# Appendix — Dunn v. Blumstein > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0368%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 405 U.S. 330 ## Text « ’ . » e . . . ’ ~ : . ‘ ° . . ’ . . ° ta ce. . a) . , e e . . : °° ‘ ° : a Ss a - . ~-— . 4 ee : . a - “le ek > . * ’ oe k o . ° . . J . . . ) / ens ° : (3 . ° | : . 7 * | ° | i ; . . . ‘ . - : . . bl ° “ * . — : f ‘ : » 0 “= .. ° ; . od r B 7 ’ s ° ese ear os — . 2 ty The as OCTOBER TERM, 1970 See Oe e; "BUFORD. NGTON, GOVERNOR OF THE -. STATE OF TENNESSEE, et al., % °YAppellants . & “ ; ld : 2 : Defendants’ motion. to- stay order pending eppeals s filed: September 10, ona ee ree ares 52 Memorandum. of the Court ‘substantiating order of Motion for preliminary injunction; filed: J uly 20, 1970 16 Order denying motion to reconsider; filed: oe: 4, ee pe foe OEE EES OG FP On eee ane -* Order - denying motion to stays. “flea? September 1 1, 1970 pe teeneeeatertas Come eee ees eseeereseseeseieos : 54 er denying preliminary. tivenotion as : to Avigust 6 - elections; denying application to interverie; deny- — ing plaintiff’s oral application — te be allowed to vote; and’ granting, motion to amend. _complaint; a 7 filed: July 30, 1970 ebeeeees Vets bab sh eeediuan eae ae \ a Order implementing “decision of 8/31/70, ‘requiring 3 NE registrars in all counties. to register all. bona fide bg YK “residents; filed: September 9, 1970 ...... bade em ees 50 a er maintaining class action; filed August 31, 1970 33° ao “gt: Orde vto show cause; filed: fae 21, 1970 . a eae | il é ' * Relevant docket entries eer git undo dae Gb ices 3 Béoly of defendants to order to show cause; filed: , July *, 1970 RN caree t seve seasons Feetee Miss 18 ; eC . Do | 8/81/70; filed: August 31, 1970:......c.s.ce.eeees Bo. Modification of order of 9/9/70; filed: September’ a: : UE ck caviesideds ANOS OSs Te Cee ie ae 55 el “py IN THE Nir STATES DISTRICT COURT _ ‘FOR THE MIDDLE DISTRICT OF TENNESSEE DIVISION - Ke ae ‘ see . ; ea ee te OT Sig TN ae ees : nicl os Ao eye oe ae on: : : ae ° 3 im ty - - HE eo - . James F. Blumstein, = - ; A : , CS ere ae , 2 | :. a a tt =. | ‘Buford Ellington, ARLE, of iy State of. i. ze David M. Pack, Attorney General of the State of Ten- “7... nessee; Joe. C. Carr, Secretary of State of the State of s+ Tennessee: Shirley G. Hassler, Co-ordinator of Elections ‘of the State of. Tennessee; George C. Thomas, Chairman | D of the State Board of Elections of. the State of Tenttessee ; ; Lytle Landers | and James E. Harpster, Members of the | ae ‘State Board of. Elections of the State of. Tennessee ; , Thomas W. Jarrell,’ Chairman of Davidson County ° Election ‘Coramission ; Albert ‘H. Thomas, Imogene Muse, J. Granstaff Dale, and John H. Henderson, Members of - . the Davidson. County Board: of Elections; ‘and Mary, P,. °°. a Segistrar-at-Largs.. of Davidson Compt. State as of Tennessee. 3 "BASIS OF ACTION: Sieiescbuly J idesbiade and Injuno. | | tive Relief—T. 28 USC 2201, 2202, 1343(3); 42 USC 1983; Seeking protection ‘from ‘application. of T.C.A. _ Sec. 2-201, and injunction requiring that all. registra- — _ ‘tion books in all. counties in\ the state of Tennessee remain open until July 29, saan or other’ peampeahie ee 7 RG 2 ae, Nambere appearing ‘in ‘brackets indicate page numbers of — Ain aoe record, — . - Date © - 17-70. 721-70 7 . Plf’s oral: motion. that he (& class) be’ allowed. ~ : . 2 — - . RELEVANT DOCKET ENTRIES . Proceedings Filed: Complaint by plaintiff, = ee _7-20-10° Filed: Plaintiff's Motion for Pietaeey me Ae junction; Affidavit. in Support of Motion.. ‘Order to Show Causé Entered; ‘Defts. tosavipeak” 7-30-70, 10:00 a.m. to show cause. why -prelimi- Brown &. Gray: Judgment. of the Court ‘that — 1-yr./3 | mos. durational residency requirements contained in “Article IV, Sec. 1, T.C.A. §2:201 & . §2-304, are repugnant to Constitution of the . USA, and are therefore null, void ‘and of -no ' submitted by counsel within ten baa icr Saas : | 9- 9-70: " effect; Order to implement: decision .and pro- viding for appropriate injunctive Telief will be copy: to ime y of record. Order Entered—approved by Coiméel; Rédidendy dee requirements * ‘contained in Article IV, Sée. 1, © T.C.A."§9-201- & §2-304 are ¥epugnant to -U. s. . _ Constitution, ‘and are nulj, void and of no’ . Defts. to@ause registrars in all counties of | ‘ to register all. bona fide residents. ‘regardibes i - “nooga, notige of this order; to cause registrars _ Defts. to reimburse pltf. for’ “alt=fees. and costs. _ Attested copy to attys.-of record’ “genes by, 9-10-70 9-11-70 9.99: 70 length of residency ; to cause to be pew tey in Memphis, Nashville, Knoxville and 1 Chatta- to remain open one day after effective date of >. .- __this Order through Oct. 3, 1970 (30-days prior. ‘to election . . . days and hours ‘as*set forth) ; Judge Gray for Three. Jndge Court). ‘Filed: Defendant's Motion to Stay Order ll -- ing Appeal to. the U. S. Supreme Court; Certifi- catet Service; Notice of Motion. Order Entered:. Defendants’ Motion to ‘Stay Or- . der ‘entered 9.9.70 pending appeal is riot well” taken—Deniéd. Att. copy: to attys. of record. Entered: Modification: of Order entered 9-90-70, as. - set. forth. Att. ‘COPY “to eins of record, & » P a ont [3] IN THE UNITED STATES DISTRICT COURT FOR ~ _ THE MIDDLE | DISTRICT OF TENNESSEE ° NASHVILLE pehirreiea! | ae ". ‘Tennessee from. application of T. C.A., § 2-201, whidh-es- . qualified to vote, undergo a one year waiting period in the —, ‘a statute of statewide applicability, and the waiting period: political . aera - vote for United States Senator, and ‘to vate for Unite States Representative; the waiting period requirement also deprives plaintiff ‘and other mem- munities as citizens ‘of the United States, as guaranteed _ by the Fourteenth -Amendment to the United States. Con- stitution. J urisdiction i8 “conferred on this court as a. _-three-judge tribunal by. 28 U: $.C., § 2281 et Sil | ‘Ss i$ st . . . . ; fre, ‘6 a - _+ > (Title Omitted—Filed July 17,:1970) .. 3 iota : ; ra Thiscis a civil sotion’ inftituted to crosesk ‘the siahhe of a plaintiff, and all others similarly situated in the ri, of - _ tablished a non-waivable pre-condition to the’ exettrise : of the franchise,’ “that residents of the state, otherwise _ State: of Tennessee and a three month waiting period in ° ' their current county of residence. It fs an action for a - Declaratory Judgment pursuant to 28 U.S.C., § 2201 and. — for . injunctive relief pursuant to 28 USC. § 2202, 42 UBC, $1983, and 28 U.S.C., “§ 1843(3). T.C.A. 2-201 is - ‘requirement violates the rights of plaintiff and other mem- bers of the clas” ta freedom of travel, to freedom of : _ bers: of the class of their. rights to due process of law, to” equal protectjon of the laws, and to privileges and. im: e.. a } - County before he would be qualified to register and had. . to wait for, one full year after becoming a resident of, the State of Tehnessee before’he could register. This require- ment, she held,. applied to elections for’ United States . . - Senate and United States House of Representatives as — well as for state and local elections. Mrs, Ferrell then | --informed plaintiff of his right to appeal her decision, denying him the rigkt to register, to the Davidson County Election Commission, pursuant to T.C.A., § 2- 319. Plaintiff wrote a letter to the Davidson County Election * Commission chairman, Thomas W. Jarrell, dated July 1, 1970, in which he requested that the county election com-- mission hear his appeal. "By letter dated July 7, 1970, : Mrs. Ferrell notified plaintiff to appedr: before the county. _ \ elect?on commission on the afternoon of July 14, 1970. rs At the meeting, plaintiff repeated his request before all five members of the county election Commission that they allow him to register. He asked that the commission read-into- the statute a reasonable requirement, treating the waiting period requirement as ‘a waivable guide to commission . action, but rebuttable upon a proper showing of compe- ténée- to ‘vote intelligently in the primary ‘and general election. .The members of the. commission ruled any show- ‘ing of competence irrelevant, holding the waiting period — mandatory; 9] non-waivable, and a pre-condition. to. the. exercise of the franchise. . Under Tennessee law, there are - no further: administrative remedies open to plaintiff. rs oe ee nee @.. Last term, the. United States Supreme Court considered the issue of durational residence requirements in the cbn- text of presic ential elections. - However, by the time the Court decide the "case, the-State of Colorado had modi- fied its waiting period requirement so. that plaintiffs | no es longer fell within the deprived class. Consequegtly, the Court refused to reach the merits, ruling the case moot ©. under those special circumstances, Justices Brennan and ‘Marshall dissented, disagreeing with the mootness argu- -‘mentiand expressing the fear that slow adjudication in — such cases in the future might leave aggrieved plaintiffs . with a constitutional right but without an enforceable | remedy. Hall v. Beals, 396 U.S. 45, 50-56 (1969). Clearly, the waiting period requirement, an irrebuttable presumption ~of_non-qualification for. the’ franchise, keeps . humerous bona fide residents off, the voting rolls annually. After cases such as Shapiro. v.