Tennessee closes its registration books 30 days before an
election, but requires residence in the State for one year and in
the county for three months as prerequisites for registration to
vote. Appellee challenged the constitutionality of the durational
residence requirements, and a three-judge District Court held them
unconstitutional on the grounds that they impermissibly interfered
with the right to vote and created a "suspect" classification
penalizing some Tennessee residents because of recent interstate
movement. Tennessee asserts that the requirements are needed to
insure the purity of the ballot box and to have knowledgeable
voters.
Held: The durational residence requirements are
violative of the Equal Protection Clause of the Fourteenth
Amendment, as they are not necessary to further a compelling state
interest. Pp.
405 U. S.
335-360.
(a) Since the requirements deny some citizens the right to vote,
"the Court must determine whether the exclusions are necessary to
promote a
compelling state interest."
Kramer v. Union
Free School District, 395 U. S. 621,
395 U. S. 627
(emphasis added). Pp.
405 U. S.
336-337.
(b) Absent a compelling state interest, Tennessee may not burden
the right to travel by penalizing those
bona fide
residents who have recently traveled from one jurisdiction to
another. Pp.
405 U. S.
338-342.
(c) A period of 30 days appears to be ample to complete whatever
administrative tasks are needed to prevent fraud and insure the
purity of the ballot box. Pp.
405 U. S.
345-349.
(d) Since there are adequate means of ascertaining
bona
fide residence on an individualized basis, the State may not
conclusively presume nonresidence from failure to satisfy the
waiting period requirements of durational residence laws. Pp.
405 U. S.
349-354.
(e) Tennessee has not established a sufficient relationship
between its interest in an informed electorate and the fixed
durational residence requirements. Pp.
405 U. S.
354-360.
337 F.
Supp. 323, affirmed.
Page 405 U. S. 331
MARSHALL, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, STEWART, and WHITE, JJ., joined. BLACKMUN, J.,
filed an opinion concurring in the result,
post, p.
405 U. S. 360.
BURGER, C.J.; filed a dissenting opinion,
post, p.
405 U. S. 363.
POWELL and REHNQUIST, JJ., took no part in the consideration or
decision of the case.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Various Tennessee public officials (hereinafter Tennessee)
appeal from a decision by a three-judge federal court holding that
Tennessee's durational residence requirements for voting violate
the Equal Protection Clause of the United States Constitution. The
issue arises in a class action for declaratory and injunctive
relief brought by appellee James Blumstein. Blumstein moved to
Tennessee on June 12, 1970, to begin employment as an assistant
professor of law at Vanderbilt University in Nashville. With an eye
toward voting in the upcoming August and November elections, he
attempted to register to vote on July 1, 1970. The county registrar
refused to register him, on the ground that Tennessee law
authorizes the registration of only those persons who, at the time
of the next election, will have been residents of the State for a
year and residents of the county for three months.
After exhausting state administrative remedies, Blumstein
brought this action challenging these residence requirements
Page 405 U. S. 332
on federal constitutional grounds. [
Footnote 1] A three-judge court, convened pursuant to 28
U.S.C. §§ 2281, 2284, concluded that Tennessee's durational
residence
Page 405 U. S. 333
requirements were unconstitutional (1) because they
impermissibly interfered with the right to vote and (2) because
they created a "suspect" classification penalizing some Tennessee
residents because of recent interstate movement. [
Footnote 2]
337 F.
Supp. 323 (MD Tenn.1970). We noted probable jurisdiction, 401
U.S. 934 (1971). For the reasons that follow, we affirm the
decision below. [
Footnote
3]
Page 405 U. S. 334
I
The subject of this lawsuit is the durational residence
requirement. Appellee does not challenge Tennessee's power to
restrict the vote to
bona fide Tennessee residents. Nor
has Tennessee ever disputed that appellee was a
bona fide
resident of the State and county when he attempted to register.
[
Footnote 4] But Tennessee
insists that, in addition to being a resident, a would-be voter
must have been a resident for a year in the State and three months
in the county. It is this additional durational residence
requirement that appellee challenges.
Durational residence laws penalize those persons who have
traveled from one place to another to establish a new residence
during the qualifying period. Such laws divide residents into two
classes, old residents and new residents, and discriminate against
the latter to the extent
Page 405 U. S. 335
of totally denying them the opportunity to vote. [
Footnote 5] The constitutional question
presented is whether the Equal Protection Clause of the Fourteenth
Amendment permits a State to discriminate in this way among its
citizens.
To decide whether a law violates the Equal Protection Clause, we
look, in essence, to three things: the character of the
classification in question; the individual interests affected by
the classification; and the governmental interests asserted in
support of the classification.
Cf. Williams v. Rhodes,
393 U. S. 23,
393 U. S. 30
(1968). In considering laws challenged under the Equal Protection
Clause, this Court has evolved more than one test, depending upon
the interest affected or the classification involved. [
Footnote 6] First, then, we must
determine what standard of review is appropriate. In the present
case, whether we look to the benefit withheld by the classification
(the opportunity to vote) or the basis for the classification
(recent interstate travel), we conclude that the State must show a
substantial and compelling reason for imposing durational residence
requirements.
Page 405 U. S. 336
A
Durational residence requirements completely bar from voting all
residents not meeting the fixed durational standards. By denying
some citizens the right to vote, such laws deprive them of "
a
fundamental political right, . . . preservative of all rights.'"
Reynolds v. Sims, 377 U. S. 533,
377 U. S. 562
(1964). There is no need to repeat now the labors undertaken in
earlier cases to analyze this right to vote and to explain in
detail the judicial role in reviewing state statutes that
selectively distribute the franchise. In decision after decision,
this Court has made clear that a citizen has a constitutionally
protected right to participate in elections on an equal basis with
other citizens in the jurisdiction. See, e.g., Evans v.
Cornman, 398 U. S. 419,
398 U. S.
421-422, 398 U. S. 426
(1970); Kramer v. Union Free School District, 395 U.
S. 621, 395 U. S.
626-628 (1969); Cipriano v. City of Houma,
395 U. S. 701,
395 U. S. 706
(1969); Harper v. Virginia Board of Elections,
383 U. S. 663,
383 U. S. 667
(1966); Carrington v. Rash, 380 U. S.
89, 380 U. S. 93-94
(1965); Reynolds v. Sims, supra. This "equal right to
vote," Evans v. Cornman, supra, at 398 U. S. 426,
is not absolute; the States have the power to impose voter
qualifications, and to regulate access to the franchise in other
ways. See, e.g., Carrington v. Rash, supra, at
380 U. S. 91;
Oregon v. Mitchell, 400 U. S. 112,
400 U. S. 144
(opinion of DOUGLAS, J.), 400 U. S. 241
(separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.),
400 U. S. 294
(opinion of STEWART, J., concurring and dissenting, with whom
BURGER, C.J., and BLACKMUN, J., joined). But, as a general
matter,
"before that right [to vote] can be restricted, the purpose of
the restriction and the assertedly overriding interests served by
it must meet close constitutional scrutiny."
Evans v. Cornman, supra, at
398 U. S. 422;
see Bullock v. Carter, ante, p.
405 U. S. 134, at
405 U. S.
143.
Page 405 U. S. 337
Tennessee urges that this case is controlled by
Drueding v.
Devlin, 380 U. S. 125
(1965).
Drueding was a decision upholding Maryland's
durational residence requirements. The District Court tested those
requirements by the equal protection standard applied to ordinary
state regulations: whether the exclusions are reasonably related to
a permissible state interest.
234 F.
Supp. 721, 724-725 (Md.1964). We summarily affirmed per curiam
without the benefit of argument. But if it was not clear then, it
is certainly clear now that a more exacting test is required for
any statute that "place[s] a condition on the exercise of the right
to vote."
