Petitioner, a member of the armed services who moved to Texas in
1962 and is concededly domiciled and intends to make his permanent
home there, was refused the right to vote because of a provision of
the Texas Constitution permitting a serviceman to vote only in the
county where he resided at the time of entry into service.
Held: A State can impose a reasonable residence
requirements for voting, but it cannot, under the Equal Protection
Clause, deny the ballot to a
bona fide resident merely
because he is a member of the armed services. Pp.
380 U. S.
89-97.
378 S.W.2d
304, reversed.
MR. JUSTICE STEWART delivered the opinion of the Court.
A provision of the Texas Constitution prohibits "[a]ny member of
the Armed Forces of the United States" who moves his home to Texas
during the course of his military duty from ever voting in any
election in that State "so long as he or she is a member of the
Armed Forces." [
Footnote 1]
Page 380 U. S. 90
The question presented is whether this provision, as construed
by the Supreme Court of Texas in the present case, [
Footnote 2] deprives the petitioner of a
right secured by the Equal Protection Clause of the Fourteenth
Amendment. The Supreme Court of Texas decided that it does not and
refused to issue a writ of mandamus ordering petitioner's local
election officials to permit him to vote, two Justices dissenting.
378 S.W.2d
304. We granted certiorari, 379 U.S. 812.
The petitioner, a sergeant in the United States Army, entered
the service from Alabama in 1946 at the age of 18.
Page 380 U. S. 91
The State concedes that he has been domiciled in Texas since
1962, and that he intends to make his home there permanently. He
has purchased a house in El Paso, where he lives with his wife and
two children. He is also the proprietor of a small business there.
The petitioner's post of military duty is not in Texas, but at
White Sands, New Mexico. He regularly commutes from his home in El
Paso to his Army job at White Sands. He pays property taxes in
Texas, and has his automobile registered there. But for his
uniform, the State concedes that the petitioner would be eligible
to vote in El Paso County, Texas.
Texas has unquestioned power to impose reasonable residence
restrictions of the availability of the ballot.
Pope v.
Williams, 193 U. S. 621.
There can be no doubt either of the historic function of the States
to establish, on a nondiscriminatory basis, and in accordance with
the Constitution, other qualifications for the exercise of the
franchise. Indeed, "[t]he States have long been held to have broad
powers to determine the conditions under which the right of
suffrage may be exercised."
Lassiter v. Northampton County Bd.
of Elections, 360 U. S. 45,
360 U. S. 50.
Compare United States v. Classic, 313 U.
S. 299;
Ex parte Yarbrough, 110 U.
S. 651.
"In other words, the privilege to vote in a state is within the
jurisdiction of the state itself, to be exercised as the 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, supra, 193 U.S. at
193 U. S.
632.
This Texas constitutional provision, however, is unique.
[
Footnote 3] Texas has said
that no serviceman may ever
Page 380 U. S. 92
acquire a voting residence in the State so long as he remains in
service. It is true that the State has treated all members of the
military with an equal hand. And mere classification, as this Court
has often said, does not of itself deprive a group of equal
protection.
Williamson
Page 380 U. S. 93
v. Lee Optical Co., 348 U. S. 483. But
the fact that a State is dealing with a distinct class and treats
the members of that class equally does not end the judicial
inquiry.
"The courts must reach and determine the question whether the
classifications drawn in a statute are reasonable in light of its
purpose. . . ."
McLaughlin v. Florida, 379 U.
S. 184,
379 U. S.
191.
It is argued that this absolute denial of the vote to servicemen
like the petitioner fulfills two purposes. First, the State says it
has a legitimate interest in immunizing its elections from the
concentrated balloting of military personnel, whose collective
voice may overwhelm a small local civilian community. Secondly, the
State says it has a valid interest in protecting the franchise from
infiltration by transients, and it can reasonably assume that those
servicemen who fall within the constitutional exclusion will be
within the State for only a short period of time.
The theory underlying the State's first contention is that the
Texas constitutional provision is necessary to prevent the danger
of a "takeover" of the civilian community resulting from
concentrated voting by large numbers of military personnel in bases
placed near Texas towns and cities. A base commander, Texas
suggests, who opposes local police administration or teaching
policies in local schools might influence his men to vote in
conformity with his predilections. Local bond issues may fail, and
property taxes stagnate at low levels because military personnel
are unwilling to invest in the future of the area. We stress -- and
this a theme to be reiterated -- that Texas has the right to
require that all military
Page 380 U. S. 94
personnel enrolled to vote be
bona fide residents of
the community. 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.