°'Thompson, 394 U.S. ‘618 © _ (41969) and Wyman v. Bowens, 38 U.S.L.W. 3311: (U.S. Feb. 24, .1970) where waiting periods as a condition precedent to the receipt of public assistance payments were held invalid, such durational residence Re kr mcondes must be deemed suspect. Moreover, s mee, s _ ton. v. Rash, 380-8-8.-89 (1965) (invalidating dindtiaive _¥ presumption of non-residence for. military personnel for = the purpose of voter ‘registration), Harper v. Virginia . _ . Board of. Elections, 383 U.S: 663 (1966) (invalidating a ‘state poll tax as [10] invidious and irrelevant to the exer- ° cise of the franchise), and Kramer v. Union Free School District No.:15, 395 U.S.°621 (1969) (invalidating a statute restricting the franchise in local school board elections to — property owners or lessees, or parents of children in , ‘School) indicate a growing concern of the Court. with un- - ~hecessary, arbitrary, and overly : mca obstacles to uni- -- versal suffrage. - | Just last. week, in Burg 1 v. Cannite : Ki Supp... (Civil Action—No.. 69-855-C, July 8, 1970), 4 three!judge federal district. court held’ unconstitutional, as a violation of equal — under’ the si atc — a Ss - gD . . “= a ° ~~ nN. eo ee Poe - Massachusetts ‘statute satadlialiing: @ one year "waiting period prior to voter registration eligibility. Unquestion- ~ . ably, the issue is ripe for adjudication now, ae ‘The Constitutional Claim @ : | ‘The United ‘States Supreme Court: has often er that whén fundamental liberties are at stake, a state must . justify any classification which restricts those liberties ~~. by a compellingystate interest... Three different enumerated rights are involved in the case where a resident is-de- . ~ | “nied the right to register because he has not meta manda- tory waiting period. First, the right to-travel is involved... ~~~“ In Aptheker v. Secretary of State, 378 U.S. 500 (1964), the . - Supreme Court. struck down Section 6 of the Subversive Activities Control Act of 4950, 50. U.S.C., § 785, on the = ground : “that the freedom. of travel was: a fundamental / right and that the government could not infringe on a4 when there were more precise, and therefore, less drastic | , Means available to achieve the legitimate congressional . goal of “maintaining the. [11] national security. Citing — Shelton v. Tucker, 364 US. 479, 488 (1960), the Court said a ie | ~ Bven ough the: pereeesiatal: purpose be’ legitiznate - andubstantial, that purpose cannot be pursued by ‘means that. broadly stifle fundamental personal: liber- ties. when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed. in the light of less drastic means for os the _,, Same purpose, | ‘In United States v. Guest, 383 U.S. 145 (1966), the ‘Supreme ¢ Court reasserted: the fundamental nature of the Tight. to travel, in that situation not internationally but _ interstate. Recognizing that the right of interstate travel | - Was secured by. he. United States Gnaatitation, Be Court i. held that it could be protected by federal criminal Rgis- lation. Most recently, the Court invalidated a state wait- ing period requirement of one year before residents were Ne eligible to receive public assistance payments: Shapiro v. : 7 ‘Thompson, 394 U.S. 618 (1969) ; Wyman v. Bowens, 38 ” ‘U.S.L.W. 3311 (U.S; Feb. 24,.1970).. The Court daid the right ‘to travel: meant that a person should be able to . ‘travel ‘throughout’ the length and breadth of our land uninhibited : ‘by statutes, rules, or regulations-which un- } = réasonably “yaaa or restrict. thi ovement.’” Shapiro. Saeed involved 3 is the: right to vote. Wi Wa Ts henry: vy. Sanders, 376 U.S. 1, 17 (1964), the Supreme Court & -: observed that | | i No right is more precious ‘in a free country than that am, “© of having a voice. in the election of those who make © the laws under which, as good citizens, we must live. . "Other rights, even the most basic, are e illusory if the - . Tight to vote is undermiped. While the ‘states “have broad powers. to “aiteniaies the conditions | ander which the suffrage may, be exercised, _ Lassiter v. Northampton County Board of Elections, 360. - - U.S. 45 (1959), no’ state may. impose [12] burdensjm the franchise which are prohibited .in ‘other sections of the. » Constitution. Thus, no state can pass laws: regulating Shes élections in violation of the Equal Protection clause of the Fourteenth Amendment. ‘Williams v. Rhodes, 393 U.S. . _ 23, 29.(1968); Harper v. Virdtole Board: of Mlnchions, 252 8 - US. 663. (1966). a In Reynolds v. sims, 377 ia al 562 (1964), the Court ” ‘since : the right to. exercise ‘the franchise in -a free and unimpaired manner is preservative of other basic 2! * civil and iponnes Tights, ten pats infringement > ) Putt i see eg eee : eg ee an a ee ae Se gee, ~~ Bs . of the right of citizens to vote must be carefully aa meticulously scrutinized. | a » Just as ‘in the Reapportionment (heii the Court looked. _ closely at situations where votes were diluted, the Court will look closely at classifications which deny the right to vote. See Oarrington v. Rash; 380 U.S. 89. (1965); Evans yy, Cornman, 38 U.S.L.W. 4511 (U.S. June 15, 1970). The ~~ * yéason for this careful examination is that ‘‘statutes dis- - tributing the frarichise constitute the foundation of our representative society. Any unjustified ‘discrimination in ~ ' .determining who may participate in political affairs or in the selectionof public officials undermines the legiti. — macy of representative government.” Kramer v. Union Free School District No. 15, 395 U.S. 621, 626 (1969). ) Statutes guaiiting the. franchise. to residents on a | ‘selective basis always pose the danger of denying . some citizens any effective voice in the governmental: __ affairs which substantially affect their lives. There- _- -fore,,if a challenged state, statute grants the right to vote to some bona fide. residents of requisite age and. ~ ms citizenship and denies fie franchise | to others, the Court must determine whether the exclusions are "necessary © to. ‘promote a compelling , state interest. ca Kramer, supra, at P. 626-27. * 2a Thus, when the: Court is examining a slaistfieation which 3 _ denies the franchise to a substantial group, the standard of °. review [13] is very stringent. This is. especially true when the: source of the right to. participate is the federal “Constitution through the Seventeenth’ Amendment and’ | Article I, Section 2. As the Court in Kramer stated, “the. _general presumption ‘of constitutionality afforded state statutes and the traditional ‘approval given state classi- fications if the Court can conceive of a ‘rational basis’ for the distifictions made are not applicable. . . [WYhen the e challenge to the statute i is in offegt a . challenge of this & +13— basic assumption [that the institutions ‘of state govern- . ment fairly represent all the people], the assumption can ‘no longer serve as the basis for presuming constitution- ality.”” Kramer, Supra, at pp. 627-28: | _.. "The third “fundamental ‘right at stake is ‘the First & 2 Amneindapetit right of freedom of political association. The --.. coaleseence of the right to effective political representa- tion and participation and the First. -Amendmént . right of@ a political association was recognized by the Supreme Court = _in Williams v. Rhodes, 393 U.S."23 (1968), where. the. @ ‘Court declared Ohio’s restrictions on third party access ..° to the ballot unconstitutional. The Court asserted that . ‘the right of political association for the advancement. *~- of political beliefs was illusory without the concomitant =” - power’ to transform political beliefs into political ‘acts — through the voting process. Justice , Harlan concurred ‘specially on the First Amendment ground alone. He noted. | that Ohio had not directly limited: the right to assemble . . or discuss public issues, but by denying any opportunity | . to participate in-the selective procedure, the. state in-. fringed an impertant substantive right. ‘‘The right to have one’s voice heard and one’s views considered by the . . . ‘appropriate governmental authority i is. at the core of the : right of [14] association.” Williams. v. dane supra, at P. 41 (Harlan, J. concurring). 