Brief for the Respondent in Opposition — White v. Whatley

JAN 10 1974

MICHAEL ROBAX, JR_OLERK

SUPREME COURT OF THE UNI

OCTOBER TERM, 1973

NO. 73-835

MARK WHITE, JR.

Secretary of State of Texas

Petitioner

VS.

MARILYN WHATLEY AND CAROL GERBER ET AL,

Respondents

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DAVID R. RICHARDS

600 West 7th Street

Austin, Texas 78701

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Ra Te SOU ATS PE PORE GOLF EOE REI ES Ser ROMER DR RRR OER TOSI R IRI NET| ARIN LE PPT as

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ...................--000- i

INDEX OF AUTHORITIES ..................... ii

OPINIONS BELOW .....................0000ee- 1

JURISDICTION .... 00... ccc ceccccecceeceeeee. 2

QUESTIONS PRESENTED ..................... 2

STATUTE INVOLVED ...................-.00-- 2

STATEMENT OF THECASE ................... 2

SF oe ELE 4

I es Seon Sse 7

®

INDEX OF AUTHORITIES

CASES PAGE

Anderson v. Brown, 332 F. Supp. 1195

BS | TR Bin NE ERO Bight ee ae 5

Bright v. Baesler, 336 F. Supp. 527

a I ee or ts 5

Dunn v. Blumstein, 405 U.S. 330 (1972) ...... Tie ee 5

Johnson v. Darrell, 337 F. Supp. 138

EE oo COC ews doko a cueencees 5

Jolicouer v. Milhally, 488 P. 2d 1

SL NEE oo evn sas sy abtacaeeawanwns 5

Kennedy v. Meskill, (unreported) (D. Conn., 1971,

eR I oe rn Ce Oe ey ara ag 5

Newburger v. Peterson, 344 F. Supp. 559

a ut ong aoa ae ena 5,7

Phillips v. Beng, (unreported) (E.D. IIl., 1972,

Sl ey PE. SS cds u Nace so tseueeesceees 5

Ramey v. Rockefeller, 348 F. Supp. 780

Er MEIN 6 os a os oa Se es soy cee a ne eee 5,6

Wilkins v. Bentley, 189 N.W..2d 423

res reer 5

Wilson v. Symm, 341 F. Supp. 8

I os EN ee ot aa aCe on 5

Worden v. Mercer County Board of Elections,

61 N.J. 325, 294 A.2d 233 (Sup. Ct. N.J., 1972). . .5

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STATUTES |

TEXAS ELECTION CODE, Article 5.08(k) ..... 2,3,4

UNITED STATES CODE, Vol. 28, Section 1343 ....3

UNITED STATES CODE, Vol. 28, Section 2201 ....3

UNITED STATES CODE, Vol. 42, Section 1983 ....3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO. 73-835

MARK WHITE, JR.

Secretary of State of Texas

Petitioner

VS.

MARILYN WHATLEY AND CAROL GERBER ET AL,

Respondents

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DAVID R. RICHARDS

600 West 7th Street

Austin, Texas 78701

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinions of the District Court and of the Circuit

Court of Appeals of the Fifth Circuit are reproduced in

the appendix.

dbteemrnane ; —

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition.

QUESTIONS PRESENTED

1- Must a_ state statute, which admittedly

segregates and burdens the right to vote of one class of

citizens, i.e. students, be supported by a compelling

state interest in order to satisfy Constitutional re-

quirements?

2- May a state Constitutionally impose as a con-

dition of voting, a residency test that requires the in-

dividual to avow an intent to remain permanently or in-

definitely as a resident of the political subdivision?

STATUTE INVOLVED

Article 5.08(k) of the Texas Election Code provides:

“(k) The residence of a student in a school,

college, or university shall be construed to be

where his home was before he became such student

unless he has become a bona fide resident of the

place where he is living while attending school or of

some other place. A student shall not be considered

to have acquired a residence at the place where he

lives while attending school unless he intends to

remain there and to make that place his home in-

definitely after he ceases to be a student.”

STATEMENT OF THE CASE

Declaratory Judgment was granted by the District

Court invalidating a portion of the Texas Election Code

which provided in part:

“A student shall not be considered to have ac-

quired a residence at the place where he lives while

attending school unless he intends to remain there

and make that place his home indefinitely after he

ceases to be a student.’’ Article 5.08(k) Texas

Election Code.

The cause of action was alleged to arise under the

Fourteenth and Twenty-sixth Amendments of the Con-

stitution of the United States and 42 USC Section 1983

and 28 USC Section 1343. Plaintiffs did not seek in-

junctive relief, asking only for declaratory judgment

under 28 USC § 2201.

The Defendant tax assessor of Denton County,

relying “only upon the provisions of Article 5.08(k) of

the Texas Election Code” instructed all deputy

registrars-to “refuse registration to any student who

indicates an uncertainty about whether he intends to

remain in Denton County after graduation.”

(Responses to Interrogatories, J.A. 21). In keeping

with this “uniform policy’’, the Plaintiff-Green was

denied voter registration in Denton County (id. at 21-

3).

Green at the time he sought to register was a student

at North Texas State University in Denton, lived in

Denton in an off-campus apartment and was employed

part-time in Denton. (J.A. 47-51) Green testified that

he considered himself to be a resident of Denton,

because “‘everything that I am associated with that I

care about is in Denton” and that he did not consider

himself to be a resident of Dallas where his parents

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lived. (J.A. 42) Nevertheless, as found by the trial

court, Green was denied the right to register as a voter

“solely because (he) was unable to affirm an intent to

reside in Denton County indefinitely after he ceases to

be a student.”

