Amicus Curiae Brief — Oregon v. Mitchell

Supreme Court brief1970

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TABLE OF CONTENTS

y STATEMENT

‘Sr, quTE INVOLVED AND THE INTEREST OF THE COMMON-

H OF VIRGINIA

or ARGUMENT

ti e Voting Rights Act Amendments of 1970 Are Unconstitu-

b _. tiona ]

- (A) The Fourteenth Amendment

~) Judicial Decisions

» (C) The Tests ‘

: (1) Age and Residency

(2) Absentee Registration and Balloting

CLUSION

ATE OF SERVICE

TABLE OF CITATIONS

mson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.ed. 1903

(1947) ..14, 17

ery. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.ed. 2d 663 (1962) 24

hy. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.ed.2d 822

(1964) 14

fington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.ed.2d 675

965) 9, 13, 22, 23

—_——$ $$ ——_

Pay

Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1997, 3

L.ed.2d 647 (1969) 8, 12, 2,

City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) ....& 23

Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.ed. 637 (1890) 2

Dreuding v. Devlin, 380 U.S. 125, 85 S.Ct. 807, 13 L.ed.24 799

(1965) 22, B, 33

Evans v. Cornman, 398 U.S. 419 (1970) 2.22... 9, 13, 23, 2%

Fields v. United States, 228 F.2d 544 (4th Cir. 1955), cert. den,

350 U.S. 982, 100 L.ed. 850, 76 S.Ct. 468 (1956) ......

Gibbons v. Ogden, 9 Wheat 1, 22 U.S. 1, 6 L.ed. 23 10, 37

Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.ed.2d 821 (1963) 4

Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 Lied. 1340

(1915) 22,2

Harper v. Virginia State Board of Elections, 383 U.S. 663, %

S.Ct. 1079, 16 L.ed.2d 169 (1966) 8, 12, 13, 24

Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.ed.2d

828 (1966) 13, 29

Kotch v. River Port Pilot Commissioners, 330 U.S. 552, 91 Led.

1093, 67 S.Ct. 910 (1947) 2

Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct

1886, 23 L.ed.2d 583 (1969) ........ 8, 13, 22, 24, 25, 29, 0, 3

Lassiter v. Northampton County Board of Elections, 360 US.

45, 79 S.Ct. 985, 3 L.ed.2d 1072 (1959) 13, 2

McCullough v. Maryland, 4 Wheat 316, 17 U.S. 316, 4 Led. 579

10, 7

McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.ed. 869 (1892) 2

Newberry v. United States, 256 U.S. 232, 65 L.ed. 913 (1921) . 26

Phoenix v. Kolodziejski, 399 U.S. 204 (1970) <cecsocssccue 8, 23, a

Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.ed. 817 (1904) 2

Prichard v. United States, 181 F.2d 326 (6th Cir. 1950) ........... 36

vy. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.ed.2d 506

(1964) 9, 24

State of Oregon v. John N. Mitchell, Attorney General of the

United States (No. 43 Original) 2

State of Texas v. John N. Mitchell, Attorney General of the United

States (No. 44 Original) 2

Ullman v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.ed.

511 (1956) 14

United States v. Classic, 315 U.S. 299, 85 L.ed. 1368 (1941) ... 26

United States v. Cruikshank, 92 U.S. 542, 23 L.ed. 588 (1876)

10, 26

United States of America v. State of Arizona (No. 46 Original) 2

United States v. Weston, 417 F.2d 181 (4th Cir. 1969), cert. den.

396 U.S. 1062 (1970) .. 35

Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.ed.2d 481

a a 24

Constitution and Statutes

United States Constitution :

Article I:

Section 2 ... 8, 11, 25

Section 4 25, 26

Article IT:

8, 11, 25

8, 11

pies 8, 9, 11, 12, 13, 14, 15, 16, 17,

19, 20, 21, 23, 25, 27, 28, 31, 38

23, 24, 28, 31, 32

9, 12, 20, 21, 25, 27, 28

8, 11, 25, 26, 28

Page

Nineteenth Amendment 9, 12, 21, 25,

Twenty-fourth Amendment 9, 12, 21, 22, 25

Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. §§ 1973

1973(p)

42 U.S.C. § 1973(c) eos 7

Voting Rights Act Amendments of 1970, 84 Stat. 314, et seq,

Pub. L, 91-285 1, 2, 13, 9

Title II, Section 202 2, 7, 11, 34, 35,37

Title III Sections 301 and 302 2, 5, 6,7

Virginia [Present] Constitution :

Article II, Section 18 6, 7, App. 1

Article II, Section 20 7, 34, App. 1

Article XVII, Section 1 u

Virginia [Proposed Revision] Constitution :

Article II, Section 1, Chapter 763 of the 1970 Acts of Assembly

6, 7, App.2

Article II, Section 2 7, 34, App.3

Article IV, Section 4 2m 4

Virginia, 1970 Acts of General Assembly, Chapter 462, recodifying

Title 24 of Code of Virginia 7

Virginia Code (1950), as amended :

Section 24-17 6, App.4

Title 24.1, Article 7 7

Section 24.1-41 6, 7, App.5

Section 24.1-47 .. 7, 34, App.5

Section 24.1-227 7, 35, App.6

7, 35, App.6

7, 35, App.9

7, 35, App. 13

Congressional Material

Page

Civil Rights Bill in 1866 ace 15

39th Congress, First Session 2089:

39 (1) Globe 2459 15

39 (1) Globe 2462 16

39 (1) Globe 2510 17

39 (1) Globe 2542 17

39 (1) Globe 2544, 2545 17

39 (1) Globe 2766 .........-.-:0cs-sneeene 18

39 (1) Globe 2767 20

39 (1) Globe 3039 18, 20

39 (1) Globe 3042 20

39 (1) Globe 3434, 3438 .................. 20

&th Congress, Second Session 5:

H. R. Rep. No. 1821 (1962) ...... , me 22

Miscellaneous

Rules of the United States Supreme Court, Rule 40 0.0... 6

Rules of the United States Supreme Court, Rule 42 -.W............... 2

The Supreme Court, 1965 Term, 80:91 Harv. L. Rev. 171 n. 10

(1966) 29

Limitations on the Voting Franchise, etc., 143 Utah L. Rev. 150

(1970) 31

Truth and Fiction—Fourteenth Amendment, 16 N.Y.U. Law

Quarterly, 35 (1938-1939) 17

Voting Rights, 3 Race Rel. L. R. 371, 372 (1958) ......-....-c-ce-oese-e: 28

IN THE

Supreme Court of the United States

October Term, 1970

No. 47, Original

UNITED STATES OF AMERICA,

Plaintiff,

STATE OF IDAHO,

Defendant.

BRIEF ON BEHALF OF THE COMMONWEALTH OF

VIRGINIA—AMICUS CURIAE

PRELIMINARY STATEMENT

In August 1970 the United States of America by its

Attorney General and Solicitor General caused to be lodged

in this Court a Motion for leave to file a Complaint against

the State of Idaho seeking to enjoin the State of Idaho

from enforcing provisions of its Constitution and statutes

which allegedly were contrary to and inconsistent with the

Voting Rights Act of 1965. 79 Stat. 437, 4Z U.S.C. §§

1973-1973 (p), as amended by the Voting Rights Act

Amendments of 1970, 84 Stat. 314, et seq., Pub. L. 91-285.

The above mentioned Motion was subsequently granted,

scheduling the filing of briefs by the respective parties and

setting the cause for oral argument on October 19, 1970,

In accordance with Rule 42, of the Rules of the United

States Supreme Court, the instant Brief on Behalf of th

Commonwealth of Virginia, Amicus Curiae, is filed, within

the time allowed for the filing of the brief of the party sup.

ported, defendant State of Idaho.

THE STATUTE INVOLVED AND THE INTEREST OF THE

COMMONWEALTH OF VIRGINIA

Under consideration in this litigation as well as the liti-

gation under style of State of Texas v. John N. Mitchell,

Attorney General of the United States (No. 44 Original),

State of Oregon v. John N. Mitchell, Attorney General of

the United States (No. 43 Original) ; and United States of

America v. State of Arizona (No. 46 Original), is the

constitutionality of the Voting Rights Act Amendments of

1970, Public Law 91-285. Pertinent to a consideration of

the positions taken by the Commonwealth of Virginia in

the instant brief amicus curiae are the provisions of Title

II, § 202. and Title III, §§ 301 and 302 of such Amend-

ments which prescribe:

“TITLE [I—SupPLEMENTAL PROVISIONS

“RESIDENCE REQUIREMENTS FOR VOTING

“Src. 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 opportunities for absentee registration and —

absentee balloting in presidential elections—

“(1) denies or abridges the inherent constitu-

tional right of citizens to vote for their President

and Vice President;

“(2) denies or abridges the inherent constitu-

tional right of citizens to enjoy their free movement

across State lines ;

—_—

“(3) denies or abridges the privileges and im-

munities guaranteed to the citizens of each State

under article IV, section 2, clause 1, of the Constitu-

tion ;

“(4) in some instances has the impermissible pur-

pose or effect of denying citizens the right to vote

for suchi 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 interest in the conduct of presi-

dential elections.

“(b) Upon the basis of these findings, Congress de-

clares that in order to secure and protect the above-

stated rights of citizens under the Constitution, to en-

able 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 registration and absentee balloting in presi-

dential elections.

“(c) 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 te vote for

electors for President and Vice President, or for

President and Vice President, in such election because

of the failure of such citizen to comply with any dura-

tional 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 Fresident, or for President and Vice Presi-

dent, in such election because of the failure of such

citizen to be physically present in such State or politi-

cal subdivision at the time of such election, if citizen

shall have complied with the requirements prescribe

by the law of such State or political subdivision pro.

viding for the casting of absentee ballots in such ele.

tion.