Bullock v. Carter, supra, at
405 U. S. 143.
This development in the law culminated in
Kramer v. Union Free
School District, supra. There, we canvassed in detail the
reasons for strict review of statutes distributing the franchise,
395 U.S. at
395 U. S.
626-630, noting,
inter alia, that such statutes
"constitute the foundation of our representative society." We
concluded that, if a challenged statute grants the right to vote to
some citizens and denies the franchise to others, "the Court must
determine whether the exclusions are
necessary to promote
a
compelling state interest."
Id. at
395 U. S. 627
(emphasis added);
Cipriano v. City of Houma, supra, at
395 U. S. 704;
City of Phoenix v. Kolodziejski, 399 U.
S. 204,
399 U. S. 205,
399 U. S. 209
(1970).
Cf. Harper v. Virginia Board of Elections, supra,
at
383 U. S. 670.
This is the test we apply here. [
Footnote 7]
Page 405 U. S. 338
B
This exacting test is appropriate for another reason, never
considered in
Drueding: Tennessee's durational residence
laws classify
bona fide residents on the basis of recent
travel, penalizing those persons, and only those persons, who have
gone from one jurisdiction to another during the qualifying period.
Thus, the durational residence requirement directly impinges on the
exercise of a second fundamental personal right, the right to
travel.
"[F]reedom to travel throughout the United States has long been
recognized as a basic right under the Constitution."
United
States v. Guest, 383 U. S. 745,
383 U. S. 758
(1966).
See Passenger
Cases, 7 How. 283,
48 U. S. 492
(1849) (Taney, C.J.);
Crandall v.
Nevada, 6 Wall. 35,
73 U. S. 43-44
(1868);
Paul v.
Virginia, 8 Wall. 168,
75 U. S. 180
(1869);
Edwards v. California, 314 U.
S. 160 (1941);
Kent v. Dulles, 357 U.
S. 116,
357 U. S. 126
(1958);
Shapiro v. Thompson, 394 U.
S. 618,
394 U. S.
629-631,
394 U. S. 634
(1969);
Oregon v. Mitchell, 400 U.S. at
400 U. S. 237
(separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.),
400 U. S.
285-286 (STEWART, J., concurring and dissenting, with
whom BURGER, C.J., and BLACKMUN, J., joined). And it is clear that
the freedom to travel includes the "freedom to enter and abide in
any State in the Union,"
id. at
400 U. S. 285.
Obviously, durational residence laws single out the class of
bona fide state and county residents who have recently
exercised this constitutionally protected right, and penalize such
travelers directly. We considered such a durational residence
requirement in
Shapiro v. Thompson, supra, where the
pertinent statutes imposed a one-year waiting period for interstate
migrants as a condition to receiving welfare benefits. Although, in
Shapiro, we specifically did not decide whether durational
residence requirements could be used to determine voting
eligibility,
Page 405 U. S. 339
id. at
394 U. S. 638
n. 21, we concluded that, since the right to travel was a
constitutionally protected right,
"any classification which serves to penalize the exercise of
that right, unless shown to be necessary to promote a compelling
governmental interest, is unconstitutional."
Id. at
394 U. S. 634.
This compelling state interest test was also adopted in the
separate concurrence of MR. JUSTICE STEWART. Preceded by a long
line of cases recognizing the constitutional right to travel, and
repeatedly reaffirmed in the face of attempts to disregard it,
see Wyman v. Bowens, 397 U. S. 49
(1970), and
Wyman v. Lopez, 404 U.S. 1055 (1972),
Shapiro and the compelling state interest test it
articulates control this case.
Tennessee attempts to distinguish
Shapiro by urging
that "the vice of the welfare statute in
Shapiro . . . was
its objective to deter interstate travel." Brief for Appellants 13.
In Tennessee's view, the compelling state interest test is
appropriate only where there is "some evidence to indicate a
deterrence of or infringement on the right to travel. . . ."
Ibid. Thus, Tennessee seeks to avoid the clear command of
Shapiro by arguing that durational residence requirements
for voting neither seek to nor actually do deter such travel. In
essence, Tennessee argues that the right to travel is not abridged
here in any constitutionally relevant sense.
This view represents a fundamental misunderstanding of the law.
[
Footnote 8] It is irrelevant
whether disenfranchisement or denial of welfare is the more potent
deterrent to travel.
Shapiro did not rest upon a finding
that denial of welfare actually deterred travel. Nor have other
"right to travel"
Page 405 U. S. 340
cases in this Court always relied on the presence of actual
deterrence. [
Footnote 9] In
Shapiro, we explicitly stated that the compelling state
interest test would be triggered by "any classification which
serves to
penalize the exercise of that right [to travel].
. . ."
Id. at
394 U. S. 634
(emphasis added);
see id. at
394 U. S. 638
n. 21. [
Footnote 10] While
noting the frank legislative purpose to deter migration by the
poor, and speculating that "[a]n indigent who desires to migrate .
. . will doubtless hesitate if he knows that he must risk" the loss
of benefits,
id. at
394 U. S. 629,
the majority found no need to dispute the "evidence that few
welfare recipients have in fact, been deterred [from moving] by
residence requirements."
Id. at
394 U. S. 650
(Warren, C.J., dissenting);
see also id. at
394 U. S.
671-672 (Harlan, J., dissenting). Indeed, none of the
litigants had themselves been deterred. Only last Term, it was
specifically noted that, because a durational
Page 405 U. S. 341
residence requirement for voting
"operates to
penalize those persons, and only those
persons, who have exercised their constitutional right of
interstate migration . . . , [it] may withstand constitutional
scrutiny only upon a clear showing that the burden imposed is
necessary to protect a compelling and substantial governmental
interest."
Oregon v. Mitchell, 400 U.S. at
400 U. S. 238
(separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.) (emphasis
added).
Of course, it is true that the two individual interest affected
by Tennessee's durational residence requirements are affected in
different ways. Travel is permitted, but only at a price; voting is
prohibited. The right to travel is merely penalized, while the
right to vote is absolutely denied. But these differences are
irrelevant for present purposes.
Shapiro implicitly
realized what this Court has made explicit elsewhere:
"It has long been established that a State may not impose a
penalty upon those who exercise a right guaranteed by the
Constitution. . . . 'Constitutional rights would be of little value
if they could be . . . indirectly denied.' . . ."
Harman v. Forssenius, 380 U. S. 528,
380 U. S. 540
(1965). [
Footnote 11]
See also Garrity v. New Jersey, 385 U.
S. 493 (1967), and cases cited therein;
Spevack v.
Klein, 385 U. S. 511,
385 U. S. 515
(1967). The right to travel is an "
unconditional personal
right," a right whose exercise may not be conditioned.
Shapiro
v. Thompson, 394 U.S. at
394 U. S. 643
(STEWART, J., concurring) (emphasis added);
Oregon v. Mitchell,
supra, at
400 U. S. 292
(STEWART, J., concurring and dissenting,
Page 405 U. S. 342
with whom BURGER, C.J., and BLACKMUN, J., joined). Durational
residence laws impermissibly condition and penalize the right to
travel by imposing their prohibitions on only those persons who
have recently exercised that right. [
Footnote 12] In the present case, such laws force a
person who wishes to travel and change residences to choose between
travel and the basic right to vote.
Cf. United States v.
Jackson, 390 U. S. 570,
390 U. S.
582-583 (1968). Absent a compelling state interest, a
State may not burden the right to travel in this way. [
Footnote 13]
C
In sum, durational residence laws must be measured by a strict
equal protection test: they are unconstitutional unless the State
can demonstrate that such laws are "necessary to promote a
compelling governmental interest."
