Jurisdictional Statement — Meyers v. Roberts

Supreme Court of the United Sfatese ror, jp. CLERK

Ocrosper TrerM, 1976

Davin Meyers and Pau. L. Keen,

Appellants,

—V .<—

Ken W. Roserts, Nobles County Auditor,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF MINNESOTA

JURISDICTIONAL STATEMENT

James H. Mananan Law OFFICE

CHARTERED

Suite 107, Madison East

Mankato, Minnesota 56001

Attorney for Appellants

(Volunteer Attorney, Minnesota

Civil Liberties Union)

Mervin L. WuLF

Joe, M. Gora

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Of Counsel

——_—

TABLE OF CONTENTS

Page

Suis Ol REE EEES -coccvccocséiccccoseoes SS

Opinions Below PPUTTTTITITICCLT TTT Tt 2

Jurisdiction eceeeeeeeeeseeeeeeeeeee 2

Statute Involved wTTTTT. TTT TITT TY 3

Questions Presented onesbseee ateeeeoce 4

Statement of the Case 6066666666066 00 4

The Questions Are Substantial .......-. 7

1. This is the first case presented

to this Court in which the voters

have actually elected a person who

does not meet state age requirements.. 7

2. This Court should resolve

conflicts in state and federal

decisions as to the equal protection

criterion to be applied in cases in-

volving a person's right to run for

and hold public elective office....- ll

A. The “strict scrutiny” test... 13

B. The “strengthened rational

Felation® tCest.cccccccccccecce 15

3. Neither Massachusetts Board of

Retirement v. Murgia nor Whitehead v.

Westbrook is controlling here....... 18

ii

4. It is unconstitutional under the

26th Amendment to deny to voters the

right to vote for persons on account

OE BWeccccccccesececcveccseovseseces 21

LS o8e06eeceeeue 22

Table of Authorities

Cases

Adamson v. California, 332 U.S. 46

(1947). “ene5uxsont #e#ee#eee ee © # @ eoeneneeeeee eeenee 3

Blassman v. Marckworth, 359 F.Supp. 1

To. TEhe BS7eP ce cocceescccevesees eee 1S

Bullock v. Carter, 405 U.S. 134 (1972).. 17

Bykofsky v. Borough of Middletown,

401 F.Supp. 1242 (M.D. Pa. 1975),

aff'd, 535 F.2d 1245 (3rd Cir.),

cert. denied, 45 U.S. Law Week

Saee GOV. 19, LOTS) cccccccccescesecs 12

Colorado Project - Common Cause v,

Anderson, 495 P.2d 220 (Col. 1992).... 21

Harper v. Board of Elections, 383

U.S. 663 Ree 660600006 66866 *“enreeneee 7 3

Johnson v. Hamilton, 15 Cal. 3d 461

(1975)... oeereeeveeveeeeeeeeeeeeeeneees 13-14

iii

Kramer v. Union Free School District,

395 U.S. 621 (1969) eoenreeevneeeeeenneneeneneee 3

Lubin v. Panish, 415 U.S. 709

[RS7G) cocccecceseocccuecesoe Ge De 27e

Mancuso v. Taft, 476 F.2d 187

(lst cir. 1973) e*eeee#ee#eeseeeez#see*ee#e#e8see#e#e#ee#e#e#e 15

Manson v. Edwards, 345 F.Supp. 719

(E.D. Mich. 1972), rev'd, 482 F.2d

1076 (6th Cir. 1973) sence eceeceeeeeee 14

Massachusetts Board of Retirement v.

Murgia, U.S. , 49 L.Ed.2d 520,

96 S.Ct. 2562 (June 25, 1976) .... 18, 19

McGowan v. Maryland, 366 U.S. 420

(1961) eeeee#se#kee*ee eeee7eee7#4eeensee#*#eee#eee#ee#e ll

Oregon v. Mitchell, 400 U.S. 112

(1970) eoeee54xe+#e#eenseneeeneeeenee#seenee#eeeeee#e#e 22

Powell v. McCormack, 395 U.S. 486

(1969) eoeeneeene eeeee#se ee@e#e#ee#e#e#eee#see#*ee#ee#e#ekee#e#e#e#e# 9

Railway Express Agency v. Virginia,

282 = - 440 (1931) eeeeeeeeeneeeeeeeee 3

Reynolds v. Sims, 377 U.S. 533 (19

(1964) eoeeeneevneeneeaeneneeeeeaeneaeneaeeeaenene Ve 10

Torcaso v. Watkins, 367 U.S. 488 (1961)... 3

iv

Turner v. Fouche, 396 U.S. 346 (1970).... 16

Whitehead v. Westbrook, 423 U.S. 962

(1975) oe#ereeeneeeevee “eee ee eevee eeaeeenee 18, 20

Wurtzel v. Falcey, 69 N.J. 401,

354 A.24 616 (1976) cceccscescbeces e 6, 22

Constitutional Citations

Minnesota Constitution,

Article VII, Section 6Gecceosts 20 2s)

United States Constitution,

Article I, Seetiem © «cescnetna o¢eseees

Article I, Secetsee @ ceceunen éeeeuus sos

Article IZ, Sectiem 4b éceneee ret

Aemeneamenmet FE cccceecvssebenee ecvccncees Gs Ee

Amenament XIV .ccccceses oe Ss Be Oe Ee ae

Amendment XXVI ...-ee- 2, 4, 12, 20, 21, 22

Statutes

28 U.S.C. §1257(2) cecccee evccccces coco O, 8

Minnesota Statute 645.452 ........ ceceee EE

Other Authorities

2 Elliotts Debates 257 e@eeeeneevsneteeneenee#e @ @

Gunther, "The Supreme Court,

1971 Term, Forward: In Search of

Evolving Doctrine on a Changing

Court: A Model For A Newer Equal

Protection," 86 Harv. L. Rev. 1

0\ > ) APPT rrerereeereeeerrer.

9-10

15-16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

DAVID MEYERS and PAUL lL. KEGEL,

Appellants,

Vv.

KEN W. ROBERTS, Nobles County Auditor,

Appellee.

