Oregon v. Mitchell/Separate Douglas

MR. JUSTICE DOUGLAS.

I dissent from the judgments of the Court insofar as they declare § 302 of the Voting Rights Act, 84 Stat. 318, unconstitutional as applied to state elections and concur in the judgments as they affect federal elections, but for different reasons. I rely on the Equal Protection Clause and on the Privileges and Immunities Clause of the Fourteenth Amendment.

I
The grant of the franchise to 18-year-olds by Congress is, in my view, valid across the board. [p136]

I suppose that, in 1920, when the Nineteenth Amendment was ratified giving women the right to vote, it was assumed by most constitutional experts that there was no relief by way of the Equal Protection Clause of the Fourteenth Amendment. In Minor v. Happersett, 21 Wall. 162, the Court held in the 1874 Term that a State could constitutionally restrict the franchise to men. While the Fourteenth Amendment was relied upon, the thrust of the opinion was directed at the Privileges and Immunities Clause with a subsidiary reference to the Due Process Clause. It was much later, indeed not until the 1961 Term — nearly a century after the Fourteenth Amendment was adopted — that discrimination against voters on grounds other than race was struck down.

The first case in which this Court struck down a statute under the Equal Protection Clause of the Fourteenth Amendment was Strauder v. West Virginia, 100 U.S. 303"]100 U.S. 303, decided in the 1879 Term. In the 1961 Term, we squarely held that the manner of apportionment of members of a state legislature raised a justiciable question under the Equal Protection Clause, 100 U.S. 303, decided in the 1879 Term. In the 1961 Term, we squarely held that the manner of apportionment of members of a state legislature raised a justiciable question under the Equal Protection Clause, Baker v. Carr, 369 U.S. 186. That case was followed by numerous others, e.g.: that one person could not be given twice or 10 times the voting power of another person in a state-wide election merely because he lived in a rural area or [p137] in the smallest rural county; that the principle of equality applied to both Houses of a bicameral legislature; that political parties receive protection under the Equal Protection Clause just as voters do.

The reapportionment cases, however, are not quite in point here, though they are the target of my Brother HARLAN's dissent. His painstaking review of the history of the Equal Protection Clause leads him to conclude that "political" rights are not protected, though "civil" rights are protected. The problem of what questions are "political" has been a recurring issue in this Court from the beginning, and we recently reviewed them all in Baker v. Carr, supra, and in Powell v. McCormack, 395 U.S. 486. Baker v. Carr was a reapportionment case, and Powell v. McCormack involved the exclusion from the House of Representatives of a Congressman. The issue of "political" question versus "justiciable" question was argued pro and con in those cases, and my Brother HARLAN stated in Baker v. Carr, 369 U.S. at 330 et seq., and on related occasions (Gray v. Sanders, 372 U.S. 368, 382; Wesberry v. Sanders, 376 U.S. 1, 20; Reynolds v. [p138] Sims, 377 U.S. 533, 589) his views on the constitutional dimensions of the "political" question in the setting of the reapportionment problem.

Those cases involved the question whether legislatures must be so structured as to reflect with approximate equality the voice of every voter. The ultimate question was whether, absent a proper apportionment by the legislature, a federal court could itself make an apportionment. That kind of problem raised issues irrelevant here. Reapportionment, as our experience shows, presented a tangle of partisan politics in which geography, economics, urban life, rural constituencies, and numerous other nonlegal factors play varying roles. The competency of courts to deal with them was challenged. Yet we held the issues were justiciable. None of those so-called "political" questions are involved here.

