319 F. Supp. 862

BEN C. GREEN, District Judge
(dissenting) :
I find that I am unable to concur in the opinion of the majority herein, in that the conclusion so reached is premised on the application of the “rational relation” test as enunciated in Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). While I recognize that Pope v. Williams has never been expressly overruled by the Supreme Court, I am in agreement with the views expressed in Blumstein v. Ellington, Civil No. 5815 (D.C.M.D.Tenn., August 31, 1970) (three judge court) and Burg v. Canniffe, 315 F.Supp. 380 (D.C.Mass., 1970) (three judge court), that the recent trend of Supreme Court rulings demonstrate that the “rational relation” rule is no longer the appropriate standard to be applied in this case.
It is my opinion that the “rational relation” test has, as set forth in the courts’ decisions in Blumstein v. Ellington, supra, and Burg v. Canniffe, supra, been supplanted by the criteria of “compelling state interest”, Kramer v. Union Free School District, 395 U.S. 621 at 627, 89 S.Ct. 1886, at 1890, 23 L.Ed.2d 583 (1969) :
* * * if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.
With all respect for the views of my colleagues on this panel, I am persuaded that those cases applying the “compelling state interest” rule represent the proper application of the Supreme Court’s most recent rulings. Cf., City of Phoenix, Ariz. v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Evans v. Cornman, 398 U.S. 419, 90. S.Ct. 1752, 26 L.Ed.2d 370 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).
At oral argument, counsel for defendant Cuyahoga County Board of Elections stated that there was no compelling state interest in the one-year residency requirement. The record does not reflect any evidence establishing a compelling state interest in maintaining the one-year residency requirement. Based on counsel’s concession and the state of the record, I am of the opinion that enforcement of the one-year residency requirement of Article V, Section 1 of the Ohio State Constitution and Section 3503.01 of the Ohio Revised Code as against these plaintiffs is in violation of the equal protection clause rights guaranteed under the Fourteenth Amendment of the United States Constitution.

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