Defendent Brief — Oregon v. Mitchell

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OCT 12 1970

IN THE 3

SUPREME COURT OF THE UNITED SAE Et Ge

October Term, 1970

No. 47 Original

ED STATES,

Plaintiff, )

)

STATE OF IDAHO (

Defendant,

)

BRIEF FOR THE STATE OF IDAHO

bg ROBERT M. ROBSON

. Attorney General

State of Idaho

RGHARD H. GREENER

Assistant Attorney General

State of Idaho

Statehouse

Boise, Idaho 83707

Attorneys for Defendant

|

|

|

Page

.F. sh —— — dpi 1

QUESTION PRESENTED ------------------------ 1-2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ---------------------- 2-8

STATEMENT ———— no 9 ons ono no nnn n nnn nn === 9-10

SUMMARY OF ARGUMENT --------------------- 10-11

ARGUMENT - <0 cess — 11-31

J. The provisions of the United States Consti-

tution and decisions of this court require

that the individual states be permitted to

establish voter qualifications pertaining

to residency and age --------------------- 11-21

ll. Astate may establish reasonable voter

qualification standards based upon residency,

age and applicable to absentee voting which

do not violate the equal protection clause of

the Fourteenth Amendment so long as the

qualification standards are not discirmina-

tOPY ————————————— nn nnn = == -- 22-27

Il. There is no power enumerated in the United

States Constitution which vests in Congress

the right to legislate in contravention of

state laws which prescribe voter qualifi-

cations based upon residency and age ------ 27-31

CONCLUSION --------------------------------- 31

APPENDIX ----------------------------------~~- 33-41

Voting Rights Act Amendments of 1970,

Title II -------------------------------- 33-39

. — 39-41

CITATIONS

Cases: Pag

Baker v. Carr, 369 U. S. 186 (1962)---------.. ae

Carrington v. Rash, 380 U. S. 89 (1965-----.. — 13

Carter v. Carter Coal Co. 298 U.S, 238 (1930-— »

Cipriano v. City of Houma, 395 U. S. 701 (19699 2 2

City of Phoenix v. Kilodziejski,

399 U.S, 204 (1970)---------------------.. — U.

Givens v. Ogden, 22 U. 8. (9 Wheat.) 1 (1824)----.

Gray v. Sanders, 372 U. S. 368 (1963)--------.. — 9

Heart of Atlanta Motel, Inc. v. U. 8.

379 U.S, 241 (1964)----------------------.....

Kansas v. Colorado, 206 U. S. 46 (1907)---------..

Katzenbach v. Morgan,

384 U. S. 641 (1966)------------------ 22, 23, 28, 29, 30

Katzenbach v. McClung, 379 U. S. 294 (1964)------

Kramer v. Union Free School District,

395 U. S. 621 (1969)----- --- 20,2

Lassiter v. Northampton County Bd. of Elections,

360 U.S, 45 (1959) -------------------------- 19.2

McCulloch v. Maryland, 17 U. S. (4 Wheat) 31% (1819,— »

Marbury v. Madison, 5 U,S, 137 (1803)------------

Martin v. Hunter's Lessee,

4 U.S, (1 Wheat) 304 (1816) ---------------------

Minor v. Happersett, 88 U. S.,

(21 Wall.) 162 (1875)-------------------------- 17,18

Pope v. Williams, 193 U,S, 621 (1907)----------- 18,19

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

Smith v. Allwright, 321 U. S. 649 (1944)----------

United States v. Moseley, 238 U. S. 383 (1915)---- 2

Yarbrough, Ex parte, 110 U. S. 651 (1884) -------- 19,21

constitutional and Statutory Provisions:

2

U. 8. Const. art. I. 860. 2 ---------------------

U. 8. Const. art. II, Se0. 2 --------------------

b. 8s. Const. Amendment X---------------------

U.S. Const. Amendment XIV -------------------

b. S. Const. Amendment XV --------------------

b. S. Const. Amendment XVII -------------------

Idaho Const., art. VI, Seo. 2-------------------

Idaho Code, § 34-401 ---------------------------

Idaho Code, § 34-408 ---------------------------

Idaho Code, § 34-409 ---------------------~-----_

Idaho Code, § 34-413 -------------------------.-

Idaho Code, § 34-1101 ------------------------.-

Idaho Code, 8 34-1105 ——— 8

Voting Rights Act Amendments of 1970,

Tit. D&M ------------------------..- 33-41

pub. L. No. 91-285, 84 Stat. 314 --------------- 9

Other Authorities:

The Federalist, No. 59 at 404-405

(Bourne ed. 1901) (Hamilton) -------------- 12

116 Cong. Rec. $3513 (daily ed. March 11, 1970)--- 30

116 Cong. Rec, §3057, §3060-63 (daily ed.

March 5, 1970) -------------------------- 30

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a4

— — — a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1970

No, 47 Original

UNITED STATES

Plaintiff,

v.

STATE OF IDAHO

Defendant.

BRIEF FOR THE STATE OF IDAHO

JURISDICTION

The State of Idaho accepts and agrees with the

jurisdictional arguments set forth in the Plaintiff's Brief.

QUESTION PRESENTED

The question as presented to the Court in this

matter, is accurately stated in Plaintiff's Brief as:

Whether the Voting Rights Act Amendments of

1970, 84 Stat. 314, are constitutional insofar as they

J restrict durational residency requirements in re-

gard to voting for president and vice-president and pre-

2

scribe uniform standards regarding absentee registraun

and absentee balloting in presidential elections ang (2)

prohibit the states from denying the vote on &°COUNt of ap

to any otherwise qualified person 18 years of age or d

in any election. The statutory and constitutional provi;

involved.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U. S. Const. art. I, 52:

"The House of Representatives shall be com-

posed of Members chosen every second Year

by the People of the several States, and the

Electors in each State shall have the Qual-

ifications requisite for Electors of the. most

numerous Branch of the State Legislature, * * *

U. S. Const. art. II, §2:

"Each state shall appoint, in such manner

as the Legislature thereof may direct, a number

of electors, equal to the whole number of

senators and representatives to which the

state may be entitled in the congress: * * *'

U. S. Const. amend. X:

"The powers not delegated to the United

States by the Constitution, nor prohibited

by it to the States, are reserved to the

States respectively, or to the people."

