Plaintiffs Brief — Oregon v. Mitchell

STATE OF OREGON,

v.

JOHN N. MITCHELL, Attorney General of the United

States,

Defendant.

BRIEF OF THE PLAINTIFF

LEE JOHNSON

Attorney

INDEX

Question iceemtnt sae his i id

Constitutional and Statutory Provisions Involved

Statement ........-.--------------ee-eeceeeeeneeesnecneeeeneeneseeesenceenees

Tg. | REARS Meare tentang toame ren oa

Argument:

I. The federal relationsh'p requires continued

recognition of the competency of each State

to establish proper minimum voter qualifi-

a a aa tne Riad heen ow fin ns ro EDL

II. To supersede a State-established voter

qualification, Congress must find that the

qualification has been used by the State as

a device to deny equal protection of the

ee Se ene SeAE aT SVN ’

A. Katzenbach v. Morgan does not elimi-

nate the necessity of a finding by Con-

gress that an otherwise reasonable

classification will operate as an invid-

ious discrimination ............. :

B. Minimum voting age cannot be an in-

vidious discrimination that is prohibited

by Section 1 of the Fourteenth Amend-

NE 5a ipnisea -sesncchpucenoeieeenenetninneemeltnencpeiiibene:

C. That classification by age is not a denial

of equal protection is clearly manifested

by its extensive use in state and federal

EE SE TS LO

ae ee ee

Appendix: Voting Rights Act Amendments of

SES © WO PII 0 -ncsenentsenaianinnneiennsaleitinaacbihe

> bush he

10

10

14

20

21

22

—

CITATIONS

CASES

Page

Carrington v. Rash, 380 U.S. 89 (1965) 9

Cipriano v. City of Houma, 395 U.S. 701 (1969)...

City of Phoenix v. Kolodziejski, 399 U.S. 204

I > ecidiercthesenceercenticicionnendauneiseeeggeetaiiiepeaie ann 9

Harper v. Virginia State Bd. of Elections, 383 U.S.

ft eee . 15,16

Hayes v. Missouri, 120 U.S. 68 (1887) -..... 17

Katzenbach v. Morgan, 384 U.S. 641 (1966) ...... 4, 11,13

| 14, 15, 16

Kramer v. Union Free School Dist., 395 U.S. 621

CURIE desnciniiiaetiincemtionisiiienianyiitinpeibaseiisiscaigialaal 9

Lassiter v. Northampton County Bd. of Elections,

BOO Aida SN GHEE D, oxicnrseenernersrevcvorsntnabetecuiiaid. 8, 19

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316

CIERE) -t6~<toliedona—lanseinsad..tinaniioka 5

McPherson v. Blacker, 146 U.S. 1 (1892)... 19

Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) 7

National Life Ins. Co. v. United States, 277 U‘S.

CERT AON COLE SY HF 14

Pope v. Williams, 193 U.S. 621 (1907) ...........0........ 7,8

Reynolds v. Sims, 377 U.S. 533 (1964) -......0.00..... 19

Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4

(1942)

Vcore ceca lates NB BO 14

United States v. Classic, 313 U.S. 299 (1940) ........ ;

CONSTITUTIONAL AND STATUTORY PROVISIONS

OS ea se eee 1,2

ee eh on 8 84 1,2

U. S. Gamat: arto BEL, § 2 ois... nsticini inti cnih 1

U.S. Const. amend. X

CITATIONS—Continued

US. Const. amend. XIV

US. Const. amend. XV

U.S. Const. amend. XVII

U.S. Const. amend. XIX

U.S. Const. amend. XXIII

U.S. Const. amend. XXIV

Oregon Const. art. IT, § 2(1)

Oregon Const. art. IV, § 1

28 U.S.C. § 1251(b) (3)

Voting Rights Act Amendments of 1970, tit. III,

Pub. L. No. 91-285, 84 Stat. 314 1, 3, 4, 5, 10, 16

ORS ch. 109

ORS 109.510

ORS 109.520

ORS ch. 112

ORS ch. 126

ORS ch. 167

ORS 167.235

ORS 167.250

ORS 167.295

ORS 462.190

ORS 482.110

ORS 497.010

ORS ch. 656

ORS 726.270(2)

OTHER AUTHORITIES

Cong. Globe, 39th Cong., Ist Sess. 2542 (1866)

116 Cong. Rec. 3474-3517 (daily ed. March 11,

1970) 10, 11, 12, 13

The Federalist No. 59, at 404-405 (Bourne ed.

