Fontham v. McKeithen

R. BLAKE WEST, District Judge:

A three-judge court was convened in this matter to consider the constitutionality of various Louisiana durational residency requirements as pre-conditions for voter eligibility in a State general *154election. Plaintiffs seek to enjoin officers of the State of Louisiana from enforcing State statutes which are allegedly in violation of the Equal Protection and Due Process Clauses of the United States Constitution.

Louisiana maintains durational residency requirements for voting in State elections. In order to be eligible to register to vote, a prospective voter must have been a resident of the State for one year and of the Parish for six months preceding the election in which he seeks to vote.1 Plaintiffs satisfy all other requirements for voter eligibility except durational residency.2

Louisiana law also provides for a temporary suspension of voter eligibility upon a change of political party affiliation.3 A voter who changes party affiliation is not permitted to vote for a period of six months in any primary held by the party to which he has changed. However, an independent, a person registered to vote without declaration of party affiliation, may change his registration and vote immediately in the primary election of his new party without becoming subject to the six month suspension of voter eligibility.

Plaintiffs' complaint, therefore, attacks the requirements of (1) one year state residency; (2) six month parish residency; and (3) six month suspension of voter eligibility upon change of party affiliation. Particularly, it is alleged that Louisiana has no compelling state interest in imposing the requirements complained of, and that the requirements are violative of the Equal Protection and Due Process Clauses in that they unduly restrict the right to vote and the right to travel guaranteed by the United States Constitution. It is the decision of this Court that plaintiffs’ attacks on the statutes in question fail to overcome the presumption of constitutionality afforded the statutes and that the relief sought by plaintiffs should be denied.

*155The matters to be determined herein, stated simply, are whether (1) the Legislature of Louisiana had the legal right to provide that a person coming into this State to reside should wait for a period of one year and a person moving from one parish to another should wait for a period of six months before becoming eligible to vote in State and local elections; and (2) the Legislature of Louisiana had the legal right to provide that a registered voter who changes his political party affiliation should wait for a period of six months before becoming eligible to vote in the primary elections of his new party.

The underlying concept in this ease is that a resident of a State does not have a right to vote in State elections; there is no inherent right to vote, but a privilege to vote, which privilege is granted by the State and is not derived from citizenship of the United States, nor granted by the federal Constitution or any of its Amendments. Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627 (1875).

The privilege to vote in a State election “ . . . may not be refused on account of race, color, or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as a state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution.” Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904).

Thus, the United States Supreme Court has held that the following conditions of suffrage could be imposed without constitutional objection upon its residents: age, Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1971); literacy, Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959); and lack of previous criminal record, Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890).

Directly on point, and we believe controlling in the instant case, is the decision of the Supreme Court in Pope v. Williams, quoted above, in which it was held that a Maryland law, requiring persons coming into the State to reside to make a declaration of intention to become citizens and residents of the State as a prerequisite to the right to be registered as voters, was not violative of the federal Constitution.

Thus, the principle is well established that the States have “long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised . . . absent of course the discrimination which the Constitution condemns.” Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed. 2d 1072, 1076 (1959).

This principle was reaffirmed recently by the Supreme Court in Oregon v. Mitchell, wherein Mr. Justice Black, citing Pope v. Williams, expressed the view of the majority of the Court that Congress was unauthorized by the Fourteenth Amendment’s Equal Protection Clause to lower the voting age in State and local elections from twenty-one to eighteen.4 The Court stated, at 400 U.S. 125, 91 S.Ct. 265, 27 L.Ed.2d 281:

“No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the *156limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices. Pope v. Williams, 193 U.S. 621 [24 S.Ct. 573, 48 L.Ed. 817] (1904); Minor v. Happersett, 21 Wall. 162 [22 L.Ed. 627] (1875). Moreover, Art. I, § 2, is a clear indication that the Framers intended the States to determine the qualifications of their own voters for state offices, because those qualifications were adopted for federal offices unless Congress directs otherwise under Art. I, § 4. It is a plain fact of history that the Framers never imagined that the national Congress would set the qualifications for voters in every election from President to local constable or village alderman. It is obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections, except to the limited extent that the people through constitutional amendments have specifically narrowed the powers of the States.”

