Forssenius v. Harman

• Decision Date: 29 May 1964
• Docket Number: Civ. A. No. 3897,3898.
• Citation: 235 F. Supp. 66
• Parties: Lars FORSSENIUS, Plaintiff, v. A. M. HARMAN, Jr., et al., Defendants. Horace E. HENDERSON, Plaintiff, v. A. M. HARMAN, Jr., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

235 F. Supp. 66

Lars FORSSENIUS, Plaintiff, v. A. M. HARMAN, Jr., et al., Defendants.

Horace E. HENDERSON, Plaintiff, v. A. M. HARMAN, Jr., et al., Defendants.

Civ. A. Nos. 3897, 3898.

United States District Court E. D. Virginia, at Richmond.

Argued May 12, 1964.

Decided May 29, 1964.

Probable Jurisdiction Noted October 12, 1964.

H. E. Widener, Jr., David H. Frackelton, Bristol, Va., L. S. Parsons, Jr., Norfolk, Va., J. L. Dillow, Pearisburg, Va., John N. Dalton, Radford, Va., Bentley Hite, Christiansburg, Va., for plaintiffs.

Robert Y. Button, Atty. Gen. of Virginia, Richard N. Harris, Asst. Atty. Gen. of Virginia, E. Milton Farley, III, Joseph C. Carter, Jr., Richmond, Va., Edward H. Richardson, Commonwealth's Atty., Roanoke County, Salem, Va., Ralph G. Louck, Commonwealth's Atty., Fairfax County, Fairfax, Va., for defendants.

Before BRYAN, Circuit Judge, and HOFFMAN and BUTZNER, District Judges.

Probable Jurisdiction Noted October 12, 1964. See 85 S.Ct. 83.

ALBERT V. BRYAN, Circuit Judge.

Since the adoption of the 24th Amendment forbidding exaction of a poll tax as a prerequisite to voting in a Federal election,^* Virginia has enacted an additional qualification for the Federal voter. If he has not paid the poll tax still required in State elections, he must file within the same time a certificate of continuing residence. No such certificate is demanded of a voter in an election for the Virginia House of Delegates. By Article I, Section 2 and by the 17th Amendment of the United States Constitution, it is ordained that electors choosing a Representative or Senator in Congress "shall have the Qualifications requisite for Electors of the most numerous Branch the House of Delegates of the State Legislature(s)". Thus, the Virginia statutes — 1963 Acts — imposing the extra test upon the Federal elector contravenes, as this suit now asserts, these constitutional provisions.

The plaintiffs further assert that the ultimate effect of the 24th Amendment is to rescind the power of the State to insist upon the payment of a poll tax as a condition for voting in the election of members of the House of Delegates. We do not agree.

These propositions were posed by the two complaints here, one of Lars Forssenius and the other of Horace E. Henderson, both citizens of the United States and of the State of Virginia having the requisite residence to vote, and each suing for himself and others as a class similarly situated. The suits have been consolidated and are now treated as a single cause.

The 1963 Acts were adopted at an extra session of the Virginia Legislature in anticipation of the promulgation of the 24th Amendment, which occurred February 4, 1964. Prior thereto, the Constitution of Virginia, in Article II, and the statutes of the State, Code §§ 24-67 and 24-17, provided for the registration and voting of electors in all elections, both Federal and State, primary and general. In brief, the requirements were: age of not less than 21 years, residence within the State for one year and of the city or county six months and the payment "at least six months prior to the election * * * to the proper official all State poll taxes $1.50 annually assessed or assessable against him for three years next preceding such election". Registration is required only once. Each election year, however, there is compiled a new list of poll taxes paid.

Amendment 24, so far as pertinent, provides in § 1:

"* * * The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax".

Obviously, the effect of this amendment was to annul in Virginia's Constitution and statutes payment of a poll tax as a condition for registering and voting in primary and general Federal elections. Guinn v. United States, 238 U.S. 347, 362, 35 S.Ct. 926, 59 L.Ed. 1340 (1915); Ex parte Yarbrough, 110 U.S. 651, 655, 4 S.Ct. 152, 28 L.Ed. 274 (1884).

The 1963 Acts directed a division of the registration and voting qualification record into two classes, one for Federal elections and another for State elections. For this purpose Code § 24-67 providing for registration, and § 24-17 for voting, were each amended and enlarged. No change was made with regard to State elections. The changes inserted for participation in Federal elections were two-fold: (1) the withdrawal of the poll tax payment both for registration and for voting, and (2) the addition, for voting, of this requirement in Code § 24-17.2 set out in part below:

"Proof of residence required; how furnished. — (a) No person shall be deemed to have the qualifications of residence required by the Constitution and statutes of Virginia in any calendar year subsequent to that in which he registered * * * and he shall not be entitled to vote in this State in any Federal election unless he has offered proof of continuing residence by filing in person, or otherwise, a certificate of residence at the time and in the manner prescribed in paragraph (b) of this section, or, at his option, by * * * payment of the customary poll taxes. Proof of continuing residence may only be established by either of such two methods.

"(b) Any person who shall offer proof of continuing residence by filing a certificate of residence as provided in paragraph (a) of this section, shall file with the treasurer of his county or city not earlier than the first of October of the year next preceding that in which he offers to vote and not later than six months prior to the election, a certificate in form substantially as follows:

"`I do certify that I am now and have been a resident of Virginia since the date of my registration to vote under the laws of Virginia, that I am now a resident of ...... (city or county), residing at ...... (street and number, or place of residence therein), and that it is my present intention not to remove from the city or county stated herein prior to the next general election.

Witnessed or Subscribed and sworn to before me this ....... day of ......., 19 Notary Public'

Every such certificate shall bear the signature of the person offering the same, and shall be verified by his affidavit or witnessed by at least one adult.

"(c) Proof of continuing residence by either of the two methods provided for in paragraph (a) of this section shall be deemed conclusive, subject only to challenge under § 24-253."

As a result of the new statutes a citizen after registration may vote in both Federal and State elections if he has satisfied the assessable poll tax; if he has not paid the tax he cannot vote in any State election but he may vote in a Federal election upon filing the certificate of residence.

I. The pivotal point before us is whether or not the certificate of residence is simply an instrument evidencing residence, that is, merely proof of the residence qualification; or is a separate qualification put upon the Federal voter, or at least an enlargement of the residence qualification, which in either event is not placed on the State voter. Concededly, residence is a qualification properly required for both Federal and State suffrage. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959).

In this determination, we reject the abstention argument pressed by the defendants: that the significance of the certificate and its character as used in the 1963 Acts is a State question, and we should stay our hand until the courts of Virginia are afforded the opportunity to interpret the term. Whether a requirement of State law constitutes a discrimination against the Federal voter, either by a separate or a disproportionate qualification, within the meaning of Article I, Section 2 and the 17th Amendment of the Federal Constitution is immediately a Federal question. No matter the careful and scrupulous study of the State courts, the determination is one manifestly within the framework of the Federal Constitution and so must be the decision of the Federal court. In Ex parte Yarbrough, supra, 110 U.S. 651, 663, 4 S.Ct. 152, 158 the Court said:

"But it is not correct to say that the right to vote for a member of congress does not depend on the constitution of the United States.

* * * * * *

"The states, in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for members of congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the constitution of the United States says the same persons shall vote for members of congress in that state". (Accent added.)

Because of the 1963 Acts, with the poll tax removed from Federal elections, the electors in the two elections do not enjoy equal eligibility. The Federal elector must file a witnessed or notarized certificate of residence, not only declaring himself a current resident of Virginia, but also that he has been a resident since his registration. After giving the street number of his residence, he must give assurance of his...