336 F. Supp. 153

JACK M. GORDON, District Judge
(concurring):
I fully concur in the views expressed in the majority opinion. Because of the importance of the issues before the Court, and because of the observations made by the dissenting Judge, I feel constrained to clarify and further express my own views.
With regard to the issue concerning the validity of the Louisiana statute requiring durational residence requirements before being eligible to vote in a state election, one is confronted, as both the majority opinion and the dissenting opinion describe, with an imposing array of Three Judge District Court decisions on both sides of the issue. A common thread of legal theory runs through all of the cases which have held such durational residence requirements to be invalid as a violation of the Equal Protection Clause of the Constitution. That thread is the thought that specific expressions of the Supreme Court upholding durational residence requirements such as those cited in the majority opinion, and the Supreme Court’s per curiam affirmation of Drueding v. Devlin, 234 F. Supp. 721 (Md.1964), aff’d, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792 (1965), all took place prior to the “age of enlightenment” which was ushered in by the case of Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) and the adoption of the so-called “compelling interest” test. Indeed, although the Supreme Court has never specifically made applicable to durational residency requirements the so-called compelling interest test, it has applied the test in a number of other cases involving state statutes which restricted certain classes of individuals from voting.
Thus, but for certain recent Supreme Court decisions, one might argue that the Supreme Court had intended to make the compelling interest test applicable in any case involving state statutes in respect to voting, including durational residence requirements. I respectfully submit, however, that this position is no longer tenable following the Supreme Court’s decision in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). Although this decision did not directly involve the constitutionality of state statutes and five separate opinions must be studied in order to glean the Supreme Court’s disposition with regard to the matter then before it (the validity of the Voting Rights Act Amendments of 1970), I feel that it is clear from that decision that a majority of the Supreme Court would permit a state to enact reasonable durational residence requirements as a prerequisite to voting in state elections, without the necessity of show-in a compelling interest to support such a requirement. As Mr. Justice Black stated in an opinion expressing his own view of the cases, and announcing the judgments of the Court:
It is obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections, except to the limited extent that the people through constitutional amendments have specifically narrowed the powers of the States. Amendments Fourteen, Fifteen, Nineteen, and Twenty-four, each of which has assumed that the States had general supervisory power over state elections, are examples of express limitations on the power of the States to govern themselves. And the Equal Protection Clause of the Fourteenth Amendment was never intended to destroy the States’ power to govern themselves, making the Nineteenth and Twenty-fourth Amendments superfluous. My Brother BRENNAN’S opinion, if Carried to its logical conclusion, would, under the guise of insuring equal protection, blot out all state power, leaving the 50 States little more than impotent figureheads. In interpreting what the Fourteenth Amendment means, the Equal Protection Clause should not be stretched to nullify the States’ powers over elections which they had before the Constitution was adopted and which they have retained throughout our history. 400 U.S. 112, 125-126, 91 S.Ct. 260, 265, 27 L.Ed.2d 272.
It is clear to me that the portion of Mr. Justice Brennan’s dissenting opinion to which Mr. Justice Black had reference in the foregoing quotation is that portion of Mr. Justice Brennan’s opinion assorting that in cases involving exclusion from the franchise the court must determine whether the exclusions are necessary to promote a compelling state interest. More specifically, the dissenting opinion of Mr. Justice Brennan, joined in by Mr. Justices White and Marshall, stated:
The right to vote has long been recognized as a “fundamental political right, because preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 [6 S.Ct. 1064, 1071, 30 L.Ed. 220] (1886); see Reynolds v. Sims, 377 U.S. 533, 562 [84 S.Ct. 1362, 1381, 12 L.Ed.2d 506] (1964); Williams v. Rhodes, 393 U.S. 23, 31 [89 S.Ct. 5, 10, 21 L.Ed.2d 24] (1968), “Any unjustified discrimination in determining who may participate in political affairs . undermines the legitimacy of representative government.” Kramer v. Union [Free] School District, 395 U.S. at 626 [89 S.Ct., at 1889]. Consequently, when exclusions from the franchise are challenged as violating the Equal Protection Clause, judicial scrutiny is not confined to the question whether the exclusion may reasonably be thought to further a permissible interest of the State. Cf. Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580, 583-584 [55 S.Ct. 538, 539-540, 79 L.Ed. 1070] (1935). “A more exacting standard obtains.” Kramer v. Union [Free] School District, 395 U.S. at 633 [89 S.Ct., at 1892]. In such cases, “the Court must determine whether the exclusions are necessary to promote a compelling state interest.” Id. at 627 [89 S.Ct., at 1890]; Cipriano v. City of Houma, 395 U.S. 701, 704 [89 S.Ct. 1897, 1899, 23 L.Ed.2d 647] (1969). 400 U.S. 112, 241-242, 91 S.Ct. 260, 323, 27 L.Ed.2d 272.