Of course, State standards regulating the rights of voters in State and local elections are not immune from challenges that they offend federally protected rights. However, the Supreme Court has traditionally exercised restraint in reviewing State legislation creating classifications of voters in order to promote legitimate State interests. The general standard for reviewing State legislation challenged under the Equal Protection Clause is known as the “rational relation” test. The test was defined by Mr. Chief Justice Warren in McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961) as follows:

“Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard 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 practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

There is no federal constitutional right to vote in State and local elections, and for that reason the Court must test the constitutionality of the residency requirements by application of the “rational relation” test, as did the United States District Court for the Northern District of Ohio in Howe v. Brown, 319 F.Supp. 862, 866 (N.D.Ohio, 1970) in upholding the validity of Ohio’s one year residency requirement:

“We find that the one-year residency requirement is not unreasonable, and that it is rationally related to promoting a legitimate state interest. Legitimate state interests that could be promoted by such a requirement are: ensuring that those who vote for state and local representatives are familiar with the political candidates and issues, by having been given maximum exposure to the problems of the locality through the media of local communication ; preventing individuals, motivated only by a desire to affect the state’s election results, from ‘moving’ into the state shortly before the election is held, voting, and then returning to their foreign domicile; ensuring that the electors have genuine interests in community affairs. The lines drawn by the distinctions are not infallible, but they need not be, so long as they are rationally related to these interests. McGowan v. Maryland, supra.”

Likewise, in Cocanower v. Marston, 318 F.Supp. 402 (D.Ariz.1970), a three-judge court held that Arizona’s one year residency requirement for voting in State elections did not violate the Privileges and Immunities Clause and did not abridge the plaintiff’s civil right to travel, nor did it deny her Due Process of law.

*157Much of the thrust behind the assertion that the durational residency-statutes impinge upon the right to travel is derived from Shapiro v. Thompson, 894 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), in which the Supreme Court invalidated a one year residency requirement for receipt of welfare payments. However, we do not regard Shwpiro as controlling here. In that case the Supreme Court held that the “specific objective” of the residency legislation was to “fence out” poor people who had recently moved within the jurisdiction. The purpose and effect of the legislation was to inhibit the free movement of people who might avail themselves of welfare benefits. Such is not the case here, where the durational residency requirements for voter eligibility cannot realistically be regarded as an attempt to penalize the free movement of voters. We cannot believe that voters are dissuaded or deterred from interstate travel on the basis of the statutes in question.

In Ferguson v. Williams, N.D.Miss. 1971, 330 F.Supp. 1012, 1023, the United States District Court for the Northern District of Mississippi upheld Mississippi’s four month registration deadline and stated that:

“Mississippi’s registration statutes, previously noted, may be viewed as a valid procedural scheme designed to insure that all qualified citizens vote in the election precincts in which they reside. As conceded, the state has a legitimate interest in requiring some cutoff date for the registration of its voters. Our only inquiry is whether a cutoff time of four months, when measured by the tasks to be performed by the election officials, is arbitrary and unreasonable. Our duty is not to judge the state’s requirement in terms of whether it is wise or desirable, but whether ‘any state of facts reasonably may be conceived to justify it.’ That Mississippi’s registration deadline may be the longest of any state in the Union, and twice as long as any other state, is neither controlling nor persuasive since the Constitution does not require uniformity among the states in the exercise of the state’s power to set reasonable, general voter qualifications.”

A source of difficulty in reaching the conclusion, based upon the “rational relation” test, that the statutes in question are valid, is the decision of the Supreme Court in Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). That case held that “ . . . if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.” 395 U.S. 627, 89 S.Ct. 1890, 23 L.Ed.2d 589. A number of three judge courts have eagerly seized upon the “compelling state interest” rule to strike down state statutes.5 Since, for the reasons which are set forth hereinafter, Kramer is in-apposite to the instant case, we will not deal with its progeny.

