Appellants, who moved to Colorado in June, 1968, were refused
permission to vote in the November, 1968, presidential election
because they could not meet Colorado's six-month statutory
residency requirement. They brought this class action challenging
the constitutionality of that restriction and seeking,
inter
alia, mandamus and injunctive relief. The District Court
upheld the statute and dismissed the complaint. After appellants
appealed to this Court, the residency period for presidential
elections was reduced to two months, and appellants also challenge
that requirement in this Court.
Held:
1. The amendment of the residency statute, under which
appellants could have voted in the 1968 election, has mooted this
case.
2. Appellants cannot represent a class (here, Colorado voters
disqualified by the two-month requirement) to which they never
belonged.
3. The contingencies which would have to occur before appellants
could be disenfranchised in Colorado in the next presidential
election are too speculative to warrant this Court's passing on the
substantive issues of this case.
Moore v. Ogilvie,
394 U. S. 814,
distinguished.
292 F.
Supp. 610, vacated and remanded.
Page 396 U. S. 46
PER CURIAM.
The appellants moved from California to Colorado in June, 1968.
They sought to register to vote in the ensuing November
presidential election, but were refused permission because they
would not, on election day, have satisfied the six-month residency
requirement that Colorado then impose for eligibility to vote in
such an election. [
Footnote 1]
The appellants then commenced the present
Page 396 U. S. 47
class action against the appellees, electoral officials of El
Paso County, Colorado. Their complaint challenged the six-month
residency requirement as a violation of the Equal Protection, Due
Process, and Privilege and Immunities Clauses of the Constitution.
For relief, they sought (1) a writ of mandamus compelling the
appellees to register them for the upcoming presidential election;
(2) an injunction restraining the enforcement and operation of the
Colorado residency laws insofar as they applied to the presidential
election, and (3) a direction that the appellees register the
appellants and allow them to vote
"on a conditional basis, so that should either party choose to
appeal to the Supreme Court of the United States and such appeal
should run past the time of the National Election on November 5,
1968, . . . the relief sought by [the appellants will] not become
moot. [
Footnote 2]"
On October 30, the three-judge District Court entered judgment
for the appellees and dismissed the complaint, holding that the
six-month requirement was not unconstitutional.
Hall v.
Beals, 292 F.
Supp. 610 (D.C. Colo.). [
Footnote 3] As a result, the appellants did not vote in
the 1968 presidential election. They took a direct appeal to this
Court pursuant to 28 U.S.C. § 1253, and we noted
Page 396 U. S. 48
probable jurisdiction, 394 U.S. 1011. Thereafter, the Colorado
Legislature reduced the residency requirement for a presidential
election from six months to two months.
The 1968 election is history, and it is now impossible to grant
the appellants the relief they sought in the District Court.
Further, the appellants have now satisfied the six-month residency
requirement of which they complained. But apart from these
considerations, the recent amendatory action of the Colorado
Legislature has surely operated to render this case moot. We review
the judgment below in light of the Colorado statute as it now
stands, not as it once did.
Thorpe v. Housing Authority,
393 U. S. 268,
393 U. S.
281-282;
United States v. Alabama, 362 U.
S. 602,
362 U. S. 604;
Hines v. Davidowitz, 312 U. S. 52,
312 U. S. 60;
Carpenter v. Wabash R. Co., 309 U. S.
23,
309 U. S. 26-27;
United States v. Schooner
Peggy, 1 Cranch 103,
5
U. S. 110. And, under the statute as currently written,
the appellants could have voted in the 1968 presidential election.
The case has therefore lost its character as a present, live
controversy of the kind that must exist if we are to avoid advisory
opinions on abstract propositions of law.
Golden v.
Zwickler, 394 U. S. 103,
394 U. S. 110;
Baker v. Carr, 369 U. S. 186,
369 U. S. 204;
Mills v. Green, 159 U. S. 651,
159 U. S. 653.
The appellants object now to the two-month residency requirement as
vigorously as they did to the six-month rule in effect when they
brought suit. They say that such statutes, in Colorado and
elsewhere, continue to have an adverse effect upon millions of
voters throughout the Nation. But the appellants' opposition to
residency requirements in general cannot alter the fact that, so
far as they are concerned, nothing in the Colorado legislative
scheme as now written adversely affects either their present
interests or their interests at the time this litigation was
commenced. Nor does the result differ
Page 396 U. S. 49
because the appellants denominated their suit a class action on
behalf of disenfranchised voters. The appellants "cannot represent
a class of [which] they are not a part,"
Bailey v.
Patterson, 369 U. S. 31,
369 U. S. 32-33
-- that is, the class of voters disqualified in Colorado by virtue
of the new two-month requirement, a class of which the appellants
have never been members.
Nothing in
Moore v. Ogilvie, 394 U.
S. 814, is to the contrary. There, we invalidated an
Illinois statute requiring that independent candidates for
presidential elector obtain signatures on their nominating
petitions from voters distributed through the State. We noted that,
even though the 1968 election was over,
"the burden . . . placed on the nomination of candidates for
state-wide offices remains and controls future elections, as long
as Illinois maintains her present system as she has done since
1935."
