# Reply Brief — Oregon v. Mitchell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0216%3A24 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1970 - **Citation:** 400 U.S. 801 ## Text IN THE Supreme Court of the Uni October Term, 1970 No. 46, Original UNITED STATES, Plaintiff, — y— STATE OF ARIZONA, Defendant. ANSWER and BRIEF FOR THE STATE OF ARIZONA GARY K. NELSON Attorney General of Arizona JOHN M. McGOWAN II Special Assistant Attorney General Attorneys for Defendant Room 159 State Capitol Building Phoenix, Arizona 85007 Phone: (602) 271-4266 a OTR mT Argument I CONGRESS’ AUTHORITY TO ENFORCE THE FOURTEENTH AND FIFTEENTH AMENDMENTS BY ENACTING LEGISLATION WHICH SUPER- SEDES STATE STATUTES, WHILE EXTENSIVE, CAN BE UPHELD ONLY WHERE CONGRESS POSSESSES A “SPECIAL LEGISLATIVE COM- PETENCE” NOT PRESENT IN THIS CASE NO DUTY IS IMPOSED ON ARIZONA TO REC- TIFY THE INEQUITIES RESULTING FROM PAST GOVERNMENTAL POLICIES OF OTHER GOVERNMENTS BY THE FACT THAT UNFAIR- LY TREATED MINORITY GROUP MEMBERS MAY HAVE MOVED HERE ... III THERE IS A PRESUMPTION OF CONSTITU- TIONAL VALIDITY WHICH APPLIES TO STATE STATUTES WHICH FAIRLY AND REASONABLY CLASSIFY CITIZENS. ARIZONA NEED SHOW NO“COMPELLING INTEREST” IV ARIZONA DOES HAVE A “COMPELLING IN- TEREST” IN MAINTAINING LITERACY AS A VOTING QUALIFICATION, ASSUMING AR. GUENDO THAT SUCH AN INTEREST MUST ER ERE aS THE REASONABLENESS AND NECESSITY OF LITERACY AS A VOTER QUALIFICATION Is FURTHER INDICATED BY THE USE OF THAT CLASSIFICATION FOR PURPOSES OF NATU- FRR IG A steciniicsiginnininicisialiignyeansnatnniens i = VI THE CONSTITUTION OF THE UNITED STATES DOES NOT CONFER UPON THE CONGRESS, EITHER EXPRESSLY OR BY ANY REASONABLE IMPLICATION, THE RIGHT TO SET THE NA- TIONWIDE MINIMUM VOTING AGE AT 18 YEARS, OR ANY AGE OTHER THAN THE 21 YEARS SPECIFICALLY REFERRED TO IN THE OE WEIS hahencenaiictnensnciasbcicnitonseniptniisbinnuiinnineiatiieiel 19 EEL ee Ce ee ET A 23 Baker v. Carr, 368 U.S. 196 (1962) Carrington v. Rash, 300 U.S. 89 (1965) Cipriano v. City of Houma, 395 U.S. 701( 1969) City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) 14, 19 Dennis v. United States, 171 F. 2d 986 (D.C. Fir. 1948) Dillon v. Gloss, 256 U.S. 368 (1921) Evans v. Cornmaz, 398 U.S. 419 (1970) Gaston County v. United States, 395 U.S. 285 (1969) Hall v. Beals, 292 F. Supp. 6 10 (1968) Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) Katzenbach v. Morgan, 384 U.S. 641( 1966) Kramer v. Union Free School District, 395 U.S. 621 (1969) 14, 19,21 Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1958) 13, 16, 18,21 Metropolitan Casualty Insurance Co. of New York v. Brownell, 294 U.S. 580 (1935) .. 16. Minor v. Happersett, 21 Wall. 162 (1874) 21 McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) teynolds v. Sims, 377 U.S. 533 (1964) Tignor v. Texas, 310 U.S. 141( 1940) Tillotson v. Frohmiller, 34 Ariz. 394 (1928) United States v. Raines, 362 U.S. 17 (1960) Authorities: Arizona Revised Statutes TITTLE scttaiattisennacedaesscdnrrocegneonncnsanersneesh tenabenbahinbustanhehiaall § 16-101.A.5 Arizona Constitution Art. 4, Pt. x § 3 Constitution of the United States Fourteenth Amendment, § 2 Eighteenth Amendment Nineteenth Amendment Catt and Schuler Women’s Suffrage and Politics (1926) Ida Husted Harper The History of Women’s Suffrage, Vol. V (1922) Voting Rights Act of 1965 1970 Voting Rights Act Amendments fir IN THE Supreme Court of the United States October Term, 1970 No. 46, Original UNITED STATES, Plaintiff, a STATE OF ARIZONA, Defendant. ANSWER The State of Arizona, defendant, for its answer to the complaint heretofore filed in the above captioned cause, admits, denies, and alleges as follows: As to the first cause of action alleged: I Admits all of the allegations contained in the first cause of action in plaintiff's complaint except that al- legation contained in paragraph VI thereof which al- leges that the continued enforcement of Sections 16- 101(A)(4) and (5) of the Arizona Revised Statutes in conflict with Section 201 of the Voting Rights Act of 1965, as amended, is violative of the Constitution of the United States, which allegation is specifically denied. As to the second cause of action alleged: bh Admits all of the allegations contained in the second cause of action in plaintiff's complaint except that allegation contained in paragraph XII of the complaint which alleges that the continued enforcement of the age requirement for registration and voting contained in the Constitution and Statutes of the State of Arizona in conflict with Section 302 of the Voting Rights Act of 1965, as amended, is violative of the Constitution of the United States, which allegation is specifically denied Defendant specifically alleges that the enforcement of Sections 201 and 302 of the Voting Rights Act of 1965, as amended, against defendant is prohibited by the Constitution of the United States. Defendant, having fully answered the complaint herein, prays this Court to enter a declaratory judgment that Sections 201 and 302 of the Voting Rights Act of 1965, as amended, are in violation of the Constitution of the United States and unenforceable against defendant and to render to defendant such other relief as it may be entitled to in the premises. GARY K. NELSON Attorney General of Arizona JOHN M. McGOWAN II Special Assistant Attorney General Attorneys for Defendant October, 1970 n' IN THE Supreme Court of the United States UNITED STATES, Plaintiff, Vv. STATE OF ARIZONA, Defendant. BRIEF FOR THE STATE OF ARIZONA CONSTITUTIONALAND_. STATUTORY PROVISIONS INVOLVED In addition to the provisions set forth in plaintiff's brief, the defendant deems the following constitutional and statutory provisions to be involved in this case: U.S. Const. art. I, § 2, in part: “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 State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. * * *” 3, U.S. Const. art. I, § 4, in part: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Cop. gress may at any time by Law make or alter such Regulations, except as to the Places of chusing Sena. tors. ee U.S. Const. amend. XIV, in part: “Section 2. * * * But when the right to vote at an election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the £&xecutive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such state, being 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 propor- tion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” U.S. Const. amend XVIII, in part: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifi- cations requisite for electors of the most numerous branch of the State legislatures.” SUMMARY OF ARGUMENT While Arizona does not question Congress’ authority to enact appropriate legislation to enforce the Four- teenth and Fifteenth Amendments, this authority can only be upheld when Congress possi'sses a “special leg- islative competence” which has not been shown in this case. South Carolina v. Katzenbach, 383 U.S. 301 and Katsenbach v. Morgan, 384 U.S. 641, carefully read, ex- press the Court’s conviction that Congress had ample factua! basis for its enactment of the Voting Rights Act of 1965 and that the statute was carefully tailored to remedy a particular constitutional ill. There is nothing before this Court which indicates that Congress has given the same attention and care to the 1970 Voting Rights Act Amendments. Nothing ad- vanced from the legislative history of the new Act shows that Congress had knowledge of situations pecu- liar to Arizona or any other state affected. For instance, there is no indication that Congress considered the al- most tota! lack of effective mass communication in northern Arizona where the vast Navajo Reservation is located. The United States places great reliance on Gaston County v. United States, 395 U.S. 285, in support of the proposition that if illiteracy is the result of racially disparate educational opportunities, then any literacy test operates unfairly. That reliance is entirely mis- placed. The Gaston opinion clearly states, “We have no occasion to decide whether the Act would permit rein- statement of a literacy test in the face of racially disparave educational or literacy achievemer‘s for which the government bore no responsibilities.” 395 U.S. at 293, a. 8. Arizona cannot be held responsible for racially disparate educational achievements caused by policies of other governments. There is ample indication that Congress, in deciding the wisdom of suspending all literacy tests, was led to a similar mistaken reliance on this overbroad reading of Gaston. This Court cannot, under these circumstances, “perceive a basis upon which Congress might predicate a judgment” that literacy as a voter qualification served no legitimate state interest. In considering the standard by which the statute ig t be measured, we reizind the Court that there is a pre- sumption of constitu.ional validity which applies t statutes which fairly and reasonably classify citizens ang therefore Arizona need show no “compelling” interest While in voting rights cases, a higher standard has apparently been inferred, it is to be noted that these cases involved classifications which had the potentia] of permanently disfranchising an identifiable minority. Unlike color or sex, illiteracy need not be a permanent condition. Nor can it be argued that Arizona is attempting to perpetuate illiteracy as a means of keeping any class from exercising the franchise. On the contrary, over 70 percent of the total state budget is spent on education at all levels. Home study courses, including televised teaching, are available and encouraged in order to com- bat illiteracy. Considering the negligible number of per- sons who took advantage of the opportunity to pro- visionally register under this Court’s order, disfranchise- ment of illiterates has apparently become a de minimus problem in Arizona. (Appendix). Assuming arguendo that such an interest must be shown, Arizona does have a “compelling state interest” in literacy as a voter qualification. In addition to Ari- zona’s interest in promoting the honest, responsible and intelligent use of the ballot to insure meaningful elec- tions, the direct government provisions of our State Constitution indicate that Arizona has an especially valid interest in literate voters. The Arizona Constitution pro- vides for initiative and referendum measures to be di- rectly voted on by the qualified state electors. The Arizona Supreme Court long ago said that the voters are thus exercising the legislative function. Tillotson Vv. -Frohmiller, 34 Ariz. 394, 271 P. 867. Since the voter is given substantial powers to legislate in Arizona, he must be especially responsible and well-read in order to make rational decisions. Holding Arizona voters to a minimal standard — literacy — is therefore an especially valid andcompelling state interest. A further indication of the reasonableness and neces- sity of literacy as a voter qualification is the use of that classification for purposes of naturalization. If literacy in English is nevessary to fully integrate foreign born persons into the American political community, it is not unreasonable to require the saime of United States natives. The Congress cannot, regardless of the circumstances of a given case, or the demonstrated desire or need for action by their constituents, pass a statute which alters the plain letter of the Constitution of the United States. The minimum age of 21 years for exercising the voting franchise is engrafted into the Constitution by Section 2 of the Fourteenth Amendment and the several states cannot be prohibited from setting and enforcing that standard by congressional legislation enacted under presumed authority of the Equal Protection Clause of the same Fourteenth Amendment. If a federal minimum age for voting is to be set at 18 years of age, or otherwise, it must be done through Constitutional Amendment as provided for in Article V of the United States Constitution. ARGUMENT I CONGRESS’ AUTHORITY TO ENFORCE THE FOURTEENTH AND FIFTEENTH AMEND- MENTS BY ENACTING LEGISLATION WHICH SUPERSEDES STATE STATUTES, WHILE EX- TENSIVE, CAN BE UPHELD ONLY WHERE CONGRESS POSSESSES A “SPECIAL LEGIS- LATIVE COMPETENCE” NOT PRESENT IN THIS CASE. Plaintiff relies principally on two opinions by this Court, South Carolina v. Katzenbach, 383 U.S. 301, ang Katzenbach v. Morgan, 384 U.S. 641, in support of the contention that the 1970 Voting Rights Act Amendments were “appropriate legislation” to enforce the Equal Protection Clause of the 14th Amendment. While we do not dispute the Court’s holdings in those cases, it must be pointed out that they decided the constitutionality only of an earlier enactment, namely the 1965 Voting Rights Act. We further note that the opinions in both those cases are very carefully written to express this Court’s conviction that Congress had ample factual basis for its enactment of the 1965 Act and that the legislation was carefully tailored to remedy the par- ticular constitutional ill. For instance, in South Carolina v. Katzenbach, supra, the Chief Justice points out that “Congress began work with reliable evidence of actual voting discrimination in a great majority of the states and political sub- divisions affected by the new remedies of the Act.” 383 U.S. at 329. The opinion also commends Congress’ accuracy, saying: “In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.” Sprinkled throughout the opinion are the references to “what Congress knew” or “what Congress realized”. Likewise, in Katzenbach v. Morgan, Mr. Justice Bren- nan held that Congress’ enactment of § 4(e) of the 1965 Act granting the franchise to Puerto Ricans who have successfully completed the sixth primary grade in an American-flag school in which the language of instruc- tion was other than English reflected “Congress’ greater familiarity with the quality of instruction in American- flag schools, a recognition of the unique historic rela- tionship between the Congress and the Commonwealth of Puerto Rico, an awareness of the federal govern- ment’s acceptance of the desirability of the use of Spanish as the language of instruction in Commonwealth schools, and the fact that Congress has fostered policies encouraging migration from the Commonwealth to the States.” 