# Appellees Brief — Dunn v. Blumstein > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0368%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1972 - **Citation:** 405 U.S. 330 ## Text suri? court, 7 BB 92 1971 9 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 wt P °c » ~ Questions presented Statement of the ¢ © deamaa Ce cokers Hens taiiees cuiens new kes io exs -, 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. ii 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 Vide ‘Beare y. Smith, . ols Supp.” . - (8D. Tex., Pan. a 1971) lad cdicai 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 ix 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 . 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 77 - 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 | ao 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- ARGUMENT i, wis ‘ouseniey, touaitinuaad desea atalh meinen a Qualification for the Exercise of the Franchise Vio- Ae - 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 a? ie Naty |) "‘Vinginia Board of Elections, 383 U.S. 663 (1966); Oarring- ton v. Rash, 380 U.S. 89 (1965). Tennessee’s durational. = a —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- a 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 3 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 ee (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>) ev ~ 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, : 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 a “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. i am 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 y 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- : a 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. , \ . pe : 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 $¢ 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 “ 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 - , ? s 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. - ; Z. 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 © fe ° , 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 . 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. © Any: dintussion of the abridgment of the ee of. inter- : ‘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, —, ub iN e “= . —41- — . AY. Ld G ~ 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- “quirements unreasonably burdens and sanctions the privi- © | 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- dial measures to redress and prevent the wrongs.” 384 U.S: at © 666 (Harlan, J. dissenting). One way to read Morgan, then, © = 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 ©. section 202 than to acknowledge that a substantive violation of . : 7 ~ a v 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. - ‘ va in Arizona is its explici i . 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 7 we 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 “ 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 ™, Ey ‘ + . . 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 Cs at 668.° ‘Discrimination on the basis of occupation i is still another | . kind of classification. which /i is not: favored; and therefore . requires strict review. In Carrington v. Rash, 380 U.S. 89 © (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 Se 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- | / a 1 - State-is not given by the a Constitution. . It is ‘not a privilege springing from citizenship of the: United States.’’ 193 U.S. at 632. While the Court acknowledged © _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 om —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; —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 | 1 ~e —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 ; _as the application. of the ctate’s definition of -bona fide © 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 Printing Office, Washington, D . ©, 1968. . 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. oe ‘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. wi oP & 7 s -. 7% e, ree e 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. .. w - 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 ¢ 19 oe ing). Undoubtedly, local. vested inténente may wish to ‘ maintain. their political control at the expense of new-. - comers. whose political ‘attitudes might not conform: to those prevailing i in the community. This alleged interest ‘is based on what the members of the existing community . would like the prospective voter’s political interests ‘and social values to be. Absent a question of a voter’s intelli- gered dnd ability to perceive and understand political is- sues, this interest. is not a. constitutionally permissible Nae basis of voter restriction, and in any event certainly i is not a compelling: interest.2* In the 1970 Voting Rights Act, moreover, Congress specifically fourid that durational resi- . dency requirements which have tht effect of denying citi- zens the right to vote because of the way they might vote _ are. constitutionally impermissible. Section 202 (a) (4). Voter restrictions aimed at insuring that the electorate have the capacity to understand and familiarize themselves — _ with the candidates and issues! however, have been upheld, Lassiter v. Northampton County Bd.