1901) (Hamilton) a

EE —

In the Supreme Court

of the United States

OCTOBER TERM, 1970

No. 43, Original

STATE OF OREGON,

Plaintiff,

v.

JOHN N. MITCHELL, Attorney General of the United

States,

Defendant.

BRIEF OF THE PLAINTIFF

JURISDICTION

The Plaintiff is a State of the United States. The

Defendant is a resident of a State other than the Plaintiff

and is currently serving as the Attorney General of the

United States. The original jurisdiction of the Court is

invoked by authority of Article III, Section 2, of the

Constitution of the United States and 28 U.S.C. § 1251

(b)(3).

QUESTION PRESENTED

Whether Title III of the Voting Rights Act Amend-

ments of 1970, Pub. L. No. 91-285, 84 Stat. 314, violates

the constitutional rights of the Plaintiff and its citizens

under Article I, Sections 2 and 4, of the Constitution of

the United States, in reducing to 18 the minimum age

for voting in all elections.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Const. art. I, § 2:

“The House of Representatives shall be composed of

Members chosen every second Year by the People of

the several States, and the Electors in each

shall have the Qualifications requisite for

of the most numerous Branch of the State Legis.

lature. * * *”

U.S. Const. art. I, § 4:

“The Times, Places and Manner of holding Elections

for Senators and Representatives, shall be prescribed

in each State by the Legislature thereof: but the Con-

gress may at any time by Law make or alter such

Regulations, except as to the Places of chusing Sen.

ators. * *

U. S. Const. amend. X:

“The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States,

are Eogryes to the States respectively, or to the

people.”

U.S. Const. amend. XIV:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

“Section 2. Representatives shall be apportioned

among the several States according to their respec-

tive numbers, counting the whole number of persons

a

in each State, excluding Indians not taxed. But when

the right to vote _at, any election for the choice of

electors for President and Vice President of the

United States, Representatives in Congress, the Exec-

dicial officers of a State, or the members

of the Legislature thereof, is denied to any of the

male inhabitants of such State, twenty-one

years of age, and citizens of the United States, or in

any way abridged, except for participation in re-

bellion, or other crime, the basis of representation

therein shall be reduced in the proportion which the

number of such male citizens shall bear to the whole

number of male citizens twenty-one years of age in

such State.

* * * ,

“Section 5. The Congress shall have power to en-

force, by appropriate legislation, the provisions of

this article.”

U.S. Const. amend. XV:

“Section 1. The right of citizens of the United

States to vote shall not be denied or abridged by the

United States or by any State on account of race,

color, or previous condition of servitude.

“Section 2. The Congress shall have power to en-

force this article by appropriate legislation.”

Oregon Const. art. IT, § 2(1): ; .

“Every citizen of the United States is entitled to

vote in all elections not otherwise provided for by

this Constitution if such citizen:

(a) Is 21 years of age or older 2. oe

Voting Rights Act Amendments of 1970, tit. III, Pub.

L. No. 91-285, 84 Stat. 314, is set forth in Appendix A.

4

STATEMENT ,

On June 22, 1970, the Congress passed, and the

President of the United States approved the “Y,

Rights Act Amendments of 1970,” Pub. L. No. 91-285,

84 Stat. 314 (hereinafter referred to as the “Act”), Title

III of the Act reduces to 18 the minimum age for voting

in all elections. |

The Act specifically authorizes and directs the At.

torney General to enforce its provisions. The defendant

wrote to the Governor of each State seeking an affirm.

ative assurance that the State would comply with the

Act, indicating that he intended to take action to enforce

it if the States did not conform.

The plaintiff commenced this action in original juris.

diction requesting a declaration that Title III of the Act

is unconstitutional and that the defendant be perma-

nently enjoined from enforcing the Act.

SUMMARY OF ARGUMENT

The State-federal relationship established by Article

I, Section 2, of the United States Constitution places the

function of determining reasonable voter qualifications

on the individual States. The Constitution and its

Amendments allow federal intervention when a State-

established qualification operates as a device to deny

the citizens of a State their constitutional guarantees.

