ee ee Ct EE, EMEP sv vce eepetesaenee’s 9

Phoenix v. Kolodziejski, 399 U.S. 204 (1970) ....... ia, 49

Reynolds v. Sims, 377 U.S. 533 (1964) ...........-. 13

Vill

Contents

Page

Rodriguez v. Popular Democratic Party, 457 U.S. |

CREE SR Na ows WA eke tk ROTM RE AAD RES 12, 14

Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.,

SA Wah. TEE COTTER (hae oe enadec rauteeerrne 14

San Antonio Independent School Dist. v. Rodriquez, 411

Paes EUS EOE. VeROS ARRON e AER Ree eee 12

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26

CEP PEE. Wane vd h ds eGuide Caled bl CSS REE Rees 7

Snead v. City of Albuquerque, 663 F. Supp. 1084

(D.N.M.), aff'd, 841 F.2d 1131 (10th Cir. 1987), cert.

denied, 465.0.5.: 1009 (19GS) . ks cere kseu 9, 12,45, 14

Spahos v. Mayor & Councilmen of Savannah Beach,

Tybee Island, Ga., 207 F. Supp. 688 (S.D. Ga.), aff'd

per curiam, SIL U.S. 200 (PFGE) 66s cc csevevieven ay tae te

Wesberry v. Sanders, 376 U.S. 1 (1964) ............ 13

United States Constitution Cited:

SEs UII 6 g's cs ack tans panes ate i, 6

gp PPP EC UE TC TTS Cer Pee ar 10

Nineteenth AMCNGMeONE .. 0... ccc cee es cccveseecess 10

TOURER ATIC GRIOEE oon ain ca ee eee Sede recs 10

[x

Contents

Page

Other Authorities Cited:

Ce Cee ee ee ed ade i butaksat ar adebewhaes 3.3

Cash Cee ee ee Oe 3h 6 cows ee eae kes REPRE eA ics

Cee COS. CHE. Tian GD 4.0 44 6 ORR Oh ORE 8 i>

Town’s Home Rule Charter Section 2.4(b) .........2, 4,5, 7

APPENDIX

Appendix 1 — Constitution of the State of Colorado,

Sie TE SOOO i pen viwas vaeecte keel la

Appendix 2 — Excerpts of Transcript of Proceedings

Dated September 18, 1996 .........-. ee eeeeeees Sa

I

Respondents, the Town of Mountain Village (“Town”) and

Darrell Huschke, Julie Cram, David Disick, David C. Flatt. Steve

Hilbert, Doug Tueller, and Linda Rodgers, hereby respond to

the Petition for Writ of Certiorari filed by Joan May, William

Felicelli, John Rielly, Peter Chadman, Virginia Oglesby, and

David Holubetz (“Petitioners”).

CONSTITUTIONAL PROVISION INVOLVED

BUT NOT SET FORTH IN PETITION

Article XX, § 6 of the Constitution of the State of Colorado

provides in pertinent part:'

The people of each city or town of this state . . . are

hereby vested with, and they shall always have,

power to make . . . the charter of said city or town,

which shall be its organic law and extend to all its

locai and municipal matters.

... [SJuch city or town, and the citizens thereof,

Shall have . .. all other powers necessary, requisite

or proper for the government and administration of

its local and municipal matters, including power to

legislate upon, provide, regulate, conduct and

control:

d. All matters pertaining to municipal elections in

such city or town ... including the registration of

voters. ...

1. The full text of Article XX, § 6 is set forth in the attached Appendix |.

I. STATEMENT OF THE CASE

Section 2.4(b) of the Town’s Home Rule Charter (““Charter’’)

extends the right to vote in the Town’s local elections to owners

of real property located within the Town but who are not legal

residents of the Town so long as they: (a) have been owners of

record for at least 30 consecutive days immediately prior to the

date of the election; (b) during that 30 days owned a minimum

of 50% of the fee title interest in certain real property; (c) are at

least 18 years old on the date of the election; and (d) are natural

persons. (App. A at 5a).’

A. The Town Is Unique.

The Town is located approximately 325 miles southwest

of Denver in the San Juan Mountains in San Migue!i County,

Colorado. /d. at 3a. As of July 1993, all of San Miguel County

had only about 4,300 permanent residents. Jd. The Town

consists of approximately 2,049 acres of land located on the

side of a ski mountain adjacent to the Town of Telluride,

Colorado. /d.

The Town lies in a picturesque box canyon at the end of a

winding two-lane road. Only about 2,000 people live

permanently in the valley, and it is very expensive to do so.

People are not forced by circumstance to live in the area; they

move there for its beauty, and for the skiing and other recreational

opportunities it offers. Most of the homes in the Town are second

homes, and “without the significant revenues the nonresident

landowners have contributed to the Town, the Town might never

have come into existence.” Jd. at 13a-14a.

The Town was developed solely in connection with the

recreational opportunities created by the Telluride Ski Area. The

2. References to “App. A or B” are to the Appendices attached to the

petition.

