Amicus Curiae Brief — Hall v. Beals

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Supreme Court af the United States

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oie ben hha and Conmisnan Hata,

lppellants,

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Aamniscr Bea ‘ wil Recorder of EL Paso County,

aetuee UA | biootion Supervisor of Bl Paso County,

App Ie,

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‘PAGE

. :

Interest of Amici Curiae —.... en aye ee: Hse a xian Baek Be eB

Summary of Argument .000...... ecoamineees eT Sa et a ee

’ ; ; . .

ARGUMENT

d# The right to vote in presidential elections is a

right protected by the First Amendment from —

abridgement by ‘the states, except in cases of com-

_pelling state interests 20... ride He Pug duncasataaiaeetenees 4

A. The Right to Vote Is Inherent in the Political

Freedom Protected by ‘the Rights of Speech, |

Press, Assembly, and Petition Guaranteed by

the First Amendment 20.00.0000... asoekos 4

3. Voting Is a Form of Assembly and Association — 6

(. Voting Is a Form of Petitioning for Redress

of adrevaebes 23 eae ce ea ite 12

D..No Compelling State Interest, Exists to Jus-

tify Denial of Appellants’ Right to Vote... 13

KH. Article Pl, Seetion 1 Does Not Limit Appel |

‘ants? Right to Vote for Presidential Electors “19

‘

Hl. The right to vote for President and Viee-Presi

dent is a privilege of national citizenship and is

abridwed Hy (olorada’s residence requirement 31

PAGE

III. Denial of the Presidential franchise for failure to

satisfy a durational residence requirement vio- °

lates the appellants’ constitutional right of inter-

state -travel. ........... shnabtapeasanhnicinapoeti saci aasabanaseiiiehaasanyacey >

IV. Durational residence requirements for voting’

deny the equal protection of the laws to the appel-

ONIN sahtipnceceantosiccecdynenn eco tseeahatublacaanidaamiomecn salamat aa

V. The case is not moot and the important questions

it raises should be considered BEN as A nekS A, 29.

Go aL rie OL maa Eiri BRAN EEN ERE RST UTE EE Ram 33

TABLE OF! AUTHORITIES

C ases: |

Allgeyer v. Louisiana, 165 U.S. 578 (1897) rec seeanerss 23

Amalgamated Food Kmployees Union Local 590. vy, —

Logan Valley Plaza, Inc., 397 U.S. 308 (1968) 0... 5

Aptheker v. Secretary of State, 3f8 U.S. 500

(1964) oo... Seana Ss EOE us OIRO REE NE snl ON pe PRETTY 23, 24, 29

Ashby v. White, 2 Ld. Raym. 038 (1708 fe NY cal ORD 10, 33

Bates v.City of Little Rock, 361 U.S. 516 (1960) ........6, 17.

Baxstrom v. Herold, 388 U.S. 107 (1966) 0... 24

Blake v. MeChing, 172 U.S. 239 (1898) 000 ns

Brotherhood of R.R. Trainmen y, Virginia ex rel, Vir-

~ginia State Bar, 377 U.S. 1 (1964) 2a 6,18, 20 -

Brown vy. United States, 334 F.2d-488 oth ‘ir. 1964),

UR ON, UitS. BE, CRO D arccccencectccucccdceociginsscbentecces eacegs 1]

— Burroughs v. U nited States, 290 U S. Q a4 cs . ee yal

PAGE

.Carrington vy. Rash, 880 U.S. 89 (1965) ...14, 16,2 24, 28, 29, 31

Carroll v. Princess Anne,'393 U.S. 175 (1968) ............... 10.

Cipriano vy. City of Jlouma, - U.S. ——, 89 S. Ct.

USOT (1909) ttre 2

Corfield y. Coryell, .( 6 ey Cas. 546 (No. 3230)

a i ee s..

Crandall v. Nevada, 6 Wall. (%3.U:S.) 35 (1868) .......... 23

De Jonge v. Oregon, 299 U.S: 353 (1987). dy 6, 10.

* Dombyowski ve Pfister, 380 U.S. 479 (1905)... 32

Drueding v. Devlin, 254 F Supp. 721 (D. Md. 1964),

_affd per curiam,.380 U.S., 125° (1965)... a

‘Dunean vy. Missouri, 5aS Ck. ae RROD secu 21

Dvama v. California, 3 7 BM RS = Gk |.) ana oaen +

Eastern RR. pager Conference vy. Noerr Motor

Freight, Inc., 8365 U.S. 127 (1961) ....t. ee secleeeeeeees ~D, 10

kMer vy. Drum, 32 F. a. 189 (D. Mass: 1948) ............ ae *

Kdwards v. California, 314 U.S. 160 (1941) 22... 23

Isifbrandt v. Russell, 384 U.S. 11 (1966) ea EROT tm 6,18

ix parte Siebold, 100 U.S. 871 (1880) 202. a aa 2]

“ix parte Yarbrough, 110° U:S. Gol ERIE gicscesthicotckenenans 21

Kields v. Fairfield: 75 US. 248 CIO os ascarid 1

Flast v. Cohen, 392 U.S. 83 (1968) SE Ry Bart Oi aenileaiinnaats ot

I Leming v. Nestor, 363 U.S. G08 (1960) eaten caer 24-35

gene v. Florida Legisk itive Investigation Connnittee,

272 ULS.-589 (1963). wtatARAS Se Rare Aides 6,13, 16; 17

Pe Tiernan, J48 U0 GET (IRE ce iad aes Starhe 31

Griswold v. Connecticut, po. U.S, 409 (1965) -.4..05..... 446

(a ;

PAGE

‘Harman vy, Forssenius, 380 U. S$. 528 (1965) ....:....... 23, 26-27

Harper v. Virginia State Bd. of Hletioms, 2 383 U.S.

663 (1966). ............. SELES SER MUAY Te 23, 29°

Herndon-y, Lowry, 301 U.S. 242 (ip: |, REEL 10

In re Kemmler, 136 U.S, 436 (1990) 0.0. to 2

Katzehbach v. Morgan, 384 US. 641 pa) ate ain MOM

Kent v. Dulles, 357 U.S, NEG {BGG aac scncocccvaeccsacpecneece Ls

Kramer vy, Union Free School Dist. 15, —— U.S. ——,

89 S.Ct. 1886 (1DCD) aacccccovececcccelseocooooe.eo oni 13, 14,17

: 7

Lathrop v. Donghue; 10- Wis.2d 230, 102 N.W 2d HH

* (1960), aff'd, 367 ULS, 820 (1961) ieasiiteekobedttes ESS 11

Lindsley v. National Carbonie Gas Co., 220 US. Gl

fs & ACEIE ESE. ee Re RE tel: LATS eee SET tI 24.

Louisiana ex, rel, Gremillion v. WAAC ‘eh og OOO U. SS.

