Civil Division-Kent County (739-7641)
The Honorable Colin R. J. Bonini
State of Delaware
Legislative Hall
Dover, DE 19901
Re: Local Disenfranchisement of Delinquent Taxpayers
Dear Senator Bonini:
You have asked for an opinion on the constitutionality of several town
charter provisions which disenfranchise residents who are delinquent in
their local taxes or assessments. For the reasons below, we conclude the
provisions violate the Equal Protection Clause of the Fourteenth Amendment
of the United States Constitution.(1)
The Charter Restrictions
You identified five town charters which restrict the right to vote to
residents who are current in their local obligations. The precise proscriptions
and requirements differ in each charter. Section 4 of the Charter of the
Town of Frederica limits voting in annual or special elections to residents
who, among other qualifications, are not "delinquent in the payment of
any taxes or other assessments levied by the Town." The pertinent restriction
in the Town of Little Creek's charter is "a nondelinquent payer of taxes
to the said Town. . . ." Magnolia voters who are otherwise eligible "shall
not be delinquent in the payment of any taxes assessed against such voter."
Middletown's charter requires a voter to "have paid a Town tax" within
the year preceding the election and excludes anyone "who has been declared
a delinquent" in that time. Finally, Section 6 of the Selbyville charter
requires voters to have "paid all town taxes assessed against him or her."
Analysis
1. Standard of review under the Equal Protection Clause.
Section 1 of the Fourteenth Amendment of the United States Constitution
provides that "[n]o State shall make or enforce any law which shall . .
. deny to any person within its jurisdiction the equal protection of the
laws." Generally, legislation is presumed valid and will survive equal
protection challenge as long as the classification it creates is "rationally
related to a legitimate state interest." City of Cleburne v. Cleburne
Living Center, 473 U.S. 432, 440 (1985). The presumption of validity
yields when the challenged statute burdens either: (1) a "suspect" class
of people; or (2) a fundamental constitutional right. Id. In these
circumstances, the law will survive judicial review under the Equal Protection
Clause only if it is "suitably tailored to serve a compelling state interest."
Id.(2)
2. Voting is a fundamental right.
The right to vote is fundamental. Kramer v. Union Free School District,
395 U.S. 621 (1969). It is "the citizen's link to his laws and government"
and thus, protects "all fundamental rights and privileges." Evans v.
Cornman, 398 U.S. 419, 422 (1970). Laws that unnecessarily burden the
right to vote, or that unjustifiably discriminate "in determining who may
participate in political affairs or in the selection of public officials
undermine[] the legitimacy of a representative government." Kramer,
395 U.S. at 626. Since the franchise is a fundamental right, the charter
provisions you questioned are subject to strict judicial scrutiny, the
most exacting standard of constitutional review. To survive this level
of scrutiny, the non-delinquency restrictions must be "necessary to promote
a compelling [governmental] interest." Id. at 627. To be "necessary,"
the classification must be precisely drawn to achieve the government's
goal and may not be either under or over inclusive. Id. at 632.
3. Similar voting restrictions held to violate the Equal Protection
Clause.
The United States Supreme Court has not directly considered the non-delinquency
requirement found in the Town Charters. However, it has reviewed and invalidated
other franchise restrictions based on, or related to, taxation status.
In each case, the government was unable to demonstrate that the questioned
classification advanced a compelling state interest.
In Kramer, supra, the Court struck down a law requiring
voters in school board elections to own or lease taxable real property
in the district or be parents or custodians of children enrolled in the
local public schools. The Court assumed without deciding that the government
had an interest in limiting the vote to people interested in school affairs.
It concluded that the statutory limitations did not "accomplish this purpose
with sufficient precision to justify denying appellant the franchise" because
they excluded many people with a direct interest in school affairs while
including many people with no identifiable interest. Id. at 632.
The Court has also invalidated a statute limiting the vote in local
revenue bond elections to "property taxpayers" of the district, Cipriano
v. City of Houma, 395 U.S. 701 (1969), and has struck down a requirement
that voters in a general obligation bond election be "real property taxpayers."
City
of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). In these cases, the
Court concluded that both tax payers and non-tax payers would be affected
by the results of the election, in terms of the benefits provided and the
obligations incurred, and thus, that the distinction drawn between them
violated the Equal Protection Clause.
In Hill v. Stone, 421 U.S. 289 (1975), the Court considered a
city charter provision which permitted only people who "rendered," or listed,
property for taxation to vote in a bond election. The City argued that
the rendering requirement helped enforce the tax laws by encouraging prospective
voters to identify their property for assessment. The Court found that
this asserted governmental interest fell "far short of meeting the 'compelling
state interest test'" articulated in Kramer, id. at 300,
and noted that the "use of the franchise to compel compliance with other,
independent state objectives is questionable in any context." Id.
at 299.
These cases illustrate the stringent judicial review applied to voting
restrictions in general and the particular constitutional criticism leveled
at laws connecting voter eligibility to taxation status. While not directly
addressing the non-delinquency provisions you questioned, taken together,
these cases suggest that the Town Charter provisions are constitutionally
flawed.
4 Non-delinquency requirements for candidacy violate the Equal
Protection Clause.
As noted, the right to vote is fundamental. The right to appear on the
ballot is not. Bullock v. Carter, 405 U.S. 134 (1972); Clements
v. Fashing, 457 U.S. 957, 963 (1982). As a result, restrictions imposed
on candidates for elected office are not scrutinized for constitutional
muster as closely as laws restricting the franchise. Id. See
also Opinion of the Attorney General, No. 93-F007 (November 16, 1993).
Restrictions on ballot access are generally constitutional as long as they
are rationally related to a legitimate governmental purpose. Id. See
also Anderson v. Celebrezze, 460 U.S. 780 (1983).