-of Elections, 360 U.S. 45 (1959) (literacy requirement valid), provided that they are applied in .a.non-discriminatory manner. Louisiana v. United. States, 380. U.S. 145 (1965). Tennessee, howgver, has’ made no ‘attempt to further its alleged in in an . _ informed -electorate. in this. uni rersally applicable,. non- — discrimjnatory way. Knowl ility or. competence has _ never: been a criterion for participation in the electoral process for longtime residents. Instead, the-state has ~ . chosen to discriminate against all new residents cwho do - not meet either the one-year statewide or the: three-month _ county waiting periods by cgnclusively presuming that — they will not have the capacity to inform themselves about. “the candidates and the issues involved /in the election. In the case of appellee herein, the Davidson ‘Oomeey Election ‘ “23 Ag Justice: Marshall aptly inbidted: in Sie v.. Cornman, 398 U.S. 419, 423: “All too often, lack of a ae inter- est’ might mean no more than ¢ a different interest. . s A. Cihinsitanion expressly ruled knowledgeshilty or x compet. ©, ge iegerant™ ws ie ; “In Gook ¥, State, 90 Tenn. 407° (1891), the “Tefinessee “2 tacoes Court discussed its conception of the role of the wars periods for voting: . 5ANE. These restrictions’ are terms of édaiotions! probation. _',.. A native-citizen or resident of: any county cannot | remove to another, however short the distranct of removal, ‘and be entitled to vote in. the latter until he’ - shall have been a resident citizen: thereof for the period of six months. All this is to acquaint and © identify him with the gvants and interests of the ‘people fe with whom he proposes to, live, Ia. at 510-11. "Another Tennessee Supreme Court decision, State v. Slok- sey, 37 Tenn. 482 (1858), lends strong support to the hypo- thesis that the ‘‘educational: probation’”’ refers not to the legitimate objective of insuring _ issues but to the impermissible g “4 \l of ‘fencing out” those had resided in ‘the. county for ih over the six-month x, ‘m In v. Thompson, "394 US. 618 (1969), Penney! 4 \ vania argu that the one-year waiting period for receipt’ of ' \ welfare paymenta served as.a means of: encouraging new resi- ents to join the labor force promptly. “But this logic would “require a similar waiting period for long-term residents of | \State. A state purpose to encourage employment provides ew residents only.” 394 US. at 637-38. peal | .. (pagimmecel a ity have no knowledge of even the basic. . ates ) Ee emeental units closest at hand” (Typed ; _. opinion at 19). Kine : : he ability to understand —— oper magitecy imposing a one-year waiting-period re- ° EDC. 1970), ‘said, “Too often, “even: a RS “ : , ‘ \ - . ; * Ps We re waiting period, but when he attempted to vote as'a citizen. of the United-States and Tennessee, he was disqualified. “A naturalized citizen is not legally qualified to vote until . - , - after a probation of: at least six months from the time of - _ his naturalization.’ Id. at 485. If the waiting period were _,° "aimed at insuring’ an informed electorate, the Olokyey de pee cision does not make sense. If the restriction is viewed as _ @ period of ‘‘indoctrination. in local attitudes,” Hall v. * Beals, 396 U.S. 45, 54 (1969) (Marshall, J. dissenting), it =~ * becomes more easily understandable, ‘and’ at the same time ‘ reveals: a constitutionally impermissible basis for voter | _ restrictions. A citizen’s right to‘ vote’ reflects his inde- — - pendent political preference; itis constitutionally permis- is sible to require him”t have the ability to make an in-- sigs - formed chojce, but it is not permissible for the state to impose on a bona fide resident a waiting period so that he can become indoctrinated with local gone and social . values. Cf. Cook v. State, supra. ; . There.is a further flaw in the, state’s pésition that the te waiting period requirement insures intelligent exercise of ' eos the franchise. This point was cogently brought ‘out i in the ‘Brief Amicus Curiae for Bipartisan Committee on Ab- = sentee Voting at 4-8, 18-21, 33-35, in Hall v. Beals, 396 *: °U.S. 45 (1969) [Hereinafter, Bipartisan Commiittee Brief]. _ As indicated supra, *Tennessee defines residence as domi- ile for voting purposes, Brown v. Hows, 163 Tenn. 178, .182, 42 S.W.2d 210, 211 (1981); see-also Election Laws ek cee Work. Document, Staff Draft for Law Revision Commis- if sion, January, 1971 (‘‘Resident”’ means domiciliary, pro-- 1 posed T.C.A. § 2-104(28)). This definition . prevails eae ie states . Bipartisan Committee Brief at'33. In this © - regard, it i portant to realize that ‘domicile’ typi-. * cally doesnot: require that a voter shalfactually have. , been living in the state for one year, or in the county for three months before an election or at any previous time. ( Thus, since “‘residence”” for voting aligthilhy rests. upon ones 7G ure. - = > “the {nitention: of thé voter to mahi his home in “fhe state, \manifested_ by. some probative act of settlement there, mere absence from a domicile once established ‘will not de- the ‘required ‘tresidence’’ if: there:is no /intention to take’ the place*of new abode permanent. Moreover, it is \ pot” necessary that a voter have been physically in resi- iN dence i in the. state for the durational residency period, s0 . ’ as his intention to make Tentiessee his home was con- ively evidenced objectively by such an act as purchas-— ‘ing a home or. establishing . a business: See Bipartisan . .* Committee Brief, 48> What this means, of course, is that . 7 ile durational residency requirement, not ‘requiring -phys- ical presence in the state, can in no way. assure intélligent “use of the ballot. Since, the statute;requires not presence a “Pentiessee but only. domicile; the requirement that it _ have been established at a given point in time is no asgur- _ noe of familiarity with candidates or issues. en . Committee Brief, at 18-1925 | 8) ie . Another: provision of Tenhossee’s voting. awe 1 is anoma- ‘lous. when viewed. with regard to i insuring knowledgeability e , s eas. promoting the informed use ofits electoral process, it — cannot achieve this goal by restrictions on: fundamental rights which sweep too broadly and do not meet the test of necessity. Aptheker v. Secretary of State, 378 U.S. 500, - 508 (1964); Shapiro v. Thompson, 394 U.S. 618 (1969); © Kramer v. Union Free School District, 395 U.S. 621 (1969). “Precision of regulation must be the touchstone i in