Blumstein v. Ellington

• Decision Date: 01 March 1971
• Docket Number: Civ. A. No. 5815.
• Citation: 337 F. Supp. 323
• Parties: James F. BLUMSTEIN v. Buford ELLINGTON, Governor of the State of Tennessee, et al.
• Court: U.S. District Court — Middle District of Tennessee

337 F. Supp. 323

James F. BLUMSTEIN v. Buford ELLINGTON, Governor of the State of Tennessee, et al.

Civ. A. No. 5815.

United States District Court, M. D. Tennessee, Nashville Division.

August 31, 1970.

Probable Jurisdiction Noted March 1, 1971.

James F. Blumstein, pro se.

Robert H. Roberts, Asst. Atty. Gen., Thomas E. Fox, Deputy Atty. Gen., David M. Pack, Atty. Gen. and Reporter of Counsel, Nashville, Tenn., for defendants.

Before PHILLIPS, Circuit Judge, and BROWN and GRAY, District Judges.

Probable Jurisdiction Noted March 1, 1971. See 91 S.Ct. 920.

FRANK GRAY, JR., District Judge.

This is an action for a declaratory judgment and supplementary injunctive relief, pursuant to 28 U.S.C. §§ 2201 and 2202, in which plaintiff, in his own behalf and on behalf of all others similarly situated, attacks the three-month and one year durational residency requirements on voting and voter registration contained in Article IV, Section 1 of the Tennessee Constitution and its statutory implementations in the Tennessee Code Annotated as repugnant to the Constitution of the United States of America. A three-judge court, required by 28 U.S.C. § 2281, has been convened under the provisions of 28 U.S.C. § 2284.

Plaintiff moved to Tennessee on June 12, 1970, and established his home in Nashville. He is under contract of employment as assistant professor of law at Vanderbilt Law School, and, consequently, intends to remain in Nashville indefinitely. He is thus a bona fide resident of the State of Tennessee, and this is undisputed.

On July 1, 1970, plaintiff appeared at the office of the Registrar-at-large of Davidson County, where he attempted to register to vote. He was informed that, in order to qualify for registration, he had to have been a resident of Davidson County for the three-month period next preceding the forthcoming election (to be held August 6, 1970) and a resident of the State of Tennessee for the one year period next preceding that election. Accordingly, his attempt to register was refused.

Pursuant to T.C.A. § 2-319, plaintiff appealed the decision of the Registrar-at-large to the Davidson County Election Commission. At his appearance before the Election Commission, he was informed that the durational residency requirements were mandatory and that no exceptions could be made in his, or any other, case. Having thus exhausted his state statutory administrative remedies, he brought this action.

In his original complaint, plaintiff ignored the fact that the durational residency requirements herein under consideration are contained not only in T.C.A. § 2-201, but also in the Tennessee Constitution. He has therefore amended his complaint so that the validity of both the constitutional and the statutory provisions is placed at issue in this case. It also appears that the Tennessee durational residency requirements apply to voter registration, as well as to actual voting, by virtue of T.C.A. § 2-304. We hereby take judicial notice of that fact, and the remainder of this opinion is thus addressed to the following issue: Whether the one year and three-month durational residency requirements contained in Article IV, Section 1 of the Tennessee Constitution, in T.C.A. § 2-201, and in T.C.A. § 2-304 are repugnant to the Constitution of the United States.

We are faced at the outset by the problem of whether this is a proper case in which to consider the validity of the three-month requirement. The August 6, 1970, primary and general elections have already been held, and plaintiff will have met the three-month requirement by the time of the November general election. As indicated above, plaintiff originally desired to vote in the August elections, and, to do so, he requested that this court issue a temporary injunction which would have had the effect of opening the Davidson County voter registration rolls to him and to all others similarly situated so that they could participate.

The temporary injunction was refused by this court on the ground that it would be "so obviously disruptive as to constitute an example of judicial improvidence."

Aware that he will have met the three-month requirement by the time of the November election, plaintiff next filed a motion to be allowed to cast a sealed provisional ballot in the August 6, 1970, primary and general elections, with the clerk of this court, thus keeping the three-month aspect of the case alive as to him, pending ultimate adjudication on the merits, and avoiding dismissal of that issue as moot. This motion was denied also, on grounds essentially the same as those for our refusal to issue the temporary injunction.