Cf. Gray v. Sanders,
372 U. S. 368.
"Fencing out" from the franchise a sector of the population because
of the way they may vote is constitutionally impermissible. "[T]he
exercise of rights so vital to the maintenance of democratic
institutions,"
Schneider v. New Jersey, 308 U.
S. 147, cannot constitutionally be obliterated because
of a fear of the political views of a particular group of
bona
fide residents. Yet that is what Texas claims to have done
here
The State's second argument is that its voting ban is justified
because of the transient nature of service in the Armed Forces.
[
Footnote 4] As the Supreme
Court of Texas stated:
"Persons in military service are subject at all times to
reassignment, and hence to a change in their actual residence . . .
they do not elect to be where they are. Their reasons for being
where they are . . . cannot be the same as [those of] the permanent
residents."
378 S.W.2d at 306. The Texas Constitution provides that a United
States citizen can become a qualified elector if he has
"resided in this State one (1) year next preceding an election
and the last six (6) months within the district or county
Page 380 U. S. 95
in which such person offers to vote."
Article VI, § 2, Texas Constitution. It is the integrity of this
qualification of residence which Texas contends is protected by the
voting ban on members of the Armed Forces.
But only where military personnel are involved has Texas been
unwilling to develop more precise tests to determine the
bona
fides of an individual claiming to have actually made his home
in the State long enough to vote. The State's law reports disclose
that there have been many cases where the local election officials
have determined the issue of
bona fide residence. These
officials and the courts reviewing their actions have required a
"freely exercised intention" of remaining within the State,
Harrison v. Chesshir, 316 S.W.2d 909, 915. The
declarations of voters concerning their intent to reside in the
State and in a particular county is often not conclusive; the
election officials may look to the actual facts and circumstances.
Stratton v. Hall, 90 S.W.2d 865, 866. By statute,
[
Footnote 5] Texas deals with
particular categories of citizens who, like soldiers, present
specialized problems in determining residence. Students at colleges
and universities in Texas, patients in hospitals and other
institutions within the State, and civilian employees of the United
States Government may be as transient as military personnel. But
all of them are given at least an opportunity to show the election
officials that they are
bona fide residents.
Indeed, Texas has been able, in other areas, to winnow
successfully from the ranks of the military those whose residence
in the State is
bona fide. In divorce cases, for example,
the residence requirement for jurisdictional purposes, like the
requirement for the vote, is one year in the State and six months
in the forum county. The Texas courts have held that merely being
stationed within the
Page 380 U. S. 96
State may be insufficient to show residence, even though the
statutory period is fulfilled. Even a declared intention to
establish a residence may be not enough. "However, the fact that
one is a soldier or sailor does not deprive him of the right to
change his residence or domicile and acquire a new one."
Robinson v. Robinson, 235 S.W.2d 228, 230.
We deal here with matters close to the core of our
constitutional system. "The right . . . to choose,"
United
States v. Classic, 313 U. S. 299,
313 U. S. 314,
that this Court has been so zealous to protect means, at the least,
that States may not casually deprive a class of individuals of the
vote because of some remote administrative benefit to the State.
Oyama v. California, 332 U. S. 633. By
forbidding a soldier ever to controvert the presumption of
nonresidence, the Texas Constitution imposes an invidious
discrimination in violation of the Fourteenth Amendment.
"[T]here is no indication in the Constitution that . . .
occupation affords a permissible basis for distinguishing between
qualified voters within the State."
Gray v. Sanders, 372 U. S. 368,
372 U. S.
380.
We recognize that special problems may be involved in
determining whether servicemen have actually acquired a new
domicile in a State for franchise purposes. We emphasize that Texas
is free to take reasonable and adequate steps, as have other
States, [
Footnote 6] to see
that all applicants for the vote actually fulfill the requirements
of
bona fide residence. But this constitutional provision
goes beyond such rules. "[T]he presumption here created is . . .
definitely conclusive -- incapable of being overcome by proof of
the most positive character."