Cesta dy ..- «e

center of the Town is located at the base of the ski area, and

contains the main gondola terminal which connects the Town

with Telluride, a golf course facility, single-family residential

units, duplex residential units, residential condominium units,

hotel rooms, commercial space for offices, restaurants, shops

and services, tennis courts, a swimming pool, cross-country

skiing trails, nature preserves, jogging trails, and bicycle and

hiking paths. Jd. at 3a-4a. The Charter was adopted to ensure

that the special nature of the resort community would be

safeguarded, that the beauty of the Town’s natural surroundings

would be preserved, and to encourage the recreational nature

of the Town. /d. at 6a.

The nature of the economy and the life-style of the people

of the Town are, and will in the future remain, atypical. For

example, the economy of the Town is based primarily upon the

resort industry and tourism. The Charter recognizes that another

respect in which the Town is unusual is that many of its present

and future residential property owners maintain and will continue

to maintain their primary residences elsewhere. See id.

The Town received voter approval to incorporate under

Colorado law at an election held on January 17, 1995. /d. at

4a. On March 7, 1995, an election was held on whether to

approve the proposed Charter. Only residents of the Town who

were registered to vote in San Miguel County were entitled to

vote in the Charter election. The Charter was approved by 75%

of the residents who voted. /d.°

The Town has approximately 568 permanent residents, of

whom approximately 505 are old enough to vote. See App. A

3. On March 10, 1995, the District Court in and for San Miguel County

issued an Order declaring that the Town had been validly incorporated and

that the Town had adopted a Home Rule Charter under the provisions of

Article XX of the Colorado Constitution. App. | at 4a.

4

at 7a. In addition to the 505 potential resident voters, there are

approximately 541 nonresident property owners qualified to

vote pursuant to section 2.4(b) of the Charter. Jd. Nonresidents

entitled to vote under section 2.4(b) currently own over 34%

of the assessed value of real property in the Town, whereas

residents own only about 4%.* Jd. Nonresident property owners

pay over eight times more in property taxes than the residents

do. /d. It is anticipated that in the future nonresident property

owners will continue to contribute significant revenues to the

Town in the form of fees, licenses, sales taxes, ad valorem

property taxes, and special assessments. /d. The Charter grants

the Town the right to establish land use standards, community

services, enact municipal ordinances, adopt capital improvement

programs, establish property and other taxes, borrow money,

issue bonds, create special improvement districts, control public

utilities and establish rates therefor, and to condemn property.

Id. at 7a-8a. The Town clearly has the power to significantly

affect the nonresident landowners. The Charter took cognizance

of this singular state of affairs by granting to nonresident

property owners the right to vote on issues “strictly limited in

nature to Town matters.”* See id. at 8a. The Charter gives

nonresident landowners “a voice in the affairs of the Town,

including taxes to be paid and how tax dollars will be spent.”

Id.

B. Home Rule Towns in Colorado Expressly Have Been

Granted Plenary Power Over Local Elections.

As this Court has recognized, in order to address the myriad

complexities facing local government, states are granted

4. About 61% of the assessed value of real property located in the

Town is owned by nonresident corporations and trusts which are not entitled

to vote. App. A. at 7a.

5. This limitation precludes nonresident voters from voting twice on

any state or national issues.

5

extraordinarily wide latitude in creating various types of political

subdivisions and conferring authority on them. Holt Civic Club

v. City of Tuscaloosa, 439 U.S. 60, 71 (1978). States

characteristically provide for representative government at the

local level, and not infrequently do so by delegating power to

local units of government by “constitutional provisions for local

home rule which are immune from legislative interference.”

Avery v. Midland County, Tex., 390 U.S. 474, 481 (1968).

Colorado long ago recognized the wisdom of delegating

power to local government: in 1912, Colorado enacted Article

XX of the Colorado Constitution. The intent of Article XX is

“to grant and confirm to the people of all municipalities coming

within its provisions the full right of self-government in both

local and municipal matters.” CoLo. Const. art. XX, § 6. The

act specifically delegates to home rule towns the power to

“legislate upon, provide, regulate, conduct and control ... all

matters pertaining to municipal elections in such ... town.”

Coto. Const. art. XX, § 6(d). Section 2.4(b) was enacted

pursuant to this grant of authority.

C. Petitioners Are an Ill-Defined Minority Seeking To

Overturn the Vote of the Town’s Residents.

When 75% of the Town’s residents voted to enfranchise

the nonresident landowners, they were exercising the power

granted to them by Article XX, § 6 of the Colorado Constitution.

Petitioners seek to override the political decision made by the

Town’s residents.

Petitioners’ various filings below raise an obvious question:

just who is seeking to vitiate the popular vote of the electorate?

Petitioners filed the case originally as a class action on behalf

of all residents of the Town. Yet, of the residents who voted,

75% voted to approve the Charter. The truth is that this case is

6

being prosecuted on behalf of an ill-defined and unrepresentative

minority who have resorted to the judicial process to accomplish

what they were unwilling or unable to do politically.

In the absence of invidious discrimination, however,

a court is not free under the o-gis of the Equal

Protection Clause to substitute its judgment for the

will of the people of a State as expressed in the laws

passed by their popularly elected legislatures.