Title III of the Voting Rights Act Amendments of 1970

extends beyond the limitations of permissible congres-

sional intervention and is based upon an unwarranted

extension of this Court’s holding in Katzenbach v. Mor-

5

384 U.S. 641 (1966). Classification by age is not and

cannot be a denial of equal protection of the laws.

ARGUMENT

I.

THE FEDERAL RELATIONSHIP REQUIRES CON-

TINUED RECOGNITION OF THE COMPETENCY

OF EACH STATE TO ESTABLISH PROPER MIN-

IMUM VOTER QUALIFICATIONS.

In reducing the minimum age for voting in all elec-

tions to 18, Title III of the Act conflicts with the Con-

stitution of the plaintiff State and with Article I, Section

2 of the United States Constitution.

The Constitutional Convention of 1787 debated the

question of how voter qualifications should be de-

termined. It was decided then that this was within the

competency of the individual states.

The considerations of the framers have been set out

in The Federalist, the work which is “justly supposed

to be entitled to great respect in expounding the con-

stitution.”©

“Tt will not be alleged, that an election law could

have been framed and inserted in the Constitution,

which would have been always applicable to every

probable change in the situation of the country; and

it will therefore not be denied, that a discretionary

will, I presume, be as readily conceded, that there

were only three ways in which this power could have

been reasonably modified and disposed: that it must

either have been lodged wholly in the national legis-

lature, or wholly in the State legislatures, or pri-

@M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 433 (1819).

marily in the latter and ultimately in the former, The

last mode has, with reason, been preferred. - the

convention. They have submitted the regulation of

elections for the federal government, in the first in.

stance, to the local administrations;. which, in ordi.

nary cases, and when no improper views prevail, may

be both more convenient and more sati tory; but

they have reserved to the national authority a right

to interpose, whenever extraordinary circumstances

might render that interposition necessary to its

safety.

* * &

“Suppose an article had been introduced into the

Constitution, empowering the United States to regu-

late the elections for the particular States, would any

man have hesitated to condemn it, both as an un-

warrantable transposition of power, and as a

meditated engine for the destruction of the State

governments? The violation of principle, in this Case,

would have required no comment; and, to an unbiased

observer, it will not be less apparent in the project

of subjecting the existence of the national

ment, in a similar respect, to the pleasure of the State

governments. An impartial view of the matter can.

not fail to result in a conviction, that each, as far as

possible, ought to depend on itself for its own preser-

vation.” The Federalist No. 59, at 404-405 (Bourne

ed. 1901) (Hamilton). ;

Variety is the vital heart of federalism; homogeneity

deadens it. Federalism rests upon diversity as an essen-

tial quality within constitutional guarantees. The various

social experiments available are evidenced by the lower-

ing of the voting age from the historical and traditional

21 by the States of Georgia, Hawaii, Alaska and Ken-

tucky. The value of so doing is yet to be assessed. Other

7

States may follow, the Constitution may be amended, or

the experiment may fail. Had Congress earlier interfered

to homogenize the electoral process it could well have

smothered Oregon’s innovation in popular democracy,

the initiative and referendum procedures,® as well as sub-

sequent social experiments by other States.

“The essential quality of the federal system has con-

sistently been left undisturbed by this Court. In the case

challenging exclusion of women from voting, Minor v.

Happersett, 88 U.S. (21 Wall.) 162 (1875), in which it

was urged that the exclusion was a violation of equal

protection of the laws guaranteed by the Fourteenth

Amendment, the Court stated:

«* * * Tf the law is wrong, it ought to be

changed; but the power for that is not with us. The

arguments addressed to us bearing upon such a view

of the subject may perhaps be sufficient to induce

those having the power to make the alteration, but

they ought not to be permitted to influence our judg-

ment in determining the present rights of the parties

now litigating before us. No argument as to woman’s

need of suffrage can be considered. We can only act

upon her rights as they exist. It is not for us to look

at the hardship of withholding. Our duty is at an end

if we can find it is within the power of a State to

withhold.” 88 U.S. (21 Wall.) at 178.

In upholding residency requirements for voting in

State elections in Pope v. Williams, 193 U.S. 621 (1907),

the Court stated:

“* * * In other words, the privilege to vote in a

state is within the jurisdiction of the state itself, to

be exercised as the state may direct, and upon such

®See Oregon Const. art. IV, § 1.

terms as to it may seem proper, provided, Of course,

no discrimination is made between individ

violation of the Federal Constitution.” 193 us .

