Antonio v. Kirkpatrick, 78-1500

• Decision Date: 28 September 1978
• Docket Number: No. 78-1500,78-1500
• Citation: 579 F.2d 1147
• Parties: James F. ANTONIO et al., Appellees, v. James C. KIRKPATRICK et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1147

579 F.2d 1147

James F. ANTONIO et al., Appellees, v. James C. KIRKPATRICK et al., Appellants.

No. 78-1500.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 1, 1978.

Decided Sept. 28, 1978.

John D. Ashcroft, Atty. Gen., William F. Arnet and Michael Elbein, Asst. Attys. Gen., Jefferson City, Mo., filed brief for appellants.

Alex Bartlett of Hendren & Andrae, Jefferson City, Mo., filed brief for appellees.

Before GIBSON, Chief Judge, and BRIGHT and ROSS, Circuit Judges.

GIBSON, Chief Judge.

This case presents the issue of the constitutionality of a ten-year durational residency requirement as a qualification for statewide public office. James F. Antonio brought suit in the District Court for the Western District of Missouri ¹ seeking an order directing the Missouri Secretary of State to certify him to local election officials as a Republican candidate for the office of State Auditor of Missouri for the August 1978 primary election. Plaintiffs J. Anthony Dill and Julian J. Ossman, as citizens and voters, joined with Antonio in seeking this order to enable them to vote for him in the Republican primary. The Secretary of State, Kirkpatrick, had refused to certify Antonio on the advice of the State Attorney General, John Ashcroft, because Antonio did not fulfill the applicable ten-year residency requirement. ² Judge Hunter declared the ten-year durational residency requirement for the office of State Auditor of the State of Missouri an unconstitutional denial of equal protection, enjoined its enforcement, and ordered Kirkpatrick, as Secretary of State, to accept Antonio's declaration of candidacy and certify his name to local election officials. ³ Kirkpatrick and Ashcroft appealed to this court from Judge Hunter's decision pursuant to 28 U.S.C. § 1291. In view of the imminence of the primary election and the consequent need for an immediate resolution of the controversy, on August 5 we affirmed the judgment of the District Court. This opinion sets forth the reasons for that ruling.

The durational residency requirement discriminates between old residents and new residents. In reviewing state classifications, judicial restraint generally compels adherence to the long-established rule that a State does not deny equal protection if the classification is rationally related to a legitimate government objective. Dandridge v. Williams, 397 U.S. 471, 486, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McDonald v. Board of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Rapid Transit Corp. v. New York, 303 U.S. 573, 578, 58 S.Ct. 721, 82 L.Ed. 1024 (1938); Lindsey v. Natural Carbonic Gas Co., 220 U.S. 61, 67, 31 S.Ct. 337, 55 L.Ed. 369 (1911). This traditional standard may be referred to as the reasonable basis test. A narrow exception to the application of this test exists when classifications are based upon certain "suspect" criteria or affect "fundamental rights." Under this doctrine, the classification will be subjected to strict scrutiny and a State must come forth with a compelling and substantial interest to justify the classification. Dunn v. Blumstein, 405 U.S. 330, 335, 341-43, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

The District Court found that the latter standard of review should be applied to the durational residency requirement at issue because it infringes upon the fundamental rights to vote and to travel interstate. We disagree. Before abandoning the traditional standard of review, a court must determine whether a State's limitation has a "real and appreciable impact" upon the fundamental rights allegedly affected. See Bullock v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). Although the United States Supreme Court has recognized that any limitations imposed by a State on the ability of persons to become candidates for public office necessarily places some burden on the rights of voters, Id. at 143, 92 S.Ct. 849; Williams v. Rhodes,393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), it has also been careful to note that not all restrictions on candidacy are subject to the more rigorous standard of review.

Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802 (89 S.Ct. 1404, 22 L.Ed.2d 739) (1969). * * * In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.

405 U.S. at 143, 92 S.Ct. at 856.

We conclude that the ten-year residency requirement on the position of State Auditor only minimally infringes upon the rights of voters to participate in the election process. It does not unfairly burden a discrete minority group of voters because the requirement is totally unrelated to the status of voters. Walker v. Yucht, 352 F.Supp. 85, 91-93 (D.Del.1972). See Bullock v. Carter, supra, 405 U.S. at 144, 92 S.Ct. 849 (unequal weight on voters according to their economic status). Furthermore, the requirement does not irretrievably foreclose a person from running for the office of State Auditor. See Howlett v. Salish and Kootenai Tribes, 529 F.2d 233, 244 (9th Cir. 1976); Chimento v. Stark, 353 F.Supp. 1211, 1216 (D.N.H.) Aff'd mem., 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973). Cf. Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). The delay imposed upon voters is a negligible intrusion upon their exercise of the franchise. Voters can continue to vote on a regular basis and select from a pool of candidates which constantly changes as persons become eligible. Also a potential candidate for State Auditor can actively participate in the political process by running for other public offices during the "waiting period." 353 F.Supp. at 1216.

Candidate durational residency requirements have some impact upon the right to travel interstate. We conclude, however, that the relationship between the requirement at issue and the right to travel interstate is too attenuated to warrant invocation of the strict standard of review. The requirement does not serve as a real or direct impediment to interstate travel, See, e. g., Shapiro v. Thompson, 394 U.S. 618, 631, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (purpose to inhibit migration), nor does it interfere with the fundamental rights of the traveler, See, e. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (interference with right to vote), since the right to run for public office has never been elevated to the status of a fundamental right.

Thus, the proper standard for reviewing the provision of the Missouri Constitution imposing a durational residency requirement on aspirants to the office of State Auditor is the traditional reasonable basis test. "However, even under conventional standards of review, a State cannot achieve its objectives by totally arbitrary means; the criterion for differing treatment must bear some relevance to the object of the legislation." Bullock v. Carter, supra, 405 U.S. at 145, 92 S.Ct. at 857. See also, Lubin v. Panish, 415 U.S. 709, 719, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974).

A durational residency requirement does have some rational relationship to a legitimate State interest in having candidates, particularly candidates for statewide office, who are bona fide residents of the state and who have lived in the State a sufficient period of time to demonstrate their interest as citizens in the welfare and problems of the State. What that durational requirement may be is left primarily to the States to determine and it is not a function of the federal government to so prescribe. The durational requirements give some assurance that candidates are acquainted with the problems of the State and that voters have...