State Ex Rel. Gralike v. Walsh

SEILER, Judge

(concurring in part and dissenting in part).

I concur with those parts of the majority opinion which establish our jurisdiction and which find that prohibition is the proper remedy.

However, I respectfully dissent on the equal protection aspect of the case. In my opinion, the one year durational residence requirement for qualification for state senator provided in Art. Ill, Sec. 6 of the Missouri Constitution, V.A.M.S., violates the Equal Protection Clause of the United States Constitution because, without reason or purpose, it discriminates against the in-tervenor and those who are in the same class as him and it discriminates against qualified voters who might want to cast their votes for intervenor or someone in his same position. Art. VI of the-United States Constitution states: “This constitution . . . shall be the supreme Law of the Land . . . ”, and Art. I, Sec. 4 of the Missouri Constitution accepts, as it must, that principle when it states: “That Missouri is a free and independent state, subject only to the Constitution of the United States . . . ”

The only justification mentioned by the majority for the one year residence requirement is that historically it has always been that way. This, in my opinion, is not particularly relevant or persuasive. Historically, it used to be that 21 was the age for voting. Now it is 18. Historically, only men had the right to vote. Now, both men and women can vote. Historically, only men could serve on juries. Now women can also. Times are changing. In ancient days when regions were remote from each other, it served an important state interest to require a candidate to be a resident for a year before being eligible for election to office. This is no longer true and we should not cling to a restriction which has outlived its usefulness. There is no compelling interest of Missouri which is served by denying to the voters of the first senatorial district the right to vote for a candidate who has not lived in the district during the year prior to the election, if they choose to vote for him.

In a 1970 case involving the statutory system used in Georgia counties to select juries and school boards, the United States Supreme Court held that there exists “ . . .a federal constitutional right to be considered for public service without the burden of invidious discriminatory disqualifications . . . ” and that a state “ . . . may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees”. Turner v. Fouche, 396 U.S. 346, 362-363 , 90 S.Ct. 532, 541 , 24 L.Ed.2d 567 . The issue of heavily unequal burdens to qualify for a position on the ballot was discussed in the case of Williams v. Rhodes, 393 U.S. 23, 30-31 , 89 S.Ct. 5, 10 , 21 L.Ed.2d 24 , where the court said: “. . . In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. In the present situation the state laws place burdens on two different, although overlapping, kinds of rights— the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States . . ”

*78 The threefold test of Williams v. Rhodes for determining whether a state law violates the Equal Protection Clause was most recently used in Dunn v. Blumstein, 405 U.S. 330 , 92 S.Ct. 995, 1003 , 31 L.Ed.2d 274, 284 , where a Tennessee election law requiring potential voters to reside in the state for one year and in the county for three months as a qualification for voting was struck down. There the court said: “In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the state can demonstrate that such laws are ‘necessary to promote a compelling governmental interest’ . . . ”

In the case before us there is no rational or reasonable purpose to uphold the dura-tional residence requirement in Art. Ill, Sec. 6. Relator argues it should be upheld because representatives of the people must have knowledge about their district and its needs. Living in a district does not necessarily bear any significant relationship to knowledge of the district or its needs. Consider the person who has lived just across the street from the district boundary line or the businessman who works in the district but who actually lives outside the district. These people, as a matter of fact, could be just as well acquainted with the district’s problems as anyone in the district —lifelong resident or not. In Kramer v. Union Free School District, 395 U.S. 621, 632 , 89 S.Ct. 1886, 1892 , 23 L.Ed.2d 583 , the court held that New York state could not limit the vote in school district elections to property owners and parents of school children. New York claimed it had a legitimate state interest in limiting the vote to the property owners whose taxes paid for the school system and to those who had a direct interest in school affairs because their children were in school. The court said: “Whether classifications allegedly limiting the franchise to those resident citizens ‘primarily interested’ deny those excluded equal protection of the laws depends, inter alia, on whether all those excluded are in fact substantially less interested or affected than those the statute includes. In other words, the classifications must be so tailored so that the exclusion of appellant and the members, of his class is necessary to achieve the articulated state goal . . . ”