ON APPEAL FROM THE

SUPREME COURT OF MINNESOTA

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of

the Supreme Court of Minnesota entered on

September 24, 1976, affirming the order of

the district court dismissing plaintiffs’

complaint, and submit this Statement to show

that the Supreme Court of the United States

has jurisdiction of the appeal and that a

substantial question is presented.

me

OPINIONS BELOW

The opinion of the Minnesota Supreme

Court is reported at 246 N.W. 2d 186. It is

set out in the Appendix, infra, pp. la-l3a.

The memorandum opinion of the District Court

is not reported. It is set out in the Appen-

dix, infra, pp. 14a-18a.

JURISDICTION

This suit was brought in the district

court of Nobles County, Minnesota, to compel

defendant county auditor to certify plaintiff

David Meyers as elected to the office of court

commissioner for Nobles County. Plaintiffs

alleged that Minnesota Constitution, Article

VII, Sec. 6, which attempts to limit the

right to hold elective office to persons 21

years of age and older, is unconstitutional

under the 14th and 26th Amendments to the

United States Constitution. The district

court dismissed plaintiffs' complaint by

order dated November 10, 1975, and the

Supreme Court of Minnesota affirmed that

order on September 24, 1976. Notice of appeal

to the Supreme Court of the United States

was filed in the Supreme Court of Minnesota

on October 22, 1976.

The jurisdiction of the Supreme Court

to review this decision and order by direct

appeal is conferred by 28 U.S.C. §1257(2), in

ee en none

3.

that the validity of a state constitutional

provision is challenged on the ground of its

being repugnant to the Constitution of the

United States, and the decision of the Minne-

sota Supreme Court is in favor of its valid-

ity.

The term "statute of any state" in 28

U.S.C. §1257(2) includes state constitutional

provisions. Railway Express Agency V- Virginia,

282 U.S. 440 (1931); Adamson v. California,

332 U.S. 46 (1947); Torcaso v. Watkins, 367

U.S. 488 (1961).

Cases believed to sustain the juris-

diction of this court include Harper v. Board

of-Elections; 383 U.S. 663 (1966), and Kramer

v. Union Free School District, 395 U.S. 621

(1969).

STATUTE INVOLVED

Minnesota Constitution Article VII,

Section 6, provides as follows:

“Every person who by the provi-

sions of this article is entitled

to vote at any election and is 21

years of age is eligible for any

office elective by the people in

the district wherein he has resided

30 days previous to the election,

except as otherwise provided in

this constitution, or the consti-

4.

tution and law of the United

States." (Vol. 2, Minnesota

Statutes Annotated, p. 227.)

QUESTIONS PRESENTED

l. Does the right to vote, protected by the

First and Fourteenth Amendments to the United

States Constitution, include.the right to vote

for and elect to public office persons of any

age, or at least adult persons of any age, so

as to render unconstitutional the age limita-

tion of Minnesota Constitution Arti

Section 6? —_—— sn

2. Should this Court adopt a strengthened

rational relation test in cases involving a

person's right to run for and hold publi

elective office? —

3. Is it unconstitutional under the 26th

Amendment to the United States Constitution

to deny to voters the right to vote for per-

sons on account of age?

STATEMENT OF THE CASE

The following facts were stipulated

by the parties:

On November 5, 1974, plaintiff David

J. Meyers was elected by write-in vote to

the office of court commissioner for Nobles

County, Minnesota. The votes case in said

election were cast as follows:

David J. Meyers 275 votes

Jim Wychor 40 votes

Tod Cornell 32 votes

Others

413 votes

5.

Defendant has refused to certify plaintiff

David Meyers as elected to said office on the

ground that plaintiff was 19 years of age at

the time of the election, and would not be 21

years of age at the time of taking office

(January 2, 1975). Plaintiff David J. Meyers

was born March 1l, 1955. Except for his age,

plaintiff David J. Meyers meets all the qual-

ifications to hold the office of court commis-

sioner for Nobles County. Plaintiff Paul L.

Kegel is a resident of Nobles County, Minne-

sota, and was one of the persons who voted

for David J. Meyers for court commissioner in

the election of November 5, 1974. To date no

one has been certified to the office of court

commissioner for Nobles County, and the office

is now vacant.

This lawsuit was commenced September

22, 1975. Copies of the Summons and Complaint

were served upon the Minnesota Attorney General

September 30, 1975. Cross motions for summary

judgment were heard in Nobles County District

Court November 3, 1975, and Judge Harvey A. —

Holtan granted Defendant's motion November

10, 1975. Plaintiffs appealed to the Minne-

sota Supreme Court November 18, 1975.

Plaintiffs' complaint raised the fed-

eral constitutional issues here presented,

alleging that Minnesota Constitution Article

VII, Section 6, is unconstitutional under the

14th and 26th Amendments to the United States

Constitution. Both the district court and

the Supreme Court of Minnesota rejected plain-

6,

tiffs' claims and ruled in favor of the valid-

ity of the Minnesota constitutional provision.

The Minnesota courts rejected appellants’

argument that the age qualification should be

treated as either a suspect criterion or inter-

ference with a fundamental right so as to

require appellee to demonstrate a compelling

state interest for the age requirement. The

Supreme Court ruled that where a legislative

classification "affects only the exercise of

the franchise for the candidate of one's

choice, then it need only be found reasonably

necessary to the accomplishment of important

and legitimate state objectives in order to

pass constitutionsi muster." 246 N.W. 2d at

187 (App., infra, p. 4a).

Furthermore, the Minnesota Supreme

Court refused to remand the case for an evi-

dentiary hearing as to the rational basis for

the age requirement here, as requested by

appellants. The court noted that arguably

the appropriate disposition of this case

would be "a remand to the district court for

taking evidence on the issue whether a 19-

year-old aspirant to the office is, as a

matter of fact, less mature, experienced, and

competent than a 2l-year-old candidate,"

citing Wurtzel v. Falcey, 69 N.J. 401, 354

A.2d 617 (1976) (Mr. Justice Pashman, dissent-

ing), but neglected to state its reason for

not doing so. 246 N.W. 2d at 189 (App.,

infra, p. 10a).

7.

THE QUESTIONS ARE SUBSTANTIAL

l. This is the first case presented to this

Court in which the voters have actually

elected a person who does not meet state age

requirements.