Parham v. Hughes, 441 U.S. 347, 351 (1979); see also People

ex rel. Tate v. Prevost, 134 P. 129, 133 (Colo. 1913) (certain

issues best left “to be fought out on the hustings and determined

by the people at the polls.”).

Il. REASONS FOR DENYING THE WRIT

A. Tere Is No Conriict AMONG THE Circuits: Lower Courts

UNIFORMLY Have Appiiep RATIONAL Basis REVIEW TO

CLAIMs OF VoTE DiLuTION BASED UPON EXPANDING THE RIGHT

To Vore.

1. Decisions from the Second, Fifth, and Sixth Circuits

Have Applied Rational Basis Review to State Laws

that Allow Nonresident Landowners To Vote in

General Municipal Elections.

The sole issue properly raised by the petition is whether

the Equal Protection Clause of the Fourteenth Amendment

requires that strict scrutiny invariably be applied to vote dilution

claims based upon state laws that expand the right to vote in

general municipal elections.° The Tenth Circuit properly held

6. Although the petition lists four “Questions Presented,” the first and

third issues are the same. The second issue — whether constitutional rights

(Cont'd)

iia ices nseciiatininccrievroni min dade Utebdinne deo dsi8

7

that it did not. Using rational basis review, the Tenth Circuit

held section 2.4(b) constitutional because there was a rational

basis to allow nonresident landowners to vote in Town

elections.’

Petitioners concede, as they must, that there is no conflict

among the circuits. The Tenth Circuit’s decision is consistent

with decisions from the Fifth Circuit, one of which has been

affirmed by this Court. See Glisson v. Mayor & Councilmen of

Savannah Beach, Tybee Island, 346 F.2d 135, 137 (Sth Cir.

1965); Spahos v. Mayor & Councilmen of Savannah Beach,

Tybee Island, Ga., 207 F. Supp. 688 (S.D. Ga.), aff’d per

curiam, 371 U.S. 206 (1962). Both decisions are

indistinguishable from the present case.*

(Cont'd)

can be deprived by majority vote — relates to dictum in the Tenth Circuit's

opinion, was not raised or argued below, and is not properly before this

Court. See, e.g., Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (Sth

Cir. 1976) (cannot raise new theory on appeal that was not presented below).

As to the fourth issue — whether section 2.4(b) is unconstitutional because

the Town did not also enfranchise nonresidents who do not own land in the

Town but nevertheless might be interested in participating in its elections —

it too was not raised below. In addition, because Petitioners here are all

residents, they lack standing to raise this argument. See Petition at 2 (“residents

of the Town brought this proceeding. . . .”); Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 40 (1976) (injury in fact necessary to confer

standing).

7. Petitioners do not challenge the Tenth Circuit’s conclusion that the

Town had a rational basis to enfranchise nonresident landowners.

8. See also Angel v. City of Fairfield, Tex., 793 F.2d 737, 740 (Sth Cir.

1986) (votes of residents not unconstitutionally diluted by allowing

nonresidents to vote in general municipal elections because “[w]hen

nonresidents were allowed to vote . . . all of the qualified voters were treated

alike, and their respective votes were diluted to the same extent.”).

Petitioners are wrong in asserting that only the Fifth Circuit

has addressed the present issue. See Petition at 19. Although

the issue rarely arises, it has been addressed by two Second

Circuit cases, both of which applied rational basis review to

challenges to state laws that allowed nonresidents to vote in

general municipal elections. See Collins v. Town of Goshen,

635 F.2d 954, 959 (2d Cir. 1980) (Friendly, J.); Clark v. Town

of Greenburgh, 436 F.2d 770, 772 (2d Cir. 1971).

The issue was also addressed in a district court case from

the Sixth Circuit. See Brown v. Board of Comm'rs of

Chattanooga, Tenn., 722 F. Supp. 380 (E.D. Tenn. 1989). After

carefully analyzing the relevant federal cases, the court in Brown

applied rational basis review to a voie dilution claim based upon

a provision in the city charter which allowed nonresidents to

vote in general municipal elections. /d. at 398.’ Every reported

case that has addressed a vote dilution claim based upon a law

which granted nonresident landowners the right to vote in

general municipal elections has applied rational basis review.

2. Decisions from the Fifth, Sixth, Seventh, Tenth, and

Eleventh Circuits Have Applied Rational Basis

Review to State Laws that Allow Nonresidents To

Vote in Special District and School Board Elections.

As the Tenth Circuit reasoned:

Of critical importance to any decision here is the

fact that Section 2.4(b) of the Town Charter does

not restrict the right to vote — it expands it to include

nonresidents owning real property in the Town. As

9. Two Florida cases also held constitutional statutes that allowed

nonresident property owners to vote in general municipal elections. See

Andrews v. Linden, 284 So. 2d 398 (Fla. Ct. App. 1973); Hisgen v. Rileigh,

115 So. 2d 715 (Fla. Ct. App. 1959).

9

pointed out by the District Court, “[w]Jhere a law

expands the right to vote causing vote dilution, the

rational basis test has been applied by the vast

majority of courts.”