"2 293 (196%) RHE’ ert AAR VERA “6

Mauff v. Pe onl: § 52 Colo, 2, 123 Pae, 101 (191 | ie Dh

Me ulloch v, Maryland, 4 Wheat, 316 (ISI9y ay Se

McGowan Vv. Maryland, 566 UUS, 420 (1961) 0000024, Bh

MeVherson v. Blac ker, 146 US. (1S2)\, soneatdy 19, 21, 2

Minor v. Happersett; SS ULS. (21 Wall.) Nie (IS75) . S-

: Moore v. Ogilvie, .—— -U.S. -—, 89 S\ Ct 1493

EO ee ARs EOE SIE DE Be Soe 17, 20, 31

N.AALCLP? v) Alabama ex rel. Flowers, O77 es 28S .

. (1964)- Pie ——e EC. \ cen a

N.AAA “Py Mites ex rel Patte ragm, 37 Us) 449

(1958S) Pa \ mil.

NAACP. v. Button, 371 U.S7415 (1963) 6, 1 14, 17.

New York ‘Times v. Sullivan, 376 ULS. 254 (1964) 5, Is, 10

° Vv

. PAGE:

Penhatlow v. Doane, 3 US, 53 ( 3 Dall. of) (ham) SEAN 'g

Reynolds v. fined: 377 U.S. 533 (1066). tins Mies Ramet 2 AS

Roth v. United States, 644 U.S. 476 (1957) 0... mes ie =

Schware v. Bd. of Bar Examimers, 355 ULS. 252

RI Paige oes SES Raat dei ape nen ae

Shapiro v. Thompson, ——- CUS. ——, 80'S. Ct, 1322 °

Se et i aah ae Fem 22.9%, 2

Shelton vy. Tucker, 364 U3 $479 (19D) occeserecrsnaly 10, 17 ”

Slaughter. House C axes, 16 Wall. (83 US. : ai 3 (1873)... 21

Spriggs v. Clark, 45 Wyo, 62, 14 P2d 667 (32) 00. I

Stromberg v. California, a US. 359 (1931) ..2...2.4. 3,8

oe . 4 °

‘Texas vo W hite, 744 US. 7 W all. ) 700 (iS69) X

Thomas v. Collins, ayo U.S, 596 (1945) ..22...:........4, 0, 10, 13

Twining v. New Jersey, 211 U.S. 78 (1908) .....00221, 23

United, Mine Workers v. I lyiois State Bar Assn, SSt -

US: 217 (1967) 2.cccogese- Ra Oa 6, 1S, 19

United States v, Bathgate, on v. SS, ‘nag 49) 21

United States v. Cruikshank, 92 US, 542 (1876) ‘s

United States v. Pruchautl, 565 US. 146 (1901) a

United States v. Gitest, O85 US. 745 (1a) ; om oot

United States v. Korner, 56 F. Supp. 342 (S.D. Cal.

144) sd eas: meee _ W

United States vi Moore, a Ped. has (N.D. Ala.

ee ae cde |

United States v. Wood, Jy Pd W72 ¢ sith ( oe hh s

Wiest Vireiale State Dab of Padue ation v, Barnette, 319.

US 624 (IMB on | sent M8

! | BAGE

“Williams v. Fears, 179 U.S, 270 (1900) Sot 28

Williams ¥, Rhodes, 593 ULS. 23 (1068). eouelh, U1, 13, 17, -

Is, 20, 31

Zemel v. Rusk; OST TS. A965) | ; ss

ety tee,

Constitutional Provisions: - :

Colorado Constitution

_ Article Il, Seetion bo... Sak Eee s

United States Constitution

Article -J, Section Py : oi er ; aT

Article IL, Seetion bo. erate | Fy oe

‘Article IW, Seetion 200 | ee 27

Article IV. Section 4 04a

Mirst Amendment 24,5, 9, 13,20, 24, 80, 31

Mifth: Amendment = oa vs es

Mourteenth Atmendient Hetty tata webs wade ete et

Twenty fourth Amendment -~—- “0

‘ 2 j .

Colorado Statutes:

Colorado Revised Statutes: .

. 49.3-8°....... = asa Is

| sO eee AEA SARIS |

5-2 <2.2..: # bide; poll 1

4013-1 ..... On, ested 11

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Federal Stafutes 7

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Othe Authorities: :

May tlower Compaction | Décumedts on Fundamental

Hanan Higdits: 100 bZ. Chatte, deed ¢ Mtheneuiuy

“edd, 103)" a (i

oP unelanientad (frders of Conmectiout in Z. Chatte, dir,

= “supra note 1, at bled ‘

J Locke, Phe Sood Pas ate eon Government: (PT G4),

"Phe Laberal Arts Press. dne., New Vork, u 2

Cho VIEL, See. 87) po dd 3

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Ch. NUN, Bee MY, poo, iiatak hank 7%

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Chaffee, Three Human Rushts in the Constitution of

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Comment, ¢s tlary. bo Rea. O74 Cia) M-

Note, Pederat Elections ‘Phe .Diefpanehisie | Ress

donee Requirement, EWG 1 TE baw Porui tot IM

Cioldinan, Move Lone Your Vote, 4 -National Miuinies

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ARGUMENT

The right to vote in presidentiol elections is a right

; : : . af

protected by the Birst Amendment Crom abreidwenent

by the states, except in cases of compelling state inter:

eats.

A. The Right to Vote le Inherent in the Political Pree

dom Protected ty the Rights of Speech. Press,

dscembly, and Petition Guaranteed by the Linst-

tmendment-

| Povpet yy \inerpeberenet ioebwetted i i) opment +

(ville | shi 7 144.) Vithiorerdy

a :

' ‘ , , i | | i j rfas Bhe ! a | ! '

’ TT yi , i cce be | ,'!

1} fay) a thet ' t Prat proeecd

| i pity itis preetal 14 prtirte vo } prevtyt i]

a ' an | 1 ! ti hit

1 | i { ‘ f | Vinpepeedt iit

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futile rhetoric.’

could hw reduced ' by the states fou “risrht to engage in.

But more than that is intended by the deiest Ninend

Hoent. Tt protects mot sgaply the Tight te speak and as

erble, but to speak gained assemble cetheetively, Amalga

poacit i / wait / niplowe i / eto Laicals rel NV Logan Vall “

Placa, Lue. way | SS SOS (pos) a) pradeets nel ond

The rivht toostate Pete, but alse “dhe Op pron bunehs to jeer

unde to action.” -Thumas \. Collins, 828-0. 8, 516, 487

C1od Phe object of its guarantee of political Treedom-

I te assure that government is “responsive to the will oft

thy Jowerpels bis suniel Ww ‘ mithle thy “people ti bring about aD shed

political ame social «hates Nfraombera vo California, 288

1. oS. hath, tat muAat \. Roth vu United States, HAULS wit

PSP CU ae db Syren iHiealls s the prroteetian cod that amendment,

relates tosthe < por dat to persuade eleetod affienals to eiael

leur liataeon, Porstein I I. My, rent ( cipifee ri Wiss \ Nay ‘y

Vator breraht, ti aT He | S. 127-6 Lei), vane ofthe preapile

Toa clemoeraes teu oe Maate” hee pe = then political

Vere rlaveuit peiibedna oficial New Pork: Tunes. i Sufllian.,

Bi Poe. 24 wee 1 Ga) (Goldberg, Jo. coneurring). ‘The

eloetion af the Troesifent in forty af "oxvpresston of thes

Ral eis! thie procrpole 4 Vi Ph Powaide \. Ii) rT he ra min t Pins # ty

.! pst) Ee - .