This case, so far as equal protection is concerned, is no whit different from a controversy over a state law that disqualifies women from certain types of employment, Goesaert v. Cleary, 335 U.S. 464, or that imposes a heavier punishment on one class of offender than on another whose crime is not intrinsically different. Skinner v. Oklahoma, 316 U.S. 535. The right to vote is, of course, different in one respect from the other rights in the economic, social, or political field which, as indicated in the Appendix to this opinion, are under the Equal Protection Clause. The right to vote is a civil right deeply embedded in the Constitution. Article I, § 2, provides that the House is composed of members "chosen . . . by the People" and the electors "shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." The Seventeenth Amendment states that Senators shall be "elected by the people." The Fifteenth Amendment speaks of the "right of citizens of the United States to vote" — not only in federal [p139] but in state elections. The Court in Ex parte Yarbrough, 110 U.S. 651, 665, stated:


 * This new constitutional right was mainly designed for citizens of African descent. The principle, however, that the protection of the exercise of this right is within the power of Congress, is as necessary to the right of other citizens to vote as to the colored citizen, and to the right to vote in general as to the right to be protected against discrimination.

It was in that tradition that we said in Reynolds v. Sims, supra, at 555,


 * The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.

This "right to choose, secured by the Constitution," United States v. Classic, 313 U.S. 299, 315, is a civil right of the highest order. Voting concerns "political" matters; but the right is not "political" in the constitutional sense. Interference with it has given rise to a long and consistent line of decisions by the Court; and the claim has always been upheld as justiciable. Whatever distinction may have been made, following the Civil War, between "civil" and "political" rights, has passed into history. In Harper v. Virginia Board of Elections, 383 U.S. 663, 669, we stated: "Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change." That statement is in harmony with my view of the Fourteenth Amendment, as expressed by my Brother BRENNAN:


 * We must therefore conclude that its framers understood their Amendment to be a broadly worded injunction capable of being interpreted [p140] by future generations in accordance with the vision and needs of those generations.

Post at 278. Hence, the history of the Fourteenth Amendment tendered by my Brother HARLAN is irrelevant to the present problem.

Since the right is civil and not "political," it is protected by the Equal Protection Clause of the Fourteenth Amendment which in turn, by § 5 of that Amendment, can be "enforced" by Congress.

In Carrington v. Rash, 380 U.S. 89, we held that Texas could not bar a person, otherwise qualified, from voting merely because he was a member of the armed services. Occupation, we held, when used to bar a person from voting, was that invidious discrimination which the Equal Protection Clause condemns. In Evans v. Cornman, 398 U.S. 419, we held that a State could not deny the vote to residents of a federal enclave when it treated them as residents for many other purposes. In Harper v. Virginia Board of Elections, 383 U.S. at 666, we held a State could not in harmony with the Equal Protection Clause keep a person from voting in state elections because of "the affluence of the voter or payment of any fee." In Kramer v. Union School District, 395 U.S. 621, we held that a person could not be barred from voting in school board elections merely because he was a bachelor. So far as the Equal Protection Clause was concerned, we said that the line between those qualified to vote and those not qualified turns on whether those excluded have "a distinct and direct interest in the school meeting decisions." Id. at 632. In Cipriano v. City of Houma, 395 U.S. 701, we held that a state law which gave only "property taxpayers" the right to vote on the issuance of revenue bonds of a municipal utility system violated equal protection as "the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike." Id. at 705. And only on June 23, 1970, we held in Phoenix v. Kolodziejski, 399 U.S. 204, that [p141] it violates equal protection to restrict those who may vote on general obligation bonds to real property taxpayers. We looked to see if there was any "compelling state interest" in the voting restrictions. We held that "nonproperty owners" are not "substantially less interested in the issuance of these securities than are property owners," id. at 212, and that, presumptively,


 * when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise.

Id. at 209. And as recently as November 9, 1970, we summarily affirmed a district court decision (310 F.Supp. 1172) on the basis of Kolodzejski. Parish School Board of St. Charles v. Stewart, post, p. 884, where Louisiana gave a vote on municipal bond issues only to "property taxpayers."

The powers granted Congress by § 5 of the Fourteenth Amendment to "enforce" the Equal Protection Clause are "the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18." Katzenbach v. Morgan, 384 U.S. 641, 650. As we stated in that case,


 * Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.

Id. at 651.