App. A at 9a-10a. As discussed above, every court that has

addressed a vote dilution challenge to a law allowing

nonresident landowners to vote in general municipal elections

has applied rational basis review. In addition, the Fifth, Sixth,

Seventh, Tenth, and Eleventh Circuits have all applied rational

basis review to vote dilution claims based upon nonresident

voting in special district and school board elections. See Creel

v. Freeman, 531 F.2d 286 (Sth Cir. 1976) (school board), cert.

denied, 429 U.S. 1066 (1977); Duncan v. Coffee County, Tenn.,

69 F.3d 88 (6th Cir. 1995) (school board); Cantwell v. Hudnut,

566 F.2d 30, 37 (7th Cir. 1977) (special district), cert. denied,

439 U.S. 1114 (1979); Snead v. City of Albuquerque, 663 F.

Supp. 1084 (D.N.M.) (special district), aff’d, 841 F.2d 1131

(10th Cir. 1987), cert. denied, 485 U.S. 1009 (1988); Davis v.

Linville, 864 F.2d 127 (11th Cir. 1989) (Superintendent of

Education).'°

A cogent analysis of the proper standard of review to apply

to vote dilution claims based upon expanding the franchise is

set forth in Duncan, 69 F.3d 88. There, the Sixth Circuit

10. See also Bjornestad v. Hulse (Sierra Lakes Water Dist.), 281 Cal.

Rptr. 548 (Cal. App. 1991) (special district). Although not cited in the petition,

Locklear v. North Carolina State Board of Elections, 514 F.2d 1152 (4th

Cir. 1975), stands alone among all the federal cases in applying the compelling

interest test to an Equal Protection claim of vote dilution in a school board

election. Locklear has been discredited by Duncan, 69 F.3d at 94, where the

Sixth Circuit found that Locklear’s compelling interest standard “would be

unworkable,” and was based “largely on the misuse of the term vote dilution.”

Id. Phillips v. Beasley, 78 F.R.D. 207 (N.D. Ala. 1978), rev'd, 634 F.2d 947

(Sth Cir. 1981), also disapproved of, and declined to follow, Locklear.

10

observed that “[m]erely expanding the voter roles is, standing

alone, insufficient to make out a claim of vote dilution.” /d. at

94. A contrary holding would be likely to result in

unconstitutional vote dilution every time the franchise is

expanded. For example, in 1870, the Fifteenth Amendment

extended the right to vote to all persons regardless of “race,

color, or previous condition of servitude.” This necessarily

diluted the voting power of white males. In 1920, the Nineteenth

Amendment extended the franchise to women, thereby diluting

the votes of all males. And, in 1971, the Twenty-Sixth

Amendment extended the franchise to persons eighteen years

of age or older, thereby diluting the votes of all persons twenty-

one or older. If dilution alone were sufficient to sustain an Equal

Protection claim, white males twenty-one and older might be

the only persons entitled to vote in the United States. Of course,

this would be absurd. As explained in Duncan:

Naturally, any time voters are added to the rolls...

those already on the rolls have had their votes

diluted. Therefore, “vote dilution” is properly

understood to be a constitutional term of art. As such,

mere expansion of the class of persons eligible to

vote does not, per se, imply unconstitutional vote

dilution.

Duncan, 69 F.3d at 94 n.3. It is only when there is not a rational

reason to extend the franchise that unconstitutional vote dilution

occurs. /d. at 94.

Duncan elucidates the policy which requires that rational

basis review be applied to laws that expand the franchise:

We conclude that the systematic use of the compelling

State interest test in cases such as this would be

unworkable, and is not constitutionally required. . . .

Merely expanding the voter roles is, standing alone,

1]

insufficient to make out a claim of vote dilution.

The reason for this conclusion can best be illustrated

by an example. If a political entity elects to alter its

voting requirements, for example by lowering the

voting age, it will expand the voting rolls. This

dilutes the votes of those already registered to vote.

But it does not do so unconstitutionally, even though

the state does not have a compelling state interest in

lowering the voting age. Similarly, if a state cut its

durational residence requirement in half, it would

expand the rolls, but there would still not be an

unconstitutional dilution of votes even though the

state did not have a compelling state interest in

altering the old residence requirement.

To hold otherwise would ... make any expansion

of the voting rolls subject to attack because the state

did not have a compelling state interest warranting

the change. This would leave the scope of the

franchise static and virtually unchangeable.

Duncan, 69 F.3d at 94-95.

There are strong reasons to apply only rational basis review

to state laws that expand the franchise. As recognized by the

court in Bjornestad, “[i]n the rational basis cases, the election

laws expand rather than restrict the franchise. ... [A] strict

scrutiny approach may hamper the creation of innovative local

government units.” 281 Cal. Rptr. at 562. Applying strict

scrutiny would also impede local governments from expanding

the voting rolls to include more people in the political process,

and would unnecessarily limit the extraordinarily wide latitude

granted to local government. See Holt, 439 U.S. at 71.

/

{

12

B. Tue Tentu Circuit’s Decision Is Correct, anp Is Nor

CONTRARY TO ANY RELEVANT DECISIONS OF THIS COURT.

Petitioners contend that the Tenth Circuit ignored “consistent

decisions of this Court” that establish an “inviolate principle

that residents, and only residents, elect their government.”