COPY BOUR

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b. S. Const. amend. XIV:

"section 1. All persons born or naturalized

in the United States, and subject to the juris-

diction 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 immunities

of citizens of the United States; nor shall

any State deprive any person of life, liberty,

or property, without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.

"Section 2. Representatives shall be appor-

tioned among the several States according

to their respective numbers, counting the

whole number of persons in each State, ex-

cluding 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 Executive and Judicial offi-

cers of the 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

D CLOSE IN CENTER

—

-4-

be reduced in the proportion whith the number

of such male citizens shall bear to the whole

number of male citizens twenty-one years of

age in such State.

* X *

"Section 5. The Congress shall have power to

enforce, by appropriate legislation, the provi-

sions of this article."

U. 8. 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 conditions of

servitude.

"Section 2. The Congress shall have power to

enforce this article by appropriate legislation."

U. S. Const. amend. XVII:

"The senate of the United States shall be com-

posed 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 qualifications requi-

site for electors of the most numerous branch

of the state legislatures."

Article 6, Section 2 of the Idaho Constitution

provides:

Qualifications of electors.--Except as in this

-5-

article otherwise provided, every male or

female citizen of the United States, twenty-

one years old, who has actually resided in

this state or territory for six months, and

in the county where he or she offers to vote,

thirty days next preceding the day of elec-

tion, if registered as provided by law, is a

qualified elector; provided however, that

every citizen of the United States, twenty-

one years old, who has actually resided in

this state for sixty days next preceding the

day of election, if registered as required

by law, is a qualified elector for the sole

purpose of voting for presidential electors;

and until otherwise provided by the legisla-

ture, women who have the qualifications pre-

scribed in this article may continue to hold

such school offices and vote at such school

elections as provided by the laws of Idaho

territory.

Section 34-401, 34-408, 34-409, 34-413,

34-1101 and 34-1105 provide in pertinent part:

34-401. Qualifications of voters.--Every

person over the age of twenty-one (21) years,

possessing the qualifications following, shall

be entitled to vote at all elections: He shall

be a citizen of the United States and shall

have resided in this state six (6) months im-

=¢-

mediately preceding the election at which he

offers to vote, and in the county thirty (30)

days: provided, that no person shall be permit-

ted to vote at any county seat election who

has not resided in the county six (6) months,

and in the precinct ninety (90) days where he

offers to vote; nor shall any person be permit-

ted to vote at any election for the division of

the county, or striking off from any county

any part thereof, who has not the qualifications

provided for in section 3, article 18, of the

constitution; nor shall any person be denied

the right to vote at any school district election,

nor to hold any school district office on

account of sex.

34-408. Eligibility of new residents to vote.

Each citizen of the United States, who, immed-

iately prior to his removal to this state, was a

citizen of another state and who has been a

resident of this state for sixty (60) days next

preceding the day of election but for less than

the six (6) month period of required residence

for voting prior to a presidential election, is

entitled to vote for presidential and vice-pres-

idential electors at that election, but for no

other offices, if

(1) he otherwise possesses the substan-

tive qualifications to vote in this state, except

=a

the requirement of residence and regis-

tration, and

(2) he complies with the provisions

of this act.

34-409. Application for presidential

ballot by new residents. --A person desiring

to qualify under this act in order to vote for

presidential and vice-presidential electors

shall be considered as registered within the

meaning of this act if on or before ten (10)

days prior to the date of the general election

he shall make an application in the form of

an affidavit executed in duplicate in the pres-

ence of the county auditor, substantially as

follows * * *,

34-413. Voting by new residents. --(1) The

applicant, upon receiving the ballot for presi-

dential and vice-presidential electors shall

mark forthwith the ballot in the presence of

the county auditor, but in a manner that the.

official cannot know how the ballot is marked.

He shall then fold the ballot in the county

auditor's presence so as to conceal the mark-

ings, and deposit and seal it in an envelope

furnished by the county auditor.

34-1101. Absent voting authorized. --Any

qualified elector of the state of Idaho who

is absent or expects to be absent from the

-g-

election precinct in which he resides on the day

of holding any election under any of the laws of

this state in which an official ballot is required,

or who is within the election precinct and is, or

will be, unable, because of physical disability,

or because of blindness, to go to the voting place,

and if registration is required for such election,

who is duly registered therefor, may vote at any

such election, as hereinafter provided.

34-1105. Return of ballot.--On marking

such ballot or ballots such absent or disabled

or blind elector shall refold same as thereto-

fore folded and shall inclose the same in said

official envelope and seal said envelope se-

curely and mail by registered or certified

mail or deliver it in person to the officer

who issued same; provided, that an absentee

ballot must be received by the issuing officer

by 12:00 o'clock noon on the day of the elec-

tion before such ballot may be counted. Said

ballot or ballots shall be so marked, folded

and sealed by said voter in private and se-

cretely. Provided, that whenever the disability

or blindness makes it necessary that the voter

shall be assisted in marking his ballot, such voter

may have the assistance of any person of his

choice in marking his ballot.

COPY E

2

STATEMENT

The Voting Rights Act Amendments of 1970, 84

314 (hereinafter referred to as the Act“) was passed

by Congress and signed into law by the President of the

United States on June 22, 1970. There are two provisions

in this Act relevant to the case at bar. These are Titles

Land III, which purport to abrogate the individual states“

right to set qualifications for voting.

Title II of the Act seeks to make uniform all residency

ad absentee voter requirements (hereinafter referred to

generally as residency requirements) for presidential and

vice-presidential elections. The relevant provision would

restrict this requirement in any state to thirty (30) days.

This is in direct conflict with Idaho's constitutional and

1

statutory law.

