359 F.Supp. 1 (N.D.Ill. 1973), 73 C 610, Blassman v. Markworth

Docket Nº73 C 610.
Citation359 F.Supp. 1
Party NameHoward BLASSMAN et al., Plaintiffs, v. Harold MARKWORTH, Secretary of the Board of Education of High School District 207, Maine Township, County of Cook, State of Illinois, Defendant.
Case DateApril 24, 1973
CourtUnited States District Courts, 7th Circuit, Northern District of Illinois

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359 F.Supp. 1 (N.D.Ill. 1973)

Howard BLASSMAN et al., Plaintiffs,

v.

Harold MARKWORTH, Secretary of the Board of Education of High School District 207, Maine Township, County of Cook, State of Illinois, Defendant.

No. 73 C 610.

United States District Court, N.D. Illinois, Eastern Division.

April 24, 1973

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Stuart R. Cohn and David Goldberger, The Roger Baldwin Foundation, Chicago, Ill., for plaintiffs.

Ralph Miller and Allyn J. Franke, Franke & Miller, Chicago, Ill., for defendant.

Before SWYGERT, Chief Circuit Judge, and DECKER, and McGARR, District Judges.

MEMORANDUM OPINION

DECKER, District Judge.

The relevant facts of this case are simple and essentially undisputed. Plaintiff Howard Blassman is a nineteen-year old registered voter who resides in High School District 207, Maine Township, Cook County, Illinois. Mr. Blassman wishes to become an elected member of the District 207 Board of Education. The election will be held April 14, 1973. Plaintiffs Julian Yedor, aged twenty-one, and Robert Amedeo, aged nineteen, are registered voters who reside in District 207 and support the candidacy of plaintiff Blassman. According to the complaint filed in this cause, plaintiff Blassman is in all respects qualified to become a candidate for the aforesaid office except that he has not reached the age of twenty-one as required by Illinois statute. Ill.Rev.Stat. ch. 122, § 10-10. On that basis, defendant Harold Markworth, Secretary of the District 207 Board of Education, refused to accept plaintiff Blassman's nominating petitions and statement of candidacy. Plaintiffs allege that the foregoing statutory provision violates their rights to equal protection of the law, to associate freely and generally to enjoy their civil rights as protected by the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Plaintiffs seek declaratory and injunctive relief barring enforcement of the Illinois statute by defendant Markworth. In accordance with provisions of 28 U.S.C. § 2281 et seq., a three-judge court was convened to consider the constitutionality of the statute in question. 1

The principal argument advanced by plaintiffs is that because the twenty-one year old age minimum set forth in the Illinois statute is not supported by any "compelling state interest" it runs afoul of the First and Fourteenth Amendments.

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2 Reliance is placed upon the general principle that:

"Before a state can place any restrictions upon the freedom to associate freely and to vote, it must be shown that a compelling state interest justifies such regulation." Bendinger v. Ogilvie, 335 F.Supp. 572, 574 (N.D.Ill.1971).

Defendant takes the position that the statutory age requirement is both rationally related to its objective and supported by a compelling state interest. Accordingly, defendant has moved to dismiss the complaint.

While there has been some uncertainty as to the circumstances under which the courts must apply the "compelling interest" test in Fourteenth Amendment cases, 3 we do not disagree with plaintiffs' statement of the general principle. There is no question that recent decisions have established the principle that state action regulating suffrage is not immune from the impact of the Equal Protection Clause. However, those decisions were never intended to vitiate the traditional prerogatives of the states in governing their internal affairs. See, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); 4 Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) .

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Cf. Amendment X, United States Constitution; Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct 260, 27 L.Ed.2d 272 (1970); Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). See also, McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). In declaring unconstitutional that portion of the Voting Rights Act Amendments of 1970, which had lowered the minimum voting age to eighteen years for state and local elections, Justice Black, delivering the majority opinion, stated:

"[T]he Constitution was also intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments, except insofar as the Constitution itself commands otherwise. My Brother Harlan has persuasively demonstrated that the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, 8 the power to regulate elections. My major disagreement with my Brother Harlan is that, while I agree as to the States' power to regulate the elections of their own officials, I believe, contrary to his view, that Congress has the final authority over federal elections. No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices. Pope v. Williams, 193 U.S. 621 [24 S.Ct. 573, 48 L.Ed. 817] (1904); Minor v. Happersett, 21 Wall. 162 [22 L.Ed. 627] (1875). Moreover, Art. I, § 2, 9 is a clear indication that the Framers intended the States to determine the qualifications of their own voters for state offices, because those qualifications were adopted for federal offices unless Congress directs otherwise under Art. I, § 4. It is a plain fact of history that the Framers never imagined that the national Congress would set the qualifications for voters in every election from President to local constable or village alderman. 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 Brenan'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 as 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

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was adopted and which they have retained throughout our history."