Via paghit te vote, although met speeiowt hs: qrentionech oan

the “Paret Vari theliaent in 1 ential to the “secweit and

efienes Tol thee coohts that are qarentionedt Wetiog ae thie

4 ‘ ’

. final aaghed ope thanitate t fel oa “prrhitioul oN pee ion “whine \;

wih this ‘ rherpae iit thre proche it poval pore oe | moll re.

% . .

ded pretation thant preety aif nb to atheet Sete moved they ity

‘ ! thyaran \ thy iy it | witient eda te fact aon a aed it fas ‘ite

» tiaretoari Th ee oth be apal Vite teddineait ien of previtt

a vis 8,ata tte | asta yerti air ser fiail ae chen tiie ds

tioned, it is within the) penumbra. of that amendment

necessary for the presentation and effectiveness of those

rights specifically mentioned. See Griswolil v. Connecticut,

BSEULS. 479 (1965). 7

B. Voting Is a Form of Assembly and Association’

Peagetul physical assemblies have slong been protected

From abridgement by the states. De Jonge XV. Oregon, 209

UL S. 858. (1987). More recently, constitutional pretection

has been extended to non physic al assemblies, in thre ith

oping right of “association.” See Williams y. Rhoades? 893

U. S28 C908); United Mie Workers v. Mlinois State

Rar Association, 3s U, S, W17( bay \: Rithbrandt vy. Russell,

got U.S. 1] (1966) 5 ON, a As 6 Alabama et rel,

Flowers, 877 U.S. 288 (INH) Brotherhood of RR. ‘Train.

men ve Virginia ex rel. Virariid: State’ Bar, aod? U. S.. 1.

_ (194); Gribson vy, Hlorida l yeslative Lave stigativn ‘Com

mittee, 272 UL S. S8o (19639; Bs Aca te ee, v.- Button,

afi U. B®, 415 (1963): Loutisiand er rel, (iremillion ¥,

N. AA. C. P8660. S. 298 (196) ): Shelton ve Tucker, 304

UU. S..479 (T9600) Bates vi Citycof Little Rack, 860 US,

OFG CENGO) FN. ot. a OP ov. Alabama ea rel. Patterson,

BOF US. 440 (1958), ret

The association of sovereign individnals te form a bans

politic is the most basic form oof “peneerble assembly.”

The idea of the state as an assembly, association, or com

bination *of sovereign individuals ean be traced from the

gurliest Vinériean politica! institution, the Mavtlower Com

pact al Loe ane Prom the luncdanrental Orders of Con.

da- Wir fe lie lay these pene shits solerinaly A miutinaly an the

Preseney al (ied, ane one of another, rovenmunt A combine our

selves Yowreather inte aceivill bods politic Ko for one be Her ordering

A preservation & furtherance cat Hie ends atoresaid * Mayflower

Conmipavt. an bo Documents on Miitidamental Haman Rights, bog?

(Zs, { hatly dy ed CAthene in el? ou) :

> necticut of January m WEBS At the root of this concep-

tion of vove rnment is the, NeECESSILY of see uring the consent

of the people’ “The Declare ation of Independence states

the fundamental premise of American politics that “Gov-

ermments are instituted among Men, deriving theif just

* owerthe Tnhabitants bid Residents of Windsor, Harteford,

and. Weétherstield) 0°) doe (therefore assotiate- and conjoyne our

selves to bess one publike State or Commonwealth ; and doe...

enter into Contbination and Conteder: ation, togather .. 2” Z. Chatfe,

dr. stpra, Pundane ital Orders of Connecticut, LIG-17. ”

‘Locke, to whom Jefferson and the framers of the Constitution

Were indebted, described the social comprict this Way: “

And thus every man, by thus consenting with others to make

one body politic under one government, puts himself ander:

an obligation to every one gf that society to submit to the

" deierniination of the ma jortty and be conchided’ by it; or else

this original compact, whereby “he with others incorporates

into one society, would signif¢ yothing, and be no compact,

he-be left free and tinder no other ties than he was “in

— before in the shite of nature.” , Jf

J a The Second Treatise on Crovernment (1764), Ch.- VII,

See 7, The Liberal Arts Press, Ine. New York, 1992, 95.

ie this is done by barely agreeing to whit® into one jolitical

soclety, Whieh is ail the compact that is, of needs be, between

the individuals that enter inte and make up a commonwealth,

And thus that whieh begins ‘and actually constitutes any

political society is nothing bat the consent of any number of

freemen capable of a majority to unite and incorporate into:

such a SOcdeTA ae

J Locke, The Se pd Treat Ine on Government { V7o4 ), Ch. Vi | &

See. Ho) Phe bl We ri Arts Press, Ine, Ne w York, Pov) 56.

The coustitution at the le rishative thie Hirst and fundame ital

act of society, whereby provision. is ram te for the continuation

of their union ander the direction of persons ‘and bonds of

laws made by persons authorized thereunto by the consent and

appointment. of the people, without which no one man or

humber-of men amongst them can have authority-of making

laws that shall be binding on the rest. When any one or more

shall take pou them to make Laws, whom the peaple have not

ap pointed site do. they nuthe laws without. authority, Which

the peop eo are not therefore bourtd to vbey

JA Lovke. The Second Treatise on Government (1704), Ch. AIX,

Seo VE The Liberal Arts Press; tne, New York, 152, 120

~ DM

powers from the consent of the governed,” a premise re-

peated in the constitutions of many of the states.* See

also Texas vy. White, 74 U. S. (7 Wall.) 700, 721 (1869) ;

United States v. Wood, 295 F, 2d 772, 784 (5th Cir. 1961).

‘The contiriued legitimacy and security of government

depend ultimately upon its preservation of political free-

dom and upon its responsiveness to the continued expres-

sion of consent or dissent of the people. See Stromberg

v. California, 283 U. S. 359, 369 €1931). The control re-

‘tained by the people over their elected representatives is

their “security” for the proper exercise of sov ereignty

surrendered to the state, and is a condition of the basic _

social compact. See McCulloch v. Mars yland,-4 Wheat. 316, —

428 (1819). Voting i is the institutionalized means for the —

people to express their consent, and it is, therefore, the

continuous process by which the people participate in the

legitimization of government, in the basic social compact,

and in the peaceable assembly and association of individ-

uals in the body politic.