632.

The function of the States in determining voter quali.

fication was affirmed when the right to vote in a primary

election was held to be guaranteed by the Constitution,

“Pursuant to the authority given by § 2 of Article

1 of the Constitution, and subject to the legislative

power of Congress under § 4 of Article 1, and other

pertinent provisions of the Constitution, the states

are given, and in fact exercise a wide discretion in

the formulation of a system for the choice by the

people of representatives in Congress.” United States

v. Classic, 313 U.S. 299, 311 (1940).

In upholding literacy tests, per se, a unanimous Court,

speaking through Mr. Justice Douglas, has stated:

“We do not suggest that any standards which a

State desires to adopt may be required of voters. But

there is wide scope for exercise of its jurisdiction.

Residence requirements, age, previous criminal

record * * * are obvious examples indicating fac-

tors which a State may take into consideration in

determining the qualifications of voters.” Lassiter ».

Northampton County Bd. of Elections, 360 US. 45,

51 (1959) [emphasis added].

The right of the States to set qualifications for the

exercise of the franchise on a non-discriminatory basis

has continued to be emphasized by the Court in recent

decisions.

“* * * There can be no doubt either of the his-

toric function of the States to establish, on a non-

discriminatory basis, and in accordance with the

Constitution, other qualifications for the exercise of

the franchise: Indeed, ‘It]he States have long been

held to have broad powers to determine the con-

ditions under which the right of suffrage may be

exercised.’ Lassiter v. Northampton Election Bd.,

U.S. 45, 50. Compare United States v. Classic,

U.S. 299; Ex parte Yarbrough, 119 U.S. 651.

other words, the privilege to vote in a State is within

the jurisdiction of the State itself, to be exercised as

the State may direct, and upon such terms as to it

may seem proper, provided, of course, no discrimina-

tion is made between individuals in violation of the

Federal Constitution.” Pope v. Williams supra, at

632.” Carrington v. Rash, 380 U.S. 89, 91 (1965).

The Court has consistently refrained from interfering

with each State’s proper exercise of its responsibility to

determine the requisite qualifications for voters “within

its jurisdiction.”

In eliminating invidious State restrictions, the Court

has recently recognized the basic franchise elements that

are within the competency of the States.

“* * * Appellant agrees that the States have the

power to impose reasonable citizenship, age, and resi-

dency requirements on the availability of the ballot.”

Kramer v. Union Free School Dist., 395 U.S. 621,

625 (1969) [emphasis added].

In cases related to Kramer, the Court speaks repeat-

edly of “qualified voters” and “otherwise qualified

voters.” See Cipriano v. City of Houma, 395 US. 701,

704n.4 (1969); City of Phoenix v. Kolodziejski, 399 U.S.

204 (1970).

Previous expansions of suffrage have consistently

been accomplished by Constitutional amendments. See,

—

10

e.g., Amendment XV (nace); Amendment XVII (direct

Senatorial election); Amendment XIX» (women’s suf.

frage); Amendment XXIII. (limited District of Colum.

bia. voting) ; Amendment XXIV (elimination of poll tax).

i.

_ TO SUPERSEDE A STATE-ESTABLISHED VOTER

QUALIFICATION, CONGRESS MUST FIND THAT

THE QUALIFICATION HAS BEEN USED BY THE

STATE AS A DEVICE TO DENY EQUAL PROTEC.

_ TION OF THE LAWS. 2 a

Each State has the right to establish non-discrimina.

tory voter qualifications pursuant to the United States

Constitution. Title III of the Act raises the question

whether Congress can enact legislation which supersedes

the qualifications established by the particular States in

the absence of any finding that the qualification has been

used by the State asa device to deny voters equal pro-

tection of the laws. |

A. Katzenbach v..Morgan does not eliminate the

necessity of a finding by Congress that an otherwise

_ reasonable classification will operate as an invidious

discrimination.

The power of Congress to. enact Title III of the Act

was discussed at great length before the Subcommittee

on Constitutional Rights of the Committee on the Ju-

diciary, United States Senate. There was further dis-

cussion before the Judiciary Subcommittee on Constitu-

tional Amendments on March 10, 1970, 116 Cong. Ree.

3511 (daily ed. March 11, 1970), and extensive debate on

11

the floor of the United States Senate on March 11, 1970.