Title III of the Act seeks to preclude the state from

setting age requirements in excess of eighteen years as a

qualification for voting in all types of elections. This pro-

vision is in direct conflict with Articie 6, Section 2 of the

Idaho Constitution which sets the mandatory age of twenty-

me years as a requirement to exercise enfranchisement

privileges in the State of Idaho.

The Governor of the State of Idaho was informed by

the Attorney General of the United States, the official

1. Article 6, Section 2 of the Idaho Constitution; Section

4-401, Section 34-408, Section 34-409, Section 34-413,

Section 34-1101, Section 34-1105 of the Idaho Code.

UND CLOSE IN CENTER

-1]0-

statutorily charged with the enforcement of the Act, that

the State of Idaho was to comply with the new Act, Thy

Governor contacted the Attorney General for the State 4

Idaho who advised the Governor that he had grave dou,

as to the constitutionality of Titles II and III of the Act,

The State of Idaho has, as a result of this advice, regpex

fully refused to accede to the request of the United States

W 2

Attorney General. This action followed to compel the

State of Idaho to comply with Title II and III of the Act.

SUMMARY OF ARGUMENT

The Congress of the United States has enacted legis

tion which abrogates certain voter qualification standard

required by the Idaho State Constitution and Idaho statu

law. These are Titles II and III of the Act. The provision

found in the Idaho Constitution and statutory law condition

the right to vote upon reasonable residency and age requir

ments.

Congress in so legislating has relied upon Section 5

of the Fourteenth Amendment. This provision is sought

to be used by Congress as a means to circumvent the

enumerated powers doctrine and satisfy the requirement

that a specific enumerated power exists, thereby enab-

ling Congress to so legislate.

The right to set voter qualification standards has

since the framing of the United States Constitution rested

with the states. This usurpation of this state function is in

COPY BO

u-

contravention of the principles espoused in the United

states Constitution and decisions of this Court. The state

us the right to establish such standards co long as they

sre not discriminating.

The State of Idaho argues that this reliance upon

section 5 of the Fourteenth Amendment is illfounded and

contrary to other provisions in the United States Consti-

tution, The state would assert that the express require-

ments of provisions of the United States Constitution vest

the right to set voter qualification standards pertaining

to residency and age requirements in the individual states.

The State additionally submits that this is not a denial of

equal protection rights set forth in the Fourteenth Amend-

ment, The legislation, then, is an over amplification of

Congressional prerogatives pursuant to Section 5 of the

Fourteenth Amendment.

The abrogation of the right of the individual states

in these instances is in total opposition to the letter and

spirit of the United States Constitution. These statutes

must be held unconstitutional.

ARGUMENT

I,

THE PROVISIONS OF THE UNITED STATES CONSTITU-

TION AND DECISIONS OF THIS COURT REQUIRE THAT

THE INDIVIDUAL STATES BE PERMITTED TO ESTAB-

LISH VOTER QUALIFICATIONS PERTAINING TO RES-

DENCY AND AGE,

OUND CLOSE IN CENTER

.12-

The express language of the United States

and the great weight of case law clearly require that th

standards for voter qualification insofar as residency an

age requirements are concerned be left to the disoretin

of the individual states. This principle finds its origin in

the history of the United States and, indeed, is reflected

such documents as the Federalist.

The Congress of the United States by enacting Titi,

II and III of the Act obviate this mandate. The following

analysis will consider provisions of the United States

Constitution and holdings of this Court which are releyay

to this issue and clearly support this assertion,

The most logical point to initiate this analysis is wit

the relevant constitutional provisions. Article I, Section

2 of the United States Constitution provides a primary

basis for the assertion that the right to set voter qualifi-

cations rests with the individual states. This provison

states in relevant part:

"The House of Representatives shall be com-

posed of members chosen every second year

by the people of the several states, and the

electors in each state shall have the qualifi-

cations requisite for electors of the most

numerous branch of the state lagislature."

The above provision referring to requirements for electin

of members of the House of Representatives expressly

keys the election to this national body upon state law.

2. The Federalist, No. 59, at 404-405 (Bourne ed. 190)

(Hamilton) .

CrorRryv Re

-13-

The offices of President and Vice-President are

referred to in Article II, Section 2 of the Constitution as

ymended by the Twelfth Amendment which provide for

tir manner of election, the pertinent portions of Article

L. Section 2 state:

"Each state shall appoint, in such manner

as the legislature thereof may direct, the

number of electors, equal to the whole num-

ber of senators and representatives to which

the state may be entitled in the Congress.

The individual states, then, are recognized by the above

constitutional provision as exercising control over the

pointment of electors to determine who will be Presi-

dent and Vice-President of the United States.

The Seventeenth Amendment to the United States

Constitution provides further indication that voter qualifi-

cations are left to the discretion of the individual states.

The relevant portions of this Amendment provide:

"The Senate of the United States shall be

composed of two Senators from each state,

elected by the people thereof, for six years;

.. The electors in each state shall have the

qualifications requisite for electors of the

most numerous branch of the state legisla-

tures."

It is clear from these articles and amendments

of the United States Constitution that the states are vested

with the power to determine qualifications for the electors

of President, Vice-President, Senators and Representatives.

S222, % —— „% „„ 4 eee

-14-

Implicit in the vesting of this power in the individual gtajs,

is the lesser included power to establish ang

tory residency and age standards.

The assertion that the individual states may regtrig

the legal voting age to twenty-one years and over is sub-

stantiated by express language of the Constitution found ip

certain portions of Section 2 of the Fourteenth Amendmen.

These state:

" . , . 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 Executive 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 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. (emphasis added)

ses Ff op &e Bee B&B FE

The Fourteenth Amendment, in Section 2, then, presorib-

es a penalty for a state's refusal to allow individuals of

twenty-one years of age to vote. An obvious conclusion

to be drawn from this penalty based upon the age of

twenty-one years is that the states may set forth stan-

dards requiring that individual voters attain a certain age

so long as the standards do not require an age in excess

of twenty-one years. Thus, this recognizes that the state

may set voter age qualifications so long as they do not

CORY Roi

-15-

restrict enfranchise mont to individuals twenty-one years

or more.

