Blassman v. Markworth

• Decision Date: 24 April 1973
• Docket Number: No. 73 C 610.,73 C 610.
• Citation: 359 F. Supp. 1
• Parties: 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.
• Court: U.S. District Court — Northern District of Illinois

359 F. Supp. 1

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, E. D.

April 24, 1973.

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.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). 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:

"The 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

8. `The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' U.S.Const., Amdt. X

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

9. `The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.' 400 U.S. at 124-125, 91 S.Ct. at 265.

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).

"The 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

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