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

shall provide by law for the registration or other

means of qualification of all duly qualified residents of

such State who apply, not later than thirty days im.

mediately prior to any presidential election, for regis.

tration or qualification to vote for the choice of electors

for President and Vice President or for President and

Vice President in such election; and each State shall

provide by law for the casting of absentee ballots for

the choice of electors for President and Vice President,

or for President and Vice President, by all duly quali-

fied residents of such State who may be absent from

their election district or unit in such State on the day

such election is held and who have applied therefor not

later than seven days immediately prior to such election

and have returned such ballots to the appropriate elec-

tion official of such State not later than the 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

otherwise qualified to vote in any State or political sub-

division in any election for President and Vice Presi-

dent has begun residence in such State or political sub-

division after the thirtieth day next preceding such

election and, for that reason, does not satisfy the regis-

tration requirements of such State or political subdivi-

sion he shall be allowed to vote for the choice of elec-

tors 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 removal if he had satisfied, as

of the date of his change of residence, the requirements

to vote in that State or political subdivision, or (2) by

absentee ballot in the State or political subdivision in

which he resided immediately prior to his removal if

he satisfies, but for his nonresident status and the rea-

son 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

political subdivision in any election for President and

Vice President shall be denied the right to vote for the

choice of electors for President and Vice President, or

for President and Vice President, in such election be-

cause of any requirement of 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 restrictive

voting practices than those that are prescribed herein.

“(h) The term ‘State’ as used in this section in-

cludes each of the several States and the District of

Columbia.

“(i) The provisions of section 11(c) shall apply to

false registration, and other fraudulent acts and con-

spiracies, committed under this section.”

“Titte II]—ReEpucinc Votinc AGE To EIGHTEEN

In FEDERAL, STATE, AND Locat ELECTIONS

“DECLARATION AND FINDINGS

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

the imposition and application of the requirement that

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

to voting in any primary or in any election—

“(1) denies and abridges the inherent constitu-

tional rights of citizens eighteen years of age but not

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

unfair treatment of such citizens in view of the na-

tional defense responsibilities imposed upon such

citizens;

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

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

due process and equal protection of the laws that are

guaranteed to them under the fourteenth amend.

ment of the Constitution ; and

“(3) does not bear a reasonable relationship to

any compelling State interest.

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

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

is necessary to prohibit the denial of the right to vote

to citizens of the United States eighteen years of age

or over.

“PROHIBITION

“Sec. 302. Except as required by the Constitution,

no citizen of the Untied States who is otherwise quali-

fied to vote in any State or political subdivision in

primary or in any election shall be denied the right to

vote in any such primary or election on account of age

if such citizen is eighteen years of age or older.”

The interest of the Commonwealth of Virginia in this

litigation arises from the circumstances that both the pres-

ent Constitution of Virginia (Article II, § 18)* and the

proposed revision (Article II, § 1), Chapter 763 of the

1970 Acts of Assembly, grant the right to vote only to

those qualified citizens who have attained the age of twenty-

one (21) years next preceding the election in which they

offer to vote. See also § 24-17 of the Code of Virginia

(1950), as amended, and § 24.1-41 of the Code of Virginia

effective December 1, 1970, and approved by the Attorney

General of the United States in accordance with the pro-

1 The pertinent text of all Constitutional and statutory provisions of

the Commonwealth of Virginia to which the bagar Bee oo

Amendments are repugnant and antagonistic are set in an

Appendix hereto in accordance with the provisions of Rule 40 of the

Rules of the Supreme Court of the United States.

yisions of 42 U.S.C. § 1973(c). The Voting Rights Act

Amendments, §§ 301 and 302, have usurped the right of the

Commonwealth of Virginia to determine the age qualifica-

tions of her voters.

Chapter 462 of the 1970 Acts of the General Assembly

of Virginia, recodified Title 24 of the Code of Virginia

(1950), as amended ; said recodification to become effective

December 1, 1970. Title 24.1, Article 7, of the Virginia

Code provides in all elections for absentee ballots to be

cast by, among others :

“(1) Any duly registered person who will, in the

regular and orderly course of his business, profession,

or occupation or while on vacation, be absent on the

day of election from the — or city in which he is

entitled to vote; ...” (§ 24.1-227.)

Such individuals must apply in person for an absentee bal-

lot not less than five nor more than forty days prior to the

election in which the applicant offers to vote and must cast

his absentee ballot in person before the general registrar

or secretary of the electoral board not less than five days

prior to the election in which he offers to vote. See §§ 24.1-

227, 24.1-228, 24.1-229, 24.1-232 of the Code of Virginia

(1950), as amended. Title II, § 202 of the Voting Rights

Act Amendments thwarts the intent of the laws of the

Commonwealth of Virginia to provide a more effective

and efficient absentee voting practice free from fraud.

The Voting Rights Act Amendments, § 202, is addition-

ally in conflict with durational residency requirements of

both the present (Article II, § 18) and proposed Virginia

Constitution (Article II, § 1) and registration requirements

of both the present (Article II, § 20) and proposed Virginia

Constitution (Article II, §2). (See also §§ 24.1-41, 24.1-

47.)

As such the pertinent provisions of the Act of immediate

concern, exceed the powers vested in Congress by the Foyr.

teenth Amendment and unconstitutionally deprive the Com.

monwealth of Virginia of the right to prescribe traditional

qualifications—residence requirements, age, absentee

tration and ballot provisions—for exercise of the elective

franchise, which right is secured to the Commonwealth by

the provisions of Article I, §2, Article II, §1, and the

Tenth and Seventeenth Amendments of the Constitution of

the United States.

SUMMARY OF ARGUMENT

Congress’ reliance upon the Fourteenth Amendment as

justification for its actions is ill founded. Such Amendment

was deliberately written in terms that do not relate to the

aspects of suffrage here under consideration. This was ex-

plicitly declared in Congress and has been corroborated by

a series of further amendments which have specifically

changed the Constitution in every instance of a change in

suffrage qualifications—first race, then sex, and lastly poll

tax in federal elections. The sovereign power of the States

to determine such suffrage qualifications as age and resi-

dency has uniformly been recognized by this Court. Such

power is recognized in the Constitution as belonging to the

States.

Recent decisions have not undermined this doctrine but

have merely determined that requirements: must be rele-

vant to the purpose of voter qualifications, Harper v. Va.

Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 Lied.

2d 169 (1966) ; Cipriano v. City of Houma, 395 U.S. 701,89

S.Ct. 1897, 23 L.ed.2d 647 (1969) ; Kramer v. Union Free

School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.ed.2d

583 (1969) ; Phoenix v. Kolodziejski, 399 U.S. 204 (1970);

must not invidiously discriminate by barring in perpetuity

otherwise qualified individuals, Carrington v. Rash, 380

US. 89, 85 S.Ct. 775, 13 L.ed.2d 675 (1965); Evans v.

Cornman, 398 U.S. 419 (1970), and must allow a voter

who has cast his ballot to have it fairly counted. Reynolds v.

Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.ed. 506 (1964).

Consequently, the power of Congress is subject to the

limitations of the Constitution. The means properly avail-

able for the exercise of Congressional power are those con-

sistent with the provisions of the Fifteenth, Nineteenth and

Twenty-fourth Amendments and the Fourteenth Amend-

ment, denial of equal protection of the laws, to strike down

a requirement so arbitrary, invidious or irrational as to

constitute a denial thereof. Conversely, the power of the

States in limiting the franchise is subject to the same four

provisions. However, age and residency requirements are

net arbitrary and invidious nor have notions changed to

the stage that age and residency are wholly irrelevant to

voter qualifications. Such type of restrictions do, therefore,

meet the “compelling interest standards” laid down by this

Court.

Since the general type of restriction imposed is not viola-

tive of the Fourteenth Amendment, Congress cannot strike

it down. Whether the particular statutory means employed

to enforce the general type of restrictions is as efficient as

any alternative, [i.e., age twenty-one (21) rather than age

eighteen or age seventeen; one year residency rather than

six moriths or thirty days] is a matter solely within the

determinative power of the States, subject only to the limita-

tion that it is void if shown to be “irrational,” “irrelevant,”

“unreasonable,” “arbitrary,” or “invidious.” Twenty-one

years of age rather than eighteen years; one year’s residency

rather than six months’, cannot be said to be arbitrary.

Since age and residency requirements are left within the

power of the States and are neither arbitrary nor invidious,

the action of Congress is not appropriate, is not “consistent

with the letter and spirit of the Constitution” and is thys

unconstitutional and void. Gibbons v. Ogden, 9 Wheat 1,

22 U.S. 1, 6 L.ed. 23; McCullough v. Maryland, 4 Wheat

316, 17 U.S. 316, 4 L.ed. 579.

ARGUMENT

The Voting Rights Act Amendments Of 1970

Are Unconstitutional

As Mr. Justice Harlan made clear in his address dedicat.

ing the Bill of Rights Room in New York City on August

9, 1964, the framers of the Constitution :

“.. . staked their faith that liberty would prosper

in the new Nation not primarily upon declarations of

individual rights but upon the kind of government the

Union was to have. And they determined that in @

government of dwided powers lay the best promise for

realizing the free society it was their object to achieve.”

(Italics supplied. )

Further when one remembers—as this Court pointed out

in United States v. Cruikshank, 92 U.S. 542, 551, 23 LEd

588 (1876)—that :

“The government of the United States is one of

delegated powers alone, its authority is defined and

limited by the Constitution. All powers not granted to

it by that instrument are reserved to the States or

the people. No rights can be acquired under the Consti-

tution or laws of the United States, except such as the

government of the United States has the authority io

grant or secure. All that cannot be granted or secured

are left under the protection of the States.’ ”

it necessarily follows that Congress has no power to suspend

the voting qualifications—with respect to age, residency,

and the manner of casting a ballot—unless that power is

conferred upon Congress by the Fourteenth Amendment.”

That such authority is conferred upon Congress by the

Fourteenth Amendment is emphatically denied.

