By: Gordon Dobbs

In many states, people who live just outside of a city’s borders and who are affected by the city’s laws are nevertheless forbidden from voting in the city’s elections. The Supreme Court considered whether this practice is constitutional in 1978 in the case of Holt Civic Club v. City of Tuscaloosa. In Holt, the Court held that extraterritorial jurisdiction (ETJ) statutes that extend municipal police, sanitary, business, and other similar regulatory powers over those living outside municipal boundaries are indeed constitutional, even when those residents cannot vote in municipal elections. The Court held that those who lived outside of Tuscaloosa’s borders had no constitutional right to vote in Tuscaloosa elections, and that it was reasonable for the city of Tuscaloosa to extend certain services to those residents and require them to pay fees to fund those services. This form of ETJ has its roots in post-World War II development booms on the fringes of urban areas in the United States. Some states have been fairly aggressive in their implementation of ETJ: Texas, for instance, allows cities of over 100,000 to extend their ETJ for five miles outside of the city’s boundaries, and cities have used this power to regulate everything from lot size to fireworks use in the county.

ETJ is often used as a long-term planning strategy for a municipality to maintain its tax base as the city grows, but nobody would ever accuse Wyoming, with a population density under six people per square mile, of having burgeoning cities. But many in Wyoming prefer to own land, and so live outside of city limits in unincorporated parts of the county. According to the 2010 census, 35.2% of Wyoming’s residents live outside of cities. Wyoming state law currently allows mayors of some cities to extend city regulations beyond the city’s borders, while county commissioners are allowed to nullify ETJ regulation they feel is inappropriate. In Cheyenne, the state’s capital, ETJ is used primarily for planning and zoning purposes. Wyoming lawmakers who support the use of ETJ claim that it is necessary to prevent situations where an industrial park sets up just outside of city limits and avoids city regulations.

In the election law context, this can lead to a representational dilemma. City officials pass laws and regulations that affect those who live outside the city, without providing a right to vote. Wyoming lawmakers have been attempting to devise a solution to this representational dilemma. A recent proposal would have allowed Wyoming residents who own a majority stake in property within a city to vote in that city’s elections, even if they did not live there. That proposal had the support of lawmakers from rural districts representing county residents who viewed municipal property taxes as taxation without representation. However, the plan was scrapped in part due to constitutional concerns. In Kramer v. Union Free School District No. 15, the Supreme Court struck down a New York law limiting the right to vote in New York school districts to parents of children enrolled in public schools or those who owned property in the district, reasoning that the law was a violation of the Equal Protection Clause. The Wyoming legislature had a similar fear that conditioning the right to vote on the ownership of property would be an unconstitutional burden on the franchise, equivalent to a poll tax. There was also a concern that it would allow some property owners to vote in multiple cities, which would give them disproportionate voting strength that could violate the one-person, one-vote principle.

Under a proposal currently being considered by the Wyoming legislature, county residents could vote in municipal elections if they are affected by municipal ordinances. Opponents to this proposal have expressed fear that it would “water down the rights of those that live in the town,” which causes vote dilution concerns that critics claim are unfair and unequal. While this is not the type of vote dilution that would cause concerns under the Constitution or the Voting Rights Act, it does represent a case where rural interests and municipal interests may differ substantially on the right to the franchise. The bill is still in its early stages and, should it pass, it is likely to be in a modified form.

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