an area — so closely touching on our most precious. freedoms.”” ~ United States v. Robel, 389 U.S. 258 (1967). As sweepirig ae restrictions on the right to vote, and infringements on the right of travel; durational residency requirements are not | narrowly enough confined to meet the limited goat of promoting intelligent voting. N or -is the objective sought sufficiently Geevaiiee to warrant disfranchising such a significant proportion: of — otherwise eligible voters. The importance of the state’s. interest in guaranteeing an educated electorate has cléarly been undercut by the enactment of the 1970 Voting Rights ' Act, in which Congress specifically prohibited: the use of . | any test or device for insuring’ knowledgeability on the _» part of voters in local elections. Section 201(b) of the Act defines ‘*fest or device” as “ any requirement that a ‘dee as a viniceaaieiio: Ti voting or registration (1) demonstrate the ability to read, write, understand,. or interpret any matter, (2) demonstrate any .educational achievement or his knowledge of any particular subject, (3) possess good | moral character, or (4) prove his qudlifications by the _. voucher of registered voters or members of any other © class. . 7, The policy behind this provision of the Voting Rights Act is that people should be allowed to vote even if they are not very well informed about political issues or Candi- ~. dates. Such lack of information should not serve asa. bar into exercise of the franchise. : ae 0 *e ‘The literacy provisions of the 1970 Voting Rights. Act, - upheld. unanimously by this Court in ‘United States ‘v. ; Arizona, 91 S. Ct. 260 (1970),.apply to state and local -elections as well as to all federal elections. To the extent that promoting an informed .electorate:is the legitimate - interest the state purports to further by the -durational — voter. residency provisions, the importance of the state’s interest is severely undercut by the specific: provisions of . the Voting Rights Act. Congress has implicitly nullified Lassiter. Consequently, if durgtional residency be justi- fied as a device designed to demonstrate competence, the - goal may be constitutionally permissible but illegal never- _ theless given United States v. Arizona, suprat™ — Appellee, and the class he represents, on the other - ‘hand, have vital interests at stake. Most important is appellee’s right to vote in the elections for federal offices. ' See United States v, Arizona, supra (opinion of Black J.). - The right to vote for United States Senator and United States Representative is derived: from the, seventeenth 7 amendment and Article I, Section 2 of the United. States Constitution, respectively. The right to vote ‘for United - States Senator and Representative is an important ele- | _ ment of participation i in the national political community. . While Senators and Representatives speak for local con- ‘stituencies, they also pass upon issues affecting . every -gitizen irrespective of the particular. locale wherein he ~ resides. The*Court’s reluctance oSmpose rigid constitutiopal controls on social experi- _ men reflects a a sober lesson from history when the . Court struck down social welfare laws it thought unwise or improvident. Td.cat 485. The Court, therefore declined to _ find that the ‘state’ regulation, which Hid promote the ob- — jectives of encouraging employment and avoiding digcrimi- ation between welfare families “aa the working poor, | vighated equal. protection: : @ Conflicting claims’: Sof" ragrality and intelligence’ aré . raised by opponents and proponents of almost every . measure, certainly including the one before us, But the intractable economic, social, and even philosophi- cal problems: presented by public welfare assistance: . programs are not the business of this Court. ge’ "397 U.S. at 487. ‘A . ~~. a &. Quite clearly, the. kind of dodision the Court was faced | | with in Dandridge was one whose policy component was — paranioint. “Once the , Court agreed that it ?was not: its ‘ business to determine what -percentage. of a- state’s budget ‘was to be allocated to welfare—the value judgments. which underlay that choice are most evidently political—it faced an almost. impossible task "of evaluating different policy choices for dividing up. the given welfare ‘“pie”. 38 ~ 38 This i is what Ely, supra; would label a “diseretionary goal.” 1 ea4 Arguably, a state must-have broad discretion which favors large families at the expense of lower benefits for © all others, or a scheme which imposes a maximum grant on large | é ‘ ¥Ri > . —g89— The same complexity was not. present in Turner. Vv. Fouche, supra, where. the, Court was faced with the more. direct question @vhether a state can. limit school board - membership to freeholders. The Court found it: unneces- sary to determine whether strict equal protection review was applicable because “‘the Georgia freeholder require- ie ment. g#ust fall even when ‘measured by the traditional “test. for a denial of equal protection: whether the chal- .-, lenged - classification rests on grounds wholly. irrelevant . to:-the achievement of a valid state objective.” 396 U.S. at 362. Of. Cipriano v. City of Houma, 395 U.S. 901, 707: ( 1969) (Black and Stewart, J. J. concurring). In| \the . instant case, Tennessee cannot. rationally ‘classify on the sole basis of recent interstate travel without making an attempt ‘to isolate the. operationally relevant factors to voting competence. Presumably, the state would not argue - that duration of residence, of itself, is an, indicator of anything at all, save mobility. It must be an inference _ from this mobility that causes the state to. disfranchise _ these new’ residents, But the state has not introduced _. @ shred of evidence to justify the inferences that it ap- parently draws: that new residents are likely to commit fraud, or that they are unable to exercise the franchise intelligently. - In Turner v. Fouche, the Court. observed: It cannot be seriously. urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to participate re- ’ sponsibly in educational decisions, without regard to whether. he is a ‘parent. with children in ~ local - % families allowing others to have: higher benefits? This is difficult for the Court to decide as a constitutional issue, a» determina- tion reflected in Justice Stewart’s opinion. The determination in the voting durational residency situation is much more straight- forward: whether a ‘state may rationally presume that new resi- dents as a class (a) cannot make intelligent use of the ballot - ‘or (b) will commit voter fraud. Cf. Turner v, Fouche, 396 U.S.