The Tenth Amendment to the United States Consti-

tution is also of significance to this problem. The state

urges that this provision lends support to its argument

that the express language, spirit, and intent of the Consit-

tution require that the states be left the prerogative to

establish non-discriminatory residency and age require-

ments for voters. This Constitutional provision is the

basis for the Doctrine of Enumeration of Powers and

provides:

"The powers not delegated to the United

States by the Constitution, nor prohibited

by it to the states, are reserved to the

states respectively, or to the people."

Thus, unless there is a provision existent in the

United States Constitution which may be said to authorize

Congress to legislate standards effecting residency and

age voter requirements in individual states, that power

does not exist, The Tenth Amendment evinces an intent

on the part of the framers of the Amendment to reserve

to the individual states authority over all matters absent

aclear enumeration otherwise set forth in the United

States Constitution. The state would argue that there is

no enumerated power to be found in the United States Cor

stitution which authorizes Congress to legislate as it has

done in the case at bar. This argument will be more

fully developed in a subsequent portion of the brief.

Mea 48 Aer sae oe —

-16-

An additional argument may be made for the propos.

tion that the United States Constitution, its articles ang

amendments, reflect the theory that voter qualification

standards are reserved to the individual states. This

may be drawn from the history of the Constitution congen.

ing the expansion of voter rights.

The State of Idaho asserts that the Constitution its;

clearly demonstrates that the proper method by which toe

tend the vote to 18 year olds is by constitutional amendten

This is the sole means by which the basic expansion of vu

ing rights has been accomplished in the past.

Examples of such amendments are found in the Ff:

teenth Amendment which expressly abolished racial cirter

as being determinative of the right to vote; the Nineteenth

Amendment which extended the right to vote to women; an

the Twenty-fourth Amendment which eliminated the requir-

ment of a poll tax.

The Fifteenth Amendment is of particular significane

insofar as the recognized manner in which the extension of

the right to vote has been accomplished in the past. Itis

worthy of note that this amendment was subsequent to th

Fourteenth Amendment and was intended to insure that th

blacks would be given the right to vote.

It is apparent from this amendment that it was widely

feared that the blacks would be denied the right to vote.

However, Congress apparently did not feel it could legislate

COPY BC

-17-

, order to enfranchise the black man. This is certainly

clear indication that the Fourteenth Amendment was not

sidered to be a sufficient authorization or enumerated

sr upon which to enact such legislation.

3

Thus, the State asserts that this theory may be

tended to the problem at bar. That is, a constitutional

sndment is the proper vehicle by which to provide the

g year old with the right to vote.

There is a wealth of case law which supports the

tate of Idaho's contention that voter requirements relating

Bo residency and age are reserved to the individual states.

inor v. Happersett, 88 U. S. (21 Wall.) 162 (1875) denied

omen's suffrage absent a constitutional amendment. This

se stated that women did not have the right to vote under

ihe Fourteenth Amendment due to the Constitution of the

Jnited States and the laws of the State of Missouri which

estricted that right to male citizens. Minor v. Happersett,

62-178, This court states at page 178:

. . No argument as to women'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 find it is within

the power of a state to withhold."

The above provision quite clearly recognizes that the states

have the right to restrict the right to vote if done in a man-

er which is not violative of other constitutional provisions.

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

Ewa tas -! AoE ras Se aoe

-18-

The decision Pope v. Williams, 193 U. S. 621 (ig

dealt with the right to vote and concluded that the privilep

to vote was not granted by the Federal Constitution Ror by

any of its amendments. Indeed, this decision states thy

the right to vote is not a privilege springing from United

States citizenship. The court in so concluding stated a

page 632-633: |

"The privilege to vote in any state is

not given by the federal constitution, or by any

of its amendments. It is not a privilege spring-

ing from citizenship of the United States.

v. Happersett, 21 Wall. 162. . . It may not

be refused on account of race, color, or pre-

vious conditions of servitude, but it does not

follow from mere citizenship of the United

States. 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 terms as it may seem proper, b

vided, of course, no discrimination is made be-

tween individuals, in violation of the federal con-

stitution. The state might provide that persons

of foreign birth could vote without being natural-

ized, and, as stated by Mrs. Chief Justice Waite

in Minor x. Happersett, . . . such persons were

allowed to vote in several of the states upon hav-

ing declared their intentions to become citizens

of the United States. Some states permit women

to vote; others refuse them that privilege. A state,

so far as the federal constitution is concerned,

might provide by its own constitution and laws

that none but native born citizens shall be permit-

ted to vote, as the federal constitution does not

confer the right of suffrage upon any one, and the

conditions under which the right is to be exer-

cised are matters for the states alone to pre-

scribe, subject to the conditions of the federal

COPY BC

-19-

constitution, already stated; although it may

be observed that the right to vote for a mem-

ber of Congress is not derived exclusively

from the state law. See Federal Constitu-

tion, Art. I, Sec. 2;. . ."' (emphasis added)

The state's prerogative insofar as residency re-

quirements are concerned has long been recognized in

case law. This has been espoused most recently in the

decision, Carr. nv. Rash, 380 U. S. 89 (1965). The

court in this decision, while invalidating a residency re-

quirement placed upon servicemen for other reasons, rec-

ognized that the state had the ultimate power in imposing

residency requirements provided they were not discrim-

inatory in nature. The court states at page 632;

"Texas has unquestioned power to impose

reasonable residence restrictions on the

availability of the ballot. . . There can be

no doubt either of the historic function of the

state to establish, on a non-discriminatory

basis, and in accordance with the constitu-

tion, other qualifications for the exercise of

the franchise. Indeed, the states have long

been held to have broad powers to determine

the conditions under which the right of suff-

rage may be exercised.' Lassiter v. North-

ampton Election Board, 360 U. S. 45, 50.

