The Process for Annexation by Referendum
Public Chapter 707 did not change anything about the referendum process itself, which, though seldom used, has been available to municipalities since the General Assembly passed a general annexation law in 1955. Annexation can be initiated by request or by a city itself, but cities control whether it proceeds. Neither residents nor landowners can force an annexation. The process begins when a city’s governing body adopts a resolution that defines the area to be annexed and sets a date for a required public hearing on the proposed annexation. The city must also prepare a plan of services for the annexed area. The resolution describing the annexation, along with the proposed plan of services, must be mailed to each property owner in the annexation area. The notice is mailed only to the address of record for the property owner, not necessarily to residents living on property owned by someone else. It must also be posted in public places, both in the city and the territory being annexed, and published online and in a newspaper.
After public hearings for the plan of services and for the annexation itself, the city legislative body may approve the plan of services and adopt a resolution to submit the question of annexation to a referendum of voters in the annexation area.15 The referendum must be held 30–60 days after the last publication of public notices.16 If a city wants to time an annexation referendum to coincide with a regular election, it may have to delay when it publishes notice and adopts the resolution. County and statewide offices are decided only in even-numbered years.17 There is no uniform date for municipal elections as there is for county elections.18
Cities can also submit annexation questions to a vote of city residents. Both a majority of votes cast in the annexed territory and a separate majority of votes cast in the city are required to pass the referendum; either group can veto it. Eleven other states give city voters an opportunity to vote in an election.19 When there is no petition from owners, Arkansas, Iowa, and Montana require a combined vote from city residents and those being annexed. Voters in South Dakota may petition for a referendum, in which case the votes of the municipality are combined with those from the area being annexed. The other seven states keep votes from the area being annexed separate from votes by city residents. Florida is the only other state that, like Tennessee, gives cities the discretion to allow city residents to vote or not.
Tennessee Code Annotated § 6-54-104 was amended in 2018 to delete the requirement for a referendum if all the property owners within the territory proposed for annexation consent in writing to being annexed. Another change to that section of the code provided that annexation could proceed with three conditions:
- Two-thirds of the property owners within the territory proposed for annexation consent in writing
- The total area of the property owned by the consenting owners is more than one-half of the territory proposed for annexation, and
- The proposed annexation consists of nine or fewer parcels.
These three conditions are automatically repealed January 1, 2023.
Difficulties with Referendums
Because annexation by ordinance was simpler, timelier, and cheaper, cities rarely used the referendum process. Fiscal notes on two annexation-related bills introduced in 2013 said that election costs depend on the size of the municipality holding the referendum, ranging anywhere from $6,000 to $500,000.20 One election administrator said that, even for a referendum with as few as four eligible voters, the cost would be approximately $15,000 and that the greatest factors contributing to election costs are providing poll workers for early voting and costs related to programming voting machines.21
Referendums can be a cumbersome process unless aligned with a regular election. In most counties regular elections occur only every other year. Unless the city can afford a separate referendum election, annexations may have to wait up to two years and opportunities for economic development may be missed.
Only “qualified voters who reside in the territory proposed for annexation” may vote in an annexation referendum unless the city chooses to allow current city residents to participate in a separate election on the same referendum question. Landowners who do not live in the area proposed for annexation cannot participate in the referendum held in that area, although Tennessee has long allowed non-resident property owners—no more than two per parcel—to register and vote in other municipal elections where city charters permit it. While Tennessee grants this privilege only to natural persons who are otherwise qualified to vote, not to corporations, there is nothing in the federal or state constitution to prevent corporations from voting. Moreover, referendums require consent from only half of the voters plus one. This simple majority vote requirement means that it is possible for a substantial number of residents and all non-resident property owners to be annexed without their consent and even despite their objection.
Difficulties with Expanding Non-Resident Voting in Referendums
Allowing non-resident landowners to participate in annexation referendums may pose logistical problems for election officials and poll workers. Identifying those eligible to vote as non-residents would be a novel process in most areas. Safeguards would need to be developed to ensure that only those eligible by virtue of owning property in areas proposed for annexation were allowed to vote on those questions, and some process for determining who could vote—which owners of properties with multiple owners as well as which individual on behalf of corporations—on the basis of land ownership. Ballots presented at polling places in areas proposed for annexation would have to be programmed to exclude non-residents from all but the annexation question.
Voters themselves might face logistical problems as well when they are eligible to vote in the regular election in one place based on residence and on annexation questions in other places based on land ownership. The same individual might also be eligible to vote on behalf of a corporation at one or more polling places. Getting to all of these places could be as difficult for voters as ensuring that only those who are qualified actually vote on each question would be for election officials and poll workers. Separating annexation referendums that allow non-residents to participate from other elections would be much simpler, but cities may find holding them on different dates too costly.
Five states—Colorado, Delaware, Kansas, Maryland, and West Virginia—allow non-resident landowners to vote in annexation referendums. All but Kansas allow corporations to vote in these elections. Laws in the other four states allow corporations to appoint one or more agents to vote on their behalf and explain how to designate an officer or agent to vote on their behalf. Delaware permits its cities to allow corporate leaseholders to vote.
Although Tennessee could allow all non-resident property owners, including corporations, to vote in all annexation referendums, it could not restrict that right to them. According to the Tennessee Attorney General,
Such legislation may be constitutionally defensible if appropriately drafted. A provision extending the right to vote in annexation elections to nonresident property owners in the territory to be annexed should contain some minimum limits on property ownership to ensure that these owners have a substantial interest in the election. Extending the franchise to nonresident property owners is also subject to a challenge that, under particular facts and circumstances, the system unconstitutionally dilutes the votes of residents.22
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15 Tennessee Code Annotated, Section 6-51-104.
16 Tennessee Code Annotated, Section 6-51-105.
17 “Elections,” University of Tennessee County Technical Assistance Service, accessed October 20, 2014, https://ctas-eli.ctas.tennessee.edu/reference/dates-regular-elections
18 Nevad 2014.
19 Alaska, Arkansas, Florida, Iowa, Louisiana, Maryland, Michigan, Missouri, Montana, South Dakota, and West Virginia.
20 Senate Bill 731 by Watson (House Bill 230 by Carter) and Senate Bill 279 by Watson (House Bill 475 by Carter).
21 Phillip Warren, Wilson County Administrator of Elections, e-mail message to Bob Moreo, November 12, 2014.
22 Tennessee Attorney General Opinion No. 13-106.