Petition at 6. Petitioners argue that “an unbroken string of cases”

required the lower court to apply strict scrutiny. /d. at 8.

Petitioners are wrong on both counts.

First, there is no authority — and Petitioners cite none —

which grants residents the exclusive right to elect local

government officials. See, e.g., Bobo v. Mayor of Savannah

Beach, Tybee Island, 114 S.E. 2d 374, 376 (Ga.), cert. denied,

364 U.S. 409 (1960).

Second, although the Court indicated in Burdick v. Takushi,

504 U.S. 428 (1992), that voting is of “fundamental significance

under our constitutional structure,” it nevertheless held that not

every voting regulation is subject to strict scrutiny.'' Jd. at 433.

Petitioners here, like the petitioner in Burdick, “proceed[ ] from

the erroneous assumption that a law that imposes any burden

upon the right to vote must be subject to strict scrutiny. Our

cases do not so hold.” /d. at 432; see also ‘Bullock v. Carter,

405 U.S. 134, 143 (1972) (“not every limitation or incidental

11. See also Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9

(1982) (the “Court has often noted that the Constitution ‘does not confer the

right of suffrage upon any one,’ and that ‘the right to vote, per se, is nota

constitutionally protected right.’ ”; quoting Minor v. Happersett, 21 Wall 162

(1875), and San Antonio Independent School Dist. v. Rodriquez, 411 U.S.

1, 35 (1973)); Greenwood v. Singel, 823 F. Supp. 1207, 1212 (E.D. Pa.

1993) (rejecting argument that strict scrutiny applies to all statutes concerning

the electoral process); Snead, 663 F. Supp. at 1087 (“Simply because the

issue involved voting classifications [is] insufficient to” require strict

scrutiny).

13

burden on the exercise of voting rights is subject to a stringent

standard of review.”); McDonald v. Board of Election Comm'rs

of Chicago, 394 U.S. 802, 806-09 (1969).

Petitioners rely on two lines of cases in an attempt to evade

the virtually unanimous authority that has applied rational basis

review to vote dilution claims challenging state laws that expand

the right to vote. The first line consists of cases in which residents

have been precluded from voting. See, e.g., Dunn v. Blumstein,

405 U.S. 330 (1972), Phoenix v. Kolodziejski, 399 U.S. 204

(1970); Evans v. Corman, 398 U.S. 419 (1970); Cipriano v.

City of Houma, 395 U.S. 701 (1969); Kramer v. Union Free

School District, 395 U.S. 621 (1969); Harper v. Virginia State

Bd. of Elections, 383 U.S. 663 (1966). The second line consists

of apportionment cases in which the votes of residents have

been weighted differentially. See, e.g., Board of Estimate of

City of New York v. Morris, 489 U.S. 688 (1989); Abate v.

Mundt, 403 U.S. 182 (1971); Reynolds v. Sims, 377 U.S. 533

(1964); Wesberry v. Sand- 376 U.S. 1 (1964).

The strict scrutiny applied to classifications which exclude

otherwise qualified residents from voting has been rejected

repeatedly where, as here, the challenged law expands the

franchise. E.¢., Duncan, 69 F.3d 88; Collins, 635 F.2d at 957-

58; Brown, 722 F. Supp. at 398; Snead, 663 F. Supp. at 1087;

Spahos, 207 F. Supp. at 692; Bjornestad, 281 Cal. Rptr. at

562.

The apportionment cases are similarly inapposite. As the

Seventh Circuit held in Cantwell, Reynolds and the other

apportionment cases do not apply when the alleged evil is the

expansion of the franchise and not differential weighting. 566

F.2d at 37.

Reynolds v. Sims and its progeny were concerned

with equalizing deviations from the equal population

14

principle in voting districts. These cases do not say

that an economic interest, such as property

ownership, is an impermissible criterion for

apportioning voting power in municipal elections.

Brown, 722 F. Supp. at 398 (“Over inclusiveness is a lesser

constitutional evil than under inclusiveness.”); Bjornestad, 281

Cal. Rptr. at 562-63. Petitioners do not challenge the Tenth

Circuit's finding that “[t]here is no evidence in this case of any

suspect classification of voters and equal weight is to be given

to the votes of residents and nonresidents.” App. A at 14a.

Accordingly, the Tenth Circuit’s application of rational basis

review is consistent with all relevant decisions of this Court,

and with the overwhelming weight of authority.