The difficulty in this case lies in the apparent anomaly between holding the states to a strict standard of scrutiny when regulation of the franchise is involved and, at the same time, supporting the principle that the states have the unfettered power to regulate the terms and mechanics of their own elections. Yet, the anomaly disappears if attention is directed to the specific "right" protected by the Fourteenth Amendment. Hence, even if this case involved a direct restriction on the right to vote, which it does not, we could not immediately resort to the compelling interest analysis. The reason is that there is no constitutionally protected right to vote per se. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

"[T]he Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population. See, e. g., Reynolds v. Sims, 377 U.S. 533 [84 S.Ct. 1362, 12 L.Ed.2d 506]; Kramer v. Union School District, 395 U.S. 621 [89 S.Ct. 1886, 23 L.Ed.2d 583]; Dunn v. Blumstein, 405 U.S. 330, 336 [92 S.Ct. 995, 31 L.Ed.2d 274]. But there is no constitutional right to vote, as such. Minor v. Happersett, 88 U.S. 162 [22 L.Ed. 627]. If there were such a right, both the Fifteenth Amendment and the Nineteenth Amendment would have been wholly unnecessary." 93 S.Ct. 1310 (Opinion of Stewart, J.)

It must be emphasized that equal participation with other qualified voters implies that power is reserved to the states to establish some voter qualifications without "compelling interest" justification. The line may be difficult to draw in some cases, but it is at least clear that absent discrimination based on race, which however trifling is forbidden, the effect of the law must be "invidiously discriminatory" if it is to be proscribed by the Fourteenth Amendment. There is little question that, prior to the Twenty-sixth Amendment, age minimums, as long as they were reasonable, did not fall into the "invidiously discriminatory" category. Oregon v. Mitchell, supra.

"To be sure, recent decisions have established that state action regulating suffrage is not immune from the impact of the Equal Protection Clause. But we have been careful in those decisions to note the undoubted power of a State to establish a qualification for voting based on age. See, e. g., Kramer v. Union School District, 395 U.S. 621, 625 [89 S.Ct. 1886, 1888, 23 L.Ed.2d 583]; Lassiter v. Northampton Election Board, 360 U.S., at 51 [79 S.Ct., at 989-990]. 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...

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10 practice notes
  • 354 A.2d 617 (N.J. 1976), Wurtzel v. Falcey
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • March 1, 1976
    ...rights as to offend the equal protection clause. E.g., Manson v. Edwards, 482 F.2d 1076 (6th Cir. 1973); Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill.1973); Human Rights Party v. Sec'y of State for Michigan, 370 F.Supp. 921 (E.D.Mich.1973). Appellants have brought forth no new or compellin......
  • 381 F.Supp. 327 (D.Md. 1974), Civ. Y-74-748, Kirkley v. State of Maryland, by Mandel
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court (Maryland)
    • August 26, 1974
    ...v. Mims, 317 F.Supp. 179 (S.D.Ala.1970), with Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill.1973) (three-judge court); Heiser v. Rhodes, 305 F.Supp. 269 (S.D.Ohio 1969) (three-judge court); Stack v. Adams, 315 F.Supp. 1295, 1......
  • 246 N.W.2d 186 (Minn. 1976), 46439, Meyers v. Roberts
    • United States
    • Minnesota Supreme Court of Minnesota (US)
    • September 24, 1976
    ...to any office. The First Amendment right to peaceably assemble may not be read as broadly as plaintiffs urge. See, Blassman v. Markworth, 359 F.Supp. 1, 7 (N.D.Ill.1973). [310 Minn. 360] We turn to whether Minn.Const. art, 7, § 6, upon which defendant relies in his refusal to certify Meyers......
  • 482 F.2d 1076 (6th Cir. 1973), 73-1025, Manson v. Edwards
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (6th Circuit)
    • July 12, 1973
    ...The court specifically rejected the contention that the compelling state interest standard was applicable. Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill. 1973). In the present case, however, we do not pass upon the issue of the validity or invalidity of the charter provision under the ratio......
  • Request a trial to view additional results
10 cases
  • 354 A.2d 617 (N.J. 1976), Wurtzel v. Falcey
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • March 1, 1976
    ...rights as to offend the equal protection clause. E.g., Manson v. Edwards, 482 F.2d 1076 (6th Cir. 1973); Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill.1973); Human Rights Party v. Sec'y of State for Michigan, 370 F.Supp. 921 (E.D.Mich.1973). Appellants have brought forth no new or compellin......
  • 381 F.Supp. 327 (D.Md. 1974), Civ. Y-74-748, Kirkley v. State of Maryland, by Mandel
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court (Maryland)
    • August 26, 1974
    ...v. Mims, 317 F.Supp. 179 (S.D.Ala.1970), with Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill.1973) (three-judge court); Heiser v. Rhodes, 305 F.Supp. 269 (S.D.Ohio 1969) (three-judge court); Stack v. Adams, 315 F.Supp. 1295, 1......
  • 246 N.W.2d 186 (Minn. 1976), 46439, Meyers v. Roberts
    • United States
    • Minnesota Supreme Court of Minnesota (US)
    • September 24, 1976
    ...to any office. The First Amendment right to peaceably assemble may not be read as broadly as plaintiffs urge. See, Blassman v. Markworth, 359 F.Supp. 1, 7 (N.D.Ill.1973). [310 Minn. 360] We turn to whether Minn.Const. art, 7, § 6, upon which defendant relies in his refusal to certify Meyers......
  • 482 F.2d 1076 (6th Cir. 1973), 73-1025, Manson v. Edwards
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (6th Circuit)
    • July 12, 1973
    ...The court specifically rejected the contention that the compelling state interest standard was applicable. Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill. 1973). In the present case, however, we do not pass upon the issue of the validity or invalidity of the charter provision under the ratio......
  • Request a trial to view additional results