384 U.S. at 658. It is obvious that the Court was quite convinced that Congress considered ample evi- dence to give them the “specially informed legislative competence” necessary for them to impartially weigh the competing considerations. In the case at bar, plaintiff has put nothing before this tribunal from which it can gain assurance that Congress has given the same attention and care to the 1970 Voting Rights Act Amendments. There is nothing advanced from the legislative history to indicate that Congress had knowledge of situations peculiar to Arizona or any other affected state. The rather vague statement by Chairman Reymond Nakai of the Navajo Tribal Council that New Mexico Navajos are more likely to register than Arizona Navajos is not substantiated by any statistics. (Plaintiffs brief, p. 46). Nor is there any indication in the record that Congress, while considering the wisdom of granting the franchise to Arizona illiterates, had knowledge, for instance, that in many areas of the vast Navajo Reservation in northern Arizona there is practically no mass communications media of any language which effectively penetrates the area. There are no full time Navajo language broadcast stations, television is practically non-existent except on the fringes or by expensive cable hookup, and the only Navajo newspaper, the Navajo Times, is printed in English. Under these circumstances, can this Court “perceive a basis upon which Congress might predicate a judgment” that Arizona’s literacy qualification did not fulfill a legi- timate state interest in maintaining meaningful elections through responsible and intelligent exercise of the bal- lot? We think not. Arizona is one of only sixteen states with a literacy requirement. It would have been entirely feasible for ei Spree Er = 10 Congress to have held hearings in the states affected by the new amendments in order to perfect its “s informed legislative competence”. No such local hear. ings were held. Instead, Congress enacted Sweeping legislation which affected Arizona and other states without any knowledge of special factors which pertain to local elections. From its determination of the dis. criminatory effects of literacy tests in some regions, it appears that Congress inferred that such tests were per se unfair and could serve no useful state interest, We urge the Court to note the overbreadth of this inference. II NO DUTY IS IMPOSED ON ARIZONA TO RECTIFY THE INEQUITIES RESULTING FROM PAST GOVERNMENTAL POLICIES OF OTHER GOVERNMENTS BY THE FACT THAT UN- FAIRLY TREATED MINORITY GROUP MEM- BERS MAY HAVE MOVED HERE. In plaintiffs brief, great reliance is placed upon a broad construction of the opinion in Gaston County v. United States, 395 U.S. 285. The United States Attorney General has apparently construed the Court’s language in that case to say, in effect, that if a member of an identifiable minority has suffered educational] inequities because of invidious discrimination by any state or po- litical subdivision, the obligation to rectify this inequity follows that person to any state to which he might migrate. In short, if a Negro is illiterate because of segregated schooling policies in his native state, it becomes Arizona’s duty to “make it right” by granting him the franchise if he moves here. While we express no view as to the fairness of such a doctrine, we most urgently point out that the Gaston opinion does not admit of such a broad reading. Mr. Justice Harlan quite carefully noted, “We conclude that... it is appropriate for a court to consider whether a literacy or educational requirement has the ‘effect of denying the right to vote on account of race or color’ because the State or political subdivision which seeks to impose the requirement has maintained separate and inferior schools for its Negro residents who are now of voting age.” (Emphasis added). 395 U.S. at 293. But then, just as carefully, Mr. Justice Harlan states, “We have no occasion to decide whether the Act would permit reinstatement of a literacy test in the face of racially disparate educational or literacy achievements for which the government bore no respon- sibility.” (Emphasis added). 395 U.S. at 293, n.8. The policy of the Court in adjudging the constitution- ality of United States statutes is firm: “In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a ques- tion of Constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the pre- cise facts to which it is applied.” (Emphasis added). United States v. Raines, 362 U.S. 17,21. We further point out that Congress relied on this erroneously broad reading of Gaston when considering the enactment now in question. See House Hearings, pp. 54-56 (testimony of Howard A. Glickstein); 221-225 (Attorney General Mitchell); Voting Rights Hearings, pp. 184-188 (Attorney General Mitchell); 116 Cong. Rec. 2770 (daily ed. March 2, 1970, Senator Hruska). While this Court stated in Katzenbach v. Morgan that “it is not for us to review the congressional resolution of these factors”, 384 U.S. at 653, judicial action is as- suredly called for when erroneous factors are used in thecongressional resolution. In any event, this Court stated in Warren Trading Post v. Arizona Tax Comm., 380 U.S. 685, that, “.. . in com- pliance with its treaty obligations the Federal Govern- 12 ment has provided for roads, education and other ger. vices needed by the Indians.” The Court concludeg that, “. . . since federal legislation has left the State with no duties or responsibilities respecting the reser. vation Indians, we cannot believe that Congress intended to leave to the State the privilege of levying this [state privilege] tax.” 380 U.S. at 691-692. (Emphasis added). By the very language of