; The United. States is a government based on these prin-

ciples. It is a union not only of the states, but. of the

. people. See United States v. Crutkshank, 92 U. S. 542,

549-550 (1876); Texas v. White, 74 U. S. (7 Wall.) 700,

720-721 (1869); and Penhallow v. Doane, 3 U. 8. 53, 93-94

(3 Dall, 54) (1795).5 In Minor v. Happersett, 88 U. ~

* 4E.g., the Colorado Constitution, Art. ‘Tl, See, 1, which provides :

AN political power is vested in and derived from the people;

all government, of right, originates from the people, is founded

‘upon their will only, and is instituted solely for the —_ —

the whole.

5 Significantly, the Saad to the: Cénétitution : provides that

“We the People of the United States . . . do ordain and establish ~

this. constitution for the United States of ‘America. ”

(21 Wall.) 162, 165-166 reads the Court spoke expressly

of this association :

‘There cannot be a . nation without a people. The very

idea of a political community, such as a nation is,

implies an association of persons for the promotion |

of their general welfare. Each one of the persons

~ associated becomes a member of the nation formed by

the association.

In United States v. Cruikshank, 92 U. S. 542, 549 (1876),

Mr. Chief Justice Waite stated: ;

‘Citizens are the members of the political community

to which they belong. They are the people who com-

pose the community, and who, in their associated ca-_

pacity, have established or submitted themselves to

the dominfon of a government for the promotion of

their general welfare andthe protection of their in-

dividual ‘as well as their collective rights.

“The right of members of the national political commu-"

nity to vote for the President and the Vice-President of

the United States is part of the national social compact.

Without that right in the people, the U nited States would

lack the consent w ‘hich is the basis for its legitimacy.

- The right:to vote for President has been recognized as

a “privilege” of citizens of the United States. See Bur-

roughs y. United States, 290 U. 8. 534 (1934). While

the Privileges and Immunities Clause of the —

Amendment protects this right to vote for President and

Vice-President from abridgement by the states, the source

of the right is in the freedom of association and the politi-

cal freedom secured by the First Amendment.

“10

The assembly of votes together is another means of

association, involving elements of speech, qssembly, and

petition and demonstrating the cognate nature of these

rights and their function in practice, of giving effect to

political expression.® '

Other forms of political association are protected by the

Constitution, and are inhibited and chilled by the denial

of the right to vote. These include the association-of in-

dividuals for the purpose of .promoting the passage of

legislation for the relief of the poor, Herndon v. Lowry,

301 U. S. 242 (1937), or for the purpose of encouraging

the enactment of legislation aimed at destroying economic

competitors, Eastern R.R. Presidents Conference v. Noerr

' Motor Freight, Ine., 365 U. S..127 (1961). Also protected

is the right of individesle to associate with and to act .

peacefully for political parties, organized to promote:

Marxism, Herndon v. Lowry, 301 U. S. 242 (1937); De

Jonge v. Oregon, 299 U. S. 353 (1937), or Nazism, United -

States v. Korner, 56 F. Supp. 242. (S. D. Cal. 1944), or -

racism, Fields v.. Fairfield, 375 U. S. 248 (1963) ; Carroll

v. Princess Anne, 393 U.S. 175 (1968).

Membership in a political party is a form of associa-

tion -protected: from being stifled even to promote arguably

valid state interests. See Shelton v. Tucker, 364 U. S. 479,

488 (1960); Schware x. Board of Bar Examiners, 353

- U. S. 232 (1957); and Thomas vy. Collins, 323 U. S. 516

(1945). Holding elective office in a labor union, and vot-

ing for elective officers’in a bar association may both be

* At one time, it appears, voters were physically assembled

together at the time and place of an election, prior to the taking

of the. poll. See Ashby v. White, 2 Ld. Raym. 938, 950 (1708)

(Holt, C.J., dissenting). The New England town meeting is a

closely related institution.

hy |

forms of the exercise of the right of association. See -

Brown vy. United States, 334 F. 2d 488 (9th Cir. 1964), ©

affirmed 381 U. S. 437 (1965); and Lathrop v. Donohue,

10 Wis. 2d 230, 102 N. W. 2d 404 (1960), affirmed 367

U. S. 820 (1961).’ Freedom of association also protects .

the efforts of -a political party to seek the votes of the

public by placing on the ballot the name of its Presidential -

candidate. Williams v. Rhodes, 393 U.S. 23 (1968).

-Denial of the right to vote is not only a practical inhibi-

tion on the exercise of the right to associate with a politi-

cal party; in some states it is a legal impediment to party

affiliation in internal party affairs. In Colorado, for in-

stance, people who do not meet the durational residence

requirement can neither vote in the general, primary, or

special elections* nor can they be affiliated with a political

party or vote in any precinct caucus, assembly, or conven-

tion of a political party.°. The durational residence re-

"In Lathrop, the Wisconsin Court held that the integrated bar

rule did not require compulsory association because “the. rules and

by-laws. of the ‘state Bar . . . do not compel the plaintiff to asso-

ciate with any one. He is free to attend or not attend its meeting

or vote in its elections as he chooses.” 10 Wis. 2d 230, 102 N. W. 2d

at 408.

® Colo. Rev. Stat. 49-13-1 provides: ‘ °

No person shall be permitted to vote at any general, primary,

or — election unless his name is found in the registration

book .

® Colo. Rev. Stat. 49-5-1 provides :

No elector shall vote at any precinct caucus, assembly, or con-

vention of a polifical party unless such elector shall have been

affiliated with the political party holding: the caucus, assembly

or convention fort least twelve months as shown on the regis-

tration books of the county clerk....

Colo. Rev. Stat. See. 49-5-2 provides :

Any unaffiliated registered elector may declare his party affilia-

tion at the time he presents himself to vote at a primary

quirement chills and inhibits the exercise of these associa-

tional rights. : i”

'C.' Voting Is a Form of Petitioning for

Redress of Grievances | .

_ The right to petition for redress of grievances includes

the right to vote. See Spriggs v. Clark, 45 Wyo. 62, 14 ©

P. 2d 667 (1932). ogee. te :

The issues at stake in a Presidential election touch on

the survival of the nation and concern the well-being of

all the people. The opportunity. to vote for President is

an opportunity to express effectively grievances about

any of the matters within the vast powers of the Presi-

dency, the. power to administer the laws, to make judicial

and executive appointments, to- initiate legislative -pro-

grams, to substantially influence the economy of the pri-

vate sector, to act as commander-in-chief, to conduct

foreign policy, and to administer. an annual budget of

almost $200 billion. Not infrequently, citizens have griev-

ances about the exercise of these powers, and have neither

influence nor an effective way to present their grievance,

except at the polls.’° Denial of the right to vote for Presi-

election, as provided in section 49-8-6(1) ; or by appearing in

person before the registration committee at precinet registra-

tion; or at any time: during which electors are permitted to

_filing a form which shali be furnished by the county clerk at

‘the request of the elector. Any registered elector who has not

declared a party affiliation shall be designated on the registra-.

tion books of the county clerk as “unaffiliated.”

