# Amicus Curiae Brief — Oregon v. Mitchell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0216%3A26

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1970
- **Citation:** 400 U.S. 801

## Text

TABLE OF CONTENTS

y STATEMENT

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

or ARGUMENT

ME

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

yy

—_——$ $$ ——_

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

it

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,

V.

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

2

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

“(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-

4

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

5

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;

6

“(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.

|

7

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.)

8

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

9

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,

10

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,

11

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.”

t
;
'
’
’
‘
'

'

12

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.”

13

(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-

14

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

15

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

16

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

17

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

18

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.

19

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

20

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-

21

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;

22

“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

23

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

24

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

25

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-

26

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

27

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.”

28

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

29

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 _

30

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

31

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

32

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

33

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

34

(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

35

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.

36

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

37

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

38

“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,

39

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

register in advance and also to vote in any intervening
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

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

Ҥ 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

Ҥ24.1-41. 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
register every citizen of the United States, of his election
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

Ҥ 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

Ҥ 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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0216%3A26. Public record. Not legal advice.