Id. at 3474-3517.

Throughout these hearings, and in the argument on

the floor of the Senate, the question of the power of

Congress to enact legislation lowering the minimum vot-

ing age in all State and federal elections was debated.

Those endorsing the power relied upon the Court's opin-

ion in Katzenbach v. Morgan, 384,U.S. 641 (1966).

- ‘That opinion was predicated upon the fact that Con-

gress determined on the evidence that violations of equal

protection existed and formulated a solution to those

problems. Thus, the Court exercised appropriate re-

straint:

“* * * Jt is not for us to review the congressional

resolution of these factors. It is enough that we be

able to perceive a basis upon which the Congress

might resolve the conflict as it did.” 384 U.S. at 653.

No such violations of equal protection appear in this

legislative record, as indeed they cannot.

Katzenbach v. Morgan arose out of a New York liter-

acy qualification statute which had the effect of denying

equal protection of the laws to many of New York’s

Puerto Rican citizens. Katzenbach v. Morgan applies to

legislation founded upon denial of equal protection. The

attempt to use it to support legislation absent a showing

of denial of equal protection is an unwarranted extension

of the Court’s holding.

Much to the consternation of the proponents, the

thrust of Katzenbach v. Morgan was ably explained be-

fore the Senate Judiciary Subcommittee on Constitu-

12

tional Amendments by William H. Rehnquist, Assistant

Attorney General, Office of Legal Counsel. Mr. Rehn.

quist made graphically clear the impossibility of finding

a denial of equal protection in the equal application ‘of

minimum voting age requirements: aD

“* *-* [Not only is the voting age requirement

of 21 not discriminatory against any defined class by

its terms, but it is not discriminatory in result, at all.

We do not here have a situation where the test, th

fair on its face, discriminates in result between Classes

which may not be discriminated between in terms

under the Fourteenth Amendment. There is not the

slightest indication that the 18- to 21-year-old v

group in any particuiar state or in the United States

as a whole, is composed of markedly larger numbers

of Negroes, women, Spanish-Americans, or any other

group which has been the subject of overt discrimina-

tion. This, in my opinion, is the principal and very

significant factual difference between the 18-year-old

vote law and section 4(e) of the Voting Rights Act.

“When we deal with 18-year-old voting, we reach

no secondary result by applying the statutory voting

age requirements—the only identifiable class affected

is that set forth in the state voting law in so many

words—the class of potential voters between the age

of 18 and 21. In contrast, the New York literacy test,

although by its terms barring only illiterates, had the

result of discriminating against, if not barring, a

secondary identifiable class against whom discrimina-

tion was prohibited under the Fourteenth Amend-

ment.

“Finally, one may ask, what is the ‘discrimination’

which Congress would here seek to eliminate? Unless

voting is to be done from the cribs the minimum age

line must be drawn somewhere; can it really be said

that to deny 20, 19, and 18-year-olds the vote is ‘dis-

13

crimination’, while to deny the vote to 17-year-olds is

sound legislative judgment?

“Tt is pointless to further elaborate the matter. The

Committee and the Congress is faced with one Su-

preme Court decision on the entire subject, and the

reasoning of that decision is not one that he who runs

may read. There are striking factual differences be-

year-old voting requirement; the fact that 21 was the

voing age requirement unanimously enforced by the

states which adopted the Constitution; and the fact

that a voting age law is one which applies to all

strong support for the validity of such a statute.” 116

Cong. Rec. 3513 (daily ed. March 11, 1970).

In Katzenbach v. Morgan, the Court stated:

“* * * Here again, it is enough that we perceive

a basis upon which Congress might predicate a judg-

ment that the application of New York’s lish liter-

acy requirement to deny the right to vote to a person

with a sixth grade education in Puerto Rican schools

in which the language of instruction was other than

English constituted an indivious discrimination in

violation of the Equal Protection Clause.” 384 U.S. at

656.

At no place in the legislative history of Title III of

the Act is there any showing that the requirement of a

minimum voting age of 21 by those States having such a

requirement operates as a discrimination on the basis of

race, national origin, creed, or sex.

14

B. Minimum voting age cannot be an invidious dis

crimination that is prohibited by Section 1 of

Fourteenth Amendment. tt

Congress was unable to find that denial of vote t

persons under 21 constitutes discrimination. Classifica.

tion by age cannot operate as a discrimination, for the

clear reason that the passage of time, the sole criterion

upon which the classification is based, is completely im.

partial—and is applicable equally to all persons.