Compare United States v. Classic, 313 U.S,

299; Exparte Yarbrough, 110 U. S. 651. "In

other words, the privilege to vote in the 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 discrimination is made

between individuals in violation of the Federal

Constitution.“ See also Pope v. Williams,

193 U. S. 621 (1907)."

r ae ee

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The decision Lassiter v. Northampton County Bor

of Elections, 360 U. S. 45 (1959), cited in the above q

tion, provides an additional statement in support of the

right of the individual states to regulate voter qualificat.,

in a reasonable manner, This decision involved the yajig

ity and constitutionality of literacy tests. The court sta;

on page 51:

"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 juris-

diction. Residence requirements, age, previous

criminal record. . . are obvious examples indi-

cating factors which a state may take into consid-

eration in determining the qualifications of voters

. .'' (emphasis ours)

The above quotations certainly express recognition of

this state right. Moreover, recent United States Suprem

Court decision's striking down state statutory requirements

found to be unconstitutional as resulting in invidious discii

inations, Kramer x. Union Free School District, 395 U.8.

621 (1969), Cipriano x. City of Houma, 395 U. S. 701 (l

and City of Phoenix v. Kolodeziegjski, 399 U. S. 204 (197)

tacitly recognize the state's prerogative insofar as establis

ment of qualifications as to age and residence conditioning

the right to vote, provided such standards did not violate

constitutional requirements.

A most significant decision involving the rights of

voters, Baker v. Carr, 369 U. S. 186 (1962) contains pas-

sages relevant to the problem of the extent of state's rights

COPY BO

-21-

insofar as voter qualifications are concerned. Mr. Justice

Douglas stated in concurring with the majority opinion at

page 243-244:

= "That the states may specify the qual-

ifications for voters is implicitin Article I,

Section 2, Clause 1, which provides that

' tthe House of Representatives shall be chosen

by the people and that the Electors (voters)

in each State shail have the Qualifications

requisite for Electors (voters) of the most

numerous Branch of the State Legislature." '

The same provision, contained in the Seven-

teenth Amendment, governs the election of

Senators."

See also Gray v. Sanders, 372 U. S. 368 (1963).

The above decisional law quite clearly reflects an

attitude on the part of this Court that the states may set

voter qualifications pertaining to residency and age require-

ments. These qualifications remain subject to other con-

stitutional guarantees by which the vested right to vote may

be protected. Ex parte Yarbrough, 110 U.S, 651 (1884),

United States v. Moseley, 238 U. S. 383 (1915); Smith v.

Allwright, 321 U. S. 649 (1944). The historical analysis

viewed together with the express provisions of the United

States Constitution and decisions of this court support the

state of Idaho's contention that the individual states may

establish voter standards for residency and age requirements.

NOT VIOLATE THE EQUAL PROTECTION CLAU: . 0

THE FOURTEENTH AMENDMENT SO LONG AS TH

QUALIFICATION STANDARDS ARE NOT DISCRIMN

The Plaintiff, relying upon a decision, Katzenhachy,

Morgan, 384 U. S. 641 (1966), asserts that it does haye

authorization pursuant to Section 5 of the Fourteenth

Amendment to legislate in this area due to denial of equ

protection of the laws. Consideration must now be given

to this problem in an effort to determine if the Idaho res-

idency requirements and the denial of the vote to individ-

uals between the age of eighteen and twenty-one is, in

fact, a denial of equal protection.

The equal protection standard which would appear to

be relevant to inquiry at the case at bar is set forth in

Reynolds v. Simms, 377 U.S, 533 (1964). This criteria

has been expanded by recent decisions which seem to re-

quire that there exist not only a rational basis for the dis-

tinction, but also a compelling state interest. Kramer!

Union Free School District, 395 U.S, 621 (1969), Cipriam

v. City of Houma, 355 U. S. 701 (1969), City of Phoenix

v. Kolodziejski, 399 U. S. 204 (1970). While these cases

did consider the right of enfranchisement, they did not

touch upon the validity of residency nor age voting re-

quirements.

COPY BO

-23-

A. The denial of the right to vote to eighteen

year olds is not a denial of equal protection.

The State of Idaho submits that there is a rational

basis for denial of the voting privilege to eighteen year olds

and that this classification does promote legitimate state

interests which are sufficient to justify these restrictions.

The following considerations lead to this conclusion.

The age requirement does not distinguish on the

basis of race, creed or religion. It is, rather, a rational

line of demarcation which has historically served as the

basis for enfranchising citizens of the United States. In-

deed, a statute which restricts the right to vote to individ-

uals who are twenty-one years of age and older has the

effect of denying the right to vote to all individuals who do

not meet that certain qualification. This denial is not ar-

bitrarily based on any characteristic other than age. That

is, it does not have that fatal defect that was presented be-

fore the court in Katzenbach x. Morgan, supra, wherein

the literacy test could have discriminated against certain

ethnic groups who did not have sufficient knowledge of the

English language.

There is, then, a distinct group of individuals in any

given state who are classified as not being able to vote, but

this classification is not again based upon race, ethnic

origin, creed or sex. Moreover, an individual in a given

state has the ability and theoretical prospect of reaching

the age of twenty-one. Thus, the state asserts that the

oN CLOSE IN CENTER

-24-

classification of voters on the basis of age is a rational

classification. ~—

The compelling state interest is also present in age

classification. The individual states have a compelling

interest to be able to continue to set forth the Standards by

which citizens of their state are entitled to vote. Thigis

a vital element of states’ rights and must not be reling

Consequently, this state right in and of itself constitutes,

compelling state interest. The usurpation of this power

by National Congress pursuant to legislation is a severe

infringement upon this state interest and right. The abro-

gation of the individual state restriction absent a Constity-

tion: Amendment is necessarily harmful to this state interes

There are additional state interests which bear ref-

erence. It is important to this state to maintain an elec-

torate which is sufficiently educated and informed to vote

intelligently on candidates and issues. It certainly may be

observed that an individual who is twenty-one years of ag:

is generally speaking more mature and capable of making

a reasoned choice than an individual eighteen years of age.