Heiner v. Donnan,
285 U. S. 312
285 U. S. 324.
All servicemen not residents of Texas before induction come within
the provision's sweep. Not one of them can ever vote in Texas, no
matter how
Page 380 U. S. 97
long Texas may have been his true home. "[T]he uniform of our
country . . . [must not] be the badge of disfranchisement for the
man or woman who wears it." [
Footnote 7]
Reversed.
THE CHIEF JUSTICE took no part in the consideration or decision
of this case.
[
Footnote 1]
Texas Constitution, Art. VI, § 2, Vernon's Ann.St.;
"Any member of the Armed Forces of the United States or
component branches thereof, or in the military service of the
United States, may vote only in the county in which he or she
resided at the time or entering such service so long as he or she
is a member of the Armed Forces."
The constitutional provision has been implemented by Article
5.02 of the Election Code of Texas, V.A.T.S. which provides, in
part:
"Notwithstanding any other provision of this section, any member
of the Armed Forces of the United States or component branches
thereof who is on active duty in the military service of the United
States may vote only in the county in which he or she resided at
the time of entering such service so long as he or she is a member
of the Armed Forces. This restriction applies only to members of
the Armed Forces who are on active duty, and the phrase 'time of
entering such service' means the time of commencing the current
active duty. A reenlistment after a temporary separation from
service upon termination of a prior enlistment shall not be
construed to be the commencement of a new period of service, and in
such case the county in which the person resided at the time of
commencing active service under the prior enlistment shall be
construed to be the county of residence at the time of entering
service."
In
Mabry v. Davis, 232 F.
Supp. 930 (D.C.W.D.Texas 1964), a three-judge court recently
declared this same provision unconstitutional as violating the
Equal Protection Clause of the Fourteenth Amendment.
[
Footnote 2]
"The self-evident purpose of the amendment to the Constitution
was to prevent a person entering military service as a resident
citizen of a county in Texas from acquiring a different voting
residence in Texas during the period of his military service,
and to prevent a person entering military service as a resident
citizen of another state from acquiring a voting residence in Texas
during the period of military service."
378 S.W.2d
304, 305. (Emphasis supplied.)
[
Footnote 3]
While many States have rules which prescribe special tests for
qualifying military personnel for the vote, none goes so far as
completely to foreclose from the franchise all servicemen who were
nonresidents before induction.
One other State, Nevada, has a provision which on its face seems
as prohibitory as Art. VI, § 2, of the Texas Constitution. The
Nevada Constitution provides that:
"The right of suffrage shall be enjoyed by all persons,
otherwise entitled to the same, who may be in the military or naval
service of the United States;
provided, the votes so cast shall
be made to apply to the county and township of which said voters
were bona fide residents at the time of their entry into such
service. . . ."
Nev.Const. Art. 2, § 3. (Emphasis supplied.) But the Attorney
General of Nevada has recently interpreted this provision to mean
that servicemen such as petitioner can establish a voting residence
in the State if they show their intent to remain by "clear and
unequivocal evidence." Op.Atty.Gen.Nev. 194, 197 (1961-1962).
Under the Federal Voting Assistance Act of 1955, 69 Stat. 584,
the Department of Defense collects and distributes to military
personnel an analysis of state voter qualifications as applied to
servicemen. The 1964 report states:
"For voting purposes, the legal residence of members of the
Armed Forces is generally the State from which they entered
military service. This home State remains as the only State in
which a person in the Armed Forces has the legal right to vote
unless certain conditions are met. Almost all States except Texas
will permit persons in the Armed Forces to acquire a new voting
residence within their jurisdiction. When this is accomplished,
voting rights in the old State of residence are lost."
Voting Information 1964, Department of Defense, p. x.
Constitutional and statutory provisions of other States which
treat the military specially do not absolutely prohibit any
opportunity to prove residence. The Georgia Constitution, for
example, provides that no member of the Armed Forces "shall acquire
the rights of an elector by reason of being stationed on duty in
this State." Georgia Const., § 2-702, art. 2, § 1, par. 2;
see Indiana Const., Art. 2, § 3; Oregon Const., Art. II, §
5; Alabama Code, Tit. 17, § 17. Other States distinguish between
servicemen who live on the base and those who have acquired homes
in the community.
