dissenting:
I respectfully dissent.
In my view restricting to taxpayers the right to vote for Moffat Tunnel Commissioners not only denies equal protection of the law as guaranteed against such state action by the Fourteenth Amendment, it also ignores the clear command of the Colorado constitution.
We deal here with one of the most basic rights accorded citizens in a republic, the right to vote. As Chief Justice Pringle wrote for this Court in Jarmel v. Putnam, 179 Colo. 215, 217, 499 P.2d 603, 604 (1972):
“[T]he right to vote is at the core of our constitutional system. . . . There must be no discrimination between citizens with respect to that right . . . except for a compelling state interest which cannot be protected in any other way. . . .”
*476Jarmel relied on the equal protection clause (U.S. Const. Amendment XIV) and the case of Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). While both Jarmel and Dunn involved durational residence requirements as conditions limiting the franchise, the broad language of Jarmel obviously applies to all forms of discrimination with respect to the right to vote. The majority opinion acknowledges that the rule of Jarmel and Dunn requiring “strict scrutiny” and applying the “compelling state interest” test, normally “does apply to alleged deprivations of the right to vote.”
In my view there has been no showing of a “compelling state interest” to justify denying the vote in November, 1976 to residents of the district who are qualified electors but did not in 1975 pay taxes on real property located in the district.
The majority, however, would apply the “rational basis” standard of equal protection. Even if one applies the “rational basis” standard, however, the classification here must fail. The majority seek to distinguish those who paid realty taxes in 1975 as a permissible class on the ground that their lands might be assessed in the admittedly unlikely circumstance that the tunnel should produce a deficit. This analysis ignores the economic reality that any assessment of rental property is likely to be passed on by the owner of the property to the tenant. Thus, although the tenant may have paid no real property taxes, his leasehold (probably under a lease with the common provision for rent adjustments to reflect tax increases and special assessments) could certainly be burdened by a Moffat Tunnel assessment. Yet the tenant could not vote.
Moreover, the fact that one did not pay taxes on real property in the district in 1975 would not provide a “rational basis” for denying the right to vote in November, 1976. The taxes paid in 1975 would normally have been assessed for 1974. Thus ownership of real property in 1974 would be the practical prerequisite to voting in November, 1976. An elector who owned land in the district in 1974, paid taxes on it January 2, 1975, then immediately sold it, could vote, although none of the reasons cited by the majority for giving him the vote would have applied at the time of the election or for the preceding twenty-two months.
Conversely, one who purchased realty in the district on January 1, 1976, and thus neither directly nor indirectly (e.g., through closing adjustments) paid any tax in 1975, could not vote. Yet at the time of the election, and during the ten previous months, such an elector would have met all the criteria set out by the majority opinion to justify allowing him or her to vote.
The statute under attack expressly requires that elections of Moffat Tunnel Commissioners “be conducted in accordance with the general election laws of the state.” (Section 32-8-103(3), C.R.S. 1973). That seemingly clear command, which on its face would allow all qualified *477electors in the district to vote, is followed immediately in the statute by the provision restricting the franchise to those who “paid a tax on real estate in said district in the year preceding the year in which any election is held . . . "Id. This seeming conflict should be resolved in light of the Jarmel rule that statutes dealing with the franchise are to be liberally construed to protect the right to vote.1
Finally, and most troublesome, is the apparently direct contradiction between the statute in question and the Colorado Constitution. The constitution provides:
“Qualifications of elector. Every citizen of the United States who shall have attained the age of twenty-one years, shall have resided in this state not less than one year next preceding the election at which he offers to vote, and in the county, city, town, ward, or precinct such time as may be prescribed by law, and who shall have been duly registered as a voter if required by law, shall be qualified to vote at all elections; provided, that the general assembly may by law extend to citizens of the United States who have resided in this state less than one year, the right to vote for presidential and vice presidential electors.” Colo. Const. Art. VII, Section 1.
This unambiguous language guarantees that those who meet the requirements of (1) citizenship, (2) age, (3) residence, and (4) registration, “shall be qualified to vote at all elections. ...” Certainly there is no express or implied authority to add qualifications such as ownership of land or payment of realty taxes in the preceding year. Nevertheless the statute limits the vote to, “Only qualified electors who have paid a tax on real estate in said district” the prior year. (Section 32-8-103(3), C.R.S. 1973). The conflict is obvious.
While there may be elections — in essence private elections because they involve private or quasi-private property interests — in which property ownership may be added to the usual qualifications for voting, the instant case does not present one of them.
I am authorized to state that MR. JUSTICE GROVES joins in this dissent except the portion thereof relating to Colo. Const. Art. VII, Section 1.
This proposed solution for the ambiguity in the statutory scheme is not without support. See Sheldon v. Moffat Tunnel Commission, 335 F.Supp. 251 (D. Colo. 1971) (Dictum by three-judge court consisting of Circuit Judge McWilliams, Chief Judge Arraj and Judge Winner).