Voter Qualifications.—A State may require residency as a qualification to vote but since durational residency requirements impermissibly restrict the right to vote and penalize the assertion of the constitutional right to travel they are invalid.1769 The Court indicated that the States have a justified interest in preventing fraud and in facilitating determination of the eligibility of potential registrants and granted that durational residency requirements furthered these interests, but, it said, the State had not shown that the requirements were "necessary," that is that the interests could not be furthered by means which imposed a lesser burden on the right to vote. Other asserted interests—knowledgeability of voters, common interests, intelligent voting—were said either not to be served by the requirements or to be impermissible interests.
A 50-day durational residency requirement was sustained in the context of the closing of the registration process at 50 days prior to elections and of the mechanics of the State's registration process. The period, the Court found, was necessary to achieve the State's legitimate goals.1770
1769 Dunn v. Blumstein, 405 U.S. 330 (1972). Justice Blackmun concurred specially, id. at 360, Chief Justice Burger dissented, id. at 363, and Justices Powell and Rehnquist did not participate. The voided statute imposed a requirement of one year in the State and three months in the county. The Court did not indicate what duration less than ninety days would be permissible, although it should be noted that in the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. § 1973aa- 1, Congress prescribed a thirty-day period for purposes of voting in presidential elections. Note also that it does not matter whether one travels interstate or intrastate. Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970), aff'd, 405 U.S. 1035 (1972).
1770 Marston v. Lewis, 410 U.S. 679 (1973). Registration was by volunteer workers who made statistically significant errors requiring corrections by county recorders before certification. Primary elections were held in the fall, thus occupying the time of the recorders, so that a backlog of registrations had to be processed before the election. A period of 50 days rather than 30, the Court thought, was justifiable. However, the same period was upheld for another State on the authority of Marston in the absence of such justification, but it appeared that plaintiffs had not controverted the State's justifying evidence. Burns v. Fortson, 410 U.S. 686 (1973). Justices Brennan, Douglas, and Marshall dissented in both cases. Id. at 682, 688.
A State that exercised general criminal, taxing, and other jurisdiction over persons on certain federal enclaves within the State, the Court held, could not treat these persons as nonresidents for voting purposes.1771 A statute which provided that anyone who entered military service outside the State could not establish voting residence in the State so long as he remained in the military was held to deny to such a person the opportunity such as all non-military persons enjoyed of showing that he had established residence.1772 Restricting the suffrage to those persons who had paid a poll tax was an invidious discrimination because it introduced a "capricious or irrelevant factor" of wealth or ability to pay into an area in which it had no place.1773 Extending this ruling, the Court held that the eligibility to vote in local school elections may not be limited to persons owning property in the district or who have children in school,1774 and denied States the right to restrict the voteto property owners in elections on the issuance of revenue bonds1775 or general obligation bonds.1776
However, the Court held that because the activities of a water storage district fell so disproportionately on landowners as a group, a limitation of the franchise in elections for the district's board of directors to landowners, whether resident or not and whether natural persons or not, excluding non-landowning residents and les-sees of land, and weighing the votes granted according to assessed valuation of land, comported with equal protection standards.1777 Adverting to the reservation in prior local governmental unit election cases1778 that some functions of such units might be so specialized as to permit deviation from the usual rules, the Court then proceeded to assess the franchise restrictions according to the traditional standards of equal protection rather than by those of strict scrutiny.1779 Also narrowly approached was the issue of the effect of the District's activities, the Court focusing upon the assessments against landowners as the sole means of paying expenses rather than additionally noting the impact upon lessees and nonlandowning residents of such functions as flood control. The approach taken in this case seems different in great degree from that in prior cases and could in the future alter the results in other local government cases. These cases were extended somewhat in Ball v. James,1780 in which the Court sustained a system in which voting eligibility was limited to landowners and votes were allocated to these voters on the basis of the number of acres they owned. The entity was a water reclamation district which stores and delivers water to 236,000 acres of land in the State and subsidizes its water operations by selling electricity to hundreds of thousands of consumers in a nearby metropolitan area. The entity's board of directors was elected through a system in which the eligibility to vote was as described above. The Court thought the entity was a specialized and limited form to which its general franchise rulings did not apply.1781
1771 Evans v. Cornman, 398 U.S. 419 (1970).
1772 Carrington v. Rash, 380 U.S. 89 (1965).
1773 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966). Justices Black, Harlan, and Stewart dissented. Id. at 670, 680. Poll tax qualifications had previously been upheld in Breedlove v. Suttles, 302 U.S. 277 (1937); and Butler v. Thompson, 341 U.S. 937 (1951).
1774 Kramer v. Union Free School Dist., 395 U.S. 621 (1969). The Court assumed without deciding that the franchise in some circumstances could be limited to those "primarily interested" or "primarily affected" by the outcome, but found that the restriction permitted some persons with no interest to vote and disqualified others with an interest. Justices Stewart, Black, and Harlan dissented. Id. at 594.
