Beare v. Smith, Civ. A. No. 70-C-42.

• Decision Date: 07 January 1971
• Docket Number: Civ. A. No. 70-C-42.
• Parties: Jimmy F. BEARE, Linda W. Colvin, Erasmo T. Saeng and Raymundo Martinez, Plaintiffs, v. Preston SMITH, as Governor of the State of Texas, Martin Dies, Secretary of the State of Texas, and Richard D. Magee, as Voting Registrar of Nueces County, Texas, Defendants.
• Court: U.S. District Court — Southern District of Texas

321 F. Supp. 1100

Jimmy F. BEARE, Linda W. Colvin, Erasmo T. Saeng and Raymundo Martinez, Plaintiffs, v. Preston SMITH, as Governor of the State of Texas, Martin Dies, Secretary of the State of Texas, and Richard D. Magee, as Voting Registrar of Nueces County, Texas, Defendants.

Civ. A. No. 70-C-42.

United States District Court, S. D. Texas, Corpus Christi Division.

January 7, 1971.

Yancey White, Allison, Maddin, White & Brin, Corpus Christi, Tex., Edwards & DeAnda, Corpus Christi, Tex., for plaintiffs.

W. O. Shultz, Asst. Atty. Gen., James McCoy, Asst. Atty. Gen., Austin, Tex., Franklin L. Smith, County Atty., Nueces County, C. Edwin Prichard, Corpus Christi, Tex., for defendants.

Before INGRAHAM, Circuit Judge, SINGLETON and SEALS, District Judges.

SINGLETON, District Judge.

For many years prior to the decision in United States v. Texas, 252 F.Supp. 234 (W.D.Tex.1966), aff'd, 384 U.S. 155, 86 S.Ct. 1383, 16 L.Ed.2d 434 (1966), Texas required its residents to pay an annual poll tax as a prerequisite to their voting in Texas elections. In the wake of that decision declaring the poll tax to be constitutionally impermissible, the legislature of Texas proposed, and the people ratified, an amendment to the Texas Constitution, providing for annual registration of Texas voters.¹ This suit attacks the constitutionality of that provision on the basis of the fourteenth and twenty-fourth amendments to the constitution. Also, this suit seeks to void on the same basis the annual registration provisions of the Texas statutes. Under Texas statutes those who wish to vote in any given year must register each year. The registration period begins on October 1 and ends on January 31 of the following year, a period of four months.² For reasons expressed below, we have concluded that the challenged provisions must be voided.

The plaintiffs in this suit are each residents of different Texas counties. Each one of them is a qualified voter of his home county in every respect. Each plaintiff inadvertently failed to register as required by law. Each attempted to register for the 1970 election year after January 31, 1970, but no application tendered by any of the plaintiffs was accepted, the reason given in each instance being that the registration books had been closed for the year. Defendants are all state officials charged with the responsibility of enforcing the provisions drawn into question. Jurisdiction is predicated upon 28 U.S.C. § 1343, and a hearing on the merits of the complaint was held on April 29, 1970, before a panel of three judges as demanded by 28 U.S.C. § 2281.

Article VI, Section 2 of the Texas Constitution in its material provisions provides:

"Every person * * * who shall have attained the age of twenty-one (21) years and who shall be a citizen of the United States and who shall have resided in this State one (1) year next preceding an election and the last six (6) months within the district or county in which such person offers to vote, shall be deemed a qualified elector; provided, however, that before offering to vote at an election a voter shall have registered annually, but such requirement for registration shall not be considered a qualification of an elector within the meaning of the term `qualified elector' as used in any other Article of this Constitution in respect to any matter except qualification and eligibility to vote at an election."

Implementation of this constitutional mandate is found in Article 5.11a, V.A. T.S. Election Code, which provides:

"Voters shall register annually. The first period for registration under this law shall begin in each county immediately upon the effective date of this Section and shall end on the thirty-first day of January following; provided, however, that if this Section takes effect after January 1, 1967, as the result of a court decision, the registration period shall continue through the thirtieth day following the effective date. In each year thereafter, the period for registration shall be from the first day of October through the thirty-first day of January following. The first registration hereunder shall entitle the registrant, if otherwise qualified, to vote at elections held between the first day of February following the registration period and the last day of February of the following year. Each annual registration thereafter shall entitle the registrant, if otherwise qualified, to vote at elections held during the period of one year beginning on the first day of March following the registration period."

The main thrust of plaintiffs' contentions is that the cumulative effect of the registration period, being only four months in duration and ending more than nine months prior to the November general elections, and the annual registration requirement is to impose upon the voting public unconstitutional obstacles upon the exercise of the franchise.

At the outset, it must be said that the right to vote is a right which is at the heart of our system of government. Parenthetically, it must be said that there is also a right not to vote. The really important aspect of this problem is that any restrictions on or impediments to this right should be legislatively imposed solely and only to protect a compelling state interest and any other restrictions on or impediments to this right cannot meet constitutional standards. That government should derive its powers from the consent of the governed is one of the basic tenets of the Declaration of Independence. This right is one which has been jealously guarded by the judiciary over the years. Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right." Id. at p. 17, 84 S.Ct. at p. 535. As was said in Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506, "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." It is thus undeniably true that voting rises above the level of being merely a privilege. A citizen's participation in the electoral process is, instead, a constitutionally protected liberty too precious, too fundamental to be burdened or conditioned unreasonably. Harper v. Virginia State Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). See also Ex Parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Doty, "The Texas Voter Registration Law and the Due Process Clause," 7 Hou.L.Rev. 163 (1969).

Neither can it be contended that the question is purely political in nature and consequently plaintiffs should seek legislative and not judicial relief. Granted, "we do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions." Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965). In this instance, however, there is clearly a justiciable controversy. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Reynolds v. Sims, supra; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

"When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right." Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 130, 5 L.Ed.2d 110 (1960).

It is beyond doubt that the present Texas voter registration procedures tend to disenfranchise multitudes of Texas citizens otherwise qualified to vote. The present system, being a direct descendant of the poll tax, Gonzales v. Stevens, 427 S.W.2d 694 (Tex.Civ. App.—Corpus Christi 1968, n. r. e.), has all of the features which the poll tax system had except the payment of an annual fee. The closing of registration so far in advance of the general election, in the years one is held, perpetuates the obstacles the twenty-fourth amendment prohibits. The evidence presented in this case shows that if the annual registration obstacle were removed over one million Texans would be eligible to vote that would not have been eligible with that requirement. Without annual registration, the number of persons who would actually vote would be increased by about the same number. Similarly, if registration were open until a month before the general election and had been open for the preceding eight months, voter registration would increase by over one million. In short, the present system closes the election hall door to a million citizens.

Particularly enlightening is the research done by Dr. Allen Shinn, Assistant Professor of Government, University of Texas at Austin. In a comprehensive survey of voter participation in various states, Dr. Shinn found that the average registration figure for those states with permanent registration was 78.1% of the potential qualified electorate, and the average figure for those states requiring annual registration as of 1968, including Texas, Alabama, South Carolina, and the District of Columbia, was 59.0%. Thus, should Texas change to a permanent registration system, there would be a 19.1% increase in registration, all else being equal. This amounts to an increase from 4,173,000 people registered in 1968 to 5,280,000 people who could have voted but for annual registration.

Voter turnout for elections in states with permanent registration...