3 ; ‘In deciding. questions under the Equal Protection clause of the Fourteenth Amendment, the Court must look at _ (a) the facts and circumstances behind the law; (b)-the .- interests: the state claims to be protecting; and. (ec) the | interests of those disadvantaged by the classification. . Williams v. Rhodes, supra, at P. 30, Since the rights at . stake are fun ental, the Court must undergo a three step analysis: (1) Are the interests the classification pur- ports té ‘farther Jegitimate state interests? (2) If the _ interests are: legitimate, is the statute ‘drawn na er: see engh to meet the test of — ‘See United a tae ue os ‘ a ; pore a ‘ = a Robel, 389 US. 258 (1967); “Elfbrandt v. Russell, “384 =. .* MBead- (1966); Aptheker. v. Secretary of State, 378 US... 500. (1964); (3) If the interest of the, state: is legitimate, ‘ae -and if. the méans used ‘to promote it are narrowly ‘enough | @rawn, is the interest involved ‘so compelling that the ae resultant infringement on. fondaments liberties . is: per es Wheat ‘missible. Gos fas ik ‘ - It is the argument of f plaintift that, it is illegitimate for -Tennessee to attempt to discriminate. against: residents ; . who are recent arrivals from out of state: ing requirement. Plaintiff and the class he represents do : not here challenge the right of the State of Tennessee to reasonable standards of residence. However, the 3 ional aspect of the. waiting. period, a suspect clas- __Sification among residents after Shapiro, cannot be shown - to be. necessary to achieve any of the objectives durational _ Tesidence evaeamar a. s ms . a oo _ UNITED STATES DISTRICT COURT _ MIDDLE DISTRICT OF TENNESSEE ‘ | NASHVILLE DIVISION is J: MOTION FOR PRELIMINARY INJUN CTION : ( Title Omitted—Filed’ J uly 22, 1970) Plaintiff moves the Court for a preliminary injunction , Tequiring defendants Buford Ellington, David Pack, Joe - C. Carr, Shirley G. Hassler, George C. Thomas, Jack Nor-.. - _-man, Sr., Carl McInturff, Thomas W. Jarrell, J; Granstaff Dale, John H. Henderson, Imogene Muse, Albert H. ‘Thomas,. and Mary P.. Ferrell, and ail persons in active concert and participation with them, pending the. ‘final hearing and determination of this avtion, to keep open the offices: and registration: books ‘of all the voting registrars in. the State of Tennessee. until July 29,1970, or for - whatever other reasonable period the Court deems appro- priate, for the purpose of fully and completely registering — - and giving registration cards to the plaintiff and: all .per- _sons similarly situated; and further, to require the defend- ants to publish notice of such extension and of the inten- ~ tion and willingness to register all citizens who are bona fide residents of the State of ‘Tennessee, regardless of the ‘length of time: they. have lived in the state or the county _ of their current residence. Unless: restricted by ‘this Court, defendants i in Davidson . - County. © close their offices and registration books on July 20, 1970; other counties have already closed their . Offices. and registration books.. [18] Such action by. defendants Will remit. in : jerepeicnble injury, loss and damage to plaintiff -and the class he rep- _, resents, causing- disfranchisement in the — 6, 1970, ene primary election. . The i issuance of a Ceeleataaey injunction’ herein will not cause undue inconvenience or loss to defendants, but will ~ suieiemnbementiememninaneie -—17— svennid irreparable injury~to. plaintiff — the sleil he represents. © ie r ‘ . s . °.. J/g/ James F. Blumstéin | James F. Blumstein,. Plaintiff arid Comment Pro Se os [19] IN THE UNITED STATES DISTRICT COURT _° . FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION © a ORDER TO SHOW. © ope | (Title Omitted—Filed Jvfy 21, 1970) In this action, a three-judge court has been convened pursuant to the previsions of 28 U.S.C. 4 2281, the court consisting of the Honorable Harry Phillips; Chief Judge,” -— United States Court -of Appeals; the Honorable. Bailey ‘Brown, Chief Judge, United States District Court for the — Western District of: Tennessee, and the Honorable Frank Gray, Jr., Chief: J geUnited States. District Court for the [20] Middle District of Tennessee. — ae Upon consideration of the Complaint and the Motion - for Preliminary Injunction, the court is of the opinion that a hearing ‘should be had on the Motion for Prelim- inary Injunction.. It is, accordingly, Ordered that the defendants appear before the court on the 30th ‘day of — July, 1970, at 10:00 a.m., to show cause why a preliminary injunction should not issue restraining defendants and all . persons in active concert and ‘participation with them, ~~ .. pending the final hearing and determination of this ac. _tion, from further enforcement of the acer re ” ments of T.C.A. § 2-201: — For the Court: . | Frank Gray, Jr. United. States District J ude (Sarat Omitted) = ai a ate aeeieaeaeinnmantitiienteaelieniestememinen tenis cent teeta ee * . . bad a és =f ‘ - ei ° ° ° : : . . o - a . . € : : ; . . . 7 ° . i ° : . sd . gs x os) IN THE UNITED STATES DISTRICT COURT | , _ >. | MIDDLE DISTRICT OF TENNESSEE — (oe, FF _ F cnk aa AT NASHVILLE eo thes OY _ a "REPLY oF DEFENDANTS TO ORDER ' "-_ TO SHOW CAUSE . _ (Title omitted—Filed J aly 30, 1970) : Gils the ‘defendants j in * above styled cause, and in reply to the order: to show eaten, say: é - . . | The plainti Zook @ preliminary injunction restraining - = défendan d all persons in active concert [22] with : . them, from™-fefusing to register, and permitting to vote, the ‘plaiktiffs and all others who wish and who qualify | therefor, except for the residence laws of this state. Plain- . tiffs particularly attack the constitutionality of Section _ 2-201, Tennessee: Code Annotated, which fixes the resi- _ dence requirements : for voting in this state at twelve (12) months in the state, and ‘three (3) months in the county. : An intervening petition has been file by George Bi Sanders, represented by Mr. George Barrett, for the Amer- . -. jean Civil Liberties Union, seeking a declaration of rights _ | for himself and others of his class"who have resided in , ¥ this state less than one year but who. has resided in the . county for the. three months required for local residency. Intervenor also puts at issue the residence provisions of Article IV, Section 1 of the Tennessee Constitution, as well as Section 2-201, BOA. eS wy, 8 AES su i al | - Defendants renpeetfolly resist any such injunctiye proc- nf ess as being designed to bring about ehaos in the up- . - : oe coming — general a and primary elections. Such is not | a y ek : warranted under the. allegations in the complaint. There - are only four (4). work days between the date of this — hearing [23] and the August 6, 1970 elections. It is highly. impracticable, if not impossible, to order the ninety-five (95) County. Election Commissions in the state to re-open registration .prioy to the August elections. The final hear- ing can be held in advance of the November electidns, so the granting of a temporary injunction would serve now purpose, and might engender great harm if grarited with- out the benefit of a full hearing, at which time the main issue could be ‘determined. ; o A court should act. with utmost caution hin it is . asked to exercise its extraordinary power to issue ans injunction | t a coordinate branch of government, especially when the court is asked to give temporary « or preliminary relief without benefit of a full. hearing - and opportunity to be fully. advised on all issues.’’ ‘American Bank Go. v. Blount, 295 F-Sup. 1189 : (citing Yakus v. US., ae Oe 660). 2 The deteimsinntion of a: motion ‘for 7 preliminary + ‘injunc-’ tion requires the Court to weigh the movant’s likelihood of success in the: ultimate action, and the possible irrep- arable injury-if motion is not granted against the possi- bility of injury to other parties if motion is’ granted, Ler} mon v. Tenney, 295 F.Sup. 780, likewise citing Yakus v. ‘U8. supra. Further, where the injunction is. sought against. a public instrumentality, the movant must demon- strate a higher probability of success and damage of [24] | — irreparable harm than would be required against a private — . party, Penn. Central: v. Pub. Util. Comm., 296 F-.Sup. 893. Generally speaking, three broad areas should be explored . and weighed by’ the Court'in determining whether to issue a temporary injunction. These ‘are stated in Hosey.v. Club ; Sate a= —20— Corp. v. Koppers Co., 366 F.2d 199 (2d Cir., 1966); as being: iL Probability that a will succeed on merits; | 2. Harm that will - befall vlaintifig? motion is — _and “ 4 . 