Delgiorno v. Huisman, 4121

• Decision Date: 30 June 1972
• Docket Number: No. 4121,4121
• Parties: Emil V. DELGIORNO et al., Appellants (Plaintiffs below), v. John B. HUISMAN, as County Clerk of Laramie County, Wyoming, Appellant(Defendant below), State of Wyoming, Appellee (Intervenor below).
• Court: Wyoming Supreme Court

Page 1246

498 P.2d 1246

Emil V. DELGIORNO et al., Appellants (Plaintiffs below), v. John B. HUISMAN, as County Clerk of Laramie County, Wyoming, Appellant(Defendant below),

State of Wyoming, Appellee (Intervenor below).

No. 4121.

Supreme Court of Wyoming.

June 30, 1972.

Dean W. Borthwick, Cheyenne, for appellants, Emil V. Delgiorno, Oscar Sosa, Jr., and Martin Biancalana.

Thomas J. Carroll, Cheyenne, for appellant John B. Huisman.

Clarence A. Brimmer, Atty. Gen. and Jerome F. Statkus, Special Asst. Atty. Gen., Cheyenne, for State.

Before McINTYRE, C. J., and PARKER, McEWAN, and GUTHRIE, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

The plaintiffs, bona fide residents of the State, and qualified to vote except for the duration of their residence, sought a declaratory judgment, alleging the unconstitutionality of Article 6, § 2, of the Wyoming Constitution, and certain statutes, ¹ basing the claim upon violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. ²

It was stipulated that all plaintiffs were bona fide residents of the State of Wyoming. Plaintiff Delgiorno had been a resident of Laramie County for about five months, plaintiff Sosa for 43 days, and plaintiff Biancalana for 13 days. The county clerk had refused to register any of the plaintiffs on the ground that none of them had been residents of the State for one year, and that at least one of them did not meet the 60-day county residency requirement.

The district court held the mentioned constitutional provision and statutes to be unconstitutional insofar as they required residence of one year in Wyoming but valid as to the 60 days residence in the county and the ten days in the precinct, and the matter is before us on appeals. Plaintiffs argue that if any durational residence period is justified it can only be 15 days. The county clerk contends that the challenged portions are not violative of the equal protection clause, and the State asserts that all durational residency requirements of less than three months meet the compelling interest test.

We recognize, of course, as did the district court and counsel that interpretation and disposition must be within the guidelines established by the United States Supreme Court, the most recent and direct pronouncement on the subject being Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274.

Article 6, § 2, Wyo.Const., provides:

'Every citizen of the United States of the age of twenty-one years and upwards, who has resided in the state or territory one year and in the county wherein such residence is located sixty days next preceding any election, shall be entitled to vote at such election, except as herein otherwise provided.'

The minimum age has been lowered to 18 by the Twenty-sixth Amendment to the United States Constitution.

Section 22-118.96, W.S.1957 (1971 Cum.Supp.), provides:

'Every person who is a qualified elector shall, providing he is registered according to law be entitled to vote at any primary, general, or special election * * *.'

Section 22-118.3(j) defines a qualified elector in the State of Wyoming as follows:

'The term 'qualified elector' includes every male and female citizen of the United States who will be at least eighteen (18) years of age on the day of a general election at which he may offer to vote, and who on or before such election day shall have resided in the State of Wyoming for at least one (1) year, and in the county wherein he may offer to vote for at least sixty (60) days, and in the precinct wherein he may offer to vote for at least ten (10) days; * * *.'

Section 22-157 has to do with the method and manner of registering, and §§ 22-118.27 and 22-158 with the oath to be executed by an applicant for registration in primary and general elections. An unregistered voter may register at the primary election by taking an oath on election day, which oath contains an affirmation that the registrant will have been a resident of the State of Wyoming for at least one year last past, a resident of the county for at least 60 days, and the precinct for 10 days. The oath of an applicant for registration in the general election contains an affirmation that the applicant will have been an actual bona fide resident of the State for one year, of the county 60 days, and of the precinct 10 days preceding the day of the next election.

