Appellees Brief — Dunn v. Blumstein

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suri? court, 7 BB 92 1971

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970 | 4 Ob - / 3 .

No. ?03"—

Ns,

WINFIELD ‘DUNN, Governor of the State of Tennessee; DAVID M.

PACK, Attorney General of the State of Ten ; JOE 'C. CARR,

Secretary of State of the State of Tennessee; .S LEY G. HASSLER,

Coordinator of Elections of the State of Tennessee; -GEORGE C.

THOMAS, Chairman of the State Board of Elections; LYTLE LANDERS

and JAMES E. HARPSTER, Members of the State Board of Elections;~

THOMAS W. JARRELL, Chairman of Davidson County Election Com-

mission; ALBERT H. THOMAS, IMOGENE MUSE, J. GRANSTAFF

DALE, and JOHN H. HENDERSON, Members of {the Davidson County

Board of Elections; and MARY P. FERRELL, Registrar-at-Large of

_ Davidson. County, State of Tennessee,

vs.

JAMES F.. sLOwernk,

_- , Appelieg.:

a On Appeal from. the ‘Three Judge | ‘United ‘States District Court for the

= Middle District of Tennessee, Nashville Division -

" APPELLEE'S’ BRIEF

JAMES F. BLUMSTEIN

. oe . Appellee Pro Se

2 bs aa : Vanderblit Law School

e ‘ _ * . Nashville, Tennessee 37203

Of Counsel

CHARLES MORGAN, JR.

NORMAN SIEGEL

AMERICAN CIVIL LIBERTIES. UNION

- FOUNDATION, INC.

6 Forsythe Street, a Ww.

Atlanta, Georgia 30803

JERRY P. BLACK, JR. pa .

4517 Harpeth Hille Drive -

= Nashville, Tennessee 37215 .

i) : . oo.

. St. Louis Law Printing Co., Inc., Tinie N. Eighth

ee oe

a al

P °c

~ Questions presented

Statement of the ¢

-, IL’ The Tennessee Durational Residency Sbedeire- ‘

ments as a Qualification for the Exercise of the

_ Franchise Violate the Equal Protection Clause a

- of the Fourteenth Amendment of the United

States Constitution .......f....... Re Se

' A. The appropriate standard of review under

. equal protection Pitscdaiseekses err. —

& | B. — review is applicable . ceeawe ws : oeeeegs

1) The right to exercise. the fran:

- chise is.a fundamental right ..

2) Durational residency + require-

‘ments abridge the exercise of the

fundamental right to vote ‘and

: thereby trigger Strict review “aon

B) Travel... ics cy000scssnene Sueeeas

- 1) The right to travel is ‘faidamentel

28 2) ‘ Tennessee’s durationgl residency

* requirements for .voting penalize

Oy ‘the ‘Tight of travel and therefore _

m, Ss r equal. protecting: review .

is ,

40.

2. Tennessee’s durational residency require- ;

ments are based on a Suspect classifica-

tion and therefore require strict equal.

protection review beeen peace eee e ee ees <,

me ipcectina of strict review and changéd

. ¢ircumstances undercut the oe of ‘Zupe

V. Williams ........... esses sees ee ceeee

. The Tennessee waiting period requirement

‘for voting is'a violation ‘of equal protection

because it attempts to achieve impermissible

state goals, it does not draw narrow enough

distinctions to. meet the test of necessity in

furthering those goals which are legitimate,

- and in no case satisfies the ‘‘compelling-

a ae eee ee ee

1. In general did nest Mipeadcowkdneseea tc:

‘ee BS One function of the Penisess statewide -

waiting period was to deter the immigra-

‘tion of voters with different. political

viewpoints, and this is an impermissible

- state objective” OT CTT eC TE Se TTT re

. 3. Waiting periods do oak meet the test of

necessity in furthering the legitimate

___ stateinterest of preventing voter fraud _

' 4, Waiting periods do not. meet the test of

necessity in -furthering the legitimate

state interest in voter identification ....

5. Waiting periods cannot constitutionally

serve to promote an alleged state interest \

in identifying’ new residents with the \

72...

_ interest of the state’s long-time residents

.6. Even if waiting periods serve the legiti-

mate purpose of promoting an informed

electorate, they achieve this goal by

~~.

‘iii

overly. broad: restrictions on the fran-

ehise and do not promote a compelling. —

State interest |... ern oes 138

_ IL. Even Under: the ‘Traditional Equal: Protection .

3 Standard, - Tennessee’s Durational Residency

_-_ Provisions Are Unconstitutional Because They

_. Bear No Rational Relationship to Any. Legiti- “— -

mate Governmental Interest ..... tre aetee Oa

~ HII. The Tennessee Durational ‘Residency Require- —

ments. for Voting Violate Procedural and Sub-

stantive Due Process. of Law “ews seveesceee 98 |

| oe |

A. Tennessee’s durational residency require-

_ eInents for voting conclusively presume ap-

_ -pellee’s unintelligent or fraudulent use of

the franchise ‘and violate due process for

failure to allow rebutial of these empirical

assumptions which are not ‘Teasonably re-

lated to the legislative objective sought :... 98

broad restrictions on the fundamental rights

teed hy the rights of speech, press,

. -gssembly and petition Stuepescewes ss 207.

b) The exercise of the franchise ig afun- - 7

damental embodied: in the concept of Gas |

| due process of WP vane ies ha tates 110°

2. State exclusion of new residents from the -

franchise directly impinges ‘Wn federally’ °

guaranteed rights of interstate migration 116

. 3. New veribuahe are » subject, to. all laws of

* *.. 9. the state of Tennessee, but may. be ef-

-fectively excluded from political influence’

well beyond thé duration at the waiting |

period coeee as eevee Fee eee eens saw eeeses - ‘117 ;

4. Reasonable liecasicven exist for ‘offectu- :

' ating the state’s articulated : ‘legislative =

goals ..... PP VTE oT eer er Teer ee z 119

5.. Tennessee must. not unduly- -and unneces-

‘sarily infringe on fundamental rights of ©

. political association’ and interstate travel ;

in achieving its. legislative objectives .. 121

ef Conclusion ia iveeees x eer eiges'ee eee pene 122

| "Appendix: Tmnessss' 8 Durational Reideais Require- 7

ments for Voting Constitute a Penalty on the Exer- +.

eo:

‘Cases Cited i .

‘Alber v. Alber, 472, P.2d 321 (1970). ..:lc..ceseeeees 102

TAs ‘Amalgamated _ Food Employers. Union Local 590 v. ts

--. Logan Valley Plaza, Inc., 397 U.S: 208 (1968) ... oy, :

a v. Secretary of State, 378 U.S. 500 (1964) . .9,14°

39, 79, 99, 121, A-5

Avery v. \ Midland County, 390 U.S: 474 .

| OE i eng coe 5 se adh eee s sD, 19, 20,24, 49, 56

Baird v. State Bar of ‘siniiiin: 91 8. Ct. “102 _ A-8, A-9

_ Baker v. Carr, 369 U.S. 186 (1962) : ey Seer ere 52

_ Bates -v: Little ‘Rock, 361 US. 561 here Senate “eae > Vide

‘Beare y. Smith, . ols Supp.” . - (8D. Tex., Pan. a

1971) lad cdicai <odet cnssee eee PEE e Tere * 33

Beilan y. Board of’ Public- Educstion, 357. US. a

Me TE ie i io cs bates ance 4s .A-10,; A-11, A-13, A-16, AT |

Boddie v. Gacnestieat, 91 S. Ct. 780. : Law.

| RCA? | 3 98, 3, 306, 110, 111, 112, 13 |

cise of the Fundamental Bight of Interstate Travel A-l eo eae

co ‘Burg v. ‘Canniffe, 315:F. Supp. 380 (D. Mass. 1970) «..

| Caen v. Bash, 390 US. 89 (1965). 5, 6, 9, 10, 16, ney |

: Eastern Ft R. Presidents Cine. 5 v. We oerr Motor Freight,

i. Elfbrandt v. Russell, 384 U.S, 11 (1966) .

Evans v. y. Cornman, 398 U.S. 419 (1970) <.5, 14, 16,17, 18,

ban BN?

}

‘Brady + v. United Staten, 397-U. 8. 742 “( ete .A-14, A-t5,

‘- “Ae

Hrawn'v, Hows, 163. ‘Tenn. 178, )28.W, 2d 210, (1931) 25,

= “23 70, ie

Core, Sr 2 6872 9, 99,86, AB

Ee Chastlota Corp. v. Sinclair, 264 U.S. 543: (1924) . . 101.

Cipriano v. me, of Houma, 395-8. 701 ee): 18, 19, -.

50, 89

City Off {Bhoenix v. Kolodsiejsk, 399 UB: 204 Bice ey

be. ee eee ‘sees ee» 18, 26; 27, 50°

Cocanower v. Marston, 38 F. Sopp 402 (D- Attics

ease: Me ERR ane ii ie FAs cach an ——

Coo v.. State, 90 Tenn, 407, 16 SW, a7 (1891) ..6, 66,

Z - “Tags a

Corfield v. ‘Coryell, 4 Wash. CL. 371 C1888) |. 00533 aren

| Crandall ¥, Nevada, 73 US. (6 Wall.) 35 (1868) . 87,42

: oe v. wan, 397 U.S. 471 1970) .. 14, 16, 5

"18, 87,88

es Drueding v v. Devlin, 234 F. Son 721 “(D. Md. 1964)

aff'd 380 U.S. 125 (1965) ..........0:..... 53, 54 65

ity We UE) 109

20, 21, 22, 24, 25, 28, 35, 78, 118, A6”

-“Portaon. v. ‘Morris, 385 US. 23% (1966) eons 3+ 20, 82

Gardner v.. Broderi k, 392 Ds S..273 (1 8) , an all A-18.

Garrity v. New der , 385 US. 493 (1967). .».- A-16, A-17

Goldberg v. Kelley, 307 U: S. 259. (1970) - Foye meees L199

Gomillion y, Lightfoot, 364 U.S, (1960) 2... 41

. Griffin v. California, 380 ‘U.S. 609 (1965) . .A-6, A-7, A-15 -

‘. Griffin v. Megas. 351 U. 8. 12: ( 1956) . isensckes 19 Svea . 49

vi :

‘Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 19

Hadley v. Junior College District, 397 -U.S. 50- |

CMIROY oes cn chance isdps sss cows sees ews ees ied 5, 20, 49

*Hadnott v. Amas, ... F. ‘Bue. . . (M. D. Ala. 1970)

(Slip opinion at 31), aff’d 39 USLW. 3410 (U.S.

March 23, 1971) pi eawatad bokac ees Oa se saexsex 30, 31, 109 —

Hall v. Beals, 396 U. 8.45 (1969) -.7, 8, 28, 44, 53,59,64, =

| "68,72, 75, 99, 120

~ Harman v.. - eiceeemies, 380 "U.S. 528. :

| GABOR) oe te acto ssctan 1 9, 35, 50, 67,92, A-4, A-5, A-15

Harper v. Virginia Board of ;Elections, 383 [J.S. 663

+, (19GB) © ons c cinders dase ‘ee e'e cee 13516, 19, 21, 50, 67,97

‘ Hascall v. Hafford, 65 S.W. 423 (TV) 6. ew od

Heiner v. Donnan, 285 U. S. 312 (1932) .....: -10, 100, 103

James v. .Valtierra, 39 U. S.L.W. 4488 (US. aie 26,

* 1971) eee eee ieee ecceee w@eccces Tocccevscccenesecn 50 :

_. Katzenbach’v. Morgan, 384 U8. 641 (1966) 82 45, 46

Keane v. Mihaly; 90 Cal. Rptr. 263, 266-67 (1970) .... 105_

‘Keenan v. Board of Law Examiners, ... F. Supp. .

(BANG. 1970) 2... cece leclececceeeeees 68, 74, 9,9

Kennédy v. Mendoza-Martinez, 372 U.S. 144 (1963) *

* . Kent v. Dulles, 357. U.S. 116 fag Seendaas re - :

~ Keppel v. Donovan; ... F. Supp. ... (D. Minn., Dec. ©

4, 1970) - coc gscccccieceseesicec Mees Tienes 53, 54,71 |

Keyishian v. Board of Regents, 385 U.S. 589 (1967). 14

King v. New Rochelle Municipal Housing Authority, ©

314 F. Supp. .37, 40 (S.D.N-Y. 1970) -............ 40

Kirkpatrick v. Preisler, 394 U.S. 526-(1969) ....5, 20, 49

. Kohn v. Davis, .... F. Supp. ... (D. Vt. 1970) oes 4d, 56

’ Konigsberg v. State Bar of* California, 266 U.S: 36

2: eer os keane weeeeee A-Y, A-10, A-13,.A-17

_ Konigsberg v. State Bar of California, 353 U.S. 252

OR ipa cada Seesest ee A-8, A-9, A-10

as EIS v. United States, 323 U.S. 124 (1944) 18, 49, 50

‘ . - .

. * : .

- ° . ° © od

. we . 7 ; «

z ve. . = . . : .

. . .

: " ;

’ ba ~~ mee, Ps a

- . ,

- 7

‘vii

Kramer’ v. Unffon Free School District, 395 US. 621. - |

(1969) ..5, 6,14, 15, 16, 19, 20,21, 22, 23, 24, 25, 26,37, 48, °

Lassiter v. Northampton County Bd. of. Elections,

» 360 U.S. 45/(1959} ....00..... ...7, 45, 73; 78, 80,82, A-6

Law Students Civil Rights Research Council v. Wad: .

mond, 91.8.Ct. 720 (1971) ............ re eee |

Leary v. United States, 395 U.S. 6 (1969). ....9, 10, 99,

-~ 7 s * | _ 100, 101

~, Louisiana v. United States, 380 U.S. 145 (1965) .:.... 73

~\\ Loving v. Virginia, 388 U& 1 (1967) 2.0.6... 19,49,50 °

Lucas v. Colorado General Assembly, 377 U.S. 713 °

(1964) cee ee By a hd ined eccdeee 23, 24, 25

Manley v. Georgia, 279 U.S. 1, 6 (1928) .....0..... . 100

Matter of Findlay, 253 N.Y. 1 (1980) .............. 102

McCulloch. v. Maryland, 4 Wheat. 316 (1819) ........ "415

~ McDonald v., Board’ of Elections, 394 U.S. 802

(19GB) | ooo Serene ets cea ca decacenesdvarcesds 75,14.

_, McGowan v. Maryland, 366 U.S. 420 (1961) . .:9, 13, 18, 87

, McLaughlin ¥, Florida, 379 U.S. 184 (1964) ... .. .18, 49, 50

“ McPherson vy. Blacker, 146 U.S: 1 (1892) ......., eee 109.

‘Moore v. Sharp, 98 Tenn. 491, 41 §.W. 087 (1897) .... 66

New York Times v. Sullivan, 376 U.S. 254 (1964) i... 109

. North Carolina v. Pearce, 395 U.S..711.(1969) ......A-14

Passenger Cases, 7 How. 283 (1849) oes. 87

Pike v. Bruce Chureh, Inc., 397 U.S. 187 (1970) beanies. 25

Pope Vv. Williams, 193 U.S. 621-(1904) ......... ...54, 55, 56

Reynolds v. Sims, 377 U.S. 533 (1964) . .5,19, 20, 23, 27, 8

" Roth v. United States, 354 U.S. 476 (1957) ........:. 109

Sailors v. Board of Education, 387 U.S. 105 (1967)... 20

_ Shapiro v. Thompson, 394 U. §. 618 (1969) ..4, 6,8, 10,15,

16, 17, 39, 40, 41, 42, 43, 44, 47, 48, 51, 53, 54, 55, 56, 61, 67,

69, 7479, 91, 92, 100, 121, A-1, A-3, A-5, A-6,A-19, 413)

oe awa " AIS

. ii :

Shelton v. Tucker, 364 US. 479 (1960) ..e.ceeeeeee 72

Sherbert v. Vernar, 374 U.8. 398 (1964) °.15, A-3, A-4, A-12

Skinner v. Oklahoma, 316 U.S. 535 (1942) ..........° 18

Slaughter-House Cases, 83 U. 8. (16 Wall.) 36, 80 “

WPI x anasaechisdte pave cas osiececests es eats 39

“Slochower v. Bd. of Higher Education, 350 U.S. 551

(1957) ..... Saweevu bas +2250 116, A-T, A-I1, A-13, A-17

Smith v. Allwright, 321 U.S. 649 (1944) ............0. 21

Sniadach v. Family Finance _Corp., 395 U. ‘S., 337

* (4969) 0.0... sun wawsenssa cee hesveneassaee cs _.. 11, 99

Speiser -v. Randall, 357 U.S. 513 (1958) Peeees eens ... A-l

Spevack v. Klein; 385 U.S. 511 (1967) .........0..6. A

| State v. Qloksey, 37 Tenn. 482 (1858) ......65, 71,74, 75

‘State v. Staten, 46 Tenn. 233 (1869) ...... dude tebe -20. |

. State v. Weaver, 122 S.W. 465 (1909) ....... 2.669, 70

Stromberg v. California, 283 U.S. 359 (1931) ........ 109

’ Swann v. Adams, 385 U.S. 440 (1967) .:....0)..5...6 0 49 |

Tate v. Short, 91 S.Ct..668 (1971) ...... ecceevcsese 5O

Terry v. Adams, 345 U.S. 461 (1958) .....000.....00. 21

_ Thomas v. Collins, 323 U.S.-516 (1945) ...g....... 109

Tot v. United States, 319 U.S. 463 (1943) ....:..... 101.

. Turner v. Fouche, 396 US. “ (1970) ......9,14, 86,87, .

eo 89, 90, 91

> Uniformed: Sanitation Men Ass’n_v. ‘Conanicionse of

Sanitation, 392-U.S. 280 (1968) .....5../...A-17, A-18.

“United States v. Arizona, 91'S. Ct. 260’ (1970) ..5, 7,17, 31,

82, 34, 35, 38, 39,44, 45, 46, 47, 48, 52, 53, 64, 72, 80, 82,

. - 109, 113, 117

United States v. “Leven: 414 F.2d 1268 (3rd Cir. 1969) 101

United. States v. Carolene Products Co., 304 U.S. 144.

(LOND) waar eden 6 Picts aE. skesecvasissess Seeseca . 49

United States v. “Classic, 313 US. 299 (1941) ‘aeeewes mk

_ United States v. Guest, 383-U. S. 745 (1966). .5,.37, 38, 121

United. States v. Jackson, 390 U. S. 570 .

(1968) ..... 65h seaeee 10, 41, 100, A-13, A-14, A-15, A-16 ©

United States v. - O'Brien, 391 US: 367 C88) 2 o's 0 DG, 41

United States v. Provident Trust Co., 291 U.S. 272 |

(1988) 2.02... Sheep eMiescseccccecncscyseaceies s&h DD

United States v Robel, 389 US. 258 (1967) ..9, 12, 14, 79,

oo 7 . 99, A-5, A:6

Webster v. Wofford, ... F. Supp. -.+ (N.D.Ga. 1970), 76

Wells v.. Rockefeller, 394 U.S. 542, (1969) ......5, 20, 49

Wesberry v. Sanders, 376.U.S. 1 (1964) ..... - 19, 20, 108

‘Wieman v. Updegraff, 344 U.S. 183 (1952) ......... - 98

- . Williams v. Illinois, 399 U.8..235.....0...._. + +12, 50, 106

"_ Williams v, Rhodes, 393 U. 8. 23 (1968) .... 6°16, 19,21,

ie : _ 91, 57, 106, 108, 110, 113, 114, 121

Wright v. Rockefeller, 376 U.S. 52 (1964) 220. ag

Wyman v. Bowens, 397 U.S. 49. (1970) ...... svees 1662

Statutes Cited

Tennessee Code Annotated: - |

~§ 2-104(28)- oes... wrote denen Bc eeenns sete, 0

§ 2-202 2.0.0... ee fee tee eee eect vans ...2. 120

>) re epeoteeen ee ee see. 120

§ 2-301 ....2. ee ee eee ae ee 66, 70

WE UE xdaranel sass eemdqew edd he wuseececn, . 66, 77,78

§ 2-319 ....., eee et ae

§ 2-324 2... Oreaneeaen teu. eceestenac dl, 119

-§$§ 21309-1811 0. Cas ; ae

§2-1602 ....:. ee aaa sepecesess BU.”