Shapiro v. Thompson,
supra, at
394 U. S. 634
(first emphasis added);
Kramer v. Union Free School
District, 395 U.S. at
395 U. S. 627. Thus phrased, the constitutional question
may sound like a mathematical formula. But legal "tests" do not
have the precision of mathematical
Page 405 U. S. 343
formulas. The key words emphasize a matter of degree: that a
heavy burden of justification is on the State, and that the statute
will be closely scrutinized in light of its asserted purposes.
It is not sufficient for the State to show that durational
residence requirements further a very substantial state interest.
In pursuing that important interest, the State cannot choose means
that unnecessarily burden or restrict constitutionally protected
activity. Statutes affecting constitutional rights must be drawn
with "precision,"
NAACP v. Button, 371 U.
S. 415,
371 U. S. 438
(1963);
United States v. Robel, 389 U.
S. 258,
389 U. S. 265
(1967), and must be "tailored" to serve their legitimate
objectives.
Shapiro v. Thompson, supra, at
394 U. S. 631.
And if there are other, reasonable ways to achieve those goals with
a lesser burden on constitutionally protected activity, a State may
not choose the way of greater interference. If it acts at all, it
must choose "less drastic means."
Shelton v. Tucker,
364 U. S. 479,
364 U. S. 488
(1960).
II
We turn, then, to the question of whether the State has shown
that durational residence requirements are needed to further a
sufficiently substantial state interest. We emphasize again the
difference between
bona fide residence requirements and
durational residence requirements. We have in the past noted
approvingly that the States have the power to require that voters
be
bona fide residents of the relevant political
subdivision.
E.g., Evans v. Cornman, 398 U.S. at
398 U. S. 422;
Kramer v. Union Free School District, supra, at
395 U. S. 625;
Carrington v. Rash, 380 U.S. at
380 U. S. 91;
Pope v. Williams, 193 U. S. 621
(1904). [
Footnote 14] An
appropriately defined and uniformly applied requirement
Page 405 U. S. 344
of
bona fide residence may be necessary to preserve the
basic conception of a political community, and therefore could
withstand close constitutional scrutiny. [
Footnote 15] But durational residence requirements,
representing a separate voting qualification imposed on
bona
fide residents, must be separately tested by the stringent
standard.
Cf. Shapiro v. Thompson, supra, at
394 U. S.
636.
It is worth noting at the outset that Congress has, in a
somewhat different context, addressed the question whether
durational residence laws further compelling state interests. In §
202 of the Voting Rights Act of 1965, added by the Voting Rights
Act Amendments of 1970, Congress outlawed state durational
residence requirements for presidential and vice-presidential
elections, and prohibited the States from closing registration more
than 30 days before such elections. 42 U.S.C. § 1973aa-1. In doing
so, it made a specific finding that durational residence
requirements and more restrictive registration practices do "not
bear a reasonable relationship to any compelling State interest in
the conduct of presidential elections." 42 U.S.C. § 1973aa-1(a)(6).
We upheld this portion of the Voting Rights Act in
Oregon v.
Mitchell, supra. In our present case, of course, we deal with
congressional, state, and local elections, in which the State's
interests are arguably somewhat different; and, in addition, our
function is not merely to determine whether there was a reasonable
basis for Congress' findings. However, the congressional finding
which forms the basis for the Federal Act is a useful background
for the discussion that follows.
Page 405 U. S. 345
Tennessee tenders "two basic purposes" served by its durational
residence requirements:
"(1) INSURE PURITY OF BALLOT BOX -- Protection against fraud
through colonization and inability to identify persons offering to
vote, and"
"(2) KNOWLEDGEABLE VOTER -- Afford some surety that the voter
has, in fact, become a member of the community, and that, as such,
he has a common interest in all matters pertaining to its
government and is, therefore, more likely to exercise his right
more intelligently."
Brief for Appellants 15, citing 18 Am.Jur., Elections, § 56, p.
217. We consider each in turn.
A
Preservation of the "purity of the ballot box" is a
formidable-sounding state interest. The impurities feared,
variously called "dual voting" and "colonization," all involve
voting by nonresidents, either singly or in groups. The main
concern is that nonresidents will temporarily invade the State or
county, falsely swear that they are residents to become eligible to
vote, and, by voting, allow a candidate to win by fraud. Surely the
prevention of such fraud is a legitimate and compelling government
goal. But it is impossible to view durational residence
requirements as necessary to achieve that state interest.
Preventing fraud, the asserted evil that justifies state
lawmaking, means keeping nonresidents from voting. But, by
definition, a durational residence law bars newly arrived residents
from the franchise along with nonresidents. The State argues that
such sweeping laws are necessary to prevent fraud because they are
needed to identify
bona fide residents. This contention is
particularly
Page 405 U. S. 346
unconvincing in light of Tennessee's total statutory scheme for
regulating the franchise.
Durational residence laws may once have been necessary to
prevent a fraudulent evasion of state voter standards, but today in
Tennessee, as in most other States, [
Footnote 16] this purpose is served by a system of voter
registration. Tenn.Code Ann. § 301
et seq. (1955 and Supp.
1970);
see State v. Weaver, 122 Tenn.198, 122 S.W. 465
(1909). Given this system, the record is totally devoid of any
evidence that durational residence requirements are, in fact,
necessary to identify
bona fide residents. The
qualifications of the would-be voter in Tennessee are determined
when he registers to vote, which he may do until 30 days before the
election. Tenn.Code Ann. § 304. His qualifications -- including
bona fide residence -- are established then by oath.
Tenn.Code Ann. § 309. There is no indication in the record that
Tennessee routinely goes behind the would-be voter's oath to
determine his qualifications. Since false swearing is no obstacle
to one intent on fraud, the existence of burdensome voting
qualifications like durational residence requirements cannot
prevent corrupt nonresidents from fraudulently registering and
voting. As long as the State relies on the oath-swearing system to
establish qualifications, a durational residence requirement adds
nothing to a simple residence requirement in the effort to stop
fraud. The nonresident intent on committing election fraud will as
quickly and effectively swear that he has been a resident for the
requisite period of time as he would swear that he was simply a
resident. Indeed, the durational residence requirement becomes an
effective voting obstacle
Page 405 U. S. 347
only to residents who tell the truth and have no fraudulent
purposes.
Moreover, to the extent that the State makes an enforcement
effort after the oath is sworn, it is not clear what role the
durational residence requirement could play in protecting against
fraud. The State closes the registration books 30 days before an
election to give officials an opportunity to prepare for the
election. Before the books close, anyone may register who claims
that he will meet the durational residence requirement at the time
of the next election. Although Tennessee argues that this 30-day
period between registration and election does not give the State
enough time to verify this claim of
bona fide residence,
we do not see the relevance of that position to this case. As long
as the State permits registration up to 30 days before an election,
a lengthy durational residence requirement does not increase the
amount of time the State has in which to carry out an investigation
into the sworn claim by the would-be voter that he is in fact, a
resident.
Even if durational residence requirements imposed, in practice,
a pre-election waiting period that gave voting officials three
months or a year in which to confirm the
bona fides of
residence, Tennessee would not have demonstrated that these waiting
periods were necessary. At the outset, the State is faced with the
fact that it must defend two separate waiting periods of different
lengths. It is impossible to see how both could be "necessary" to
fulfill the pertinent state objective. If the State itself has
determined that a three-month period is enough time in which to
confirm
bona fide residence in the State and county,
obviously a one-year period cannot also be justified as "necessary"
to achieve the same purpose. [
Footnote 17]
Page 405 U. S. 348
Beyond that, the job of detecting nonresidents from among
persons who have registered is a relatively simple one. It hardly
justifies prohibiting all newcomers from voting for even three
months. To prevent dual voting, state voting officials simply have
to cross-check lists of new registrants with their former
jurisdictions.
See Comment, Residence Requirements for
Voting in Presidential Elections, 37 U.Chi.L.Rev. 359, 364 and n.