One of the Defendants was Bob Bullock, then

Secretary of State of Texas and the State’s chief

election officer. As found by the circuit court, Bullock

testified ‘‘unequivocally that Article 5.08(k) created a

‘special classification’ that served no purpose other

than to discourage students from voting.’’ (Pet. for

Cert. 10a)

ARGUMENT

The reasons asserted for granting this writ are

notable primarily for their insubstantiality.

The first basis is an asserted conflict between two

United States District Courts as to the con-

stitutionality of Article 5.08(k). If such a conflict does

exist, it will presumably be resolved in the United

States Court of Appeals for the Fifth Circuit without

the necessity of imposing upon this Court’s juris-

diction. There is no suggestcd conflict among the

courts of appeals.

The second ground is an evidentiary complaint con-

cerning the testimony of one of the original Defendants

in this proceeding, former Secretary of State Bob

Bullock. The bulk of the testimony was admitted with-

out objection, and was clearly probative on the

questions at hand. In any event, we do not perceive

how this complaint falls within the reach of Rule 19.

The third ground speaks with no greater force. The

5

overwhelming weight of authority supports the

reasoning of the Courts below. Wilkins v. Bentley, 189

N.W. 2d 423 (Sup. Ct. Mich., 1971); Jolicouer v.

Mihally, 488 P. 2d 1 (Sup. Ct. Calif., 1971); Worden v.

Mercer County Board of Elections, 61 N.J. 325, 294

A.2d 233 (Sup. Ct. N.J., 1972); Ramey v. Rockefeller,

348 F. Supp. 780 (E.D., N.Y., 1972); Newburger uv.

Peterson, 344 F.Supp. 559 (D. N.H., 1972); Anderson

v. Brown, 332 F. Supp. 1195 (S.D. Ohio, 1971); Bright

v. Baesler, 336 F. Supp. 527 (E.D. Ky., 1971); Johnson

v. Darrell, 337 F. Supp. 138 (S.D. Ind., 1971); Kennedy

v. Meskill (unreported) (D. Conn., 1971, Civ. No.

14,548); Phillips v. Beng (unreported) (E.D. IIl., 1972,

Civ. No. 71-234-D).

Assuredly under this Court’s analysis in Dunn v.

Blumstein, 405 U.S. 330 (1972), this statutory restric-

tion on voting residency must serve some compelling

State interest. No testimony was offered by the State

to justify the burden that the statute admittedly places

upon potential student voters. The “‘purity of the ballot

box”’ argument, which is now made by the State will

not survive analysis. For only students are treated as

presumptive non-residents by the statute. They are not

asked whether they intend to remain indefinitely within

the community, rather they are asked to project beyond

graduation and avow an intent to remain indefinitely

after the conclusion of their schooling. Such a re-

quirement cannot be related to prevention of fraudulent

voting, as opined by the Defendant Bullock, it was

designed to discourage students from voting.

One of the problems with the State’s argument is

demonstrated by the plight of Randolph Grayson, one

of the Plaintiffs in Wilson v. Symm, which the State

has chosen to print as part of the supplemental

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appendix. Grayson was 29 years old and born in Gulf-

port, Mississippi. Upon discharge from the Army he

came directly to Waller County, Texas where he had

lived for four years while attending Prairie View

College. Under the authority of the Texas statute, he

was denied voter registration in Waller County (Supp.

App. 25-26) on the ground that he was not a resident.

Texas would apparently say to Mr. Grayson “‘he does

not lose his vote but must vote in his county of his

domicile where his parents live”’ (Pet. for Writ of Cert.,

p. 8)..Under the State’s analysis of its statute,

Grayson, who had not lived in Gulfport, Mississippi

since he entered the Army, remains a voting resident of

Mississippi and his four years residence in Texas does

not entitle him to vote in this State. A statute that

works sucb an improbable result cannot be justified on

some arcane notions of purity of the ballot box.

The vice of the Texas statute may lie in its attempt

to employ traditional concepts of domicile as a test of

voting residency. The Court below did not reach this

question (see fn. 4), however this analysis provides an

alternative justification for the Court’s holding. For the

“indefinite intention’’ test of domicile simply asks too

much of the potential voter. As Circuit Judge Friendly

speaking for the three-judge court in Ramey uv.

Rockefeller, 348 F. Supp. 780, 788 (E.D. New York,

1972) viewed it:

“Against this it is contended that, in these

days of an increasingly mobile society, it

would be the rare citizen who could swear

honestly that he intended to reside at his

present address permanently; even if the test

of indefinite intention is different, there would

undoubtedly be many citizens with ‘definite’

hopes of moving to better job opportunities,

more pleasant climates, and the like. If such a

9

test were in fact imposed on all citizens, it

would go too far in restricting the vote to the

more immobile elements of the populace; it

would penalize, perhaps irrationally, those

who make definite plans, while allowing the

drifters who have uncertain plans to vote. And

if the test were in fact only applied to students,

then it would be an impermissible dis-

crimination against them.

Thus, we think that the only con-

stitutionally permissible test is one which

focuses on the individual’s present intention

and does not require him to pledge allegiance

for an indefinite future. The objective is to

determine the place which is the center of the

individual’s life now, the locus of his primary

concern.”’ See also Newburger v. Peterson, 344

F. Supp. 559 (D. N.H., 1972).

Conclusion

For the foregoing reasons it is respectively submitted

that this Petition for a Writ of Certiorari should be

denied.

Respectfully submitted,

. tn -Q.S.

David R. Richards

CLINTON AND RICHARDS

600 West 7th Street

Austin, Texas 78701

COUNSEL FOR RESPONDENT