§ 20618 ooo t ec ccccse Pree sais ee ha peter . 119

§2-2207 ....00. 8. meres Sunaeaoay re 119

§2-2208 2. Renin ee 120

SPEND dence l seca teccoebentecccnen 120

‘§§ 30-1601-1602 eee ae .< egegy... 218

Bs OO UE reid Berd oii 1e*,,

» . §59-704 foo... ne ee eemesdos 118

§ 67-2601" oo... th getenaeceveeastesseenecrs DB

| fivesa, Let’s Modernize our Horeclandl Bases Election -.

Laws, in The Center for_Jnformation on ens 4

‘Tennessee State Legislator ;

Acts of- 1865 ..4.... 00sec cece ee eee ae

Acts of. 1865-66 2.0.6... 60. ccceceseeeeeec een Gah 63 ©

- Acts of 1866-67 . 0.0... .ceccegeeehesee ees oe «63

Rita OE NOOO on cicdsvespesecwees ests eetitraneas=s 65

32-C.F.R., § 1641.3 ......... ec ce eee weeeeusacdtees 101

| _.° Constitutions Cited —

Tennessee Constitution:.

CArt. L, §2 ..ccceccccececccceccccceetuucceeeeees 107

Art VI, 68 occ cove cnccGecoc devs cesscnsseeeccts 23,118

Art. VI, §4 .....cccccccccescccccctesectecceece 23,118

United-States Constitution

pe OE eee ee eee 28

. Mt T, $8 ces ccc cece cc ude ens Paccecceccsctevecces 29

+S dite TV, § 8 5 steenrecescnv ens mueeeee eens cu... 87

Fourteenth Amendment... ieee aaies 20, 31, 32, 35

‘Texts Cited

(1061) 2 cnc cv are ed eses eae f aadiele on Seeactes 86

| Cacanower and - Rich, Residency Requirements for

» Voting, 12 Ariz. L. Rev. 477, 478 (1970) ..... tee. Ct

1971 ‘Census Population Characteristics, US. Dept. of

- Commerce, Bureau of Census, Current Population

Reports pukeee abun es weteeeeeeeeeeseereeeses 57, 58,59, 94

Claude, Nationalization of the Electoral - ———— 6

Harv. J. Legis. (1969) © (ies y ee ceeeseu sor ea nea ues 116

116 Cong. Rec. 3543 (March 11, 1970) .i............. 72

Election Laws Work Document, Staff Draft for the

Law Revision Commission, January, 1971, proposed .

section 221 of Title 2 of Tennessee Code seevaeaes 66 |

_ ‘1 Farrand, The Records of the Federal Chleghation

(WIL) oes ieeesceeegses ced gne de cnsanert Ty 88.

. Gulick, Bowerman, and Back, “Newcomer Encultura-

_* tion in the City: Attitudes and Participation’’, re-

printed in Chapin and Weiss (eds. ), Urban Growth

Dynamics i in a Regional Cluster of Cities (1962): 96

(19 Hast. L. J. (1968) 2.2... ecco cece. 2102

J. Locke, The Second Treatise of Government ( a)

(1952) 22... peta atbaPsntuderelenicsahcts 111

aaine and Mueller, The Geographic Mobility of ;

Labor ( 1967) cs spe seu aeedahun eh deavacedéucost. 93

MacLeod and Wilberding, i in State Votitig Residency =

.. + + Requirements -and Civil Rights, 38 Geo. Wash L.. * BS.

» Rev: (1969) wee. sree. 6, 65, 69, 105 "

| 1963) ..0..... er a iisesieaweses Nettresesert HO :

| Milbrath, Political Participation ( 1965) Stade u eee ec. - 95 ;

_ Morgan, Federal Constitutional Limitations Upon Pre-

sumptions Created by State aseeent in. errand

_ Legal Wssays (1934) 00. 108

' New York Times, Encyclopedia Almanae, 1970 ...... 6

Norling, Residence Requirements for Voving: The deleon |

terns of Discrimination ...............000.00...: .58, 59

Padover, te»Secure These. Bloikings:: ‘The Great De. |

bates of tHe Constitutional Convention of 1787 41962) 28.

Population Estimates, Series P-25, No. 406, Oct. 4,1968 61 |

pa Claude, The Supreme Court and the Electoral Proc. |

ess (1976) aici ates este eaten t0elenecenvteses 107

, ; : , 2 : ssh a oF : - . ; .

—— earner Residency Requirements for Voting and

ere ..-.-the-Tensions. of_a Mobile. Society, 51 Mich. L. Rev.

ieee

823 (1963) .2.p...seceiececeeceeetene nen TTTThy ee Oe

- Singer,’ Student Power’ at the ——, 31 Ohio L. J.. |

- MASTO) ac05o i daw ow ees a tee ee eecet eens eaeedes .. 58

- 85 So. Cal. L. Rev. (1962) . ee eee os 102

Uniform _ Voting by” New Residents in Presidential |

‘Election Act, 9C U.L/A. (1967. Supp. ) ceca wieceeeee , 71, 92

"Universal ‘Declaration of Human Rights, Articles. 13

(1), 21 oo... ee nees tegeesnes poeahoassaseuses en 37,111

* U.S. Bureau of Census, Current: Population Reports,

Series P-20.No. 192, ‘‘Voting and Registration in ;

the Election of. November 1968’’.......... ieaeees 60, 85

US. Bureau of Census. U.S. Census of Population:

- 1960. ‘Subject Reports, Lifetime and Recent aed

tion. Final Report PC (2)-2D ..............5.. - ys 84

U.S._Bureau. of Census. U. S. Census of Population:

1960. Subject Reports; Mobility for State and State .

“ Eeonomic Areas. Final Report PC (2)-2B ......... 59 {

‘ UBS Bareat of Census. U.S. Census of Population:

1960. Subject Reports, Mobility ° ‘in Metropolitan

Areas. Final Report PC ts ee rn eee 60

Webster’ s Third New International Dictionary ( 1961) 43

78 Yale L. J. (1969) . : aes Decne teeeceeeeseeeeenes 71, 92

79 Yale L. J. (1970) 0.6.6 0....e cece eee e+ 38, 34, 35, AB

Yates, The Functions of Residence Seisivecbats for. |

Voting, 15 W. Pol. Q. MD (1968) oc cccceccpees (97

~ Zimmer, “Participation of Migrants in Urban Struc -

_tures?’, reprinted i in Jansen (ed.), Readings’ in the -

" Sociology of fxn (1970) ....... nde ae, OO

Tt,

IN THE»

-— Smee co i en ses

OCTOBER TERM, 1970 .

No. 769

WINFIELD DUNN, Governor of the State of Tennessee; DAVID M.

PACK, Attorney General of the State of Tennessee> JOE Cc. CARR,

Secretary 1 nessee; SHIRLEY G. HASSLER,

Coordinator of Elections of the State of Tennessee; GEORGE C.

THOMAS, Chairman of the State Board of Elections; LYTLE. LANDERS

and JAMES E. HARPSTER, Members of the State Board of Elections;

THOMAS, W. JARRELL, Chairman of Davidson County. Election

mission; ALBERT H. THOMAS, IMOGENE MUSE, J. GRANSTAFF

DALE, and JOHN H. HENDERSON, Members of the Davidson

Board of Elections; and MARY P. FERRELL, Registrar-at-Large of

+ Davidson Sounty, State of Tennessee, )

a . Appellants, By "Egat

JAMES F. BLUMSTEIN, ee 2 ©

, Appeliee, ;

‘On Appeal from the Three Judge United States District Court for the |

. Middle District, of -Tennessee, Nashville Division - ;

4 ' : “4 —

° .

‘QUESTIONS PRESENTED - |

1. Whether Tennessee ’s durational ‘Tesidency require-

_ ments for voting infringe fundamental rights or in- .

| Volve a suspect classification, triggering strict Tevi a

‘ ‘under equal protection. ae 3 hss a ae

2. Whether’ ‘Tennessée’s durational residency require:

| ments for yoting are necessary to promote a compelling

state interest. under strict equal protection review,

/ lS cme 7

3. Whether Tennessee’s : durational- residency require-

ments for voting violate the traditional standard of

equal protection if the compelling state interest test is

inapplicable. | é |

4, Whether ‘Tennesses% 8 " @pirational residendy require-

ments for voting violate procedural due process.

5. Whether NGnticosse’ ~ durational/ residency. require-

- ments for —_ violate the substantive pearentece of

due p _

STATEMENT OF THE CASE oS

Appellee moved to Nashville, Tennessee, on June 12,

-1970,.and movéd into his present apartment on June 1

- 1970. He is under ‘ontract’ of employment as Assistan

Professor of Law at Vanderbilt University School of Law.

On July 9-10, 1970, appellee took the Tennessee Bar: Ex-

amination, and was admitted to practice before the Su-

'. preme Court of Tennessee on September 3, 1970. There

is*no question that he is a bona fide resident-of the State

of Tennessee, and the District Court so found.

On Jt uly 1, 1970, appellee presented himself at the ie

ha of the Davidson County. Registrar-at-Large, Mary P. Fer--

rell, and sought to register to vote for the August 6, 1970

primary. and general election and the November, 1970, .

general election. He éxplained that he was a: resident of

Nashville, Tennessee, but that he had not been a. resident

of Davidson: County for three. months or of the State of

Tennessee for one year. Mrs. Ferrell found appellee ineli- —

‘gible to register and appellee appealed her degision pur-

suant to T.C.A., § 2-319 to the Davidson County Election ©

Commission. On July. 14, 1970, appellee appeared before

the county election commission in #s July meeting. He re- ;

quested that he be allowed to show his integrity and his.

oe competence to exercise the franchise intelligently. He

<i: 3 8 oy Paw

asked that the commission read the statute. as a uni, but

subject toa reasgnableness interpretation which would al-

/low admission of evidence to. rebut the presumptions of —

incompetence and fraud. The county commission, by, a 5-0

vote, ruled any showing of competence or integrity irrel- ~

. evant, holding. that the waiting period was a mandatory,

- non-waivable precondition to the exercise of the franchise.

Under Tennessee law, no further administrative remedies

wenmpavailable tp appellee. ’

‘On July 17, 1970, three days after ‘the earlicat time he

could have exhausted his administrative. remedies, appel-

lee brought suit in his own behalf, and on behalf of all

- others similarly situated, for declaratory and injunctive — |

relief, challenging the constitutional validity of Tennes-

see’s three month. in-county and “one year in-state ‘dura-

tional residency requirement for voting.. On July 30, 1970,

a three-judge United States District Court heard appel-

* Jee’s motion for a preliminary injunction. From the bench, -

the Court denied this motion on the ground that it was too _

close to the August 6th election: and intervention by the

Court at thatStime would be. improvident. Appellee moved

that he be allowed to cast a provisional. ballot, but this

motion was denied. Nevertheless, appellee, on election day °. ~

in August, went to his polling place, filled out a ballot in -

- the presence of the election officials, had it sealed and _

notarized, and placed it in the safe of the clerk of the Dis-

'. triet Court, where. prestfinably it still remains. NY

On August 31, 1970, the District Court. rendered its’ x

opinion, invalidating both’ the one. year statewide and

. three month county waiting periods gs violations of. equal

protection under the fourteenth amendment. On Septem- |

. ber.9, 1970, an order was. entered, guaranteeing all new ”

-- residents in Tennessee the right to register the same as:

all other bona fide: Tennesseans otherwise: qualified. The.

decision of the District Court did not invalidate the 30

day parigd between the close of registration and matte.

<< tention |

dig holding that this time. was ‘pufficient to ssebhaiin the

~ various administrative. chores attendant upon an election. -

-. The November, 1970, elections were held under the terms -

. * » of the District Gourt’s Order ; althongh complete data are

unavailable, it has been estimated that 4,000-5, 000 new.

_ residents r

the day that registration closed. Despite the national at-

ally to e District Court’s opinion, there. was no evidence

of significant voting irregularities: attributable to the Or-

der of the District Court. Moreover, as a matter of ad:

ie ministrative convenience; it appears that Tennessee regis-

_ trars need’ ‘not maintain separate registration lists for

Presidential elections and other elections, since the pro- -

‘visions of Tennessee law’ now correspond . to the time

periods of the we voting B Rights og Tas

_ | SUMMARY OF ARGUMENT :

1. Strict Equal Protection Review Is Required.

" Tennessee’s durational residency requirements must. be

a judged for equal protection purposes under the compelling

_ State interest test. This test? is ‘applicable in two broad

: areas of cases; where the calssification involved is based

on, suspect.criteria; and where the deprivation at.stake is

of a fundamental right- Both triggering elements ‘are

présent in this case.- ‘In Shapiro.-v. Thompson, 394 U. 8.

618 (1969), this Court declared that classification on the

istered between September 10 and October 3,:

awn to the Seriatorial contest between Albert .

‘: Gore and William Brock, and the attention ‘drawn. region- .

basis of recept interstate travel was inherently ganpects

394 U. ‘§, at 661 (Harlan J., dissenting.) The District -

: Court below, consistent with Shapiro, made a similar find-

‘ing. The District Court‘alaodound that “the waiting period -

‘deprived respondent-appellee and the class which he rep-. -

resents of the’ fundamertal right to vote. The deprivation |

_was.an absolute denial of the franchise, | like that in Evans 7

v. Cornmas, 398 U. §. 419. (1970); Kramer ¢. Union Free -

ion, sy *

School District, 395 U. 8. 621 (1969), and Carrington v.

Rash, 380 U. 8. 89 (1965).: This absolute. disfranchisement

is as much a deprivation. ofa fundamental right ds is ‘the

dilution of the vote. Hadley v. Junior College District, —

_ 897 U.S. 50 (1970); Wells v. Rockefeller, 394 U. S. 542.

(1969); Kirkpatrick v. Preisler, 394 U. S. 526 (1969) ;

_, Avery v. Midland County, 390 U. S. 474 (1968); Reynolds

a 2 Sims, 377. U. 8. 533 (1964). Of course, not just any in- te

direct impediment , to, voting will. trigger strict review.

The traditional/ test, for example, still applies. where the

Be po via ‘deprivation of.the.right to’ vote is no more than

. the refusal to supply absentee ballots. McDonald v. Bd.

of Election, 394 U. 8.: 802 (1969). But no such indirect *

burden is imposed by Tennessee’s” waiting period. There

‘is né way that a bona fide. resident can controvert the

conelugive presumption of ineligibility, so the deprivation — :

is of the franchise itself, a fundamental right. i Car-

rington v. Rash, 380 U.S. 89 (1965).

- Another basis’ for applying: strict review in the case

of durational residency requirements for voting is that —

they infringe ‘the constitutionally fundamental right of

‘interstate travel. United States v. Guest, 383 U: S. 745

' (1966). The sole, incontrovertible basis of classification

is recent interstéte movement. ‘No other criteria are ger- .

mane, nor can. ection Commission ‘waive this pre-

: tional liberties.

- requisite upon ‘any: showing by a prospective voter who -

is a new: resident. ‘Whiel the waiting: period may not.

deter motile citizens from changing residences, it cer-

tainly penalizes them: solely for exercising this futida-

mental right, and thus subjects the infringement to strict

constitutional scrutiny. United: States v.-Arizona, 91 S. Ct.

“ 960, 317 (1970) (opinion of Brennan, J.). Strict review

is thus required here not only because a suspect classi-

sere is involved, but also because the Tennessee yoter

waiting “periods infringe on two fate cancel

— yn

2. Strict Review Requires Invalidation of f Tennessee's

Voter Waiting Periods.

‘ Under the compelling state interest pe the equal

_ protection inquiry must proceed at three levels. ‘See Wil-

liams v. Rhodes, 393 °U. S. 23. -(1968). First, the court

must look at. the goals that state asserts on behalf of the

restrictive classification. If. these objectives are constitu-

tionally. permissible, then the court: must determine

whether they are drawn with such precision as not to -

curtail more of the liberties involved than is absolutely

necessary. Finally, if the aim is found to be legitimate,

and the means adopted. to achieve the legislative policy

are the least restrictive possible, then ‘the state still must

show that the legitimate interest is sufficiently compelling

\\to justify the infringement on fundamental liberties. Thus, ,

the court must examine the restriction to determine

- whe er it is necessary to promté not orily a legitimate but

U.S 621. LoaiL Ee: Williams v. Rhodes, 393 _

" There is some: e : ce that the statewide waiting.

| ~ period, enacted in 1870 antt-unchanged since then was a

post-Reconstruction attempt aoe carpetbaggers . .

ing state interest. Kramer v. Union Free School —

from participation in Tennessee politics: To the extent —

’ -. that this remaifis an ‘element behind the continued imposi-

tion of the waiting period; it is an ‘illegitimate legislative

objective. Deterring in-migration, even if political in

nature, is not constitutionally allowable. Shapiro v.

_ Thompson, 394 U. S: 618 (1969). To the extent that the

= state interest asserted is that of ‘educational probation

see t0-% : ny [new residents] with the wants .and

interests ofGhe people,with whom {they} propase to live,’’

Cook y. State, 90 Tenn. 407 (Pickle). (1891), it also is an.

- impermissible state policy goal. This Court made it clear

i een * me S &, 93-94. Pinas that:

a &

’ . t: ‘ - . * - .

ae . . . wes

: . . ‘ .

. a

‘¢ ¢[fJencing out’ from: the franchise a sector of the popu- —

- Jation because. of the way they. may vote is constitutionally

impermissible.” If the alleged state interest in an, in-

formed electorate is defined in terms of requiring of its ©

voters ‘‘a period of residency sufficiently lengthy to im- ‘

press upon them the local viewpoint’’, then clearly this

indoctrination is an impermissible justification. Hall v.

Beals, 396 U. S 45, 54 (1969) (Marshall, J. dissenting).

In view of the literacy test proscription of the Voting ~

Rights Act (prohibiting any test or device which is. de-

_ ‘signed to enforce a knowledgeability requirement on the .

exercise of the franchise), it is doubtful whether even the .

state’s interest in a \yoter’s intelligence and ability to

learn about. political i is still legitimate. Lassiter v.

