Hall v. Beals/Dissent Brennan

Mr. Justice BRENNAN, dissenting.

I dissent from the direction to dismiss this case as moot. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), involved a challenge to the constitutionality of a statute which had been invoked to deny the appellants a place on the 1968 ballot. We were not persuaded in that case by the argument that the appeal should be dismissed since the 1968 election had been held and there was no possibility of granting any relief to appellants. Even though appellants did not allege they would seek a place on the ballot at future elections, we held that the constitutional question was one 'capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), and, therefore, that mootness would not prevent our decision of its merits. In my view the present case is an even stronger one for application of that principle. At stake here is the fundamental right to vote-the right 'preservative of other basic civil and political rights,' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); see also Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966), and the constitutional challenge of the amended Colorado statute is peculiarly evasive of review. This is because ordinarily a person's standing to make that challenge would not mature unless he had become a Colorado resident within two months prior to a presidential election. Barring resort to extraordinary expedients, that interval is obviously too short for the exhaustion of state administrative remedies and the completion of a lawsuit through filing of the complaint in a federal district court, convening of a three-judge court, trial, and review by this Court. True, today's virtual foreclosure of any opportunity for definitive judicial review may in some measure be prevented by resort to waiver of the requirement of exhaustion of administrative remedies, preferred calendar position, or even relaxation of the rules of ripeness to permit a person not yet a resident to challenge the statute on a showing of reasonable certainty that he would be moving to the State within the two-month period. But the difficulties which attend these expedients only buttress my conclusion that if mootness did not bar decision of the constitutional question in Moore v. Ogilvie, there is even more reason to hold that mootness does not bar decision of the constitutional question presented here.

Reaching the merits, I would reverse for the reasons stated by Mr. Justice MARSHALL in his dissenting opinion, which I join.

Mr. Justice MARSHALL, whom Mr. Justice BRENNAN joins, dissenting.

I agree with my Brother BRENNAN that this case is not moot. It involves one of those problems "capable of repetition, yet evading review," that call for relaxation of traditional concepts of mootness so that appellate review of important constitutional decisions not be permanently frustrated. Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969).

Indeed, one of the unfortunate consequences of a rigid view of mootness in cases such as this is that the state and lower federal courts may well be left as the courts of last resort for challenges of relatively short state residency requirements. Those courts may, as the District Court apparently did in this case, consider themselves bound by this Court's summary per curiam affirmance in Drueding v. Devlin, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792 (1965), aff'g 234 F.Supp. 721 (D.C.Md.1964), which upheld a one-year residency requirement for voting in a presidential election. It seems to me clear that Drueding is not good law today. The difficulties of achieving review in this Court in cases of this sort, combined with this misleading precedent, lead me to indicate briefly my view of the merits of the case before us.

In Drueding, the District Court tested the residency requirement there challenged by the equal-protection standard applied to ordinary state regulations: that is, restrictions need bear only some rational relationship to a legitimate end. 234 F.Supp., at 724-725, citing McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). But if it was not clear in 1965 it is clear now that once a State has determined that a decision is to be made by popular vote, it may exclude persons from the franchise only upon a showing of a compelling interest, and even then only when the exclusion is the least restrictive method of achieving the desired purpose. Harper v. Virginia Board of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); Kramer v. Union Free School District No. 15, 395 U.S. 621, 626-628, 89 S.Ct. 1886, 1888, 1889, 23 L.Ed.2d 583 (1969). Close scrutiny is thus demanded of Colorado's requirement that in order to vote for President and Vice President, one must not only be a resident of that State, but one must have been a resident for a certain time before the election six months when this suit was brought; now, two months.

In support of this requirement, it is urged that the electoral college system as embodied in the Constitution contemplates the election of the President and Vice President, not by the Nation as such, but rather by the individual States, each acting as a community. Hence, the argument goes, each State may legislate to ensure that those voting for its presidential electors are truly members of the state community.

The argument is surely correct as far as it goes, and this Court has often reaffirmed the power of the States to require their voters to be bona fide residents. Carrington v. Rash, 380 U.S. 89, 93-94, 85 S.Ct. 775, 778-779, 13 L.Ed.2d 675 (1965); Kramer v. Union Free School District No. 15, supra, 395 U.S., at 625, 89 S.Ct. at 1889. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residency is questioned, but because they are recent rather than longtime residents.