7° The 1968 New Hampshire Democratic Presidential prifnary is

an example of large numbers of voters voting in a Presidential

primary election with a common grievancé, the conduct of the war

in Vietnam.

, 13

- dent and Vice-President is an abridgement of this im-

portant means of petitioning for redress of grievances.

_ D. No Compelling State Interest Exists to Justify

Denial of Appellants’ Right to Vote

Statutes restricting the exercise of the right of assembly

and other rights protected by the First Amendment are

entitled to no presumption of validity, and the burden of

establishing their validity is on the party seeking to en-

force them. Gibson v. Florida Legislative Investigation

Committee, 372 U. S. 539, 546 (1963); Thomas v. Collins,

323 U.S. 516, 529, 530 (1945). Similarly, restrictions on

the exercise of voting rights are npt presumptively valid.

Kramer vy. Union Free School Distr%ct 15, U. & .

89 S. Ct. 1886 (1969). Restrictions and infringements

placed on the right to vote by the states “must be care- |

fally and meticulously scrutinized.” Reynolds v. Sims,

377 U. S. 533, 562 (1964). |

Restrictions on rights emanating from the First Amend-

ment require more than a rational basis; they must be

based upon “clear and present danger” of public disorder,

Thomas vy. Collins, 323 U. S. 516, 530 (1945), upon their

tendency to produce “grave and immediate danger” to

legitimate state interests, West Virginia State Board of”

- Education v. Barnette, 319 U. S. 624, 639 (1943), or upon

a “compelling state interest,” N. A. A, &. P. v. Button, 371

“U.S. 415, 488 (1963). The same “compelling state interest”

test, applied to infringements on the rights of association

and petition.in Button, were- applied to restrictions on the

right to vote in Williams v. Rhodes, 393 U.S. 23, 31 (1968).

Whether: appellant’s interest is viewed solely as a right

to vote, or as a right of association, the infringement posed

“N\

+214 ie

by Colorado’s durational residence requirement must be

based on a showing of necessity to protect a “compelling

state interest.” Furthermore, whether appellant’s interest

-is in voting or in associating or petitioning, the restriction —

may be no broader than is necessary to protect whatever

legitimate interest the state may be able to demonstrate

it has. Kramer. v. Union Free School Districé 15, ——

U. S. —, 89 S. -Ct. 1886 (1969) ; Carrington v. Rash, 380

U. S. 89. (1965) ; N. A. A. C. P. v. Button, 371 U. S. 415

(1963).

' Three kinds of interests might conceivably be related to

Colorado’s durational residence requirement for Presi-

dential elections; first, that it assists in preventing

fraudulent registration and voting by persons who are not

actually residents; second, that it assists in preventing

“colonization,” or the importation of persons to vote in a

closely contested district; and third, that it tends to assure

that voters have ‘been exposed to’ the community long

enough to be familiar with its problems and with the

position of the candidates on- matters of special interest

- to the State of Colorado. 3

As to the first, the interest in preventing fraudulent .

elections is no doubt a legitimate interest of the state,

and the question is whether a six-month or ninety-day

durational residence requirement is broader than is neces-

sary to deal with the problem. Unless it is supposed that

every new resident made ineligible to vote because of the

durational reside requirement would perpetrate some.

eR haa Ge if allowed to vote, the requirement

is too broad. It disenfranchises honest voters, while pro-

tecting, the state only from those scarce potential voters |

willing: to commit perjury on the question of residence

but unwilling to do so on the question of durational resi-

dence. A narrower protection, aimed specifically at offend-

ers, exists in the form of Colorado statutes making fraudu-

lent voting a misdemeanor.”

As to the problem of “colonization,” it surely cannot be

assumed that every new resident voting in a Presidential

election in Colorado has come there for the purpose, of

improperly : influencing its . Presidential election vote.

Colorado has statutes defining the concept of residence

for purposes of elections, which are less burdensome on

the exercise of the right to vote than is the durational

residence requirement.’? Colorado also has a penal statute

1 E.g., Colo. Rev. Stat. 49-21-4, Penalties for election offenses ;

49-21-6, Perjury} *49-21.7, Forgery ; 49-21-8, Interfering with or

impeding registration ; 49-21- 9, Interfering with election officeg ;

49.21-10, Interfering with w atcher ; 49-21-11, Violation of duty;

49.21-13, Unlawful qualification as taxpaying elector ; 49-21-14,

Procuring false registration ; 49-21-22, Unlawful giving or promis-

. ing monéy; 49-21-23, Unlawful receipt of money; 49-21-34, Unlaw-

ful refusing or. permitting to vote; 49-21-35, Voting in wrong

~ precinct; 49-21-3e4Personating elector ; 49-21-37, Voting twice;

49-24-10, Penalties.

12 Colo. Rev. Stat. 49-3-3: ,

Rules for determining -residence.—(1) (a) The judges of

election in determining the residence of a person offering to

vote shall be governed by the following rules, so far. as they

may be applicable:

(b) That place shall be considered to be the residence of a

person in which his habitation is fixed, and to which, whenever

he is absent, he has the intention of returning;

_ (e) A person shall not be considered to have lost his resi-

dence who shall leave his home and go into another state .

. merely for eeany purposes with an intention - return.

ing ; ? ;

(d) A person shall not be considered to have a a resi-

. dence in this state, or in any county in this state, when re-

taining his home or domicile elsewhere ;

(e) If a person moves to any other state, or to any of the

‘territories, with the intention of making it his permanent

”

PONS? edi, Cap “18

in. siding the aside of law, Brotherhood of -R.R.

Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S.

1 (1964); in protecting citizens and officials of the state

» from notoriety and attention, from bus boy cotts and from |

_ false charges of official misconduet, N. A. A, C. P. y. Ala-

bama ex rel. F ‘low ers, 377 U. S. 288 (1964); in having pub-

lic schgol teachers who support the Constitution and laws

and are not members of the Communist Party or any or-

ganization planning to overthrow the government by force,

Elfbrandt v. Russell, 384 U. S. 11 (1966); in preventing

the possibility of harm to the public from lawyers with

- conflicting interests, United Mine Workers vy. Illinois State :

Bar Association, 389 U. S. 217 (1967); and in promoting ©

a two-party system and attempting to insure that.-the

winning Se prt candidate receives a majority, rather

than merely a plurality, Williams v. Rhodes, 393 U. s. 23

(1968),

The interests which may be relied on by Colorado to

justify its durational residence requirement are not of

_ the importance of many of those alleged in the association

eases and found by the Court to, be inadequate.

Finally, the idea that voters may be required to have

~ some particular degree of knowledge about local problems

in order to be able to vote for. President is at. variance

with the principle of maximum‘ freedom of political ex-

pression announced in New York Times y. Sullivan, 376.