34, 374 (1970);
cf. Shapiro v. Thompson, 394 U.S. at
394 U. S. 637.
Objective information tendered as relevant to the question of
bona fide residence under Tennessee law -- places of
dwelling, occupation, car registration, driver's license, property
owned, etc. [
Footnote 18] --
is easy to double-check, especially in light of modern
communications. Tennessee itself concedes that "[i]t might well be
that these purposes can be achieved under requirements of shorter
duration than that imposed by the State of Tennessee. . . ." Brief
for Appellants 10. Fixing a constitutionally acceptable period is
surely a matter of degree. It is sufficient to note here that 30
days appears to be an ample period of time for the State to
complete whatever administrative tasks are necessary to prevent
fraud -- and a year, or three months, too much. This was the
judgment of Congress in the context of presidential elections.
[
Footnote 19] And, on the
basis of the statutory
Page 405 U. S. 349
scheme before us, it is almost surely the judgment of the
Tennessee lawmakers as well. As the court below concluded, the
cut-off point for registration 30 days before an election
"reflects the judgment of the Tennessee Legislature that thirty
days is an adequate period in which Tennessee's election officials
can effect whatever measures may be necessary, in each particular
case confronting them, to insure purity of the ballot and prevent
dual registration and dual voting."
337 F. Supp. at 330.
It has been argued that durational residence requirements are
permissible because a person who has satisfied the waiting period
requirements is conclusively presumed to be a
bona fide
resident. In other words, durational residence requirements are
justified because they create an administratively useful conclusive
presumption that recent arrivals are not residents, and are
therefore properly
Page 405 U. S. 350
barred from the franchise. [
Footnote 20] This presumption, so the argument runs, also
prevents fraud, for few candidates will be able to induce migration
for the purpose of voting if fraudulent voters are required to
remain in the false locale for three months or a year in order to
vote on election day. [
Footnote
21]
In
Carrington v. Rash, 380 U. S.
89, this Court considered and rejected a similar kind of
argument in support of a similar kind of conclusive presumption.
There, the State argued that it was difficult to tell whether
persons moving to Texas while in the military service were, in
fact,
bona fide residents. Thus, the State said, the
administrative convenience of avoiding difficult factual
determinations justified a blanket exclusion of all servicemen
stationed in Texas. The presumption created there was conclusive --
"
incapable of being overcome by proof of the most positive
character.'" Id. at 380 U. S. 96,
citing Heiner v. Donnan, 285 U. S. 312,
285 U. S. 324
(1932). The
Page 405 U. S. 351
Court rejected this "conclusive presumption" approach as
violative of the Equal Protection Clause. While many servicemen in
Texas were not
bona fide residents, and therefore properly
ineligible to vote, many servicemen clearly were
bona fide
residents. Since "more precise tests" were available "to winnow
successfully from the ranks . . . those whose residence in the
State is
bona fide," conclusive presumptions were
impermissible in light of the individual interests affected.
Id. at
380 U. S. 95.
"States may not casually deprive a class of individuals of the vote
because of some remote administrative benefit to the State."
Id. at
380 U. S.
96.
Carrington sufficiently disposes of this defense of
durational residence requirements. The State's legitimate purpose
is to determine whether certain persons in the community are
bona fide residents. A durational residence requirement
creates a classification that may, in a crude way, exclude
nonresidents from that group. But it also excludes many residents.
Given the State's legitimate purpose and the individual interests
that are affected, the classification is all too imprecise.
See
supra at
405 U. S. 343.
In general, it is not very difficult for Tennessee to determine on
an individualized basis whether one recently arrived in the
community is in fact, a resident, although of course there will
always be difficult cases. Tennessee has defined a test for
bona fide residence, and appears prepared to apply it on
an individualized basis in various legal contexts. [
Footnote 22] That test
Page 405 U. S. 352
could easily be applied to new arrivals. Furthermore, if it is
unlikely that would-be fraudulent voters would remain in a false
locale for the lengthy period imposed by durational residence
requirements, it is just as unlikely that they would collect such
objective indicia of
bona fide residence as a dwelling,
car registration, or driver's license. In spite of these things,
the question of
bona fide residence is settled for new
arrivals by conclusive presumption, not by individualized inquiry.
Cf. Carrington v. Rash, supra, at
380 U. S. 95-96.
Thus, it has always been undisputed that appellee Blumstein is
himself a
bona fide resident of Tennessee within the
ordinary state definition of residence. But since Tennessee's
presumption from failure to meet the durational residence
requirements is conclusive, a showing of actual
bona fide
residence is irrelevant, even though such a showing would fully
serve the State's purposes embodied in the presumption and would
achieve those purposes with far less drastic impact on
constitutionally protected interests. [
Footnote 23] The Equal Protection Clause places a
limit on government by classification, and that limit has been
exceeded here.
Cf. Shapiro v. Thompson, 394 U.S. at
394 U. S. 636;
Harman v. Forssenius, 380 U.S. at
380 U. S.
542-543;
Carrington v. Rash, supra, at
380 U. S. 95-96;
Skinner v. Oklahoma, 316 U. S. 535
(1942).
Page 405 U. S. 353
Our conclusion that the waiting period is not the least
restrictive means necessary for preventing fraud is bolstered by
the recognition that Tennessee has at its disposal a variety of
criminal laws that are more than adequate to detect and deter
whatever fraud may be feared. [
Footnote 24] At least six separate sections of the
Tennessee Code define offenses to deal with voter fraud. For
example, Tenn.Code Ann. § 324 makes it a crime
"for any person to register or to have his name registered as a
qualified voter . . . when he is not entitled to be so registered .
. . or to procure or induce any other person to register or be
registered . . . when such person is not legally qualified to be
registered as such. . . . [
Footnote 25]"
In addition to the various criminal penalties, Tennessee permits
the
bona fides of a voter to be challenged on election
day. Tenn.Code Ann. § 1309
et seq. (1955 and Supp. 1970).
Where a State has available such remedial action
Page 405 U. S. 354
to supplement its voter registration system, it can hardly argue
that broadly imposed political disabilities such as durational
residence requirements are needed to deal with the evils of fraud.
Now that the Federal Voting Rights Act abolishes those residence
requirements as a precondition for voting in presidential and
vice-presidential elections, 42 U.S.C. § 1973aa-1, it is clear that
the States will have to resort to other devices available to
prevent nonresidents from voting. Especially since every State must
live with this new federal statute, it is impossible to believe
that durational residence requirements are necessary to meet the
State's goal of stopping fraud. [
Footnote 26]
B
The argument that durational residence requirements further the
goal of having "knowledgeable voters" appears to involve three
separate claims. The first is that such requirements "afford some
surety that the voter has, in fact, become a member of the
community." But here the State appears to confuse a
bona
fide residence requirement with a durational residence
requirement. As already noted, a State does have an interest in
limiting the franchise to
bona fide members of the
community. But this does not justify or explain the exclusion from
the franchise of persons not because their
bona fide
residence is questioned, but because they are recent, rather than
long-time, residents.
The second branch of the "knowledgeable voters" justification is
that durational residence requirements assure that the voter "has a
common interest in all matters pertaining to [the community's]
government. . . ." By this, presumably, the State means that it may
require a period of residence sufficiently lengthy to impress
upon
Page 405 U. S. 355
its voters the local viewpoint. This is precisely the sort of
argument this Court has repeatedly rejected. In
Carrington v.
Rash, for example, the State argued that military men newly
moved into Texas might not have local interests sufficiently in
mind, and therefore could be excluded from voting in state
elections. This Court replied:
"But if they are, in fact, residents, . . . 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.
See 42 U.S.C. § 1973aa-1(a)(4).
Similarly, here, Tennessee's hopes for voters with a "common
interest in all matters pertaining to [the community's] government"
is impermissible. [
Footnote
27] To paraphrase what we said elsewhere, "All too often, lack
of a [
common interest'] might mean no more than a different
interest." Evans v. Cornman, 398 U.S. at 398 U. S. 423.