The unique question presented here is

whether a state constitution can take away

the right of the people to vote for and elect

whomever they please.

The protections of due process include

the right to vote, and this right cannot be

infringed by the states. As stated by Chief

Justice Warren in Reynolds v. Sims, 377 U.S.

533, 555 (1964):

"The right to vote freely for the

candidate of one's choice is of

the essence of a democratic society,

and any restrictions on that right

strike at the heart of representa-

tive government."

Obviously, Article VII, Section 6 of

the Minnesota Constitution is an infringe-

ment of the right of citizens to vote, in

that it prevents citizens from voting for

persons under 21 years of age. In this case

the voters have, in fact, elected a 19-year-

old citizen to public office, but Article

VII, Section 6, effectively disenfranchises

the persons who voted for David Meyers.

8.

It is plaintiffs' contention that

under the First and Fourteenth Amendments to

the United States Constitution they have a

right to vote for and elect to public office

persons of any age, or at least adult persons

of any age. This right supersedes the

attempted limitations of the right to vote

contained in the Minnesota Constitution.

In Lubin v. Panish, 415 U.S. 709 (1974),

this Court struck down the California re-

quirements regarding candidates' filing fees

insofar as they operated to prevent indigent

candidates from appearing on the ballot. The

Court stated:

"The interests involved are not

merely those of parties or indiv-

idual candidates; the voters can

assert their preferences only

through candidates or parties or

both and it is this broad interest

that must be weighed in the

balance." 415 U.S. at 716.

In his concurring opinion, Mr. Justice

Douglas made it clear that it is not only

the rights of the candidates which are at

stake, but also the rights of the voters:

"Voting is clearly a fundamental

right.... But the right to vote

would be empty if the State could

arbitrarily deny the right to

stand for election. California

9.

does not satisfy the Equal

Protection Clause when it allows

the poor to vote but effectively

prevents them from voting for one

of their own economic class."

415 U.S. at 721-722.

With equal power, it may be stated that

Minnesota does not satisfy the Equal Pro-

tection Clause when it allows 18 to 20 year

olds to vote, but effectively prevents them

from voting for one of their own age class.

It should be noted that in Lubin v.

Panish, supra, Justices Blackmun and Rehn-

quist concurred in the decision because the

California filing fees were applied to write-

in candidates as well as filing candidates.

Mr. Justice Blackmun stated, "I would regard

a write-in procedure, free of fee, as an

acceptable alternative." 415 U.S. at 722.

In other words, there must be some way for

the voters to elect persons who are other-

wise ineligible to be on the ballot, whether

because of indigency (as in Lubin v. Panish)

or because of age (as here).

This argument is reinforced by Powell

v. McCormack, 395 U.S. 486, 547 (1969),

where the Court stated:

"A fundamental principle of our

representative democracy is, in

Hamilton's words, ‘that the people

should choose whom they please to

10.

govern them.' 2 Elliott's Debates

257. As Madison pointed out at

the Convention, this principle is

undermined as much by limiting

whom the people can select as by

limiting the franchise itself."

(Emphasis added)

The Constitution of the United States,

of course, specifically requires that the

people elect a President and Vice President

who are at least 35 years of age (Article

II, Sec. 1), a Senator who is at least 30

years of age (Article I, Sec 3), and a Rep-

resentative who is at least 25 years of age

(Article I, Sec. 2). This does not mean

that states may impose similar age require-

ments; for example, the geographical compos-

ition of the United States Senate does not

justify the composition of state legislatures

on other than a one-person/one-vote basis.

As decided in Reynolds v. Sims, 377 U.S. 533

at 575 (1964), "...such a plan is impermis-

sible for the States under the Equal Protec-

tion Clause...." (emphasis added). Unless

specifically authorized by the United States

Constitution, the requirements of equal pro-

tection and due process similarly prevent

states from limiting the right of the people

to choose whom they please to govern them.

2. This Court should resolve conflicts in

State and federal decisions as to the equal

protection criterion to be applied in cases

volvi a r ‘s right to run for and

ll.

hold public elective office.

In that portion of its decision up-

holding the 21-year-old requirement for run-

ning for office, the Minnesota Supreme Court,

in effect, applied the traditional "rational

relation" test in holding against Appellant

David Meyers. (App., infra, pp. 6a-10a). The

question presented here is whether a more

stringent strengthened rational relation test

must be utilized in cases involving a person's

right to run for and hold elective office.

The "rational relation" test was des-

cribed by Chief Justice Warren as follows:

-.-[{The Equal Protection Clause] permits

the States a wide scope of discre-

tion in enacting laws which affect

some groups of citizens differently

than others. The constitutional

safeguard is offended only if the

classification rests on grounds

wholly irrelevant to the achieve-

ment of the State's objective.

State legislatures are presumed to

have acted within their constitu-

tional power despite the fact

that, in practice, their laws

result in some inequality. A

statutory discrimination will not

be set aside if any state of facts

reasonably may be conceived to

justify it. (McGowan v. Maryland,

366 U.S. 420, 425-26 (1961) (em-

phasis supplied).

12.

Under such a test, it is obvious that plain-

tiffs in this and most other cases usually

lose. It is arguably rational, at first

blush, to assume that persons 21 years of

age have more maturity, experience and com-

petence than persons 18, 19 or 20 years of

age. On the other hand, it is Appellants’

position that they should be allowed to

prove this assumption false. The age of

maturity has been decreasing steadily. Of

approximately 11 million Americans in the

18 to 21 year old bracket, nearly 50% are

married, 1 million have families, and

nearly 3 million have served or are serving

in the armed forces. Under Minnesota law,

these persons are adults, and the legisla-

ture has provided that "every disability of

minority at common law shall cease when a

person reaches 18 years of age." Minn. St.

645.452. In addition, the judgment implicit

in the 26th Amendment is that 18-21 year olds

are mature enough to participate in the

electoral process. In light of these facts,

had the court below applied either of the

more stringent tests, the Appellants would

have prevailed. 1/

1/ In Bykofsky v. Borough of Middletown,

401 F.Supp. 1242 (M.D. Pa. 1975), aff'd, 535

F.2d 1245 (3rd Cir.), cert. denied, 45 U.S.