U. S. 254 (1964). - In voting, as in speech, press, petition,

and other forms of political expression, ‘an intolerance for’

error is stifling to society, and “[t}he constitutional - - pro-

tection does not turn upon ‘the truth, popularity, or social

utility of the ideas ‘and - beliefs which are offered.’

N. A. A. C: P. v. Button, 371-U. S. 415, 455.” New York ,

Times v. Sullivan, 376 U.S. 254, 271 (1964). —

Fae ;

E. Article ll, Section 1 Does Not Limit Appellanis’

Right to Vote for Presidential Electors

The language of Paragraph’ 2 of Art. II, Section 1. of

the Constitution providing for appointment of Presiden-

tial electors by the States, “in such manner as the legis-

lature thereof may direct,” has been the basis for a num-

ber of diverse’schemes for choosing electors, in many cases -

"by the legislatures or ‘persons appointed by the legisla-

tures for the purpose of choosing electors, and not by

popular vote. See McPherson v. Blacker, 146 U. Ss. 1

(1892). It may be argued that the Colorado legislature is

authorized by. this provision to direcf that Presidential

electors be chosen by’ popular v¢tey without the votes of

persons who do not meet its durational residence require-

ments. The argument is unsound for two reasons.

_ First, although every particular election held wil

state auspices may not be constitutionally required by

either the First Amendment or the Republican Form of ©

‘Government clause of Art. IV, See. 4, the First Amend-

ment does, nevertheless, guarantee the right to vote in

matters that are decided by popular vote. For example,

the Illinois state legislature was not’ constitutionally re-

quired to enact its Workmen’s Compensation Act and the.

Congress was not constitutionally required to enact its

: Federal Employer’s Liability Act, but once these statutes

were enacted, the First Amendment. protected the right of

claimants to seek their benefits. See United Pape Workers

_ v. Illinois State Bar Association, 389 U.S. 217 (1967);

an)

and Brotherhood of R.R. Trainmen vy, Virginia ex rel.

Virginia State Bar Association, 377 U. S. 1 (1964).

- Second, that argument involves an unWarranted assump-

" tion that the state legislature’s power to direct the specific

manner of choosing electors would prefail, in the event of

conflict between Art. II, Sec..1 and another provision of

the Constitution: In the two-recenh cases where such a

conflict occurred, the opposite result was reaghed. Moore

v. Ogilvie, —— U. 8S. —, 89 S. Ct. 1493 (1969) ; and.

Williams y. Rhodes, 393 U. S. 23 (1968). In. Williams it

was held that the legislative powers delegated under

Art. II, See. 1(2) could not be exercised to regulate Presi-

dential elections in, a manner violating the Equal Protec-

tion Clause of the Fourteenth Amendment. The opinion

of the Court repeatedly refers to “the right to vote,”

notes the reference to “the right to vote ‘for electors for

President or Vice-President’” in. the’ Twenty-fourth

Amendment, and holds that the impairment of “voting |

and associational rights . . . is an invidious discrimination,

in violation of the Saeed: Protection : Clause.” Fite U. 8.

at 29, 33, 34.

If the. right to vote for Presidential eleetors is rooted

in the First Amendment, as we contend, then powers of —

the Colorado legislature under Art. II, Sec. 1, to direct

the manner of choosing electors, must be exercised in.a

manner consistent with the First Amendment, as well as

the Privileges and Immunities and Equal Protection

_ Clauses of the Fourteenth Amendment. |

II.

The right to vote for President and Vice-President is

a privilege-of national citizenship and is abridged by

_ Colorado’s residence requirement.

The right to vote for presidential electors may also

be considered a privilege and immunity of national, citizen: _

ship, protected from infringement by the states by the

Fourteenth Amendment. Twining v. New Jersey, 211 U. S.

78, 97 (1908) ; United States v. Moore, 129 Fed. 630 (N. D.

Ala. 1904). Cf. United States v. Bathgate, 246. U. S. 220

(1918).

The privileges and’ immunities of national citizenship

are those rights which arise out of the nature and essen-

tial character of the’ Federal Government. Twining Y.

. New Jersey, 211 U. 8. 78, 97-98 (1908); Duncan vy. Mis-

sourt, 152 U. S. 377, 382 (1894); Giozza v. Tiernan, 148

U. S. 657, 661 (1893); McPherson v. Blacker, 146 U. S. 1,

38 (1892); In re Kemmiler, 136 U. S. 436, 448 (1890);

Slaughter-House Cases, 16 Wall. (83 U. S.) 36, 79 (1873).

Even though Article II, section 1(2) of the Constitution

provides tliat Presidential electors shall be chosen “in —

such manner as the legislature thereof may direct,” it is

clear that Presidential electors exercjse federal functions.

Burroughs vy. United States, 290 U. S. 534, 545 (1934);

Ex parte Yarbrough, 110 U. 8. 651, 662 (1884). Cf. Ex

parte Siebold, 100 U. S. 371, 387-89 (1880). This is par-.:

ticularly so where, as in Colorado, the legislature has

chosen to eliminate all intermediate steps between the

vote of the people and the vote of the presidential elector

by requiring that the. elector cast his vote for’ ‘the candi-

-. date receiving a plurality in the popular election.™

Of course, the fact that the right to vote in Presiden-

tial elections is a federal right, and a privilege and im-

munity of -national citizenship, does not impair the dis-

_eretion of the legislature of a state to utilize alternate

methods of selecting Presidential electors. See McPher- —

son v. Blacker, 146 U. S. 1, 28-35 (1892). It does. mean,

however, that whatever process is used must not deny

the privileges and immunities of national citizenship, in-

cluding the right to vote: Thus, if a state legislature were

to assume the responsibility of appointing electors, elec-

tion of the appointing legislators would become a priv ilege

and immunity of national citizenship.

rs Denial of the Presidential franchise for failure to |

satisfy a durational residence requirement violates the

appellanté’ constitutional right of interstate travel.

Colorado’s -refusal to permit residents of less than six

months’ duration to vote in Presidential elections is an-

impermissible burden upon the constitutionally protected

right of interstate travel. ‘The right to travel interstate

“occupies a position . fundamental to the concept of our

Federal Union. Tt is a right that has been firmly estab-

- lished and repeatedly recognized.” United States v. Guest,

383 U.S. 745, 757 (1966). See also Shapiro v. Thompson,

‘14 Colo. Rev., Stat. 49-20-1 (5) provides as follows:

Each presidential elector shall be required: to vote for the pair |

of presidential and vice-presidential candidates who received

the highest number of votes at the preceding general election"

in Colorado. ”

— U.S. —, 89 S. Ct. 1322 (1969). There has been

_considerable Sininies as to the source of this right,

and at different times it has been bottomed upon the

Privileges and Immunities Clause of the Fourteenth

Amendment,” the grant of power to Congress to control

Commerce,"*:the Due Process Clauses, and the concept.

of the Federal Union implicit in the Constitution."