Finally, relying on Salyer Land Co. v. Tulare Lake Basin

Water Storage Dist., 410 U.S. 719 (1973), and Ball v. James,

451 U.S. 355 (1981), Petitioners contend that the Tenth Circuit

erred in applying rational basis »eview because all laws affecting

voting in general as opposed to special district elections must

be scrutinized strictly.'? Petition at 8-9. Both Salyer and Ball

involved challenges to state laws that limited voting in special

district elections to landowners (whether or not they resided

within the district). Petitioners in both cases were residents who

were denied the right to vote because they did not own real

property. In both cases, the Court applied rational basis review

and upheld the exclusion of residents from voting. On the other

hand, the Court has held that strict scrutiny is appropriate for

laws that excluded residents and allowed only property owners

to vote in school district elections, Kramer, 395 U.S. 621,

elections to approve the issuance of revenue bonds to finance

12. Petitioners’ argument that strict scrutiny must apply to any law

relating in any way to voting in general elections is refuted by Burdick, 504

U.S. 428, Rodriguez, 457 U.S. 1, Greenwood, 823 F. Supp. 1207, and Snead,

663 F. Supp. 1084.

15

local improvements, Cipriano, 395 U.S. 701, and elections to

approve the issuance of general obligation bonds, Kolodziejski,

399 U.S. 204."

These cases are easily harmonized: laws that exclude

residents from voting in general municipal elections are

reviewed using strict scrutiny; laws that exclude residents from

voting in special districts are reviewed using the rational basis

test. These cases do not address the standard of review to apply

to vote dilution claims based upon expanding the franchise to

allow nonresident property owners to vote in general municipal

elections. The cases which have addressed this issue uniformly

apply rational basis review. E.g., Angel, 793 F.2d 737; Collins,

635 F.2d 954; Clark, 436 F.2d 770; Glisson, 346 F.2d 135;

Brown, 722 F. Supp. 380; Spahos, 207 F. Supp. 688; Bobo,

114 S.E. 2d 374. The nature of the election does not determine

the standard of review; instead, the standard of review depends

on whether the law expands or restricts the franchise, and whether

it discriminates against similarly situated voters. There is no

conflict between this Court’s opinions and the Tenth Circuit's

decision.

C. Tue Present Issue RARELY ARISES.

Not since Spahos in 1962 has the present issue come before

the Court, and only a handful of federal cases have addressed it

since then. That few cases have addressed the issue confirms

that it arises infrequently. Very few municipalities have chosen

to enfranchise nonresident landowners, and there is no indication

that the Tenth Circuit's decision will lead to additional

municipalities doing so. Except for Chattanooga, Tennessee,

only tiny resort communities which contain a high percentage

13. The Court has characterized these elections as relating to “the

operations of traditional municipalities exercising the full ange of normal

governmental powers.” Ball v. James, 451 U.S. at 367 n.11.

16

of vacation homes have extended the right to vote in general

municipal elections to nonresidents. Accordingly, the Tenth

Circuit’s decision is not likely to have broad implication.

D. Even tf THE Present IssuE WERE CERTWORTHY, THIS WOULD

Not Be aN APPROPRIATE CASE To REVIEW BECAUSE

PETITIONERS Expressty CONCEDED BELOW THAT STPiCT

Scrutiny Was Nort THE APPROPRIATE STANDARD OF REVIEW.

Twice below Petitioners conceded that strict scrutiny did

not and should not apply. First, in briefing before the district

court, Petitioners conceded that “the standard usually applied

in cases where over-inclusion in the franchise is claimed is the

rational basis test.”'* Second, at oral argument on the parties’

cross motions for partial summary judgment, Petitioners again

conceded that strict scrutiny did not apply:

THE COURT: Well, do you concede, Mr. Satlow

{counsel for Petitioners], that I should apply the

rational basis test under these facts?

MR. SATLOW: No. I don’t argue — I would love

to argue for the strict scrutiny test. / won't argue for

it here. | think the vast majority of courts have said

that strict scrutiny doesn’t apply. ...

14. Petitioners argued that “it would be appropriate to use an intermediate

standard of scrutiny in cases involving vote dilution by alleged over-inclusion in

the franchise in a general government,” and suggested that this intermediate scrutiny

test “might be borrowed from the gender cases.” See also App. 2 at 6a. Petitioners

never cited any authority to support their suggestion that the district court create

new Equal Protection law in order to apply intermediate scrutiny to voting rights

claims. There is no such authority.

17

Appendix 2 at 6a (emphasis added).'* Having twice conceded below

that strict scrutiny did not apply, Petitioners should not be heard

to press that argument here. See, e.g., Alexander v. Town &

Country Estates, Inc., 535 F.2d 1081, 1082 (8th Cir. 1976);

Castleberry v. NRM Corp., 470 F.2d 1113, 1120 (10th Cir.

1972).

Ill. CONCLUSION

The petition should be denied.

Respectfully submitted,

MICHAEL T. GILBERT

Counsel of Record

1200 Seventeenth Street

Suite 1420

Denver, Colorado 80202

(303) 572-6700

J. DAVID REED

J. DAVID REED, P.C.

1047 South First Street

P.O. Box 196

Montrose, Colorado 81402

(970) 249-3806

Attorneys for Respondents

15. Petitioners filed the excerpt of the “Oral Argument Transcript of

Proceedings” that is attached as Appendix 2 with the Tenth Circuit as part of

their Appendix.

la

APPENDIX 1 — CONSTITUTION OF THE STATE

OF COLORADO, ARTICLE XX, SECTION 6

Section 6. Home rule for cities and towns. The people

of each city or town of this state, having a population of two

thousand inhabitants as determined by the last preceding census

taken under the authority of the United States, the state of

Colorado or said city or town, are hereby vested with, and they

shall always have, power to make, amend, add to or replace the

charter of said city or town, which shall be its organic law and

extend to all its local and municipal matters.

