Cocanower v. Marston

• Decision Date: 25 September 1970
• Docket Number: No. Civ. 70-295 Phx.,Civ. 70-295 Phx.
• Citation: 318 F. Supp. 402
• Parties: Glenda M. COCANOWER, Plaintiff, v. Paul N. MARSTON, individually and as Recorder for Maricopa County, Defendant, and State of Arizona, Intervenor.
• Court: U.S. District Court — District of Arizona

318 F. Supp. 402

Glenda M. COCANOWER, Plaintiff, v. Paul N. MARSTON, individually and as Recorder for Maricopa County, Defendant and State of Arizona, Intervenor.

No. Civ. 70-295 Phx.

United States District Court, D. Arizona.

September 21, 1970.

As Amended September 25, 1970.

Lewis & Roca, by John P. Frank, J. David Rich, Phoenix, Ariz., for plaintiff.

Albert I. Firestein, Deputy County Atty., Phoenix, Ariz., for defendant.

John McGowan, Deputy Atty. Gen., Phoenix, Ariz., for intervenor.

Before TRASK, Circuit Judge, and MUECKE and COPPLE, District Judges.

JUDGMENT

COPPLE, District Judge:

Trial herein was held before this Court on August 24, 1970. Evidence was presented by both sides and the matter was taken under advisement.

Plaintiff attacks the constitutionality of Arizona's durational residency requirement for voting in state general elections. The state's constitutional and implementing statutory provisions provide that a prospective registrant must have been a resident of the state one year preceding the election in which he or she seeks to vote.¹ Other than failing to satisfy this one-year requirement, plaintiff is in all respects eligible to register.

Prior to the initiation of this action it was the practice of the defendant county recorder to accept all applications for registration on their face. That is, no attempt was made to verify or investigate representations made on the county's registration form. In accordance with such procedure plaintiff's application, on which she indicated she had not resided in the state one year, was rejected by the defendant.

It is plaintiff's contention that Ariz. Const. Art. 7 § 2 (Supp.1969-70), Ariz. Rev.Stat.Ann. § 16-101, subsec. A, par. 3 (1956) and Ariz.Rev.Stat.Ann. § 16-143, subsecs. A, par. 13, B (Supp.1969-70), on their face and as applied, violate the Equal Protection Clause, U.S.Const. Amend. XIV. Specifically, it is alleged that Arizona is neither promoting a compelling state interest nor maintaining a reasonable classification by imposing the precondition of one-year residence on exercise of the franchise. Likewise, because it also prevents her from voting for candidates for the offices of United States Senator and United States Representative, plaintiff argues that Arizona's residency requirement is violative of both the Equal Protection and Privileges and Immunities Clauses, U.S.Const. Amend. XIV. Plaintiff further contends that the one-year requirement abridges her civil right to travel under U.S.Const. Amend. XIV and denies her due process of law guaranteed by U.S.Const. Amends. V and XIV.

In seeking declaratory and injunctive relief, along with an unspecified amount of monetary damages, jurisdiction is invoked under 28 U.S.C. §§ 2201, 2202, 2281, 2284; 28 U.S.C. § 1343 and 42 U.S. C. § 1983.

EQUAL PROTECTION CLAUSE

Putting aside for a moment consideration of Arizona's residency requirement insofar as it imposes a prerequisite for voting for the offices of United States Senator and Representative, it must first be determined which Fourteenth Amendment standard is to be applied in testing the constitutionality of state general election residency requirements. Contrary to what plaintiff suggests, there is authority to indicate that the compelling state interest test is not the applicable standard and that the Equal Protection Clause does not yet demand abolition of such state residency requirements.

