California Local Government Uses Threats Against Property Rights to Force Owners to Give up Voting Rights:

Tim Sandefur of the Pacific Legal Foundation has an interesting post on an important case involving property rights and voting rights that he is litigating before the 9th Circuit:

Tomorrow I will be arguing the case of Griswold v. City of Carlsbad in the Ninth Circuit Court of Appeals in Pasadena, California. This is an astonishing case in which city officials forced the Griswold family to give up their constitutionally protected right to vote in exchange for a building permit. Hard as that might be to believe, it is actually not unique: it's actually quite common for local governments to abuse permits by forcing property owners to give up money or land or other rights.

Here's how the law works. Under the California Constitution, property owners are entitled to vote on whether their property should be assessed for local "improvements"--things like street lights or sidewalks. These are technically not taxes, but "assessments," and the state Constitution prohibits the government from imposing these assessments without giving affected property owners an opportunity to vote on them. But what the city of Carlsbad decided to do was to force people to pay these assessments up-front (which is illegal). And if the owner can't afford this--in the Griswolds' case it was almost $115,000--then the owner must sign an agreement giving up the right to vote on these assessments . . . And this waiver actually runs with the land, meaning anyone else who buys the property is also not allowed to vote.

Amazing as it sounds, there are other similar cases going on right now. In the city of Santa Rosa, California, officials are forcing people to waive their right to vote on the annexation of their property into a local tax district, in exchange for building permits. That voting right is guaranteed by the state's "Mello-Roos Act." And we've heard of similar cases in Montana and elsewhere.

Sadly, local governments frequently force property owners to give up rights in exchange for these kinds of permits. What this means is that the government is essentially confiscating a person's property, and then selling it back to that person in exchange for their rights.

In the 1980s and early 1990s, the Supreme Court decided a series of cases that set limits to the power of government to use threats to development rights to force owners to give the government uncompensated takings (for example by banning development unless the owner gives the government a free easement). I discuss those cases in this article (pp. 10-13). Essentially, the Court ruled that local governments cannot use the threat of regulation to force owners to give up their constitutional right to compensation for the taking of their property. Presumably, the same logic should apply to government efforts to extort citizens into giving up their constitutional right to vote.

Cases like Carlsbad also create some perverse incentives for governments and property owners. For any individual owner, giving up their right to vote in a local assessment referendum is a small price to pay for avoiding the loss of development rights on his or her land. After all, the chance that any one vote will be decisive in an election is infinitesmally small. However, if a large number of owners act the same way, local governments can create an entire class of property owners who are ineligible to vote in assessment referenda and therefore easy targets for government revenue-raising schemes targeting them. The kind of extortion practiced by local governments in Carlsbad creates a collective action problem among property owners. Rational behavior by individual owners leads to a terrible collective outcome for the group. Realizing this, rational local governments have incentives to engage in this kind of extortion, as a strategy for reducing voter resistance to assessments by removing affected property owners from the electorate.