- 346, 364 (1970). } schools, ° ‘a lessee w taxes of his lessor _ » and federal expedite ntributing to the approxi- ‘mately 85% of the . . . annual school budget derived . from. sourees other than. the ‘board of education’ ~ own Jevy on real property. oe 396 U.S. at 363- 64. Similarly, with respect to durational | residency for voting, it is irrational for a state to impose : a ‘waiting period on all its new inhabitants. alike whether | they physically reside in the state or not; whether or not they. are willing to sign a: forfeiture of -previous voter _ registration; whether or not they, like appellee, are willing | to make. a showing of competence. Again as the Court noted in Turner, _ * 2 . Nor does the lack of ownership of calls establish . lack of attachment to the- community and its edu- . cational values. However reasonable the assumption that those who own realty do possess such an’ attach- ment, Georgia may not. rationally presume that. that quality is necessarily wanting in all. citizens of the _ copnty whose estates are less than freehold. -* 396 -U.S._at_ 364. 4. Tennessee. may presume that longtime residents have a modicum of _knewledgeabilityabont -po- litical issues, but’ see Keenan v. Board of- Law Examiners, -supra, at 19, and it may even ‘assume that longtime Ten- nesseans will not commit voter fraud, but it may not rationally presume, as the state’s brief intimates that it does, that. appellee will not ‘‘cast his ballot fairly’’ _ . and will ‘‘interfere with others by. y fraud, force or. duress.’’ _ Appellants’ Brief, at 9. -_ e Thus, from Turner v. Fouche, ~supra,—it- = that even where: there.is sonie connection between a. statutory distinction and a readily ascertainable and easily defined state objective, a statute discriminates invidiously if the ‘connection is tenuous iti the extreme: While there may be a rational relationship between property ownership Pe 9 \ effectively pays.the property. _ rt of his rent, or a state ~ and interest in local affairs, there is no rational relation-. ship between lack of property #folding ‘and lack of com-: munity ties Consequently, even under traditional review, - Tennessee must tailor its means. more precisely to: achieve its li aided objectives. There is no question of. balancing a multiplicity of values; either the state van conclusively _— infer from mere interstate migration. that. appellee is .’ | unable to vote intelligently or that he will commit voter fraud, or it must devise other means of ascertaining an- ‘_swers to these legitimate questions. \The relevance of _alternatives to standard equal protection review is clear from Turner: = 8 = - © } ak ag _ + Whatever objectives Georgia seeks to obtain by its ' “‘freeholder’’ requirement must be secured, in ‘this instance ‘at least, by means more finely ‘tailered to achieve the desired goal. | (396 US. at 364.39° - In Shapiro v. Thompson, suyra,- although the Court _ explicitly found strict review applicable, Justice Brenhan made it cléar that upon analysis, the durational residency _ provisions there under review were invalid under tradi- tional standards as wel: ‘‘Thus, even under traditional _, qual, protection tests a classification of welfare applicants. - according to whether they have lived. in the State for “one year would seem irrational and unconstitutional.’’ ) 39 The Turner approach to.traditional review was used : Keenan v. Board of Law Examiners, supra, at 20-21: Therefore, while the one year residency requirement may ‘deny licenses to some applicants who lack character or | competence, it also bars, arbitrarily and capriciously, ap- plicants who are eminently qualified for admission. Its __ constitutional infirmity is__“over_—inelusion”—{citations - Omitted]. It burdens.some who, because of unfitness or in- competence, should not be licensed to practice; but it also injures others who are both fit and capable. There are here norexigeht circumstances justifying such over inclu-> . . sion... . [W]e find a denial of equal protection of the laws in the Board’s presumption that ‘all those who have not -been residents of North Carolina for moré than *one year ' preceding.their bar examination should be classified unfit. - nd Peal ee: e ry . . - y : gg — 394 U.S. 638: The Court in Shapiro was faced with a _ state argument that the durational residency requirement - prevented fraud, but the Court rejected this outright: ‘The argument that the waiting period serves. as an administratively efficient rule of thumb for determining residency similarly. will not withstand scrutiny.’ Id. at 636. Accord: Harman v. Forssenius, 380 U.S. 528, 542-43 (1965). In the* instant case, there ‘are’ numerous’ other” ways in which a prospective. registrant’ s bona fides . may ~ be verified. The voter registration .system itself, as the _ district court found,’ is expressly te ik serve this © function, and it came into being well after the enactment - of the state’s. durational residency provisions. The. pro- posed ney T.C:A., § 2-221, is- another way of insuring that new registrants do not maintain dual registration. - See Election Laws Work Document, Staff Draft for the Law Revision Commission, January, 1971. T.C-A. -» § 2-324; imposes a crimimal sanction for various nefarious prac- _tices with respect to the franchise. The state could formalize its voter challenge system, rT; C.A., § 2-1309-1311, pursuant .to recommendations in Note, Protecting the Right to Vote: A Model Voter Challenge Statute, 78 Yanez _ LJ. 662 (1969), or adopt any of the numerous recom- ‘ mendations of The Uniform—Voting by New Residents in . Presidential: Elections Act, 9C U.L.A., pp. 198-207 (1967). The durational residency requirements ‘are really . not effective for preventing voter fraud, see Hall v. Beals, _ 396 U.S. 45, 54-55 (1969) (Marshall, J. dissenting), espe- cially where, as here, there seems to be no attempt by the state to go beyond the mere assertion on the Tegis- _ tration ‘affidavit. ey —_—_—__—— ~~ As for ‘the purported interest of the state in pecans 4 intelligent. use of the franchise, . it will be helpful to ex- -amine some of the literature available on geographic mo- | - pility. A report of a project recently - supported by a “~grant-fromi the Welfare Administration of the Depart- . ment | of Health, Education and Wefre, concluded that: | —8— , e * "Mobility. rates .are highesg for young adults: and fall off rapidly a as.older age groups are considered. Mo- bility ratésS are much higher for _those with a. college _ education than those with only a grade: school’, or high ‘school education. The differences in mobility rates as between those with a grade school: education 7 and those who have been to highsthool are small but on the average the latter are more mobile. Highly trained people are likely to move because their spe- - cialized. services are in demand in a different area, _ Young people are likely to move because it fs easier and less expensive for them, and because they have not yet developed specific énowledge which is useful in particular jobs in particular areas but sated be less .— useful ‘elsewhere. 2 ° . Most people i in the ons force give job-related “economié reasons for their moves. The people with the strongest economic position in terms. of skill level * and educatiqn seem particularly. likely. to respond “jm. to economic incentives such, as the opportunity for [. a better paying job. . La Nsine anp-MUELL ELLER, om, Tae = or Mosniry OF Lanor : | 335-36 (1967). | The pattern of. diserimingtion i is Sliaxt those kept from . the voting ‘rolls because of durational residency provisions \are those most responsive to economic incentives. They -are highly skilled, highly educated, and tend to be young. . , adults. The data presented. by N orling are consistent with . _____the Lansing and Mueller study. ‘Norling shows that there . is'a steady, unvarying relationship that as people have. ; higher education, a higher percentage ; of the group is dis- _ franchised annually by waiting periods.. His data ‘indi- cate that while 54.2% of all resident voting age citizens _ are high school graduates, 66.0% of those disfranchised - by residence requirements. are -high school graduates, and while 10. 0% of all résident voting age citizens are allege ” —%4—. ‘graduates, ‘15. 1% of those disfranchised’ ‘by. iaaniane re- quirements are college graduates. Norling at 6-7. 1971 data from ‘the Census Bureau support these conclusions. ; migrants (that is, those who have not moved intercounty % or interstate within the last year)‘ had at least a -high school education whereas 69. 2% of all “migrants chad ‘at - - ~ had-had at least one least. a high school education: (Of the migrants, 62.9% intrastate migrants had .at least. completed: high school,: and 75.7% of interstate migrants had at least completed™ high school) Similarly, only 23. 9% of non-migrants had - at least one year of college, whereas 46.0%. of all-migrants migrants sad—at Teast pete year of college, and 47. 6% of _—interstate migrants had at least one year of college.) 1971 Census ‘Population. Characteristics, Table 4, ‘p. 12," . rates of participation in the electoral system. But the If durational residency requirements discriminate « on the basis of age and education, the relevant inquiry becomes what their effect i is on the ability to exercise the franchise Of the population 25 years of age and over, 53.9% | of non-— -of college. (32.5% of intrastate - intelligently. Y oung adults have often been accused of low . data presented by Norling aré germane in this regard. While 9. 1% of the resident citizens-of voting age are’ be- ‘tween 21 and 24 years old, 23.3%: of those Aisfranchised ‘by durational. residency. ‘requirements are in this age group. Norling: at 10.. 25.9% of 21-24 year olds could not _ register because of waiting period restrictions, but only. 10. 3% of those over 64 were: thus disfranchised. 40 Thus, * 40 Pervent Unregistered Citizens of Voting Age. Disfran- chised by resi sear requirements in 1966, by.age — : 21-24 25.9 . 25-84 26.4. , ° 85-44-08 | ‘ 45-54 168 , . 55-64 14.0 65 + 10.2. Total . 20.4 Source: Recomputed from dath in“ Current Population Reports, Series: — No. 174, Table 9, Cited Era at 10. * etn et inner mmsorrmrsonrie “ . Bama 4 sere omeren * i : . ‘ “ . ; o. 8 ° at - : q - : Be. 50 «74 Total - 41 42 |. 56. 32 24. 41 a. * The PR of this perventage would. be the percentage . of those who do not belong. > Less than 10 cases. 