Warren Trading Post, Arizona is brought within the exception provided for in Footnote 8 of the Gaston decision. As was determined in the Warren Trading Post case, Arizona clearly has “no responsibility” for the literacy or lack of it of a large part of its citizens by virtue of federal responsibility. True, as this Court said on June 15, 1970, in Evans y. Cornman, 398 U.S. 419, the fiction of a “state within a state” has been rejected and cannot now be revived But it is the contention of Arizona that the plain words of Warren Trading Post relieve it of responsibility and give to the State of Arizona the protection of the Gaston case. Ill THERE IS A PRESUMPTION OF CONSTITU- TIONAL VALIDITY WHICH APPLIES TO STATE STATUTES WHICH FAIRLY AND REASON- ABLY CLASSIFY CITIZENS. ARIZONA NEED SHOW NO “COMPELLING INTEREST”. Not all classifications are a denial of equal protec- tion. “To be sure, the constitutional demand is not 4 demand that a statute necessarily apply equally to all persons. ‘The Constitution does not require things which are different in fact . . . to be treated in law as though they were the same.’ Tignor v. Texas, 310 US. 141, 147. Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends.” Rinaldi v. Yeager, 384 U.S. 305, 309. 13 While it is true that “notions of what constitutes equal treatment for purposes of the equal protection clause do change”, as this Court pointed out in Harper v. Virginia State Board of Elections, 383 U.S. 663, 669, the logic of the language of the Rinaldi opinion cannot be disputed. There is a measurable difference between those who can read and write and those who have not mas- tered such basic skills. They are “different in fact”. Barring some extraordinary circumstance, there is no justification for requiring them to be “treated in law as through they were the same”. While the United States takes the view that extra- ordinary circumstances, namely, invidious discrimina- tion, are present, the plain truth is that, “Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show.” Lassiter v. Northampton County Board of Elections, 360 U.S. 44, 51. While Arizona does not deny that literacy tests have been unfairly ad- ministered in some states, there is no allegation that this state uses its literacy test in a manner designed to un- fairly discriminate against any specified group. We have already shown the fallacy of the United Siates’ reliance upon Gaston as a basis for any transferrable responsibility for earlier inequalities and will not dwell upon that further. As Mr. Justice Black pointed out in his well-reasoned dissent in Harper v. Virginia State Board of Elections, 383 U.S. 663, “The equal protection cases carefully analyzed 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 ‘irrational’, ‘irrelevant’, ‘unreascnable’, ‘arbitrary’, or ‘invidious’.” No serious claim has been made that Arizona’s classifi- cation of voters by literacy falls into one of these cate- gories. Unlike the case of Katzenbach v. Morgan, no showing has been made that Arizona’s literacy test ef- fectively disfranchises any identifiable minority. 14 “Of course it has always been recognized that nearly all legislation involves some sort of classification, ang the Equal Protection test applied by this Court is a narrow one: a state enactment or practice may be struck down under the clause only if it cannot be justi- fied as founded upon a rational and permissible state policy.” Mr. Justice Harlan, dissenting in Katzenbach y, Morgan, 384 U.S. 641, 660. Although it is suggested by the United States that be. cause voting is a “fundamental liberty” a broader standard should be applied in this case, Arizona agrees with Mr. Justice Harlan that, “no such dual-level test has ever been articulated by this Court... ”. 384 US. at 661 (dissent). The cases from which the so-called “compelling state interest” standard is inferred have invariably dealt with a classification which had the potential for permanent disfranchisement. See, e.g. Baker v. Carr, 369 US. 186; Reynolds v. Sims, 377 U.S. 533; Carrington v. Rash, 380 U.S. 89; Cipriano v. City of Houma, 395 U.S. 701; City of Phoenix v. Kolodziejski, 399 U.S. 204; Kramer v. Union Free School District, 395 U.S. 621. The rationale for the usual presumption of validity given to statutes is that the Legislature is presumed to reflect the will of the people as they speak through their ballots. Kramer v. Union Free School District, 395 U.S. 621. But when that voice is distorted through malapportionment or invidious classifications drawn along the lines of wealth or race, then the presumption must fall and the restriction on the franchise must be more closely examined. Without this safeguard, govern- mental units could simply classify out of the voting booth those voters who might oppose them, smugly relying on the presumed constitutionality of the classification. But such is not the case here. No attempt is made to permanently disfranchise any class. Illiteracy, unlike 15 color or sex, need not be a permanent condition. Little children are learning to read every day, just as are adults in special education classes. Arizona expends almost 70 per cent of the total state budget appropria- tion on the state’s common and high schools alone. Home study courses, including televised teaching, pro- vide educational opportunities for those who can’t at- tend regular classes. Considering the wide availability of basic education, promoted and encouraged by Ari- zona, those who cripple themselves by remaining illiterate must be deemed to have done so by choice. If Arizona citizens choose to remain illiterate, it is not unfair for the state to refuse to register them as voters, no more than it is unfair for a state to refuse to register those who choose to live in another state. We further point out that illiteracy is a problem which has been largely solved in this country. The United States enjoys one of the highest literacy rates in the world. Arizona is no exception to this general rule. Upon the order of this Court, Arizona allowed illiterates to regis- ter provisionally pending the outcome of this litigation. The availability of this provisional registration was widely publicized by statewide news media, especially broadcast outlets. Nonetheless, only eighteen illiterates were registered under this provision. (See Appendix of Affidavits). In Maricopa County, Arizona’s most populous, only twelve persons out of a total population of 962,918 took the opportunity to register. This small turnout in the face of both statewide and national discussion of the issue can only be taken as an indication that the problem of disfranchisement of illiterates