Law Week 3362 (Nov. 15, 1976), the court up-

held a curfew law for minors, even though a

more demanding standard wés used: "The age

classification [here] is not arbitrary but

13.

A. The “strict scrutiny" test.

In contast to the decision below, a

number of decisions have involved application

of the "strict scrutiny" test in cases in-

volving a person's right to run for elective

office.

The California Supreme Court applied

that test in holding a one-year residency

requirement to run for public office to be

unconstitutional under the equal protection

clause of the Fourteenth Amendment:

"...it is difficult to conceive

of principles more central to a

political democracy than the free

and untrammeled access of the

public to the ballot box and the

reciprocal right of candidates

rather rests on real and substantial differ-

ences between adults and minors.... Minors are

a class founded on natural and intrinsic

differences from adults...and the court be-

lieves the state is free to give differen-

tial treatment to adults and youths based on

inherent and practical differences...." 411

F.Supp. at 1265. The case at bar, of course,

involves the rights of a 19-year-old adult.

14...

to seek the public's suffrage.

It follows, accordingly, that

we examine with a close and

questioning attention every

intrusion, subtle or direct,

which impairs or affects the

unconditional exercise of these

prerogatives." Johnson _v.

Hamilton, 15 Cal. 3d. 461, 468

(1975).

The United States District Court for

the Eastern District of Michigan also adopted

the strict scrutiny test in striking down a

provision of the Detroit City Charter setting

an age minimum of 25 years for Council candi-

dates. The court ruled that “since a funda-

mental right is at stake the law must be

closely scrutinized for a compelling govern-

mental interest." Manson v. Edwards, 345 F.

Supp. 719, 723 (E.D. Mich., 1972); rev'd, 482

F.2d 1076 (6th Cir. 1973). The court went on:

“The City of Detroit has made no

showing that the knowledge or

wisdom arguably necessary to

fulfill the duties of Common

Councilman are absent in all or

most persons between the ages of

18 and 24.... The compelling

interest test requires such a

showing.” 345 F.Supp. at p. 724.

Although this decision was reversed by the

Court of Appeals, the case was remanded for

15.

a hearing as to whether there was, in fact, a

rational basis for the age classification.

482 F.2d 1076.

In Blassman v. Markworth, 359 F.Supp.

1 (N.D., Ill. 1973) (three-judge court), the

court upheld the constitutionality of a

statute prescribing that candidates for boards

of education be 21 years of age. However, the

concurring opinion of Judge Swygert relied

upon the strict scrutiny test:

",..any state action that substan-

tially restricts the right to

candidacy must be given strict

scrutiny and meet the test that

the restriction is justified by

a compelling state interest.”

359 F.Supp. at 8.

See also Mancuso vy. Taft, 476 F.2d 187 (lst

Cir. 1973).

B. "“stre a al rela-

tion" test.

Even if this Court is not willing to

apply the strict scrutiny test to statutes

limiting the right to run for and hold elec-

tive office, several recent decisions support

the premise that something more than the

traditional “rational relation” test must be

applied. See Gunther, "The Supreme Court,

1971 Term, Forward: In Search of Evolving

16.

Doctrine on a Changing Court: A Model For

A Newer Equal Protection," 86 Harv.L.Rev. l

(1972).

In Turner v. Fouche, 396 U.S. 346

(1970), the Court struck down a Georgia re-

quirement that candidates for the County

Board of Education must be landowners. The

court held that citizens “have a federal con-

stitutional right to be considered for public

service without the burden of invidiously

discriminatory disqualifications." Id. at

362 (emphasis added). In language which is

particularly pertinent to the present case,

the Court stated:

“Nor does the lack of ownership

of realty establish a lack of

attachment to the community and

its educational values. However

reasonable the assumption that

those who own realty do possess

such an attachment, Georgia may

not rationally presume that that

quality is necessarily wanting in

all citizens of the county whose

estates are less than freehold.”

396 U.S. at 364.

By the same token, it may be reasonable to

assume that persons 21 years of age and

older are sufficiently mature and wise to

hold public office; but it is not rational

to presume that maturity and wisdom are nec-

essarily wanting in all citizens whose ages

17.

are less than 21. Just as it would violate

the Equal Protection Clause to assume that a

certain race of citizens is incapable or

inferior, so it is unconstitutional to assume

that a certain age group of adult citizens is

incapable or inferior.

In Bullock v. Carter, 405 U.S. 134

(1972), the Court struck down a Texas statute

which required that candidates file large

fees as a prerequisite to running for office.

Chief Justice Burger declared that laws re-

stricting the right to be a candidate, because

they have a “real and appreciable impact on

the exercise of the franchise,...must be

‘closely scrutinized’ and found reasonably

necessary to the accomplishment of legiti-

mate state objectives in order to pass con-

stitutional muster." 405 U.S. at 144. So

in the present case, the state must be

required to prove by actual evidence (and

not by simply asserting presumptions as to

maturity and wisdom) that excluding all 18,

19 and 20 year olds from public office is

reasonably necessary t° the accomplishment

of legitimate state objectives.

Finally, in Lubin v. Panish, 415 U.S.

709 (1974), even smaller filing fees in

California were declared unconstitutional.

Chief Justice Burger stated:

"The right of...an individual toa

place on a ballot is entitled to

18.

protection and is intertwined with

the rights of voters.... The point,

of course, is that ballot access

must be genuinely open to all,

subject to reasonable require-

ments." 415 U.S. at 716, 719.

In the present case, ballot access must be

genuinely open to all adult citizens, in-

cluding 18, 19 and 20 year olds, unless the

state can at the very least prove a compel-

ling and substantial governmental interest

in excluding them from public office. If

the limitation “is not reasonably necessary

to the accomplishment of the state's legi-

timate election interests," (Lubin v. Panish,

415 U.S. at 718), it is unconstitutional

under the Equal Protection Clause of the

Fourteenth Amendment .

In Minnesota, 18, 19 and 20 year olds

constitute about 10% of eligible voters.

Depriving this large group of citizens of

the right to run for and hold public elec-

tive office is a substantial and significant

limitation both of their rights and of the

rights of voters to choose candidates. At

least a strengthened rational relation test

is called for.