Northampton County Bd. of Elections, 360.U. S. 45 (1959)

upheld a state’s constitutional. right to impose some

* literacy standards as a prerequisite to voting, but Tennes-

see ‘has not sought to distinguish among any of its bona _

- fide residents on the basis of literacy; reliance on this

_ justification at this point, especially in light of the Voting

_ Rights Act of 1970, is unpersuasive and far from neces-

sary. or compelling even if permissible. See United States ~

v. Arizona, supra. a Bey hive ,

The only policy interest that the District Court found

legitimate was prevention of fraud. The Court found that

the durational residency requirements were not necessary

to achieve this: asserted state ‘interest. Durational resi-

~ denc¥. requirements in Tennessee pre-date. the introduction

of a ‘Statewide registration did not come Ses

about until 1 Acts of 1951, ch. 75. Prior to that, _dora-

tional residency was used as a gross means of maizitaining —

“the ‘purity of the ballot”’. But with the system of registra: ° :

tion, the durational residency period became functionless,

a’ vestigial remiant which served only to disfranchise —

thousands of new Tennessee residents each year. Even

* the theory behind ional residency requirements as a

. tool for preventing fraud is misguided. Combating voting

fraud means weeding out nonresidents from residents, nat

distinguishing new ‘residents from longtime residents; but |

the system of durational residency does not achieve this . -

goal. As this Court pointed out in Shapiro v. Thompson,

‘394 U. S. 618, 636 (1969), ‘The residence requirement and

the one-year waiting period requirement are distinct and

_ independent prerequisites . . .”” But even if duration of

_residen¢y were permissible on establishing a so-called ob-

jective standard of residency—a principle rejected : in

Shapiro—it would fail in jts. mission of thwarting voting

fraud. Justice Marshall makes. this point very well;

The nonresident, seeking to vote, can as easily falsely

swear that he has. been a resident for a certain time,

as he could falsely swear that he is presently a fesi-~

dent. ‘The requirement of the additional element to

' be sworn—the duration of residency—adds no dis-

cernible protection against ‘‘dual voting’’ or ‘‘coloni-

zation”? by voters willing to lie.

Hall v. Beals, 396 U. S. 45, 54 pe. Sees J. dissent-

ing).

Thus, under the compelling state interest standard,

_ Tennessee’s durational residency period for voting must”

fall as a violation of equal protection under the fourteenth ©

amendment. Hither the interests purported to be served

by the restriction on the franchise are illegitimate, or

. they, are so overbroad . as not to’be necessary to promote

any interest at all. ‘For this reason, the opinion of the

District Court should be affirmed. -

ea Tennessee’ s Voter Waiting Periods Even Violate

Traditional Equal Protection Standards.

Where traditional. review is applied, the Court need

. only find some rational connection between the legitimate

state policy objective and the means selected to. achieve.

—9—

“that objective. McGowan v. Maryland, 366 U.S. 420, 425-26

(1961). Nevertheless, even if this, minority position is

-aeeepted,.the rational connection test still requires the

invalidation of Tennessee’s voting waiting periods. There

is no rational basis for believing that the waiting period . |

weeds out nonresidents who seek to violate the ‘‘purity -

of the ballot.”’ -Anyone willing to swear falsely and-com- .

mit a criminal offense will not likely be deterred by hav-~

ing to swear additionally ‘that he has lived .in Tennessee >

for one year and in-a.county for three months. Once he

decides to lie about being a bona fide resident, a fraudu- :

lent voter is no less likely to swear falsely about the

duration of his residence. And there. is no procedure,

_ other than affidavit, by which the county election com-

missions attempt.to verify the bona fides of new regis-

trants who swear that they have met the waiting period.

_Moreover, the .data available indicate that the disfran-

chised tend to be highly educated, highly skilled persons

who would. be best able to exercise the franchise intelli-.

. gently and responsibly. Cf. Turner v. Fouche, 396 U.S.

- 846, 361-64 (1970). In short, the durational element of

the residency ‘requirement is designed to accomplish noth-

ing with respect to insuring the ‘‘purity of the ballot’’,

or’ the inteHigent use of the franchise.

4. Seuntanesly. Durations: Rashteieg Ringuizmmestin Vio-

late. Procedural Due Process as ‘Conclusive Presumptions

Which-Do Not Rationdlly Relate to the Objective Sought.

Conclusive presumptions which. have a substantial ad-

verse impact on the exercise of constitutional rights are

not logked upon with favor by the courts. Aptheker v.

Secretary of State, 378 U.S. 500 (1964); Carrington v.

Rash, 380 U.S. 89 (1965); United States v. Robel, 389 US.

258 (1967); Leary v., United States, 395 U.S. 6 (1969).

Thus, in United States v. Provident Trust Co., 291 US.

_ 272, 281-82 (1933), this Court in invalidating a ‘conclusive

presumption, obserrsd that |

7 —10—

[t]he ‘rule in respect of. irrebuttable presumptions

rests upon grounds of expediency or policy so com-

pelling in. character as to override the generally fun-

damental requirement of our system of law that ques- =;

_ tions of fact must be resolved according to thé proof. AS

- The Tennessee durational residency requirements: for vot- —

- ing’ establish an irrebuttable presumption that plaintiff,

and members of the class he represents, cannot qualify. :

to participalé in the state’s electoral process, much as

' Texas forbade ‘‘a. soldier . . . to controvert the presump- oe

* tion of non-residence.’” Carrington ¥. Rash, supra, at 96.

There is no reason for Teinesebe | to exclude new resi-

, -dents from its eligible electorate solely because they are

recent: arrivals. Indeed, ‘such a purpose. would be ‘consti-

tutionally impermissible as a penalty on the right of free .

travel. Shapiro v. Thompson, 394 U. S. 618, 631 (1969);

United States v. Jackson, 390 U. S. 570, 581 (1968). ‘There

- must be somé other basis on which to explain the restric- _

tive classification. It must stand as a surrogate, a proxy, °

for some other concern of the state. In serving this role,

it acts as a conclusive presumption, and must be analyzed

constitutionally as such, regartNess of whether it is con-

_ ceptualized as a rule of evidence or a substantive prin-

. eiple of law. Since there is no rational connection between

durational residency requirements and voting ‘qualifica-

tions, and since this nexus must.be shown: to support a

statutory presumption’ in the face-of a challenge under.

. due process, the exclusion violates procedural due spt

‘In Heiner v. Donnan, 285 U. 8. 312 (1932), the MKorene |

Court said that failure to give a party an opportunity —

‘ to.amass facts that show’ the irrationality of a statutory:

presumption violated due process. In Leary v. United

States, 395 U. S. 6 (1969), this Court specifically stated

that the determination of a présumption’s besten cence’

ss ab isa dics —s matter.

weal : |

eh statute based upon a legislative declaration of facts

is subject to constitutional attack on the ground that =

the facts no longer exist; in ruling on such a chal-

_ lenge a Court must, of course, be free to re-examine . .

the faétugl declaration. 395 U. S. at 38, n. 68.

The importance of having an opportunity to present evi-

dence in a meaningful hearing has received greater recog-

_ nition by this Court recently. Boddie v. Connecticut, 91

S. Ct. 780. (1971); Goldberg v.. Kelley, 397 U. 8S. 259 ©

(1970) ; Sniadach v. Family Finance Corp., 395 U. 8. 337

- (1969). Yet the State has mustered no evidence to show. .

that interstate movers, as # group, are less well informed ©

. than non-movers. Nor has there been any showing that _—

new. residents, as a group, actually know less about the -

issues or candidates involved in an election, provided they.

establish. residency while the registration books are still.

open (30 days before election day). In short, the state

has:made no showing of any empirical evidence to sup-

port the conclusive presumption © which the durational’

residency requirement enforces. Yet, the Davidson County.

Election Commission ruled that .evidence of cme and

competence was\irrelevant.

In the face of\ strong evidepse to rebut the state's em-

pirical position, and the revolution in communications

which has facilitated the flow of information in a manner

unforeseeable in 1796, when the county waiting period, .-

was first enacted, or ‘in 1870, when the statewide waiting

period was adopted. for the first time, there is no demon-

. strated, or demonstrable nexus between length of resi-

_ ‘dency and ability to cast.an intelligent vote. Since the

deprivation of the rights of appellee and other members: of oe: :

his class by the conclusive presumption is extreme, and

. sinee no opportunity is afforded to rebut the empirical as-.

es sumptions. of the presumption, the durational residency

. provisions with respect to. voting are unconstitutional as .

a violation of ae — under the fourteenth amend- ake 2

- ment.

‘AS

5. Tennessee’s Durafional Residency Provisions for Vot-

ing Broadly Infringe Fundamental Liberties and Thereby

. Violate Substantive Due Process Since There Is No Neces-<:

sary Relationship to the Copetivet Sought. |

Under a substantive due process ‘approach to state lagis-

lation which infringes important, individual liberties, th

emphasis is on weighing competing claims so as to deter--

mine the rationality of the means adopted by: the state for

achieving the articyMited state objective. ‘The Court must

analyze and weig the following factors: the nature of the

-. interest affected; the extent to which it is affected; the

- rationality of the connection between legislative. means —

’ and purpose; the existence of alternative, less restrictive

means for effectuating the purpose, and the degree of con- —

‘fidence the Court has that the statute reflects the legisla-

tive concern for the purpose that would legitimately sup-

port the means chosen. See Williams v. Illinois, 399 U.S.

- 235, 260 (Harlan, J. concurring). When all of these

‘"* factors are considered, any reasonable balancing will show -

_ that, short of ‘‘a talismanic -incantation’”’ of “‘state’s

‘rights’’, see. United: States v. Robel, 389 U.S. 258, 263

(1967), the interests: the state purports to serve by ‘the

. voting waiting periods are not achieved by their applica-_ -

tion. Other methods of preventing fraud and assuring -

intelligent use of the ballot are available, and must be

used as less drastic means of promoting the interests the —

state seeks to further. See Appellants’ Brief, at 10. Conse-

quently, since fundamental freedoms of political associa-.

tion and interstate. travel are at stake; since the waiting

periods do not effectively further their purported objec-

. tives; and since more precisely tailored alternatives are -

available, Tennessee’s durational residency restrictions on

3 ‘the franchise violate the substantive ie Te of due

pee oer

> ARGUMENT

i, wis ‘ouseniey, touaitinuaad desea atalh meinen

a Qualification for the Exercise of the Franchise Vio-

- late the Equal Protection Clause of the Fourteenth —

Amendment of the United States Constitution.

| A. Tho appropriate standard of review under qual

protection —

The apie Court, in evolving diiitndlle for decision _

- under the Equal Protection Clause,. has recognized that

‘‘the Equal .Protection Clause is not shackled to the

‘political theory of a particular era... . Notions of what

constitutes equal treatment for arpostl of the Equal

”

Protection Clause do charfge.”?. Harper v. Virginia Bd.

of Elections, 383 U.S. 663, 669 (1966). What may be.

_, characterized as the traditional test in Equal Protection

" adjudication | requires the Court to examine whether the

_. objective the state seeks. to further and whether the classi-

fication in question bears. a rational relationship to this

legitimate’ goal. This test was formulated i in‘ the Sunday

Closing Cases as follows: awe

' Although no precise formula has best vale, the

’-" Court has held that the Fourteenth Amendment per-

_ mits the States a wide scope of discretion in enacting

laws which affect some groups of citizens differently

than others. The constitutional safegd&rd is offended

‘only if the classification rests on. grounds wholly

irrelevant to the achievement of the State’s objective.

- State legislatures. are presumed to have acted within ©

‘their constitutional power despite the fact that, in

ic iee, their laws result in somé inequality.-

v. ‘Maryland, 366 U.S. 420, . 425 (1961).

‘While this traditional standards remains. viable in. ‘many “

areas = “— siegiases adjudication, ee in the

— 14

. *farea of economics and social welfare,’’ see, e.g., Dan-

: dridgp.¥. Willows, 397 U.S. 471, 484-86, 489-90 (1970);

v. Fouche, 396 U.S. 346, 364 (1970), it has

come to be replaced. in two broad gategories @f cases.

Compare Kramer v. Union Free School District, 395 U.S.

621, 626 n.6 (1969), and Evans v; Cornman, 398 U.S. 419 |

_ (1970), with McDonald v. Board ‘of’ Elections, 394 U.S.

802 (1969). The first of these categories involves situa-

tions where the interests at stake are “fundamental”? ;

the second ‘occurs when the classifications made are ‘‘sus-

- pect’’. In these areas, the Court has exercised a strict

- standard of review, placing the onus on the State to

justify the classification as necessary to achieve @ com- an

pelling state interest. A’ mere showing that there is some

rational connection between the end sought and the means

adopted .to achieve that end is insufficient to uphold a

discriminatory classification where the interest is deemed

fundamental or thé classification ‘suspect, :

2h. cases where strict. review is required, this Court has :

derived a three-step analytical framework: 1) Are the

- . interests the classification purports to further legitimate

state interests? 2) If the interests are legitimate, is the

~~ statute drawn narrowly enough to meet the test of néces-

sity? See United States v. Robel, 389 U.S, 258 (1967);

Keyishian v. Board of Regents, 385 U.S. 589 (1967); Elf- |

brandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secre-.

tary of State, 378 U.S. 500 (1964) ; 3) If the interest of

the State is legitimate, and if the means used to promote ©

it are necessary “and narrowly enough drawn, is the in-.

i (1969).

- terest of the State so compelling as to warrant the re-

sultant infringement on fundamental liberties! See :

_ Kramer v. Union “Free School, District,’ 395 US. 621 a

° : red . ‘ ‘

‘Whether analysed under the traditional rational basis. :

formula or under the “‘compelling interest’? standard,

Tennessee’s durational residency provisions for exercising

. f °

° / $

: /

: : ‘

5 2°

Shr ie eee ale ed ee ae) Gs ee a ee

the cediihiins constituté? a violation of the Rew Protee:

tion Clause of.the Fourteenth Amendment.’ As the Dis-.—

trict Court held, the durational aspect of . Tennessee’s* Buen

t “gofer residency period fails to meet either the ‘‘com-

felling interest’? test, which the lower court held appli--

cable to these voting restrictions, or the traditional equal ~

protection measure: ) .e

: Neither the purpose | ‘of, - nor Pe justification: for,

_ these latter requirements can be found in either the .:.

Tennessee: Constitution or the Tennessee Code Anno-

tated, and this court is of the opinion that they are

not ‘necessary’ to promote any ‘compelling state :

» interest’ and, ‘indeed, serve no valid aereeye ie at

ee ee a

It is ‘the position of appellee that the District Court was

correct in applying the more strict ‘‘compelling interest’? :

‘test. Strict review is applicable both because fundamental

“yights are at stake and. because a suspect classification

- has been employed to disfranchise an* - entire Clase of new

residents of whom appellee id representative.

‘ In Kramer v. Union Free School District, 395 U.S. 621,

627 (1969), this Court said that - Bo

if a challenged state statute grants the. ight to vote

. to some bena fide residents of requisite age and citi-

genship and denies the franchise to others, the Court .

must determine whether the. exclusions are necessary Prior.

to promote a compelling state F interest. SS

Of. Bates v. Little Rock, 361: U.S. 516 (1960); Shierbert v.

Vernar, 374 U.S. 398. (1964). Similarly, in. Shapiro v.

_ Thompson, 394 US. 618 (1969),’ where a. one-year waiting

-. period for, receipt of public assistance was invalidated as.

-. a violation of Equal Protection, the Court specifically re-

jected the traditional connection. test when fundamental :

constitutional rights are at stake: ‘‘. amy elesaificntion:

ilies"

which serves to penalize the exercise of that right [the -

right to interstate travel], unless shown to be necessary

to promote a compelling governmental interest, i is unconsti-

tutional.’ 394 U.S. at 634 (emphgsis i in original). Of. Wy-.

man Vv. Bowens, 397 U.S. 49 (1970).

Comparison’ of Kramer v. Union Free ‘School District,

_and Shapiro v. Thompson with McDonald v. Board of: Elec- -

tions, 394 U.S. 802 (1969) and Dandridge v. Williams, 397.

US. 471 (1970) reaffirms the distinction that this Court has

maintained in equal protection adjudication between fun- — |

damental rights and other matters such as those concern-

ing economics and social welfare. See Shapiro v. Thomp-

‘son, 394 U.S. 618,

‘McDonald, a. i

governing absentee allots. Former Ghief Justice. Warren

pointed out that the

that. the right to vote , was being denied; as the Court indi-

cated, the McDonald petitioners were seeking a right ‘to an

" absentee ballot, 394 U.S. at 807, and there was no evidence |

that Illinois would not have made alternative provisions

(1969) (Harlan, J. dissenting). In

us Court applied traditional equal

equal protection principles to an Illinois statutory scheme:

rd did not support any inference

for the logistical arrangements of getting the temporarily —

" ineareerated petitioners to the polls so as to cast their bal-

_ lots. 394 U.S. at 808 n.6. What distinguished Kramer,-

where strict review was applied, was that there ‘was no |

~ absolute bar to the franchise in McDonald. See Kramer,

\ supra, at 626 n.6. Thus, not all voting ‘cases are analyzed . 3

*\ under the stricter ‘equal protection-formula. Only certain

inds of voting cases fall under this closer: serutiny—éases

» “a State declares that an entire class of citizens is

ineligible... . and that class is definéd in a way. in which

.» individual merit plays no part.’? Williams v. Rhodes, 393 ©

U.S. 23, 44 (1968) (Harlan, J: concurring). Of. Harper v.

‘residency oe for voting are uaclenty this sort

Naty

|) "‘Vinginia Board of Elections, 383 U.S. 663 (1966); Oarring-

ton v. Rash, 380 U.S. 89 (1965). Tennessee’s durational.

—1- |

of absolute ristuhalion’ on: the. exercise of the franchise by

_an entire class of new residents, and therefore are subject

plum

— to close ‘constitutional scrutiny by this Court.’ . Of. Evans —

wv. Cornman, 398 U.S. 419 (1970) in which a unanimous —

court held strict review applicable to a Maryland ruling

disfrachising residents of a federal enclave. Nothing in

‘United States v. Arizona, 91 S.Ct. 260: (1970), which in-

volved the power of Congress under Section 5 of the Four-

tomer Amendment, is to the contrary.

The contfast between Shapiro v. Thompson Ade Dand- :

‘ridge v. Williams further supports the vitality'of the dis- i

‘tinction of equal protection standards on the basis of the ~

’ existence .of a fundamental right. In Shapiro, this Court

‘found an infringement of the fundamen ‘right of inter-

* state travel, and this triggered strict review. In Dand-

ridge, this Court reluctantly held that traditional review -

' was the appropriate equal protection measure becausé no —

fundamental rights were infringed: Conceding that sub- —

sistence was at stake i in’ the case of state maximum «welfare -

grants, just as in the welfare eligibility criteria in Shapiro,

this Court distinguished Shapiro on the ground that .there

‘ the fundamental right to interstate travel was abridged, -

whereas in: Dandridge ‘only matters affecting. ‘‘economics

and social welfare”’ were at.stake:

Cf. “Shapiro. ¥. ‘Thompson,’ 394 U.S. 618, hei? we

a the. Court found state interference with the:

tionally protected freedom of jnterstate travel.

Re Williams, 397 U:S. 471, 484 n..16 (1970). Re-

- gardless how one views the Dandridge opinion, it does

make clear the ‘continuing distinction between different —

- formulae of equal protection. Justice Harlan,. in his con-.

‘eurrence, explicitly rejected ‘the narrow holding of the.

majority ; for him, the. fundamental interest branch of the

‘‘compelling interest’? test has no role in equal protection

sane “see Shapiro v. ee 394 US. 618, 660-

Re.