in Arizona is de minimus. Thus, in determining the constitutionality of Ari- zona’s statute, the Court need not scrutinize the classi- fication as closely as is required to determine a “com- pelling state interest”. As was stated in Harper v. Vir- ginia State Board of Elections, 383 U.S. 663, 86 §. O 1078, “. . . under a proper interpretation of the Equal Protection Clause states are to have the broadest king _ Of jeeway in areas where they have a general consti. tutional competence to act.” Nor is there any question that Arizona has a “genera constitutional competence to act” in setting reasonable voter qualifications. “It has long been settled law that the states have the power to prescribe reasonable and nondiscriminatory qualifications for voting in federa] as well as state elections.” Hall v. Beals, 292 F. Supp. 610 (1968). Literacy tests have never been deemed per se discriminatory. Contrarily, it was held in Lassiter y. Northampton County Board of Elections, 360 US. 4, that the constitutionality of literacy tests as such is clear. In short, Arizona need show no “compelling state interest” in requiring literacy as a prerequisite to voting. It suffices to show a rational relationship of the statute to a legitimate end. The general rule was best stated in Metropolitan Casualty Insurance Co. of New York v. Brownell, 294 U.S. 580 at 584, where Justice Stone said: “A statutory discriminatio~ will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.” IV ARIZONA DOES HAVE A “COMPELLING INTEREST” IN MAINTAINING LITERACY AS A VOTING QUALIFICATION, ASSUMING ARGUENDO THAT SUCH AN INTEREST MUST BE SHOWN. Generally speaking, it can hardly be denied that pro- moting the honest, responsible and intelligent use of the ballot to insure meaningful elections is a com- pelling state interest. But Arizona has an especially compelling interest in requiring its voters to be literate. The Arizona Constitution specifically reserves to the voters the power to enact laws and constitutional amend- ments and the power to review the acts of the formal Legislature. The Arizona Constitution, Article IV, Sec- tion 1 (1) states: “. . . [T]he people reserve the power to propose laws and amendments to the Constitution and to enact or reject such laws and amendments at the polls, independently of the Legislature; and they also reserve ... the power to approve or reject at the polls any Act, or item, section, or part of any Act, of the Jegislature.” The people acting under this section, are exercising the legislative function. Tillotson v. Froh- miller, 34 Ariz. 394, 271 P. 867. No statute in Arizona, unless passed by a two thirds’ majority of the Legisla- ture, becomes law for ninety days in order to give five per centum of the qualified electors an opportunity to refer to the people the statute in question. (Constitution of Arizona, Art. 4 Pt. 1§3). The voter, thus given substantial power to legislate in our state, must be fully able to understand the text of the laws he has the power to make or revise in order to make rational and intelligent decisions rather than choices based on emotion or on somebody else's inter- pretation of the issues. The vote of the uninformed or the illiterate counts just as heavily as the carefully considered ballot of the responsible and well-read voter who seeks to exercise the legislative function reserved to him by the State Constitution. The franchise is thus a potential danger in the hands of those who do not fully understand the implications of the laws they have the power to pass on. “The ability to read and write . . . has some relation to standards desigixu to promote intelligent use of the ballot.” Lassiter v. Northampton County Board of Elec. tions, 360 U.S. 44. We urge the Court to note that this relationship applies a fortiori where, as in Arizona, the voter is given substantial powers to exercise the legis. lative function above and beyond the usual power of the ballot. Vv THE REASONABLENESS AND NECESSITY OF LITERACY AS A VOTER QUALIFICATION IS FURTHER INDICATED BY THE USE OF THAT CLASSIFICATION FOR PURPOSES OF NATURALIZATION. As Mr. Justice Harlan points out in his dissent to Katzenbach v. Morgan, “It is noteworthy that the Fed- eral Government requires literacy in English as a pre- requisite to naturalization, 66 Stat. 239, 8 U.S.C. § 1423 (1964 ed.), attesting to the national view of its impor- tance as a prerequisite to full integration into the American political community.” 384 U.S. at 663. Consider the curious posture of the law if foreign-born illiterates are disfranchised while native illiterates are allowed to vote. In light of the application of the Equal Protection Clause to “any person” within the jurisdic- tion of the United States, rather than applicability being restricted to citizens, such a classification may well be viewed as running afoul of the constitutional guarantee. The possible result would be voting by aliens familiar with neither American culture nor our democratic governmental system. THE CONSTITUTION OF THE UNITED STATES DOES NOT CONFER UPON THE CONGRESS, EITHER EXPRESSLY OR BY ANY REASONABLE IMPLICATION, THE RIGHT TO SET THE NATIONWIDE MINIMUM VOTING AGE AT 18 YEARS, OR ANY AGE OTHER THAN THE 21 YEARS SPECIFICALLY REFERRED TO IN THE CONSTITUTION. At the outset, several matters should be made per- fectly clear as to Arizona's position regarding Title III, Voting Rights Act Amendments of 1970, P.L. 91-285, 84 Stat. 314. We are in complete agreement with the United States that the legislative process is much better suited to de- veloping what is admittedly an arbitrary standard of age when everyone is constitutionally presumed to be old enough to intelligently exercise the franchise, whether heor she does so or not. Arizona does not take issue with the factual deter- mination of Congress concerning why the 18 year old should be given the franchise, even though there will always be individual citizens who will disagree with those conclusions. Nor does Arizona contend for a review or revision of the decisions of this Court, both old or new, setting forth standards for interpreting the power of Congress in enforcing the provisions of the Federal Constitution, particularly § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment. E.g. McCulloch v. Mary- land, 4 Wheat. 316; South Carolina v. Katzenbach, 383 U.S. 301; Katzenbach v. Morgan, 384 U.S. 641; Kramer v. Union Free School District, 395 U.S. 621; Cipriano v. City of Houma, 395 U.S. 701; Phoenix v. Kolodziejski, 399 U.S. 204; Evans v. Cornman, 398 U.S. 419. 