I believe that this language of Mr. Justice Brennan’s dissent succinctly summarizes the theory adopted by those three judge cases which have held durational residency requirements to be invalid, and the position set forth by the dissenting Judge in this case. Indeed, the accuracy of Mr. Justice Black’s observation concerning the effect of carrying the compelling interest test to its logical conclusion is demonstrated graphically by the recognition in the dissenting opinion herein that “ . to carry the ‘interest’ theory so far as to franchise Alaskans in Louisiana would be, in effect, to eliminate the whole notion of state citizenship and, in large measure, to do away with our federal system of government.”
I believe that the right of a state to establish a reasonable durational residency requirement is extremely analogous, if not identical, to the right of a state to establish voting ages. In regard to the right of a state to establish voting age, Mr. Justice Stewart, in his opinion in Oregon v. Mitchell, supra, stated:
Indeed, none of the opinions filed today suggest that the States have anything but a constitutionally unimpeachable interest in establishing some age qualification as such. Yet to test the power to establish an age qualification by the “compelling interest” standard is really to deny a State any choice at all, because no State could demonstrate a “compelling interest” in drawing the line with respect to age at one point rather than another. Obviously, the power to establish an age qualification must carry with it the power to choose 21 as a reasonable voting age, as the vast majority of the States have done. 400 U.S. 112, 294-295, 91 S.Ct. 260, 349, 27 L.Ed.2d 272.
There can be no clearer expression of the onerous effect of subjecting a state to the necessity of justifying a statute under the compelling interest test, as many have sought to apply that test.
If a state may decide that its inhabitants are incapable of exercising the franchise until they have reached a certain age, then I believe that a state likewise may decide that certain residents should not exercise the franchise until they have fulfilled some minimal durational residency requirement, so as to become acquainted with the state’s affairs, and to deter fraudulent migration for the purpose of maintaining the integrity of the election process. If, however, this Court were to adopt the compelling interest test, and apply such test as it has been asked to do, then the Court would be required to strike down all durational residence requirements except those which the state could discharge the burden of proving a compelling interest in maintaining. I doubt that a state could discharge this burden for any period of time, except perhaps for the period of time required in order to carry out the logistical registration processes, and these undoubtedly would vary from locality to locality, even within a state.
In this regard, although our dissenting Brother would have us adopt the compelling interest test, he is not willing to accept the consequences thereof. Notwithstanding the fact that the State in this case has demonstrated no compelling interest for any period of time, the dissent would allow the State to maintain the shortest of the durational requirements which it has established as a means of deterring fraudulent migration. It is significant, I believe, that in reaching this conclusion the dissenting Judge acknowledges the validity of the reasoning of Mr. Justice Stewart in Oregon v. Mitchell, supra, quoted above, that we cannot acknowledge the right of the State with one hand then take it away with the other by requiring the State to justify the specific duration it has selected. In my opinion this is equivalent to saying that the compelling interest test, as generally interpreted, cannot be applied if a state has the right to select any durational requirement.
I respectfully submit that it is unnecessary to attempt to rationalize the question of whether a State voting statute is violative of the Equal Protection Clause of the Constitution by ascribing such great weight as that which some feel to have become attached to the so-called compelling interest test. To do so only invites the logical conclusion about which Mr. Justice Black warned us. I believe that a more proper approach to Kramer, and its progeny, is not that a State must justify every statutory exclusion in the voting area in state elections as meeting a compelling interest of the state, but rather that those exclusions which fall in the category of “invidious discrimination” as defined by the Supreme Court in its cases interpreting the Equal Protection Clause may only be sustained by the state if the state can show a compelling interest for such discrimination.
In those cases involving voting in which the Supreme Court heretofore has applied the compelling interest test, the discrimination complained o,f permanently excluded certain classes from voting, and there was ample justification to treat such discrimination as “invidious” within the holdings of such eases as McGowan v. State of Maryland, supra,. It is very doubtful whether a state could under any circumstances justify this type of discrimination as meeting a compelling interest.