"[D]ifferences of opinion" may not be the basis for excluding any
group or person from the franchise. Cipriano v. City of
Houma, 395 U.S. at 395 U. S.
705-706.
"[T]he fact that newly arrived [Tennesseeans] may have a more
national outlook than long-time 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
Page 405 U. S. 356
electoral vote of their new home State."
Hall v. Beals, 396 U. S. 45,
396 U. S. 53-54
(1969) (dissenting opinion). [
Footnote 28]
Finally, the State urges that a long-time resident is "more
likely to exercise his right [to vote] more intelligently." To the
extent that this is different from the previous argument, the State
is apparently asserting an interest in limiting the franchise to
voters who are knowledgeable about the issues. In this case,
Tennessee argues that people who have been in the State less than a
year and the county less than three months are likely to be unaware
of the issues involved in the congressional, state, and local
elections, and therefore can be barred from the franchise. We note
that the criterion of "intelligent" voting is an elusive one, and
susceptible of abuse. But without deciding as a general matter the
extent to which a State can bar less knowledgeable or intelligent
citizens from the franchise,
cf. Evans v. Cornman, 398
U.S. at
398 U. S. 422;
Kramer v. Union Free School District, 395 U.S. at
395 U. S. 632;
Cipriano v. City
Page 405 U. S. 357
of Houma, 395 U.S. at
395 U. S. 705,
[
Footnote 29] we conclude
that durational residence requirements cannot be justified on this
basis.
In
Kramer v. Union Free School District, supra, we held
that the Equal Protection Clause prohibited New York State from
limiting the vote in school district elections to parents of school
children and to property owners. The State claimed that, since
nonparents would be "less informed" about school affairs than
parents,
id. at
395 U. S. 631,
the State could properly exclude the class of nonparents in order
to limit the franchise to the more "interested" group of residents.
We rejected that position, concluding that a "close scrutiny of
[the classification] demonstrates that [it does] not accomplish
this purpose with sufficient precision. . . ."
Id. at
395 U. S. 632.
That scrutiny revealed that the classification excluding nonparents
from the franchise kept many persons from voting who were as
substantially interested.as those allowed to vote; given this, the
classification was insufficiently "tailored" to achieve the
articulated state goal.
Ibid. See also Cipriano v.
City of Houma, supra, at
395 U. S.
706.
Similarly, the durational residence requirements in this case
founder because of their crudeness as a device for
Page 405 U. S. 358
achieving the articulated state goal of assuring the
knowledgeable exercise of the franchise. The classifications
created by durational residence requirements obviously permit any
long-time resident to vote regardless of his knowledge of the
issues -- and obviously many long-time residents do not have any.
On the other hand, the classifications bar from the franchise many
other, admittedly new, residents who have become at least
minimally, and often fully, informed about the issues. Indeed,
recent migrants who take the time to register and vote shortly
after moving are likely to be those citizens, such as appellee, who
make it a point to be informed and knowledgeable about the issues.
Given modern communications, and given the clear indication that
campaign spending and voter education occur largely during the
month before an election, [
Footnote 30] the State cannot seriously maintain that it
is "necessary" to reside for a year in the State and three months
in the county in order to be knowledgeable about congressional,
state, or even purely local elections. There is simply nothing in
the record to support the conclusive presumption that residents who
have lived in the State for less than a year and their county for
less than three months are uninformed about elections.
Cf.
Shapiro v. Thompson, 394 U.S. at
394 U. S. 631.
These durational residence requirements crudely exclude large
numbers of fully qualified people. Especially since Tennessee
creates a waiting period by closing registration books 30 days
before an election, there can be no basis for arguing that any
durational residence requirement is also needed to assure
knowledgeability. It is pertinent to note that Tennessee has never
made an attempt to further its alleged interest in an informed
electorate in a universally applicable way. Knowledge
Page 405 U. S. 359
or competence has never been a criterion for participation in
Tennessee's electoral process for long-time residents. Indeed, the
State specifically provides for voting by various types of absentee
persons. [
Footnote 31] These
provisions permit many long-time residents who leave the county or
State to participate in a constituency in which they have only the
slightest political interest, and from whose political debates they
are likely to be cut off. That the State specifically permits such
voting is not consistent with its claimed compelling interest in
intelligent, informed use of the ballot. If the State seeks to
assure intelligent use of the ballot, it may not try to serve this
interest only with respect to new arrivals.
Cf. Shapiro v.
Thompson, supra, at
394 U. S.
637-638.
It may well be true that new residents as a group know less
about state and local issues than older residents; and it is surely
true that durational residence requirements will exclude some
people from voting who are totally uninformed
Page 405 U. S. 360
about election matters. But as devices to limit the franchise to
knowledgeable residents, the conclusive presumptions of durational
residence requirements are much too crude. They exclude too many
people who should not, and need not, be excluded. They represent a
requirement of knowledge unfairly imposed on only some citizens. We
are aware that classifications are always imprecise. By requiring
classifications to be tailored to their purpose, we do not secretly
require the impossible. Here, there is simply too attenuated a
relationship between the state interest in an informed electorate
and the fixed requirement that voters must have been residents in
the State for a year and the county for three months. Given the
exacting standard of precision we require of statutes affecting
constitutional rights, we cannot say that durational residence
requirements are necessary to further a compelling state
interest.
III
Concluding that Tennessee has not offered an adequate
justification for its durational residence laws, we affirm the
judgment of the court below.
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
[
Footnote 1]
Involved here are provisions of the Tennessee Constitution, as
well as portions of the Tennessee Code. Article IV, § 1, of the
Tennessee Constitution, provides in pertinent part:
"Right to vote -- Election precincts. . . . -- Every person of
the age of twenty-one years, being a citizen of the United States,
and a resident of this State for twelve months, and of the county
wherein such person may offer to vote for three months next
preceding the day of election, shall be entitled to vote for
electors for President and Vice-President of the United States,
members of the General Assembly and other civil officers for the
county or district in which such person resides; and there shall be
no other qualification attached to the right of suffrage."
"The General Assembly shall have power to enact laws requiring
voters to vote in the election precincts in which they may reside,
and laws to secure the freedom of elections and the purity of the
ballot box."
Section 2-201, Tenn.Code Ann. (Supp. 1970) provides:
"Qualifications of voters. -- Every person of the age of
twenty-one (21) years, being a citizen of the United States and a
resident of this state for twelve (12) months, and of the county
wherein he may offer his vote for three (3) months next preceding
the day of election, shall be entitled to vote for members of the
general assembly and other civil officers for the county or
district in which he may reside."
Section 2-304, Tenn.Code Ann. (Supp. 1970) provides:
"Persons entitled to permanently register -- Required time for
registration to be in effect prior to election. -- All persons
qualified to vote under existing laws at the date of application
for registration, including those who will arrive at the legal
voting age by the date of the next succeeding primary or general
election established by statute following the date of their
application to register (those who become of legal voting age
before the date of a general election shall be entitled to register
and vote in a legal primary election selecting nominees for such
general election), who will have lived in the state for twelve(12)
months and in the county for which they applied for registration
for three (3) months by the date of the next succeeding election
shall be entitled to permanently register as voters under the
provisions of this chapter provided, however, that registration or
re-registration shall not be permitted within thirty (30) days of
any primary or general election provided for by statute. If a
registered voter in any county shall have changed his residence to
another county, or to another ward, precinct, or district within
the same county, or changed his name by marriage or otherwise,
within ninety (90) days prior to the date of an election, he shall
be entitled to vote in his former ward, precinct or district of
registration."
[
Footnote 2]
On July 30, the District Court refused to grant a preliminary
injunction permitting Blumstein and members of the class he
represented to vote in the August 6 election; the court noted that
to do so would be "so obviously disruptive as to constitute an
example of judicial improvidence." The District Court also denied a
motion that Blumstein be allowed to cast a sealed provisional
ballot for the election.