20 Insofar as is consistent with the preceding three paragraphs, and so as to avoid as much as possible un- necessary duplication of argument, Arizona adopts the argument of its sister states of Oregon (No. 43 Original) and Texas (No. 44 Original) as presented in their briefs to this Court in those aforementioned cases now con- solidated with this case for consideration of this iden- tical question. There still remains the question of applicability of the standards and principles to the case at bar. It is here that principles and standards of constitutional inter- pretation, as well as the findings of the Congress must give way when faced with the language of the Consti- tution itself. Section 2 of the Fourteenth Amendment provides, in pertinent part: “But when the right to vote at an election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the mem- bers of the Legislature thereof, is denied to any of the male inhabitants of such state, being 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.” The United States brushes aside this specific consti- tutional acceptance of the age of 21 years as the mini- mum age which can be enforced against the States by the Federal Government with a one paragraph reference to an earlier paragraph emphasizing that the Equal Pro- tection Clause of the Fourteenth Amendment applies to voting matters (Brief for the United States, pages 73-75). The only case cited is Dennis v. United States, 171 F. ed 986 (CA. D.C.) for the proposition that the specific machinery of reducing a state’s representation in the Federal Congress has never been invoked. The logic or jegal conclusion that would lead from there to the ulti- mate conclusion that the amendment thus has nothing to say of a constitutional nature concerning the minimum age of citizens for exercising the franchise, escapes this defendant. The decisions of this Court, as has been pointed out by Texas and Oregon, supra, are absolutely consistent in leaving to the states the fundamental responsibility placed there by the Constitution to establish, on a non- discriminatory basis, and in accordance with the spe- cific directions or prohibitions of the Constitution, qualifications for the exercise of the franchise. E.g., Kramer v. Union Free School Dist., supra; Carrington v. Rash, 380 U.S. 89; Lassiter v. Northampton County Board of Elections, 360 U.S. 45. The United States does not dispute this general point. It is clear that had Justice Douglas been writing for the Court in Lassiter v. Northampton County Board of Elections, supra, in 1919, instead of 1959, he could well have included sex, along with residency requirement, age, and previous criminal record as obvious factors a state could take into consideration in determining qualifications for voters. Minor v. Happersett, 21 Wall. 162. Thus it was on August 26, 1920, with the Proclama- tion by the Secretary of State, the 19th Amendment of the Constitution was declared ratified. 41 Stat. 1823; U.S. Const. Amend. XIX. The matter of universal male suffrage was changed to universal suffrage in the only way contemplated by the Constitution — by a subse- quentamendment (U.S. Const. Art. V). It goes without saying that the cry for women’s suf- frage was as forceful and as fully documented as was 22 the case for the 18 year old vote. The matter was con. tinuously debated for almost 40 years before an amend- ment was proposed. Ida Husted Harper, The History of Women’s Suffrage, Vol. V (1922); Catt and Shuler, Women’s Suffrage and Politics (1926). Once proposed, the amendment was quickly ratified by the requisite number of states. 41 Stat. 362; 41 Stat. 1823, supra; U.S. Const. Amend. XIX. Even as late as 1962, the Congress felt compelled to submit to the several states a constitutional amendment to prohibit the imposition of a poll tax on the right to vote for federal officers. U.S. Const. Amend. XXIV. We cannot now question the wisdom of the framers at the time either the original Constitution or the Amendments were adopted. Their genius was such that the document could be changed from time to time as conditions required — not by Congress alone, but by the people, through their elected representatives at both the federal and state level. U.S. Const. Art. V, supra. This Court put it very succinctly in its decision of Dillon v. Gloss, 256 U.S. 368: “Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assem- blies in the several states and be ratified in three- fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people’s will and be binding on all.” 256 US. at 374. < + . Bi “y 23 All the decisions on construction and all the factual reasons developed by the Congress, regardless of their validity. in the abstract, or in cases other than ones specifically covered by the Constitution itself, cannot justify amendment of the letter of the Constitution ex- cept by constitutionally dictated methods. We thus face here the acid test of our system. Recog- nizing an almost universally acclaimed failing in our present governmental structure as regards the exten- sion of the franchise to citizens between the ages of 18—21 years, can we still maintain the discipline neces- sary to follow the Constitution as it is written, wherein the remedy is clearly set forth? If we can, the people will still continue to govern. If we fail here, it will only be a matter of time till other clear constitutional “%»:» ments will be similarly expeditiously abrogated. ~%.. end of constitutional government, as we know it, wiu not be far behind. CONCLUSION For the foregoing reasons, the United States should be denied the relief sought in its complaint herein. Respectfully submitted, GARY K. NELSON Attorney General of Arizona JOHN M. McGOWAN II Special Assistant Attorney General eee ae October, 1970 24 TTORNEY STATE C? ARIZONA STATE OF ARIZONA COUNTY OF GRAHAM I, H. Lyle Grant, County Recorder in and for the County = State aforesaid, being first duly sworn upon oath deposes and saith: In accordance with the agreement with the Attorney General I allowed any person who could not read the Constitution of the United States in the English language or write their name or both to provisionally register to vote between October 24, 1970, and December 14, 1970. Publicity regarding this was on all media, newspapers, radio, and television so that all persons who were illiterate who wished to register to vote would be aware that he could do so during this period of time. During this period no illiterate person in the County of Graham, according to the preliminary figures of the 1970 Census, * availed themselves of this support to gh oe register to vote even though they could not pass the literacy test of the State of Arizona. WITNESS my hand and official seal this fifth day of October, 1970. LDhee H. le Grant Graham County Recorder * The foregoing is based upon a 1970 county census of 16,327, preliminary count. 