Article I, Section Z,° Article II, Section 1* of the Consti-

tution of the United States and the Seventeenth Amend-

ment’ provide that the States should set the requisite

qualifications of electors for the House of Representatives,

President and Vice President and Senate respectively, while

the Tenth Amendment® reserves to the States all powers

not conferred upon the Federal government.

“The question of the appropriate powers conferred upon Congress

the Fifteenth Amendment does not arise in the present brief. The

Gite States relies upon the Fifteenth Amendment only as justifica-

tion for the enactment of Title II, Section 201 which is a nationwide

suspension of literacy tests. Since Virginia presently has no literacy

test, the same being suspended by the 1965 — ights Act, the

question of their validity is not deemed relevant for the Common-

wealth’s purposes. The United States relies upon the powers invested

by the Fourteenth Amendment in justifying the validity of the age,

idency, and absentee registration and balloting provisions of §§ 202,

301 and 302, which of course are of material concern to the Com-

monwealth.”

§“The House of Representatives shall be composed of Members

chosen every second Year by the cae 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.”

*“Each State shall appoint, in such Manner as the islature

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: but no Senator or Representative, or Person holding

an Office of Trust or Profit under the United States, shall be ap-

pointed an Elector.”

*“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 shail have one vote. The electors in each State shall

have the —— requisite for electors of the most numerous

branch of the State legislatures.”

*“The powers not delegated to the United States by the Consti-

tution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”

;

’

‘

A review conclusively establishes that the right to pre

scribe the qualifications of electors is one constitutj

vested exclusively within the province of the individu

states, subject only to the limitations contained in the Fed.

eral Constitution forbidding qualifications based upon rage

(Fifteenth Amendment’), sex (Nineteenth Amendment)

and the payment of a poll tax in federal elections (Twenty

Fourth Amendment )* and invidious discriminations pl

teenth Amendment).

(A)

THE FouRTEENTH AMENDMENT

While this Court has decided numerous recent cases in

the general area of suffrage and elections, these have dealt

with the effect to be given ballots cast by voters who were

admittedly qualified (e.g., the reapportionment cases) ; the

striking down of invidious discriminations, some having no

relation to voter qualifications (e.g., poll tax Harper y.

Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct.

1079, 16 L.ed.2d 169 (1966) and more recently this

Court’s decision in Cipriano v. City of Houma, 395 US.

701, 89 S.Ct. 1897, 23 L.ed.2d 647 (1969) and others abso-

lutely prohibiting individuals, satisfying all general re

— from ever being permitted to qualify as voters

ight of citizens of the United States to vote shall not be

PRE idged by the United States or by any State on account

of race, color, or previous condition of servitude—”

8“The right of citizens of the United States to vote shall not be

os idged by the United States or by any State on account

sex.”

* “The right of citizens of the United States to vote in any primary

or other election for President or Vice President, for electors for

President or Vice President, or for Senator or Representative in

Congress, shall not be denied or abridged by the United States or any

State by reason of failure to pay any poll tax or other tax.”

(eg., Texas residency requirement in Carrington v. Rash,

390 U.S. 89, 85 S.Ct. 775, 13 L.ed.2d 675 (1965) ; see also

Evans v. Cornman, 398 U.S. 419.)

Under these circumstances, we submit that the legislative

history of the Fourteenth Amendment merits painstaking

consideration. For we are considering here not requirements

that were at one time related to voter qualification, the mod-

ern notions of which have changed, Harper v. Virginia

State Board of Elections, supra, nor requirements which

will forever bar an individual from the opportunity of par-

ticipation in an electoral process; but under consideration

are issues which have traditionally and still today do directly

affect voter qualifications generally required of States’ citi-

zens, which qualifications are conceded to be, and which this

Court has emphasized are, legitimate matters of State con-

cern—residency and age. See, Lassiter v. Northampton

County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3

L.ed.2d 1072 (1959) ; Kramer v. Union Free School Dis-

trict, 395 U.S. 621, 89 S.Ct. 1886, 23 L.ed.2d 583 (1969).

An appeal to history is especially appropriate in the in-

stant case when so vast and revolutionary a power is as-

serted by Congress as that contained in the Voting Rights

Act Amendments, with no suggestion of constitutional war-

rant for such action other than a reliance upon one case;

Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16

L.ed.2d 828 (1966).

Perhaps notions of what constitutes equal protection do

change. Harper v. Virginia Board of Elections, supra. This

Court in 1966 struck down Virginia’s poll tax as a prerequi-

site for voting, though historically such a requirement was a

common qualification. However, both historically and pres-

ently age and residency are considered valid requirements

having a direct relation to voter qualifications. Such qualifi-

cations being recognized as valid today, it becomes even

more appropos to determine how such requirements were

treated by the Framers of the Constitution and its Amend.

ments. See, Adamson v. California, 332 U.S. 46, 67 S.C

1672, 91 L.ed. 1903 (1947) ; Ullmann v. United States, 350

U.S. 422, 76 S.Ct. 497, 100 L.ed. 511 (1956) ; Bell v. Mary.

land, 378 U.S. 226, 84 S.Ct. 1814, 12 L.ed.2d 822 (1964),

In the Adamson case Mr. Justice Black pointed out:

“In construing other constitutional provisions, this

Court has almost uniformly followed the precept of

Ex Parte Bain, 121 U.S. 1, 12, 30 L.ed. 849, 853, 7

S.Ct. 781, that ‘it is never to be forgotten that in the

construction of the language of the Constitution . . .

as indeed in all other instances where construction be-

comes necessary, we are to place ourselves as nearly as

possible in the condition of the men who framed that

instrument.’ ”

Moreover, in the Ullmann case Mr. Justice Frankfurter

speaking for the Court declared “nothing new can be put

into the Constitution except through the amendatory proc-

ess. Nothing old can be taken out without the same process.”

Finally, Mr Justice Goldberg, in the case of Bell v. Mary-

land, supra, approached consideration of that situation with

the following admonition :

“Of course, our constitutional duty is ‘to construe not

to rewrite or amend the Constitution.’ Post, page 865

(dissenting opinion of Mr. Justice Black). Our sworn

duty to construe the Constitution requires, however,

that we read it to effectuate the intent and purposes of

the framers. We must, therefore, consider the history

and circumstances indicating what the Civil War

amendments were in fact designed to achieve.”

Though accusations of vagueness have been applied to

the Fourteenth Amendment it is conspicuously clear that

suffrage requirements were explicitly disavowed by the

framers as being beyond the purpose or reach of the Four-

teenth Amendment. Being so, it is not possible to now reach

the qualifications under attack (which are inherently in

the States’ powers) except by amending the Constitution.

The proceedings in Congress are quite illuminating.

Shortly after the passage of the Civil Rights Bill in 1866

Congress turned its attention to various proposals for con-

stitutional amendments intending to implement the con-

gressional plan of reconstruction for the South and which

ultimately became the Fourteenth Amendment. Representa-

tion in the House of Representatives occupied the minds of

many of the members and thus qualifications for voting

were discussed. Congressman George F. Miller, a Penn-

sylvania Republican, alluded to the fact that “there can be

no doubt that under the Constitution each State has the

right to regulate the qualifications of its own electors, and

Congress has no right to assume the authority.” 39 Cong.

First Sess. 2089 (hereinafter cited as “Globe” ). Congress-

man Thaddeus Stephens, Republican leader of the House of

Representatives, and member of the Joint Committee of

Fifteen on Reconstruction, opened the debate on the pro-

posed Fourteenth Amendment by saying:

“This proposition is not all that the committee de-

sired. It falls far short of my wishes, but it fulfills

my hopes. I believe it is all that can be obtained in the

present state of public opinion. Not only Congress but

the several states are to be consulted. Upon a careful

survey of the whole ground, we did not believe that

nineteen of the loyal states could be induced to ratify

any proposition more stringent than this.” 39(1)

Globe 2459.

However, he went on to state that he considered the second

section the most important in the Article and it was hoped

that this section would tend to bring about univers

suffrage. As he immediately stated :

“If any State should exclude any of her adult mak

citizens from the elective franchise, or abridge that

right, she shall forfeit her right to representation in

the same proportion. The effection of this provision

will be either to compel the States to grant universal

suffrage or so to shear them of their power as to

them forever in a hopeless minority in the national

frovernment, both legislative and executive.” Id.

President James A. Garfield, then the Republican Con-

gressman from Ohio, spoke in favor of the proposed

amendment and stated:

“Sir, I believe that the right to vote, if it be not

indeed one of the natural rights of all men, is so neces-

sary to the protection of their natural rights as to be

indispensable, and therefore equal to natural rights ....

And I profoundly regret that we have not been en-

abled to write and engrave it upon our institutions, and

embed it in the imperishable bulwarks of the Consti-

tution as a part of the fundamental law of the land.”

39(1) Globe 2462.

Congressman Miller concurred in the views of the House

that suffrage was not included in the Fourteenth Amend-

ment but he emphasized the importance of the second section

stating:

“Now, conceding to each State the right to regulate

the right of suffrage, they ought not to have a repre-

sentation from male citizens not less than twenty-one

years of age, white or black, who are deprived of the

exercise of suffrage. This amendment will settle the

complication in regard to suffrage and representation,

leaving each State to regulate that for itself, so that it

will be for it to decide whether or not it shall have

representation for all of its male citizens not less than

twenty-one years of age.” 39(1) Globe 2510.

In closing debates on the Fourteenth Amendment Repre-

sentative Bingham, “the Madison of the first section of the

Fourteenth Amendment,” Adamson v. California, supra,

332 U.S. 46, 74 (1947) noted that:

“The exercise of the elective franchise, though it be

one of the privileges of a citizen of the republic, is

exclusively under the control of the state.”

Moreover, in speaking specifically of the first section

Bingham declared :

“Allow me, Mr. Speaker, in passing to say that this

amendment takes from no State any right that ever

pertained to it. No State ever had the right, under the

forms of law or otherwise, to deny any free man the

equal protection of the laws or to abridge the privileges

or immunities of any citizen of the republic, although

many of them have assumed and exercised the power

and that without remedy. The amendment does not

give, as the second section shows, the power to Con-

gress of regulating suffrage in the several States.

