Carrington v. Rash

CourtSupreme Court of Texas
Citation378 S.W.2d 304
Docket NumberNo. A-10104,A-10104
PartiesSergeant Herbert N. CARRINGTON, Relator, v. Alan V. RASH et al., Respondents.
Decision Date29 April 1964

Peticolas, Luscombe & Stephens, Wayne Windle, Jr., El Paso, with above firm, for relator.

Tad R. Smith El Paso, Waggoner Carr, Atty. Gen., Mary Kate Parker Wall, Asst. Atty. Gen., Austin, for respondents.

STEAKLEY, Justice.

This proceeding presents for decision the question of whether a nonresident at the time of entering the regular military service of the United States can acquire a voting residence in Texas so long as he is in the military service. We hold that he may not.

Relator, Herbert N. Carrington, is a sergeant in the United States Army. He entered the military service in 1946, at which time he was a resident of Alabama. He has been stationed at White Sands, New Mexico, and has resided in El Paso County, Texas, since February, 1962. He has purchased a home in El Paso, pays taxes in El Paso, registers his automobile in El Paso, and has purchased a poll tax in El Paso. He says that El Paso County is his legal residence, and we assume that such is the case.

Relator desires to vote in the Republican Party Primary Election to be held on May 2, 1964. Respondent, Alan V. Rash, is Chairman of the Republican Party Executive Committee of El Paso County and the Respondent, Margaret Hockenberry is the Presiding Judge of the precinct in which Relator would vote. These Respondents have informed Relator that he will not be permitted to vote because of the opinion of the Attorney General of Texas, dated November 6, 1963, holding that a former non-resident in the position of Relator may not vote in Texas.

Prior to 1954, and for over a hundred and twenty years, the Constitution of Texas disqualified members of the regular military establishments of the United States from voting in this state. This included both native residents and former nonresidents. Pursuant to proper legislative action, there was submitted in 1954, and adopted by a vote of the people, an amendment to Suffrage Article VI of the Constitution of Texas, Vernon's Ann.St. As relevant here, this amendment for the first time enfranchised members of the regular military forces of the United States to the following extent:

'Any member of the Armed Forces of the United States or component branches thereof, or in the military services of the United States, may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces.'

The self-evident purpose of the amendment to the Constitution was to prevent a person entering military service as a resident citizen of a county in Texas from acquiring a different voting residence in Texas during the period of his military service, and to prevent a person entering military service as a resident citizen of another state from acquiring a voting residence in Texas during the period of military service. Relator argues that the intent of the 1954 amendment was to enfranchise all members of the Armed Forces but to restrict only the voting residence of those individuals entering the military service from Texas to the county of their residence; in other words, says Relator, a former nonresident may choose and change his voting residence in Texas, a privilege denied to original residents of Texas. We do not regard this as a reasonable or plausible construction of the amendment. To so narrowly construe the amendment would be inconsistent with the history of the provisions of the Texas Constitution with respect to the exercise of suffrage by persons in military service. As before mentioned, no member of the regular military establishments could vote in Texas prior to the 1954 amendment, and it is not reasonable to say that the Legislature in submitting the amendment, and the people in their favorable vote thereon, intended to free from all restrictions based on military service those persons who had entered such service as residents of another state, but to restrict those persons entering military service as residents of Texas to the right to vote in the county in which they resided at such time. Such a construction would, in effect, create a discrimination against residents of the state. Moreover, the very purpose of the disfranchisement of military personnel for so long, and the obvious purpose of restricting the vote of a Texas resident to the county in which he resided at the time he entered in the military service, we to prevent a concentration of military voting strength in areas where military bases are located. This basic purpose and policy would be frustrated if individuals in the military service who were former residents of another state could choose and change their voting residence while stationed in Texas.