While restrictions upon both the right to vote and the ’

right to travel interstate have been struck down either

. because they tend to inhibit the exercise of the respective |

right” or because the exercise of the right is penalized,”

1° Edwards v. California, 314 U. S. 160, 177, 181 (concurring

opinion) (1941); Twining v. New Jersey, 211 U. S. 78 (1908) ;

Crandall v. Nevada, 6 Wall (73. U. 8S.) 35 (1868); Corfield v.

Coryell, 6 Fed. Cas. 546 (No. 3230) (C. C. E. D. Pa. 1823);

United States v. Moore, 129 Fed. 630 (N. D. Ala. 1904).

16 Edwards v.- California, 314 U. 8: 160 (1941); The Passenger

Cases, 48 U. S. (7 How.) 282 (1849) ; Crandall v. Nevada, 6 (73

-U.S. Wall) 35 (1868).

17 Williams v. Fears, 179 U. S. 270, 274 (1900) (Fourteenth

Amendment) ; Alilgeyer v. Louisiana,. 165 U. §. 578, 589 (1897)

(Fourteenth Amendment) (dicta). Ebel v. Drum, 52 F. Supp.

189, 196 (D. Mass. 1943) (Fifth Amendment). Chaffee, Three

Human Rights in the Constitution of 1787, 162 (1956). Cf. United

States v. Guest, 383.U. 8. 745, 769-70 (1960) {opinion of Justice

Harlan, concurring in part and dissenting in part). The right to

international travel has been clearly rested on Fifth Amendment

due process grounds. Zemel v. Rusk, 381 U. S. 1 (1965) ; Aptheker

v. Secretary of State, 378 U.S. 500 (1964) ;-Kent v. Dulles, 357

U. S. 116 (1958).

18 Chaffee, Three Human Rights in the Constitution. of 1787

(1956) ; ef. United States v. Guest, 383 U. S: 745, 758 (1966).

19 E.g., Harper v. Virginia State Board of Elections, 383 U. 8. 663

(1966) (right to vote) ; Aptheker v. ny of ee 378 U. S.-

‘500 (1964) (right to travel).

20 E.g., Shapiro. v.. Thompson, —— U. 8S. —, 89 S. Ct. 1322

(1969) (right to travel) ; ; Harman v. Forssenius, 380 U. s. 528

(1965) en to vote).

the vice of durational residence requirements is a poten- |

’ tial restriction upon the exercise of both rights. Either —

right may be exercised only if the other is surrendered.

“The substantiality of theeréstrictions cannot be doubted.

. Since freedom of association is itself guaranteed in

the First Amendment, restrictions imposed upon the right

to travel cannot be dismissed by asserting that the right

to travel could be fully exercised if the individual would

first: yield up his membership in a given association.”

Aptheker v. Secretary of State, 378 U. S. 500, 507 (1964).

Likewise, the constitutional protection afforded to the

right to vote by the First Amendment and the Privileges

and Immunities Clause of the Fourteenth Amendment

makes it clear that the restrictions upon the acta to.travel

are substantial.

IV.

Durational residence requirements for voting deny

the-equal protection of the laws to the appellants. -

A state may ena¢t laws. which affect some groups of

citizens differently than they affect others. McGowan vy.

Maryland, 366 U. S. 420 (1961). However, the selection

of persons who shall be treated differently may not be

accomplished in an arbitrary or ns nda manner. Bax-

strom y. Herold, 383 U. S. 107 (1966). .

The classic equal protection test employ ed to determine

whether a particular classification is invidiously discrimi-

natory is whetér a rational relationship exists between a _

_ permissible state ‘objective and the exclusionary lines

which are drawry to effect that objective... Lindsley v. Na-

tional Carbonic Gas Co., 220 U. S. 61 (1911); Fleming v.

Nestor, 363 U. S. 6038 nes Nelle v. Maryland, 366

" S. 420 (1961).

. However, where the result of the classification is ‘to

fetter the exercise of a constitutional right as fundamental

as the right to travel or the right to vote for Presidential

electors, a rational relationship between the objective to

be served and the classification is not enough—the objec-

tive of the state must be compelling:

The. waiting-period provision denies welfare benefits

to otherwise eligible applicants solely because they

have recently moved into the jurisdiction. But in

moving from State to State or to the District of

Columbia appellees were exercising a constitutional

right, and any classification which serves ‘to penalize

the exercise of that right, unless shown to be neces-.

sary. to promote a compelling governmental interest,

is unconstitutional.

Shapiro v. Thompson, —— U. S. —, 89S. Ct. 1322, 1331.

(1969).

Durational residence requirements for voting have been

defended on many grounds. The court below asserted. two

objectives to justify the exclusion of recent b aaETaets from

' the presidential electorate.

The first of these is the state’s interest in the nurity

of elections.” 292 F. Supp. at 614.0 The term “purity”

refers to the desire to insure that only eligible .persons

vote.” Denial of the franchise for a period of six —

*1 [T]he purity of elections . . . consists chiefly in affording

qualified electors an opportunity to vote and have their votes

counted, and ‘in preventing those not qualified from voting. It

means protection, in the exercise of this right. ;

” Mauff v.sPeople, 52 Colo..562, 123 Pae. 101 (1912).

however, is a device far more onerous than necessary to

assure that all voters are residents of the state. In strik-

ing down Virginia’s s requirement of filing a “certifieate of

residence” six months prior to the election as ari alter-

native to payment of a constitutionally prohibited aes tax

in federal elections, this Court said: ¢

The availability of nuinerous devices to enforce: valid

residence requirements—such as registration, use of

the criminal sanction, purging of registration lists,

‘challenges and oaths, public scrutiny by candidates

and other interested parties—demonstrates quite

clearly the lack of necessity for imposing a require-

ment whereby persons desiring to vote in federal elec-

tions must ‘either pay a poll tax or file a certificate of

residence six months prior to the election. Harman v.

Forssenius, 380 1 S. 528, 543 (1965).

Colorado, of course, does not require a “certificate of

residence” to be filed six months before the election. It

permits an affidavit submitted contemporaneously with the

application for registration to suffice. Thus, the same de-

vice that is used to establish residence is used to establish

durational residence. It is difficult to see how the latter re-

quirement is of any assistance in- | establishing, the fact of

residence.

The second objective recognized by the court below as

justifying a six-month durational residence requirement was

“administrative reasons” 292 F4,Supp. at.614. Presumably

this means the time necessary to process registration ap-

plications. It is clear, however, that remote administrative

benefit to the state will not justify deprivation of a funda-

mental constitutional right. Harman vy. Forssenius, 380

U. S. 528, 542 (1965) ; Carrington v. Rash, 380 U. S. 89,

96 (1965); Oyama v. Califorma, 332 U. S. -633, 646-47

(1948). ~

The only occasion on which this court has dealt directly”? |

with durational residence requirements for Presidehtial

voting is Drueding v. Devlin, 234 F. Supp: 721 (D. Md.