“i 63 (1 (1969) (Harlan, J. dissenting); and his separate opinion:

in Dandridge rejects the approach, of the majority in which

the traditional test was relegated to the ‘area of eco-

- nomics and social welfare’’, ‘‘It is on ‘this basis, and not

°\\ because this case involves only. interests in ‘the area of

economics and sodial. welfare,’ ’’ that Justice Harlan joined

_ the “Court’s constitutional holding.” Dandridge v. Wil-

’ : Tiams, supra, at 490. . Nevertheless, Justice Harlan speaks

alone in rejecting - the fundamental’ interest branch of the

“compelling interest’? test, all other members of the Cou t.

ra agreeing by implication that it is applicable when: funda-

" “mental\rights are abridged. Thus, it is found that ionce~

7 ans fundamental rights are involved, the strict. standard of

". . review is applicable. See City of Phoénix 4, Kolodxiejski,

399 U.S. 204 (1970); Evans v. Cornman; 398 US. 419

(1970); Cipriano v. City of Houma, 395 U.S. 701 (1969) ;

~ Siedamer vy, ‘Oklahoma, 316 U.S. 535 (1942).

" Corresponding examples ‘of the application of steiet —

view can be drawn from. eases involving suspect classifica-

_\) tions. . In'Koremateu v. United States, 323 U.S. 124, 216.

(1944), a Japanese relocation case, the Court — its

on analysis with the following warning:

It: should. be noted, to begin with, that all ee re-

' strictions which curtail the civil’ rights. of a single

racial group are immediately suspect. That is :

-, courts must subject, them to the most rigid scrutiny.

In McLaughiin v; Florida, 379 U.S, 184 (1964),-the Court

* invalidated asa violation of equal protection a statute

which -prohibited cohabitation by an interracial couple,

Citing. McG@owan v. Maryland, supra, the Court observed

-” that the. widest discretion is normally allowed the legisla-

Ne ture’s judgment, and any benefit of the doubt is given to

s justify legislative action as reasonable;: ‘but ‘where the

. class drawn is racial, and hence pperanne the. inquiry is

ss er there sent appears . . some overriding statu-

tory purpose requiring the proseripiton of the eeciod

conduct:*’ 379 U.S. at 192. |

Loving. v. Virginia, 388° U.S. 1 (1967), is an pas

' where both elements eliciting strict, review. were ‘present.

Of. Williams v. Rhodes, 393 U.S. 23 (1968). In striking

‘ down an. aiti-miscegenation statute, this Court rejected

-’ the argument that there was no violation | ‘of equal pro-.—

tection since. the law applied equally to:blacks and whites. --

Strict reviewwas occasioned. because tlie classification in- |

valved race and was therefore suspect, And because the — |

right at stake—marriage— was deerned fundamental. Cf.

Griswold v. Connecticut, 381 U.S. 479 (1965). Thus, .

- where-a case involves. both a suspect classification and a

+ fundamental interest, the standard of review is, strictest.

_ Tt must next be considered whether, under the decisions of

* this. Court, fundamental rights are affected or suspect

classification are involved.

nae Strict review is: applicable

z Fundamental Rights Are Involved

A) Voting

1). The Right to Exercise the Franchise Is >

Fundamental Right

~ Unless this Court is willing to ‘turn its bili on. the

votirig rights cases of the past decade, it must find that: ,

- .the franchise restriction imposed, on new residents by.

. Tennessee’ 8. durational residency provisions’ infringes a

fundamental right. Wesberry. v. Sanders, 376 US. 1

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

v. Rash, 380 U.S. 89 (1965), Harman v.. Forssenius, 380

U.S. 528 (1965), Harper v. Virginia’ Board of Elections, —

= 383 U.S. 663 (1966), Avery v. Midland County, 390 US.

_ 474..(1968), Kramer v. Union Free School District, ="

US. 621 rs = v. — of Houma, 395 US. 7

(1909), ‘Evens v: Coranien, 398 U.S. 419 (1970), and ity

of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). Under |

both fed@ral constitutional law and. Tennessee law, the

exercise of the franchise is a fundamental political ~~

See: State v. Staten, 46 Tenn. 233 (1869).

Although a state is not constitutionally obligated to

provide elections for ‘all offices, see Sailors v. Board of —

- Education, 387. U.S. 105 (1967), and -Fortson v. Morris,

385 U.S. 231. (1966), when it does decide to use the elec-

tive process, it. must distribute the franchise according to

equal protection standards. Kramer v. Union Free School —

_ District, 395 US. 621 (1969).

In Wesberry v. Sanders, 376 Us. 1,’ 17 (964), this

Court said: |

No right i is more precious in a free country: than that

of having a voice in the electio ‘of those who make

the laws under ‘which, as good citizens, we must live.

i>)

~ Other rights, even the most basic, are illusory. if me

right to vote is @ndermined. :

In Reynolds v, Sims, 377 US. 533, 562 (1964), the Court

observed that :

since the right to exercise the franchise in a free and:

unfmpaired manner is preservative of other basic

civil and political rights, any alleged infringment of

“the right of citizens to vote. must be carefully: and *

meticulously scrutinized.

.. The. strict review applied i in the Reapportionment Cases,

< eg., Wells v. Rockefeller, 394 U.S. 542 (1969), Kirkpatrick

v. Preisler, 394 U.S. 526 (1969), combined with the per-

vasiveness of the one man, one vote rule, ég., Hadley v....

- Junior College District, 397 U.S. 50 (1970), Avery: v.

Midland County, 390 U.S. 474 (1968), are indicative of

- the importance with which voting rights issues have been

- en,

SJ mm as s this Court has examined closely cases where the

vote has been diluted, it examines closely cases where the _ -

right to vote has been denied. For example, in Evans v.

Cornman, 398 U.S. 419, 422-23 ai sab the Court. noted

that

a State may not dilute a person’s ‘ade . ., and a

lesser rule could hardly be aeonener? to a ae

denial ‘of the vote.

As this Court stated in Kramer, 395 U. S. at 626-27:

: Statutes ‘granting the franchise to residents on a se-

lective basis always pose the danger of denying‘ some |

citizens any: effective voice in the governmental. af-

fairs which substantially affect their lives. ©

The reason for concern is that “statutes distributing the

. franchise constitute the foundation of our representative

society. - Any unjustified discrimination -in determining

who may participate in political affairs or in the selection

_ of public officials undermines the legitimacy of representa- _

_ tive government.” Kramer, supra, at 626. Bee Evans v.

_ Cornman, 398.U.S. 419 (1970); Williams v. Rhodes, 393

-U.S. 23 (1968); Harper v. Virgiriia Bd. of Elections, 383

U.S. 663 (1966); Carrington v. Rash, 380 U.S. 89 (1965) ;

~ Terry v. Adams, 345 US. 461 (1953); Smith v. Allwright, °

321 U.S. 649 (1944) ; United States v. Classic, 313 2.8. 299

(1941). °

Thus, it is Pac a to. characterize thé exercise of

the franchise and statutes which determine voter qualifi- ©

cations as fundamental concerns of the individual and of -.

society. Under the applicable standard of equal protec- _

tion, the Court must ‘apply strict review, requiring the .~

state to advance compelling reasons to justify the. neces- ©

| sity of disfranchisement resulting from discrimination

among bona fide residents, on the basis of durational rewi-

dence. . :

2) ‘Durational ~ Residency Requirements ‘

-Abridge the Exercise of the Fundamental

‘Right to Vote _ eras ——— Strict,

Review

The tenseaiisten of durational residency requirements

for voting presents'a much stronger case for the appli-

cation of strict review than many of the previous voter

qualification cases decided by this, Court. The analogy

_ to Evans v. Cornman and Carrington v. Rash, cases which

' evoked But a single dissenting vote, is striking.’ The

rationale of Kramer v. Union Free School District goes

*- well beyond the doctrine necessary to invalidate Ten-

_ nessee’s durational residency requirements under equal

: protection. In some réspects, Kramer reflects the, most

difficult case in which to justify strict review; the Court

there found that strict review was to be applied expan--

sively in voter exclusion. cases, being triggered whenever

‘‘some resident citizens are permitted to participate and

some are not.’’ 395 U.S. at 629.- ‘Yet, Kramer involved

‘a specialized election for school board and not. general

franchise qualifications for state .legislative or guberna-

torial office or national office: The urt’s conclusion

_ that ‘‘the deference usually given to t judgment. of

legislators does not extend to decisions conce which

resident citizens may participate in the election of legis-

lators and other public officials,’ 395 U.S. at 627, is

. much more easily applied to the durational residency

situation. where in fact. an entire class of new residents

is excluded from. participation at any level of government.

How much more strikingly applicable is the- Court’s

analysis to the situation of total disfranchisement from |

the body politic than to exclusion froin a special purpose

- election. And this exclusion is not for the one year that. -

‘ might appear superficially. In the case of: United States

‘Senator, the effective period of. disfranchisement and of

- political impotence is six years, for governor four years;

ya.

ein RS

" for United States Representative two years; and for

various elgctive judgeships eight years. Tennessee Con-

stitution, aden §§ 3, 4. In Kramer, the Gout =r

that

The presumption of constitutionality sia ‘the ap-

proval given ‘‘rational’’ classifieations in other types

-. of enactments are based on an assumption that the

institutions of state government. are: structured 80

as to represent fairly all the people. However, when

_ the challenge to the statute is in effect a challenge

of this basic assumption, the!assumption can no .

longer serve as the basis for peereene constitu-:

- tionality (Footnote omitted). — .

395 U.S. at 628. In dissent, Justice Stewart points out

that this reasonmg is most directly applicable ‘to partici-

- pation in elections for state legislature. He goes on to

note that ‘‘appellant is of course fully able to participate =

in the election -of representatives in that: body. There is

; simply no claim whatever here that the state government —

_ is not ‘structured so as to represent fairly all the people,’ .

including the appellant.’’ 395 U.S. at 639; That, however,

is precisely the claim in the durational residency situa-

tion. In Lucas v. Colorado Genera] Assembly, 377 US.

“713 (1964), Justice Stewart parted company with’ the

_Majority he joined in Reynolds v.. Sims, a case decided

on the same day. In Lueas, Justice Stewart was careful

to. enumerate what was not fhere at.stake:. — |

It is important to make clear at the ahoet what -

these cases are not about. They have nothing to do

- with the denial or impairment of any person’s right

- to vote. Nobody’s right to vote has n denied.

Nobody’s right: to vote has been restric

377 U.S..at 744. ‘What distinguished Lucas fro Reynolds

was that in Lucas the apportionment scheme had been

voted upon by the —_ in a. —— a gabe sod

oO.

that was available for future remedy of any self-imposed

‘‘malapportionment’’, Justice Stewart believed this sys~ |

tem to be constitutionally permissible, disagreeing with - 7

- the majority which held that a state, whether through |

‘agains action or diréct action by the people in a

referendum, could not “‘malapportion” itself. (ee .

‘This disagreement surfaced again in Avery-v. Midland ie Oe

’ County, 390 U.S. 474 (1968), where the majority held that - |

‘the one man, one vote rule was applicable to local ‘sub- .

units of government with’ general legislative. power. The.

_ dissenters felt that a properly constituted state legislature _

‘should have leeway in structuring local units of govern- -

ment. This position was specifically- rejected by the Avery

majority which held that statutes structuring local govern-

ment units receive no less strict scrutiny merely because

_., the state legislature is fairly elected. 390 U.S 474, 481 = ".

n. 6 (1968). And in Kramer, in response to Justice Stew-

: art’s criticism of the Court’s rationale, the majority said: —

[T]he assumption [that institutions of state ‘govern- eps. %

_ ment represent fairly all the people] is no less under Seen

‘attack because the legislature which decides who may eto: ©

participate” at the various levels of political choice is a's

fairly elected. Legislation which delegates decision - ~ -

making to bodies elected by only a portion of those

eligible to vote for the legislation can cause unfair

representation. Such legislafion can exclude a minor-

ity of voters from any voice in the decisions just as

. effectively as if the Ylecisions were made by legislators

the ncn carina had no voice in ene 2 ;

895 U.S. at 628.”

~ Lucas and Avery are relevant to distinguish Carrington

.andCornman from Kramer. In the case of disfranchise-

- “ment of new residents .on the basis of a-calendar waiting

period, there i is no question of applying strict review to an

election for a sub-unit of government. On the contrary, it

A, MM Eee |

is quite clearly a total bar from the political process.at 3

. any level. Application of strict review is thérefore -re- —

quired. since the substantial disfranchisement of 3-10%

of the population of a. state is likely ‘

prevent ultimate effective. majority. rule.” Lucas |v. Colo-

rado General Assembly, 377 U.S. 713, 754 (1964) ( |

J. ‘dissenting). Moreover, when applied to a system of

-. voter disfranchisement whose principle of classification is

solely baséd upon the exercise of a constitutionally pro-

tected right—the right. of interstate travel—and when tlie

exclusion is total, the critique of the dissenters i in Kramer |

- . is. not applicable. Consequently, the voter durational resi-

dency case is actually far less difficult doctrinally than

Kramer; invalidation of Tennessee’s - calendar waiting a ery

| period requires no extension of Kramer, but in fact falls ~

comfortably within the contours of the less difficult Car;

peepee Mn aly. (Cf. 395 US. at 640, n

9-10.

Another probless:zained. by the diitintern:tn.itwanne was

that the opinion of the majority, by defining broadly the —

'- category of interested persons constitutionally required an

opportunity to participate in elections, invited abandon-

ment of even a residency period. Appellee does not chal-

_ Ienge the residency requirement for voting, which Tennes-

see has interpreted to mean domicile. Brown v. Hows, 163°

Tenn. 178, 42 S.W.-2d 210 (1931). Indeed, the state con-

cedes, and the District Court found, that appellee is un-

- - questionably a bona fide. resident of Tennessee; the sole -

qualification he lacks is the three month county and one ~~

year statewide calendar waiting period. This is not a case

ie of a resident of West Memphis, Arkansas, claiming a suf- :

ficient interest in a Memphis, Tennessee, election because |

he happens to'work in Memphis. There is no challenge to

the geographical integrity of the veting constituency. The

challenge is only that once a resident,’having exercised his

federal. constitational right of interstate travel, has become

— 26 —

‘a bona fide member of the community, cf. Carrington v.

- Rash, 380 U.S. 89 (1965), subject to the responsibilities of

'. .¢itizenship in the state intluding the duty to pay taxes,

'T.C.A., §§ 67-2601-02, to buy Tennessee tags for his auto-

mobile and qualify for a Tennessee motor vehicle operators

~ license, T.C.A., §§ 59-401, -704, the state cannot discrimi-

nate against him in distributing the franchise provided he

is otherwise qualified. -

. In-Kollar v. ‘Oity of Tuoson,-319 F. ‘Sane. 482 cD .Aris :

1970), plaintiff attempted to raise,the issue alluded-to by .

the ‘dissenters in. Kramer. Kollar lived outside the geo-

_ graphical boundaries of the city of Tucson, but was served

| “by: the ‘Tucson’ water works; he claimed a‘ substantial -

pecuniary interest in a vote on the Tucson. Water Revenue -

Bonds Project since water rates may reflect the additional -

revenue needed to pay the principal and interest obliga-

tions on the bonds. Citing Kramer and the District Court

- .opinion.in’Blumstein v. Ellington, the three-judge court 7

found that the compelling state interest. standard was Sus

plicable; but it went on to note that :

_ Unlike the cases wherein courts have invalidated: one-

year residency requirements [footnete cites District

~Sourt opinion-in this ease], our case involves a chal-

lenge .to houndary definitions of residency .. . [W]e

here find that neither plaintiff is ‘‘as siliciently af-

fected and directly interested as-the residents’’ in the

challenged bond election. Generally, residents have a

greater interest in | the outcome of local elections than

- do nonresidents. -

Kollar v,,Gity of "'ucson, 319 F. § Supp. 482, 484 (D. Atle

1970). Clearly, if appellee were challenging the ability

of the'state to define geographical constituencies, extensiori

| Al the ‘principles enunciated in Kramer. would ‘be neces-

But no such issue is involved in the case of dura-

oda periods: of mee aig for voting. The State and :

(va

Di csi

ceedilatinitaiidicliadaeadsiia 1 cheba dtitngy Alin i :

vant constituencies, and nothing herein challenges the: -

traditional power of the: state to draw the geographical — |

boundaries of sub-units of. government. See Hunter v.

Oity.of Pittsburgh, 207: U.S. 161 (1907). The distinction

between residency and durational gpa zas cannot be

overemphasized. _ oh see A wea

Tennessee’ 8 EY residency Ee BRL. disfran:

chise new. residents‘ from all elements of fhe political

‘process. . Unlike Phoenix v.,Kolodsziejski, 399 U.S. 204.

(1970), there is no dispute that elections for major politi- yee

cal representatives are involved. The dissenters, in Phoenix

questioned the applicability of strict review to a vote for —

approval of a bond issue. Justite: Stewart ‘noted that

there was no claim that members of the city council were — .

_ not fairly elected. Nevertheless, he acknowlédged that

‘‘Ti]f this case really involved an ‘election’, that is, a ~

‘choice by popular vote of candidates for public office un. _

_ der a system of representative democracy, then our frame

: of reference would necessarily have to be Reynolds v. -

§Sims,. 377 U.S. 533, and its progeny.”’ 399 U.S. at 215.-

_ There can be no doubt that the disfranchisement brought

. about by Tennessee’s durational residency period restrifs

. participation in elections for public .office, so the obj&-

tions raised -by the dissenters in Phoenix do not ey to

} the calendar waiting peric for voting. :

The distinction which the District: Court drew between

residency and durational residency cannot be overempha-

sized. The state in its brief continually’ alludes to an

alleged challenge to Tennessee’s residency. requirement,

This is misleading since it ‘is only the duiraticnal “an ‘aspect ap

that is under question. Many cases decided by this Court —

involving voting rights have noted that the state is con- -

- stitutionally entitled to establish reasonable standards of

residency. Kramer v. “Union Free School District, supra..

« 2 ° E

. 7 . ms

a —

Most, states have‘ used this freedom to define ‘saeaicile”” /,

as the. test ‘of residency for voting purposes. See Browz /

-y. Hows, supra. Some states, however, require physical

prunes aitt-ac didi te sie teres |

voter. See Brief Amicus Curiae soul pastiaan Commit- nf

tee on tee voting in Hall v. Beals, 396 U.S. 45. :

(1969). | Even state residency definitions, however, are ‘not

‘immune from constitutional attack “when a state cannot

_. show them to be necessary to promote a compelling state

interest. See Evans v. Cornman, 398 U.S. 419 (1970) ; Car-

-rington v. ‘Rash, ‘380 U:S. 89 (1965). Certainly no less a

standard can be applied when the basic residency test

has been met, and the only missing. qualification is the.

additional —. waiting period. — : pee

: The solaemiiees for actual sealdines has a oo Mistery /

which supports its validity; but it is. interesting to note -

that the distinction between a residence requirement and

. @ waiting period requirement was explicitly: recognized by

the Framers. In the Constitutional Conyention, ‘the ques-.

tion of qualifications for members of the House of Repre-

sentatives and Senate. arose. ca Article L Section 2, the

os ‘Constitution ‘provides: Ce |

No person shall be a 5 aeidlakcalis who shall not oe

_ ‘have attained the Age of‘ twenty five years, and been

‘seven years a Citizen of the United States, and who

_ ghall not, whey elected, be-an Inhabitant of that State

in which he shall"be chosen?

-In the Oouivention, it was felt that'a seven year hess

citizenship period would protect the fledgling republic

from being. taken over by adverse. foreign influences—a

device against “insidious: intrusion by foreign nations’’. -

Papovir, To Secure Tuese Biessincs: Toe Great Depates

or THR ConsTITUTIONAL CoNVENTION oF 1787 247-49 (1962).

two forces then pulled in opposite directions with respect

* - to residency’in the state from which the representative .

ee tas —_——-—~

, . "

¥.