Mr. Justice Brandeis in the dissent in National Life

Ins. Co. v. United States, 277 U.S. 508 (1928), de.

fined discrimination as “the act of treating differently

two persons or things, under like circumstances.” 277

U.S. at 530. The difference between an eighteen year old

and a twenty-one year old is three birthdays, nothing

more and nothing less. Measured by the criterion estab-

lished, the passage of time, no discrimination can ever

be found between the two as they can never, by the cri-

terion, be in like circumstances. They are nory in

different circumstances as to age.

It is impossible to find discrimination in a classifica-

tion by age. Mr. Justice Frankfurter has told us “No court

can make time stand still,” Scripps-Howard Radio, Inc.

v. FCC, 316 U.S. 4, 9 (1942), and neither can any sheriff,

election board, State officer or legislature vary time's

application to one citizen as distinguished from another.

The distinction between the legislation that is the

subject of this action and that which was interpreted in

Katzenbach v. Morgan is pointed out in the dissent of

15

Mr. Justice Black in Harper v. Virginia State Bd. of

Elections, 383 U.S. 663 (1966), decided the same term as

h v. Morgan.

«e * * The mere fact that a law results in treat-

ing some groups differently from others does not, of

course, automatically violation of the

tion Clause. T

by the invention and

ula’. Kotch v. River Port

of age; ot

felons or

hold or other property

«¢ * * The equal protection cases carefully an-

alyzed boil down to the principle that distinctions

drawn and even discriminations imposed by state

laws do not violate the Equal Protection Clause so

long as these distinctions and discriminations are not

“rrational,’ ‘irrelevant,’ ‘ynreasonable,’ ‘arbitrary,’ or

Snvidious.’ These vaguc and indefinite terms do not,

of course, provide a precise formula or an automatic

mechanism for deciding cases arising under the Equal

Protection Clause. The restrictive connotations of

these terms, however * * * are a plain recognition

of the fact that under a proper interpretation of the

Equal Protection Clause States are to have the broad-

est kind of leeway in areas where they have a general

constitutional competence to act.” 383 U.S. at 672-

674 [emphasis added].

Mr. Justice Black, who joined in the majority in

—EEEEEE

a cme

16

Katzenbach v. Morgan, explained the reach of that de

cision in his dissent in Harper, supra, when he continusd:

“IT have no doubt at all that Congress has

power under § 5 [of the 14th Amendment] to co

isiioe te abolich the coll tok ie Ge

sec ir sun ites a

tax is being used as a device to deny voters

protection of the laws.” Id. at 679.

Under Katzenbach v. Morgan, to intrude Rho

States’ prerogative, Congress must first find upon some

evidence that a minimum voting age of 21 is being used

as a device to deny voters equal protection of the laws,

Title IIT of the Act states that the minimum voting age

requirement is a “* * * particularly unfair treatment

* * * in view of national defense responsibilities”, al.

though it is no more unfair than requiring children to

attend schools regulated by school boards they did not

elect.

Title III further states that a minimum voting age

of 21

“* * * has the effect of denying to citizens eighteen

years of age but not yet twenty-one years of age the

due process and equal protection of the laws that are

guaranteed to them under the fourteenth amendment

of the Constitution”,

although Title III itself denies the same guarantees to

those 17 or less. Neither Title III nor its history dis-

closes any more substantial finding of constitutional

justification than these bare recitals.

The Constitution reposes in the States the general

competence to act in setting the minimum voting age of

their electorates. The bare recitals of the Act that equal

17

seotection of the laws is denied does not and cannot coh

stitute a finding that the classification is “irrational,”

“iprelevant,” “unreasonable,” “arbitrary,” or “invidious.”

The mere subjective conclusion that denying the vote to

eighteen to twenty-one year olds is “unfair” is not a

substitute for the more objective standard that the classi-

fication must be invidious, irrational, or arbitrary. Any

classification may seem unfair to those who are benefited

less thereby, but this does not mean that the classifica-

tion is wholly irrational. The testimony and debates on

Title III fail to support such a finding.