Such charter and the ordinances made pursuant thereto in

such matters shall supersede within the territorial limits and other

jurisdiction of said city or town any law of the state in conflict

therewith.

Proposals for charter conventions shall be submitted by the

city council or board of trustees, or other body in which the

legislative powers of the city or town shall then be vested, at

special elections, or at general, state or municipal elections, upon

petition filed by qualified electors, all in reasonable conformity

with section 5 of this article, and all proceedings thereon or

thereafter shall be in reasonable conformity with sections 4 and 5

of this article.

From and after the certifying to and filing with the secretary

of state of a charter framed and approved in reasonable

conformity with the provisions of this article, such city or town,

and the citizens thereof, shall have the powers set out in sections

1, 4 and 5 of this article, and all other powers necessary, requisite

or proper for the government and administration of its local and

municipal matters, including power to legislate upon, provide,

regulate, conduct and control:

2a

Appendix |

a. The creation and terms of municipal officers, agencies

and employments; the definition, regulation and alteration of the

powers, duties, qualifications and terms or tenure of all municipal

officers, agents and employees;

b. The creation of police courts; the definition and regulation

of the jurisdiction, powers and duties thereof, and the election or

appointment of police magistrates therefor;

c. The creation of municipal courts; the definition and

regulation of the jurisdiction, powers and duties thereof, and the

election or appointment of the officers thereof;

d. All matters pertaining to municipal elections in such city

or town, and to electoral votes therein on measures submitted

under the charter or ordinances thereof, including the calling or

notice and the date of such election or vote, the registration of

voters, nominations, nomination and election systems, judges and

clerks of election, the form of ballots, balloting, challenging,

canvassing, certifying the result, securing the purity of elections,

guarding against abuses of the elective franchise, and tending to

make such elections or electoral votes non-partisan in character;

e. The issuance, refunding and liquidation of all kinds of

municipal obligations, including bonds and other obligations of

park, water and local improvement districts;

f. The consolidation and management of park or water

districts in such cities or towns or within the jurisdiction thereof;

but no such consolidation shall be effective until approved by

the vote of a majority, in each district to be consolidated, of the

qualified electors voting therein upon the question;

3a

Appendix |

g. The assessment of property in such city or town for

municipal taxation and the levy and collection of taxes thereon

for municipal purposes and special assessments for local

improvements; such assessments, levy and collection of taxes

and special assessments to be made by municipal officials or by

the county or state officials as may be provided by the charter;

h. The imposition, enforcement and collection of fines and

penalties for the violation of any of the provisions of the charter,

or of any ordinance adopted in pursuance of the charter.

It is the intention of this article to grant and confirm to the

people of all municipalities coming within its provisions the full

right of self-government in both local and municipal matters and

the enumeration herein of certain powers shall not be construed

to deny such cities and towns, and to the people thereof, any

right or power essential or proper to the full exercise of such

right.

The statutes of the state of Colorado, so far as applicable,

shall continue to apply to such cities and towns, except insofar

as superseded by the charters of such cities and towns or by

ordinance passed pursuant to such charters.

All provisions of the charters of the city and county of Denver

and the cities of Pueblo, Colorado Springs and Grand Junction,

as heretofore certified to and filed with the secretary of state, and

of the charter of any other city heretofore approved by a majority

of those voting thereon and certified to and filed with the secretary

of state, which provisions are not in conflict with this article, and

all elections and electoral votes heretofore had under and pursuant

thereto, are hereby ratified, affirmed and validated as of their

date.

4a

Appendix 1

Any act in violation of the provisions of such charter or of

any ordinance thereunder shall be criminal and punishable as such

when so provided by any statute now or hereafter in force.

The provisions of this section 6 shall apply to the city and

county of Denver.

This article shall be in all respects self-executing.

Sa

APPENDIX 2 — EXCERPTS OF TRANSCRIPT OF

PROCEEDINGS DATED SEPTEMBER 18, 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

96 D 126

JOAN MAY, et al.,

Plaintiffs,

VS.

TOWN OF MOUNTAIN VILLAGE, et al.,

Defendants.

ORAL ARGUMENT

TRANSCRIPT OF PROCEEDINGS

Proceedings held before the HONORABLE WILEY Y.

DANIEL, U. S. District Judge for the District of Colorado,

beginning at 2:05 p.m. on the 18th day of September, 1996, in

Courtroom C-200, United States Courthouse, Denver, Colorado.

APPEARANCES

For the Plaintiffs: Barry Satlow, Esq.

1941 Broadway, #319

Boulder, Colorado 80302

For the Defendants: James David Reed, Esq.

101 East Colorado Avenue, #203

Telluride, Colorado 81435

6a

Appendix 2

Michael T. Gilbert, Esq.

Dennis J. Herman, Esq.

Williams, Youle & Koenigs

1200 — 17th Street, #1420

Denver, Colorado 80202

~ * *

[22] THE COURT: Well, do you concede, Mr. Satlow, that I

should apply the rational basis test under these facts?

MR. SATLOW: No. I don’t argue — I would love to argue

for the strict scrutiny test. 1 won’t argue for it here. I think the

vast majority of courts have said that strict scrutiny doesn’t apply.