25 ®. ve oe TUCSON AFFIDAVIT STATE OF ARIZONA County of Pima I, Ida tige Smyth, being first duly sworn upon oath, deposes and says: In accordance with the agreement with the Attorney General, I allowed any persons who could not read the constitution of the United States in the English Language or write their name, or both, to provisionally register to vote between August 24, 1970 and Sept. 14, 1970. I arranged for publicity on all media; Newspapers, Radio and Television, so that any person who was illiterate who wished to register to vote would be aware that he could do so during this period of time. Ye this period © number of people out of the total of 344,635 people in the County according to the preliminary figures of the 1970 census availed themselves of this opportunity to provisionally “iy teed to vote, even though they could not pass the State of Arizona, Dated: Dah b. 197¢@ tere County Reporter iteracy test of the 26 cama oarrTs Comes MOWARO H FALOIE oats COUNTY RECORDER YUMA COUNTY October 5, 1770 CARA HN. BETTS, being first fuly sworn upon oath, deposes and seys: In accordence with the agreerent with the Attorney Generel, I allowed any person who could not read the Constitutton of the United Stetes in the english 1 age or wite their neme or both to provisionally register to wote between August 2l;, 1970 and September 14, 1970. I erranged for oublicity on el] medie; newspeper, radio and television so thet any person who was illiterate, who wished to register to vote would be aware that he could do so during this veriod of time. During this period then _of veovle x none et ell out of a totel of 60,077 people in the county according to the preliminary figure of the 1970 Census eveiled then- selves of this opvertunity to orovisionelly register to vote even or, they could not vass the literecy test of the State of Arizona, ecorde Subscribed end sworn to before me. this . day of Oct., 1970 by Cara N, Betts, County Recorder of Yum& Coun Arizone, ~Farbsre Oy, iu , by 1€ AT AT 27 STATE OF ARIZONA ) ) ss. County of Yavapai) Norma R, Marquart, Recorder of Yavapai County, Arizona, being first duly sworn, upon oath, deposes and says: That in accordance with the agreement with the Attorney General of the State of Arizona, I allowed any persons who could not read the Constitution of the United States in the English language or write their name, or both, to provisionally register between August 24, 1970 and September 14, 1970, to vote in Yavapai County, To affiant's knowledge, no persons availed themselves of this opportunity to provisionally register to "o * Ly ( |i My Commission expires August 18, 1971, * The foregoing is based upon a 1970 county census of 35,869, preliminary count. 28 OT 770 Al APFPIDAVIT be] >. STATE OF ARIZONA, ) (Tot! OF aa 2 88. County of Apache.) VIRGIE B. HEAP, being first duly sworn upon oath, deposes and says: In accordance with the agreement with the Attorney General, I allowed any persons who could not read the Constitution of the United States in the English language or write their name or both, to provisionally register to vote between August 24, 1970, and September 14, 1970. I arranged for publicity by a letter to all registration officers so that any person who wished to register to vote could be aware that he could do so during the period of time. During this period of time, two people out of a total of 32 ,237 people in the County according to the preliminary figures of the 1970 census availed themselves of this opportunity to pro- visionally register to vote even though they could not pass the literacy test of the State of Arizona. APACHE COUNTY RECORDER Subscribed and sworn to before me this 5th day of October, 1970. (SEAL) otary c My Commission Expires August 4, 1973. “woo ober, 1970. (eile, OT 7 ‘70 AM STATS OF ARIZONA, ATTORNEY G2 : ss. STATE OF ADIZONA County of Navajo. ) JAY H. TURLEY, being first duly sworn upon oath, deposes and says in accordance with the agreement with the Attorney General I allowed any persons who could not read the Constitution of the United States in the English language or write their name, or both, to provisionally register to vote between August 24, 1970 and ee og 14, 1970. Dio WeT I,azzeanged for publicity on all media, newspapers, radio and television so that any person who was illiterate who wished to register to vote would be aware that he could do so during this period of time. During this period / - number of people out of a total of YE,IS! peopie in the county according to the preliminary figures of the 1970 census availed themselves of this opportunity to provisionally register to vote even though Arizona. they could not pass the literacy test of the Spate ago County Recorder Subscribed and sworn to before me this PA day of ae Public, Mavajo County, G; Arizona ’ My Commission expires: Day A i8 ike 30 STATE OF ARIZONA) ) ss. COUNTY OF PINAL ) I, SOPHIE M, SMITH, the duly elected and qualified County Recorder of Pinal County, State of Arizona, being first duly sworn, on my cath depose and say, By agreement vith the Attorney General of Arizona, and in compliance with the order of the Supreme Court of the United States, I allowed persons vbo could mot read the Constitution of the United States in the Englirh language, or who could not write their name, or both, to provisionally register to vote betwen August 24th, 1970, and September 14th, 1970. This was publicised in all sedis a that any person who was illiterate and who wished to register to vote would be aware that he could do so during this period. During this period of time, 1 person out of 67,876 total population is the county, according to the preliminary figures of the 1970 census, availed his. self of this opportunity to provisionally register to vote, even though he could mot meet the literacy qualifications as provided for by Arizona Statutes, It should be noted in this context that this person was unable to write his name and therefore was identifiable as an illiterate. Previously in this county, the statutes have been interpreted to mean that the literacy qualification was exactly that and nothing else. This meant that if a person could write his name and was willing to subscribe on his oath that he met all qualifications, imeluding the literacy qualification, he was considered so qualified. Birth certificates were not required to be produced as proof of age, and neither was actual testing of ability to read performed, as such testing was not considered to be the duty of the Registration Officer. Accordingly, it is