“The second section excludes the conclusion that

by the first section suffrage is subjected to congres-

sional law .. . .”” 39(1) Globe 2542.

After a protest by Stephens of the leniency of the amend-

ment, the House then passed the measure. Id. at 2544, 2545.

See also, 16 N.Y.U. Law Quarterly, Truth and Fiction—

Fourteenth Amendment, page 35 (1938-1939).

In opening the debate of the Fourteenth Amendment in

the Senate, Senator Jacob M. Howard, a Michigan Republi-

can and member of the Joint Committee on Reconstruction,

introduced the measure in the absence of the Committee

1 re

Chairman, Senator William P. Fessenden of Maine, de

claring:

“But, sir, the first section of the proposed amend-

ment does not give to either of these classes the right

of voting. The right of suffrage is not, in law, one of

the privileges or immunities thus secured by the Con-

stitution. It is merely the creature of law. It has al-

ways been regarded in this country as the result of

positive local law, not regarded as one of those funda-

mental rights lying at the basis of all society and with-

out which a people cannot exist except as slaves, sub-

ject to a depotism [sic].” 39(1) Globe 2766.

Addressing himself to the second section of the amendment

he continued :

“It is very true, and I am sorry to be obliged to

acknowledge it, that this section of the ainendment does

not recognize the authority of the United States over

the question of suffrage in the several states at all; nor

does it recognize, much less secure, the right ....

“The second section leaves the right to regulate the

elective franchise still with the states, and does not

meddle with that right.” Ibid.

At a later point during the debate Senator Howard de-

clared:

“We know very well that the states retain the power,

which they have always possessed, of regulating the

right of suffrage in the states. it is the theory of the

Constitution itself. That right has never been taken

from them; no endeavor has been made to take it from

them; and the theory of this whole amendment is, to

leave the power of regulating the suffrage with the

people for Legislatures of the State and not to assume

to regulate it by any clause of the Constitution of the

United States.” 39(1) Globe 3039.

Again debate in the Senate proceeded as it had in the

House with every member understanding that the amend-

ment was not to affect in any way the States’ powers to

ibe qualifications for exercise of their right to vote.

The Fourteenth Amendment was not enacted in naivety.

The Senate and House were both fully aware that many

states denied suffrage to illiterate, nonresident, nontaxpay-

ers, paupers and the like. But denial of suffrage to such

persons was to be covered by the second section of the

amendment; no one suggested that the first section would

render such laws invalid. The following colloquy between

Senator Howard and Senator Daniel Clark, a New Hamp-

shire Republican, is illustrative:

“Mr. CLarK: . . . I wish to inquire whether the

committee’s attention was called to the fact that if

any State excluded any person, say as Massachusetts

does, for want of intelligence, this provision cuts down

the representation of that State.

“Mr. Howarp: Certainly it does, no matter what

may be the occasion of the restriction. . . . If, then,

Massachusetts should so far forget herself as to ex-

clude from the right of suffrage all persons who do not

believe with my honorable friend who sits near me

[Mr. Sumner] on the subject of negro suffrage, she

would lose her representation in proportion to that

exclusion. If she should exclude all persons of what

is known as the orthodox faith she loses representation

ia proportion to that exclusion. No matter what may be

the ground of exclusion, whether a want of educa-

tion, a want of property, a want of color, or a want

of anything else, it is sufficient that the person is

excluded from the category of voters, and the State

loses representation in proportion. The principle ap-

plies to every one of the States in precisely the same

manner. And sir, the true basis of representation is the

whole population. It is not property, it is not education,

eee

for great abuses would arise from the adoption of the

one or the other of these two tests. Experience has

shown that numbers and numbers only is the only

true and safe basis; while nothing is clearer than that

property qualifications and educational qualifications

have an inevitable aristocratic tendency—a thing to be

avoided.” 39(1) Globe 2767.

The last word on suffrage before the final vote in the

Senate was taken was by Senator Howard who reiterated

his former position that the whole system of suffrage rests

with the individual states. 39(1) Globe 3039. The Senate

then passed a slightly modified version of the Fourteenth

Amendment. 39(1) Globe 3042. And after Congressman

Stephens’ last speech in favor of the amendment, expressing

his general disappointment that Congress did not assume

more control with regard to suffrage, the House passed the

Fourteenth Amendment and sent it to the country. 39(1)

Globe 3434, 3438.

All of the foregoing were public statements made and

distributed throughout the country and supplied the basis

for actions by the individual States in the ratification of

the amendment. It is shown without question that Section

One was nv: intended to limit in any manner or degree

the power of the states to determine electoral qualifications

or disqualifications. The only limitation was that of Section

two, which does not prohibit the states from denying the

franchise but indeed contemplates such a denial and pro-

vides a specific penalty in that event.

Shortly after the adoption of the Fourteenth Amend-

ment, Congress took the additional step not previously

thought feasible, and in 1869 the Fifteenth Amendment

was proposed. It is axiomatic that the only reason for the

Fifteenth Amendment was to modify the Fourteenth

Amendment, to prohibit, rather than to permit, voter re-

strictions on specified grounds. By so doing it also made

ive, to this extent, the deterrent provision in Sec-

tion Two of the Fourteenth Amendment, since the prohibi-

tio made the penalty needless. The adoption of the Fif-

teenth, we submit, was a constitutional reiteration that the

Fourteenth Amendment contained no restriction on suffrage

qualifications in any respect.

Every attempt to apply federal power to the determina-

tion of the qualification to voters, a subject otherwise con-

sistently left to the sovereign powers of the several states,

has been by specific constitutional amendment. The adoption

of the Nineteenth Amendment and the Twenty-fourth

Amendment is corroboration by Congress and als» *

States, which ratified such amendments, that the ~~»

teenth Amendment never conferred any guarantee of vote:

qualification. We have this law in an established straight-

forward manner of repeated amendments of similar tenor

establishing a canon of constitutional construction that

corroborates the plain meaning of the Fourteenth Amend-

ment proclaimed alike by its words and its history.

We do not deal here in the case at bar with the dilution

of ballots cast by qualified voters; nor with requirements

totally unrelated to voter qualifications nor with restrictions

forever barring an otherwise qualified individual from vot-

ing. We deal only with the determination of recognized

qualifications for voting in State and local elections. Quali-

fications which the Court has stated and restated are the

primary responsibility of the States. We submit that such

qualifications are left by the original Constitution and all of

its amendments to the exclusive and final choice of the re-

spective States. If a change be desired the procedure of

amendment is indicated. This was clearly the view of Con-

gress in proposing the Twenty-fourth Amendment;

“Since Congress is not given the power by the Con.

stitution to regulate either voting qualifications or the

manner of election of presidential electors, their jp.

clusion in the amendment requires the constitutional

amendment approach.” H.R. Rep. No. 1821, 87th

Cong. 2d Sess. 5 (1962).

(B)

JupicrAL DEcIsIoNns

At the outset it is imperative to be cognizant that the

intrusions of Congress are in the areas of age and resj- .

dency. Such requirements are strictly within the power of

the States to impose. This precept has been reiterated time

and time again by this Court. See, Guinn v. United States,

238 U.S. 347, 362, 35 S.Ct. 926, 59 Lied 1340 (1915);

Pope v. Williams, 193 U.S. 621, 632, 24 S.Ct. 573, 48 Lied.

817 (1904) ; Carrington v. Rash, supra; Lassiter v. North

ampton County Board of Elections, 360 U.S. 45, 51

(1959) ; and most recently Kramer v. Union Free School

District, supra. See also, Davis v. Beason, 133 U.S. 333,

345-347, 10 S.Ct. 299, 33 L.ed. 637 (1890) ; Dreuding v.

Devlin, 380 U.S. 125, 85 S.Ct. 807, 13 L.ed.2d 792 (1965);

McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 Led

869 (1892). Cases previously decided by this Court con-

cern themselves only with the validity of additional require-

ments other than those conceded that the State has the

power to impose.

Kramer v. Union Free School District, supra, concerns

the additional requirement of a New York statute that in-

dividuals otherwise eligible to vote must in certain school

district elections either (1) own or lease taxable real prop-

erty in the district, or (2) be parents or custodians of

children enrolled in a local public school. The Court held

that since the New York law permitted inclusion of many

having only a remote and indirect interest in school

affairs while excluding others having a distinct and direct

interest, the proposed objective of the statute was not being

met. Consequently the section violated the equal protection

clause of the Fourteenth Amendment. Cipriano v. City of

Houma, supra, concerned an attack on a Louisiana statute

which limited franchise of special elections, for the issuance

of municipal utility revenue bond, to property taxpayers.

The additional requirement was struck down by the Court

as being violative of the equal protection clause of the

Fourteenth Amendment since it involved a voting classifica-

tion wholly irrelevant to achievement of the States’ ob-

jective.

Again in the latest case of City of Phoenix, et al. v.

Kolodziejski, 399 U.S. 204, this Court, acting pursuant to

the equal protection clause, prohibited the State of Arizona

from restricting the franchise to real property taxpayers in

elections to approve the issuance of general obligation bonds,

since the differences between the interests of property own-

ers and non-property owners, otherwise qualified, were not

sufficiently substantial to justify excluding the latter from

voting.