‘

would be elected. Some (like Gouveia Diania o

requiring that a representative even be,a resident of thes

ing. period should also be imposed within the state. But- >

: ing period in the state be imposed to. correspond with the

_ durational citizenship requirement so. that candidates

would be able to acquire knowledge of local affairs, Even- .

tually;.votes were taken on the durational residency issue

_ joining South Carolina and Georgia, with Maryland

‘divided. it Farganp, THE RECORDS OF THE FEDERAL Cox-

VENTION 219 (1911).

‘that time was necessary to. attain local kno

-. correspond little with the idea that we were ¢ one people.’’.

ticle I, Section 3. The distinction between residency and ae

oo unjustifiable restriction on the political process, and ablow.

Be the national unity the Framers were striving to achieve.

quirements for voting, as: contrasted with duration of *

state-from which he was elected; others felt: that a wait- =

ledge of South Carolina proposed that a seven year wait- | a.

‘for candidates. A three year period. was defeated by:a. -—

vote of 9-2; and a one year petiod was defeated by a 6-4

margin, North Carolina and New Jersey switching sides

The proponents of Aniational i aaabdomege pebiods sea.

so that

candidates would represent the people of the district bet-

ter. The opponents, such as. Read, pointed ut that a na- .

tional government was being formed and gguch a regula- —

tion [state ‘durational residency for. idate] would

II Farganp 217. Mercer stated that ‘‘[s]uch a ‘regulation: Bee

would present a greater alienship among the StateSthan’ . =

existed. under the old federal system. It would interweave os

local. prejudices and State distinctions | the very Con-

stitution which is meant to cure‘ th @ Ibid. Thus, the |

Framers expressly rejected the need for -state residency: :

with respect ‘to both Representatives: ‘and Senators. Ar- ,

durational residency was debated, and, even for candidates

for office, the Framers felt that a waiting“ pétiod was an

' The permissibility of age, citizenship. and residency re-

fo, male inhabitants of a state, twentyeone years: of. age -

“over and citizens of the United States. As in the sec-

.Senator,.section 2 1

* mention whatsoever of a Wi

= 2.

ee = as

“residency poquitempnts for data gains further support |

"from section 2 of the Fourteenth. Amendment. Section 2-

imposes a penalty upon states which do. rfot grant the vote

qualifications, for Representative and

the term inhabitant; ‘without any

ing period. ‘Consequently,

while section 2 of the Fourteenth Amendment i is the so mig

_ of’ thé repeated admonitions of. this Court that states

_ wide latitude-in' establishing age, citizenship and residency ——

} requirerténts, this, broad power is not conferred “er

| ‘spect to calendar waiting: periods.

= surely would seem ‘anomalous ‘thas appellee, ‘upon

‘moving to ‘Tennessee, would be qualified to run for office

' as a United States Representative but: would not be able

‘to vote for himself. Were appéllee thirty years of age, °

the same anomaly would present itself if he were, to run for -

United States Senator. ¥et, the factors supposedly stip-

porting the imposition of waiting periods for voting .apply

even more strongly to candidates for office. In Hadnott v.

-. Amos, ... F. Supp. ... (M.D. Ala. 1970), a: three-judge

> - panel invalidated Alabama’. six month county ‘and. three

month precinct. voter regintratié waiting period; however,

also involved in -that. case, ‘was the validity of Alabama’s _.

- ‘yequirement that candidates for circuit judge reside \in

” the circuit from which they are elected for twelve months —

prier to their election.. By a 2-1 majority, the- court upheld -

this: candidate calendar residency - period because of the _

a differences” between voters: and candidates:

. [T] he tnajority recognizes that the role of the

. candidate and of the voter differ in a democratic .80- ,

ciety, so: that the state may have a compelling interest

.. in requiring resideney for candidates that is different

from its asserted interest in requiring residence for.

SS a

voters. ialnadion: in the soliton) 7 process and. free- ae

dom to move from place to place are overriding®: con- *

| siderations i in the.case of the v nter. Hig, qualifications

are minimal, and he *need stibject ‘himself to the

scrutiny of no one in the performance of his. role in

selection of public officers. ... The candidate. . “-zaust

have ‘the special ca sitins. that..will enable him to = -

perform the office he “seeks, and his possession or lack

of possession of those capacities need to be exposed to

those who will make the choice. Nonexposure of .

the candidates with voters choosing from lack of a

‘knowledge, is a much more _ serious strain on the

A. ~.. sinews of democracy. -

- chise upon a durational period of residence within a state, ae

a interest. |

Hadnott v..Amos, ... F. esi aes : (MD. Ala. 1970) (Slip

opinion at 31), aff'd 39 USLW. 3410 (U.S. March 23, |

1971)... By summarily affirming this element of Hadnott,.

this Court: implicitly recognized the validity of the distinc- . |

tion the Alabama: District Court drew. ‘Nevertheless, con-

* stitutional history indicates that faced with this same

. problem with respect . to qualifications for the national .

- legislature, the Framers explicitly chose to risk the ‘“‘more \. -

serious: strain on the sinews of: democracy” by rejecting —

imposition of a’candidate waiting period ina state. With

this in mind, it is inconsistent to read the Federal Consti-

tution as allowing states to condition exercise of the fran-

unless it justify the: ‘restriction’ by ‘an’ ores. -

- "Nothing in United ‘States v. habeas. 91 S. Ct. 260 (1970),

wfhioh involved the constitutionality of certain -provisions

of the Voting Rights Act of 1970, undercuts the- validity

of the District Court’s reliance on this. Court’s voting”. -

rights decisions. In Arizona, this Court faced the issue ‘of

Congressional power under section 5. of the Fourteenth

Amendment. * This Court was called upon to define the

limits of Congress’ power, wiles the docprine’ of Katzen-

~~ bach v. Morgan, 384.U.8. 641 (1966), to declare thé mean-.

_ ing of the equal ‘protection elause Oo ion 1. -By.a-

-margin of 8-1,.the provisions in the 4197

"3, | Aet which set durational residency maxima for presidential...

_ _ elections were. sustained. Only the section of the Act re-_

*. lating to voting age elicited significant: division in the

Court. But clearly, the age qualification, as Justice Stewart

points out, is quite different from a durational residency

- : requirement. Justice Black makes this point when he. :

states that ‘‘[t]he establishment of voter age. qualifica- .

- tions is a matter of legislative. judgment which eannot be

properly decided under the Equal Protection. Clause.”’ 91

S. Ct. at 266, n. 10. “Accordingly, Justice Black saw ‘“ [t]he -

crucial question ... . not who is denied: equal protection,

- but rather. which diolitical body, state or federal, is em:

- powered to fix the minimum age of voters.’’ Ibid. Simi-

larly, Justice Stewart, referriig to the Court’s voting

rights and ‘voter. qualifications cases, notes, ‘‘we have been

careful in those decisions to’ note the undoubted power of

a State to establish a qualification for voting based on . ,,

_age.’’ 91 S. Ct. at 349. Section 2 of the Fourteenth Amend- _

ment is the-source relied upon to. distinguish age from -

_durational residency. Bee United States_v. Arizona, 91-8.

2b 260, 349, n. 14 (1970) (Btenatt, J. concurring j and dis-

senting). | He Pa

The problem of deciding age qusitfications under cictnl |

protection standards is not the same as that posed by du-

rational residency, requirements. Arguably, if it. it_were con-

"ceded. that a stiite could impose some calendar waiting .

_ period_which treated new residents differently from long-

time residents, the line-drawing problems the Court faced |

in Arizona would arise., Justice Stewart noted that no one

‘challenged the necessity for some age minimum for voting:

Yet to test the power to establish an age. qualification

‘by the ‘compelling interest’ standard is really to deny

eee 98 |

a State any siision at all, because no State aioe dem- -

onstrate a ‘compelling interest’ in drawing the line

with respect.to age at one point rather thay another. —

Obviously, the power to establish an age qualification -

must carry with it, the pees: to — st a5 a reason-

' able voting age. . mY , :

_ 9158. Ct. at 349. But, as the District Court alow found, |

.. is constitutionally impermissible, because violative 6f equal

' protection, for a state to discrjminate against new resi- %

dents by imposing a separate calendar waiting period.?

Consequently, there is not the same impossible task of line-

‘drawing that faced scan! (Court i in the age qublification situ-

ation.

‘Conceptual laxity 3 in this matter will e aided i. refer-

ence to terminology developed -by Professor Ely: in Legis-

lative and Administrative Motivation in Constitutional

Law, 79 Yate LJ. 1205 (1970). Ely points out ‘that not

every classification need be justified by a legitimately de-

fensible difference. For example, in the selection of a jury, |

a state need not justify the selection of jurors A-L by show- :

1 - This does not go to ss i issue of how long a time period be-

fore an election a state may close’ its- ration books for

: administrative aes See Beare v. Smi F. Supp. ...

a 71). ‘Tennessee has decided that thirty days

is Pigentitg: Aig time to perfgrm the needed administrative chores be.

tween the end: of registration and election day. This is the

- game judgment that the United States Congress made inthe — >

1970 Voting Rights Act, and. the judgment made by more than ~~

- [two thirds] of the state legislatures. The eggential difference

_ between the interval between the close of registration and a

cal ndar residency period is that the registration-election hiatus

is universal applicable to new longtime residents alike, and’

‘therefore not a violation of .equal protection. Of: course, this

Court could and perhaps should impose the Tennessee standard

as a constitutional maximum since it ‘does coincide with the _

Federal - practice and with the overwhelming majority: y-of the ~~:

states; this might promote administrative convenience and .

. elose an obvious loophole in the. District Court’s opinion, but if

the Court: should omit any reference to this interval, it would

_ have to deal with situations ‘such as that — in Beare under

- Due Process standards. ,

\ .

: ing ‘that: they were more. qualified. ‘iiduadiees that may

‘. mean) than M-X. All that is necessary is that the state

show that the system by which jurors are. chesen is free. ’

. from bias, and that tt can ‘withstand scrutiny. as a rational os.

procedure. In cases like jury selection, what Ely refers to - |

as the ‘‘disadvantageous distinction model’’ is inapplicable

because the legislative goals (he labels them ‘‘dis¢retion-

ary goals’’) are so amorphous, that their very definition

~, depends on the decision-maker’s value preferences. - Ac.

cordingly, the: relation between such a goal and various

choices ot be evaluated as rational or irrational. 79

. Yang roLJ. t 1240 n.109. This analysis would -be directly ~

applicable to the age qpalification standard, where, once a.

‘state were asked to come up with a legitimately defensible

difference (between, say,21 {nd 18) it could.not meet its ~*~

burden: Application of the ‘‘disadvantageous distinction ==» “

‘ model’? therefore would .have the’ result that. Justice

Stewart outlines i in Arizona, taking the. power to determine.

: age qualifications away from the states, not because age

qualifications are unaceeptable,' but because. no singlé age

minimum can be persuasively defended.. ‘The result is to

_ supersede state ‘legislative discretion with Congressional

- . discretion. In such a situation, Justice Black,may be cor- _

rect in his assertion that: the issue is not equal protection— ——

(under the disadvantaged distinction model) but the level: — 1%

of government which can. exercise — (i. e., discre-

ae tionary) power. —

‘Where imposition of taki avidicusl residency periods

for voting is concerned, the same considerations do not.

militate against application of the disadvantageous dis-

‘ tinction ‘analysis. Ely himself acknowled $¢ <r

_ is difienltin-1970-to imagine” that voter qhélification

laws. could not be subject to the disadvantageous distinc- .

tion model » . [and] be defended by the state in terms

7 which are rationally (indeed, ‘compellingly,’ -. re *

-lated to a™~lkelihood of responsible einidie of the

7 : : : y

; : ; B

; bd : : Spe ” ss ; ©

Pi A ate A a Ra me me . abet nde aD ”

franchise. i. . .’? 29 Yate LJ. at 1275, n, 203. Ina sub-

‘sequent note, Ely. makes it clear that, voter qualifications, Tae

in general, are now subject tothe ‘disadvantageous dis-. ©

tinction model and ab initio require a ‘‘more -than. ra-|

tional’’ or compelling defense: 79 Yauz L.J. at 1277, n. 212. |

-In determining ‘the constitutionality . under equal protec-

tion of- durational residency requirements, the Court is-

. not drawn into the kind- of policy decision involved: in

> the age qualification. There are two easily classifiable

groups—bona fide residents who meet the durational ’

senius, or Evans v. Cornman. awe |

Furthermore, the ‘daca ‘Of. abuse that are , involved

plied are not present in the age “qualification case but

are present in the durational residency situation. In Oran-.

. dall v. Nevada¢73 U.S. (6-Wall.), 35 (1868), this Court:

invalidated’ a

tax Nevada imposed on every person —.°

Besa the s e by commercial earrier-‘The Court noted =

“Wher poorer such as that used by J ustice Black in

. periods and bona fide: residents who do not—and the —

_ asserted relationship between the restriction and the ob-

_ jective is no more “<diseretionary”’ (in Ely’s sense) than —

' was. the. case in Carrington v. Rash, Harmalt v. Fors-

‘when the disadvantageous: distinction model’ is not ap- —

_ Arizona is used, in which the key issue is one of ‘‘power’’,

which sets twenty-one years as a permissible minimum.

Consequently, there is no real. possibility that a state

would take the analysis of Justice Black or Justice Har-

lan in Arizona as.an indication. of*a constitutional carte

. blanche for setting, for example, 50° years’as the age

minimum. _ 91 S. Ct. at: 350 n. 14 (Stewart, J. opneur-.

. there is. always \ the danger that this power, if held ; para- ©

- 3 mount, will be abused. In the voter age quakfication

| situation, this danger does snot present itself because. of

__the guidance-of-section 2 of the Fourteenth® Amendment, ge

—*

‘ y - .

2a ee

ring and Mittin’: However, were the same analysis -

_ applied to the voter calendar - residency - situation, there _

- . ig no assurance that states would not see this is an-ef-

'. fective way of ‘‘protecting’’- themselves from outside ~

-. influences. Indeed, there is some-evidence ‘that this was

‘one of. the motivating forces behind Tennessee’s impo-

_ sition ot a statewide durational ny period. ‘iQ ae

Bee infra. foe ee : ee

-' | 4 this Court follows the poner’ used with respect

ys to age. in Arizona here with. respect to durational resi-- ~ :

dency, there might: not be any constitutional ‘impediment .,

to increasing the length of the waiting period to, say, —

10 years, Faced with a longer period, the Court—would. |

. be in-the samie doctrinal box it now is in-Otice it concedes

the. state’s power to set: calen ar. ‘ilidunse periods, ‘it’ °

. is in no position to draw a line on-a ‘‘reasonableness”’

- _-—-basis, for there-are no analytical handles by which ‘to

judge the acceptability of 3) months, one, year, or ten —

years. Moreover, there are no convenient guidelines else-

where in the Constitution, as there isin section 2 of the

= Fourteenth Amendment with respect to age. Arguably, _

; the ¢ Court could examine durational residency provisions -

in terms of miotivation, but this Court has time and again

indicated that this is, at best a dubigus enterprise. are

e.g. United States v. O’Brien, 391 U‘S. 367 (1968). = >

mo >? _ :

In, an a ellee has shown ‘that the Seakidiies’ of this .

Court have. held that exclusion of an entire class from the .

_ franchise affects. fundamental rights, ‘especially where the ’

class -is | fined without regard to individual merit and _ .

where, the. classification principle relies wholly upon the’

"exercise of a constitutionally safeguarded right (interstate

. travel). When fundamental rights are affected, equal

_ protection. doctrine requires strict review by this Court. j

‘The case of ‘state durational residency requirements for. :

are falls ey within well — equal protection

- , ?

voting ‘rights- dectrine, not requiring any extension of

__ Kramer v, Union Free School District and indeed not even:

. going as far conceptually as Kramer.

“B) ‘Travel Sts 7 puede ae

» 1 t ——

cS a

mo ty The Right to Pravel ea Wactilineits

The eeuchetie fepeatedly classifiéd. the right.

to travel fandamental: ‘In United States v. Guest, 383 -

_-US. 745, 757 (1966), the.Supreme Court said that‘‘[t]he-

— constitutional. right to travel from one state. to another as

. occupies a ‘position fundamental to the concept of our

Federal Union. ‘It is aright that’ has been firmly estab-

lished. and. repeatedly recognized. - ;

One aspect of the right. to: “travel: can be ‘tranea to

- Article IV of the Articles of Confederation, which pro-

-vided that ‘the people ‘of: each State shall have free in-

gress.and regress to and from any other State. »» In the

United /States Constitution, the thrust of the, Articles in

this gard . was. adopted and broadened: ‘‘the citizens ‘of

nities of Citizens in the several: States.’’ Art. IV, Section

2. In Corfield v. Coryell, 4 Wash. C.C.-371 (1823), Justice .

- Washington described the contents of the privileges and

immunities conferred by Art. IV, Section 2 as those |

* ‘which are, in their nature, fundamental’? and included

- as fundaadegitel the ‘right of a citizen of one State - to

pass through, or reside in any other. State, for purposes

of.trade, agriculture, professional pursuits, or otherwise.’*

Article 13(1) of the Universal Declaration of Human

Rights reiterates‘the basic nature of the freedom of travel:

. .“Everyone has -the right to freedom of movement and

‘residence within the ‘borders of, each state.”? As-the

. Court in Guest said, citing Crandall vy, Nevada, 73 US. (6

_ Wall.) 35 (1868), and Passenger Cases, 7 How. 283 (1849) :

s, ; Pella

- State shall be ehtitled to all privileges and Immu: _ ~

a) ei

, eats

"For all ‘the great purposes: for ‘chide. the Vedecal nes

is government was formed, we are one people, with one’

_ common oes We are all oftizens of the United

States. . : ;

. United Bates v ‘Guest, 383 U.S. 745, 758 (1966).

. This was the position taken at the Constitutional Con."

vented? by opponents of the proposal that members of

the ‘House of Representatives be required | to live for-a -

period of years in the states from which they were elected ®

‘-prior to election. ° Mr. Read, an opponent. of state: dura:

tional residency qualifications for Congressional - office,

noted that “‘we aré now forming a Natil [sic] govt and —

such a regulation would correspond little with the idea

that“we were one ® . people. ’ agi ‘Fanpanp 217 — in,

_ original): ve ; 3 ' Ps

‘The Court in Guest noted that dian: tele bein fe-

curring differences in emphasis within the Court as to

the source of the constitu ionakright to interstate travel’, —

-_ but concluded that *[a]ll have agreed that ‘the sigit

exists’’. 383 U.S. at 759. In United ‘States v. Arizona, 91 nes

&.Ct. 260, 321 (1970), for example, Justice Brennan con- . ~

’ . tinued to maintain: the ambiguity as.to the specific com: |

stitutional source of the right to travel: .

From. whatever. constitutional provision this right

may. be said to flow. [footnote omitted], both its ex-.

-istencé- and its fundamental importance to our Fed-

* eral Union have ~ been ee beyond marl

tion. |

oN, Bees sb ae

Justin Stowart, on the other hand, found that ‘‘[f]ree-.

dom to travel from State to State—freedom to enter and |

_, ‘abide in any State in the Union—is.a privilege of United ©

States ‘citizenship.”’. United States v. Arizona, 91 S. Ct.

260, 345 (1970). Regardless of the souree, ‘this constitu-”.

— er liberty means that ‘a citizen “a the _

—3 iors .