At the time the opinion below was filed, the next election was
to be held in November, 1970, at which time Blumstein would have
met the three-month part of Tennessee's durational residency
requirements. The District Court properly rejected the State's
position that the alleged invalidity of the three-month requirement
had been rendered moot, and the State does not pursue any mootness
argument here. Although appellee now can vote, the problem to
voters posed by the Tennessee residence requirements is
"
capable of repetition, yet evading review.'" Moore v.
Ogilvie, 394 U. S. 814,
394 U. S. 816
(1969); Southern Pacific Terminal Co. v. ICC, 219 U.
S. 498, 219 U. S. 515
(1911). In this case, unlike Hall v. Beals, 396 U. S.
45 (1969), the laws in question remain on the books, and
Blumstein has standing to challenge them as a member of the class
of people affected by the presently written statute.
[
Footnote 3]
The important question in this case has divided the lower
courts. Durational residence requirements ranging from three months
to one year have been struck down in
Burg v.
Canniffe, 315 F.
Supp. 380 (Mass.1970);
Affeldt v.
Whitcomb, 319 F. Supp.
69 (ND Ind.1970);
Lester v. Board of Elections for District
of Columbia, 319 F.
Supp. 505 (DC 1970);
Bufford v. Holton, 319 F.
Supp. 843 (ED Va.1970);
Hadnott v.
Amos, 320 F.
Supp. 107 (MD Ala.1970);
Kohn v. Davis, 320 F.
Supp. 246 (Vt. 1070);
Keppel v.
Donovan, 326 F. Supp.
15 (Minn.1970);
Andrews v. Cody, 327 F.
Supp. 793 (MDNC 1971), as well as this case. Other district
courts have upheld durational residence requirements of a similar
variety.
Howe v. Brown, 319 F.
Supp. 862 (ND Ohio 1970);
Ferguson v. Williams, 330 F.
Supp. 1012 (ND Miss.1971);
Cocanower v.
Marston, 318 F.
Supp. 402 (Ariz.1970);
Fitzpatrick v. Board of Election
Commissioners (ND Ill.1970);
Piliavin v.
Hoel, 320 F. Supp.
66 (WD Wis.1970);
Epps v. Loan (No. 9137, WD
Wash.1970);
Fontham v. McKeithen, 336 F.
Supp. 153 (ED La.1971). In
Sirak v. Brown (Civ. No.
70-164, SD Ohio 1970), the District Judge refused to convene a
three-judge court and summarily dismissed the complaint.
[
Footnote 4]
Noting the lack of dispute on this point, the court below
specifically found that Blumstein had no intention of leaving
Nashville, and was a
bona fide resident of Tennessee.
337 F.
Supp. 323, 324.
[
Footnote 5]
While it would be difficult to determine precisely how many
would-be voters throughout the country cannot vote because of
durational residence requirements,
but see Cocanower &
Rich, Residency Requirements for Voting, 12 Ariz.L.Rev. 477, 478
and n. 8 (1970), it is worth noting that, during the period
1947-1970 an average of approximately 3.3% of the total national
population moved interstate each year. (An additional 3.2% of the
population moved from one county to another intrastate each year.)
U.S. Dept. of Commerce, Bureau of the Census, Current Population
Reports, Population Characteristic, Series P-20, No. 210, Jan. 15,
1971, Table 1, pp. 7-8.
[
Footnote 6]
Compare Kramer v. Union Free School District,
395 U. S. 621
(1969),
and Skinner v. Oklahoma, 316 U.
S. 535 (1942),
with Williamson v. Lee Optical
Co., 348 U. S. 483
(1955);
compare McLaughlin v. Florida, 379 U.
S. 184 (1964),
Harper v. Virginia Board of
Elections, 383 U. S. 663
(1966),
and Graham v. Richardson, 403 U.
S. 365 (1971),
with Morey v. Doud, 354 U.
S. 457 (1957),
and Allied Stores of Ohio v.
Bowers, 358 U. S. 522
(1959).
[
Footnote 7]
Appellants also rely on
Pope v. Williams, 193 U.
S. 621 (1904). Carefully read, that case simply holds
that federal constitutional rights are not violated by a state
provision requiring a person who enters the State to make a
"declaration of his intention to become a citizen before he can
have the right to be registered as a voter and to vote in the
State."
Id. at
193 U. S. 634.
In other words, the case simply stands for the proposition that a
State may require voters to be
bona fide residents.
See infra at
405 U. S.
343-344. To the extent that dicta in that opinion are
inconsistent with the test we apply or the result we reach today,
those dicta are rejected.
[
Footnote 8]
We note that, in the Voting Rights Act of 1965, as amended,
Congress specifically found that a durational residence requirement
"denies or abridges the inherent constitutional right of citizens
to enjoy their free movement across State lines. . . ." 84 Stat.
316, 42 U.S.C. § 1973aa-1(a)(2).
[
Footnote 9]
For example, in
Crandall v.
Nevada, 6 Wall. 35 (1868), the tax imposed on
persons leaving the State by commercial carrier was only $1,
certainly a minimal deterrent to travel. But in declaring the tax
unconstitutional, the Court reasoned that "if the State can tax a
railroad passenger one dollar, it can tax him one thousand
dollars,"
id. at
73 U. S. 46. In
Ward v.
Maryland, 12 Wall. 418 (1871), the tax on
nonresident traders was more substantial, but the Court focused on
its discriminatory aspects, without anywhere considering the law's
effect, if any, on trade or tradesmen's choice of residence.
Cf. Chalker v. Birmingham N.W. R. Co., 249 U.
S. 522,
249 U. S. 527
(1919);
but see Williams v. Fears, 179 U.
S. 270 (1900). In
Travis v. Yale & Towne Mfg.
Co., 252 U. S. 60,
252 U. S. 79-80
(1920), the Court held that New York could not deny nonresidents
certain small personal exemptions from the state income tax allowed
residents. The amounts were certainly insufficient to influence any
employee's choice of residence.
Compare Toomer v. Witsell,
334 U. S. 385
(1948),
with Mullaney v. Anderson, 342 U.
S. 415 (1952).
[
Footnote 10]
Separately concurring, MR. JUSTICE STEWART concluded that, quite
apart from any purpose to deter,
"a law that so clearly
impinges upon the constitutional
right of interstate travel must be shown to reflect a
compelling governmental interest."
Id. at
394 U. S.
643-644 (first emphasis added).
See also Graham v.
Richardson, 403 U.S. at
403 U. S.
375.
[
Footnote 11]
In
Harman, the Court held that a Virginia law which
allowed federal voters to qualify either by paying a poll tax or by
filing a certificate of residence six months before the election
"handicap[ped] exercise" of the right to participate in federal
elections free of poll taxes, guaranteed by the Twenty-fourth
Amendment.
Id. at
380 U. S. 541.
[
Footnote 12]
Where, for example, an interstate migrant loses his driver's
license because the new State has a higher age requirement, a
different constitutional question is presented. For, in such a
case, the new State's age requirement is not a penalty imposed
solely because the newcomer is a new resident; instead, all
residents, old and new, must be of a prescribed age to drive.
See Shapiro v. Thompson, 394 U. S. 618,
394 U. S. 638
n. 21 (1969).
[
Footnote 13]
As noted
infra at
405 U. S.
343-344, States may show an overriding interest in
imposing an appropriate
bona fide residence requirement on
would-be voters. One who travels out of a State may no longer be a
bona fide resident, and may not be allowed to vote in the
old State. Similarly, one who travels to a new State may, in some
cases, not establish
bona fide residence, and may be
ineligible to vote in the new State. Nothing said today is meant to
cast doubt on the validity of appropriately defined and uniformly
applied
bona fide residence requirements.