Also easily distinguishable, as previously mentioned in

this brief, are the cases of Carrington v. Rash, supra, and

Evans v. Cornman, supra. Carrington v. Rash was an in-

stance of invidious discrimination between persons satisfy-

ing all the general requirements of residency, some of whom

were permitted to qualify as voters while others were abso-

lutely prevented from doing so. In that case a sergeant in

the United States Army, originally from Alabama but on

duty in New Mexico, bought a house and established a

family and business in Texas with the admitted intention of

residing there permanently. “But for his uniform” Texas

conceded his eligibility to vote. But Texas stated that no

serviceman may ever acquire a voting residence in the State

so long as he remains in service. This Court held such an

additional requirement contrary to the equal protection

clause as a permanent prohibition against all servicemen as

a class though otherwise complying with all resident re.

quirements, The case in short did not establish any qualif.

cation requirement with which prospective voters could

comply by reasonable effort but imposed a permanent dis.

qualification on servicemen whatever their circumstances

or efforts may be. Likewise, Evans v. Corwman concerned

a Maryland statute prohibiting in perpetuity otherwise

qualified residents from participating in elections merely be-

cause they resided on a federal enclave. This restriction was

also struck down as violative of the equal protection law,

Harper v. Virginia State Board of Elections, supra, like

this Court’s rulings discussed above in Kramer, Cipriano,

and Kolodziejskt, struck down an additional requirement

which “burdened or conditioned” the fundamental right of

voting and which was found to have no relation to voter

qualifications—the poll tax.

Similarly the reapportionment cases, such as Reynolds v.

Sims, supra, require that an individual’s ballots once cast,

be entitled to equal weight thus ensuring “the opportunity

for equal participation by all voters in the election of state

legislators.” If a person is qualified to vote, his vote may

not be diluted so as to have no proper effect. See also Baker

v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.ed.2d 663 (1962);

Gray v Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.ed.2d 821

(1963) ; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, Il

L.ed.2d 481 (1964). None of these cases touches on the

question of the power of the States to determine qualifica-

tions for voting.

Likewise while all cases mentioned concerned statutes

denying the franchise to citizens otherwise qualified by

residence and age, none touched upon the power of the

States “to impose reasonable . . . age and residency re-

quirements on the availability of the ballot.” Kramer v.

Union Free School Dist., supra.

While it may be arguable whether the Framers intended

the Fourteenth Amendment to govern the weighing of votes

after they have been cast, or the imposition of various re-

quirements upon already qualified voters, it is certainly

clear that they did not intend to restrict the power of the

States to determine suffrage qualifications, which had been

their unquestioned prerogative since before the original

Constitution was adopted.

The trend of decisions of this Court has shown a cog-

nizance of this intent. Congress’ attempt to blatantly over-

look the Constitution as written and construed must be

rejected.

(C)

THE TEstTs

The Brief for the United States is conspicuously void

in any mention that it is the States which are to determine

the qualifications of voters, not Congress. Article I, § 2,

Article II, §1, Article I, §4, prior to the Seventeenth

Amendment and the Seventeenth Amendment itself provide

that it is the States who are to determine the qualifications

of electors.

There has been no Amendment of the Constitution which

has conferred the right to vote on anyone. The Amendments

(Fourteenth, Fifteenth, Nineteenth and Twenty-fourth) are

negative in character only and merely declare that certain

things cannot be considered by the States in prescribing

qualifications for electors. This is true whether the qualifi-

cations are for State, Congressional or Presidential elec.

tions.

The right of the States to set the qualifications for its

electors has been recognized by this Court time and time

again.

In Newberry v. United States, 256 U.S. 232, 248, 65

L.ed. 913 (1921), this Court held prior to the Seventeenth

Amendment, that Article I, § 4, defined the sole authority

of Congress over elections for Congress and the Senate, It

was said:

“We find no support in reason or authority for the

argument that because the offices were created by the

Constitution, Congress has some indefinite, undefined

power over elections for Senators and Representatives

not derived from Sec. 4. ‘The Government, then, of

the United States, can claim no powers which are not

granted to it by the Constitution, and the powers actu-

ally granted must be such as are expressly given, or

given by necessary implication.’ ”

Insofar as the Newberry case held federal law inappli-

cable to primaries, it undoubtedly has been superseded by

United States v. Classic, 313 U.S. 299, 85 Lied. 1368

(1941), but the principle just enunciated was not affected.

Similarly, in United States v. Cruikshank, supra, 592, it

was held:

“In Minor v. Happersett, 21 Wall. 178 (88 US.

XXII, 631), we decided that the Constitution of the

United States has not conferred the right of suf-

frage upon any one, and that the United States have

no voters of their own creation in the States. In U.S. v.

Reese just decided (ante, 563), we hold that the Fif-

teenth Amendment has invested the citizens of the

United States with a new constitutional right, which

is, exemption from discrimination in the exercise of

the elective franchise on account of race, color or

previous condition of servitude. From this it appears

that the right of suffrage is not a necessary attribute

of national citizenship; but that exemption from dis-

crimination in the exercise of that right on account of

race, etc., is. The right to vote in the States comes from

the States; but the right of exemption from the pro-

hibited discrimination comes from the United States.

The first has not been granted or secured by the Con-

stitution of the United States; but the last has been.”

In Guinn v. United States, 238 U.S. 347, 362, 59 L.Ed.

1340 (1915), the Oklahoma “Grandfather Clause” was de-

clared unconstitutional, which in effect imposed literacy

tests in a discriminatory manner. The Court was clear to

point out, however, that neither the Fourteenth nor Fif-

teenth Amendments had affected the power of the states to

prescribe qualifications not dependent upon race. It was

said :

“Beyond doubt the Amendment does not take away

from the state governments in a general sense the

power over suffrage which has belonged to those gov-

ernments from the beginning, and without the pos-

session of which power the whole fabric upon which

the division of state and national authority under the

Constitution and the organization of both governments

rest would be without support, and both the authority

of the nation and the state would fall to the ground. In

fact, the very command of the Amendment recognizes

the possession of the general power by the State, since

the Amendment seeks to regulate its exercise as to the

particular subject with which it deals.

“Thus the authority over suffrage which the States

possess and the limitation which the Amendment im-

poses are co-ordinate and one may not destroy the

other without bringing about the destruction of both.”

The effect of the Fourteenth, Fifteenth, Seventeenth ang

Nineteenth Amendments is well stated in an article entitled

“Voting Rights”, 3 Race Rel. L. R. 371, 372 (1958), viz:

“The effect of these constitutional provisions, how-

ever, is not to confer on any person a federal right to

vote. The state, not the federal government, is stil]

primarily responsible for voting rights; but once the

state purports to give any person or class the elective

franchise, the federal constitutional and statutory pro-

visions immediately and automatically operate to limit

the power of the state to determine whether it will with-

hold the franchise from any person or group of per-

sons. Thus, upon the adoption of the Nineteenth

Amendment, all state constitutional and statutory pro-

visions withholding the elective franchise from women

solely because of their sex were immediately null and

void. See People ex rel. Murray v. Holmes, 341 Ill. 23,

173 N.E. 145 (1931) ; Annot., 71 A.L.R. 1332 (1931),

It would seem, therefore, that the states are free to

establish any requirement they may deem wise, as long

as these requirements are not discriminatory nor based

on sex, race, color or previous condition of servitude.

As a consequence, voting rights may, and often do,

vary widely from state to state.”

This settled constitutional right for such variances may

not now be abrogated by a “test,” discussed infra, dogmati-

cally applied.

(1)

Age and Residency

As the brief for the United States points out (p. 39) the

action of Congress is based allegedly upon their power to

enforce the Equal Protection Clause by a determination

that the States lack a compelling interest in particular

qualifications regarding insofar as pertinent here, age and

residency. The brief of Plaintiff, thus relies upon the “per-

ceivable basis” test of Katzenbach v. Morgan, supra, the

“compelling interest standard” of Kramer v. Union Free

School District, supra, and rejects the test that residency

requirements are permissible unless so unreasonable to

amount to irrational or unreasonable discrimination. Dreud-

ing V. Devin, supra.

The attempt to support Congress’ action by the Katzen-

bach “perceivable basis” test while at the same time putting

the unwarranted burden upon the States of demonstrating

a “compelling interest” ignores all other provisions of the

Constitution and is itself unwarranted since there is absent

any showing of a denial of equal protection.

As shown, the “letter and spirit” of the Constitution re-

serve to the States the right to set qualifications for its

electors. To allow Congress to apply the “perceivable basis”

test in a mere spse dixit fashion would violate that “letter

and spirit.” “[S]ome appraisal of reasonableness is im-

plicit in the requirement that there be a ‘basis’ for Con-

gress’ judgment.” The Supreme Court, 1965 Term, 80:91

Harv. L. Rev. 171 n.10 (1966).

There has been no showing of any reason or justification

for the intrusions of the 1970 Voting Rights Act Amend-

ments nor can it be argued that such action of Congress is

reasonable because of the lack of the States to show a com-

pelling interest in the various qualifications under attack.

It is conceded in the Brief of the United States (pp. 34-

35) that each and every State has a primary responsibility

for setting voter qualifications and that in making the classi-

fications required by such responsibility, there is a “com-

pelling interest” in terms of the review standard in limiting

the franchise to those classes which will vote responsibly

and honestly. (See also concession in fn. 24 of Govern-

ee eee _

ment’s brief p. 35.) “The standard qualifications of citi.

zenship, age, and residency, . . . directly respond to these

[compelling] interests” (Government’s brief p. 35). Such

aualifications and the interests arising from them are

«wally applicable in all elections, including Presidentiaj

elections. (See Government’s brief p. 51, fn. 51.) Age and

residency are inherently related to voter qualifications,

They per se meet the “compelling interest” standard.

If, however, the States must show a “compelling in.

terest” not only for the type of qualifications (i.e., age and

residency) but also for the statutory method of carrying

out such qualifications (i.e., age twenty-one rather than

age eighteen; one year’s residency rather than six months

or thirty days), it cannot be done.

Recognizing this impossibility, this Court has never ap-

plied the compelling interest standard to various specific

age and residency requirements. It has applied the standard

only to “the additional requirements . . . which prohibit

some . . . residents who are otherwise qualified by age and

citizenship from participating in . . . elections. . . .” The

standard is applicable only “to statutes denying the fran-

chise to citizens who are otherwise qualified by residence

and age. . . . [I]f a challenged State statute grants the

right to vote to some bona fide residents of requisite age

and citizenship and denies the franchise to others [also of

requisite age and citizenship] the Court must determine

whether the exclusions are necessary to promote a com-

pelling State interest.” Kramer v. Union Free School Dis-

trict, sepra. (Emphasis supplied. )

Logically it is very easy to distinguish between the gen-

eral requirements of age and residency and the additional

requirements which this Court has repeatedly struck down.