Congress might well conclude that a reduction in the voting age from 21 to 18 was needed in the interest of equal protection. The Act itself brands the denial of [p142] the franchise to 18-year-olds as "a particularly unfair treatment of such citizens in view of the national defense responsibilities imposed" on them. §.301(a)(1), Voting Rights Act, 84 Stat. 318. The fact that only males are drafted while the vote extends to females as well is not relevant, for the female component of these families or prospective families is also caught up in war, and hit hard by it. Congress might well believe that men and women alike should share the fateful decision.

It is said, why draw the line at 18? Why not 17? Congress can draw lines, and I see no reason why it cannot conclude that 18-year-olds have that degree of maturity which entitles them to the franchise. They are


 * generally considered by American law to be mature enough to contract, to marry, to drive an automobile, to own a gun, and to be responsible for criminal behavior as an adult.

Moreover, we are advised that, under state laws, mandatory school attendance does not, as a matter of practice, extend beyond the age of 18. On any of these items, the States, of course, have leeway to raise or lower the age requirements. But voting is "a fundamental matter in a free and democratic society," Reynolds v. Sims, 377 U.S. 533, 561-562. Where


 * fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.

Harper v. Virginia Board of Elections, 383 U.S. 663, 670. There, we were speaking of state restrictions on those rights. Here, we are dealing with the right of Congress to "enforce" the principles of equality enshrined in the Fourteenth Amendment. The right to "enforce" granted by § 5 of that Amendment is, as noted, parallel with the Necessary and Proper Clause, whose reach Chief Justice Marshall described in McCulloch v. [p143] Maryland, 4 Wheat. 316, 421:


 * Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Equality of voting by all who are deemed mature enough to vote is certainly consistent "with the letter and spirit of the constitution." Much is made of the fact that Art. I, § 4, of the Constitution gave Congress only the power to regulate the "Manner of holding Elections," not the power to fix qualifications for voting in elections. But the Civil War Amendments — the Thirteenth, Fourteenth, and Fifteenth — made vast inroads on the power of the States. Equal protection became a standard for state action and Congress was given authority to "enforce" it. See Katzenbach v. Morgan, 384 U.S. 641, 647. The manner of enforcement involves discretion; but that discretion is largely entrusted to the Congress, not to the courts. If racial discrimination were the only concern of the Equal Protection Clause, then across-the-board voting regulations set by the States would be of no concern to Congress. But it is much too late in history to make that claim, as the cases listed in the Appendix to this opinion show. Moreover, election inequalities created by state laws and based on factors other than race may violate the Equal Protection Clause, as we have held over and over again. The reach of § 5 to "enforce" equal protection by eliminating election inequalities would seem quite broad. Certainly there is [p144] not a word of limitation in § 5 which would restrict its applicability to matters of race alone. And if, as stated in McCulloch v. Maryland, the measure of the power of Congress is whether the remedy is consistent "with the letter and spirit of the constitution," we should have no difficulty here. We said in Gray v. Sanders, 372 U.S. 368, 381:


 * The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote.

It is a reasoned judgment that those who have such a large "stake" in modern elections as 18-year-olds, whether, in times of war or peace, should have political equality. As was made plain in the dissent in Colegrove v. Green, 328 U.S. 549, 566 (whose reasoning was approved in Gray v. Sanders, 372 U.S. 368, 379), the Equal Protection Clause does service to protect the right to vote in federal as well as in state elections.

I would sustain the choice which Congress has made.

II
I likewise find the objections that Arizona and Idaho make to the literacy and residence requirements of the 1970 Act to be insubstantial.

Literacy. We held in Lassiter v. Northampton Election Board, 360 U.S. 45, that a State could apply a literacy test in selecting qualified voters provided the test is not "discriminatory" and does not contravene "any restriction that Congress, acting pursuant to its constitutional powers, has imposed." Id. at 51. The question in these cases is whether Congress has the power under § 5 of the Fourteenth Amendment to bar literacy tests in all federal, state, or local elections.