3. Harm defendasit will suffer if it is are will address themselves’ to these three broad areas. on ¢;) Probability That. Movant a ™ _ Will Succeed on Merits. Sa three-judge .District Court. in Massachusetts, striking _ in that state, imposed over a like six months residence. the district. Though most recent, it is hardly pera naive ‘ings to the contrary. A few’ such holdings are: - Artiele I, Section 2, ‘of the Federal Constitution makes _voter’s »qualifications rest on state law, even in federal- "elections. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801. _ The states have the power fo- impose reasdnable citizen- ship age and residency requirements on the availability of the ballot, Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886.&,See also, te Rush, 380 US. 89, 85 S.Ct. 775. —— oe state and federal sufferage. Forssenius v. Harman, 235 = > F.Sup. 66, aff. 85 S.Ct. 1177, and. , [26] The several states: ‘may impose age, residence and eral election so long as such requirements do not. discrimi- ? There are other factors to be considered, but defendants The plaintiffs base their legal authority on a decision of =, deen a six months state residence requirement for woos | in view of numerous United States Supreme Court hold-. . Residency is a qualification seed required for poth | other requirements on the right to’ vote in a state or fed- | VanCortlandt, 299 FSup. 501, citing Univon Management Ae a rh nate against any | —_ of citizens a: reason of race, color _ —21— or other inyidious ground and so long as such require- . Inents are not so unreasonable as to violate the equal pro- ~ tection clause of the, 14th Amendment, Drueding v. Dev-. _ lin, 234 F.Sup. 721, aff. 85 S.Ct. 807. From the above, it is clear that age, citizenship ‘and residency requirements are factors which a state may take - . ' into consideration in determining ‘qualifications of voters. . . In the case sub judice, the only possible catt. could . _ * be made under existitig case ase law is the ‘reasonableness of ‘Tennessee’s one year in “the state and three months in the county requirements. What, then, is a reasonable _timet Who is most competent to judge it? _ In Krainer v. Union Free School District, 89 S.Ct. 1886 — 1969), at pages 1894-5, the Supreme ‘Court said: . “Clearly a state may ‘reasonably assume that its resi- dents have a greater stake in the eutcome of elections held within its boundaries than do other persons. Likewise, it is entirely rational for a state legislature - to suppose that residents, . being generally better in- . formed regarding state affairs than’ are A> will be more likely than nonresidents to vote respon * sibly. And the same may be said of legislative as- sumptions regarding the electoral competence of adults and of [27] literate persons on the one hand, : - and of minors and illiterates on the other. It is clear, | _ of course, that lines thus drawn can not infallibly per-° form their intended legislative function. Just as illit- erate people may be intelligent voters, non-residents or _ minors might also in some instances, be interested, i ‘In- formed and intelligent participants in the flectoral . process. Persons who commute across a state line to _ work may well have a great stake in the affairs of the state in which Fd are employed; some college : _gapndents under. 21 “may be both . better. informed and. _SSfnore- passionately interested in poljtical affairs than — many adults. But such discrepan es are: ‘ the inevi- . @ : . > oe *” movbee —22—. table concomitant of thé line drawing that is essential: . to law making. So long as the classification is ration- ally related to permissible legislative end, therefore - —as are residence, literacy and age requirements im-- posed with respect to voting—there is no denial of equal. protection’’_ (Emphasis. 8 upplied). ‘The authority of states to fix residence requirements : surely are ‘ undenied: Is‘one year in the state reasonable? At the present time thirty-three states, Puerto Rico and ~ ca - the Virgin Islands, require one year; fifteen states require days. . Residence in the county ranges from thirty days in Arizona, to one yearin Mississippi. - _.s8ix months; one state. three. months, and one state ninety | “The « eplaintiffs 3 in this case only make attack on a state _ dhatele, Section 2-201, Tennessee Code Annotated. If it were struck down, ‘Article IV, Section 1, of the Tennessee © — State Constitution would still require such residency. In- tervenors, if allowed to intervene, also attack. Article IV, _ Section 1, of the Constitution. i 5 7 _ [38]. Defendants realize that the Constitutional provision requirements in county, —. six to three months. _can also be struck down, if violative of the United States Constitution, as alleged, but this simply emphasizes the ~-prematurity, along with other matters pointed out below, of a preliminary injunction before the August electio or before the hearing of the case on the merits and termination of the rights of the parties. The urgency, - exp by plaintiffs. is unrealistic in view of the fact - that the restriction on voting has been at least as great as at: present since the enactment of Chapter 10, Public _ . Acts of 1970, and the 1870 Constitution.! In addition to. the matter of an informed electorate of . | * compelling state Ri is the matter ‘of fraud flooding 1 The- Constitation. was. ceundel in 1953 to change residence | a . : * — 23 — : ad 4 of the polls, intra-precinct voting, and other factors which ‘must be regulated: to insure purity of the ballot box. This compelling state interest is recognized in the Tennessee — Constitutional provision setting residence requirements for © voting (Art. IV, Sec. 1). The second paragraph of ma . 7 article. provides; “The General Assentfly shall ices power to eainnt : _ laws requiring voters to vote in the election precincts Ge in which they may reside, and laws to secure the free- $ _ . dom of elections and the purity of the ballet, box.”* [29] In Cook v. State, 90 Tenn. 407, at page 413, our Ten- nessee Supreme Court, in considering state regulations on _ voting, had this to say:? “‘The Constitution surrounded the right of sufferage with some. inconveniences, and authorized the Legis: lature, to attach more. . . . The statute in nowise in- fracts the fourteenth anienibiondh to the Constitution of the United States. Article IV, Section 4, of that . \ . _ instrument guarantees to. every: State in the Union a ee. republican form of government. No government can ‘be republican that fails to secure the purity of elec- _ tions. By these terms of the United States onstita- 2 . tion, the Legislature of each State has the organic ‘au- thority for the passage of such laws as will secure - that purity, and it cannot be urged that such laws abridge ..the privileges or immunities of the citizen. ‘In the matter of voting, tle only privilege one has is _ to cast his ballot fairly; and not interfere with others — by fraud, force or Serene His , Pena, are per- sonal.” . | -Oook v. State, supra, also painteds at! page 410, that: ‘‘Citizenship of the. United States is a prerequisite, as — fixing such’ interest in the welfare of: the Federal Gov-_ ' 2 This case . involved Teaunsipede ensetment. 0 € Dorteh e : heliot ON 2M iereet, og : hae ~ 4 | - a ernment as supposes a atudy of and acquaintance. with its governmental policy, and so of residence in the State and county, as 4 as to becotne acquainted with the character and capacity of the men who might . ask office. These restrictions. are terms of educational probation.’?- : a 130) In speaking to the ssinjeon: of siitaigiah requirements for — it is said in 18 Am. Jur., Elections; .p. 217: “The purpose of such a provision is twofold: (1) It *, constitutes 4m fhvaluable protection against fraud through colonization and the inabilify to identify per- _ sons offering to vote; and (2) it further affords some surety that the voter. has, in fact, become a member — of the community and that, as. such, he has.a common interest in all matters pertaining to its government and, is therefore, more likely :to exercise his right ‘more intelligently.’’ In 25 Am. Jur. 2a, Elections, ae page 758: “ , . State constitutions and statutes generally re- vite: -a8 & prerequisite to the right to vote, that. the electors shall have been.a resident of the state, county ~~ ‘and voting district for a specified period prior to the ? election. The object of provisions prescribing resi-— _ dence as a qualification for the exercise of the right © of suffrage’ i is not merely for the purpose of identify- ing the voter, and as a protection against fraud, stich provisions afford a medium of protection against those who have | been. living in the district only a short time or who have no intention of éstablishing. a permanent residence in-the area and hence have little interest or opportunity to become informed - voters on community needs, and it has been held to be a reasonable legislative regulation. concerning the - ‘ exercise of the voting privilege.’’ Howard. y. Skinner | (Ind.), 40-A. 379; Wright v. Blue Mountain —. Dis., 328 P.2d (Or.) 314. ZX - ' tion. Tf this Court agrees with the District In 20 C.J.8., Elections, at pages 68 and 69: ‘The object ‘of prescribing residence as’ a " qualifica? ih 4ion. for the elective franchise [3}] is not only to identify: -voters‘and to permit frau, but also to as: \ sure that each voter will become in fact a member of ” \ _his 60mmunity and take an ‘interest in its guvern- . ‘ment. i Finally, i in State v. Cloeky, 3 37 Tenn. 482,” the Tennessee _ ~ Supreme Court spoke to this question in connection with : residence ° ea on naturalized ores ying," part: a may \| \be eau too, that this ‘construction of - the Constitution’ may tend, in some degree, to check. - @ very serious practical evil, in the judgment of Tight- . “thinking men--the. mischievous struggles, in some quarters of the country, on the eve of an election, \. ‘to manufacture votes for. the oa, no matter. - y\ how.”’ “Sta Bh ~ a | Marm ‘That Will Baall Plains if Motion Is Denied « AS 7 Cothplainant Blumstein ‘has -not alleged that: oe is no. longer eligible to vote in the. state\of his former residency. He ifierély alleges to be knowledgable enough to vote: here. He would only be restrained from doing that which ~ : _ others like him have’ been restrained from doing for one - hundred years. At the most, he would, be’ deprived of - - voting in this state and county ‘in the August general and . ‘primary elections, if the injunction is denied. There ., would be suffiient time ‘for a final dete ion of the rights of the parties*before the November geiieral elec.. would arash not -. cligible to vote in the Angust, 19 0. ee one —%6—- elections: He sini that he ‘moved to" “Penman June 12, 1970. He would, in. fact, still. be ineligible to vote in _ the Noyember, 1970 elections, under that. holding. Inter- @ venors might ‘meet the’ Massachusetts test. * Certainly: the’ Tennessee residence requirement com- ‘plained of does not discriminate against him (or any [33] + : il of citizens, if’ this is a legitimate class action) by - — ~. peason of race, or. color, nor is such ‘‘invidious,’’® where. _2 + dit-is the same- as imposed in this state ‘against all alike . for one h dred years, and is the prevailing term of resi- _” dency ‘in & siderably more than one-half of the States of | Harin the Defendants Will Suffer aS aaa i if Injunction Is Granted ee aes noes ve he earlier pointed’ out, there are only four working days “between the date of this hearing and the August 6th elec-_ tions. It. would be extremely difficult, if not impossible, _ for the Election Commissioners i in the ninety-five counties © to re-open. registration of voters, prepare permanent. regis- tration, forms, duplicates for’ each voting precinct and-: ‘otherwise comply with state election laws’ before. the Au- ° , gust elections. If manpower were. available to do this, ~~ the danger of error and improperly prepared [34] books | at the polls | would be practically inevitable. The proba- . bility of fraud would be real; persons not made a party - . to this suit and, therefore, not. given an opportunity to. defend, would be proceeded. against ‘equally with those ' properly ,before the Court. Although the State Board of . Elections, by the provisions ‘of Chapter 107, Title 2, Ten- - |. nessee Code Annotated, appoint the: County Election Com- _—_—sa«. ty thissionera, such County Boards are appointed for a speci- . , ™ ‘fied term (two years). and once appointed, they are yot — ‘in any way under the‘control of the State Board. They + Deweling Devlin, dapea. a. a 5 os nd tates ase oT ee a $y/- 4 i" x - eg ; —— , are autininions 3 in ‘eae: eccilae Only the Davidson County - Election Commission i is before this Court. ‘It would be as ~ [gical to say: that since the General: Assembly appoints : the State Board, service on the Géneral -Asesmbly would britig the State Board into Court, as to say service on the ee ‘State Board brings the County Boards before the Court. ‘.- Or even more extreme, the people elect tke General As- ~° ; . * *gembly, so the suit should be James Blumstein v. oe ’ People of ‘Tennessee. Defendants realize. ‘the other Coufity. Boards could,-by amendment, be made parties, but this is ee. - one of the reasons meritioned above whiy a pettisinary eo - injunction. would be premature at this time. - | - .. Farther: harm to defendants should be tiviloiak in the | eee event, the injunction is issued, and it later develops [35] '. that, such: was _improvidently granted,’ and the final de- : termination i is that: the Statute and Constitutional provi- ‘gion are reasonable. Registration books would then haves? :; ‘to. be reopened and, unqualified voters purged. . In the 3 7+ meantime, such unqualified voters may. have voted i in the: — * August elections in sufficient number*to change the mt es come of. one or more election, and election contests would — . « be necessary to void such sdeotions, and new elections ae oe | | ee In short, ve PER. a plaintiffs ‘email, eaneil tono.._- . -more than being deprived of.a vote in one. (1) election ‘in this state (while probably still entitled ‘to vote in the _ * elections in their former state) as opposed to the irrep- arable damage set out above that. could beset defendants if the npeetion be Srented. & Massachusetts V. Teaneaes aa the over-all effect of the Massachusetts resi- i denée requirement is one year in the state, its basic re- “quirement is six morths. The Court there found this to be — but found the additional a of, ; ‘ - eid oe a a “3 He : 1s Aes - ° one year in the staté invalid becanee the defendants es : relied only on the presumption of constitutional validity, ‘and offered no evidence, and that . . . ‘‘consequently, there ‘is. nothing before this court on ‘the basis of which any ruling can be made-that the second six months of the ° one-year durational residence requirement contained in | _ Mass. G. L., Ch. 51, Sec. 1, serves to’ promote any coth- oe pelling interest’. ... We intimate no opinion as to whether any other durational residence requirement short of twelve months may be found to serve a compelling state interest.’ That Court ruled as above after acknowledging that states have a legitimate interest in requiring their - voters to establish that they have satisfied a durational ~ residence requirement and setting forth compelling rea- . . ° ° . . : wee trary in fixing the age of twenty-one years, and proceeded to arbitrarily fix eighteen years, even though many states, includir Tennessee; have in recent By stipulation of the parties, it ‘was. sense: that the hearing this date would constitute the final hearing on the merits on the application for the permanent. injunc- tion, [41] and that there are no. factual issues requiring - that evidence be-adduced. Counsel also waived further oral argument, and it was Ordered that the plaintiff and defendants would be allowed to file such additional and supplemental briefs as they. may desire on. or before’ * August 10,1970. It ‘was also Ordered that George E. Bar- rett, Esquire, attorney for the proposed intervenor, George . B. Sanders, Jr., be allowed to file a brief amicus’ curtae, -- . such. brief also to be. filed on or before August 10, 1970. Plaintiff moved for leave to amend his complaint to” include ar attack on the validity of the residency require- ments set forth in Article IV, Section 1 of the Tennessee oo. Constitution, and the court Gran ee leave. | _/8/ Harry ° Circuit, Judge /s/ Bailey Brown ~ ‘United . States District pon /s/ Frank Gray, =: United States District Judge (Surat One): « ov . . « . : ; = . ° . . [42] IN THE UNITED STATES DISTRICT COURT ROR: THE MIDDLE DISTRICT OF TENNESSEE — || + NASHVILLE DIVISION e ORDER "(Title omitted—Filed August 41970) 4% -Plaintiff has moved the.court to reconsider a portion of © ‘its order of July-30, 1970, and to amend that order by providing that plaintiff be allowed, ‘¢| |. a8 representative of the class on whose behalf he sues, to cast a provisional ballot in the August 6, 1970 Primary and General Election, . atid impound his ballot, -subjectyto a final sdjudication of _ this: eause on the imerits.’’ =, Upon consideration, the court is of the opinion that the ‘motion is not well taken, and it is Denied. | _ For the Court: Eon Frank Gray, Jr. a ".. United States District Judge ‘(Surat nace [43] UNITED STATES DISTRICT COURT _ MIDDLE DISTRICT OF TENNESSEE |. NASHVILLE EON AMENDMENT TO COMPLAINT (Title: omitted—Filed August 10, 1970). - Parsuant to Rule 15(a) of the Federal Rules of Civil =. |” Procedure, and the: order of .the court of July 30, 1970, .° - plaintiff amends: his Complaint in the following respeét: — 33— : 1. Amending line three ofthe fist paragraph of 7 page one as follows: -Tennessee from. application of Article IV, ‘Bes. , 4 tion 1, and T.C.A., § 2-201, which eatabliahed’ 2. Amending’ line. ten of the _ peragraph of page: one as follows: & §1983, and 28 USC, § 1343(3). Artiale IV, Beo- ‘tion : Be and TOA, §:2-201, have | . /s/ James F. Biwanstein | James F. Blumstein . __ Pro Se [44] IN THE UNITED STATES DISTRICT COURT _ FOR. THE MIDDLE DISTRICT OF TENNESSEE. - |. NASHVILLE DIVISION | "ORDER - (Title omitted—Filed. August 31, 1S) . In this case plaintiff sues, in his own behalf and on behalf of all others similarly situated, for a declaratory . judgment and supplements). i injunctive relief. He attacks the three-month and one year durational residency re-- quirements on\ voting and voter registration, contained in _ Article IV, Settion 1. of thé Tennéssee Constitution, in . TCA, § 2-304, as repugnant to the United States Consti- . tution. Re \ : It appearing to the court that the four [45] sneak | "sites to a class action’ enumerated in Rule 23(a), Federal. .. Rules of Civil Procedure, a are specifically met by the class _* .on whose behalf oe nlaigplt sues, and it further appear- ad —%4— __- " ing: that. the soeditiden enuinerated in ‘Rule 23(b)(1) (A), | in Bale 23(b) (1) (B), and in Rule 23(b) (2), Federal Rules - of Civil Procedure, are also satisfied, it is therefore Or- dered, pursuant to the provisions of Rule.23(c)(1), Fed- eral Rules of Civil Procedure, that this class: action may __be so maintained. aoe oe . jal Harry Phillips - Paes _ Circuit Judge — [s/- Bailey Brown —. ‘ ' ‘United States District J wdge - Jaf Frank Gray, Jr. Ne ies United States District. J judge - 4 i, Jurat Omitted) ee . 3 oe [46] IN THE UNITED STATES DISTRICT COURT | FOR THE MIDDLE DISTRICT OF TENNESSEE . ‘ NASHVILLE DIVISION: o . Jaina F. Blumstein v8. ’ Buford Ellington, Governor of the - _ State of Tennessee; David Pack, ' ‘Attorney General of the State of Tennessee; Joe C. Carr, ‘ieee. 1 ‘tary of State of the State of ' Tennessee; Shirley G. Hassler, Coordinator of Elections. of the | State of Tennessee; George C. Thomas, Chairman of the State . Board of Elections of the State ' of Tennessee; Lytle Landers and- . James E. Harpster, Members of the State Board of ‘Elections ‘of the State of Tennessee; Thomas " [W. Jarrell, Chairman of the _ Davidson County Election Com- mission; J. Granstaff Dale, John H. Henderson, Imogene Muse | _ and Albert H. Thomas, Members of the. Davidson County. Board of Elections; Mary P. Ferrell, . _ Registrar-at-Large of Davidson County, State of Tennessee. Ls! ( Filed August 31, 4 a DRANDUM : 1970) “Before: Harry Phillips, Circuit ‘Judge, Bailey mili and - " Fraik _ Jr., District ‘Fudigos. =~ ‘lian District Judge. This is ax -anhigky Bite : declare * tery. judgment and supplementary injunctive relief, pur- guant to 28 U.S.C., §§ 2201 and 2202, in which plaintiff, _ in. his own behalf and on behalf of all others similarly [47] situated, attacks the three-month and one year dura- tional residency requirements on voting and voter regis- tration contained in Article IV, Section 1 of the Te , Constitution, and its statutory implementations in the Tennessee Code Annotated as repugnant to the. Constitu- .tion of: the. United States of America... A three-judge court, required by 28. USC, § 2281, has been convened undér the provisions of 28 USC., § 2284... Plaintiff moved to Tennessee:on June 12, 1970, and established his home in Nashville. He-is under contract of employment as assistant professor of law at Vandaer- bilt Law School, and, consequently, intends to remain(in Nashville indefinitely. He is thus.a bona fide resident of the State of Tennessee, and this is undisputed. "On July 1, 1970, elite libihece WW sini vt tn : Registrar-at-Large of. Davidson County, where he at- tempted to register to vote. He was informed that, ‘in - order to qualify for registration, he had to have been a ; - vesident of Davidson County for the three-month period ‘next preceding the forthcoming election (to be held Au- gust 6, 1970) and a resident of the State of Tennessee for the one year period next preceding that election. Ac- cordingly, his attempt to register was refused. Pursuant to T.C.A., § 2-319, plaintiff appealed the deci- sion of the Registrar-at-large to the Davidson County . i . “Election Commission. , At his appearance before the Elec- tion. Commission, he was._informed that the’ durational residency requirements were mandatory’ and that no ex-. ceptions could be made in his, or any other, case. Having ; thus exhausted his state statutory administrative reme-: dies, | he brought Cle. geie. - “In his original complaint, plaintiff ignored’ the [8] : fact that the durational residency requirements herein - under consideration are contained not only in T.C.A, § 2.201, but also in the Tennessee Constitution. He has - oo therefore amended his complaint so that the validity of both the constitutional and the statutory’ provisions is— at issue in this case. It also appears that the Ten- be? nessee durational . residency requirements, apply to. voter registration, as well as to actual voting; by virtue of T.C.A., $ 2-304. We hereby take Judicigl notice of that fact, and the remainder of this opinion is thus addressed = - to’ the following issue: Whether the one year and three- month durational residefcy. requirements contained in- Ar- ticle IV, Section 1 of the Tennessee Constitution, in’ -T.C.A., § 2-201, and in T.C.A,, § 2-304, are repugnant “ae - the Constitution of the United States. We are faced at’ the outset by the srehieiis of whathes this is a proper. case in which to consider the validity of the three-month requirement. The August 6, 1970, .pri- mary and general élections have already been held, and plaintiff will have met the three-month requirement by the time of the November general election. As, indicated above, plaintiff desired to vote in the August elections, and, to do , he requested that this court issue — a temporary injunction which would. have had the effect . .. Of opening the Davidson County. voter registration rolls — fo Tim and to AB others siiailarly piteated wo teat: Chay The Nae A injunction | was ‘saligaaih bs this court on _ the ground that it grould be “‘so obviously disruptive ‘as to constitute an example of jee improvidence.’’ Aware that he will have /met the three-month require- ment by the time of the November election,. plaintiff next . ‘filed a motion to be allowed to cast a sealed provisional [49] ballot in the sreevdas 1970, — and general — 38 — * jadatied, ‘ith Ghoitderks/6f thie: coud, hai keoping the three-month aspect of the case alive ‘as to him, pending - ultimate adjudication on the merits, ard avoiding dis- missal of that issue as moot. This motion -was denied ~ also, on grounds essentially the same as ‘those for our refusal to issue the temporary: injunetion. = | _ Despite plaintiff's. fears as to, the’ possible inectiiake of the three-month requirement issue,.we are of ‘the opinion ~TnJone of: the concededly imperative: policies be- ee cool the constitutional rule against - entertaining moot ' controversies would be served by a dismissal i in this case,’’ ‘ Sibron v. New York, 392 U.S. 40, 57 (1968), and that, 7 indeed, the three-month issue has. not been, rendered moot by the passage of the ‘August elections without peels ce having been allowed: to ee therein. istrative difficulties which ‘would have. beén entailed by its implementation. The eléction was then conducted, and, - as a result, the defendants argued that the case had been rendered moot. The Supreme Court disagreed. Applying the test first enunciated in- Southern Pacific Terminal Co. __ y, Interstate-Commerce Commission; 219 US. 498 (1911), Mts Court held that ‘(t]he problem is . ... ‘capable of repetition, yet evading review’ [citation samttony [and] | Ne _ [t}he. need for its resolution thus reflects a continuing A “” controversy in the federal-state. area... .’» Moore, ) eupra, at S16. pinoy Ab chu), hae | ‘That the Tennessee dhircd-ahinitih pervween dideiilatat [50}, raises precisely such a problém-—‘‘capable of repeti- tion, ‘yet: evading review’’—is obvious from a cursory 7 - atialysis\ of the factual situation which such a requirement " creates. as stated by Mr. Justice Brennan, in his dis- r eating). eplidieg: insted like it: ttedice Beals, 396 US. 45, . fee ee ee eee ’ dency requirement: i. ae ns ; ‘“‘[T]he constitutional challenge to the . oe rado statute is peculiarly evasive of review. This is | because ordinarily a person’s standing to raise that ~ question would not maturé unless he, had become & Colorado resident within two months prior to a(n] ~. 