Nor is it a justification to say that the State has certain parochial interests at stake in the election of a President, and that it may require of its voters a period of residency sufficiently lengthy to impress upon them the local viewpoint. This is precisely the sort of argument that this Court, in Carrington v. Rash, supra, found insufficient to justify Texas' exclusion from voting in state elections of servicemen who had acquired Texas residency after they had entered the service. The State argued that military men newly moved to Texas might not have local interests sufficiently at heart. This Court replied:

'But if they are in fact residents, with the intention of     making Texas their home indefinitely, they, as all other      qualified residents, have a right to an equal opportunity for      political representation. * *  * 'Fencing out' from the      franchise a sector of the population because of the way they      may vote is constitutionally impermissible.' 380 U.S., at 94,      85 S.Ct., at 779.

Similarly here, the fact that newly arrived Coloradans may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral vote of their new home State.

Nor does it suffice to argue that a durational residency requirement ensures that voters have had the time to gain knowledge of local issues, as distinguished from indoctrination in local attitudes. Even if it can be assumed that new residents know less about local issues than old residents, issues of this sort play so small a part in the election of the President and Vice President today that this can hardly be considered a compelling interest sufficient to justify entirely depriving millions of Americans of any opportunity to vote for their most important leaders. Cf. Kramer v. Union Free School District, No. 15, supra, 395 U.S., at 633, 89 S.Ct., at 1892.

The appellees argue that the State's durational residency requirement is necessary to ensure the purity of its elections. The impurities feared ('dual voting' and 'colonization') all involve the same evil-voting by nonresidents, either singly or in blocks. But it is difficult to see how the durational residency requirement in any way protects against nonresident voting. The qualifications of the would-be voter in Colorado are determined when he registers to vote, which he may do until 20 days before the election. Colo.Rev.Stat.Ann. § 49-4-2(1) (Supp.1965). At that time, he establishes his qualifications, including durational residence, by oath. Colo.Rev.Stat.Ann. § 49-4-17 (Supp.1965). The nonresident, seeking to vote, can as easily falsely swear that he has been a resident for a certain time, as he could falsely swear that he is presently a resident. The requirement of the additional element to be sworn-the duration of residency-adds no discernible protection against 'dual voting' or 'colonization' by voters willing to lie. Insofar as appears from the Colorado election laws, and from the record in this case, the State makes no independent attempt to go behind the voter's oath to determine his qualifications. See Colo.Rev.Stat.Ann. § 49-13 (Supp.1965).

Moreover, even if an enforcement effort were made to prevent nonresident voting, and the exclusion of those taking up residency within two months of the election were used as a method of eliminating cases on the borderline between new residents and mere visitors, such an approach would be constitutionally overbroad. In Carrington v. Rash, supra, the State similarly argued that it was in many instances difficult to tell whether persons moving to Texas while they were in the service had the genuine intent to remain that establishes residency. Thus, the argument went, the administrative convenience of avoiding difficult factual determinations justified a blanket exclusion of all those in the doubtful category. The Court rejected such a 'conclusive presumption' approach, noting that 'States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State.' 380 U.S., at 96, 85 S.Ct., at 780. Cf. Harman v. Forssenius, 380 U.S. 528, 542-543, 85 S.Ct. 1177, 1186, 14 L.Ed.2d 50 (1965).

Similarly here, a conclusive presumption that a recently established resident is not a resident at all for voting purposes is simply an overbroad burden upon the right to vote. In most cases, it is no more difficult to determine whether one recently arrived in the community has sufficient intent to remain to qualify as a resident than it is to make a similar determination for an older inhabitant. That there are borderline cases among the new arrivals is not a constitutionally sufficient reason for denying the vote to those who have settled in good faith.

Finally, appellees argue that the logistics of preparing for an election require that there be some time between the close of registration and the election itself. This period serves as a kind of residency requirement, in that persons establishing residency after the voting lists are closed are barred from voting. Yet this requirement is justified by compelling administrative needs. And, it is argued, once some period of this sort is conceded to be required, it is arbitrary for the courts to determine as a matter of constitutional law how long it may be.

But this argument is unconvincing here. Colorado has apparently judged that administrative needs require 20 days between the close of registration and election day. Colo.Rev.Stat.Ann. § 49-4-2(2) (Supp.1965). Appellants have not challenged this statute. What they have challenged is the separate and additional requirement that voters, all of whom register before the 20-day cutoff date, also must have been residents of the State at least six months-by recent admendment two months before the election. Colo.Rev.Stat.Ann. § 49-24-1 (1963). For the argument from logistical need to save the durational residency requirement, the State would have to show some additional administrative need for this further burden on the right to vote. No such showing has been made. In my view the Colorado durational residency requirement for voters for President and Vice President violates the Equal Protection Clause, and appellants are entitled to reversal of the District Court judgment that upheld that requirement.