Age and residency do have a relation to voter qualification

and do promote the State’s interest involved. The additional

restrictions (e.g., payment of property or poll taxes) have

been found to have no relation to voter qualification and

wholly irrelevant to achievement of the State’s objective.

One is understandably apprehensive of the burden which

the “compelling interest” standard would place upon a State

to justifiy a specific statutory implementation of a con-

cededly valid general type of restriction. For example, it is

a valid requirement to establish a minimum voting age and

necessity thereof is justified. Common sense dictates the

need for some minimum age. But to justify a minimum age

of twenty-one and show that exclusion of those who are

twenty, nineteen, or eighteen years of age is necessary to

promote a compelling State interest is much more difficult

and, it is submitted, impossible. To ask whether it is neces-

sary to exclude those below twenty-one or those residing

less than a year and then to decide that the statutory im-

plementation of such exclusions are invalid because some of

such individuals can be shown to be responsible, makes all

franchise requirements vulnerable. Almost any classifica-

tion will exclude some who do not fit within the reasons for

exclusion.

It is suggested that in view of the rights of the States to

set voter qualifications, in view of the fact that the history

of the Fourteenth Amendment demonstrates the general

suffrage requirements here under consideration have been

left to the States, and in view of this Court’s decisions con-

struing the equal protection clause, the following proposed

standard:as outlined in “Limitations on the Voting Fran-

chise, etc.,” 143 Utah L. Rev. 150 (1970), is applicable:

Rather than determining whether it is necessary to

exclude [a specific individual] in order to promote re-

sponsible voting, the Court should apply the compelling

aintiiiatettitatiiaeditied ee

interest standard to the type of restriction imposed ang

then ask whether the particular statutory means em.

ployed accomplishes the purpose behind the restriction

as accurately and efficiently as any alternative means.

If it does not, then the statutory requirement would be

unnecessary to achieve that purpose.

. =:

The suggested analysis of any franchise restriction

in terms of the compelling interest standard begins with

the assumption that the franchise must be limited to

maintain responsible elections. The court then should

determine whether the particular type of restriction js

necessary to promote this end and, finally, whether the

particular classification is as fair and efficient as any

other available method.

“The constitutional command for a state to afford ‘equal

protection of the laws’ sets a goal not attainable by the

invention and application of a precise formula.” Kotch vy.

River Port Pilot Commissioners, 330 U.S. 552, 556, 91

L.ed. 1093, 67 S.Ct. 910 (1947). This is especially true

with respect to a formula such as, in the case at bar, the

compelling interest standard, the application of which has

been shown to be beyond the “letter and spirit” of the

Constitution.

Since States have a general constitutional competence to

act in the area of voter qualifications and since an automatic

formula would in essence allow wholesale invalidation of

state laws under the Equal Protection Clause, it is submitted

that distinctions drawn (between eighteen years and twenty-

one years of age; between one year’s residency and six

months or thirty days) are valid as long as these distine-

tions are not “irrational,” “arbitrary,” “irrelevant,” “un-

reasonable,” or “invidious.”

Twenty-one years of age does bear a direct relationship

to responsibility and intelligence in voters ; since the various

specific residency, as well as registration and absentee ballot

provisions (to be discussed infra) do bear a direct relation

to an honest and responsible election, and more importantly

since such provisions apply equally to all individuals, it is a

reasonable means of limiting the franchise. It is difficult to

say that age twenty-one as compared to age twenty, age

nineteen, age eighteen, is “irrational” or “arbitrary.” It is

dificult to say that one year’s residency as compared %o

nine months, six months, three months, one month, is “irra-

tional” or “arbitrary.” In such situations the necessary re-

lationship of the compelling interest standard must yield.

The specific statutory requirement must stand. Dreuding v.

Devlin, supra.

Often a legislature must choose between equally reason-

able requirements and to demand that a State later prove

the necessity of the particular choice would unnecessarily

restrict the legislative process. It is no answer to say that

Congress has spoken and made the choice, for as demon-

strated supra, the choice is one for the States, subject only

to the requirement that the choice made, be not violative of

the equal protection clause. Equal protection cannot de-

mand more of any particular requirement than that it be

as fair as any other in achieving the State’s interest. Age

twenty-one rather than age eighteen; one year’s residency

rather than six months, or thirty days, is as fair as any

other line to be drawn. Such requirements cannot be said to

be arbitrary. If the line is to be redrawn it must be left to

the respective State legislatures, similar to Virginia’s whose

newly proposed Constitution will require a six months’ resi-

dency requirement instead of one year and allow alterna-

tives for residency requirements in Presidential elections.

The true test must be the application of the letter and

spirit of the Constitution, not the test of an inventive

standard dogmatically applied.

——

Rr nn megs nee

(2)

Absentee Registration and Balloting

Both the present Constitution of Virginia, (Art. [J

§ 20) and the proposed revision (Art. II § 2) require that

all applications to register, by individuals meeting the re.

quirements of age and residency “shall be completed in per-

son before the registrar.” See also § 24.1-47 of the Code of

Virginia (1950) as amended, recently approved by the At-

torney General of the United States which directs that

only those “who shall apply in person to be registered . . ,

and who, at the time of the next general election, shall have

the qualifications of age and residence required by the Con-

stitution of Virginia” shall be registered. The only excep-

tion to such requirement is made in the case of members of

the armed forces of the United States while in active sery-

ice. Such individuals shall not “be required . . . to register

as a prerequisite to the right to vote in any and all elections,

including legalized primary elections” (Art. XVII §1 of

the Virginia Constitution). A similar provision for regis-

tration by absentee application, for servicemen, is con-

tinued in the proposed Constitution. (Art. IV Sec. 4)

However, Section 202 of the Voting Rights Act Amend-

ment purports to grant a right of absentee registration to

ail state citizens, in Presidential elections.

The absentee ballot provisions of Virginia recently

adopted and also approved by the Attorney General of the

United States require, similar to registration provisions,

that any otherwise qualified individual who will be absent

on the day of election due to business, profession, or occu-

pation, or due to vacation must cast his ballot in person

before the general registrar or secretary of the local elec-

toral board not less than five days prior to the election in

which he offers to vote. See §§ 24.1-227, 24.1-228, 24.1-229

and 24.1-232 of the Code of Virginia (1950) as amended.

Section 202 of the Act has no such requirements and pro-

yides that an absentee ballot may be returned at any time be-

fore the closing of the polls on the day of election.

It is submitted that such requirements as registration in

or the casting of an absentee ballot in the manner

prescribed by Virginia law are not additional requirements

which this Court has previously struck down. Such require-

ments are procedural in nature only and do not contain

any substantive qualification which one must meet prior to

being entitled to vote.

However, if this Court is to conclude that such require-

ments are additional within the meaning of Kramer and

consequently the doctrine of “compelling interest” is to be

utilized, then there is no question that the Commonwealth

of Virginia has such an interest in the implementation of

procedures that will insure responsible and honest voting.

In two recent instances, and two separate elections,

Citizens of Virginia have been convicted in Federal Courts

in the Commonwealth of violations of election laws in the

casting of fraudulent absentee ballots. United States v.

Weston, 417 F.2d 181 (4th Cir. 1969), cert. den. 396 U.S.

1062 (1970); Fields v. United States, 228 F.2d 544 (4th

Cir. 1955), cert. den. 350 U.S. 982, 100 L.ed. 850, 76 S.Ct.

468 (1956). Because of these occurrences, the concern they

created, and the lack of effectiveness of criminal sanctions,

the General Assembly of Virginia rightly felt that it was

compelled to take measures that would more effectively se-

cure absentee registration and balloting in order to prevent

future violations of election processes. It, therefore, en-

acted the sanctions relative to absentee balloting and the

method of registration previously discussed.

The Commonwealth is not asserting that it has a com.

pelling interest in voting procedures due to the administra.

tive tasks that may be involved. (See Plaintiff's brief, p, 59)

Nor on the other hand can the United States argue that we

are concerned here only with presidential elections, an es.

pecially federal event. An individual registers only once in

the Commonwealth. Once registered he is entitled to vote

in every ensuing local, State, Congressional, or Presidential

election; to allow an individual to register affects not just

“federal events.”

What the Commonwealth does assert is that it has an

“interest” in every election, due to far more than a possible

administrativve burden; due to her obligation to ensure

honest elections, by the casting of honest ballots of duly

qualified citizenry.

The right to an honest ballot is as important as the fran-

chise itself. Without honest balloting the right of franchise

is meaningless. As stated in Prichard v. United States, 181

F.2d 326, 331 (6th Cir. 1950) :

“The deposit of forged ballots in the ballot boxes, no

matter how small or great their number, dilutes the in-

fluence of honest votes in an election, and whether in

greater or less degree is immaterial. The right to an

honest count is a right possessed by each voting elector,

and to the extent that the importance of his vote is

nullified, wholly or in part, he has been injured in the

free exercise of a right or privilege secured to him. . . .”

If the “compelling interest” doctrine is extended to the

case at bar, the Commonwealth of Virginia has met the

standard: (1) The facts and circumstances uncontrovert-

ibly illustrate the need for tighter ballot security; (2) The

interests sought to be protected are those of all qualified

citizens, including the absentee voter himself. A compelling

interest in an efficient and effective voting practice free

from fraud, is thereby shown. It cannot be thwarted by

Section 202.

CONCLUSION

The actions and powers of Congress are subject to the

dassic utterances of Chief Justice John Marshall in the

historic cases of Gibbons v. Ogden, 9 Wheat. 1, and Mc-

Cullough v. Maryland, (4 Wheat. 316) :

“[t]his power, like all others vested in Congress, is

complete in itself, may be exercised to its utmost extent,

and acknowledges no limitations, other than are pre-

scribed in the constitution.” (9 Wheat. 196).