Section 201 bars a State from denying the right to vote in any federal, state, or local election because of "any [p145] test or device" which is defined, inter alia, to include literacy. We traveled most of the distance needed to sustain this Act in Katzenbach v. Morgan, 384 U.S. 641, where we upheld the constitutionality of an earlier Act which prohibited the application of English literacy tests to persons educated in Puerto Rico. The power of Congress in § 5 to "enforce" the Equal Protection Clause was sufficiently broad, we held, to enable it to abolish voting requirements which might pass muster under the Equal Protection Clause, absent an Act of Congress. Id. at 648-651.

The question, we said, was whether the Act of Congress was "appropriate legislation to enforce the Equal Protection Clause":


 * It was well within congressional authority to say that this need of the Puerto Rican minority for the vote warranted federal intrusion upon any state interests served by the English literacy requirement. It was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations — the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed [p146] the sixth grade in a Puerto Rican school. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.

Id. at 653.

We also held that the Act might be sustained as an attack on the English language test as a device to discriminate. Id. at 654. And we went on to say that Congress might have concluded that,


 * as a means of furthering the intelligent exercise of the franchise, an ability to read or understand Spanish is as effective as ability to read English for those to whom Spanish language newspapers and Spanish language radio and television programs are available to inform them of election issues and governmental affairs.

Id. at 655.

We took a further step toward sustaining the present type of law in Gaston County v. United States, 395 U.S. 285. That decision involved a provision of the Voting Rights Act of 1965 which suspended the use of any "test or device," including literacy, as a prerequisite to registration in a State which was found by the Attorney General and the Director of the Census to have used it in any election on November 1, 1964, and in which less than 50% of the residents of voting age were registered or had voted. Gaston County, North Carolina, was so classified, and its literacy test was thereupon suspended. In a suit to remove the ban, we sustained it. We noted that Congress had concluded that


 * the County deprived its black residents of equal educational opportunities, which in turn deprived them of an equal chance to pass the literacy test.

Id. at 291. Congress, it was argued, should have employed a formula based on educational disparities between the races or one based on [p147] literacy rates. Id. at 292. But the choice of appropriate remedies is for Congress, and the range of available ones is wide. It was not a defect in the formula that some literate Negroes would be turned out by Negro schools.


 * It is only reasonable to infer that, among black children compelled to endure a segregated and inferior education, fewer will achieve any given degree of literacy than will their better-educated white contemporaries. And on the Government's showing, it was certainly proper to infer that Gaston County's inferior Negro schools provided many of its Negro residents with a subliterate education, and gave many others little inducement to enter or remain in school.

Id. at 295-296.

By like reasoning, Congress in the present legislation need not make findings as to the incidence of literacy. It can rely on the fact that most States do not have literacy tests; that the tests have been used at times as a discriminatory weapon against some minorities, not only Negroes, but Americans of Mexican ancestry, and American Indians; that radio and television have made it possible for a person to be well informed even though he may not be able to read and write. We know from the legislative history that these and other desiderata influenced Congress in the choice it made in the present legislation; and we certainly cannot say that the means used were inappropriate.

Residence. The residency requirements of § 202 relate only to elections for President and Vice President. Section 202 abolishes durational residency and provides [p148] for absentee voting provided that registration may be required 30 days prior to the election. The effect of § 202 is to reduce all state durational residency requirements to 30 days.

In presidential elections no parochial interests of the State, county, or city are involved. Congress found that a durational residency requirement "in some instances has the impermissible purpose or effect of denying citizens the right to vote." § 202(a)(4). It found in § 202(a)(3) that a durational residency requirement denies citizen their privileges and immunities.