2°. election. Barring resort to extraordinary ex- i ‘pedigala: that interval is obviously‘ too short for the 2 exhaustion of state administrative. remedies and the 4a completidf of a lawsuit. . iy oo oe hig sesemsing. apulceandi deol nance a uate _ bar. Indeed, it applies with greater force, because of the . fact that,- unlike the Hall situation (discussed ‘at greater length, infra), there has been rio amendment to the Ten- __ peasee, thrye:mmonth provision, tekitg: the, plaintifl.out of . the class aggrieved by it. _ ! At ‘ftbt’ Vint; ths reopnt Bits 6f'the apron‘ Ohare ; in Hall, supra; wherein an action challenging the validity of ‘the Colorado durational residency requirement was held to be moot, might appear to have implivations for the case at. bar: * Nevertheless, this court is of the opinion that the decision in that case is inapplicable to the in-- stant situation. | , ra : ‘nibhge hecank aaa gees , troversy, the statute called into question was amended by _. the Colorado Legislature. Thus, viewing the ein the Colo- the instant case, “. © . under 4 statute as currently written, the snveliante could. have voted i in’ ' [the election fe in question] . . .,”? and therefore the case. was no - ‘longer ‘‘. . . a present, [51] live coritroversy of the kind that ‘must Ee ee opinions en ae “abate propositions of law.” Halls supra, at 4 (empha ‘The Court noted that the ie sw aks that ii’ was impossible to grant plaintiffs the relief they had prayed ° + for, and that they had, in fact, /satisfied the ‘residency requirement originally ‘under -attack. Nevertheless, : the... Boats specifically noted that .the case’s mootness was | -apert from’ these considerations: . . .”” (emphasis ae “ added). In short, the: case was held to be sae not be- .. ae cause the election had already been held, but rather: be- cause the: statute ‘under attack was no longer operative. cae Re Thus ‘a ruling on the’ validity of the pre-amendment stat-. - ate, would, indeed, have been nothing more than an ad- rag visory’ Opinion on an’ Bence proposition of law. The _ Court found it **.|. : imipossible to grant apptjlants the - relief ‘they. sought + in: the District Court,” because relief ES _of any’ kind quite Abviously cannot be granted against - 7 ~the operation ofa nonexistent statute. The . Tennessee * ‘requirement, ’.quite unlike that of Colorado, remains. in - full force- and effect, and thus the mootness holding in _ Hall v.. Beals, as well as the rationale for that holding, | in inappligable to the onse at bar. The Hall Court also. refused to sisal di olaislitte be- > lated attack on the Colorado statute as amended. l. art stated.that the ‘‘. . amendatory action Of the’ Colorado egislature has surly operated to render "this case moot,’’\it is Glear ‘that the Court’s refusal to ©, consider the amended statute /was actually based more on ; . the: question of plaintiffs’ standing to challenge it than: re on the doctrine of mootness. The Court specifically noted ~ thatthe amended statute did not affect either the plain- co pfiffee “... oppresent : interests, or their. interests at. >. a _ time this litigation was commenced,’’ and [52] that they had never ‘been members: of-the class aggrieved by the a 3 . nde d statute. sot _— there i is a vast. difference | in = between : ‘Melding: a case to be ‘‘moot”? er it ‘eivilived : .. an attack upon a statute by a plaintiff who has never been "affected by that statute in any fi ion whatsoever and ~ in holding a case to be ‘‘moot’’ when, as in ‘the case at _ bar, the plaintiff has been directly affected by the statute under consideration and has attacked. its validity con-. sistently, _by means of every. procedure available to him. Thus, given the ‘factual. situation - in Hall v. Beals, the _ Supreme Court had to~alternative but \to hold as it did.: _ But it is different here, and the considerations of moot.——— ness and standing raised i in Hall Re. not apply. | The fact that tlie Hall rationale tise: not apply to the case at bar is graphically demonstrated, in a case decided the same day as Halli v. Beals. That is the case of Brock- - ington v. Rhodes, 396 U.S. 41 (1969), in\ which the Su- preme Court also dismissed. an attack upon a state election . ’ law for mootness. There, as in Hall, the statute i in ques- tion had been amended before final adjudication. of the controversy, and the election had already been: held. The '_ Court noted, ‘however, that the plaintiff in that . case, un-- _ like ‘those in Hall, was still, aggrieved by the statute as ‘amended.. Consistent with our discussion of the. inappli- cability of Hall to the case at bar, supra, the Supreme . Court in Brockington refused to hold that that case was mooted merely because of the statutory amendment and subsequent election. . Rather, it based its holding of moot- ‘ness squarely on the ground that plaintiff had“, . sought Ne only a writ of mandamus to compel the appellees to’ place his name on ‘the ballot as a tarididate for a particular Office in a particular election . mt Brockington, supra, at 43 (emphasis added); and that such relief was obvi- ously impossible [53] once: the election had taken place. “. In fact, the Court indicated that relief might well have — been - forthcoming if - plaintiff ’s prayers had been for ‘broader measures:.‘‘He did not sue for himself and others nu situated as — Voters, as-he might have : —42— - ork and} Ih}e did not peck a sidinnes indgment, al - though that avenue too was open’ to him.’’ Since plaintiff herein has, in: fact, brought a class: at: - tion seeking a declaratory judgment, it is clear that, un- _ like either Hall or Brockington, the relief he requests is still. available. Thus neither of those cases ‘constitute - @recedent which would warrant 9 refusal by this court to consider the three-month requirement whose constitutio validity this plaintiff has ‘challenged. Indeed, - ton can only be read as supporting the view plain- tiff’s attack upon this requirement has not been rendered - moot by the fact that the Aner 6, » elections have . ‘already been held. This court is thus of the opinion that plaintiff *3 case — is not moot as to the three-month requirement: Further, ~ plaintiff is. still a. member of the class aggrieved and will remain so until September 12, 1970.! It follows that this is [54] an appropriate case in which to ¢onsider the validity of the ‘Tennessee three-month requirement, along with that. State’s 20 ~~ ing pomp and this court 80 | holds.. Given, then, the fact: that hl th the Tennessee one wear. - and three-month requirements are properly - before this court for qgnsideration, it remains to determine the ap- eerie ‘standard against which ‘to test their constitu- Sites Homeny: “US For this reason the court need not consider the question. _ of whether plaintiff could still maintain suit to protect the . rights of: the class even if he were no longer a member of it. In this connection, see generally Griswold v: Connecticut, 381 U.S. 479 (1965); Flast v. Cohen, be U.S. 83. (1968) ; Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) ; ‘Walling v. Haile Gold Mines, 136 F.2d 102. (4th Cir. 1948) ; ; Buckner v. County | 1 Board, 332 F.2d 452 (4th Cir. 1964) ; Cypress v. Newport . "News General and Nonsectarian Hospital Association, 375 F.2d _ 648 (4th Cir. 1967); Jenkins v. United Gas Corp , 400 F.2d 28 (5th Cir. 1968) ; Estaban v. Central Mo. State College 415 F.2d 1077 (8th: Cir. 1969). at § v —-g— fs Fs e “Tt has boon ropeaiadly revogninadl hat all quali voters have a constitutionally protected right to vote . Reynolds v. Sims, 377 U.S. 533, 554 (1964). ni: ae ever, universally conceded that them under the fourteenth amendment; and (6) does not bear a reasonable relationship to any compelling State interest in the conduct of Presidential elections. @ The court feels. that teaBBinding reflect ‘the. current trend of the law. Moreover, it is-obvious that the: ‘‘irra. tional or unreasonable’’ test for the constitutionality’ of of voting rights statutes enunciated in Drueding, supra, has _ been superseded by the ‘compelling state. iriterest”’. test mentioned by Congress: in. subséctioh 6 of. = 1970 Amendments, supra. The evoluti of this latter test need not st ale elab- orated, for it is clear that, as said by the three-judge . : court in Burg v. Canniffe, . = Supp. . . (D. Mass. July ? 