The briefs and arguments of the parties and the memorandum opinion of the trial court indicate there is some misunderstanding as to the difference between the durational residency requirements and the period of time prior to an election when the registration books are closed. Perhaps a review of these requirements is in order.

The State of Wyoming, by constitution and statutes, requires a voter to be a resident within the State for one year, the county for 60 days, and, at least as to the general election, an unregistered voter must register not later than 15 days prior to the general election. According to the Dunn case, the State of Tennessee required that a person be a resident of the State for 12 months, the county for three months, and its registration books were closed 30 days before both primary and general elections. Thus, to compare the 30-day requirement in Tennessee with the 60-day requirement in Wyoming is to compare Quarter horses and Rhode Island Red chickens-they are just not the same. The 30-day provision in Tennessee is comparable to the 15-day provision in Wyoming. ³

The trial court seemed to recognize this distinction in one portion of its memorandum opinion, but then seemed to ignore the difference in its later discussions. The trial court quoted from the Dunn case, and then made certain comments:

'* * * The exact language used by the Court was 'It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud-and a year, or three months, too much.' (405 U.S. 330, 92 S.Ct. 995) 31 L.Ed.2d at page 288. This leaves in limbo the period between 30 and 90 days and if a state can find justification for a duration between those two periods, the U. S. Supreme Court may acknowledge its validity. It must be noted, however, that this language is only with respect to the administrative details which must be performed by those persons charged with the handling of elections. The Court would be remiss if it did not notice that the Supreme Court recognized the judgment of the Tennessee Legislature which required registration thirty days before an election as an adequate period for election officials to do whatever may be necessary to prepare for the election. In Wyoming the deadline for registration is fifteen days before the election. Section 22-156, WS 1957. Absentee voters, however, must request the necessary registration forms at least thirty days prior to the date of election. Section 22-139.32, WS 1957, as amended.

'The Supreme Court decision is written in such positive form that it meets most arguments that can be advanced to justify a period in excess of thirty days. There is only a narrow strip left in which the State of Wyoming can maneuver to establish a valid distinction between the situation in Tennessee and the situation in Wyoming.

'The State and the County advance the reasonable arguments that because of the small staffs of county clerks' offices, more than thirty days is required to take care of the necessary administrative details in connection with the processing of a voter to enable the county to perform its function and the voter to perform his. Thirty days just does not enable the county clerk and his staff to check out the possibility of voter fraud and the registration affidavit, because of the many other details that must be taken care of such as, in addition to registering voters, preparing and distributing voter election information, voter registration lists, preparing and printing ballots, preparing poll books, furnishing election supplies to election precincts, publication of election proclamations and lists of nominees for political office, arranging the appointment of election clerks and judges, conducting training schools for election boards, arranging for counting boards, supplying and equipping polling booths and instruction to voters, processing absentee voter applications, preparation of voting machines for election purposes, delivery of meals for election boards on election day, preparation for security of the ballot and preparation for the reporting of election returns, etc. It is noted that because of the shortened durational residency requirement, a greater investigation will be necessary, because of locally unavailable information.'

While the trial court stated that more than 30 days is required to take care of the necessary administrative details, the details which it then set forth would still have to be performed within 15 days of the general election. Requiring a person to be a resident of the county 60 days prior to the general election would not increase the period of time in which the county clerk had to perform his duties, which apparently include the checking of possibility of voter fraud. As the court said in Dunn, supra, 92 S.Ct. at 1005:

'* * * As long as the State permits registration up to 30 days before an election, a lengthy durational residence requirement does not increase the amount of time the State has in which to carry out an investigation into the sworn claim by the would-be voter that he is in fact a resident.'

If the 15 days, as presently required under our statute, is thought not to be sufficient time to perform these administrative tasks, it is up to the legislature to enlarge the period, bearing in mind the guidelines as established in Dunn, supra, 92 S.Ct. at 1006, wherein it was said:

'* * * It is sufficient to note here that 30 days appears to be an ample period of time for the State to...