1964), affirmed per curiam, 380 U. S. 125 (1965). In that

case the District Court found that exclusion from the fran-

chise was justified on two grounds. The first was to identify

the voter and protect against fraud,” a ground similar to

the preservation of “purity” asserted by the court below.

The second ground in Drueding was to “insure that the

voter will ‘become in fact a member of the community, and

as such have a common interest in all matters pertaining .

to its government.’” ** Of course, the relevant community

in a Presidential election is a- national one. One could

argue nevertheless that the state has an interest in insur-

ing that a newcomer resides for a sufficient time in the

state to view the issues raised in the national election from

the perspective of his new identity. as a Colorado citizen. .

Insofar as this interest is based on what the prospective

-voter’s political interests are likely to be, rather than upon

his intellectual ability to perceive that interest, however, .

* it is not constitutionally legitimate:

*2In Blake v. McClung, 172 U. 8S. 239 (1898), however, the

Court, while discussing the limits upon the Privileges and Immuni-

ties Clause of Article IV, Section 2, said in dicta at 256:

So, a state may, by rule uniform in its operation as to citizens

of the several states, require residence within its limits for a

given time before a citizen of another state who becomes a

resident thereof shall exercise the right of suffrage or become

eligible to office.

23234 F. Supp. at 724.

- 24 Tbid,

Appellants’ interest in the electoral system resembles

the interest of a taxpayer in the fiscal system. In a suit by

a taxpayer complaining of the unconstitutionality of an ex-

pendliture by the United States, the rule is that a case or :

controversy exists sufficient to confer standing where, first,

there is a “logical link” between the taxpayer’s status and

the type of legislation attacked, and, second, the legislation -

is challengéd as being in violation of a specific constitu-

tional limitation on the legislative powers: [last y. Cohen,

392 U. S. 83, 102-103 (1968). |

Using the same standards to assess the standing of ap-

pellants, now eligible to vote, to challenge the constitution-

ality: of this part of the electoral system, the nature of

appellants’ continuing interest-in the ¢ istitutionality of

the residence requirement is clear.

: First, there’ is a direct. connection ore appellants’

status as voters and. the effects of the durational resi- -

dence ,requirement -in future, Presidential elections. The

could affect appellants’ interests in future Pregilential

elections in three different ways. (1) “Appellants may move

~ again and again and have their right to vote for President

and Vice-President infringed by the durational residence

requirement of another state. (2) As citizens of the United

States, appellants are interested in the integrity of the elec-

toral system and have a legitimate interest in maintaining _

an electoral system free of arbitrary and irrational exelu-

sions and in continuing to have the benefit of citizenship’

in a “more perfect union,” whose institutions govern with

the consent of the governed. (3) As voters in future Preési-

dential elections in Colorado, appellants have an interest,

protected from abridgement by the First Amendment right

_ of association, in forming a political association with other

people of similar political views to eleét a candidate.” The.

associational rights referred to in Williams included not -

only the right of a candidate to associate with voters, but,

more broadly, “the right of individuals to associate for the

advancement of political beliefs” 393 U: S. at 30. The

Colorado durational residence requirement will to some

extent prohibit appellants’ exercise of their right to asso-

_ ciate with others for the advancement of a specific political

belief: who should be President. .

Second, the Colorado statute is in violation of express

constitutional limitations on thie’ exercise of. legislative

powers by the states in the selection of a President. If

the taxing provisions of Art. I; See. 8 (1) of the Constitu-

tion are specifically limited by the Establishment Clause

of the First Amendment, asin Flast, the elector selection

power mentioned in Art. II, Sec. 1 (2) is specifically

limited by the First Amendment rights of speech, as-

-sembly, petition and association, arid by the Privileges and

Immunities and Equal Protection Clauses of the Four-

teenth Amendment. See Williams v. Rhodes, 393 U. 8. 23

at 29, 31 (1968). . i

In a case decided without even discussing the litigant’s

standing, the constitutional validity of Section 4 (e) of the

Voting Rights Act of 1965 was sustained against ‘the com-

.* Although the way. potential voters might vote may not form

the basis for restrictions by the state on the right to vote and, from

the state’s point of view, must be irrelevant, see Carrington v.

Rash, 380 U. 8. 89 (1965), it is highly important to candidates-and °

voters and is relevant to their legitimate interests in seeking politi-

cal support. See Moore v. Ogilvie, U. 8. ——, 23 L. Ed, 2d

1, 89 8. Ct. 1493 (1969); and Williams v. Rhodes, 393 U. 8. 23

(1968). - rats AOR

oo ae

plaint of registered voters in New York.that by suspend-

ing the enfarcement of New York’s literacy requirement as"

to persons with a sixth-grade education in an American’

"flag school in a language other than English, Section 4

(e) would enable many otherwise ineligible Puerto Ricans

to vote, Katzenbach v. Morgan, 384 U. 8. 641 (1966). Evi-

dently, the interest of the Katzenbach plaintiffs in (1) being.

able to vote in an electoral system operating properly

under standards designed by the state constitution and

legislature, and (2) not associating politically with Puerto

Ricans, was sufficient to create a case or controversy and —

give the plaintiffs standing. Appellant’s continuing inter-

ests in this case are not materially different, and are suffi-

cient to avoid. dismissal of the case for mootness. |

The issue here is raised in a context of concrete facts

with sufficient detail and precision to create a clear focus ~

on the competing interests. The competing interests have

had all the illuminating benefit of an adversary presenta-

tion, so that the matter is a legitimate case-or controversy.

See United States v. Fruchauf, 365 U. S. 146, 157 (1961).

Because of the-critical and fundamental nature of the

constitutional rights involved, and because of the certainty

of continued abridgement of those rights, this case should

properly be decided now, rather than waiting for further

injury. See Dombrowski v. Pfister, 380 U. S. 479 (1965).

CONCLUSION — a

~~.

In Ashby v. White, 2 * Raym. 938, 953 (1703), Chief

Justice Holt, dissenting, said:

tion of a person to represent him in parliament, there

to concur to the making of laws, which are to bind his

liberty and property, is a most transcendent thing, -

and of an high nature, and the-law takes notice of it

Sauch in diverse statutes an

For the reasons:stated, the. Court should reverse the

judgment of dismissal entered by the District Court and.

remand for entry of a proper judgment.

Respectfully submitted,

Epmunp J. Woop

CHarLes FE. ExXLert

2101 Smith Tower

Seattle, Washington 98104

Wittiam F. Reynarp

-007 American National Bank Bldg.

Denver, Colorado 80202 |

Metin L. Wor

_ ELeanor Hotmes Norton ~

156 Fifth Avenue

New York, N. Y. 10010

Attorneys for Amici Curiae

July 1969

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