5° aid edb vi Tiamcininn ta Nendo e° inn the data, then, one vm but cian: that ‘the | discrimination wrought by the durational residency pro- . - visions works to the detriment ‘of the political system by hy disfranehising not those who are likely to be uninformed, se -\ef. Harper_v. Virginia Bd. of Elections, 383 U.S. 663, 674, _ 684-85 (1966) (Black, J, dissenting; Harlan, J: Geenine); o but the very: people who are most likely’ to ‘make intellj " gent, responsible use of the ballot. Since voter partici e tion i is related to involvement in the’ community, there is in’ effect a self-screening mechanism. Tg the extent that a new resident. is well enough aware of the registration cut off date, and is concerned enough to present himself ‘at the registrar, wait in line for as long as ‘three or four Pe: hours, and postibly miss part of a-day at work, and then |‘ _ repeat this election day, it is likely that he is substantially — ~ goncerned about the outeome of the ‘eléction,* Especially - ‘in a society where so much of a campaign is. conducted ‘ through the media (newspapers, radio: and television), - where the candidates do not announce until well. after, the - one year cut off period, and the issues do not cerystallize until the weeks just before the election, it is unrealistic: to seriously contend that new fesidents as a class are un- - able. to participate intelligently in the electoral system. The discrimination is invidious ‘and violates: equal protec- * ' “ tion- of, the laws. | we ‘ . IIL The Tennessee Durational Residency R entsfor is Voting Violate Procedural and Suwanee Pro- sf €88 of Law | oN » . A. ‘Tennessee’s durational residency requirements for“ § r .- voting conclusively presume appellee’s unintelli, . I. gent or fraudulent use of the franchise and vio- late due process. for failure to allow. rebuttal of an these empirical assumptions which are not rea- *. - ° sonably related to the legislative objective sought. : Elsewhere, appellee has demonstrated thatthe state can achieve any of its legitimate objectives by less drastic in- _ fringements on appellee’s right to vote. Appellee has also ,. Shown the lack of a.rational connection between duration , of ‘residency and voting competence. By legislating. a con- elusive presumption of political ignorance ér of voting du- a €: plicity, the state has deprived the entireSclass of new “residents of any opportunity to rebut’ ‘these factual assump- tions. In this manner, all new residents are classified solely ". on the basis of membership in this class. ‘‘If the rule be = expressed as a presumption *. . it is a conclusive one.’’ Wieman v. Updegraff, 344 U.S. 183, 191 (1952). The Te sult of this legislative scheme is to deny to new members ~ | a hearing as to the applicability of the presumption to their case. ——- In Boddie v. Connecticut, 91 S.Ct. 780,-785 (1971), this: Court recently held that ‘‘due process requires, at @ mini- + mum, that apeent : a countervailing state interest of overrid- . ing significance, persons forced to settle their claims of ~ right and duty through the judicial process must be given a meaningful opportunity to be heard.”’ This’ principle is, | -nottlimited to access to the courts; in Boddie, the Court > - was careful not to create a right of access to the courts, 4 ‘but relied instead on the ‘pivotal role that the state ~had | ‘taken for itself by. monopolizing an avenue of conflict reso- et Rs ge 4 Ais La e Consequently, the rights of a press, assembly and rights . designed to guarantee that. the people may be - Me b heard ‘effectively. Amalgamated Food Employers Union / - Local 590.7. Logan Valley. Plaza, Inc., 397‘U.S. 208 (1968). The rights are nof limited to mere statement of facts but‘ -‘ necessarily entail. ‘‘the opportunity to persyade to ac- tion.’? Thomas v. Collins, 323 U.S. 516, 537 (1945). The ¢ first’ amendment is the vehicle designed to effectuate the: underlying premise that ° government is ‘‘responsive. to the will of the people.’ Stromberg. v. California, 283 U.S. 359, 369 (1931). ‘Roth v. United States, 354 U.S: 476, - 484 ( 1957 ). Ina representative democricy,. ‘“‘the whole is concept of représéntation depends upon the ‘ability’ of people to make their wishes known. to-‘their representa- . _tives’’—to persuade elected | officials to. enact’ ‘legislation. Eastern’ R. R. Presidents Conf. ‘v.. Noerr Motor Freight, “Ine., $65 U.S. 127, 137 (1961). Ballots are the means used — ~ to: express one’s view about a political -figure and to re- move him from office? New York Times v. Sullivan, 376 — US. 254, 299 (1964) (Goldberg, J:, concurring). The . selection of: candidates is a form of “‘expression of the voice of:,the people.”” McPherson v. remnare 146 U. S.. a an 7 “26 (1892). Voting i is the. fing and authoritative act of political ie, pression and is esséntial to. the security and re Dp _ the amegdment freedoms. It is implicit in the - athen' ment. As the Court stated in Hadnott. v. - Amos, ~* 394 U.S. 358, » 364 (1989) ‘‘. ... First Amendment rights — 5 ; O . ? 4. ra > >. ar - : ve . .s a include the right to band together for the advancement of. political beliefs.’ And clearly these first amendment rights have always been deemed fundamental. — v. Rhodes, 393 US. 23 (1968)... - b)." The Exercise of the Franchise Is a Fun- damental Right Embodied ‘in the Concept ‘of Due Process of Law. The Bue Prepias Clause is the vehicle provided. by the — Constitution to insure that fundamental fairness is .ac- corded citizens in. their, relationship, with their govern- ment. The Due Process Clause accommodates the Consti- tution, as originally drafted, with subsequent ‘amendments ‘including the*‘‘broad principles announced in the Four- ‘teenth Amendment, ‘generations later.’’