Persons in military service are subject at all times to reassignment, and hence to a change in their actual residence. They are residents in a particular place for a particular period of time under compulsion of military orders; they do not elect to be where they are. Their reasons for being where they are, and their interest in the political life of where they are, cannot be the same as the permanent residents. This is not to say that military personnel are any less citizens; it is to say that military personnel in the nature of their sojourn at a particular place are not, and cannot be, a part of the local community in the same sense as its permanent residents. Denying to such personnel the right of suffrage in the place where they may be stationed-while in no sense denying the exercise of such right in their place of original residence-is not unreasonable and the classification established is nondiscriminatory. The voting restrictions operate alike upon all members of the class. Both the original resident and former nonresident lose the right to vote in Texas upon a change in their legal residence after entering the military service. The nonresident voluntarily gives up his right to vote in his original state of residence by changing his legal residence to Texas. The resident voluntarily gives up his right to vote by changing his legal residence to another county in Texas.

This is not to say that the Texas Constitution purports to, or can, restrict the voting rights of persons in other states. Texas cannot, of course, extraterritorily regulate or limit the voting residence of a person entering the military service as a resident of another state so long as such person remains a citizen of the other state. The Texas Constitution can, however, declare the policy that the enfranchisement of a person in military service shall be limited to the exercise of suffrage in the county in which the person resided at the time of entering the service. The effect on former nonresidents is that they may not acquire a voting residence in Texas; the effect upon original residents is that they may not change their voting residence from one county to another.

This construction does not violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States in its provision that no state shall deny to any person within its jurisdiction the equal protection of the laws. Involved is the question of the reasonableness of the classification; or, to express it otherwise, there is involved the question of whether the 1954 amendment as so construed results in a discrimination which offends the Federal Constitution. The Supreme Court of the United States has long recognized that 'the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may seem proper, provided, of course, no discrimination seem proper, provided, of course, no discreimination is made between individuals, in violation of the Federal Constitution. * * * A State, so far as the Federal Constitution is concerned, might provide by its own constitution and laws that none but native-born citizens should be permitted to vote, as the Federal Constitution does not confer the right of suffrage upon any one, and the conditions under which that right is to be exercised are matters for the states alone to prescribe, subject to the conditions of the Federal Constitution, already stated * * *.' (Italics are added) Pope v. Williams, 193 U.S. 621, 632, 633, 24 S.Ct. 573, 575, 48 L.Ed. 817. The case involved a Maryland statute which provided that a nonresident coming into the state to reside must have filed a declaration of intent so to do a year before he should have the right to be registered as a voter in the state. The statute was unsuccessfully attacked as violating a federal right of the new resident of Maryland.

Later, in 1959, The United States Supreme Court reaffirmed the foregoing principles, saying:

'The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, * * * absent of course the discrimination which the Constitution condemns. * * * So while the right of suffrage is established and guaranteed by the Constitution * * * it is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress acting pursuant to its constitutional powers, has imposed. * * * We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction.' Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072.

The Supreme Court in this case sustained a statute of North Carolina which required that prospective voters be able to read and write in the English language any section of the Constitution of the state.

In Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (holding that the Georgia county unit system violated the equal protection clause of the Fourteenth Amendment) the Court reaffirmed the principle that ...

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3 cases
  • Carrington v. Rash
    • United States
    • U.S. Supreme Court
    • March 1, 1965
    ...and refused to issue a writ of mandamus ordering petitioner's local election officials to permit him to vote, two Justices dissenting. 378 S.W.2d 304. We granted certiorari, 379 U.S. 812, 85 S.Ct. 33, 13 L.Ed.2d The petitioner, a sergeant in the United States Army, entered the service from ......
  • Mabry v. Davis
    • United States
    • U.S. District Court — Western District of Texas
    • August 26, 1964
    ...the serviceman's wife, so her right to vote is not affected thereby, one way or the other. In the very similar case of Carrington v. Rash, 378 S.W.2d 304 (April 29, 1964), the Supreme Court of Texas recently held that the purpose of the amendment was "to prevent a person entering military s......
  • Carrington v. Rash, A-10104
    • United States
    • Texas Supreme Court
    • April 7, 1965
    ...service of the United States, of the right to acquire a voting residence in Texas so long as he remained in the military service. 378 S.W.2d 304. In so holding, we rejected petitioner's contention that this Article and Section of the Texas Constitution deprived the Relator of a right secure......

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