possible and even probable that there are now registered in this county persons who would be baffled by such words and phrases as "concurrence", "emolument", or “domestic Tranquility", and therefore are not literate within the strictest construction of the statutes, Given under ay hand and seal this Sth day of October, 1970. x. SMITH County Recorder SUBSCRIBED AND SWORN TO before me this Sth day of October, 1970. My Commission Expires tary Public. May 3ist, 1973 31 AFELDAVITt grate OF ARIZONA =) ) ss. COUNTY OF MARICOPA ) PAUL N. MARSTON, being first duly sworn upon oath deposes and In accordance with the agreement with the Attorney General, I allowed any persons who could not read the Constitution of the United States in the English language or write their name or both to pro- visionally register to vote between August 24, 1970 and September 14, 1970. I arranged for publicity on all media: newspapers, radio and television, so that any person who was illiterate who wished to register to vote would be aware that he could do so during this period of time. During this period twelve (12) people out of & total of 962,918 people in the county according to the preliminary figures of the 1970 census availed themselves of this opportunity to provisionally register to vote, even though they could not pass the literacy test of the State LL Messe Paul 8. Marston Maricopa County Recorder Subscribed and sworn to before me trig Zadaay ° of Arizona. 1970. Notary Public My commission expires: / 32 STATE OF ARIZONA, ) COUNTY OF MOHAVE. ) I, PECGY B. SMITH, Recorder of the County of Kohave, State of Arisona, Leing first duly sworn upon oath depose and says, in accordance with agreem nt with the Attorney General I allowed any cerson who coul¢ not re.d the Constitution of these United States in the Lnrlish language or write their name or both, to provisionally re;ister to wote between Aurust 24, 197C and Serterter LA, 1970, During the perio? between Aurust 24, 197C and Septez er 14, 1970 no person out of a total of 25,110 people in the county according to the preliminary census of 1970 availed themselves of this opvortunity to provisionally rerister to wote even though they could not pass the liter.cr test of the Stace of Arizona. witness ry hanc this 6th day of Octoter, 1°7¢. PZ ¥ eft” ©. ~rith Moh ve County ecorder Su' seritec anc sworn to before me this éth cay of Octoter, 197C, by Perm =F. smith. otary Futlic Ky Commission Expires: STATE OF ARIZONA COUNTY OF COCONINO Edna Mae Thornton being first duly sworn upon oath deposes and activates out the agreement with the Attorney General allowing any persons who could not read the Constitution of the United States in the English language or write their name or both to provisionally register to vote between August 24, 1970 and September 14, 1970. I arranged for publicity on all media, newspapers, radio and television, so that any person who was illiterate, who wished to register to vote would be arranged that he could do so during this period of time. During this period no people out of a total of 47,555 of people in the county according to the preliminary figure of the 1970 census availed themself of this opportunity to previously register to vote even though they could not pass the literacy test of the State of Arizona. day of My commission expires: 4 B/, 1974. FLAGSTAFF, ARIZONA 8600! . PHONE 774-S01! EXT. 63 OR 64 nome om o 770M, Lael COUNTY OF COCHISE OFFICE OF THE RECORDER ATTORNEY MESREE, ARIZONA STATE OF ARIZON, APPIDAVIT State of Arizona } ss County of Cochise October 5, 1970 asreresiest ite fanvagnetlont eien fae ftténee? Saveraly Sr tabi accordance any persons whe could not read the Constitution of the we baites States in the lish language or write seeds Game oe beh, te Heep register vote between August 24, 1970 andSeptember 14, 1970, To the best of his Ay -4~ deputy Ay nny Be, Justice of the Peace, or any employee Recorder away any other. wise qualified person who wished to register.upon the basis of illiteracy in any form. In other words, there was no one provisicn- ally registered Cochise County. # Cc) ae SALW 3 0. Dixon hise County Recorder This instrument was eckhowledged before me this rument, ath. er State of Arisona ) ss County of Cochise) of Geteder 2 a A awe Fin trnrh herent wee hopaene EAT * The foregoing 9 based upon a 1970 county census of 60,39) and an unoffir ial 1970 voter registration of 19,960. 35 ATTORNEY GENERAL I, DORIS PARKIN, being first duly sworn upon cath SHR CS UEP* In accordance with the agreement with the Attorney General I silowed my person who could not read the constitution of the United States in the English language or write their neme or both to provisionally register to vote between August 24, 1970 and September 14, 1970. I arrenged for publicity on all media - newspapers - radio - T.V. so that any person who was illiterate who wished to register to vote would be qvare that he could do so during this period of time. During the period NONE people out of a total of 28,412 people according to the prelimary figures of the 1970 census availed thea- selves of the opportunity to provisionally register to vote even though they could not pass the literacy test of the State of Arizona. Subscribed and sworn to before me this 5 day of October, 1970. ee ew My Commission Expires November 11, 1975. 36 COUNTY RECORDER SANTA GRUZ COUNTY NOGALES, ARIZONA, 85681 serous 3 See STATE OF ARIZONA ) a8. : County of Santa Cruz ) I, G. ESPINOSA MORENO, being first duly sworn upon my oath depose and say: In accordance with the agreement with th+ Attorney General I allowed any persons who could not read the Constitution of the United States in the English language or write their names or both, to provisionally register to vote between August 2), 1970 and September 14, 1970. I arranged for publicity on all media, newspapers, radio and television so that any person who was an illiterate and wished to register to vote, would be awmre that he could do so during this period of time. During this period two (2) persons, out of a total of 14,500 according to the preliminary figures of the 1970 census, availed themselves of this opportunity to provisionally register to vote, even though they could not pass the literacy test of the State of Arizona. Leabeiaan, Pave Santa Cruz County Recorder Subscribed and sworn to before me at Nogales, Arizona, this 6th day of October, 1970 by G. Espinosa Moreno. Notary Public AY GOKSSSC CORRES LY DTP P 79 ROBERT M, ttorney Ger State of Idahx RIGHARD H, ssistant Ati State of Idahx« Statehouse ttorneys fo: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0216%3A24. Public record. Not legal advice.