* * *

“Let the end be legitimate, let it be within the scope

of the constitution, and all means which are appropriate,

which are plainly adapted to that end, which are not

prohibited, but consistent with the letter and spirit of

the constitution, are constitutional.” (4 Wheat. 421).

As we have seen, the power of Congress to deal with

State prescribed voter qualifications is severely limited by

the Constitution. To require the States to justify their ac-

tions (actions which have been left within the inherent

power of the States) by the application of a compelling in-

terest standard would be inconsistent with the letter and

spirit of the Constitution. The power of the States to pre-

scribe voter qualifications is original and independent, not

derivative or subordinate.

Such power is not granted to the States by any law, but

remains with the States where it has existed since the for-

mation of the Union, and it has never been lodged elsewhere.

It cannot now be usurped by the dogmatic application of a

standard impossible for the States to meet, nor by allegedly

“appropriate” legislation of Congress passed without any

constitutional warrant.

The statutes of the Commonwealth of Virginia are not

violative of Fourteenth Amendment precepts. Congresy’

unprecedented assertion of authority over such qualifica.

tions as age, residency and absentee registration and yot-

ing procedures, should not receive the sanction of this

Court and should be declared unconstitutional and void,

Respectfully submitted,

ANDREW P. MILLER

Attorney General of Virginia

ANTHONY F. Troy

Assistant Attorney General

WALTER A. McFARLANE

Assistant Attorney General

Supreme Court-Library Building

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, Andrew P. Miller, Attorney General of Virginia, a

member of the Bar of the Supreme Court of the United

States and one of counsel for the Commonwealth of Vir-

ginia, as amicus curiae, in the above captioned matter, hereby

certify that three (3) copies of this Brief on Behalf of the

Commonwealth of Virginia Amicus Curiae have been served

upon each of counsel of record for the parties herein by

depositing the same in the United States Post Office with

first class postage prepaid (airmail postage prepaid to de-

fendant State of Idaho), this the 12th day of October,

1970, pursuant to the provisions of Rule 33 of the Rules of

the United States Supreme Court as follows:

Honorable Robert M. Robson, Attorney General of

Idaho, Office of the Attorney General, Capitol Build-

ing, Boise, Idaho 83702, counsel for defendant State of

Idaho;

Honorable John N. Mitchell, Attorney General of the

United States, Honorable Erwin N. Griswold, Solici-

tor General of the United States, and Honorable Jerris

Leonard, Assistant Attorney General of the United

States, Department of Justice, Washington, D.C.

20530, counsel of record for plaintiff United States of

America.

ANDREW P. MILLER

Attorney General of Virginia

Constitution of Virginia, Vol. 9, Code of Virginia

(1950), as amended, p. 509

“ARTICLE IL.

“RuEcTIVE FRANCHISE AND QUALIFICATION FOR OFFICE.

“$18. Qualification of voters.—Every citizen of the

United States, twenty-one years of age, who has been a

resident of the State one year, of the county, city, or town,

six months, and of the precinct in which he offers to vote,

thirty days next preceding the election in which he offers

to vote, has been registered, and has paid his State poll

taxes, as hereinafter required, shall be entitled to vote for

members of the General Assembly and all officers elective

by the people; but removal from one precinct to another, in

the same county, city or town shall not deprive any person

of his right to vote in the precinct from which he has moved

until the expiration of thirty days after such removal.

“The right of citizens to vote shall not be denied or

abridged on account of sex.”

Constitution of Virginia, Vol. 9, Code of Virginia

(1950), as amended, pp. 510, 511

“§ 20. Who may register —Every citizen of the United

States, having the qualifications of age and residence re-

quired in section eighteen, shall be entitled to register,

provided :

“First. That he has personally paid to the proper officer

all State poll taxes legally assessed or assessable against

him for the three years next preceding that in which he

offers to register ; or, if he come of age at such time that no

poli tax shall have been assessable against him for the year

preceding the year in which he offers to register, has paid

App. 2

one dollar and fifty cents, in satisfaction of the first year’s

poll tax assessable against him; and,

“Second. That, unless physically unable, he make applica.

tion to register in his own handwriting, on a form which

may be provided by the registration officer, without aid

suggestion, or other memorandum, in the presence of the

registration officer, stating therein his name, age, date and

place of birth, residence and occupation at the time and for

the one year next preceding, and whether he has previously

voted, and, if so, the State, county, and precinct in which

he voted last ; and,

“Third. That he answer on oath any and all questions

affecting his qualifications as an elector, submitted to him

by the registration officer, which questions, and his answers

thereto, shall be reduced to writing, certified by the said

officer, and preserved as a part of his official records.”

Proposed Revision of the Constitution of Virginia,

1970 Acts of Assembly, Chapter 763, p. 1598

ARTICLE II

FRANCHISE AND OFFICERS

Section 1. Qualifications of voters.

In elections by the people, the qualifications of voters

shall be as follows: Each voter shall be a citizen of the

United States, shall be twenty-one years of age, shall fulfill

the residence requirements set forth in this section, and

shall be registered to vote pursuant to this article. No per-

son who has been convicted of a felony shall be qualified to

vote unless his civil rights have been restored by the Gov-

ernor or other appropriate authority. As prescribed by law,

no person adjudicated to be mentally incompetent shall be

App. 3

qualified to vote until his competency has been reestablished.

The residence requirements shall be that each voter shall

have been a resident of the Commonwealth for six months

and of the precinct where he votes for thirty days. A person

who is qualified to vote except for having moved his resi-

dence from one precinct to another fewer than thirty days

prior to an election may in any such election vote in the pre-

cinct from which he has moved. Residence, for all purposes

of qualification to vote, requires both domicile and a place

of abode. The General Assembly may provide, in elections

for President and Vice-President of the United States, a

residence requirement of less than six months and alterna-

tives to registration for new residents of the Common-

wealth.

Any person who will be qualified with respect to age to

vote at the next general election shall be permitted to

primary or special election.

Section 2. Registration of voters.

The General Assembly shall provide by law for the regis-

tration of all persons otherwise qualified to vote who have

met the residence requirements contained in this article, and

shall ensure that the opportunity to register is made avail-

able. Registrations accomplished prior to the effective date

of this section shall be effective hereunder. The registration

records shall not be closed to new or transferred registra-

tions more than thirty days before the election in which they

are to be used.

Applications to register shall require the applicant to pro-

vide under oath the following information on a standard

form: full name, including the maiden name of a woman, if

married; age; date and place of birth; marital status; occu-

< ew ee —— ee

App. 4

pation; social security number, if any; whether the

cant is presently a United States citizen; address and place

of abode and length of residence in the Commonwealth ang

in the precinct ; place and time of any previous registrations

to vote; and whether the applicant has ever been adjudicated

to be mentally incompetent or convicted of a felony, and if

so, under what circumstances the applicant’s right to vote

has been restored. Except as otherwise provided in this

Constitution, all applications to register shall be completed

in person before the registrar and by or at the direction of

the applicant and signed by the applicant, unless physically

disabled. No fee shall be charged to the applicant incident

to an application to register.

Nothing in this article shall preclude the General Assem-

bly from requiring as a prerequisite to registration to vote

the ability of the applicant to read and complete in his own

handwriting the application to register.

Section 24-17, Code of Virginia (1950), as amended, Vol. 5, p. 226

“§ 24-17. Persons entitled to vote at all general elec-

tions.—Every citizen of the United States twenty-one years

of age, who has bee. a resident of the State one year, of

the county, city or town, six months, and of the precinct in

which he offers to vote thirty days next preceding the gen-

eral election, in which he offers to vote, has been duly

registered under the provisions of § 24-67, and who, at

least six months prior to such election in which he offers

to vote, has personally paid to the proper officer all State poll

taxes assessed or assessable against him for the three years

next preceding the year in which such election is held, and

is otherwise qualified, under the Constitution and laws of

this State, shall be entitled to vote for members of the Gen-

eral Assembly and all officers elective by the people. Removal

App. 5

from one precinct to another in the same county, city or

town, shall not deprive any person of his right to vote in

the precinct from which he has moved, until the expiration

of thirty days from such removal.”

Section 24.1-41, Code of Virginia (1950), as amended,

Vol. 5, 1970 Supplement, pp. 68-69

“§24.1-41. Persons entitled to vote at all general elec-

tions. —Every citizen of the United States twenty-one years

of age, who has been a resident of the Commonwealth one

year, of the county, city or town six months, and of the

precinct in which he offers to vote thirty days next preced-

ing the general election in which he offers to vote, has been

duly registered unless exempted therefrom, and is otherwise

qualified, under the Constitution and laws of this Common-

wealth shall be entitied to vote for members of the General

Assembly and all officers elective by the qualified voters.

Removal from one precinct to another in the same county,

city or town, shall not deprive any person of his right to

yote in the precinct from which he has moved, until the ex-

piration of thirty days from such removal.

“The qualifications of voters at any special election shall

be such as are hereinbefore prescribed for voters at the

next ensuing general elections.”

Section 24.1-47, Code of Virginia (1950), as amended,

Vol. 5, 1970 Supplement, p. 71

“§ 24.147. Who to be registered—Each registrar shall

district who shall apply in person to be registered at the

time and in the manner, required by law, and who, at the

time of the next general election, shall have the qualifica-

tions of age and residence required by the Constitution of

Virginia.”

App. 6

Section 24.1-227, Code of Virginia (1950), as amended,

Vol. 5, 1970 Supplement, p. 113

“§ 24.1-227. When absent voter may vote——The follow.

ing persons may vote by absentee ballot in accordance with

the provisions of this chapter in any election in which they

are qualified to vote:

“(1) Any duly registered person who will, in the regular

and orderly course of his business, profession, or occupa-

tion or while on vacation, be absent on the day of election

from the county or city in which he is entitled to vote;

“(2) Any person on active service as a member of the

armed forces of the United States, who will be absent on

the day of election from the county or city in which he is

entitled to vote;

“(3) Any duly registered person, who is the spouse of

any person on active service as a member of the armed

forces of the United States or who is a student, or the

spouse of a student attending any school or institution of

learning, or any person, or the spouse accompanying such

person, regularly employed in business, profession or occu-

pation outside the continental limits of the United States,

and who will be absent on the day of election from the

county or city in which he is entitled to vote; or

“(4) Any duly registered person who is ill or physically

unable to attend the polls on the day of election.”