[
Footnote 14]
See n 7,
supra.
[
Footnote 15]
See Fontham v. McKeithen, 336 F. Supp. at 167-168
(Wisdom, J., dissenting);
Pope v. Williams, 193 U.
S. 621 (1904); and
n
7,
supra.
[
Footnote 16]
See, e.g., Cocanower & Rich, 12 Ariz.L.Rev. at 499;
MacLeod & Wilberding, State Voting Residency Requirements and
Civil Rights, 38 Geo.Wash.L.Rev. 93, 113 (1969).
[
Footnote 17]
Obviously, it could not be argued that the three-month waiting
period is necessary to confirm residence in the county, and the
one-year period necessary to confirm residence in the State. Quite
apart from the total implausibility of any suggestion that one task
should take four times as long as the other, it is sufficient to
note that, if a person is found to be a
bona fide resident
of a county within the State, he is, by definition, a
bona
fide resident of the State as well.
[
Footnote 18]
See, e.g., Brown v. Hows, 163 Tenn. 178, 42 S.W.2d 210
(1930);
Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173
(1905).
See generally Tennessee Law Revision Commission,
Title 2 -- Election Laws, Tentative Draft of October 1971, § 222
and Comment.
See n
22,
infra.
[
Footnote 19]
In the Voting Rights Act Amendments of 1970, Congress abolished
durational residence requirements as a precondition to voting in
presidential and vice-presidential elections, and prohibited the
States from cutting off registration more than 30 days prior to
those elections. These limits on the waiting period a State may
impose prior to an election were made "with full cognizance of the
possibility of fraud and administrative difficulty."
Oregon v.
Mitchell, 400 U. S. 112,
400 U. S. 238
(separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.). With that
awareness, Congress concluded that a waiting period requirement
beyond 30 days "does not bear a reasonable relationship to any
compelling State interest in the conduct of presidential
elections." 42 U.S.C. § 1973aa-1(a)(6). And, in sustaining § 202 of
the Voting Rights Act of 1965, we found
"no explanation why the 30-day period between the closing of new
registrations and the date of election would not provide, in light
of modern communications, adequate time to insure against . . .
frauds."
Oregon v. Mitchell, supra, at
400 U. S. 239
(separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.). There is
no reason to think that what Congress thought was unnecessary to
prevent fraud in presidential elections should not also be
unnecessary in the context of other elections.
See infra
at
405 U. S.
354.
[
Footnote 20]
As a technical matter, it makes no sense to say that one who has
been a resident for a fixed duration is presumed to be a resident.
In order to meet the durational residence requirement, one must, by
definition, first establish that he is a resident. A durational
residence requirement is not simply a waiting period after arrival
in the State; it is a waiting period after residence is
established. Thus, it is conceptually impossible to say that a
durational residence requirement is an administratively useful
device to determine residence. The State's argument must be that
residence would be presumed from simple presence in the State or
county for the fixed waiting period.
[
Footnote 21]
It should e clear that this argument assumes that the State will
reliably determine whether the sworn claims of duration in the
jurisdiction are themselves accurate. We have already noted that
this is unlikely.
See supra at
405 U. S. 346.
Another recurrent problem for the State's position is the existence
of differential durational residence requirements. If the State
presumes residence in the county after three months in the county,
there is no rational explanation for requiring a full 12 months'
presence in the State to presume residence in the State.
[
Footnote 22]
Tennessee's basic test for
bona fide residence is (1)
an intention to stay indefinitely in a place (in other words,
"without a present intention of removing therefrom,"
Brown v.
Hows, 163 Tenn. at 182, 42 S.W.2d at 211), joined with (2)
some objective indication consistent with that intent,
see
n 18,
supra. This
basic test has been applied in divorce cases,
see, e.g.,
Sturdavant v. Sturdavant, 28 Tenn.App. 273, 189 S.W.2d 410
(1944);
Brown v. Brown, 150 Tenn. 89, 261 S.W. 959 (1924);
Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173 (1905); in
tax cases,
see, e.g., Denny v. Sumner County, 134 Tenn.
468, 184 S.W. 14 (1916); in estate cases,
see, e.g., Caldwell
v. Shelton, 32 Tenn.App. 45, 221 S.W.2d 815 (1948);
Hascall v. Hafford, 107 Tenn. 355, 65 S.W. 423 (1901); and
in voting cases,
see, e.g., Brown v. Hows, supra;
Tennessee Law Revision Commission, Title 2 -- Election Laws,
supra, n 18.
[
Footnote 23]
Indeed, in Blumstein's case, the County Election Commission
explicitly rejected his offer to treat the waiting period
requirement as
"a waivable guide to commission action, but rebuttable upon a
proper showing of competence to vote intelligently in the primary
and general election."
Complaint at App. 8.
Cf. Skinner v. Oklahoma, 316 U.S.
at
316 U. S.
544-545 (Stone, C.J., concurring).
[
Footnote 24]
See Harman v. Forssenius, 380 U.S. at
380 U. S. 543
(1965) (filing of residence certificate six months before election
in lieu of poll tax unnecessary to insure that the election is
limited to
bona fide residents in light of "numerous
devices to enforce valid residence requirements");
cf.
Schneider v. State, 308 U. S. 147,
308 U. S. 164
(1939) (fear of fraudulent solicitations cannot justify permit
requests since "[f]rauds may be denounced as offenses and punished
by law").
[
Footnote 25]
Tenn.Code Ann. § 2-1614 (Supp. 1970) makes it a felony for any
person who "is not legally entitled to vote at the time and place
where he votes or attempts to vote . . to vote or offer to do so,"
or to aid and abet such illegality. Tenn.Code Ann. § 2-2207 (1955)
makes it a misdemeanor
"for any person knowingly to vote in any political convention or
any election held under the Constitution or laws of this state, not
being legally qualified to vote . . . ,"
and Tenn.Code Ann. § 2-2208 (1955) makes it a misdemeanor to aid
in such an offense. Tenn.Code Ann. § 2-202 (Supp. 1970) makes it an
offense to vote outside the ward or precinct where one resides and
is registered. Finally, Tenn.Code Ann. § 2-2209 (1955) makes it
unlawful to
"bring or aid in bringing any fraudulent voters into this state
for the purpose of practising a fraud upon or in any primary or
final election. . . ."
See, e.g., State v. Weaver, 122 Tenn.198, 112 S.W. 465
(1909).
[
Footnote 26]
We note that in the period since the decision below, several
elections have been held in Tennessee. We have been presented with
no specific evidence of increased colonization or other fraud.
[
Footnote 27]
It has been noted elsewhere, and with specific reference to
Tennessee law, that
"[t]he historical purpose of [durational] residency requirements
seems to have been to deny the vote to undesirables, immigrants and
outsiders with different ideas."
Cocanower & Rich, 12 Ariz.L.Rev. at 484 and nn. 44, 45, and
46. We do not rely on this alleged original purpose of durational
residence requirements in striking them down today.
[
Footnote 28]
Tennessee may be revealing this impermissible purpose when it
observes:
"The fact that the voting privilege has been extended to
18-year-old persons . . . increases, rather than diminishes, the
need for durational residency requirements. . . . It is so
generally known, as to be judicially accepted that there are many
political subdivisions in this state, and other states, wherein
there are colleges universities and military installations with
sufficient student body or military personnel over eighteen years
of age as would completely dominate elections in the district,
county or municipality so located. This would offer the maximum of
opportunity for fraud through colonization, and permit domination
by those not knowledgeable or having a common interest in matters
of government, as opposed to the interest and the knowledge of
permanent members of the community. Upon completion of their
schooling or service tour, they move on, leaving the community
bound to a course of political expediency not of its choice, and,
in fact, one over which its more permanent citizens, who will
continue to be affected, had no control."