The Supreme Court has applied the compelling state interest test in a trilogy of special purpose election cases. Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). However, in each case state legislation had the effect of completely denying the franchise to one or more classes of interested citizens on grounds other than age and residence. As the Court in Kramer clearly noted:

At the outset, it is important to note what is not at issue in this case. * * Appellant agrees that the States have the power to impose reasonable citizenship, age, and residency requirements on the availability of the ballot. The sole issue in this case is whether the additional requirements of § 2012 — requirements which prohibit some district residents who are otherwise qualified by age and citizenship from participating in district meetings and school board elections—violate the Fourteenth Amendment's command that no State shall deny persons equal protection of the laws. 395 U.S. at 625-626, 89 S.Ct. at 1888-1889 (citations omitted).

In distinguishing the compelling state interest test from the "rational basis" standard and in further emphasizing the limits of its holding, the Court in Kramer went on to say:

Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.

And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. * * * Accordingly, when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a "rational basis" for the distinctions made are not applicable. 395 U.S. at 627-628, 89 S.Ct. at 1889-1890 (citations omitted).

Two other cases demonstrate the changing nature of the legal reasoning employed to invalidate certain discriminatory state voter-qualification legislation.

The pre-Kramer decision, Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), did not involve a durational residency requirement. Rather, the State of Texas had a unique constitutional provision which prevented a soldier living in the state from ever controverting the presumption of non-residence. It was this inability to ever establish the fact of residence which the Court found amounted to invidious discrimination. 380 U.S. at 96, 85 S.Ct. at 780. There is little question that in Carrington the Court was applying a "reasonableness" standard and that under such measure a state still has considerable leeway in imposing residency requirements for state elections.

Texas has the unquestioned power to impose reasonable residence restrictions on the availability of the ballot. There can be no doubt either of the historic function of the States to establish, on a nondiscriminatory basis, and in accordance with the Constitution, other qualifications for exercise of the franchise. 380 U.S. at 91, 85 S.Ct. at 777 (citations omitted).

In a very recent opinion authored by Mr. Justice Marshall, Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970), the Supreme Court struck down a Maryland requirement which prohibited persons living on a federal enclave within Maryland from voting in state elections. Entwined in the problems of federalism were issues strikingly similar to those in Carrington. That is, by whatever rationale, state citizens were being conclusively excluded from the franchise. What is important about Evans is that the Fourteenth Amendment standard applied in striking down the state election rule was the compelling state interest test. Again, however, as in Carrington, permanent exclusion was at issue, not exclusion for a limited durational period.

Thus, although recognizing that a certain amount of ambiguity and inaccuracy is inherent in the practice of tagging constitutional doctrines with labels, whether the rule be phrased to the effect that the compelling state interest test has been thus far applied only to cases of permanent exclusion and limited special purpose elections, or that residence requirements for state general elections need only be based on a constitutionally permissive and reasonable state purpose, the result is the same—the states may still impose durational residency requirements for voting in their general elections.

As early as 1904 in Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817, the Supreme Court upheld a Maryland state election law which required the prospective voter to register with the clerk of the court, indicating an intent to become a resident of the state. In a decision based largely on the Privileges and Immunities Clause,² the Court noted that the law in question "* * * is neither an unlawful discrimination against * * * the plaintiff * * * nor does it deny him the equal protection of the laws * * * nor is it a violation of any implied guarantees of the Federal Constitution." 193 U.S. at 633, 24 S.Ct. at 576. Although Pope's value may be largely historical, more recent decisions in a closely related area support the conclusion that the states are still given considerable latitude in imposing durational residency requirements under the traditional "rational basis" standard.

The constitutionality of a state-imposed residency requirement in presidential elections has been tested in Drueding v. Devlin, 234 F.Supp. 721 (D.Md.1964), aff'd per curiam, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792 (1965), and Hall v. Beals, 292 F.Supp. 610 (D.Colo.1968), vacated per curiam, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). In both cases it was contended that the state constitutional and statutory requirements, purportedly enacted pursuant to U.S.Const. Art. II § 1,³ violated the Equal Protection Clause of the Fourteenth Amendment.

The three-judge district court in Drueding specifically limited its holding by noting that the plaintiffs in that case were "* * * not attacking the validity of those provisions insofar as they apply to elections other than those for...