3. Neither Massachusetts Board of Retire-

ment _v. Murgia nor Whitehead v. Westbrook

is controlling here.

—e—

——

19.

This Court recently upheld the con-

stitutionality of a statute requiring police

officers to retire at age 50. Massachusetts

Board of Retirement v. Murgia, Seen

49 L.Ed.2d. 520, 96 S. Ct. 2562 (June 25,

1976). The court applied the rational rela-

tion test, noting that the statute did not

interfere with the exercise of a fundamental

right or operate to the peculiar disadvan-

tage of a suspect class. But the Murgia case

involved public employment, not public elec~-

tive office, and this is a substantial and

critical difference. The right to public

employment has not been as strongly protected

by the law as the right to vote or hold

office. ;

If Massachusetts had enacted a law

providing that no one over 50 years of age

could run for or hold public elective office,

the law might arguably have a rational basis

- i.,e., the assumption that persons under 50

years of age are more alert and energetic,

less likely to be senile, etc. But surely

more than a rational relation should be re-

quired before a state be permitted to deprive

citizens of the right to hold elective office

in that fashion. An evidentiary hearing

should be held at which the state would have

to prove, by substantial evidence, that its

assumptions are true.2/

2/ See the dissenting opinion of Mr. Justice

Marshall at Footnote 8: "That the Court

20.

In Whitehead v. Westbrook, 423 U.S.

962 (1975), this Court summarily affirmed

a ruling upholding an Arkansas statute which

set a minimum age of 30 years for candidates

for the office of City Director. None of

the arguments presented to the Court in the

present case - the constitutional rights of

voters, the strengthened rational relation

test, and the 26th Amendment - was present-

ed in the Whitehead case. In addition, the

conflicts among state and federal decisions

as to the equal protection criterion to be

applied in cases involving a person's right

to run for and hold public elective office

were not presented to this Court for resolu-

tion in Whitehead.

Appellants urge the Court to note

jurisdiction here so these issues can be

concludes it is rational to legislate on the

assumption that physical strength and well-

being decrease significantly with age does

not imply that it will reach the same con-

clusion with respect to legislation based on

assumptions about mental or manual ability.

Accordingly, a mandatory retirement law for

all government employees would stand in a

posture different from the law before us

today." 49 L. Ed. 2d at 533.

—

21.

adequately addressed and decided.

4. It is unconstitutional under the 26th

Amendment to deny to voters the right to

vote for persons on account of age.

The 26th Amendment to the United

States Constitution provides that "the right

of citizens of the United States, who are 18

years of age or older, to vote shall not be

denied or abridged by the United States or

by any state on account of age." The provi-

sion of Minnesota law here involved does deny

or abridge the right of citizens to vote on

account of age, i.e., the age of the candi-

date.

The Colorado Supreme Court has held

that qualified electors between the age of

18 and 20 cannot be precluded by law from

signing and circulating initiative petitions.

The court noted that “public policy, as pre-

scribed by the United States Congress in the

26th Amendment,...has moved in a direction

favoring full participation of young voters

in the political process." Colorado Project,

- Common Cause v. Anderson, 495 P.2d 220,

223 (Col. 1972). This applies, the court

ruled, to "the entire process involving

exercise of the ballot and its concomitants."

In that case, the "concomitant" was the cir-

culation of initiative petitions. Au even

more fundamental concomitant is the right to

22.

vote for persons regardless of their age.

The 26th Amendment specifically removes the

power of states to limit the right to vote

on account of age, and should be construed

to include the right of 18 to 20 year olds

to elect to public office members of their

own age group. As stated by Justice William

O. Douglas, dissenting in Oregon v. Mitchell,

400 U.S. 112, 144 (1970), "...those who have

such a large stake in modern elections as

18-year-olds...should have political equal-

ity." :

CONCLUS ION

In Wurtzel v. Falcey, 69 N.J. 401,

354 A.2d 617 (1976), the New Jersey Supreme

Court upheld the validity of a requirement

that candidates for the State Assembly be 21

years old and that candidates for the State

Senate be 30 years old. Ina strong dissent,

Justice Pashman argued for adoption of a

strengthened rational relation test:

"In this bicentennial year, the

freedom to run for public office

is a right which should not be

taken lightly. Two million

possible candidates between the

age of 18 and 29 cannot offer

themselves as candidates due to

these age restrictions. This

constitutes a massive void.

Society at large sorely needs

23.

the benefit of new, youthful

voices."

In the present case the voters of

Nobles County, Minnesota, have actually

elected a 19 year old citizen to public

office. This court should note jurisdiction

in order to decide (1) whether a state may

deprive the voters of that right, and (2)

whether a state may deprive adult citizens

of the right to hold public elective office

without any proof that the classification

is reasonable.

Respectfully submitted,

James H. Manahan Law Office,

Chartered

Suite 107, Madison East

Mankato, Minnesota 56001

(507) 387-5661

Volunteer Attorney for

Appellants,

Minnesota Civil Liberties

Union.

Melvin L. Wulf

Joel M. Gora

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Of Counsel

APPENDIX

Le re

la.

OPINION OF

THE SUPREME COURT

OF MINNESOTA

No. 258 Nobles County Todd, J.

David Meyers, et al,

Appellants,

46439 vs.

Ken W. Roberts, Nobles

County Auditor,

Respondent.

Endorsed

Filed September 24, 1976

John McCarthy, Clerk

Minnesota Supreme Court

SYLLABUS

Minn. Const. art. 7, § 6, requires that

persons holding the office of cour? commissioner

be at least 21 years of age. The county audi-

tor's refusal, pursuant to this provision, to

certify a 19-year-old citizen as elected to the

office of court commissioner did not violate

any provision of the United States Constitution.

Affirmed.

Considered and decided by the court en

banc.

OPINION

TODD, Justice.

2a.

In the election of November 5, 1974,

plaintiff David J. Meyers ran for the office

of court commissioner of Nobles County.

Although Meyers’ name was not included on the

ballot, he received 275 write-in votes of a

total of 413 votes cast. The Nobles County

auditor, defendant in the case at bar, re-

fused to certify Meyers as elected to the

office because Meyers was born on March ll,

1955, and would not be 21 years of age at the

time of taking office (January 2, 1975).

