Burns v. Fortson 8212 901

• Decision Date: 19 March 1973
• Docket Number: No. 72,72
• Citation: 93 S.Ct. 1209,35 L.Ed.2d 633,410 U.S. 686
• Parties: Kathryn BURNS et al. v. Ben FORTSON, etc., et al. —901
• Court: U.S. Supreme Court

410 U.S. 686

93 S.Ct. 1209

35 L.Ed.2d 633

Kathryn BURNS et al.

v Ben FORTSON, etc., et al.

No. 72—901.

March 19, 1973.

PER CURIAM.

By statute, Georgia registrars are required to close their voter registration books 50 days prior to November general elections, except for those persons who seek to rgister to vote for President or Vice President. Ga.Code Ann, §§ 34—611 and 34 602.^* The District Court upheld the registration cutoff against appellants' constitutional attack based upon this Court's decision in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). This appeal followed.

The State offered extensive evidence to establish 'the need for a 50-day registration cut-off point, given the vagaries and numerous requirements of the Georgia elections laws.' Plaintiffs introduced no evidence. On the basis of the record before it, the District Court concluded that the State had demonstrated 'that the 50-day period is necessary to promote . . . the orderly, accurate, and efficient administration of state and local elections, free from fraud.' (Footnote omitted.) Although the 50-day registration period approaches the outer constitutional limits in this area, we affirm the judgment of the District Court. What was said today in Marston v. Lewis, 410 U.S. 679, at 681, 93 S.Ct. 1211, at 1213, 35 L.Ed.2d 627, is applicable here:

'In the present case, we are confronted with a recent and amply justifiable legislative judgment that 50 days rather than 30 is necessary to promote the State's important interest in accurate voter lists. The Constitution is not so rigid that that determination and others like it may not stand.'

The judgment of the District Court is affirmed.

Affirmed.

Mr. Justice BLACKMUN, concurring in the result.

I concur only in the result, for I hesitate to join what, for me, is the Court's unnecessary observation that 'the 50-day registration period approaches the outer constitutional limits in this area.' I also concurred in the result in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and said,

'It is, of course, a matter of linedrawing, as the Court concedes, ante, at 1006. But if 30 days pass constitutional muster, what of 35 or 45 or 75? The resolution of these longer measures, less than those today struck down, the Court leaves, I suspect, to the future.' Id., at 363, 92 S.Ct., at 1013.

I am not prepared to intimate at this point that a period of time in excess of 50 days cannot be sustained, no matter how supportive the record may be. In Blumstein, the Court struck down Tennessee's 90-day county durational residency requirement in part, I suppose, because it exceeded the State's 30-day registration period. Had the latter been 60 days, rather than 30, I suspect the Court would have indicated approval of a corresponding 60-day durational residency requirement. See 405 U.S., at 345—349, 92 S.Ct. at 1004—1006. I feel that each case in this area should be decided on its own record unrestricted by an arbitrary number-of-days figure.

Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.

For the same reasons that I gave in Marston v. Lewis, 410 U.S. 679, 682, 93 S.Ct. 1211, 1213, 35 L.Ed.2d 627, I dissent from the affirmance of the judgment of the District Court. Unlike Arizona, Georgia does not use volunteer deputy registrars, a system that the Court in Marston thought created special problems warranting special treatment. Indeed, the State's expert witness in this case testified that there was something dangerous about using deputy registrars. Nor does Georgia have as late a primary as Arizona. As in Marston, appellees here did not show that it was impossible to increase the size of the registrars' staffs or their operations. Moreover, there was evidence that final lists of registered voters are not prepared until 14 days before...