The state maintains that the restriction on the right

of enfranchise ment to those twenty-one years of age and

older is a rational classification and serves a compelling

state interest. Thus, such a qualification is not a denial

of the equal protection required by the Fourteenth Ament-

ment,

COPY BO.

ee

-25-

. The residency and absentee voter requirements

ound in Idaho statutes and constitutional law do not con-

titute 2 denial of equal protection.

The residency and absentee voting qualifications

n the State of Idaho are found in Article 6, Section 2 of

he Idaho Constitution and Chapter 3, Title 34, Idaho

de. The statutory measures are more fully set forth

n the po tion of this brief concerning relevant and con-

titutional statutory provisions, These provisions basic-

lly require a certain prescribed minimum period of res-

dency in order to exercise the right to vote. In addition,

hese provisions set forth standards for non-resident

voting.

The Idaho residency requirements relating to dur-

ion of residency and the absentee voter provisions do

sot discriminate against any voter on the basis of race,

olor, creed or religion. There is no method by which

voter could be disqualified pursuant to this provision

rovided herésided within the state for the requisite

eriod of time and complied with the absentee voter re-

uirements.

Thus, there is no identifiable group which is sought

o be discriminated against by the application of these

residency and absentee voting requirements. That is,

ill individuals are treated equally under the law. Addi-

ionally, there is a rational basis for these restrictions

which is based upon durational status in the State of Idaho.

O CLOSE IN CENTER

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Consequently, there is no invidious discrimination being

plied to a distinct section of the population. Carrington y,

Rash, supra.

The durational residency and absentee voter reqii.

ments found in Idaho law support a compelling state

These are: (1) protection against fraud and (2) administre-

tion. The State of Idaho has an interest in precluding tle

dilution of the votes of its citizens for the presidential ay

vice-presidential officers by the importation of non or fle-

titious state residents into the state. This interest exten,

the dilution of the individual county residents“ votes by ay

such importation from one county into another.

The residency and absentee voting provisions have

regarded as preventing this type of fraud. These residencs

requirements would, it is submitted, prevent such fraud,

Finally, the State of Idaho has a compelling interest

maintain the residency and absenteeism voting

as directly set forth by the Idaho Constitution and the

panying statutory provisions in that they aid ease of admir-

instration. The state asserts that residency and absentee

voter requirements for presidential and vice-presidentia

elections which differ from those pertaining to other state

elections would create an efficiency gap in the over all elec

tive process. The standards have been established and

to the entire voting process within the state. Thus, to

a change in their standards for presidential and vice-pres-

idential elections would require the state to increase the

staff necessary to supervise and administer the election.

COPY BO

-27-

The State of Idaho, then, asserts that the durational

residency requirements and absentee voting requirements

do not constitute an invidious or irrational dis ori mination

against any group of voters and serve a compelling state

interest. Consequently, it is asserted that these voting

qualification standards do not constitute a denial of equal

protection which is prohibited by the Fourteenth Amend-

ment.

III.

THERE IS NO POWER ENUMERATED IN THE UNITED

STATES CONSTITUTION WHICH VESTS IN CONGRESS

THE RIGHT TO LEGISLATE IN CONTRAVENTION OF

STATE LAWS WHICH PRESCRIBE VOTER QUALIFICA:

LAWS WHICH P BE VOTER QUALIFICA-

TIONS BASED UPON RESIDENCY AND AGE,

The Doctrine of Enumerated Powers has been

‘referred to above and is, as indicated, based upon the

Tenth Amendment of the United States Constitution. This

‘octrine is given further validity by decisional law.

Martin v. Hunters Lessee, 4 U.S, (1 Wheat) 304 (1816),

initially recognized the doctrine and in referring to the

Tenth Amendment stated at page 325:

„. Onthe other hand, it is perfectly

clear that the sovereign powers vested in

| state governments, by their respective

| constitutions , remained unaltered and un-

| impaired, except so far as they were grant-

| ed to the government of the United States."

See also Carter v. Carter Coal Company, 298

U.S. 238 (1936); Kansas v. Colorado, 206 U. S. 46

UND CLOSE IN CENTER

-28- N

(1907), Givens v. Ogden, 22 U.S, (9 Wheat) 1 (1824)

McCulloch x. Maryland, 17 U.S, (4 Wheat) 301 (1820)

Thus, it is clear that Congress must be able to relying

*

a specific enumerated power which authorizes the pas;

of the legislation in question.

The Plaintiff in its brief seeks to rely upon Section;

of the Fourteenth Amendment for this enumerated power

enact Titles II & III of the Act. This section provides.

"Congress shall have power to enforce, by

appropriate legislation, the provisions of

this article."

.

A determination must now be made whether the h-

lation in question is appropriate within the meaning of tk

Fourteenth Amendment. Plaintiff, in support of this leg

islation, relies upon the Katzenbach x. Morgan, 384 U. 8.

642 (1966), a decision upholding a congressional enact-

ment which struck down a certain type of literacy test,

This court in the Morgan decision recognized that

Congress could legislate in order to prohibit a state pra-

tice that was not in and of itself repugnant to the requir-

ments of the Fourteenth Amendment if the elimination et

this practice was necessary to prevent resulting prac-

tices which did, in fact, violate the Fourteenth Ame

Katzenbach . Morgan at pages 650-653. The court in

doing equated the fifth section of the Fourteenth Amen#-

ment with the "necessary and proper clause" of Article

1, Section 8 of the United States Constitution. 1

COPY BO

22

In reaching this oonolis ion, the court relied upon

cisional law construing the ue s Sary and proper clause"

not requiring Congress to d other than perceive "a

is upon which Congress might resolve a conflict as it

u. Katzenbach V. McClung, 379 U. s. 294 (1964); Heart

Atlanta Motel, Inc. X. United States, 379 U. S. 241 (1964).

dus, the court equated Se ot ion 5, with the "necessary and

oder clause“ insofar as abrogating acts which, although

ot violative in of themselves of the Fourteenth Amendment,

ere propagating conditions which were, in fact, violative

fthatamendment. The court reasoned it could do this

nd look no further provided ample basis was found in the

scord of the legislative proceedings for the congressional

egislation which was the subject of the Morgan, supra,

ecision.