8, 1970), ‘‘[a]ny lingering doubis ‘that the compelling in- . terest test must be used in determining the validity of: state voting statutes . . . [were] permanently put to rest . by two decisions of. “the Napkeas Court handéd down... on June 15,. 1970, in Evans v. ‘Gornman, . - and - June 23, 1970, in City of Phoenix v. Kolodsiojaki, aes eee UR: 26 Likaza 570, ‘the -. Court said: ‘Mewehier, the right to vote, as the citizen’ 8 link to _ his laws and government; is protective of all funda- mental rights: ‘and privileges . . [Citations omitted.}] Op ee ee purpose or effect of denying citizens the right-to - eo And snide that right can be restricted, the purpose - of the restriction and the assertedly overriding inter- ests served by it must meet close constitutional scru-— . #v- 9? . | : ail” [57] It follows, then, that the validity of the “NOE TER CS provisions herein in question must be judged: according to: the ‘‘compelling state interest’? standard. It remains to * © examine this standard in more detail and then to apply it a ‘the Tennessee durational. residency requirements. 2 : “The Pym zirin interest’ doctrine has two branches. - [One] branch . . . requires that classifications [among éitinens} based noe ‘suspect’ criteria be supported by a compelling [staté] interest. . . .’? Shapiro v.- ‘Thompson, _ -394 U.S. 618, 658 (1969) (Harlan, J; dissenting). Certain of the classifications which have in the past been held. to be ‘‘suspect”” include those based upon race, Korematsn . . v. United States, 323 U.S. 214 (1944), upon wealth, Harper v. Virginia Board of Elections, 383 U.S. 663’ (1966), upon A political allegiance, Williams v. Rhodes, 393 U.S 23 — (1968), and, since the holding in Shapiro, onert, those. based upon interstate movement. . = , “The: second brarich of the ‘compelling interest’ prin- 4 ciple is .. . that a statutory classification is subject to the : ‘compelling interest” tes test if the result of the classification - maybe to affect a ‘fundamental right,’ regardless of the . basis of the classification.” Shapiro, supra, at 660 (Harlar, © J., dissenting). And it is now settled beyond doubt that _-the right to vote is just such a ‘‘fundamental Fight””— indeed, the most fundamental right of all: a ‘ ‘Since the right to exercise the franchise in a free : - and manner is preservative of other basic 2 ’ . . givil and political rights, any alleged infringement of the right .o citizens to vote must be carefully and meticulously: scrutinized.’ [Citation omitted]. This careful examination is wnieley because statutes dis- 7 will tributing the franchise constitute the foundation of _ our representative society. . ... Therefore, if a chal- lenged state statute grants the right to. vote to some . bona fide residents of requisite age and [58] citizen- ship and denies the franchise to others, the Court must determine whether the exélusions are necessary to promote a compelling state interest... .’’ Kramer, | supra, 395 U.S. at 626, 627 (emphasis Added). ~ _ In short, since there is no question (1) that the classifi- cation of bona fide residents on the basis of recent arrival Tennessee—the’ right to vote—the Tennessee duratiofial . Tesidency requirements must be held to be constitutionally . invalid, unless they are shown to be necessary: to promote a compelling state interest? - ~ flas Vite 3 $ The three-month requirement affects not only retent ar- changed their county of residence within Tennessee. Individ- - uals in this latter category, however, -are’ permitted to in their former counties of residence for ninety days after they have removed therefrom—provided they were properly regis- téred to vote in such county—by virtue of T.C.A. § 2-304. This © court need not consider, however, whether this classification, _ which . forces certain Tennesseans to return to their former / —8— —. Given, then, the test to be applied, it is our opinion that | _ the Tennessee durational residency requirements fall short of meeting it. The only constitutionally permissible pur- pose of such requirements is ‘‘. . . to secure the freedom and purity of the ballot box in the various counties of the | state [59] by preventing plural voting and by requiring voters to vote in the election precincts in which they re- side... .”?'T.C.A., § 2-801. The question of whether such a aie constitutes a ‘‘compelling state interest’’ need not be pursued in the present context, for, assuming that Tennessee’s interest. in promoting ‘freedom and purity. of the ballot box and preventing plural voting is a com ipeHing one, it is clear that that State’s durational siikdicey re- quirements are in no wise ‘“‘necessary’’ to. promote such © an interest. That such purposes are. better served by: the application of a system of voter registration than by Fe 4 1S ee _ .durational residency . requirements is‘amply demonstrated .. . ac by the fact that the section of the Tennessée Code Anno- tated in which the foregoing quotation appears is entitled _ “Purpose of voter registration system”? (emphasis added) and by the fact. that this section isthe only one in the . Tennegsee Code Annotated dealing specifically with pro- tection of the ‘‘compelling state interest’? which defend- — ants assert is instead protected by the. Tennessee dura-_ tional residency apyeeeeee, As is provided in the case of presidential disctions by i. the Voting Rights Act Amendments of 1970, supra, T.C.A, §.2-304 provides that see . registration or reregistration | -stiall not. be permitted within thirty (30) days of any -primary or general election provided for by statute.’’ This - reflects the. judgment of the Tennessee Legislature that thirty diiys is en adequate period in which Tennessee’s election officials can effect whatever measures may be necessary; in each particular case confronting them, to in- 7 ‘gure purity of the ballot and sPrevent dual registration Se and dual a ‘It is clear that, in. — Tennessee's : @. QD ee interest in hen matters. is protected by. the. thirty-day ' period, and not by that State’s durational residency re- | quirements. Neither the purpose of, nor the justification _ for, these latter requirements can be [60] found in either | the Tennessee Constitution or the Tennessee Code Anno- ae 3 tated, and this court is of the opinion that they are not ‘‘necessary’’ to promote any ‘compelling. state interest”? and, indeed, serve ho’ valid purpose. : - Unquestionably, Tennessee may constitutionally, require re : _ individuals to be bona fide residents before allowing them: ~ to vote in the State. Nevertheless, it is. equally . beyond _ quéstion that if such persons ‘‘. [67] IN THE UNITED SABES DISTRICT’ COURT asstzO . J ames F. Blumstein "ye ob Civil No. 5815 Buford: Ellington, et al. : ORDER ey ae : | mae " (Filed September 11, 1970) Defendant bios filed a motion to sla ths onder entered “ herein September 9, 1970, pending an vel thereof to” Bh the Supreme Court of the United States. Upon consideration, by all members of the court, the) : court is of the opinion that the motion is not well: taken, and, accordingly, it is Denied. Peles ate aie /s/ ¥ Frank Gray, P ae : United States District J judge - (Jurat Omitted) ) & i & [68] UNTFED STATES DIsRICr oo |. ’ MIDDLE- DISTRICT. OF T Mm : _ NASHVILLE DIVISION | A ee James F. Blumstein, LF one. _ es. ire ee : 3 * Plaintiff, a SMES oa eee fi: Civil ‘Action a a Bes 4 S No. 5815. ~ ase ose _ Buford Ellington, et “es gee Y oe | Defendants. | ae te sees ] ‘ woe OF ORDER ‘ (Filed September 22, 1970) _ By agreement: of the parties, the Order of the oe __ ae ' . the above-styled action entered September 9, 1970, is * - modified as follows:. - Modifying the first line of paragraph 3 to “read as ae "s follows: s feb SR ' 3. That ‘dofetidante: ‘cause to’ be published daily ein oe - including Sunday, September 27, 1970. through Boe It is understood that the reasofi that’ Plaintiff has agreed | ue | / s/ Rbbert H. Roberts Dated: September 22, 1970 to. ‘this\Modification is that the Defendants _herein_have agreed’ to replace the advertisement which has-been run- > ning by one that has been mutually agreed upon among Defendants Pack and Hassler and Plaintiff. : ees 7, /s/ James F, Blumstein ° : 7 | laintiff, Pro Se: Attorney for Defendants _/s/ Frank iow, x eee _* For. the Court yo ae (Jarat Omitted) sige , ee “@ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0368%3A1. Public record. Not legal advice.