‘United ‘tates * can, of his own volition, soni a citizen *

of any State of the Union by\a bona fide residence thereizi, : 2

_-with the same rights ag other citizens of that State. me

- {Emphasis added.) United. States. v. Arizona, 91 8. Ct. 3

260, 345 (197( ¥ (op nig oxfof Stewart, J.), citing Slaughter-—

‘House Cases, 83 S$. (16 Wall.) 36, 80 (1873). ‘Compare -

Carrington’ v. ec ore 89, 100 (1965) (Harlan, J.,

dissenting) (‘‘I think a. _legitiniate distinction may be .

_ drawn: betwéen those who. come voluntarily. into Texas in’

/seomnection with ‘private | occupations : and those ordered !

“into Texas by military authority”’).

In Aptheker v. Secretary of State, 378 SUS. 500 dou,

the. Supreme Court held that the freedom, of international

travel was’a fundamental right under the Fifth Amend- -~

| ment. Since the right to travel was. closely linked to ~

freedom of speech and association, 378 US. at 517, the

_ Court found. that the government's restrictiog on grant-—

‘8 ing passports ‘to members of Communit organizations o | Re

' ordered to register ‘with th@ Subversive Activities: Control. |

‘Board was’a denial of a constitutionally protected right.

_ Aptheker -reaffirmed the: principle: enunciated by this

Court in Ként v. Dulles, 357: US. 116, 126. (1958), that

By [f] reedom of. movement is basic * in: our scheme bak

.. “walues.?? oe :

That the: Feit trivvel 4 is ‘aidnd both. from’ the bine ny

. ture of the federal government and’ concepts a. personal

liberty is clearly expressed by the eotad: ‘in ‘Shapiro. ms

Thompson, 394 U.S. 618, 629 (1969) :_

: "This ‘Court long ago recognized. that the nature “

_. our Federal. Union and constitutional goncepts of per- -

sonal liberty unitést Sio0 require that’ all citizens be free

to” travel throughout the length and breadth of our

- land uninhibited by statutes, rules, or regulations.

; --which unreasonably burden or restrict this movement, - .

«- * Me : Digg

“ws.

— Aes

As an ‘aspect of berth the right to travel taheren*ta the

- person, like freedom of ‘speech. This ‘right therefore ex-

tends to intrastate, as well as interstate, and international

> travel. See, e.g., King v. New Rochelle Municipal Housing

Authority, 314°F. Supp 37, 40 (S.D.N.Y. 1970): Implicit. *

- in this. concept ig the.freedom to live where one pleases, .

‘and, upon. establishing a bona’ fide residence, enjoying all

the rights of ejtizenship on an equal footing with: long-

' time residents. Freedom of travel:is a fundamental con-

| ‘stitutional: righ? requiring strict Teview by this Court of —

any: —e

2) Tennessee's ‘Durstional - Résidedey Yo. ;

quirements for Voting Penalize the Right

of Travel.and Therefore Trigger ‘Strict -

. Equak Protection Review.

: ‘state travel in fay} equal, protection context must begin

| with this Court’s opinion two years'ago-in Shapiro v. |

Fe, Thompson, 394. U.S. 618 (1969), in which durational resi-'

' dency requirements for the. receipt of. welfare benefits

5 were invalidfted under strict constitutional scrutiny. In

- §hapiro; the Court explicitly rejected the traditional ra-

tional connection equal protection standard:

At- the outset, we rejéct appellants’ argument that a

‘mere showing of .a rational relationship between the

‘waiting period and these four admittedly permissible ~

‘state objectives: will suffice to justify the classifica-

-tion. [citations omitted] gfhe waiting-period provi-\

sion denies welfare benefits to otherwise’ eligible ap- ~

plicants solely beeause they have recently moved into

« thte jurisdiction. ‘But in moving from State to State

or to the District* of Columbia “appellees were exer-

- cising a constitutional right, and any .classification. %

, which ‘serves to penalize the.exercise of that right,

—,

e “= . —41- — .

<< ap tags vk

‘uslens aa to be comeing to a a ccmnpaling

governmental interest, is unconstitutional. (aaa

in original.) 394 U.S. at 634. a )

\. ‘In canvassing possible justifications for {mponttion of’ a

waiting period requirement, the Court examined and re-

" ejeted: the states’ claim that deterrence of in-migratibn of.

indigents was a permissible basis for classification. 394

U.S. at 631.. From this discussion, Tennessee apparently

concludes that the sole defect of- the statutes invalidated

in Shapiro was their objective to deter migration. of wel-_

-fare recipients. (Appellants’ Brief ‘at 13-14.) Of. course,

if such’ a purpose can be ascertained. (and there is some |

evidence ‘that “protection” .against carpétbaggers indeed

| Was an objective of Tennessee’s statewide durational resi- ©

‘ obligated to invalidate the statute. United States v. Jack-

‘son, 390 U.S. 570,.581 (1968) Sap the provision had no

_ other purpose or effect than to “chill thé assertion of con-.

stitutional rights by penalizing those who choose to exer-

cisé them, then it would be patently tniconstitutional”)?

But there is nothing i in Shapiro which supports appellant’s

eee that a’ finding of deterrence’, is the essential

2 This Bick: naturally, has shied: away from resting. det

sions on the alleged intent ef the legislature in enacting stat-

utes.’ See, ¢.g., United. States .v. O’Brieri; 891 U.S. 367, 383

. (1968.) As former Chief Justice Warren observed, . dissenting

. in Shapiro, the Court will not attribute. an impermissible pur- -

pose to a legislature if the result would be to strike down an <«

otherwise valid statute. 394 U.S. at 651-52. For this reason, a

constitutional rae — gprs on motivation of the legislature=

would be moat cult. to apply,zexcept in extra-ordinary cir-.

cumstances. Cf. Gomillion v. Lightfoot, 364 U.S. 339 (1960).

8 Presumably, the State, of. ‘Tennennee could have: directed its

focus*away from the “ohjeetive”. to deter migration to, the “im-

pact” of deterring migration. See Appellants’ Brief, at 13-14.

apo be sure, a:showing of substantial deterrence will carry some

weight in determining whether the abridgement: of the right toe

travel is so insubstantial that it can be justified by an overrid-

ing state interest.. See Shapiro v. Thompson, supra, at 676

, (Eaaian, J. dissenting). But this owen! is not a hecensery ele-

eer Far

i ingredient } in late idiciivatine,. of strict review. okey

such finding flies inthe face of Justice Harlan’s express

- conclusion in dissent: in Shapiro that the deterrent effect °.

. of the waiting periods. was negligible.: 394 U.S. at 671-72. °

‘Moreover, this Court has not found the “determinative

factor } in. right to travel ‘eases the ‘deterrent effect.* For °

_ example, in‘ Crandall. v. Nevada, 73 U.S. (6 Wall.) 35

(1868), the Court. ‘acknowledged that. the one dollar tax

imposed by Nevada on: those leaving the ‘state “cannot

. Sensibly. affect any function of the government, or deprive

a citizen of any valuable right.” 73 U.S. at 46. Neverthe-

‘less, the Court invalidated the statute as a violation of _

the right of interstate travel.

It’ is therefore no édbedlieess that the Court in Shapiro |

did not “Speak in-terms of deterrence in determining

‘whether there. has been sufficient infringement upon the »

‘right, of. interstate travel to trigger strict review. While

. rejecting the traditional’ equal protection yardstick, the

Court established a threshold —_ ener ens from a deter-

rence requirement: |

' Since the classification here touches on the funda-

mental right of. interstate movement, its " eonstitu-

tionality must be judged by the stricter standard of

whether it promotes a compelling : state interest. .

- emphasing in eines ,

™N . ff

ment in triggering. strict equal protection . review? this is the

‘clear implication of Justice Harlan’s conclusion, supported by -

the representations of appellees in their briefs in Shapiro, that

a deterrent effect on migration was not shown. 394 U.S. at 671

n. 30. Thus, in the language of Shapiro, 394 U.S. at 638 n. 21,

a showing of deterrence may be a factor in determining whether

_ there is a “penalty” on the exercise of the constitutional right

to interstate travel. But such a showing ‘is neither a necessary

ner a sufficient condition for a finding of “penalty” that. triggers

strict’ review. -See infra. A showing of damrricer. however,

. may be significant in weighing the state’s claim that its restric-

. tions promote a compelling interest. .

ee — 43 ee

as oo

394 U.S, at 638. This is not the language of deterrence as

Justice Stewart’s concurrence makes clear. After noting’

that the objective of deterring in-migration is constitu-.

_ tionally ‘impermissible, Justice Stewart goes on to note

- that “any other purposes offered in support of a law that

so clearly impinges upoh the constitutional right of inter-

. State travel must be shown to reflect a compelling govern-

‘nal). Consequently, the threshold question for determining

whether strict’ équal protédétion review is to be applied is

not whether waiting periods deter migration but rather

_ whether they “impinge” upon interstate travel (394. U.S.

at 644) (Stewart, J. concurring), or whether they “touch

on” interstate travel. (394 US. at 638.) /: av

In pointing out the obvious—that its holding in Shapiro

would not be directly applicable to other kinds, of dura-

' tional residency provisions—the- Court chose the word

‘‘pénalty’’ to characterize the threshhold determination:

with respect to application of: strict review. “304 US. at

638, n. 21.. That term, of course, is not free from analytical __

£2

= _mental interest.” .394 U.S. at 634-44 (emphasis in origi- -

“

ambiguity. and in some circumstances can require a finding.

of punitive intent. That, however, clearly is not its*neces-.

sary meaning. It can meai “‘disadvantage’’, ‘‘Idss’’, on

re!

oe)

- “hardship’’ as well. See WesstER’s Tarp New Inrerna-

TIONAL Dictionaky ( 1961).4 See-Appendix. Justicé Brennan,

«4 In this regard, perhaps an illustration of the difference

between penalty and deterrence would be helpful: “A youthful.

driver may.be. déterred from moving to another state which

; grants driver’s licenses‘only to persons a year or two older, but

. this restriction would not fall into the category of a penalty

imposed. solely because of.the exercise of the right to travel. In

the instant case as well as in Shapiro, the penalty is imposed‘

for ne reason only—the applicant’s not having.resided in the

., State for a requisite period of time. Thus, appellee could not

vote only because he was a new resident, his bona fide residence __

acknowledged. by appellants and found as a fact by the Diss

trict Court. In the case of the young driver moving to.another

state, there is no deprivation of a driver’s license’ because the

- newcomer is a ‘new — Instead, all persons—old and new

te P

ond wrote the opinion ‘of the Court i in. Shapiro, iidictited. .

his interpretation of its meaning#'in, the context. of dura-

tional residency’ requirements for voting when, in United

States v. Arizona, 91 S. Ct. 260, 321-22 (1970), he. stated:

‘By definition, the imposition of a durational residency —

‘Requirement operates to penalize-those persons, and

_ only those persons, who have’ exercised their constitu-

tional tight-of ‘interstate migration. Of course, gov- |

; ernmental action that has the incidental effect of

- burdening the exercise of a constitutional right is not:

tpso facto unconsfitutional. But in sucha case, ; jgov-

ernmental action may withstand constitutional scru-—

tiny only upon. a clear: showing that the burden im-

posed is necessary to protect a compelling and. —

- substantial governmental interest [citations omitted].

And once it be determined that a burden has been ©

placed upon a constitutional right, the. onus ‘of demon-

' strating that no ‘less intrusive means will adequately

‘protect compelling state interests is upon the party ,

| seeking to justify the burden. 5 7

Justice Stewart’s opinion in ‘United-Btates Vv. Arizona ;

lends support to this interpretation of the meaning of

‘“penalty’’ as used in. Shapiro as the threshhold trigger of

strict — protection réview. Although the issue in Ari-

fesidents alikeo-must be of a cece. age to drive. ‘Hence,

the young driver is not denied equal protection, and no penalty

from the exercise of the right to travel is involved. See -

_ Brief for United States as Amicus Curiae at<5 n. 16, Hall v.

Beals, 396 U.S. 45 (1969). | 2.

5 There can be little Sieviats that Vermont law requiring a.

one year durational residency before voter eligibility is con-

ferred penalizes recent arrivals from other states who have

_ not. fulfilled the required residency period even if they have

~ in fact become bonafide residents. This affects the rights of re-

cent arrivals adversely and hampers their right to. travel inter-

state. We hold that defendants must also justify this restric-

tion by the Ts state interest standard. Kohn v. Davis, —

. we Supp. . . (D. Vt. Ba (Typed opinion Part doa

‘zona was that of Congressional enforcement power, it is

clear that Congress can only legislate in support of and

protection of federally gua weed rights. Accordingly, if,

_ as Justice Stewart sheld, “‘Congress *. . . has the power

‘under the-Constitution to eradicate political and civil dis-

abilities which arise by operation of state law following a - °

change in residenée from one state to another,’? 91 S Ct. —

at 345, then the degree of abridgement of federal rights —

‘which enables federal protection legislation must be the

same threshhold level of abridgement which triggers strict .

review under the fundamental interest’ branch of equal

protection.® a a : _

It is made clear inJustice Stewart ’s opinion in Arizona:

that federal power is permissibly exercised with respect to’ ~

. : —-. : 7 a eel | ” . Se a

6 In Katzenbach v. Morgan, 384 U.S. 641 £3966), this Court . .

indicated that Congressional power under secti6n 5 of the Four- ©

teenth Amendment was not in- all cases coextensive’ with the

independent force of the equal protection clause of section 1.

Thus,. even though literacy requirements for exercise of the

franchise were constitutionally permissible, Lassiter v. North-

amytcn Election Bd., 360 U.S. 45 (195%), th® Court upheld,

on Supremacy Clause grounds, a provision of the 1965 Voting

- Rights. Act which effectively served -to qustenchian Puerto

-Rican-Americans who were literate-in—Spanish espite a New. _.

'. York statute requiring English literacy. In a sense, what Katz-

enbach v. Morgan did was to create a no man’s land in equal

protection..jurisprudence in which state classifications were not

397 U.S.°137 (1970). set, “Se ik ah |

But valid federal action under section. 5 cannot operate in

@ vacuum; it must be to enforce guarantees of the Fourteenth

AY.

oa ~ Amendment. 384 U.S. at 651.n. 10. As Fistidg Harlan in dis-

durational residency because ‘‘Congress could rationally 7

conclude that the imposition of durational residency re-

lege of taking up residence in another State.’’ 91.8. Ct.

at 345. In Section 202(a)(2) of the 1970 Voting Rights

Act, Congress specifically. found that a durational resi-

dency requirement asa precondition for voting ‘‘denies or

-abridges the inherent constitutional rig&t of citizens to

énjoy their free movement across State lines.’? It was on

this basis—that a disadvantage or hardship was placed on

‘those who exercised the fundamental right of interstate

travel—that Justice Stéwart (joined by Chief Justice Bur-

ger and Justice Blackmun) upheld: Congressional authority —

to eliminate ee residency requirements for voting

sent points out, Congress’ power is “to ‘take appropriate reme-

= especially. in light of United States.v. Arizona, supra, is that

Congress can take affirmative steps to safeguard what it may

reasonably determine to be. incipient ° infringements of Four-

‘teenth ‘Amendment rights, but that it: cannot also determine

“as a matter of substantive constitutional law what situations

fall within the ambit of the clause [i.e. equal protection], and:

Arizona,

what state interests are cea ” United States v.

supra, at 350 (opinion of Stewart, J.). ;

Once to be conceded that Congress cannot. determirie sub-

stantive constitutional principles under the guise of “enforcing”

- constitutional oe en there is no other way to explain the -

e J

holding -reach ustice Stewart in Arizona with respect to

. : 7

~ a

the constitutionally protected right of interstate travel was

involved, and that Congress’ action in eliminating durational

residency requirements for voting in Presidential elections was.

remedial in nature. If this be true, then it cannot be gainsaid

‘that these same durational- residency requirements at least im- «

pinge on interstate travel as to other elections for Congress,

state legislature and governor. Of course, ‘this admission does

not end the equal protection analysis, since the restrictions may

‘be necessary. to promote a compelling state interest. But the

argument does require the application. of strict review under

- equal .protection, . indicating that for this purpose the dura-

tional residency provisions for voting serve to penalize the ex-

‘ercise of a fundamental constitutionally protected right. -

‘

in Arizona is its explici

anes ag

in Presidential elections: “‘Congress has ‘acted to protect

a constitutional privilege which finds its protection in Fed-

at 346. —

‘eral Government and is national. in character.’’ 91 S.Ct. -

; oF course, :in a footnote, J ustice Stewart observed that

“the question of federa}. poyer, to protect against disa-

bilities imposed on those who exercise’ their. right of in-

terstate travel, especially when. limited to Presidential .

elections, is a different question than that posed in the

instant case. 91 8. Ct. at 348 n. 9. But-for the present

purposes, the important aspect of Justice art’s opinion

gnition that Congressional:

action in enacting Section 202 of the 1970. Voting Rights

_ Act “was constitutional because it aimed - at protecting —

- United States citizens who moved interstaté from. political .

disabilities imposed solely because they exercised a con-

‘stitutionally protected right. In the context of the Shapiro

". footnote, 394 U.S. 638 -n. 21, then, the opinions of both

Justice Brennan ,(joined by Justice White and Justice

- Marshall) and Justice: Stewart. (joined. by Chief Justice

Burger and Justice Blackmun) ini Aytzona support appli-

cation of strict review to an equal: protection challenge ; .

‘claiming that Tennessee’s durational residency require- -

ment for’ voting impinges on the fundamental right of

United States‘ citizens to enter and abide in any state of

the Union, This still leaves open the question raised in’

the footnote in Shapiro whether the waiting period«pro-

motes a compelling state ‘interest. 7 . ~e

reel

—

2. Tennegsee ’s Durational Residency . Requirements

“Are Based on 8 Suspect Classification and. There-

‘ fore Require Strict Equal Protection Review.

The crux of the suspect classificatién. analysis is that. °

there are certain differences ‘among citizens which may in,

some cases be unavoidable but which if, used as the basis. -

for “differential treatment will place the onus upon the

* 3 ee | 2 7S : :

og) 2

“

—48—

"state of showing a eal state interest to justify the

' discrimination. “Whether. or not the Court agrees that

.* Tennessee’s durational residency requirements for ‘voting

constitute. a penalty | upon the right of interstate travel

within the meaning of footnote 21 of Shapiro v. Thompson,

it should be clear, as the district court below found, that

“classification on the sole basis of exercising a constitu-

tionally protected right i is inherently suspect. The cases

discussed in the Appendix. (e.g. Slochower, Speiser v.

-* Randall, Specack: v. Klein,’ Griffin v. California, Gardner

vy. Broderick) support the proposition -that a civil disa-

bility imiposed solely because a person has exercised 4

- protected freedom (interstate migration) must be justified

by an overriding state ‘interest if it ds to withstand con-

* stitutional scrutiny. r

N ormally, the neta have found seanect those ‘claéaifica-

tions which deny rights or privileges to a class of persons

foreclosed from effective representation in the normal —

political processes of the state. See, e.g., United States v.

Arizona, sti supra, at 349 n. 14, 350. (opinjon of Stewart, J.);

Kramer yv. Union Free School. District, supra, at 640 n. 10

_ (Stewart, J. dissenting). In such oiliien: it falls to the.