I do not consider a reasonable durational residence requirement (so temporary in nature that most plaintiffs have great difficulty securing final adjudication of their eases before mootness occurs by expiration of the duration) to be such invidious discrimination as would require the application of this exacting test, and I do not believe the Supreme Court has so treated it. Indeed, I believe that the Supreme Court in Oregon v. Mitchell, supra, and in the very recent case of Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971), has placed in proper perspective the application of its recent cases interpreting the Equal Protection Clause, and has given ample guidance to District Courts in disposing of issues such as that now before us. It is not, I submit, a proper function of a District Court to substitute its judgment for that of a State’s legislature on the establishment of voting qualifications which the Constitution has reserved for such legislature. Neither should a District Court interpret the Equal Protection Clause in such fashion as to substitute therefor a test which would, as stated by Mr. Justice Black, “blot out all state power, leaving the 50 states little more than impotent figureheads.” Oregon v. Mitchell, 400 U.S. at 126, 91 S.Ct. at 265. In this regard Mr. Justice Harlan’s comments in Oregon v. Mitchell, supra, are, I think, most pertinent. He said:
The judiciary has long been entrusted with the task of applying the Constitution in changing circumstances, and as conditions change the Constitution in a sense changes as well. But when the Court gives the language of the Constitution an unforeseen application, it does so, whether explicitly or implicitly, in the name of some underlying purpose of the Framers. This is necessarily so; the federal judiciary, which by express constitutional provision is appointed for life, and therefore cannot be held responsible by the electorate, has no inherent general authority to establish the norms for the rest of society. It is limited to elaboration and application of the precepts ordained in the Constitution by the political representatives of the people. When’ the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its highest duty to protect.
Judicial deference is based, not on relative factfinding competence, but on due regard for the decision of the body constitutionally appointed to decide. Establishment of voting qualifications is a matter for state legislatures. Assuming any authority at all, only when the Court can say with some confidence that the legislature has demonstrably erred in adjusting the competing interests is it justified in striking down the legislative judgment. This order of things is more efficient and more congenial to our system and, in my judgment, much more likely to achieve satisfactory results than one in which the Court has a free hand to replace state legislative judgments with its own. 400 U.S. 112, 202-203, 207, 91 S.Ct. 260, 304, 27 L.Ed.2d 272.
The durational residency requirements imposed by Louisiana are longer than those which I would choose if I were required to exercise discretion as a legislator, in view of many factors, including modern day communications. I do not consider, however, that the exercise of such discretion is the proper function of this Court, nor do I subscribe to any theory which would substitute judicial expediency for legislative wisdom. Since I do not believe the discrimination here attacked to be invidious discrimination, it should not be set aside as violative of the Equal Protection Clause if any state of facts reasonably may be conceived to justify it. This obviously may be done, and indeed the plaintiffs have not attempted to discharge the burden of proving otherwise.
Turning briefly to the second issue raised by the plaintiffs, which the dissenting opinion has described as having been treated in “cavalier” fashion by the majority, I should like to add my views which I think further demonstate the correctness of the majority decision.
In the first place, the fact that certain of the plaintiffs in this lawsuit may not participate in the primary election conducted by the Democrat Party on November 6, 1971, because of their not having changed their registered affiliation from Republican to Democrat more than six months prior to such primary election, as required by Louisiana law, is not, in my opinion, a result of the Louisiana statutory scheme but rather is a result of the action or inaction of such plaintiffs. These plaintiffs have stated no reason other than inconvenience or lack of knowledge of the law to justify their failure to have changed their party affiliation in sufficient time to have permitted them to vote in the November 6, 1971, primary of the Democrat Party as contemplated by Louisiana law. Under these circumstances I am at a loss to understand how the plaintiffs can contend that they have been denied equal protection of the laws.
They have, in an attempt to bring their case within the purview of the Equal Protection Clause, asserted that the State discriminates between voters who change their registration from one political party to another and those who change their registration from “Independent” to that of a political party. In the latter case, under the Louisiana election laws, a person may participate in the primary election of his new party without the six month waiting period. When one considers the entire statutory scheme of the Louisiana election laws as set forth in Title 18 of the Louisiana Revised Statutes, it is, I believe, abundantly clear why Louisiana would wish to maintain the integrity of its political parties by providing such a waiting period for those wishing to change from one party to another. The same reasoning obviously would not apply to individuals registered as “Independent” since they presumably would have no loyalty to any party until such time as they chose to affiliate with it. A review of the Louisiana election laws reveals that this is entirely consistent with other distinctions or discriminations contained in such laws. For example, those registered “Independent” have the right to cause candidates to be placed on the general election ballot by petition of persons similarly registered. This privilege is not enjoyed by those who are registered as affiliated with a political party. La. Rev.Stat. 18:624.
Under the statutory scheme of the Louisiana election laws the political parties are vested with great responsibilities which are vitally important in the conduct of elections. The executive committees of the political parties are required to call elections, name commissioners, certify candidates, and in almost all other respects conduct the logistical affairs related to elections. The mischief which could be done by allowing promiscuous changeovers from one party to another, particularly in a state like Louisiana which has closed primaries, and which has one very predominant party, are too obvious to require delineation.
. See, McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).
. Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970).

Passage view · GavelSight