Classification by age is rational, as evidenced by its

continued use in legislative enactments. It is relevant to

the determination of the qualifications of a responsible

elector. It is eminently reasonable, as is shown by its con-

tinued use by 46 States and by the framers of the Four-

teenth Amendment itself. It is no more arbitrary than

any other classification and cannot operate invidiously as

it is no respecter of persons.

«* * * The 14th Amendment to the Constitution

of the United States does not prohibit legislation

which is limited either in the objects to which it is

directed, or by,the territory within which it is to op-

erate. It merely requires that all persons subjected to

such legislation shall be treated alike, under like cir-

cumstances and conditions, both in the privileges

conferred and the liabilities imposed.” Hayes v. Mis-

souri, 120 U.S. 68, 71 (1887)

Federal power to lower the minimum voting age is

grounded by its proponents on ihe power given Congress

under Section 5 of the Fourteeath Amendment to legis-

18

late against denial by States of “equal protection ofthe

laws.” It is urged that classification by age is such

denial of equal protection. Yet, the framers of the Four.

teenth Amendment itself established that classification

at age 21. 3

ni =? But when the right to vote at any ele:

tion for * * * the Executive and Judicial officers

of a State or the members of the Legislature thereof,

is denied to any of the male inhabitants of such Sta

; twenty-one years of age, and citizens of the

United States, or in any way abridged, except for

participation in rebellion, or other crime, the basis of

representation therein shall be reduced in the ‘pro.

portion which the number of such male citizens shal]

bear to the whole number of male citizens twenty-one

years of age in such State.” U.S. Const. amend. XIV,

§ 2 [emphasis added].

Within the very context of the amendment restricting

the States from denying the equal protection of the laws

to their citizens we therefore find classification as to age

being used as a standard to accomplish its ends.

The Amendment recognizes the power of the States to

set voter qualifications and acknowledges that a denial of

the franchise to individuals under 21 does not contra-

vene the grand generalities of Section 1. It is evi-

dent that the framers of the Fourteenth Amend-

ment did not forbid the States from denying or abridging

the right to vote, but instead provided a remedy which

is strictly correlated to the impact of the abridgment

upon the federal system. Thus, the Fourteenth Amend-

ment carefully describes the area of federal competence.

The clear import of the Amendment is that the sole area

19

of federal concern, and therefore federal power to act, on

questions of voter qualifications is with the federal rep-

resentative structure. Title III, to the contrary, reaches

the parameters of federal concern to elections of

entirely local interest.

Our construction of the Fourteenth Amendment is

not only by the clear language of the Amend-

ment itself, but by a contemporaneous interpretation by

its proponents, one of whom, Representative Bingham,

stated in debate in Congress:®

“To be sure we all agree, and the great body of the

people of this country agree, that the exercise of the

elective franchise though it be one of the privileges

of a citizen of the Republic, is exclusively under the

control of tive States.” Cong. Globe, 39th Cong., ist

Sess. 2542 (1866) [emphasis added }.

This Court has continued to refuse to allow Congress

to control the exercise of the elective franchise by the

simple invocation of the Fourteenth Amendment.

“* * * The right to vote intended to be protected

refers to the right to vote as established by the laws

and constitution of the State. There is no color for

the contention that under the amendments every male

inhabitant of the State being a citizen of the United

States has from the time of his majority a right to

vote for presidential electors.” McPherson v. Blacker,

146 U.S. 1, 39 (1892) [emphasis added].

See also Lassiter v. Northampton County Bd. of Elec-

tions, 360 U.S. 45, 51 (1969).

® As quoted by Mr. Justice Harlan in his dissent in Reynolds v. Sims,

377 U.S. 533, 599 (1964).

a SE

20

Cc. That classification by age is not a denial of equy

protection is clearly manifested by its extensive psp

in state and federal legislation.

The assertion that classification by age isa discriming.

tory denial of equal protection of the laws is

by the many areas of state and federal legislation utiliz.

ing the method. The plaintiff State, for example, uses

age for classification of such rights as the right to obtain

a motor vehicle operator’s license (Oregon Revised Stat-

utes [hereinafter cited as ORS] 482.110), to use tobaceo

in a public place (ORS 167.250), to play cards, billiards,

pool, bagatelle, or other games of chance (ORS 167.295),

to be employed in places of public amusement or enter-

tainment (ORS 167.235), to obtain hunting and fishing

licenses (ORS 497.010), to pledge articles to pawnbrokers

(ORS 726.270(2)), and to wager on races (ORS 462.190).