The State of Idaho has argued that the state law in

ssue is not violative of equal protection requirements.

lus, if this argument found in Katzenbiach v. Morgan,

is to be relied upon as the authority for congressional

ion on the part of the state which could result in invidious

iscrimination based upon rac, creed, color or sex.

The state submits tha, nothing in the Congression-

tecord attendant to the pass age of Titles II and III of the

IND CLOCE erer

-30-

act would support a finding that the state law Sought to be

superceded resulted in an invidious discrimination bag

upon race, color, creed or ‘eo In fact, the record dis-

closes contrary testimony. * Indeed, the record dis

nothing more insofar as the voting age requirement ote:

than the fact that eighteen year olds are required to fia

wars, may be tried as adults for orimes, take on the

responSibility of marriage and in some states drink I

Thus, the State of Idaho asserts that the rationals d

the Katzenbach x. Morgan, Ns, decision may not be

relied upon to determine that Congress has the power pr.

suant to Section 5 of the Fourteenth Amendment to 80 leg:

islate. This, again, is due to the fact that Congress

could not have found from testimony in the Congressions

proceeding prior to the passage of Titles II and III of th

Act that the Idaho law in question resulted in discrimin-

tion based on race, sex, color or creed. 0

The State of Idaho argues that the Congressional Re-

cord does not disclose "a basis upon which Congress migi

resolve a conflict as it did“. This court, then, must

this determination as to whether there is an actual denial

of equal protection resulting from the Idaho law at issue.

To do otherwise would clearly result in a usurpation of

the judicial function by Congress. Marbury v. Madison,

5 U. S. 137 (1803). The State of Idaho concludes that

4. 116 Cong. Rec. §3513 (daily ed. March 11, 1970)

5. 116 Cong. Rec. §3057, §3060-63 (daily ed. March ö,

6. 116 Cong. Rec., supra.

COPY BO

-31-

dere is no finding by Congress and no basis in fact for

stermining that the Idaho requirements result in a denial

fequal protection, Thus, the State maintains that the

supra, decision does not apply to the case at bar.

The State, then, would argue that the fifth Section

of the Fourteenth Amendment may not for the purposes

this legislation, Squated within the necessary and

proper clause" which enables Congress to legislate in

srtain instances. Consequently, Congress may not rely

u this provision as an “enumerated power" or author-

ization to so legislate. The legislation, then, does not

have constitutional authorization and should be held un-

constitutional.

CONCLUSION

Titles II and III of the Voting Rights Act Amend-

ment of 1970 are contrary to the express provisions of

the United States Constitution, decisions of this court, and

the historical basis upon which this nation was founded.

Congress has acted entirely without constitutional authori-

zation and the provisions so enacted must be held uncon-

stitutional.

Khost 2 submitted

ax JA, ia

ROBERT M, ROBSON

Attorney General

State of Idaho

No CLOSE IN CENTER

-32-

PROOF OF SERVICE

I, Robert M. Robson, Attorney General of Idaho,

„ hereby certify that

on the day of Er. 1970 I served the foregoing

Brief for Defendant upon the Plaintiff by de

a copy in the United States Mail, postage prepaid, and aj.

dressed to Honorable John N. Mitchell, Attorney Generel

of the United States, Department of Justice, Tenth and

Constitution Avenue, Washington, D. C. 20530. Ais

K ellos. e

ROBERT M. ROBSON...

.

COPY BOL

-33-

APPENDIX

TITLE 0 -- SUPPLEMENTAL PROVISIONS

"Application of Prohibition to other states:

"Sec, 201. (a) Prior to August 6, 1975, no

citizen shall be denied, because of his failure to comply

with any test or device, the right to vote in any Federal,

State, or local election conducted in any State or political

subdivision of a State as to which the provisions of sec-

tion 4 (a) of this Act are not in effect by reason of determ-

inations made under section 4 (b) of this Act.

„ p) As used in this section, the term ‘test or

device' means any requirement that a person as a prereq-

uisite for voting or registration for voting (1) demonstrate

the ability to read, write, understand, or interpret any

matter, (2) demonstrate any educational achievement or

his knowledge of any particular subject, (3) possess good

moral character, or (4) prove his qualifications by the

voucher of registered voters or members of any other

class.

"Residence Requirements for Voting

"Sec, 202. (a) The Congress hereby finds that

the imposition and application of the durational residency

requirement as a precondition to voting for the offices of

President and Vice President, and the lack of sufficient

CLINE CROCE tt CE weer Pp

-34-

opportunities for absentee registration and absentee hy.

loting in presidential elections--

" (1) denies or abridges the inherent o

stitutional right of citizens to vote for their

President and Vice President;

" (2) denies or abridges the inherent

constitutional right of citizens to enjoy their

free movement across State lines;

" (3) denies or abridges the privileges |

and immunities guaranteed to the citizens of

each State under article IV, section 2 clause

1, of the Constitution;

„» (4) in some instances has the imper-

missible purpose or effect of denying citizens

the right to vote for such officers because

of the way they may vote;

" (5) has the effect of denying to

citizens the equality of civil rights, and

due process and equal protection of the

laws that are guaranteed to them under

the fourteenth amendment; and

" (6) does not bear a reasonable

relationship to any compelling State in-

terest in the conduct of presidential elec-

tions.

Pe i mar re re

-35-

" (b) Upon the basis of these findings, Congress

declares that in order to secure and protect the above-

stated rights of citizens under the Constitution, to enable

citizens to better obtain the enjoyment of such rights,

and to enforce the guarantees of the fourteenth amendment,

it is necessary (1) to completely abolish the durational

¥ residency requirement as a precondition to voting for

President and Vice President, and (2) to establish

nationwide, uniform standards relative to absentee reg-

istration and absentee balloting in presidential elections.