394 U.S. at
394 U. S. 816.
The problem before us was "
capable of repetition, yet evading
review'" not only because the same restriction on Moore's candidacy
that had adversely affected him in 1968 could do so again in 1972,
but because Illinois, far from having altered its statutory scheme
for the future benefit of those situated similarly to Moore, had
adhered for over 30 years to the same electoral policy, with no
indication of change.
Here, by contrast, the appellants will face disenfranchisement
in Colorado in 1972 only in the unlikely event that they first move
out of the State and then reestablish residence there within two
months of the presidential election in that year. Or they may take
up residence in some other State, and, in 1972, face
disqualification under that State's law. But such speculative
contingencies afford no basis for our passing on the substantive
issues the appellants would have us decide with respect
Page 396 U. S. 50
to the now-amended law of Colorado.
Golden v. Zwickler,
supra.
The judgment of the District Court is vacated, and the case is
remanded with directions to dismiss the cause as moot.
It is so ordered.
[
Footnote 1]
Colo.Rev.Stat.Ann. § 49-24-1 (1963) provided:
"
Eligibility of new resident to vote. -- Any citizen of
the United States who shall have attained the age of twenty-one
years, shall have resided in this state not less than six months
next preceding the election at which he offers to vote, in the
county or city and county not less than ninety days, and in the
precinct not less than fifteen days, and shall have been duly
registered as required by the provisions of this article, shall
have the right to vote as a new resident for presidential and
vice-presidential electors."
The appellant Richard Hall went to the office of the appellee
Beals on or about August 1, 1968, to request that his wife and he
be allowed to vote in the presidential election. Upon denial of his
application, he wrote to the Colorado Secretary of State to ask
that his wife and he be allowed to vote despite the six-month
residency requirement. On September 6, the State Election Office
informed the appellants they would not be permitted to vote.
Apart from the special provision relating to the eligibility of
new residents to vote in a presidential election, Colorado requires
that persons desiring to vote in general, primary, and special
elections must have resided in the State for one year.
Colo.Rev.Stat.Ann. § 49-3-1(1)(c) (1963).
[
Footnote 2]
The request for relief continued:
"Should Plaintiffs win an eventual appeal, the Defendant
Election Officials shall be directed to count Plaintiffs' votes as
normally cast and valid ballots; should Plaintiffs lose on final
appeal to the Supreme Court of the United States, Defendant
Election Officials shall destroy Plaintiffs' ballots as if they had
never been cast. This conditional registration is the only way
Plaintiffs' sought-for relief can be preserved should an appeal by
either party run past the date of the National Election in
question."
[
Footnote 3]
The opinion of the District Court was issued on November 29,
1968.
MR. JUSTICE BRENNAN, dissenting.
I dissent from the direction to dismiss this case as moot.
Moore v. Ogilvie, 394 U. S. 814
(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,
219 U. S. 515
(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,
377 U. S. 562
(1964);
see also Harper v. Virginia Board of Elections,
383 U. S. 663,
383 U. S. 670
(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
Page 396 U. S. 51
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.
* The proceedings would probably require even more time if the
plaintiff sued in state court, for review in this Court would come
only after one or more levels of state appellate review.
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,
394 U. S. 816
(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
Page 396 U. S. 52
bound by this Court's summary per curiam affirmance in
Drueding v. Devlin, 380 U. S. 125
(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,
366 U. S. 425
(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,
383 U. S. 667
(1966);
Kramer v. Union School District, 395 U.
S. 621,
395 U. S.
626-628 (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.
Page 396 U. S. 53
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,
380 U. S. 93-94
(1965);
Kramer v. Union School District, supra, at
395 U. S. 625.
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. [
Footnote 2/1]
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
380 U. S. 94.
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
Page 396 U. S. 54
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 School District, supra, at
385 U. S.
633.
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
Page 396 U. S. 55
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
380 U. S. 96.
Cf. Harman v. Forssenius, 380 U.
S. 528,
380 U. S.
542-543 (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. [
Footnote 2/2]
That there are borderline cases among the new
Page 396 U. S. 56
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 cut-off date,
also must have been residents of the State at least six months --
by recent amendment, 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.
[
Footnote 2/1]
Pope v. Williams, 193 U. S. 621
(1904), upheld a one-year residency requirement for voting in State
elections. The Court specifically reserved the question of
durational residency requirements as applied to voting in
presidential elections.
Id. at
193 U. S. 633.
In any case,
Pope was decided long before application of
the "compelling interest" test to restrictions on the
franchise.
[
Footnote 2/2]
For instance, the appellants in this case, before applying for
their ballots, had bought a home in Colorado Springs, registered
their car with the Colorado Department of Motor Vehicles, acquired
Colorado drivers' licenses, and registered their eldest child in a
private nursery school; further, Mr. Hall had taken permanent
employment with a law firm in Colorado Springs.