It should first be noted that Kramer does not overrule Pope v. Williams, the viability of which is evidenced by Mr. Justice Black’s citation of the latter in Oregon v. Mitchell. Next, it should be noted that in Kramer, the aggrieved party agreed “ . . . that the States have the power to impose reasonable citizenship, age, and residency requirements on the availability of the ballot”. 395 U.S. 621, 625, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583, 588. Basically, however, the reason that Kramer is not applicable in the instant case is that, in spite of the broad scope of some of its language, its facts are readily distinguishable from those before this Court. In Kramer, the *158New York statute under attack restricted the franchise in certain school district elections to owners or lessees of taxable realty (or their spouses) and to parents or guardians of children in public schools. Mr. Kramer was a bachelor and owned no taxable property and was therefore denied the vote. He was permanently disfranchised and there was no way (other than purchasing taxable property, or pursuing the perhaps more difficult route of marrying and becoming a father of a child who would attend public school) that he could become a voter. Thus, Mr. Kramer was denied the franchise, and the denial was on a fixed and relatively permanent basis. He was “fenced out”. This situation, in the Court's opinion, is easily distinguishable from the residency requirements in the instant case.

It is the Court’s opinion, therefore, that the instant case is governed by Pope v. Williams and that, unless and until the Supreme Court rules that residency requirements such as Louisiana’s must be struck down under the “compelling state interest” test, we hold that LSA-R.S. 18:270.202 is valid.

Although we have found no cases on the subject of the propriety of a state law temporarily suspending voter eligibility upon change of party affiliation, it is our opinion that, under the rule of Pope v. Williams and the applicable test of constitutionality, there is a reasonable relation between the terms of LSA-R.S. 270.-204 and the State’s interest in protecting the integrity of political parties within the State.

For all of the foregoing reasons the relief sought by plaintiffs is denied and their petition should therefore be dismissed.

. LSA-R.S. 18:270.202 reads in part:

“Every citizen of the United States and of Louisiana, native born or naturalized, who is twenty-one years of age or who will have attained the age of twenty-one years prior to the next election and who possesses the following qualifications and who has complied with the provisions of this Chapter, shall be eligible for registration as a voter:
(1) He shall have been an actual bona fide resident of the state for one year, of the parish for six months, and of the municipality in municipal elections four months, and of the precinct in which he offers to register as a voter, three months next preceding any election.”

. This fact is stipulated by all parties. Incidentally, all plaintiffs are Caucasians, and race is not an issue in these proceedings.

. LSA-R.S. 18:270.204 reads as follows:

“The applicant need not declare a party affiliation in order to be registered. He shall, however, if he does not wish to affiliate, circle the ‘None’ on the LR-68 application card. Failure to affiliate however, renders it unlawful for him to vote in any primary of any political party, as long as he has not declared his party affiliation.
However, any person may change his party affiliation by applying to the registrar, requesting in writing that the change be made. The registrar, upon such request shall note the political party designated by the registrant in the proper column of the original application card. Such change of affiliation in his registration shall not permit the registrant to vote in any primary held by the political party to which he has changed his affiliation within six months of the change. During this period he may not vote in the primary held by the political party which he has renounced and abandoned.
Where a registrant has registered without declaration of party affiliation and afterwards desires to affiliate with some party, he shall cause the registrar to enter the party he selects in the proper space of the original application card and on the voting certificate by making written application to him to do so. The designation of party affiliation, in accordance with this Paragraph renders the registrant eligible to vote in the party primary next following the designation. The registrar shall note on the original application card the date of the change of party affiliation.”

. This view of Congressional capacity was further buttressed by the 1970 Amendments to the 1965 Voting Bights Act. 42 U.S.C. § 1973aa. That statute abolished the durational residency requirement as a pre-condition to voting for the offices of President and Vice President, but imposed no sanction on the right of the States to maintain reasonable durational residency requirements for State elections. The Amendment indicates clearly that the Congress is unwilling to assume what is properly the role of the States in enacting voter legislation controlling State elections.

. Blumstein v. Ellington, M.D.Tenn.1970, 337 F.Supp. 323; Kohn v. Davis, 320 F.Supp. 246 (D.Ver.1970); Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970); Bufford v. Holton, 319 F.Supp. 843 (E.D.Va.1970); Lester v. Board of Elections for District of Columbia, 319 F.Supp. 505 (D.C.1970); Affeldt v. Whitcomb, 319 F.Supp. 69 (N.D.Ind.1970) Burg v. Canniffe, 315 F.Supp. 380 (D.Mass.1970).