Section 24.1-228, Code of Virginia (1950), as amended,

Vol. 5, 1970 Supplement, pp. 113, 114

“§ 24.1-228. Application for absentee ballots.—It shall

be the duty of the electoral board of each county or city to

furnish the general registrar with a sufficient number of

applications for official ballots on forms prescribed by the

App.7

State Board of Elections; and it shall be the duty of such

istrars to furnish an application form, in person or by

mail to any qualified voter requesting the same for the pur-

pose of offering to vote in an election by absentee ballot.

“All applications for absentee ballots shall be made in

writing to the appropriate registrar and delivered to him by

the applicant in person or by mail as may be required not

less than five nor more than forty days prior to the election

in which the applicant offers to vote. Such applications shall

be signed by the applicant under the penalty of perjury as

to the facts therein stated.

“Applications for absentee ballots shall be as follows:

“(1) An application made under § 24.1-227(1), which

shall be completed in person before the general registrar or

a member of the electoral board only in the office of the

registrar or secretary, shall be made on the form furnished

by the registrar, signed by the applicant in the presence of

either the registrar or a member of the electoral board and

shall contain the following information :

“(a) The reason why the applicant will be absent;

“(b) The name or number of precinct in which the appli-

cant offers to vote, and

“(c) A statement that he is a resident of and duly regis-

tered in such precinct.

“ (2) An application of a member of the armed forces,

made under § 24.1-227(2), or of the spouse of a member

of the armed forces made under § 24.1-227(3), which shall

contain the following information :

“(a) A statement that the applicant or the spouse of the

applicant is on active service as a member of the armed

forces of the United States and the applicant will be absent

App. 8

from the county or city in which he is entitled to vote op

the day of election;

“(b) The name or number of precinct in which he offers

to vote and a statement that he is a legal resident thereof.

“(c) The branch of service to which he or the spouse be.

longs, his or the spouse’s rank, grade or rate, service identi-

fication number, his home and service addresses and the date

of his birth, and

“(d) In the case of the spouse of a serviceman, a state.

ment that the applicant is duly registered in the precinct

wherein the ballot will be cast.

“(3) An application made under subsections (3) or (4)

of § 24.1-227 which shall be signed by the applicant in the

presence of one subscribing witness, who shall subscribe

the same and vouch, subject to the penalty of perjury, that

to the best of his knowledge and belief the facts contained

in the application as to which he has knowledge, are true

and shall contain the following appropriate information:

“(a) The reason why the applicant will be absent;

“(b) In the case of a student or the spouse of a student

attending a school or institution of learning, the name and

address of such school or institution of learning;

“(c) In the case of a person who is ill or physically un-

able to attend the polls on the day of election, the nature of

the illness or physical disability ;

“(d) In the case of a person, or the spouse accompany-

ing such person, who is regularly employed outside the con-

tinental limits of the United States, the name and address

of his employer and his address within and outside of the

United States ;

App.9

“(e) The name or number of precinct in which the appli-

cant offers to vote and a statement that he is a legal resident

thereof, and duly registered ;

“(f) The application shall be accompanied by sufficient

or legal tender, as indicated thereon, to defray the

cost of mailing the ballot to the applicant, if to be delivered

by mail.”

Section 24.1-229, Code of Virginia (1950), as amended,

Vol. 5, 1970 Supplement, pp. 114, 115, 116

“§ 24.1-229. Duty of registrar and electoral board upon

receipt of application ; voucher ; coupon.—The general regis-

trar, upon receipt of the application for a ballot, if the ap-

plicant is duly registered where registration is required,

shall enroll the name and address of the applicant on the

list to be made and kept by him for the purpose, and shall

either forward the application forthwith to the secretary of

the electoral board, noting thereon that the applicant is a

registered voter, if registration is required, or approve the

application, note the fact of registration, and return it to

the applicant for delivery to the secretary of the electoral

board. If it then appears to the electoral board that the

applicant is a resident and registered voter, if required, of

the precinct in which he offers to vote, the electoral board

shall send to the applicant by registered or certified mail,

with return receipt requested, or deliver to him in person,

except in the case of a person on active service as a member

of the armed forces of the United States, the following

items and nothing else; provided ,however, that if the appli-

cant states as the reason for his absence on election day any

of those set forth in § 24.1-227(1), the registrar or the

secretary of the electoral board, upon the determination of

the qualification of the applicant to vote, shail deliver the

App. 10

following items only to the applicant himself in proper per.

son and no item shall be removed by the applicant from the

office of the registrar or the secretary of the electoral board:

“(a) An envelope containing the folded ballot, seale

and marked ‘ballot within. Do not open except in presence

of a notary public or other officer mentioned in § 24.1-232’

“(b) An envelope for resealing the marked ballot, on

which is printed the ‘voucher,’ in the following form:

“Voucher.

“This is to certify that the enclosed ballot was received by

me upon my application to the registrar of the 2.

(county or city) of , Virginia. The envelope

marked “ballot within” was opened by me in the presence

, notary public (or other person men-

tioned in § 24.1-232) of the .. (county or city),

marked while in his presence, without assistance or knowl-

edge on the part of anyone as to manner in which same was

prepared, and then and there sealed as provided by law.

( Sagned ). 5. «

DRE ii iictictcitntaisinininael

Notary Public (or other person

mentioned in § 24.1-232)’

“(c) A properly addressed envelope for the return of

the ballot to the electoral board by registered or certified

mail or by the applicant in person and, if available, the ap-

propriate blank material required to register or certify the

mail.

“(d) A printed slip giving instructions as to the manner

of making out the voucher on the envelope for the return

App. 11

of the ballot hereinafter mentioned and how the same shall

be returned.

“(e) A ‘coupon,’ in the following form:

“ “Coupon.

“‘Name (given by voter) , height , age

(given by voter) ............ , weight (estimated) ................ ,

color of hair ................ » Color Of eyes ................ , birthplace

(given by voter ) , occupation (given

by voter ) , State and county or city where

voter claimed to have last voted

“‘To the best of my knowledge, the above information

is correct, and the applicant has complied with the require-

ments of the law as above provided. I have no knowledge

whatever of the marking, erasure, or intent of the ballot

enclosed.

ho REE Pet eee

Notary Public (or other person

mentioned in § 24.1-232).’

“If the applicant is on active service as a member of the

armed forces of the United States, the electoral board shall

mail or deliver in person to the applicant in person the ballot

as set forth in (a) above accompanied by the instruction

slip set forth in (d) above. The covering envelope shall

contain in the lower left-hand corner the words ‘Official

Virginia Armed Forces Ballot,’ or such other words as the

acts of Congress or regulations of the transmitting federal

agency may require. A return envelope, as set forth in (c)

above shall be furnished and in the lower left-hand corner

shall anpear the same words as on the covering envelope. In

addition an envelope for use as prescribed in (b) above

App. 12

shall be furnished and shall have printed thereon, in lieu of

the word ‘Voucher,’ the following to be completed:

‘Official Virginia Armed Forces Ballot.

‘Voter must place ballot herein and seal.’

and upon the other side the following words:

‘Oath of Voter.

‘I do swear (or affirm) that I am now and have been a

citizen and domiciliary resident of Virginia since the ......... ms

B geereteneeenaen Re» Mawnces , and am a resident of the (county

or city) of ............ , residing at -........... (street and number

or place of residence therein), and am now in active service

in the Armed Forces of the United States ; that I am at least

twenty-one years of age or will be on the -.............. day of

cnglelhinaial , 19........, and that by exercising the privilege of

voting I acknowledge and accept all responsibilities and

obligations of full citizenship of the Commonwealth of

Virginia. The name and/or number of my voting precinct

RE aS (if known, so state).

‘Signature of voter: .....................--.---

‘Subscribed and sworn to before me this ............ day of

eseeaton , 19.

“Shamma Ok MOE Sanne nse

Rank and Title of Officer—

Identification No. (or other person

mentioned in § 24.1-232).’”

App. 13

Section 24.1-232, Code of Virginia (1950), as amended,

Vol. 5, 1970 Supplement, p. 117

“§ 24.1-232. How ballots marked and returned; ballots

cast in person.—Upon receipt of the registered or certified

letter forwarded by the electoral board, the voter shall not

open the sealed envelope, marked ‘ballot within,’ except in

the presence of a notary public or other officer authorized

by law to take acknowledgments to deeds or in the case of

a serviceman a commissioned officer in the armed forces,

and shall then and there mark, as provided in § 24.1-129,

and refold the ballot without assistance and without mak-

ing known the manner of marking same. He shall then and

there place the ballot in the envelope provided for the pur-

pose, seal the envelope, and fill in and sign the voucher

printed on the back of the envelope in the presence of a

notary public cr other officer hereinabove provided, who

shall witness the same in writing. This envelope, together

with the coupon, which must be filled out and signed by the

notary public, or other officer as herein provided, shall be

enclosed within the envelope directed to the electoral board

which shall then and there be sealed, and shall be registered

or certified and mailed, with return receipt requested, to

the electoral board, or delivered personally by the voter to

the electoral board or to the general registrar.

“In the event that the applicant comes under § 24.1-227

(1), he shall follow the same procedure as set forth above

except that it shall be done in person, upon receipt of the

items set forth in § 24.1-229, before either the general

registrar or the secretary of the electoral board, in lieu of

a notary, and failure to do so will render the applicant’s

ballot void. Such applicant shall comply with this section

and vote in person not less than five days prior to the elec-

tion in which he offers to vote.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.