AG’s office: Property ownership requirement to hold Edmond office is unconstitutional

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Roughly four months after a councilman’s resignation shined new light on a provision in the Edmond City Charter requiring candidates for office to own property, the Oklahoma Attorney General’s Office has released a letter assessing the provision to be unconstitutional.

In November, when then-Ward 1 Councilman Tom Robins vacated his seat to pursue an ongoing mayoral campaign, the city began the appointment process for a councilmember to fill the remainder of his term. At the beginning of the procedure that ultimately saw current Ward 1 Councilwoman Maggie Murdock Nichols selected to fill the vacancy, one of the candidacy requirements stood out: Residents must own property in Edmond to be eligible for municipal office, excluding renters or any other Edmondites without property in their name.

“No person shall be eligible to be mayor, or councilman unless he be a citizen of the United States and of the state of Oklahoma, a freeholder in the City of Edmond, at least 25 years of age, a resident of said city at least one year next prior to his election, and a qualified voter of said city and ward from which he seeks election,” Article II, Section 9 of the Edmond City Charter reads.

The language caught the eye of Oklahoma House Rep. Erick Harris (R-Edmond), who requested an attorney general’s opinion on its legality. On Feb. 13, Deputy General Counsel Kyle Shifflett responded with a letter of counsel instead of a formal opinion “because the United States Supreme Court has addressed this issue several times.”

“The court’s precedent is clear and consistent,” Shifflett wrote. “If challenged, a reviewing court would likely hold Edmond’s freeholder qualification provision to be unconstitutional, unenforceable and invalid. As a housekeeping matter, city leaders may wish to amend the city charter to omit the freeholder qualification in the next election. Such decision falls within their sound discretion.”

An attorney himself, Harris suggested that the Edmond City Council should amend the charter as suggested by the Attorney General’s Office.

“The provision is clearly unconstitutional and unenforceable,” Harris told NonDoc. “I look forward to seeing this section of the charter repealed in a timely fashion.”

Notably, the Moore City Charter contains similar language regarding who is eligible to hold office. Many have speculated that property ownership requirements were a tool used in the early-20th century to prevent Black residents and others from holding political office. Now, the AG office’s analysis comes as the City of Edmond continues its effort to excise racist land covenants from local plats, which, in combination with the “freeholder” requirement, would have made it impossible for Black residents to be eligible candidates a century ago.

Edmond officials support removing charter language

At a Jan. 25 Edmond mayoral debate, every candidate — including the two that have now advanced to the April 1 runoff, Mark Nash and Tom Robins — said they supported striking the “freeholder” provision from Edmond’s charter.

“Freeholder requirements for office were used as tools to discriminate against women and racial minorities,” Robins said Thursday after learning of the letter. “I appreciate the AG offering clarity confirming what I had stated when this issue was first reported.”

Nash agreed.

“I totally agree with what the AG’s letter has said. It’s been ruled unconstitutional before, and for the most part, we have ignored the intent of what it was probably trying to do back in 1925, other than to say a renter can’t run for office,” Nash said. “If we allow people with mortgages on their homes, that would mean you’re not a freeholder, so, gee, we’ve ignored most of it, so why don’t we just fix it?”

Murdock Nichols, who succeeded Robins as Ward 1 representative, said she also looks forward to amending the charter. She noted that, as originally written in 1927, the city charter would not allow her or any other women to serve on Edmond City Council.

“I read the attorney general’s [letter] and agree that language in the charter is unconstitutional and unenforceable,” Murdock Nichols said.

Even as the Ward 1 appointment process was ongoing, at least one sitting member of the Edmond City Council acknowledged the problems with the provision, which has been present since the original 1927 draft of the Edmond City Charter.

“It’s my understanding that requirement is unconstitutional, and so I didn’t take that into consideration when I was evaluating the four [applicants],” Ward 3 Councilwoman Christin Mugg, who is also an attorney, told NonDoc in December.

Ward 2 Councilman Barry Moore also agreed with the findings of the letter of counsel.

“I was provided with the letter of opinion from the deputy general counsel, and I would agree with the opinion expressed in the letter,” Moore said. “It is my understanding that this language has been in Edmond’s charter since its inception, and I personally would support the language being removed in whatever manner that is most appropriate.”

In recent months, two non-freeholders interested in filling Edmond City Council positions also raised red flags regarding the provision. Deric Duncan, a U.S. Navy veteran and applicant for the Ward 1 position, said at the time the 1970 case Turner v. Fouche, in which the Supreme Court ruled a land ownership requirement was “irrelevant” to serve on a Georgia school board, already made the charter’s requirements moot.

Corey Winston, who initially filed to run for the Edmond City Council Ward 3 seat, withdrew from the race in December and released a statement calling for the provision to be struck down.

“I’m elated to see justice has been served for approximately 30 percent of Edmond’s population,” Winston said after the letter of counsel was released. “This decision is a major step forward, ensuring that arbitrary and classist policies no longer silence the voices of productive, hardworking citizens in Edmond or any community.”

Multiple Supreme Court decisions prohibit ‘freeholder’ language

In his letter (embedded below), Shifflett referred to three U.S. Supreme Court cases in which the country’s highest judicial body found freeholder requirements violate the Constitution’s Equal Protection Clause, outlined in the 14th Amendment.

The first was Turner v. Fouche, the same case Duncan referenced when applying for the Ward 1 position.

“Requiring an otherwise qualified citizen to own real property, regardless of whether they were a parent with children in school, paid taxes as a lessee, or paid any portion of federal or state taxes that went to the board of education, served no purpose,” Shifflett wrote. “The lack of real property ownership does not equate to a lack of attachment to the community or its educational values.”

Second came Chappelle v. Greater Baton Rouge Airport District in 1977, followed by Quinn v. Millsap, a 1989 Missouri case.

While these decisions make property ownership requirements illegal, they do not affect residency requirements within the borders of the city or state a candidate is seeking office in.

“Starting in 1970, the United States Supreme Court has found in three cases that a freeholder qualification for public office violates the Equal Protection Clause and is invidiously discriminatory,” Shifflett wrote.

Read the AG letter on Edmond’s freeholder requirement

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