The Seventeenth Amendment states that Senators shall be "elected by the people." Article I, § 2, provides [p149] that the House shall be chosen "by the People of the several States." The right to vote for national officers is a privilege and immunity of national citizenship. Ex parte Yarbrough, 110 U.S. 651; In re Quarles, 158 U.S. 532, 534; Twining v. New Jersey, 211 U.S. 78, 97; Burroughs v. United States, 290 U.S. 534; United States v. Classic, 313 U.S. 299, 315. [p150]

The Fourteenth Amendment provides that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Durational residency laws of the States had such effect, says Congress. The "choice of means" to protect such a privilege presents "a question primarily addressed to the judgment of Congress." Burroughs v. United States, supra, at 547. The relevance of the means which Congress adopts to the condition sought to be remedied, the degree of their necessity, and the extent of their efficacy are all matters for Congress. Id. at 548.

The judgment which Congress has made respecting the ban of durational residency in presidential elections is plainly a permissible one in its efforts under § 5 to "enforce" the Fourteenth Amendment.

APPENDIX TO OPINION OF DOUGLAS, J.
Cases which have struck down state statutes under the Equal Protection Clause other than statutes which discriminate on the basis of race.

STATUTES WHICH DISCRIMINATEDAGAINST CERTAIN BUSINESSES

Gulf, C. & S. F. R. Co. v. Ellis, 165 U.S. 150; Atchison, T. & S. F. R. Co. v. Vosburg, 238 U.S. 56 (railroad must pay attorney fees if it loses suit, but other businesses need not). Kentucky Finance Corp. v. Paramount Auto Exchange, 262 U.S. 544; Power Co. v. Saunders, 274 U.S. 490 (burdens placed upon out-of-state corporations in litigation).

STATUTES WHICH FAVORED CERTAIN BUSINESSES

Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (exemption from state antitrust law for agricultural goods); Smith v. Cahoon, 283 U.S. 553 (act exempting certain motor vehicles from insurance requirements); Mayflower [p151] Farms v. Ten Eyck, 297 U.S. 266 (act allowing certain milk dealers to sell at lower than the regulated price); Hartford Co. v. Harrison, 301 U.S. 459 (statute permitting mutual, but not stock, insurance companies to act through salaried representatives), and Morey v. Dowd, 354 U.S. 457 (American Express exempted from licensing requirements applied to "currency exchanges").

TAXING STATUTES STRUCK DOWN

Concordia Ins. Co. v. Illinois, 292 U.S. 535; Iowa-Des Moines Bank v. Bennett, 284 U.S. 239; Cumberland Coal Co. v. Board, 284 U.S. 23; Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389; Louisville Gas Co. v. Coleman, 277 U.S. 32; Hanover Fire Ins. Co. v. Harding, 272 U.S. 494; Schlesinger v. Wisconsin, 270 U.S. 230; Sioux City Bridge v. Dakota County, 260 U.S. 441; F. S. Royster Guano Co. v. Virginia, 253 U.S. 412; and Southern R. Co. v. Greene, 216 U.S. 400.

TREATMENT OF CONVICTED CRIMINALS

Rinaldi v. Yeager, 384 U.S. 305 (statute requiring unsuccessful criminal appellants who were in jail to pay cost of trial transcript); Baxstrom v. Herold, 383 U.S. 107 (statute denying convict a sanity hearing before a jury prior to civil commitment); and Skinner v. Oklahoma, 316 U.S. 535 (sterilization of some convicts).

INDIGENTS

Douglas v. California, 372 U.S. 353 (Rule of Criminal Procedure which did not provide counsel for appeal to indigents); and Shapiro v. Thompson, 394 U.S. 618 (denial of welfare benefits based on residency requirement).

LEGITIMACY

Glona v. American Guarantee Co., 391 U.S. 73 (mother denied right to sue for wrongful death of illegitimate [p152] child); and Levy v. Louisiana, 391 U.S. 68 (illegitimate children denied recovery for wrongful death of mother).

ALIENS

Truax v. Raich, 239 U.S. 33 (statute limiting the number of aliens that could be employed to 20%); and Takahshi v. Fish & Game Commission, 334 U.S. 410 (denial of fishing rights to aliens ineligible for citizenship).