“Sourts to: provide ¢ an extra measure of protection for. their

7 If, for sinnaie, a legislature wanted to keep illiterates from

‘voting, and—out of genuine though monumentally stupid con-

siderations of ‘administrative convenience—decided that “Ne-

groes” contsituted an appropriate shorthand for the class: of

_ persons it. wanted to exclude, the Court would swiftly and prop-

erly. ‘void the law because its terms were woefully overinclu-

‘ sive and underinclusive with respect to the acceptable goal of

disenfranchising illiterates. Indeed, this approach, which has

obvious connections with the Court’s theories of attainder and

overbreadth, seems to me to begin to suggest the most sensible

meaning which can be attached to the Court’s evolving. notion

of “suspect classification.” -

Thus even where there is no suspicion of illicit saotivaiioe,

the) term in which a law is drafted can serve to invalidate it

because they do not fit’ any acceptable goal with sufficient pre- \

cision. .

Ely, supra, at, 1249, n, 184.

“>

. 7 ‘ ¢ >

: . ee

— 49 —

interests. The classic statement of this principle is the

famous footnote in-United States v. Carolene Products Co.,

304 US. 144, 152-54. 4 (19389): 7

[P] rejudice against discrete and insular minorities

May be a special condition, which’ tends seriously to

- curtail the operation of those political processes, ordi- |

* narily to be relied on to protect minorities, ‘and which

may: call for.a correspondingly more searching judicial

inquiry. = Po ep at & a vas 3 2

. . /

Historically, ‘the most conspicuous application of thie

based on race. Korematsu v. United States, 323 U.S. 214

(1944); McLaughlin v, Florida, 379 U.S. 184 (1964); Lov-

ing v. Virginia, 388 U.S. 1 (1967). However, there have

been other bases of classification which Have) been held:

.. suspect classification doctrine has been to classifications .

suspect with the attendant strict review under equal pro- °

tection. For example, in the Reapportionment Gases, the

Court: has evolved a rule that-an unequal apportionment

_ Of pffopulation among geographic regions is inherently

Suspect under equal protection standards. While the.

Court still does not require absolute. mathematical equality

. among districts, failure to: achieve. precise mathematical

a equality results in strict judicial scrutiny because the de-

"“qwiation’ is inherently suspect. ‘Hadley v. Junior College

istrict, 397. U.S. 50 (1970); Wells. v. Rockefeller, 394

US. 542 (1969); Kirkpatrick v. Preisler, 394° US. 526

(1969); Avery v. Midland County, 390 US. 474 (1968);

Swann v. Adams, 385 U.S. 440 (1967). Of. Wright v. Rocke--

feller, 376 U.S. 52 (1964). |

Wealth is another Suspect classification, Imposition of

- ‘a fee may in some circumstances be constitutionally per- .

missible, but it requires ‘strict judicial seruti: y. Thus, the

_ Supreme Court has ruled\ that inability to pay must not

deprive an indigent/of thé right ‘to appeal in. a Criminal

case, Griffin v. Illinois, 351 U.S. 12 (1956), and imposition

™,

‘

. .

died

- ae 50 — . ts tl

of a pojl tax cannot be a prerequisite to the exercise of the~

franchise in any election. Harper. v. Virginia Bd. of Elec-

: tions, 383 U.S. 663. (1966) ; ef. ‘Harman v. Forssenius, 380

US. 528) (1965); Cipriano v. City of Houma, 395 U.S. 701

. (1969) ; City of Phoenix v. Kolodziejski, 399. U.S. 204

(1970). The Court in Harper, noting-that it had P viously

held homesite an impermissible: basis for distinguishing -

between-qualified voters, said that-‘‘the same must be true

of requirements of wealth or affluence or payment of a fee.”

383 US..at 667. Citing Korsmatsu'v. United States; supra,

. the Court clearly placed classifications on the basis of

- wealth i in the suspect category: “Lines drawn on the basis

’ of wealth or property, like those of race [citation to Kore- |

matsu omitted] are —— disfavored. »2 383 U. a

at 668.°

‘Discrimination on the basis of occupation i is still another |

. kind of classification. which /i is not: favored; and therefore

(1965), the Supreme Coyrt invalidated a Texas restriction

that made members of the armed. forces ineligible to estab-.

. lish residence for voting purposes. The Court noted that -

the fact: that.a classification treats the members of a class

* equally: does not end the judicial inquiry. . Of. Loving y-

Virginia, 388.U.S..1 (1967). Citing McLaughlin v. Florida,

- 379 U.S. 184, 191. (1964), & racial classification case, the

, Feast indicated. that strict: review was apriroprinte became

8 Accord: AWilliams v. ‘Diinois, 399 US. “935 (1970), Tate v.

. Short, 91 S.Ct. 668 (1971). Nothing in James v. Valtierra, 39

; U.8.L.W. - (U.S. April 26, 1971) is to the contrary.. In

. Valtierr’, the Court: found that. no. classification on the basis

of wealth had been made since California did: not select low-

ineome housing alone, for popular referendum. Instead, as the . 7

- . Court found, ‘California had a long Populist tradition of direct

democracy, giving the people the final ‘choice’ in a multitude

of. public policy decisions. Consequently, no ‘wealth. classifica-

- tion was there involved. Valtierra therefore has no relevance to

the suspect clagsification doctrine with respect to yoting dis-

ore based Solely on recent interstate travel, 4

—L -, \

’

6 ye 3

éZ

4 =

er the nature of the distriminstion invilved. 380 USsS.at

ar Quoting. from its opinion in Gray v. Sanders, 372 U.S. .

368, 380° (1963), the Court made it clear that ; occupation

“was @ suspect: classification: " {There is no indication in oo

-- the Constitution that . . occupation affgrds a permissible —

- ‘basis for distinguishing between - ‘qualified voters within ee

the State? 380 US. at 96. **.

Pate ad

Like race; geography, wealth, wise copibicibias en a

tion among bona, fide residents on the basis of recent inter- |

state movement is suspect and -requires strict review by -

the Court. See A. 46-47, ef. Williams y. Rhodes, 393 U.S.

23 (1968).. Th Shapiro v. Thompson, 394 U.S. 618 (1969); +

this Court added durational resideney to the list of suspect

_ Classifications. ~ See Shapiro v. Thompson, supra, at ‘659 —

“.(Harlan,, ‘J. dissenting). The. Court observed that the wel- -

fare restrictions, establishing a oné-year waiting reqtire- <e.

- ment for éligibility for public assistance: created) - _

two classes of needy resident families indistinguishable

, from each. other except, that one is composed of resi-

& dents who have resided a year Or more, and the second®

of réaidents who have resided less’ than a year, in the

_ jurisdiction, — On the’ basis of this sole difference the’

first class is oo and the eens is denied

2 welfare aid. .

394 U. S.: at 627. on Court found that atone based

- on durational, residency inherently penalized the exercise ~~

° of the fundamental right ‘to travel ‘and were therefore ean

‘newly arrived are not only~ a minority, but an impotent

one at that, lacking not only access to the established’

“sources of power in the community, but also ties to each

other that would make. them a more cogent political force.

The instability of group menibership adds to group im-

- poteneé. «Only hs et of the courts can protect -

the — of . but sigitpanat mibetiy, As Jus-

~~ ‘ , i ‘ Wwe

erie . cer *

- ~ : Z 5 ".

‘ « 2 . e

. v2

€

)

nea

"tee Stewart pointed out in. United States v. — ers =

at 345-46: |

_ Federal action ise required if the privilege to lianas

* residence is not to be undercut by parochial local sanc-_

tions. No State could undertake to guarantee this

privilege to its citizens, At most a single State could

take steps to resolve that its own laws would not un-

reasonably discriminate against the newly arrived .resi- _

‘dent. Even this resolve might not remain firm in the

face of discriminations.. perceived as unfair against

those of its own citizens who moved. to other States.

Thus, the problem could not be wholly solved by a.

single State, or even by several. States, since every

State of. new residence’ and every State or prior resi-

dence would have a necessary role to play. — |

‘What Justice Stewart describes. is the epitome of insu-

larity. A federal freedom cannot be championed by a sin-

gle state effectively, and new residents, by definition are -

now even impotent to attack the problem’ in a piecemeal

fashion.. Clearly this is the kind of problem which faced .

the Court in. Baker v. Carr, 369 U.S. 186 (1962); thie sus-

pect classification doctrine has direct application so that

the state must bear the burden of justifying the voting dis-

‘ qualification by an overriding interest. This does not mean’.

that all durational residency: requirements are invalid

per se; it does mean that the state must show compelling

. reasons for their continued existence and, as will be shown,

the state has not (and could not) brought forth any evi-

dence to support its glib. armehair assertions of the con-

.yentional wisdom.

6 Application. of strict riiavin itil duatianl circumstances

_ undercut the vitality of Pope v. Williams

Sines July 8, 1970, eight federal districts. courts and |

° one “state court. of appeals have invalidated durational

—

residimey: provisions for voting. 9 Tn all these cases, , the ;

courts have. held that strict equal ‘protection review is

the applicable constitutional standard. The only opinions

of this Court to deal with the merits of durational -resi-

dency in the context of voting have\found them to be— .

invalid. In Hall v. Beals, 396 U.S. 45, 52 (1969) (dis- -

sent), Justice: Marshall noted that the lower courts in

_ Drueding v. Devlin, 234 F. Supp. 721 (D.Md, 1964), aff’d _

~ 380 U.S. "125 (1965) (per curiam), and Hall v. Beals,

292 F. Supp. 610 (D.*Colo. 1968),

tested, the residency requirement there challenged: ‘by

the equal-protection standard applied: to ordinary

state regulations: that is, restrictions need bear only

- some rational relationship to a legitimate end [Cita-

tion omitted]. But if it was nat clear in 1965 it is

clear now that once a State has. determined that a

decision is to.be made by popular vote, it may ex- .

clude persons only upon a. showing of a compelling “

’~ gtate ‘interest, and even then only when the exclusion

is the least restrictive method of achieving the de-

sired purpose. ;

Accord: United States v. Aiea, supra, at 317 taiiiaiee

of Brennan, J.); cf. Id. at 343 (opinion of Stewart, J.)

_. Dissenting in Shapiro v. Thompson, supra,:former Chief

-Justice Warren ‘stated: ‘‘If a State would violate equal

_ protection by denying welfare benefits to those who have

recently moved interstate, then it would appear to follow

‘that equal protection would also be denied by depriving

those who’ have recently moved. interstate of the funda-

9. In addition to the cases listed | in le. 2-4 of capilliavs. Mo- -

tion: to Affirm, a District Court in Mirmnesota invalidated that

state’s durational en provision for voting. Keppel v.

Donovan, . <a oa . (D. Minn., Dee. 4, 1970). pac aki

_ 16 While the Gani: in Shapiro naturally did not rule on.

the validity of waiting period requirements in the context of.

—" see 394 U.S. 618, 638 n. al (1969), ae case — dura-

a :

Tie ‘courts which have sustained voter waiting periods ;

in the past- year have relied’ on the traditional equal pro-

tection standard. But even in those cases, there has been

recognition. that the value of tratlitional. review cases

_ may ‘be largely historical.”” See Cocanower v. Marston,

318°F. Supp. 402 (D. Ariz. 1970). In Keppel . Doriovan,

Jélee Lord acted that ‘‘[eJarly cases do. not provide

"much precedental value to the instant case.”

: ‘Thus, he found Pope v. Williams, 193 U.S. 621 (1904)

inapposite. In Pope, this Court upheld a Maryland statute

_ that required citizens moving into the state to declare an -

intent to remain indefinitely one year. before being per=

mitted to register to vote: The Court,” answering the argu-

ment that the statute abridged a privilege of United

States citizenship, oma: ‘<The privilege to vote in ~~ ,

- tional seidilainds ae voting is even stronger with respect to

the right to travel issue. Two of the three dissenting jus- -

tices in: Shapiro found the right to travel argument unper- .

suasive because of their interpretation of § 402(b) of the Social

* .Seeurity Act. Former Chief Justice Warren and Justice Black

read the legislative history of the Social Security “Act as a

ments for public assistance paynients. Consequently, the right

to, travel argument is deemed weakened ‘since at least one of

the pillars on which it is based is the Commerce Clausg under

- which Congress’ power is plenary. There is.no indicat that

any Congressional ‘act specifically grants the states the power

to enact waiting-period requirements for voting as part of an

experiment in “cooperative federalism”: Cf. Shapiro, 394 U.S.

at ‘645. (Warren, C.J. dissenting). Therefore, the basis on

. which -at ‘least two of the dissenters in. Shapiro declined. to go

«+ along with the application of strict review-is not present in

this case. See Shapiro, 394 U.S. -at 647-54 (Warren, C.J. dis-

senting). In short, Shapiro. held that any purposes “offered _.

in support of a law that so clearly impinges upon the constitu-

tional right of interstate travel must be shown to reflect a .

compelling governmental interest”, Shapiro, at 643-44 (Stewart,

ae concurring) (emphasis | in original). The restriction on vot-

«<< ing in this case likewise is. based exclusively on the exercise of

the fundamental right of/ travel and impinges on: the funda-

mental right of access to the political process. The —!

state in ” test therefore is ene, pees. . > |

/ a

- State-is not given by the a Constitution. . It is

‘not a privilege springing from citizenship of the: United

_that the federal constitution prohibited disprimination

among different classes of voters, it did not reach the ques-

tion whether ‘thé discrimination between longtinie resi-

dents and recently arrived idents was permissible under

the Fourteenth Amendment:. In light of the constitutional

history intervening between 1904 and 1970,including rati-

. fication: of the seventeenth, nineteenth, twenty-third, and

twenty-fourth amendments, the California, court in sar

+ dike eight other courts, said:

. while we surely would follow the Pope and Drued-:

= ing cases: had not the United States st Court

in later cases established a new standard ..., we.

shonld be dishonoring rather than respecting the’ de-

cisions of the highest tribunal of our natidh if we did

not follow.its later expressions ‘of constitutional inter-

pretation. |

90 Cal. Rptr. 263, 266 (1970). .

_ In Pope, the Court did recognize that state statutes

which distribute ‘the franchise could not Glecriminate in-

vidiously in violation of guarantees of the federal Consti”.

tution. Accordingly, it is not inconsistent with the ration-

ale of the opinion to,find that equal protection in 1971

required a stronger burden of justification when funda- .

mental rights are infringed and when suspect classifica-

tions are involved. In light of this Court’s voting rights

cases, and especially in light of Shapiro v. Thonipson, it.

has been clear to a large majority of lower courts which

have been faced with the question that durational resi-

dency requirements for voting must be measured by strict _

constitutional standards, and that Pope v. Williams is no

impediment to application of. the compelling interest form-

ula, As the distridt.court in Vermont stated: |

> ae

t | . : 7 vw

—56—

~~?

. one year durational residency . .. as a condition .

precedent to the right to vote .. . is an -unconstitu--

tional limitation on two fundamental rights,’the right

to vote and the right to travel interstate. We...

hold that [the] standard of feview applicable . ... -is.

‘that of compelling state interest... . [T]he. adie of. °

- establishing justification by scnilitag stwte interest

is on the Gotendant. This burden has not ‘been sus- —

tained. _- So

_Kohn'v. Davis, . _ F.Supp. <A (D. Vt.-1910) (typed

opinion, Pt. VE). : -

Even if this Court should hold traditional equal protec-

tion review. applicable, Pope is no roadblock to constitu-

‘tional decision based either on equal protection or due

process. The Court in Pope did not analyze the case in

terms ofits unequal impact on hew residents. Moreover,

the statute i in’Pope was.more directly related to an objec- ~ |

. tive standard of ascertaining bona fide residency since the

requirement was for actual registration of intent to estab-

“lish domicile. Tennessee’s statute makes no such pre-

registration provision, and .consequently cannot be justi-

fied on the same basis as the Pope statute. Furthermore,

in light of modern methods of aseertairling one’s domicile, .

especially the advent of the voter registration system, use

of this pre-registratign system is no longer permissible as

@n objective measure of bona fide residénce. See Shapiro

v. Thomson, supra; Harman v. Forssenius, supra. In any

event, the assumptions of rationality which bear on the

constitutional question, both. under equal protection and = a

due process, must be reassessed.in light of information now

available. This is especially important where the Court in

‘its opinion in Pope did not come to grips analytically with .

the issues raised by. appellee herein.

. a;

—57—

_D. The Tennessee waiting period requirement for voting

is a violation of ‘equal protection because it attempts to

achieve imperwissible state goals, it does not draw

- narrow enough distinctions | to meet the test of

necessity in furthering those goals which are

ee tiipate, and, in no case’ satisfies the “oom- .

polling interest’: test. -

ere F In General

In deciding questions cider the ‘Equal Pro

Clause, the Court must look at (1) the facts and circum-.

--. stances behind the law; “(b)-the interests. the state claims

to be. protecting; and (ec) the interest8 of those disad-

vantaged by the classification. . Williams: v.. Rhodes, 393.

US. 23, 30 (1968): As a preliminary matter, it is im-

portant to look at the data to realize the magnitude of the.

deprivation of voting rights wrought ‘by watting period

. requirements. =

The ‘people of the United ‘States are, and historically

- have been, movers. It is inaccurate to view durational

residency requirements as a minor disfranchigement neces-

— ead ° preserve the integrity of a state and/or local com-

y- In the period 4947-1970, the average annual inter-

8 te ligration was 3.3% of the population over one year

of age. This figure remained remarkably constant over.

this entire 23 year period, with the variance about the ~

mean no greater than 0.3% in any year except 1949-1950

when the rate was 2.6%. U. S. Dept. of Commerce, Bureau

‘Census, Current. Population Reports, Population Char-

5 gE Series P-20, No. 210, J anuary 15, 1971, Table

_1, pp. 7-8. [Hereinafter 1971, Census Population Character-

. isties.] During the same period, the average rate of in-

trastate migration (intercoumty) was 3.4% of the popula _

tion, with the variancé about the mean no greater than.

0.4% except that in 1948-1949. th the rate was 2.8%. Ibid.

erage percentage of migrants annually over |

—58—

~ the 1947-1970 period was 6.5%. a data a gathered in ‘Mareh,

1970, the Census ‘Bureau found that o¥er the period twelve

months 4,492,000 voting age Americans had moved inter- .

state; 4,197,000 had moved intercounty intrastate, for a

total migration sum of 8,689, 000 during. that single year.

In -percentage terms, 3.4% of all adults of. voting age

- moved to homes in different states; and 3.2% moved to

~-cadifferent “homes ~withi “the same state—but ~in—different

_ counties. Thus, in the one year ‘between March, 1969, and.

- March, 1970, 6.6% of all those of voting age moved either

interstate or intrastate. 1971 Census I ert Char-

acteristics, Table 3, p.10. —

“In its brief, the state. intimates a morbid fear of a

“‘takeover’’ in some counties by. students attending col- —

leges, Brief of Appellants, at 16. This was the same fear

articulated in Carrington v. Rash, 380 U.S. 89, (1965) by

Texas vis a vis servicemen. Just as the Court i in Carrigton

rejeeted this argument categorically with respect to mem-

_ bers of the armed forces, it must reject the state’s fear

here as constitutionally impermissible. Moreover, as a fac-

tual matter, the evidénce does not support the state’s _

innuendo that.the major beneficiary of the abolition of |

durational residency requirements would be students. But —

in fatt, it is not the durational residency. provision so much ;

residence which will be the operant factor with respect to -

ent power at the polls. See generally Singer, Student.

| Power : the Polls, 31 Onto Sr. L.J. 703 (1970).

