Duprey v. Anderson

• Decision Date: 28 January 1974
• Docket Number: No. 26227,26227
• Parties: Charles DUPREY et al., Plaintiffs-Appellees, v. Byron A. ANDERSON, Secretary of State of the State of Colorado, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 807

518 P.2d 807

184 Colo. 70

Charles DUPREY et al., Plaintiffs-Appellees, v. Byron A. ANDERSON, Secretary of State of the State of Colorado, Defendant-Appellant.

No. 26227.

Supreme Court of Colorado, En Banc.

Jan. 28, 1974.

Rehearing Denied Feb. 19, 1974.

Jeremy Shamos, Denver, for plaintiffs-appellees.

Leonard R. Liss, for amicus curiae, Colo. State Assn. of County Commissioners.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., J. K. Kreutz, Asst. Atty. Gen., Denver, for defendant-appellant.

HODGES, Justice.

Since 1911, when a system of permanent registration for the electorate was inaugurated in Colorado, there has been a provision in our law which requires that registration books be purged of those electors who fail to vote at a preceding biennial general election. C.R.S.1963, 49--4--21 is the current statute. In 1967, the legislature added to this statute a subsection which provides for notification to the purged electors that their names have been removed from the registration books. 1967 Perm.Supp., C.R.S.1963, 49--4--21(5).

The appellees who were registered electors but did not vote at the general election on November 7, 1972 brought an action in the trial court for a judgment declaring that the above referred to 'purging statute' is unconstitutional, and therefore, their names should not be removed from the registration book. The complaint also requested that a preliminary injunction be entered ordering that the purge be enjoined pending the trial court's determination. The appellees also brought the action on behalf of all registered electors who failed to vote at this general election.

The trial court permanently enjoined the purge and entered a judgment declaring that the purging statute is unconstitutional. From this judgment, the appellant Secretary of State appeals to this court.

We reverse the judgment of the trial court and hold that the purging statute as amended in 1967 by the addition of the provision for notification to the purged electors is constitutional. The 1967 notification provision is interpreted to mandate the mailing of notification to purged electors.

The several arguments that the statute is unconstitutional made by the appellees at the trial court level were accepted and adopted by the trial court. The same arguments are presented in this appeal and are separately discussed herein.

I.

It is contended by the appellees that the purging statute is an unconstitutional attempt to augment the qualifications of electors as defined in Art. VII, § 1 of the Constitution of Colorado. The basic qualifications to be a voter pertain to citizenship, age and residence. All electors who possess these qualifications 'shall be qualified to vote at all elections.' The appellees argue that since a purged voter must again register before he can vote at future elections, the purging statute has the effect of unlawfully adding this act of registration as a qualification to vote. This contention is without merit.

Registering to vote does not come within the ambit of a constitutional qualification to vote. In Benson v. Gillespie, 62 Colo. 206, 161 P. 295 (1916), it was held that those laws requiring registration do not limit the right of suffrage or add to the constitutional qualifications of voters. It was also held therein that the laws requiring registration merely prescribe a procedure by which frauds may be prevented and mistakes avoided on the day of election. More recently, in Colorado Project-Common Cause v. Anderson, Colo., 495 P.2d 220 (1972), this court quoted with approval from Benson 'that registration is not a qualification but a mechanical adjunct to the election process which enables election officials to determine that the prospective voter has the qualification to vote on election day.' It is our view that whether initial registration, or registration after purging is involved, it is not a qualification to vote. It is merely an administrative process designed to facilitate rather than complicate participation in the election process.

We hold that re-registration after purging is exclusively an administrative adjunct which is necessary in order to provide for the purity of elections and to guard against abuses. Article VII, § 11 of the Constitution of Colorado requires the general assembly to 'pass laws to secure the purity of elections, and guard against abuses of the elective franchise.' Under the authority of this mandate, the general assembly has enacted C.R.S.1963, 49--4--1 et seq., which is part of the election code of Colorado. This article provides for registration procedures which include the purging as described in C.R.S.1963, 49--4--21(1)(2)(3) and as amended in 1967 by the addition of Subsection 5, 1967 Perm.Supp., C.R.S.1963, 49--4--21(5).

II.

The appellees urge us to hold as did the trial court that the purging statute violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. They argue that the purging procedure results in an invidious discrimination between qualified registered electors who exercise their right to vote in general elections and qualified registered electors who do not vote. It is the appellees' view that this latter class of electors is unduly impeded in exercising their future right to vote because they must re-register. This argument is unacceptable. This impediment or burden which appellees say is so heavy, is not, in our view, more than minimal and incidental.

The appellees also premise their argument upon the view that in some way the purging statute is a bar to their right to vote. They rely quite heavily upon Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) and Jarmel v. Putnam, Colo., 499 P.2d 603 (1972) as authority for the proposition that the purging statute is unconstitutional. The long line of cases which culminate with Dunn and Jarmel do not constitute valid authority upon which the purging statute may be struck down as unconstitutional. In each of those cases, the state totally denied to a particular class of residents the right to vote and there was no way in which the members of that class could have made themselves eligible to vote under the provisions of law which were declared unconstitutional in those cases. In Dunn, for example, the state of Tennessee totally disenfranchised newly arrived residents, I.e., those who have been residents of the state less than a year or residents of the county less than three months before the election.

Appellees suggest that the following cases afford to this court ample authority to invalidate the purging statute as unconstitutional. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Kramer v. Union Free School District No. 15, 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); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); and City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). Like Dunn and Jarmel, all these cases involved statutory provisions which denied to certain classes of citizens their fundamental right to vote, and as previously indicated, such cases do not deal with the issue of this case. Here, the qualified electors whose names were purged from the registration books, were in no way barred from voting. To vote, they are merely required to re-register. In the inapposite cases cited above, the class of persons involved were residents and citizens who by virtue of the challenged law, were denied their fundamental right to vote at a forthcoming election.

In Williams v. Osser, D.C., 350 F.Supp. 646 (1972), a Pennsylvania purging statute was challenged. This statute provided for removal from the voter registration lists of who had not voted in any election or primary during the previous two years. That statute also required notice to the purged elector, which notice is similar to that provided in the statute here under attack. The Pennsylvania sta...