Applying this deferential standard of constitutional review, the Third
Circuit Court of Appeals invalidated a city charter provision requiring
a candidate for an elected city office to be a "nondelinquent taxable"
and freeholder of the city. Deibler v. City of Rehoboth Beach, 790
F.2d 328 (3rd Cir. 1986). The City asserted two grounds for
the nondelinquency requirement. The first assertion was that the requirement
screened out candidates who did not have a sufficient commitment to the
community: city officials argued that people who did not pay taxes did
not have the same concern for the community as those who did pay. The Third
Circuit found this logic unpersuasive, noting that the decision to pay
taxes "may rest solely on economic, ideological or other personal grounds."
Id.
at 335.(3)
The City also argued that the nondelinquency requirement advanced respect
for the political system: electing an official who was delinquent in his
tax obligation would generate public cynicism for local government. The
Court concluded that this interest was not "rationally served" by the charter
restriction because the restriction actually "denied voters the opportunity
to establish standards for their representatives through the power of the
ballot box." Id. at 336. The Court asked rhetorically, "Can there
be respect for a system that summarily denies the privilege of elective
office to those who, for reasons totally unrelated to their commitment
to the community, do not pay taxes?" Id.
The Third Circuit's decision in Deibler is important because
the Court concluded that nondelinquency requirements for candidacy violate
the Equal Protection Clause even when subjected to the lowest
standard of constitutional review. Since the Town Charter provisions you
questioned would be held to the highest standard of review,
it is reasonable to infer that they are unconstitutional as well.
Delaware, of course, is located within the federal appellate jurisdiction
of the Third Circuit Court of Appeals, where Deibler was decided.
In 1995, the Sixth Circuit Court of Appeals considered a city ordinance
which prevented residents from appearing on the ballot for local elections
if they were delinquent on their taxes or usage fees. Corrigan v. City
of Newaygo, 55 Fed.3d 1211 (6th Cir. 1995). The Court in
Corrigan
concluded that the nondelinquency requirement did not violate the
Equal Protection Clause. Like the Deibler court, the Sixth Circuit
rejected the city's claim that the nondelinquency requirement assured a
candidate's commitment to the city and advanced public respect for the
electoral process. However, the Corrigan court accepted the city's
contention that the tax-paying requirement "is a means of collecting taxes,
not a means of restricting political speech or the right to vote."
Id.
at 1215. The Court reasoned that "[t]he duty of paying taxes and water
and sewer assessments is undertaken when a resident chooses to own property,"
id. at 1216, and that the requirement "does serve the economic purpose
of enforcing the City's tax regime" by providing an incentive to people
who want to run for office to pay their taxes. Id.
The reasoning of the Corrigan court was specifically rejected
in a case decided shortly afterwards, involving removal of tax-delinquent
officials. In Hunt v. City of Longview, 932 F.Supp. 828 (E.D. Texas
1995), aff'd 95 F.3d 49, the trial court concluded that tax collection
was too remote and attenuated a reason for the nondelinquency provision
to survive constitutional review. Id. at 841. It noted "[i]f the
City needs to collect on liabilities owed to it, let it do so as it would
against any other citizen who is in arrears to the City. Removing one from
office for failure to pay taxes and fees, all for the touted purpose of
administering the tax system, without ever attempting to collect on the
liabilities owed, is irrational." Id.
In our opinion, Deibler and Hunt are the best guides for
predicting the unconstitutionality of the Town Charter provisions. They
are consistent with the Supreme Court cases invalidating other voter restrictions
linked to taxation status. See Section 3, supra. They also reflect
the Court's generalized dislike for burdening the right to vote by imposing
economic requirements. See, e.g., Harper v. Virginia State Board of
Elections, 383 U.S. 663 (1966) (poll tax unconstitutional). Finally,
even though the Sixth Circuit concluded that the nondelinquency requirement
was constitutional, it did not "disagree with the Third Circuit [in Deibler]
that the ordinance is not well-tailored to accomplish the other objectives
the defendant claims it does." Corrigan, at 1217. This comment suggests
that the Sixth Circuit recognized that the questioned provisions would
not pass constitutional muster if subjected to a higher standard of review.
Conclusion
Because the nondelinquency provisions abridge voting rights, the Towns
would have to demonstrate that the requirements are necessary to
promote a compelling governmental interest. Even assuming that tax
collection is a compelling interest, it is unlikely that disenfranchisement
is "necessary" to the Towns' enforcement efforts, in light of other avenues
for collecting unpaid taxes (including, for example, liens created under
Chapter 29 of Title 25 of the Delaware Code). Finally, the Third
Circuit has already invalidated similar limitations on candidacy, applying
a more deferential standard of review. As a result, we conclude that the
charter provisions you questioned violate the Equal Protection Clause and
are unconstitutional.
Very truly yours,
Louann Vari
Deputy Attorney General
Approved:
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady
Philip G. Johnson, Opinion Coordinator
Walter G. Feindt, Esquire
1. Give this conclusion, we do not address whether the charters violate other parts of the federal Constitution or violate the state Constitution.
2. Most of the cases cited in this Opinion involve state imposed restrictions on political participation. The same standards and reasoning apply to locally imposed restrictions, since political subdivisions of the States "have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." Reynolds v. Sims, 377 U.S. 533, 575 (1964). In short, it does not matter for purposes of judicial review that the restrictions you questioned appear in town charters rather than in the Delaware Laws.
3. Several of the charters you identified also require candidates to be current in their local obligations. While you did not request an opinion on the constitutionality of these limitations, we note that they are indistinguishable from those invalidated by the Deibler court.