1775 Cipriano v. City of Houma, 395 U.S. 701 (1969). Justices Black, Harlan, and Stewart concurred specially. Id. at 707.
1776 City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). Justice Stewart and Chief Justice Burger dissented. Id. at 215. In Hill v. Stone, 421 U.S. 289 (1975), the Court struck down a limitation on the right to vote on a general obligation bond issue to persons who have "rendered" or listed real, mixed, or personal property for taxation in the election district. It was not a "special interest" election since a general obligation bond issue is a matter of general interest.
1777 Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973). See also Associated Enterprises v. Toltec Watershed Improv. Dist., 410 U.S. 743 (1973) (limitation of franchise to property owners in the creation and maintenance of district upheld). Justices Douglas, Brennan, and Marshall dissented in both cases. Id. at 735, 745.
1778 410 U.S. at 727-28.
1779 410 U.S. at 730, 732. Thus, the Court posited reasons that might have moved the legislature to adopt the exclusions.
1780 451 U.S. 355 (1981). Joining the opinion of the Court were Justices Stewart, Powell, Rehnquist, Stevens, and Chief Justice Burger. Dissenting were Justices White, Brennan, Marshall, and Blackmun. Id. at 374.
1781 The water district cases were distinguished in Quinn v. Millsap, 491 U.S. 95. 109 (1989), the Court holding that a "board of freeholders" appointed to recommend a reorganization of local government had a mandate "far more encompassing" than land use issues, since its recommendations "affect[ ] all citizens . . . regardless of land ownership."
Finding that prevention of "raiding"—the practice whereby voters in sympathy with one party vote in another's primary election in order to distort that election's results—is a legitimate and valid state goal, as one element in the preservation of the integrity of the electoral process, the Court sustained a state law requiring those voters eligible at that time to register to enroll in the party of their choice at least 30 days before the general election in order to be eligible to vote in the party's next primary election, 8 to 11 months hence. The law did not impose a prohibition upon voting but merely imposed a time deadline for enrollment, the Court held, and it was because of the plaintiffs' voluntary failure to register that they did not meet the deadline.1782 But a law which prohibited a person from voting in the primary election of a political party if he has voted in the primary election of any other party within the preceding 23 months was subjected to strict scrutiny and was voided, inasmuch as it constituted a severe restriction upon a voter's right to associate with the party of his choice by requiring him to forgo participation in at least one primary election in order to change parties.1783 A less restrictive "closed primary" system was also invalidated, the Court finding insufficient justification for a state's preventing a political party from allowing independents to vote in its primary.1784
It must not be forgotten, however, that it is only when a State extends the franchise to some and denies it to others that a "right to vote" arises and is protected by the equal protection clause. If a State chooses to fill an office by means other than through an election, neither the equal protection clause nor any other constitutional provision prevents it from doing so. Thus, in Rodriguez v. Popular Democratic Party,1785 the Court unanimously sustained a Puerto Rico statute which authorized the political party to which an incumbent legislator belonged to designate his successor in office until the next general election upon his death or resignation. Neither the fact that the seat was filled by appointment nor the fact that the appointment was by the party, rather than by the Governor or some other official, raised a constitutional question.
The right of unconvicted jail inmates and convicted misdemeanants (who typically are under no disability) to vote by absentee ballot remains unsettled. In an early case applying rational basis scrutiny, the Court held that the failure of a State to provide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny equal protection when it was not shown that the inmates could not vote in any other way.1786 Subsequently, the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences, but it is unclear whether the basis was the fact that persons confined in jails outside the county of their residences could register and vote absentee while those confined in the counties of their residences could not, or whether the statute's jumbled distinctions among categories of qualified voters on no rational standard made it wholly arbitrary.1787
1782 Rosario v. Rockefeller, 410 U.S. 752 (1973). Justices Powell, Douglas, Brennan, and Marshall dissented. Id. at 763.
1783 Kusper v. Pontikes, 414 U.S. 51 (1973). Justices Blackmun and Rehnquist dissented. Id. at 61, 65.
1784 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). Although independents were allowed to register in a party on the day before a primary, the state's justifications for "protect[ing] the integrity of the Party against the Party itself" were deemed insubstantial. Id. at 224.
1785 457 U.S. 1 (1982). See also Fortson v. Morris, 385 U.S. 231 (1966) (legislature could select Governor from two candidates having highest number of votes cast when no candidate received majority); Sailors v. Board of Elections, 387 U.S. 105 (1967) (appointment rather than election of county school board); Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968) (three-judge court), aff'd, 393 U.S. 405 (1969) (gubernatorial appointment to fill United States Senate vacancy).