First, I think under the rational basis test, I don’t think there’s a

rational basis that’s related to voting in general elections, and

that’s what it’s about, not do they own property in the town, do

they have an interest in the town, do they have a financial stake.

That might apply for property tax elections. It certainly doesn’t

apply for voting for the town council. And otherwise, it says

money buys a vote.

But we have argued that the Court should apply a different

standard. Rational basis is clearly not appropriate if it allows

anything And when you deal not with which district overlaps

which one and how many people and how much money goes

back and forth and how many school programs or things of that

sort are interrelated, but you’re [23] dealing with a municipality, a

general unit of government, there has to be a different test. And

the -«*¢ « e’ve suggested is an intermediate level scrutiny, and I’ll

come ic that. Before I leave the rational basis, let me say again

no case has said, has approved voting by non-resident landowners

in general elections where they don’t live in the county where the

town is located.

7a

Appendix 2

But with that said, let me go on to what we’ ve urged. If the

Court can’t reject this practice under the rational basis test, and I

think it should be able to, it should use an intermediate level of

scrutiny. And that has been defined as a substantial relationship

to an important governmental interest, and that’s used in cases,

principally gender, but in cases where the class is not suspect.

We don’t have a suspect class. But the use of the class, in effect,

may be a distinction without a difference, and we’ ve cited in our

reply brief — and the rejoinder was that we had cited no cases.

Well, there were cases cited there and that was kind of the last

minute as we were putting the brief together, but I wanted to

bring a couple cases that were cited there and just say very briefly

what they did, although again they’re in the treatise.

Craig v. Boron (phonetic), 429 U.S. 190 in 1976, and it threw

out a statute prohibiting the sale of 3.2 beer to males under age

21, while females at the age of 18 could [24] buy it. Mississippi

University for Women versus Hogan, 458 U.S. 718, 1982, threw

out for women only nursing school admission practice. And Orr

v. Orr at 440 U.S. 268 in 1979, threw out a statute providing for

alimony for wives but never for a husband. And these all used a

substantial relationship, there had to be an important governmental

interest, and the practice or the statute had a substantial

relationship, or substantial relationship to that.

The rational basis test is appropriate for general economic

benefits, for what government does in general, for social and

economic welfare, but not for individual rights like voting. And

where you have a fundamental right, where you know residents

have to be allowed to vote from a host of cases in general elections

and school board cases, et cetera, to allow a great many non-

residents in changes the franchise, changes it for them, limits

their franchise, reduces their vote just as much as mal-

apportionment does.

8a

Appendix 2

And if you look at it in very linear terms and say every person

who is allowed to vote gets the same vote, so it doesn’t matter,

it’s not like not counting all their votes, which was the analogy

used in the early reapportionment cases, it isn’t like — you know,

they could count us in, they get the same number of

representatives. You could look at it that way, but that’s a very

rigid test.

What’s really happening here is the votes of [25] residents

are being reduced by half or more. And I wish I could go into

Colorado law, because Colorado has never approved it, but let

me say about Colorado law only this. Those cases — in all those

cases, the state had either by the legislature approving a charter,

as in Savannah Beach, or by statute, the state allowed this kind

of voting, and again it was for non-residents who lived in the

county. But the state approved the practice. The state hasn’t

approved anything. This isn’t an experiment by the state. This is

one town in the mountains of Southwestern Colorado saying we’re

home rule so we can do anything we want. If we were a special

district, we know we couldn’t do it, and we have a special —

take a metro-services district or a metro district, and one of them

I know is for the gondola, but I must say I have not — for the ski

area, but I’m not completely familiar with it.

But they said we have a special district, they have to live in

the State of Colorado to vote. The homeowners association

doesn’t get to make general rules. A special district doesn’t get

to make all kinds of general rules, whether criminal or civil, as

long as they’re local. You know, they’re limited in their functions,

and that’s why the Supreme Court and other courts have given

wide sway to hold voting can be done in special district. But

there’s something special about a town. There’s some reason

they wanted a town, there’s something special in why the [26]

9a

Appendix 2

plaintiffs want to be able to control their own town, and they

don’t have to prove that the non-residents vote differently than

they do. They just have to prove that non-residents don’t live

there, that they own — yes, they own a lot of property, but no,

they don’t — they haven’t said I’m going to change my residence.

You don’t have to live there year round, because residency

is a matter of intent in Colorado, as in most states, you don’t

have to live there year round to be a resident. You have to say

this is my home, if I’m Oprah Winfrey or Donald Trump and

Sylvester Stallone or someone else and I live somewhere else, |

live in New York part of the year and that’s not my main home, I

live in Philadelphia or Chicago or L.A. or wherever it is only part

of the year, but that’s not really my home. My home is Mountain

Village and they declare it.

I don’t think it’s too much to ask people to get to vote, to

declare this is my home, this is my community, I’m part of the

community. Because otherwise, you have people whose stake is

purely financial. And, again, they could do all those things through

special district, all the things that are purely financial through

special districts and homeowners associations.

So we urge the Court not to approve this practice ana to

stop it before it spreads and to stop it right here.

* *« *