„e) No citizen of the United States who is other-

wise qualified to vote in any election for President and

Vice President shall be denied the right to vote for elec-

tors for President and Vice President, or for President

and Vice President, in such election because of the fail-

ure of such citizen to comply with any durational residency

requirement of such State or political subdivision; nor

shall any citizen of the United States be denied the right

to vote for electors for President and Vice President, or

for President and Vice President, in such election be-

cause of the failure of such citizen to be physically pre-

sent in such State or political subdivision at the time of

such election, if such citizen shall have complied with

the requirements prescribed by the law of such State or

political subdivision providing for the casting of absentee

ballots in such election.

„(d) For the purposes of this section, each State

-36-

shall provide by law for the registration or other Means

of qualification of all duly qualified residents of such N

who apply, not later than thirty days immediately prior N

any presidential election, for registration or qualificatia

to vote for the choice of electors for President and %

President or for President and Vioe President in suck

election; and each State shall provide by law for the Cast.

ing of absentee ballots for the choice of electors for p

ident and Vice President, or for President and Vice Py

ident, by all duly qualified residents of such State who

may be absent from their election district or unit in gud

State on the day such election is held and who have appli

therefor not later than seven days immediately prior to

such election and have returned such ballots to the ap-

propriate election official of such State not later than th

time of closing of the polls in such State on the day of

such election.

" (e) If any citizen of the United States who is other

wise qualified to vote in any State or political subdivisin

in any election for President and Vice President has be-

gun residence in such State or political subdivision after

the thirtieth day next preceding such election and, for

that reason, does not satisfy the registration require-

ments of such State or political subdivision he shall be

allowed to vote for the choice of electors for President

and Vice President, or for President and Vice President,

in such election (1) in person in the State or political

subdivision in which he resided immediately prior to his

-37-

»moval if he had satisfied, as of the date of his change

f residence, the requirements to vote in that State or

litical subdivision, or (2) by absentee ballot in the

sate or political subdivision in which he resided immed-

ely prior to his removal if he satisfies, but for his

»nresident status and the reason for his absence, the

requirements for absentee voting in that State or political

subdivision.

" (f) No citizen of the United States who is other-

wise qualified to vote by absentee ballot in any State or

litical subdivision in any election for President and

ice President shall be denied the right to vote for the

hoice of electors for President and Vice President, or

for President and Vice President, in such election because

of any requirement of a registration that does not include

a provision for absentee registration.

" (g) Nothing in this section shall prevent any

State or political subdivision from adopting less restric-

ive voting practices than those that are prescribed herein.

„n) The term 'State' as used in this section in-

cludes each of the several States and the District of Col-

umbia.

0) The provisions of section 11 (c) shall apply

o false registration, and other fraudulent acts and con-

spiracies, committed under this section.

-38-

"JUDICIAL RELIEF"

"Sec. 203. Whenever the Attorney General hag rm.

son to believe that a State or political subdivision (a) hag

enacted or is seeking to administer any test or devioe ag

a prerequisite to voting in violation of the prohibition

contained in section 201, or (b) undertakes to deny the

right to vote in any election in violation of section 202,

he may institute for the United States, or in the name of

the United States, an action in a district court of the [pj

States, in accordance with sections 1391 through 1393 of

title 28, United States Code, for a restraining order, a

preliminary or permanent injunction, or such other order

as he deems appropriate. An action under this subsection

shall be heard and determined by a court of three judges ;

accordance with the provisions of section 2282 of title

28 of the United States Code and any appeal shall be to

the Supreme Court,

" Penalty"

"Sec, 204. Whoever shall deprive or attempt to

deprive any person of any right secured by section 201

or 202 of this title shall be fined not more than $5,000,

or imprisoned not more than five years, or both.

"Separability"

Sec. 205. If any provision of this Act or the appli-

cation of any provision thereof to any person or circum-

stance is judicially determined to be invalid, the remainé

COPY BO.

-39-

of this Act or the application of such provision to other

persons or circumstances shall not be affected by such

determination.

"Title II REDUCING VOTING AGE TO EIGHT-

TEEN IN FEDERAL, STATE, AND LOCAL ELECTIONS

"Declaration and Findings"

"gec, 301. (q) The Congress finds and declares

that the imposition and application of the requirement

that a citizen be twenty-one years of age as a precondi-

tion to voting in any primary or in any election--

" (1) denies and abridges the inherent

constitutional rights of citizens eighteen

years of age but not yet twenty-one years

of age to vote -a particularly unfair treat-

ment of such citizens in view of the national

defense responsibilities imposed upon such

citizens;

" (2) has the effect of denying to cit-

izens 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 re-

lationship to any compelling State interest.

" (b) In order to secure the consti-

—

IND CLOSE IM CENTER

-40-

tutional rights set forth in subsection (a), tie

Congress declares that it is necessary to pro-

hibit the denial of the right to vote to citizens

of the United States eighteen years of age or

older.

"Prohibition"

"Sec, 302. Except as required by the Cons.

tution, no citizen of the United States who is otherwige

qualified to vote in any State or political subdivision in

any primary or in any election shall be denied the right

to vote in any such primary or election on account of ag

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 Attorny

General is authorized and directed to institute in the nam

of the United States such actions against States or politic

subdivisions, including actions for injunctive relief, as

he may determine to be necessary to implement the pr

poses 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 cour

of three judges in accordance with the provisions of

COPY BOU

-41-

section 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

cguse the case to be in every way expedited.

" ) Whoever shall deny or attempt to deny any

person 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’ includes the District of Columbia.

"Effective Date"

"Sec. 305. The provisions of title II shall

take effect with respect to any primary or election held

oor after January 1, 1971.“ (Approved June 22, 1970).

ND CLOSE IN CENTER