Cf. Restatement, Conflict of Laws § 21,
Comment
c.
[
Footnote 4]
The constitutional provision at issue in this case seems
designed more as a rule prohibiting a serviceman from ever
acquiring a voting residence than a disqualification from the
franchise. Prior to 1954, Art. VI, § 1 of the Texas Constitution
included among the "classes of persons . . . not . . . allowed to
vote in this State": "5. All soldiers, marines and seamen employed
in the service of the Army or Navy of the United States." This
clause was eliminated, according to the annotator's notes, to
"confer the privilege to vote upon members of the regular
establishment of the Armed Forces." 9 Vernon's Texas Civ.Stat. 19
(1964 Supp.). The 1954 constitutional amendment, involved in this
case, was added to the section which establishes residence
qualifications for voters.
[
Footnote 5]
9 Vernon's Tex.Civ.Stat. (Election Code) Art. 5.08.
[
Footnote 6]
See note 3
supra.
[
Footnote 7]
Message of Governor Ellis Arnall to General Assembly of Georgia,
p. 5 (January 3, 1944).
MR. JUSTICE HARLAN, dissenting.
I
Anyone not familiar with the provisions of the Fourteenth
Amendment, the history of that Amendment, and the decisions of the
Court in this constitutional area, would gather from today's
opinion that it is an established constitutional tenet that state
laws governing the qualifications of voters are subject to the
limitations of the Equal Protection Clause. Yet any dispassionate
survey of the past will reveal that the present decision is the
first to so hold.
In making this holding, the Court totally ignores, as it did in
last Term's reapportionment cases,
Reynolds v. Sims,
377 U. S. 533 (and
companion cases), all the history of the Fourteenth Amendment and
the course of judicial decision which together plainly show that
the Equal Protection Clause was not intended to touch state
electoral matters.
See my dissenting opinion in
Reynolds v. Sims at
377
U.S. 589. If that history does not prove what I think it
does, we are at least entitled to be told why. While I cannot
express surprise over today's decision after the reapportionment
cases, which, though bound to follow, I continue to believe are
constitutionally indefensible, I can and do respectfully, but
earnestly, record my protest
Page 380 U. S. 98
against this further extension of federal judicial power into
the political affairs of the States. The reapportionment cases do
not require this extension. They were concerned with methods of
constituting state legislatures; this case involves state voter
qualifications. The Court is quite right in not even citing them.
[
Footnote 2/1]
I deplore the added impetus which this decision gives to the
current tendency of judging constitutional questions
Page 380 U. S. 99
on the basis of abstract "justice" unleashed from the limiting
principles that go with our constitutional system. Constitutionally
principled adjudication, high in the process of which is due
recognition of the just demands of federalism, leaves ample room
for the protection of individual rights. A constitutional democracy
which, in order to cope with seeming needs of the moment, is
willing to temporize with its basic distribution and limitation of
governmental powers will sooner or later find itself in
trouble.
For reasons set forth at length in my dissent in
Reynolds, I would dismiss the complaint in this case for
failure to state a claim of federal right.
II
I also think this decision wrong even on the Court's premise
that it is free to extend the Equal Protection Clause so as to
reach state-established voter qualifications. The question here is
simply whether the differentiation in voting eligibility
requirements which Texas has made is founded on a rational
classification. In judging this question, I think that the dictates
of history, even though the Court has seen fit to disregard them
for the purpose of determining whether it should get into the
matter at all, should cause the Court to take a hard look before
striking down a traditional state policy in this area as rationally
indefensible.
Essentially, the Texas statute establishes a rule that
servicemen from other States stationed at Texas bases are to be
treated as transients for voting purposes. No one disputes that, in
the vast majority of cases, Texas view of things accords with fact.
Although it is doubtless true that this rule may operate in some
instances contrary to the actual facts, I do not think that the
Federal Constitution prevents the State from ignoring that
possibility in the overall picture. In my opinion, Texas
Page 380 U. S. 100
could rationally conclude that such instances would likely be
too minimal to justify the administrative expenditure involved in
coping with the "special problems" (
ante, p.
380 U. S. 96)
entailed in winnowing out the
bona fide permanent
residents from among the transient servicemen living off base and
sending their children to local schools.