Minn. Const. art. 7, § 6, sets 21 years of

age as a minimum for holding office, and

Meyers would, at the time of taking office,

have been only 19 years of age.

Meyers brought suit in the district

court to compel the county auditor to certify

him as elected to the office of court commis-

sioner. Also named as a plaintiff was Paul

L. Kegel, one of the persons who voted for

1 Minn. Const. art. 7, § 6, provides as

follows: “Every person who by the provisions

of this article is entitled to vote at any

election and is 21 years of age is eligible

for any office elective by the people in the

Cistrict Wherein he has resided 30 days pre-

vious to the election, except as otherwise

provided in this constitution, or the consti-

tution and law of the United States."

a

2a.

Meyers in the election. On a motion for

summary judgment, the district court entered

judgment dismissing the plaintiffs’ complaint

with prejudjce, and plaintiffs appealed to

this court. We affirm.

Initially, plaintiffs apparently argue

that the right to vote, derived from the right

to peaceably assemble, guaranteed in the First

Amendment and applied to the states through

the Fourteenth Amendment, includes an absolute

right of the people of Nobles County to elect

to the office of court commissioner whomever

they may choose, without restriction of any

sort upon that right. Plaintiffs admit that

under this view of the First and Fourteenth

Amendments the people would be competent to

elect either a 10-year-old child or an incar-

cerated felon to any office. The First Amend-

ment right to peaceably assemble may not be

read as broadly as plaintiffs urge. See,

Blassmen v. Markworth, 359 F.Supp. 1, 7 (N.

D. Ill. 1973).

‘ Although plaintiff Meyers is now 21 years

of age, the defendant county auditor appar-

ently still refuses to certify him because

he was not 21 on the original date for taking

office. Plaintiffs have not argued that

Meyers’ attainment of the age of 21 in March

of this year entitles him to certification

at this time, and we do not decide the issue.

4a.

We turn to whether Minn. Const. art.

7, § 6, upon which defendant relies in his

refusal to certify Meyers as elected to office,

violates the equal protection clause of the

Fourteenth Amendment to the United States Con-

stitution. Article 7, § 6, divides the voters

into two classes. The favored class comprises

those voters who wish to vote for a candidate

21 years of age or older, while the disfavored

class comprises those voters who wish to vote

for a younger aspirant to office. "[I]fa

challenged state statute grants the right to

vote to some bona fide residents of requisite

age and citizenship and denies the franchise

to others, the Court must determine whether

the exclusions are necessary to promote a

compelling state interest." Kramer v. Union

Free School Dist. 395 U. S. 621, 627, 89 S.

Ct. 1886, 1890, 23 L. ed. 2d 583, 589 (1969).

Where, however, the classification affects

the right to vote less drastically and affects

only the exercise of the franchise for the

candidate of one's choice, then it need only

be found reasonably necessary to the accom-

plishment of important and legitimate state

objectives in order to pass constitutional

muster. Lubin v. Panish, 415 U.S. 709, 718,

94 §.Ct. 1315, 1321, 39 L. ed. 2d 702, 709

(1974); Bullock v. Carter, 405 U.S. 134, 144,

92 S. Ct. 849, 856, 31 L. ed. 2d 92, 100

(1972).

In Lubin and Bullock, the United States

Supreme Court considered the constitutionality

of California and Texas statutes which requir-

5a.

ed candidates for public office to pay a

filing fee in order to obtain a place on

the ballot in the primary elections. Those

statutes also divided the voters into two

classes--the favored class comprising those

voters who could afford to raise the filing

fee necessary to put their candidate on the

ballot and the disfavored class comprising

those voters who could not. Although the

court recognized that states have a legiti-

mate interest in regulating the number of

candidates on the ballot, it concluded that

under the applicable standard--whether the

classification was reasonably necessary to

the accomplishment of legitimate state

objectives--it was not enough to say that

the fee requirement tended to limit the

ballot to the more serious candidates. The

statutes were held unconstitutional because

the classification was not reasonably neces-

sary to accomplish the objective of limiting

the ballot only to serious contenders for

office; the states could, for example, have

accomplished this legitimate objective by

requiring that all candidates present a cer-

tain number of voter petitions in order to

obtain a place on the ballot.

Minnesota has a legitimate interest

in assuring that those who hold public office

possess maturity, experience, and competence.

Virtually the only way to accomplish this

objective is to set a minimum age for holding

office. It would not be feasible to conduct

6a.

a hearing on the maturity, experience, and

competence of each aspirant to public office,

and such an individualized procedure might

well rUn afoul of other constitutional guar-

antees. Having concluded that the establish-

ment of a minimum age is necessary to insure

the fitness of those who hold office in Minn-

esota, it follows that the attending discrim-

ination between those candidates who are over

the minimum age and those aspirants to office

who are younger than the minimum age is reas-

onably necessary to the accomplishment of

legitimate state objectives.

Besides voters, Minn. Const. art. 7,

§ 6, also divides aspirants to office into

two classes, the favored class comprising

those candidates who are over 21 years of

age and the disfavored class comprising those

who are younger. While there is a Federal

constitutional right to be considered for

public office without the burden of "invid-

iously discriminatory disqualifications”

(Turner v. Fouche, 396 U.S. 346, 362, 90 S.

Ct. 532, 541, 24 L. ed. 2d 567, 580 [1970]),

the United States Supreme Court has not

attached such fundamental status to candi-

dacy as to invoke a rigorous standard of

review. (But cf. Bullock v. Carter, 405

U. S. 134, 142, 92 S. Ct. 849, 855, 31 L.

ed. 2d 92, 99 [1972]).

The court has emphasized on numerous

occasions the breadth of power enjoyed by

the states in determining voter qualifica-

—_——2 —

Ja.

tions and the manner of elections, but the

court has also said that "this power must

be exercised in a manner consistent with the

Equal Protection Clause of the Fourteenth

Amendment." Bullock v. Carter, 405 U. S.

