# Opposition Brief — May v. Town of Mountain Village

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 938

## Text

No. 97-1738

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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.

* *« *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1442%3A2. Public record. Not legal advice.