Classification by age permeates the entire body of

state legislation on such important matters as Workmen's

Compensation (ORS ch. 656), the age of consent and

sexual abuse (ORS ch. 167), testamentary disposition

and wills (ORS ch. 112), guardianships (ORS ch. 126),

adoption and parental support (ORS ch. 109) and the

determination of the age of majority.

“Except as provided in ORS 109.520, in this state

any person shall be deemed to have arrived at ma-

jority at the age of 21 years, and thereafter shall have

control of his own actions and business, have all the

rights and be subject to all the liabilities of a citizen

of full age.” ORS 109.510.

“Except as provided in ORS 653.105, all persons

shall be deemed to have arrived at the age of ma-

21

jority upon their being married according to law.”

ORS 109.520.

Classification by age equally pervades the constitu-

tions and statutes of the federal government and of the

other States of the United States. A practical legislative

tool with this historical and universal endorsement can-

not be condemned as an invidious discrimination denying

equal protection of the laws.

CONCLUSION

Title III of the Voting Rights Act Amendments of

1970, being contrary to Article I, Section 2, of the United

States Constitution and not authorized by Section 5 of

the Fourteenth Amendment to that Constitution, should

be declared unconstitutional and the defendant re-

strained from enforcing that portion of the Act.

Respectfully submitted,

LEE JOHNSON

Attorney General of Oregon

DIARMUID F. O’SCANNLAIN

Deputy Attorney General

JACOB B. TANZER

Solicitor General

AL J. LAUE

THOMAS H. DENNEY

Assistant Attorneys General

322 State Office Building

Salem, Oregon 97310

(503) 378-4402

September, 1970

22

“APPENDIX

VOTING RIGHTS ACT AMENDMENTS OF 1970

“TITLE III—REDUCING VOTING AGE TO

EIGHTEEN IN FEDERAL, STATE, AND

LOCAL ELECTIONS

DECLARATION AND FINDINGS

“Sec. 301. (a) The Congress finds and declares that

the imposition and application of the requirement that a

citizen be twenty-one years of age as a precondition to

voting in any primary or in any election—

“(1) denies and abridges the inherent constity.

tional rights of citizens eighteen years of age but not

yet twenty-one years of age to vote—a parti

unfair treatment of such citizens in view of the na-

tional defense responsibilities imposed upon such

citizens;

“(2) has the effect of denying to citizens eighteen

years of age but not yet twenty-one years of age the

due process and equal protection of the laws that are

guaranteed to them under the fourteenth amendment

of the Constitution; and

“(3) does not bear a reasonable relationship to

any compelling State interest.

“(b) In order to secure the constitutional rights set

forth in subsection (a), the Congress declares that it is

necessary to prohibit the denial of the right to vote to

citizens of the United States eighteen years of age or over.

“PROHIBITION

“Sec. 302. Except as-required by the Constitution, no

citizen of the United States who is otherwise qualified to

vote in any State or political subdivision in any primary

23

or in any election shall bé denied:the right to vote in any

such primary or election on account of age if such citizen

is eighteen years of age or older.

“ENFORCEMENT

“Sec, 303. (a) (1) In the exercise of the powers of

the Congress under the necessary and proper clause of

section 8, article I of the Constitution, and section 5 of

the fourteenth amendment of the Constitution, the At-

orney General is authorized and directed to institute in

the name of the United States such actions against States

or political subdivisions, including actions for injunctive

relief, as he may determine to be necessary to implement

the purposes of this title.

“(2) The district courts of the United States shall

have jurisdiction of proceedings instituted pursuant to

this title, which shall be heard and determined by a court

of three judges in accordance with the provisions of sec-

tion 2284 of title 28 of the United States Code, and any

appeal shall lie to the Supreme Court. It shall be the

duty of the judges designated to hear the case to assign

the case for hearing and determination thereof, and to

cause the case to be in every way expedited.

“(b) Whoever shall deny or attempt to deny any per-

son of any right secured by this title shall be fined not

more than $5,000 or imprisoned not more than five years,

or both.

“DEFINITION

“Sec, 304. As used in this title the term ‘State’ in-

cludes the District of Columbia.

24

“EFFECTIVE DATE se

“Sec. 305. The provisions of title III shall take ‘effect

with respect to any primary or election held on or after

January 1, 1971.”