Brief for Appellants 116.
[
Footnote 29]
In the 1970 Voting Rights Act, which added § 201, 42 U.S.C. §
1973aa, Congress provided that "no citizen shall be denied, because
of his failure to comply with any test or device, the right to vote
in any Federal, State, or local election. . . ." The term "test or
device" was defined to include, in part,
"any requirement that a person as a prerequisite for voting or
registration for voting (1) demonstrate the ability to read, write,
understand, or interpret any matter, (2) demonstrate any
educational achievement or his knowledge of any particular subject.
. . ."
By prohibiting various "test[s]" and "device[s]" that would
clearly assure knowledgeability on the part of voters in local
elections, Congress declared federal policy that people should be
allowed to vote even if they were not well informed about the
issues. We upheld § 201 in
Oregon v. Mitchell, supra.
[
Footnote 30]
H. Alexander, Financing the 1968 Election 106-113 (1971);
Affeldt v. Whitcomb, 319 F. Supp. at 77; Cocanower &
Rich, 12 Ariz.L.Rev. at 498.
[
Footnote 31]
The general provisions for absentee voting apply in part to
"[a]ny registered voter otherwise qualified to vote in any
election to be held in this state or any county, municipality, or
other political subdivision thereof, who by reason of business,
occupation, health, education, or travel, is required to be absent
from the county of his fixed residence on the day of the election.
. . ."
Tenn.Code Ann. § 2-1602 (Supp. 1970).
See generally
Tenn.Code Ann. § 2-1601
et seq. (Supp. 1970). An
alternative method of absentee voting for armed forces members and
federal personnel is detailed in Tenn.Code Ann. § 2-1701
et
seq. (Supp. 1970). Both those provisions allow persons who are
still technically "residents" of the State or county to vote even
though they are not physically present, and even though they are
likely to be uninformed about the issues. In addition, Tennessee
has an unusual provision that permits persons to vote in their
prior residence for a period after residence has been
changed. This section provides, in pertinent part:
"If a registered voter in any county shall have changed his
residence to another county . . . within ninety (90) days prior to
the date of an election, he shall be entitled to vote in his former
ward, precinct or district of registration."
Tenn.Code Ann. § 204 (Supp. 1970).
See also Tenn.Code
Ann. § 2-204 (1955).
MR. JUSTICE BLACKMUN, concurring in the result.
Professor Blumstein obviously could hardly wait to register to
vote in his new home State of Tennessee. He arrived in Nashville on
June 12, 1970. He moved into his apartment on June 19. He presented
himself to the registrar on July 1. He instituted his lawsuit on
July 17. Thus, his litigation was begun 35 days after his arrival
on Tennessee soil, and less than 30 days after he moved into his
apartment. But a primary was coming up on August 6. Usually, such
zeal to exercise
Page 405 U. S. 361
the franchise is commendable. The professor, however,
encountered -- and, I assume, knowingly so -- the barrier of the
Tennessee durational residence requirement and, because he did, he
instituted his test suit.
I have little quarrel with much of the content of the Court's
long opinion. I concur in the result, with these few added
comments, because I do not wish to be described on a later day as
having taken a position broader than I think necessary for the
disposition of this case.
1. In
Pope v. Williams, 193 U.
S. 621 (194), Mr. Justice Peckham, in speaking for a
unanimous Court that included the first Mr. Justice Harlan and Mr.
Justice Holmes, said:
"The simple matter to be herein determined is whether, with
reference to the exercise of the privilege of voting in Maryland,
the legislature of that State had the legal right to provide that a
person coming into the State to reside should make the declaration
of intent a year before he should have the right to be registered
as a voter of the State."
"
* * * *"
". . . The right of a State to legislate upon the subject of the
elective franchise as to it may seem good, subject to the
conditions already stated, being, as we believe, unassailable, we
think it plain that the statute in question violates no right
protected by the Federal Constitution."
"The reasons which may have impelled the state legislature to
enact the statute in question were matters entirely for its
consideration, and this court has no concern with them."
193 U.S. at
193 U. S. 632,
193 U. S.
633-634. I cannot so blithely explain
Pope v.
Williams away, as does the Court,
ante at
405 U. S. 337
n. 7, by asserting that, if that
Page 405 U. S. 362
opinion is "[c]arefully read," one sees that the case was
concerned simply with a requirement that the new arrival declare
his intention. The requirement was that he make the declaration a
year before he registered to vote; time, as well as intent, was
involved. For me, therefore, the Court today really overrules the
holding in
Pope v. Williams, and does not restrict itself,
as
footnote 7 says to rejecting
what it says are mere dicta.
2. The compelling state interest test, as applied to a State's
denial of the vote, seems to have come into full flower with
Kramer v. Union Free School District, 395 U.
S. 621,
395 U. S. 627
(1969). The only supporting authority cited is in the
"
See" context to
Carrington v. Rash, 380 U. S.
89,
380 U. S. 96
(1965). But as I read
Carrington, the standard there
employed was that the voting requirements be reasonable. Indeed, in
that opinion, MR. JUSTICE STEWART observed, at
380 U. S. 91,
that the State has "unquestioned power to impose reasonable
residence restrictions on the availability of the ballot." A like
approach was taken in
McDonald v. Board of Election
Commissioners, 394 U. S. 802,
394 U. S. 809
(1969), where the Court referred to the necessity of "some rational
relationship to a legitimate state end" and to a statute's being
set aside "only if based on reasons totally unrelated to the
pursuit of that goal." I mention this only to emphasize that
Kramer appears to have elevated the standard. And this was
only three years ago. Whether
Carrington and
McDonald are now frowned upon, at least in part, the Court
does not say.
Cf. Bullock v. Carter, ante, p.
405 U. S. 134.
3. Clearly, for me, the State does have a profound interest in
the purity of the ballot box and in an informed electorate, and is
entitled to take appropriate steps to assure those ends. Except
where federal intervention
Page 405 U. S. 363
properly prescribes otherwise,
see Oregon v. Mitchell,
400 U. S. 112
(1970), I see no constitutional imperative that voting requirements
be the same in each State, or even that a State's time requirement
relate to the 30-day measure imposed by Congress by 42 U.S.C. §
1973aa-1(d) for presidential elections. I assume that the Court, by
its decision today, does not depart from either of these
propositions. I cannot be sure of this, however, for much of the
opinion seems to be couched in absolute terms.
4. The Tennessee plan, based both in statute and in the State's
constitution, is not ideal. I am content that the one-year and
three-month requirements be struck down for want of something more
closely related to the State's interest. It is, of course, a matter
of line drawing, as the Court concedes,
ante at
405 U. S. 348.
But if 30 days pas constitutional muster, what of 35 or 45 or 75?
The resolution of these longer measures, less than those today
struck down, the Court leaves, I suspect, to the future.
MR. CHIEF JUSTICE BURGER, dissenting.
The holding of the Court in
Pope v. Williams,
193 U. S. 621
(1904), is as valid today as it was at the turn of the century. It
is no more a denial of equal protection for a State to require
newcomers to be exposed to state and local problems for a
reasonable period such as one year before voting, than it is to
require children to wait 18 years before voting.
Cf. Oregon v.
Mitchell, 400 U. S. 112
(1970). In both cases, some informed and responsible persons are
denied the vote, while others less informed and less responsible
are permitted to vote. Some lines must be drawn. To challenge such
lines by the "compelling state interest" standard is to condemn
them all. So far as I am aware, no state law has ever satisfied
this seemingly
Page 405 U. S. 364
insurmountable standard, and I doubt one ever will, for it
demands nothing less than perfection.
The existence of a constitutional "right to travel" does not
persuade me to the contrary. If the imposition of a durational
residency requirement for voting abridges the right to travel,
surely the imposition of an age qualification penalizes the young
for being young, a status I assume the Constitution also
protects.