# Amicus Curiae Brief — Hall v. Beals

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1351%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1969
- **Citation:** 396 U.S. 45

## Text

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IN yur

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,

SPREE Ob AMEPREOAN Civil LIBERTIES | NION,
VND AMERICAN CIVIL LIBERTIES UNION OF
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- INDEX

‘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

il
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
oo

(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

?

vi
! | 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

ey aS ae! 2 2 es. ae ue
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49-21.6 *....... Sa ae ih

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49-21-28 ican. ae | ¥
$9-21-34 -,............. dit a hs
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40-316 lo
4 1-87 be
oe oS 40
49 2410 Ib
Federal Stafutes 7
Sectron ie) at the A otiny Hikes Net’ of Sie | oi, abe
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
‘a Ch VON, sed Lae Ca | | ,
Ch. NUN, Bee MY, poo, iiatak hank 7%

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Chaffee, Three Human Rushts in the Constitution of

IiS7, bee (ie) pas : a
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
pal Rev. 6 (ood. igi ; ; 3 |

Welausver,-Mlectoral Coblewe Old Metorme Pake ona

New Look, 2 baw and tonterip ioh TSs (boy ot

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ARGUMENT

3

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
ly ! i
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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

a

6

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) :
4
/

> 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

a

pa

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. ”

9

(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

12
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
register by appearing in person before the county clerk or by
_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.
i

, 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

15

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

”

a

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)

20

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. |

I

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

22

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.

re

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. ”

os
e
<

te

— 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).

24
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.

25

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).

26

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

27

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,

he

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). |

30

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
continued operation of durational residence requirements ©
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

31

_ 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).

~&

33

CONCLUSION — a

~~.

In Ashby v. White, 2 * Raym. 938, 953 (1703), Chief
Justice Holt, dissenting, said:

_ A right that a man has to give his vote at the elec- ©
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1351%3A06. Public record. Not legal advice.