. Williams ‘y. Rhodes, supra, at 43 (Harlan, J.; concurring). Thus, ‘‘[t}he State’s, obligations under the Fourteenth .Amend- ment are not simply genéralized ones; rather, the State. owes to each individual that process which, in light. of. the values of a free society, can be chatastonuat Meee Seed ver / - 7 “13 its duty to defendants in the criminal process. And, as : recégnized by Justice Harlan, concurring in Williams v. . Rhodes, supra, 393 U.S. at 42 ‘ have virtually plenary power in the area of divorce. Similarly, — * one ‘could argue that the tenth amendment grants to the states plenary power to set voter qualifications. Of- course, this Court’s great voting rights decisions of the. last decade, and the White Primary Cases over 30 years ago, negate this ition. But, even assuming that Justice -Harlan, in United Vv. izona is correct that equal protection is not a restriction on state power to set voter qualifications, the 4rgument fails in two ways. First, the Court recognized in Boddie that due _ process applies even where states have wide discretion. As Jus- tice ‘Harlan noted in Williams yv Rhodes, while equal protec-. _ tion might not'be applicable to election qualifications, it is\“per-- fectly consistent and appropriate to hold the Due. Process lause applicable,” 393 U.S. at 43. Second, the argument ignores the final phrase of the tenth amendment. As originally introduced by Madison, the tenth amendment. read: “The powers not Hele- gated by the Constitution, nor prohibited, by it ‘to the S i are reserved to the States respectively.” During the debates in ‘ the House of Representatives on August 18 1789, Representa- tive Carroll proposed that the phrase “or to. the people” be. added at the end. of the amendment. His amendment -was ac- cepted and became part of. what is now the tenth amendment. —14— : avcess is the courts sonatas a Hiread to their legitimacy as final arbiters for. resolving conflict—espécially where the state has“shut other avenues for possible solutions— unnecessary roadblocks to the political system undercut “its legitimacy and abridggs important associational free- doms.*¢ ' : . 2 xt, aT this conceptual differente... Clearly, the last phrase must’ have _some meaning. It. was not qualified “or to the people of the “ several states,” cf. Art. I, §2; and consequently nmiust mean the people of the United States. In the context of durational residency requirements for voting, this final phrase should be | seen as undercutting the power of states to disfranchise citizens of the United States solely for exercising rights secured by the - federal Constitution—the right to reside in any state one wishes -unencumbered by civil or political disabilities. 46. Certamly, voters who, solely because of their recent inter- state, migration, cannot participate, are. every much as aggrieved as minor party followers were in Ohio in Williams v. es. If it be suggested that new residents are only excluded for a single year, it could be argued that there was no absolute bar -to the ballot in Ohio at all. It was qui parent that Mr. Wallace was going to run for the presidency several: years prior to the November 1968, election. Nevertheless, his sup- porters made no realistie effort to comply with the time require- ments of.the Ohio statutes. But, for the Court, the important ~ - factor was the encumbrance placed on associational freedoms, ~ with the realization that voters were entitled. to have reason- . able access to the political forum for any given election. Consequently, the argument that appellee should be patient, fdregoing the 1970 eleetions, must fail. The decisive.-year for -* George Wallace might -have been 1968, and his followers had a constitutionally protected interest in being able to make their political choice. known through the state-controlled monopoly . governing political decision-making—the electoral system. Sim- ilarly, in¢1970 in Tennessee, a. very important election for Sen- ator took’ place. Those new ‘Fesidents: who wanted to “get. Albert” had a significant stake in whether former Senator Gore should be returned to the Senate as. Tennessee’s representative, and those, on the other hand, who wished to have him remain in the Senate, with all his accumulated: seniority, would have’ been irreparably harmed if they had not been able to participate in the 1970 election. Even, hypothetically, if former Senator Gore could run again in 1972, it is unquestionably true that, stripped of his seniority, he would not be the same Senater as if he had been reelected. -It is incorrect, therefore, to view the interests of new residents as less significant. than those of the Wallace backers in Williams v. Rhodes; the. associational ele- ments in both. situations are very similar. ¢ 7 — 115 — » The concept of political legitimacy has a long history in the United States. One of the: battle. cries of «the - Colonists who. broke with, the Mother Country was ‘‘No taxation without. representation.” This, in slogan form, ' -was a challenge to the legitimacy of the constituted polit- ical authority of England.” In this sense,. the legitimacy ° of democratic and republican government depends upon. .- ~ its responsiveness to the expression of consent ‘and dis- sent of the governed. This principle guided Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819), where this Court invalidated a state tax imposed on a United States bank. The “‘security against the abuse of the power’’—that is, thé power to tax—was the ‘‘strue- ture of the government itself. ”” Id. at 428. As a state, Maryland was able to tax its own citizens since the politi- cal leaders were responsive to the people of the state; however, Maryland was attempting to tax a broader con- stituency—thé United States—without the inherent check _ against abuse that responsiveness to those: taxed brings about. This taxing power, éonsequently, was deemed ille- gitimate. | pO gg Over time, conceptions of legitimacy change. At one time, it was thought: permissible, within a representative democracy, to restrict the suffrage to male property hold- ers and systematically to exclude sizable groups ‘on the basis of race. But since the Civil War, notions of leziti- macy have dictated the inclusion of a -broader constitu- eney in the process of political decision-making. Six constitutional amendments have directly advanced the Tight of the people to vote over this period. Section two. - of the fourteenth amendment placed ‘a federal sanction against, states denying the right to vote.to any inhabitants ° - over 21 years of age; the fifteenth, nineteenth and twenty- fourth barred depfal of the franchise on bases of race, . ‘“Sésex or wealth, respectively; the seventeeath required the popular election: of United Statds Senators; while the @ , ; roe, } = “ twenty-third extended the right to vote for President to the District of Columbia. Thus, through amendment, suf- frage has become a right of age, residence and citizenship, and not of property, race, ‘sex,.0r occupation. = T6— ——- ee ‘State-Exelusion_of _New . Residents from the ven: chise Directly Impinges on Federally Gtarantecd._ _ Rights of Interstate Migration.’ Recent federal legislative action in supporting expan- sion of the franchise indicates the increasing national con- cern with disfranchisement of significant sectors. of the population. Thus the 1965 Voting Rights Act recognized the importance of power at the polls as a source of politi- . ‘eal strength for blacks in the South. Similarly, the na- tional concern expressed in the amendments to the 1970 Voting Rights Act indicate that restrictions on the fran- chise are no longer of purely local concern. This is espe- cially true where the bases for classifications are not. primarily local factors, but factors which apply on a - national scale. The durational residency provisions’ are classic examples of where the exercise of federally pro- tected rights—interstate migration—is the sole basis upon _which disfranchisement rests. Cf. Slochower v. Bd. of Higher Education, 350 U.S. 551 (1957). Fundamental fair- ness dictates that a person, guaranteed the fe to take advantage of economic opportunities in any state in the United States, not suffer political disabilities exelusively So, because he took advantage of a chance to move. a While the eligible political constituency has normally a. ’ heen expanded by constitutional amendment or legislative ; - action, ‘‘[c]ourts become involved as well. Their role has _ been to oversee the definition and realization of the rights _ of political participation . . .”’ Claude, Nationalization of the Electoral Process, 6 Harv. J. Lecis. 139, 145 (1969). In the case of durational residency restrictions on the ballot, members of the larger. constituency—citizens of the ¥ —117 — United States—are exercising rights: guaranteed by the - Constitution. of the United States; but,.as Justice Stewart. pointed out in United States v. Arizona, it is unlikely that the individual states will have any incentive to include these newcomers into théir political system. 91 S.Ct. at "345-46, 348. It’ is for this reason that federal action, ‘‘to_ ' vindicate the unco @@tional personal rights secured to the fl -: citizen by the Federal Constitution,” 91 S.Ct. at 348 is. required “‘if this privilege is to be effectively maintained.” ” Ibid. While the federal constitution may not of itself . guarantee the right to all to. participate, the importance | of the vote for legitimacy of the political process, coupled with the undoubted federal interest in safeguarding inter- state mobility, establish a case under due process that . - the states cannot disfranchise new residents solely on the ground that they are recent arrivals. Such arbitrary dis: crimination effectively furthers no state policy objectives, on the one. hand, but, on- the other’, severely limits the rights of appellee and. the class he represents to an un- impeded choice of homesite. and concomitantly diminishes. = “the legitimacy of the political process of both the state- and federal governments. ; | . , %* ae 3.. New Residents Are Subject to All Laws of the _ State of Tennessee, but: May Be Effectively Ex- cluded From Political Influence Well Beyond the « Duration of the Waiting Period. — — Appellee has shown that the interests at stake in his disfranchisement, on any hierarchy of values, are the most -. basic to an ordered society. The substantiality of the de- privation cannot be gainsaid.- In 1970 appellee was de- * prived- of the right to vote in the primary of* his choice. In that election, at the state level, candidates were chosen to represent their respective parties in the race for Gov- ernor, United States Senate, lie. Service Commission, . United ; States House of Representativea, State Senate, v State House of Representatives, and State Party Commit- téemen and Committeewomen. Appellee. lost the right to participate in the August General Election in the selegtion of one Justice of the State Supreme Court, fou dges of the State Criminal Court of Appeals, three Judges of the Court of Appeals, one Judge of the General Sessions - Court of Davidson County, ‘the Public Defender of David- son County, and delegates to the State Constitutional, Con- ' vention. Judges are elected in Tennessee to serve for eight year terms~ See, Tennessee Constitution, Art. VI, §§ 3, -4. Thus, in the August, 1970, elgétions alone, appellee lost his right to vote for eight years, not one, and this despite the fact he was and is-a bona fide resident of the State of Tennessee and had filed suit at the earliest: possible time . after exhausting his administrative remedies.. Had appel- lee been deprived. of the right to vote iri November, he. would have lost the opportunity to vote for one US. “2, Senator. for six years, one Public Service Commissioner for six years, the Governor of Tennessee for four years, and his Congressional Representative for two years. Nevertheless, as in Evans v. Cornman, 398 - U.S. 419, 424 (1970), appellee is immediately subject to the full. panoply of Tennessee law. As.a resident, without regard to duration, he must obtain a motor vehicle operator’s license, T.C. ‘k, § 59-704, and must transfer his automobile registration to Tennessee, T.C.A., § 59-401. He must pay income tax on stock dividends, T. C.A., § 67-260h,- and if | he should die, he would be subject [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0368%3A6. Public record. Not legal advice.