134, 141, 92 S. Ct. 849, 854, 31 L. ed 2d

92, 98 (1972). In Lassiter v. Northampton

Election Bd. 360 U. S. 45, 51, 79 S. Ct. 985,

990, 3 L. ed. 2d 1072, 1077 (1959), the

court said:

"We do not suggest that any

standards which a State desires to

adopt may be required of voters.

But there is wide scope for exer-

cise of its jurisdiction. Resi-

dence requirements, age, previous

criminal record (Davis v. Beason,

133 U. S. 333, 345-347) are obvious

examples indicating factors which a

State may take into consideration

in determining the qualifications

of voters.”

There is a problem inhevent in decid-

ing equal-protection cases which turn on the

reasonableness of an age-based classification,

however. As Mr. Justice Stewart said ina

separate opinion (in which he was joined by

Mr. Chief Justice Burger and Mr. Justice

Blackmun), concurring in part and dissenting

in part, in Oregon v. Mitchell, 400 U. S.

112, 294, 91 S. Ct. 260, 349, 27 L. ed. 2d

272, 379 (1970):

8a.

"To be sure, recent decisions

have established that state action

regulating suffrage is not immune

from the impact of the Equal Pro-

tection Clause. But we have been

careful in those decisions to note

the undoubted power of a State to

establish a qualification for vot-

ing based on age. See, e.g., Kramer

v. Union School District, 395 U. S.

621, 625; Lassiter v. Northampton

Election Board, 360 U. S. at 5l.

Indeed, none of the opinions filed

today suggest that the States have

anything but a constitutionally

unimpeachable interest in estab-

lishing some age qualifications as

such. Yet to test the power to

establish an age qualification by

the ‘compelling interest’ standard

is really to deny a State any

choice at all, because no State

could demonstrate a ‘compelling

interest’ in drawing the line with

respect to age at ome point rather

than another. Obviously, the

power to establish an age quali-

fication must carry with it the

power to choose 21 as a reasonable

voting age, as the vast majority

of the States have done."

In a footnote, Mr. Justice Stewart

also expressed the further view (400 U. S.

295, 91 S. Ct. 349, 27 L. ed. 2d 379):

9a.

“Tf the Government is correct in

its submission that a particular age

requirement must meet the ‘campel-

ling interest’ standard, then, of

course, a substantial question would

exist whether a 2l-year-old voter

qualification is constitutional even

in the absence of congressional

action, as my Brothers point out.

Ante, at 241-246. Yet it is incon-

ceivable to me that this Court would

ever hold that the denial of the

vote to those between the ages of

18 and 21 constitutes such an in-

vidious discrimination as to be a

denial of the equal protection of

the laws. The establishment of an

age qualification is not state

action aimed at any discrete and

insular minority. Cf. United States

v. Carolene Products Co., 304 U. S.

144, 152 n. 4. Moreover, so long

as a State does not set the voting

age higher than 21, the reasonable-

ness of its choice is confirmed by

the very Fourteenth Amendment upon

which the Government relies. Sec-

tion 2 of that Amendment provides

for sanctions when the right to

vote ‘is denied to any of the male

inhabitants of such State, being

twenty-one years of age, and citi-

zens of the United States***,"

We have previously decided that the

state may set a minimum age for holding office

10a.

greater than the voting age without violating

the equal protectim clause of the Fourteenth

Amendment. Opatz v. City of St. Cloud, 293

Minn. 379, 196 N. W. 2d 298 (1972). Since

then, only last year, the United States Supreme

Court affirmed without opinion an unreported

memorandum decision of a Federal District

Court, Whitehead v. Westbrook (W. D. Ark. May

21, 1975, Civil No. F-74-41-C), which deter-

mined that an Arkansas statute which set 30

years as the minimum age for holding the office

of city director did not deny the equal pro-

tection of the laws to an aspirant for office

who was, under the Arkansas statute, denied a

place on the ballot because he was only 28

years of age at the time of the election.

Whitehead v. Westbrook, 423 U. S. 962, 96 S.

Ct. 388, 46 L. ed. 2d 299 (1975).

It could be argued under the "“reason-

ably necessary to accomplish a legitimate

state objective" test that the appropriate

disposition of this case is a remand to the

district court for taking evidence on the

issue whether a 19-year-old aspirant to office

is, as a matter of fact, less mature, exper-

ienced, and competent than a 2l-year-old

candidate. Wurtzel v. Falcey, §=N. J. __,

354 A. 2d 617 (1976) (Mr. Justice Pashman,

dissenting).

Plaintiffs next argue that the Twenty-

Sixth Amendment to the United States Consti-

tution supersedes Minn. Const. art. 7, § 6,

and requires that no persons 18 years of age

lla.

or older be precluded from holding office on

account of age. This amendment on its face

applies only to the right to vote; it says

nothing about the right to hold office. This

court has previously decided that the Twenty-

Sixth Amendment does not supersede Minn.

Const. art. 7, § 6, and we adhere to those

decisions. Jude v. Erdahl, 296 Minn. 200,

205, note l, 207 N. W. 2d 715, 718 (1973);

Opatz v. City of St. Cloud, 293 Minn. 379,

383, 196 N. W. 2d 298, 301 (1972).

Finally, plaintiffs argue that in Minn.

Const. art 7, § 6, the language "except as

otherwise provided in this constitution or

the constitution and law of the United States"

’ The Twenty-Sixth Amendment to the United

States Constitution provides as follows:

"Section 1. The right of citizens of the

United States, who are eighteen years of age

o1 older, to vote shall not be denied or

abridged by the United States or by any State

on account of age.

"Sec. 2. The Congress shall have power

to enforce this article by appropriate legis-

lation.”

12a,

refers to Minn. Const. art. 6, § 5.

Plaintiffs argue that the failure of the leg-

islature to specify by law any minimum age

for holding the office of court commissioner

is an expression of its intention that there

be no minimum age for the holding of that

office. In Jude v. Erdahl, 296 Minn. 200,

206, 207 N.W. 2d 715, 719 (1973), we said:

"eek [W]e are of the opinion

that the intent of the legislature

and of the voters is better served

by limiting that exception [in art.