Beyond this, I think a legitimate distinction may be drawn
between those who come voluntarily into Texas in connection with
private occupations and those ordered into Texas by military
authority. Residences established by the latter are subject to the
doubt, not present to the same degree with the former, that, when
the military compulsion ends, so also may the desire to remain in
Texas.
And finally, I think that Texas, given the traditional American
notion that control of the military should always be kept in
civilian hands emphasized in the case of Texas by its own special
historical experience, [
Footnote
2/2] could
Page 380 U. S. 101
rationally decide to protect state and local politics against
the influences of military voting strength by, in effect,
postponing the privilege of voting otherwise attaching to a
service-acquired domicile until the serviceman becomes a civilian
and by limiting Texas servicemen to voting in the counties of their
original domicile. [
Footnote 2/3]
Such a policy on Texas' part may seem to many unduly provincial in
light of modern conditions, but it cannot, in my view, be said to
be unconstitutional.
Thus, whether or not this Court has subject matter jurisdiction
in this case, the judgment of the Supreme Court of Texas should not
be disturbed.
[
Footnote 2/1]
None of the cases on which the Court does rely lends any support
to its decision.
In
Pope v. Williams, 193 U. S. 621, the
Court upheld a Maryland statute which required voters to have been
registered in the State for at least a year. The Court said of the
right to vote:
"It is not a privilege springing from citizenship of the United
States. . . . It 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 the 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
[obviously referring to the Fifteenth and not the Fourteenth
Amendment]. . . . The question whether the conditions prescribed by
the state might be regarded by others as reasonable or unreasonable
is not a Federal one."
193 U.S. at
193 U. S.
632-633.
Lassiter v. Northampton County Election Bd.,
360 U. S. 45,
upheld the literacy test applied in North Carolina against an
attack made on its face. The Court noted that:
"Of course, a literacy test, fair on its face, may be employed
to perpetuate that discrimination which the
Fifteenth
Amendment was designed to uproot."
360 U.S. at
360 U. S. 53.
(Emphasis added.)
Gray v. Sanders, 372 U. S. 368,
struck down Georgia's county unit system for counting votes in a
party primary election for the nomination of a United States
Senator. It did not deal with voter qualifications.
United States v. Classic, 313 U.
S. 299, dealt with stuffing ballot boxes, and
Ex
parte Yarbrough, 110 U. S. 651,
with intimidation of Negroes attempting to vote. Neither dealt with
voter qualifications.
None of the other federal cases cited by the Court was concerned
in any way with voting.
[
Footnote 2/2]
The 1837 election law of the Republic of Texas, § 9, provided
"That regular enlisted soldiers, and volunteers for during the war,
shall not be eligible to vote for civil officers." 2 Laws of
Republic of Texas, p. 8, in 1 Gammel, Laws of Texas, p. 1350.
"This provision was no doubt inspired by the mutinous conduct of
the nonresident volunteers who had been recruited in the United
States after the Battle of San Jacinto. They had defied the
provisional government, and, on one occasion in July, 1836, had
sent an officer to arrest President David G. Burnett and his
cabinet to bring them to trial before the army. They had continued
their rebellious conduct after Sam Houston became the first
president under the Constitution of 1836. It was not until May,
1837, that Houston was able to dissolve the army and eliminate this
threat to civil authority. This provision disfranchising soldiers
in the regular army was placed in the 1845 Constitution of the
State of Texas, and has remained in each succeeding constitution.
It was modified in 1932 to exempt the National Guard and reserve
and retired officers and men."
McCall, History of Texas Election Laws, 9 Vernon's
Ann.Tex.Civ.Stat., p. XVII-XVIII (1952).
Other States which had similar provisions in their early
constitutions included Alabama, Const. of 1819, Art. III, § 5;
Arkansas, Const. of 1836, Art. IV, § 2; Indiana, Const. of 1816,
Art. VI, § 1; Louisiana, Const. of 1845, Art. 12; Missouri, Const.
of 1820, Art. III, § 10; South Carolina, Const. of 1790 (as amended
in 1810), Art. I, § 4; Virginia, Const. of 1830, Art. III, §
14.
The 1932 amendment to the Texas Constitution was replaced in
1954 by the present provision.
[
Footnote 2/3]
Tex.Const., Art. VI, § 2, quoted in Court's opinion,
ante, n 1.