The purported goal of insuring knowledgeable and competent representation is not achieved by the durational residence requirement. Since it does not fulfill the need for which it was designed, the requirement should not be allowed to stand and deprive intervenor and his class and the electors of the district of their constitutional rights. The right of a state to place reasonable restrictions on the availability of the ballot, or by analogy to candidacy for office, is not involved here. Dunn v. Blumstein, supra 92 S.Ct. at 1000 , 31 L.Ed.2d at 281 ; Carrington v. Rash, 380 U.S. 89, 91 , 85 S.Ct. 775 , 13 L.Ed.2d 675 ; Pope v. Williams, 193 U.S. 621, 632 , 24 S.Ct. 573 , 48 L.Ed. 817 . The challenge is to the unreasonableness of durational residence requirements. Our state’s dura-tional residence requirement violates the rights of political association of the district electors in that it prevents them from banding together and supporting, or bringing in, an outsider of their choice and thus effectively disparages their vote by denying them the opportunity to vote for the candidate of their choice on election day. Residents who do not support an outsider do not have their rights infringed upon by having an outsider on the ballot because they have a fully effective vote and can cast it for whomever they choose. If they feel the outsider is not competent or knowledgeable enough to adequately represent them, they can defeat him at the polls, as they do many of their fellow residents under the present system. It is the residents who support an outsider or latecomer who have their rights infringed upon and are denied an effective vote without reason or compelling state interest. It must be noted that an individual who expresses a bona fide intention to become a resident and who actually does, as the intervenor *79 did here, completely eliminates any fear of “carpetbagging” or political control from the outside which is not responsive to the electorate. This overly broad, arbitrary exclusion is exactly what the United States Court was trying to correct in Carrington v. Rash, supra, where it found the Texas voting residency requirements too broad for the purpose for which they were intended. There, many bona fide resident servicemen were being denied the vote in order to make sure that non-resident servicemen were excluded.

Bolanowski v. Raich, E.D.Mich.S.D., 330 F.Supp. 724 , decided before Dunn v. Blum-stein, supra, articulates the rationale later used in Dunn in a factual situation very similar to this case. The facts dealt with a municipal election which required an extra year of residency in order to run for the office of mayor. After examining the facts and the law, the trial court found there was no need for this extra year requirement in today’s society, if there had ever been one, and it must be struck down, absent a showing of a compelling state interest, as violative of the Equal Protection Clause of the United States Constitution. As the court said: 330 F.Supp. 1 . c. 731: “ . . . It requires little imagination to conceive of an adult citizen of the City of Warren who has lived his entire life there without taking any interest whatsoever in municipal problems, and who would thus not fit the articulated qualifications sought to be insured by the requirement . . .” Likewise it is easy to imagine an individual, such as intervenor herein, who has lived within the district for less than a year and who has demonstrated his interest in the district and the people of the district. There is no valid reason or compelling state interest for an individual who expresses an interest and willingness to serve to be kept off the ballot just because he has not lived in the district he seeks to serve for one year. The very purpose of the requirement, to insure competent, interested representation, is defeated by keeping such an individual off the ballot.

The state may very well be able to require state officeholders to live in their districts once elected, or it may even require candidates to be bona fide residents, in order to insure that the officeholder or candidate has some reasonable contacts with and availability to his constituency. But to require a candidate to be a resident of a district before he seeks office not only violates the rights mentioned earlier, it also unreasonably infringes on his right to travel and move about freely. Because an individual exercises his constitutional right of travel, the state cannot strip him of his exercise of political rights in order to protect the status quo and to limit potential challengers to present officeholders or longtime residents. United States representatives are merely required to be residents of the states from which they are elected and not the particular congressional district and representation does not seem to have suffered.

The American people constitute a highly mobile society. Between March of 1969 and March of 1970, 18.4 percent of the persons over one year of age who live in the United States moved to a different residence. 1 Thirty six and five tenths million persons moved in one year. Only 7.1 million of those moved between states, while 23.2 million moved intracounty and 6.3 million moved somewhere else in the same state. In May of 1958, only 25 percent of the population over 18 years of age in the North Central states had lived in one residence. Residence was defined as a political unit such as an incorporated city or county. Moves within a city or within *80 a rural area in the same county were excluded from the tables. Thirty percent of the population had lived at two residences, while 21 percent had lived at three. Seven and seven tenths percent of the population had lived at six or more residences. 2

These are exactly the kinds of incidents and studies that prompted the court to strike down durational residency requirements for recipients of welfare benefits in Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 and to strike down voting durational requirements in Dunn v. Blumstein, supra.

The direction in which the law is progressing is clear and this court should not allow the constitutional rights of the inter-venor and his class and the electors of Missouri to continue to be deprived by an unconstitutional provision of the Missouri Constitution. The steps this court should take are clear, Art. Ill, Sec. 6 of the Missouri Constitution imposes a heavily unequal burden on the ability of candidates to obtain a position on the ballot, depending merely on whether or not they have lived for one year within the state senatorial district, and it deprives the electors of the district of the full force of their ballot and there has not been any compelling state interest shown here to justify this sort of unequal treatment. All the one year residence requirement does is to serve provincialism and prejudice the newcomer and those who would support him politically.

In my opinion, under Carrington v. Rash, supra; Turner v. Fouche, supra; Kramer v. Union Free School District, supra; Dunn v. Blumstein, supra, and Bolanowski v. Raich, supra, we cannot sustain the validity of the constitutional durational residence provision in question and we should discharge the preliminary rule.

. U.S. Bureau of the Census, Current Population Reports, Series P-20, No. 210, “Mobility of the Population of the United States: March 1969 to 1970,” U.S. Printing Office, Washington, D.C., 1971, page 1.

. U.S. Bureau of the Census, Current' Population Reports, Series P-23, No. 25, “Lifetime Migration Histories of the American People”, U.S. Government Printing Office, Washington, D.O., 1968, p. 5 and Table 7.