The data icate that migrants are just as likely as

non-migrants to-be members of the labor force. It is true

that a disproportionate. number. of young adults are mo-

bile and are disfranchised by the sundry durational resi- |

'. dency periods, but the overwhelming majority of this num- .

-ber are not students -but young adults entering the work

force. See generally. Norling, Residence Requirements for

Voting: The Patterns of Discrimination 9-11 (unpublished.

| manuscript, —— — Yale Political Science De-

- . . ; a

. ; m Ee : * Ave -

"partment and on file at the offices of Common Cause, .

Washington, D. C.) . [Hereinafter Norling] ; 1971 Census’.

.. Population’Characteristics, Table 7, pp. 18, 20-21. Further-

more, with respect to occupation, (data available~for

~ males only), 40.9% of non-migrants are in white collar .

- occupations in contrast ‘to 52.0% of the migrants (49.7%

‘of intrastate migrants, and 54.3% of interstate migrants);

and only 134% of non-migrants are professional, technical

~~ and kindred: occupations, whereas 9%.4% of all migrants —

_are ‘of this occupational grouping (19.4% intrastate mov-

ers, and 23.3% interstate movers).

_ In short, the durational residency requirements ‘disfran-

chise a significant percentage. of otherwise qualified citi-“

zens each year. The percentage has’ remained relatively

constant over the last 23 years, and amounts to 6.6% of .

the voting age population. The movers tend to be younger

than non-movers, but they. tend to be members of the work

| force. As a class, they are characterized by higher status

occupations and as a group have much hig gher levels of

education. See 1971 sear Population Characteristics,

Table 4, P. .12. |

Not only would the intent to ‘‘fence out”? new residents.

-be'an impermhissible state objective, Carrington v, Rash,

380 U.S. 89, 94 (1965), Hall v. Beals, 396 U.S. 45, 53-54

_ (1969) (Marshall, J. dissenting), but the underlyitig as-

‘ sumption of any such attempt—that the’ community is

relatively static entity—does not withstand empirical.scru- .

tiny, as the foregoing analysis demonstrates. For exam-

ple, according to 1960. United States Cehsus data, during

- the years 1955-60, 253,217 people age 5 and over moved

into the State. of Tennessee, 166,490 of whom were of vot-’

ing’ age.12 _ During that same period, 3336191 people age

“11 U8. Burean ‘of Cénsus. U8. ‘Census of Population: 1960:

"Subject Reports, Mobility for State and State Economic

Areas.

Final Report PC (2)-2B. eer 24 at p. 24 US. Government

12 [bid. -

and (2) a Acapigmes area.

"18 Id., Table 5. ,

aoa ee ee

5-and-over moved out of Tennessee. Since the 1960 popu- ,

lation of Tennessee, age 5 and over, was 3,173,418,'* it is

clear that the character of the state underwent substan-

tial: transformation in just those five years. Similarly, -

_ 59,73514 people age 5 and over moved into Davidson. —

County, and 49,0955 people age 5 and over moved out

during the years 1955-60. The total Davidson County pop- .

ulation, 5 years of. age and over, in 1960 was 354,415.16 .

Clearly, the. community that the. durational residénce re-

quirement is supposed to — is not the fixed entity

one might think. . ,

In addition to general ‘nobility data indicatigg the dy-

namic nature of modérn American communities, there are

- figures which speci cally illustrate the extent of the dis-

franchisement brought about by waiting period require-

ments for voting. 72,946,911 people voted in the’ 1968 -

presidential election. The difference in the popular vote

‘between Mr. Humphrey and Mr. Nixon was 499,704, which

| represents ~ 687% of the. hatev’ vote ot 3,022 00018 vot-

18 U8. ieciiiak: Ctiinns: us. Cisbiiin saa Beséitlon: 1900.

‘| Subject Reports, Lifetime ‘and Recent Migration. Final Re

PC (2)-2D. er 5 at p. 17. U.S. Government Printing

" ashington, D. C., 1963.

14 UB. meat aN U8. Census of Population: 1960.

Subject Reports, Mobility in Metropolitan Areas. Final Report

PC (2)-2C. 2 1 at. p. 9.._ U.S. Government Printing Office,

Washington, D. C., 1963. . - ‘

Pi) the 1960 Census, ‘the Standard Meleigititen Statistical

Area (SMSA) coincided with the geographical boundaries of -

Davidson County. This figure is ‘derived by adding the number

of movers into the Nashville SMSA from = 4 different SMSA

16 See:nott 14, supra. i a |

17. New York Times, esyelopedic Almanse, 1970, at p. 155:

18 U8. Bureau of Census, Current Population Reports, Series

P.20 No. 192, “Voting and Registration in the Election of No- _

Daag 1968”, Table 16 at p. 47. US. Government Printing

Office, “Washington, D.C 1968.

‘ers expressly voiced a denive to vote in ites 1968 election

_ meet the various state durational residency requirements; —

this: was 4. 14%:, of the total vote cast in the election. This

and were deprived of this right because they conld not —

figure’ represents the . disfranchisement of those po did

not fulfill sundry durational residency.’ requirements and

who specifically expressed the desire to vote. If eligibil-

Aty alone i is examined, the disfranchisement becomes even

of voting age in the 1960 idential. election, 8,000,000 (or

_ %36% of: the entire voting population) could not vote because

more significant. ‘Thus, in the 1968 presidential election,

5,590,000 citizens were ineligible to. vote solely because ~

they failed to.meet one residency requirement or other.

” This represents. 7.7% of the actual vote cast.1° U.S. Dept.

of Commerce, —— ee, Series P-25, No. 406,

Tali 2, Oct. 4, 1968.

.. \ *

\ 2. One ‘Function. at the ‘Tennesses Statewide

\* Waiting Period Was to-Deter the Immigration

of Voters With Different Political Viewpoints, -

and This Is. an Impermissible State Objective.

In ia v. Thompson, supra.” the Supreme Court ex-

pressly rejected the deterrence of in-migration as a per-

missible state objective for legislative action. =

‘ We do not doubt that the one-year ‘waiting-period ae.

_ vice is well suited to discourage the. influx of poor

. families ip need . of assistance: . . But. the purpose

of inhibiting - ‘migration -by aes persons ‘into the

State is constitutionally impermissible. 394 U.S. at pie

629. - 2 | - nee

: : ‘ »

, 7 ; . : cara - : 3 \

' 19 Some commentators pave indicated that the distrainchige

_ ment may even be greater. MacLeod and Wilberding, in State

Voting Residency Requirements and Civil Rights, 38 . Wash -

L. Rev. 93 (1969) assert that. of the -104,000,000 adult citizens aN

of — durational. a ice x3

” Thus,the’ purpose of deterring the in-migration of

_ «indigents cannot serve as justification for the classi-

fication created by the one-year waiting period, since _

_, ‘thatz purpose ‘is’ constitutionally impermissible. If a-

- _law ‘has no other purpose . .. than to chill the as- -_

sertion of constitutional ‘sialite by penalizing those -

who choose to exercise them, then it [is] patently un-

constitutional. United States v. J ackson, 390 U.S. 570,

, 581 (1968). 394 U.S. at 621. Pr pir 7

Just. as it is impersiissible té discourage a oaetali dite |

' (ingligents, fot example) from immigrating, even if the .

+ sole basis for mi 4

- sistance benefits, Wyman v. ‘Bowens, 397 US. 49 (1970), -

tion is ‘the lure of ‘higher’ public. as- - —

it is impermissible to establish barriers to the franchise.

aa of political diversity. This proposition

Was: forcefully, tated in Carrington v. Rash, 380 U.S.

89, 9394. (1965), -& case involving. a Texas provision — :

barring military . personnel from establishing. a

‘for the purpose of voting. é |

The theory underlying the ‘State’ s first contention 5s:

lass that ‘the ‘Texas constitutional provision is necessary me

to prevent thé danger of a ‘‘takeover”’ of the civilian

community resulting from concentrated. voting by.

large numbers of military personnel. in bases placed

near ‘Mexas fowns and cities.. . We. stress—and »

this is a theme to be reiterated—that Texas has the —

"right to require that all military personnel enrolled

- to vote be. bona fide residents of the community.

_ But if they are in fact residents, with the intention:

_ of making Tetas their home indefinitely, . they, as

* all other qualified residents, have a right to an seal:

opportunity for. political representation. Cf. Gray v.

Sanders, 372 U.S. 368. “Fencing out’? from the fran.

. chise. a sector of the population because of the -way

they may vofe is obnstitutionally impremissible.

"Tei eo sigh lf he: manta.

oP &

7 s -.

e, ree

te . ° * ‘ 082 Nap j ; a o

oS of debatanntio institutions foitatSGa omitted]; cdeiak

‘constitutionally be obliterated because of -a fear’ of -

. the political views of a age group. of —_ age

- residents (emphasis vapyeed).

The history’ of Tennessee” s statewide waiting-periéd for

% voting indicates that it was enacted in response to the’

_abuses of the Reconstruction Era, as an attempt to el

“out foreign influences, From Tennessee’s admission to

the Union in. 1796 until the effective end of Radical Re-

publican control in the post-Civil War era in 1870, Ten-~:

nessee did not. have a statewide ’ durational residency -

& ; requirement for voting, : The sole durational residency. ..

- nessee State. Legislature enacted a séries' of laws (the _

‘provision. until 1870 was.a six-month waiting period in

thesschintsiy after the end. of the Civil War, the ‘Ten-"

a first of which. was unabashedly named ‘“‘An Act to Limit. |

i. the Elective Franchise’’) enfranchising the recently eman-

cipated: Negroes, and disenfranchising confederate office

holders and army officers for fifteen years .and confederate

sympathizers for five years. See Acts of 1865, ch. 16;

Acts of 1965-66, ch, 33 (amending Acts of 1865, ch: 16); -

Acts. of 1866-67, ch. 26 (amending Acts of 1865-66, ch.

33). In 1870, when Radical Republican domination’ no

~ longer prevailed, Tennessee enacted a. new constitution

which included. the: first statewide durational. residence

e requirement for _voting.. (twelve months). That. the pur-

. pose of the statewide waiting period was. primarily to,

protect. the state from external. political influences, ‘not. :

for the prevention ¢ <voter fraud, can be inferred from

: | the simultaneous re’ -in 1870: of’ the Tegistration ‘ re-

quirement’ passed. during Reconstruction as @ means of.

enforcing the restrictive disfranchising acts. Clearly, the

legislature ,was' more .concerned’ ‘about the influx of voters .

with a different politsbat ane of view. than protecting.

ies

7 ° a . ; ; ;

| the “parity”? of the election process. And the statewide |

period has never been altered in its 100: aie lifetime.?°

While in the context of post-Reconstruction Tennessee

an objective to ‘‘fence out carpetbaggers’’- may’ be. under-

- standable, in the context of 1971 United States constitu-

tional theory, such a rationale is ‘an impermissible basis

for disfranchisement. Thus, Congress, in the 1970 ex-

"tension of the 1965 Voting Rights Act, specifically found ,

that the imposition of durational residency requirements

‘tin some instances has the impermissible purpose or ef- «

. fect of denying citizens the right to vote.. . . because -

‘of the way they. may vote. Section 202(a) (4). “The fact .

‘that newly ‘arrived Tennessedans may have a more catho-

lic political outlook. than longtime residents, ‘‘or may

\ even retain a viewpoint characteristic of. the region from

i. \which’ they have come, is a constitutionally impermissible

on for depriving them of their chance to influence the

N vote of their. new home state.’? Hall v. Beals, 396

US. bat 53-54 (1969) (Mariel, . peso tf |

dency requirements. seems to have been to . any the vote to

i ants and outsiders with different ideas.”

Residency Requirements for” Voting, 12

The company that new. resi-

dents keep among the list of thé,disfranchised ‘is, most charita-

bly, ironic.: For example, in the Céigus Population Estimates,

» those who comprise the category “Ineligible to Vote”, inchide

’ aliens, and inmates of correctional and men institutions as

two of the three. sub-categories, with “failing re fidence require-

’ rment” the third sub-category. This same irony is reflected in the

.' -opinion of Justice Harlan in United States v. Arizona, ‘supra, at -

310. He notes that “[m]inors, felons, insane persons, and per-

* “gons who have not satisfied residen ney requirements are among |

those citizens who are not allowed to*vote in.most States.” New s

—— _— have: anomalous bedfellows !

- 3. Waiting Periods Do. Not Meet the Test, of

Necessity in Furthering the~Legitimate State .

‘Interest of ° Preventing Voter Fraud.

Even if the durational a requirement is not

held invalid as promoting . an impermissible state. goal,

it fails to meet the constitutional test’ of. necessity in

achieving the permissible. goals it’ purports - to ‘further.

- One traditional justification for waiting period. require-

“ments as a voting qualification is that they help to pre-

vent voting fraud. Drueding v. Devlin, 234 F. Supp. 721

(D. Md. 1264), aff’d 380 ah 125 (1965).

Clearly, the state has a legitimate ichccod in the pre-

vention of voter fraud. The questien is whether a waiting

period requirement is the least restrictive means neces-.

- sary for achieving that goal. | |

Dual -voting and “<eolonization”? of voters by political

groups presented serious threats to the legitimacy of the -

political process; the political machines often would com:

mandeer men from othér states to ‘‘eross over”? into

their state to vote for machine-backed candidates.- See °

Macleod and. Wilberding, ‘Votine ResmENcy -Require- |

MENTS.AND CiviL RicHts, supra, at 94-95. In 1858, the

Tennessee Supreme Court noted in dicta that its strict

. application of the waiting period requirement ‘‘may

_ tend, in some degree, to check a very serious practical

- evil . . . the mischievous Struggles, in some quarters

of the country, on the eve of an election, to manufacture *

votes for the occasion, no-matter how. “ ‘State vv. Oloksey,

37 Tenn: 482, 487 (1858). “ ! .

Except for a very brief peti: ‘Airinas Reconstruction, :

| Tennessee did not provide for voter registration until. ——

. 1890. . Acts of 1890, ex. sess., ch. 25 (Applicable ae

‘Shelby and Davidson Counties). And it was not until

oe 1951 that Tennessee passed’ its first universal — ee

oe purpose,”*

— 66 — a

law. pon of 1951, oh. 75. The Tennessee. epirenns Court

has upheld the registration laws on the ground,that. ‘they |

are a necessary means ‘of preventing voter: frat,’ Cook

v. State, 90 Tenn. 407; 16 S.W. 471 (1891) ; Moore v. Sharp,

98 Tenn. 491, 41 S.W. 587 (1897). Plaintiff makes no

challenge to the imposition of a duty to register on quali-

fied voters. Under T.C.A., § 2-301, the acknowledged pur-

pose of the registration provisions is ‘‘to secure the free-

dom and purity-of the ballot box inthe various counties

of the state by preventing plural voting and by requiring

voters to vote in the election precincts in which they

reside... . .’? The development of the registration system

as a means of combating voter fraud undercuts the im-

-portance of. durational residency Be iam’ for this.

rai

Under siaiendia law, paige ‘books are closed 30

days prior to a general or primary election. T.C.A., § 2-304.

Evidently, this reflects the’ legislature’s judgment about

the time necessary to validate the ‘bona fides of new

registrants prior to the election.’ The. durational residency

requirement adds a much more sweeping restriction which

cannot be justified in ‘terms of preventing voter fraud.

21 As far ‘as: Desiasntin has an interest in helping sister ‘states’

weed out oe dual voting, Tennessee cin require a new

‘resident to give up his previous registration at the time of

in Tennessee, just as a new resident surrehders

his previous driver’s license when he applies for a Tennessee -

operator's license. In response to the. District Court opinion

in this case, and at the urging of appellee, who serves as Amer-

ican Civil Liberties Union consultative répresentative, the Law

Revision Commission is now contemplating a more effective

- method of guarding against dual registration. See Election.

Laws Work Document, Staff Draft for the Law Revision Com-

mission, January, 1971, proposed section 221 of Title 2 of Ten-

nessee Code: “If the: registrant was previously registered ‘in

any other place, he-shall not be declared a registered voter until

he. has signed a cancellation of. eatin form to be sent :to _

the last place he was registered. Upon registration ‘of the voter,

the registrar shall mail the cancellation to the place where the

voter was last eee

se one

It weicies an ixividious’ barrier to the teatehinn to babe

fide residents. whose, sole fault is. that, though bona fide -

residents, they are recent arrivals. See A. 48-49.: This —

applies to both the one-yeat statewide and the. three--

‘month county. waiting periods. There is no attempt to

- distinguish among new residents'on the basis of a neutral .

principle relevant to voting competence.’ All new resi-

dents are et nee together and. disfran-

chised..

To Mareen + Porssenins, 380 US. 528 (1965), Virginia

sought to justify: a poll tax as a means of preventing ~ -

‘* voter fraud. The Court, invalidating the tax as a viola-

tion of the twenty-fourth Amendment, observed ‘that states

- which do not require payment of the poll tax found no _

_ administrative burden in ‘‘insuring that the electorate is

limited :to-bona fide residents.’ Id. ot 543. | en

The availability of numerous devices to enforce valid

residency requirements—such as registration, use of

the criminal sanction, purging of registration - lists,

challenges and oaths, public scrutiny of candidates —

“and other interested parties—demonstrates — quite

clearly the lack of necessity for imposing a require-

ment whereby persons desiring to vote in- federal

elections must either pay a poll tax or file a certifi-

cate of residericy six months prior to the election.

Ibid,

. While Harman involved federal elections, it + was not long .

before the Court rejected a siniilar argument with respect

to state elections. Harper v. ee Oe era,

383 US. 663 (1966). 2

:-- In Shapiro v: Thompson, . 394 U.S. 618 (1969), the Su.

_ preme Court specifically rejected ‘the argument that pre- _

vention of fraud was a justification for the imposition of

a one-year waiting period,,

% fone

[T]here. is no need for a State to use the one-year

waiting period as a.safeguard against fraudulent re-

- ceipt of benefits; for less drastic means are available,

and are employed, to minimize that hazard... .

_ Since double payments can be prevented by a letter

* » or a telephone call, it is unreasonable to accomplish

this objective by the blunderbuss method of denying

assistance to all indigent newsomers for an entire

year. . : |

_ Id. at 637 (emphasis ropplied). “ also, Keenan v. Board

of Law Examiners, ... F. Supp. . . (E.D.N.C, 1970).

Clearly, the primary ‘purpose of restrictions aimed at

preventing voter fraud is to weed out nonresidents from

_ the voting rolls. But. the durational . residency require-

ments does not serve this purpose, at least npt ‘with the

‘necessary constitutional precision. It is the voter registra-

‘. tion laws which now perform this function; plaintiff does

not challenge Tennessee’s power'to maintain the “purity”

- , of its election by requiring that registrants-be bona fide

residents and that ney stngined — to voting. The Su-

preme Court

has often reaffirined the power of the State to require

their voters to be bona fide residents. Carrington v.

" Rash, 380 U.S. 89, 83-94 (1965); Kramer v. Union

Free School District [395 U.S. 621, 62& (1969) ]. But

’ + this franchise of persons, not because their bona fide

residency is questioned, but because they are recent

rather than longtime residents,

Hall v. Beals, 396 US. 45, 53 (1969) (Marshall, J. dis-

4 ne As the District Court below held. (A. 48-49):

‘It is clear that, in ‘actuality, Tennessee’s interest in

these matters is protected by the thirty-day period,

and not’ by that State’s durational residency require-

ments. Neither the yeas of, nor the justification

= 0—

for, these latter requirements can be fenniae in either

« the ‘Tennessee -Constitution or. the: Tennessee Code ~

Annotated, and th

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