Despite plaintiff's fears as to the possible mootness of the three-month requirement issue, we are of the opinion that "none of the concededly imperative policies behind the constitutional rule against entertaining moot controversies would be served by a dismissal in this case," Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed. 2d 917 (1968), and that, indeed, the three-month issue has not been rendered moot by the passage of the August elections without plaintiff's having been allowed to participate therein.

Controlling authority for such a view is found in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) — a case identical, in principle, to the one at bar. There, as here, preliminary extraordinary relief was withheld because of the administrative difficulties which would have been entailed by its implementation. The election was then conducted, and, as a result, the defendants argued that the case had been rendered moot. The Supreme Court disagreed. Applying the test first enunciated in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), the Court held that "the problem is * * * `capable of repetition, yet evading review' citation omitted, and the need for its resolution thus reflects a continuing controversy in the federal-state area. * * *" Moore, supra, 394 U.S. at 816, 89 S.Ct. at 1494.

That the Tennessee three-month residency requirement raises precisely such a problem — "capable of repetition, yet evading review" — is obvious from a cursory analysis of the factual situation which such a requirement creates. As stated by Mr. Justice Brennan, in his dissenting opinion in the case of Hall v. Beals, 396 U.S. 45, 50, 90 S.Ct. 200, 203, 24 L.Ed.2d 214 (1969), with reference to the Colorado two-month residency requirement:

"The constitutional challenge to the * * * Colorado statute is peculiarly evasive of review. This is because ordinarily a person's standing to raise that question would not mature unless he had become a Colorado resident within two months prior to an * * election. Barring resort to extraordinary expedients, that interval is obviously too short for the exhaustion of state administrative remedies and the completion of a lawsuit * * *."

This reasoning applies with equal force to the case at bar. Indeed, it applies with greater force, because of the fact that unlike the Hall situation (discussed at greater length, infra), there has been no amendment to the Tennessee three-month provision taking the plaintiff out of the class aggrieved by it.

At first blush, the recent decision of the Supreme Court in Hall, supra, wherein an action challenging the validity of the Colorado durational residency requirement was held to be moot, might appear to have implications for the case at bar. Nevertheless, this court is of the opinion that the decision in that case is inapplicable to the instant situation.

In Hall, prior to the ultimate adjudication of the controversy, the statute called into question was amended by the Colorado Legislature. Thus, viewing "* * the Colorado statute as it now stands, not as it once did * * *," the Supreme Court concluded that, unlike the plaintiff in the instant case, "* * * under the statute as currently written, the appellants could have voted in the election in question * * *," and therefore the case was no longer "* * * a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law." Hall, supra, at 48, 90 S.Ct. at 201 (emphasis added).

The Court noted that the election was over, that it was impossible to grant plaintiffs the relief they had prayed for, and that they had, in fact, satisfied the residency requirement originally under attack. Nevertheless, the Court specifically noted that the case's mootness was "* * * apart from these considerations. * * *" (emphasis added). In short, the case was held to be moot not because the election had already been held, but rather because the statute under attack was no longer operative. Thus a ruling on the validity of the pre-amendment statute would, indeed, have been nothing more than an advisory opinion on an abstract proposition of law. The Court found it "* * * impossible to grant appellants the relief they sought in the District Court," because relief of any kind quite obviously cannot be granted against the operation of a nonexistent statute. The Tennessee requirement, quite unlike that of Colorado, remains in full force and effect, and thus the mootness holding in Hall v. Beals, as well as the rationale for that holding, is inapplicable to the case at bar.

The Hall Court also refused to consider plaintiffs' belated attack on the Colorado statute as amended. Although the Court stated that the "* * * amendatory action of the Colorado Legislature has surely operated to render this case moot," it is clear that the Court's refusal to consider the amended statute was actually based more on the question of plaintiffs' standing to challenge it than on the doctrine of mootness. The Court specifically noted that the amended statute did not affect either the plaintiffs' "* * * present interests, or their interests at the time this litigation was commenced," and that they had never been members of the class...