7, § 61 to offices where the age

requirements are expressly speci-

fied, as in art. 5, § 3 fart. 5,

§ 2, in the 1974 Constitution

adopted November 5, 1974], dealing

with the minimum age of candidates

for governor and lieutenant gover-

nor, and the provisions of the

United States Constitution speci-

fying the age requirements for

Minn. Const. art. 6, § 5, provides as

follows: "Judges of the supreme court and

the district court shall be learned in the

law. The qualifications of all other judges

and judicial officers shall be prescribed by

law. The compensation of all judges shall

be prescribed by the legislature and shall

not be diminished during their term of

office." (Italics supplied.)

13a.

candidacy to Federal office.”

(Italics supplied.)

We adhere to the majority view in Jude.

Affirmed.

14a.

Memorandum Opinion of the District Court

The Court is of the opinion that Plain-

tiffs should have served notice of this pro-

ceeding upon the State Attorney General as

to the constitutional issues raised. (See

M.S.A. 8.01 and 555.11.) However, the Court

will consider the constitutional issues

raised by the Plaintiffs even though the

State would not be bound by this Court's

ruling because the State was not made a

party.

Although the right to vote and the

right to hold public elective office is

closely tied together in concept and prin-

ciple, the law has always recognized that

these rights are not reciprocal and symmet-

rical in all respects. The law has always

recognized that the right to hold public

elective office may be hedged about by qual-

ifications which are reasonable and bear

some reasonable relationship to the needs of

that office. The test of reasonableness is

a guarantee that such qualifications will

not result in arbitrary denial of the office

to an otherwise qualified voter and will not

result in a denial to the electorate of the

right to choose its own public officers.

Qualifications as to place and length of

residence and educational or other certifi-

cation as well as provisions covering manda-

tory retirmenet have been sustained by the

courts for many years.

eee mm eee — — =

Sli teed iil, __jt..

15a.

It is clear that the character and

abilities of a voter, even what we consider

a good voter, may be but are not necessarily

the same as ideally required of an elected

public official. The elements of experience,

maturity and emotional stability are not re-

quired to the same degree in each capacity.

It is all a matter of degree. The legisla-

ture and the electorate could, and did,

believe that factually a person twenty-one

years of age is more likely to have a higher

degree of maturity, experience and stability

than does a person of eighteen years of age.

Of course, this is not necessarily true in

any individual case but as a general rule

it is true.

The first eighteen years of a person's

life is lived in a very limited, controlled

and protected environment. Experiences are

generally limited to the family and school

setting. This experience, in contrast to

an experience on one's own in the world

without such guidance and control, is a

difference which is reasonable and factual

and bears a reasonable relationship to the

desired qualities we seek for in our elected

public officials.

As Plaintiffs point out, the courts,

State and Federal, have taken the position

that the Twenty-sixth Amendment only applies

to a voter qualification and does not, even

in conjunction with other Federal Constitu-

16a.

tional provisions, apply to qualifications

to hold office. (See cases cited by Plain-

tiffs in their brief.) In any event, this

Court feels bound by the rulings of the Minn-

esota Supreme Court in Opatz vs. City of St.

Cloud, 196 NW2d 298, and Jude vs. Erdahl, 207

NW2d 715. The fact that in those two cases

Plaintiffs were not actually on a ballot nor

actually elected and here the Plaintiff,

Meyers, actually appeared on a write-in ballot

and was actually elected, does not require a

different ruling. The principles are the

same in all three cases. Article VII, Sec-

tion 6 is constitutional.

Plaintiffs also argue that they are

entitled to relief, regardless of the con-

stitutional issues raised by them, because

Article VI, Section 5 delegates to the

legislature the power to prescribe qualifi-

cations for judicial officers and that such

provision is contemplated within the phrase

"except as otherwise provided in this Con-

stitution.” in Article VII, Section 6.

They reason that since the legislature has

not acted to set qualifications as to age

for judicial officers that Minnesota Statutes

645.452 thus controls as the latter statute

effectively removes every disability by

reason of age, with few limited exceptions,

between the years twenty-one and eighteen.

The Court cannot accept this argument of the

Plaintiffs as it appears clear to this Court

that Article VI, Section 5 limits qualifica-

17a.

tions “of all other judges and judicial offic- ~

ers" to the sole matter of degree of training,

education or certification. The first sen-

tence of said section clearly requires that

judges of the Supreme and District Courts be

learned in the law. There is no other quali-

fication referred to in that section. The

only reasonable interpretation is that the

constitution authorizes the legislature to

establish qualifications for all other judges

and judicial officers only as above indicated.

This does not grant the legislature the

authority to set qualifications on the basis

of age.

As to Article VII, Section 6, the

phrase “except as otherwise provided in this

Constitution, or the Constitution and Law of

the United States" clearly refers to the three

conditions for eligibility to hold office, to-

wit: Is twenty-one years of age, the elective

office must be in the district wherein he re-

sides, and he must have resided therein thirty

days previous to the election. The plain

reading of this section refers solely to other

cOnstitutional provisions which may set a

different age, location of elective office and

days of residence required and thus cannot,

in any way, refer to “the qualifications...

prescribed by law" as this latter phrase

refers, as has been stated above, only to con-

ditions or qualifications concerning education,

training, experience or certification in rela-

tion to the qualification of being learned in

the law.

18a.

19a.

This memo is expressly made a part of

this Order. NOTICE OF APPEAL TO THE

SUPREME COURT OF

- Harvey A. Holtan THE UNITED STATES

Judge of District Court

STATE OF MINNESOTA

IN SUPREME COURT

)

David Meyers and Paul ) No. 46439

L. Kegel, )

Appellants, ) morrce OF APPEAL

va. ) TO THE

) SUPREME COURT OF

)

)

)

)

County Auditor,

Respondent.

NOTICE IS HEREBY GIVEN that Appellants,

.David Meyers and Paul L. Kegel, hereby appeal

to the Supreme Court of the United States

from the judgment of the Supreme Court of

Minnesota, filed September 24, 1976 in the

above entitled matter.

This appeal is taken pursuant to 28

USC §1257 (2).

Dated October 21, 1976.

20a.

s/ James H. Mahanan

JAMES H. MANAHAN LAW OFFICE,

CHARTERED

Suite 107, Madison East

Mankato, MN 56001

Phone No. 507-387-5661

ATTORNEY FOR APPELLANTS