Hall v. Beals, 39

• Citation: 396 U.S. 45,90 S.Ct. 200,24 L.Ed.2d 214
• Decision Date: 14 October 1969
• Docket Number: No. 39,39
• Parties: Richard HALL et ux., Appellants, v. Harriet BEALS, Clerk and Recorder of El Paso County, et al
• Court: United States Supreme Court

396 U.S. 45

90 S.Ct. 200

24 L.Ed.2d 214

Richard HALL et ux., Appellants,

v Harriet BEALS, Clerk and Recorder of El Paso County, et al.

No. 39.

Argued Oct. 14, 1969.

Action to enjoin enforcement and operation of Colorado laws imposing residency requirements for voting in presidential election. The Three-Judge District Court, 292 F.Supp. 610, dismissed the complaint and direct appeal was taken. The Supreme Court held that plaintiffs who were precluded from voting in 1968 presidential election by Colorado statutes imposing six-month residency requirement but who could have voted in 1968 election under statute as amended subsequent to the election were no longer part of class of disenfranchised voters and could not represent class, and action to enjoin enforcement of statute would be dismissed as moot.

Judgment of District Court vacated and case remanded with directions.

Mr. Justice Brennan and Mr. Justice Marshall dissented.

Richard Hall, for appellants, pro se.

Bernard R. Baker, Colorado Springs, for appellees.

PER CURIAM.

The appellants moved from California to Colorado in June 1968. They sought to register to vote in the ensuing November presidential election, but were refused permission because they would not on election day have satisfied the six-month residency requirement that Colorado then imposed for eligibility to vote in such an election.¹ The appellants then commenced the present class action against the appellees, electoral officials of El Paso County, Colorado. Their complaint challenged the six-month residency requirement as a violation of the Equal Protection, Due Process, and Privilege and Immunities Clauses of the Constitution. For relief they sought (1) a writ of mandamus compelling the appellees to register them for the upcoming presidential election; (2) an injunction restraining the enforcement and operation of the Colorado residency laws insofar as they applied to the presidential election; and (3) a direction that the appellees register the appellants and allow them to vote 'on a conditional basis, so that should either party choose to appeal to the Supreme Court of the United States and such appeal should run past the time of the National Election on November 5, 1968, * * * the relief sought by [the appellants will] not become moot.'²

On October 30 the three-judge District Court entered judgment for the appellees and dismissed the complaint, holding that the six-month requirement was not unconstitutional. Hall v. Beals, 292 F.Supp. 610 (D.C.Colo.).³ As a result the appellants did not vote in the 1968 presidential election. They took a direct appeal to this Court pursuant to 28 U.S.C. § 1253, and we noted probable jurisdiction, 394 U.S. 1011, 89 S.Ct. 1624, 23 L.Ed.2d 38. Thereafter the Colorado Legislature reduced the residency requirement for a presidential election from six months to two months.

The 1968 election is history, and it is now impossible to grant the appellants the relief they sought in the District Court. Further, the appellants have now satisfied the six-month residency requirement of which they complained. But apart from these considerations, the recent amendatory action of the Colorado Legislature has surely operated to render this case moot. We review the judgment below in light of the Colorado statute as it now stands, not as it once did. Thorpe v. Housing Authority, 393 U.S. 268, 281-282, 89 S.Ct. 518, 526, 21 L.Ed.2d 474; United States v. Alabama, 362 U.S. 602, 604, 80 S.Ct. 924, 926, 4 L.Ed.2d 982; Hines v. Davidowitz, 312 U.S. 52, 60, 61 S.Ct. 399, 400, 85 L.Ed. 581; Carpenter v. Wabash R. Co., 309 U.S. 23, 26-27, 60 S.Ct. 416, 417-418, 84 L.Ed. 558; United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49. And under the statute as currently written, the appellants could have voted in the 1968 presidential election. The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law. Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed. 113; Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663; Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293.

The appellants object now to the two-month residency requirement as vigorously as they did to the six-month rule in effect when they brought suit. They say that such statutes, in Colorado and elsewhere, continue to have an adverse effect upon millions of voters throughout the Nation. But the appellants' opposition to residency requirements in general cannot alter the fact that so far as they are concerned nothing in the Colorado legislative scheme as now written adversely affects either their present interests, or their interests at the time this litigation was commenced. Nor does the result differ because the appellants denominated their suit a class action on behalf of disenfranchised voters. The appellants 'cannot represent a class of [which] they are not a part,' Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550, 7 L.Ed.2d 512—that is the class of voters disqualified in Colorado by virtue of the new two-month requirement, a class of which the appellants have never been members.

Nothing in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1, is to the contrary. There we invalidated an Illinois statute requiring that independent candidates for presidential elector obtain signatures on their nominating petitions from voters distributed through the State. We noted that even though the 1968 election was over, 'the burden * * * placed on the nomination of nominees for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935.' 394 U.S., at 816, 89 S.Ct. at 1494. The problem before us was "capable of repetition, yet evading review," not only because the same restriction on Moore's candidacy that had adversely affected him in 1968 could do so again in 1972, but because Illinois, far from having altered its statutory scheme for the future benefit of those situated similarly to Moore, had adhered for over 30 years to the same electoral policy with no indication of change.

Here, by contrast, the appellants will face disenfranchisement in Colorado in 1972 only in the unlikely event that they first move out of the State and then reestablish residence there within two months of the presidential election in that year. Or they may take up residence in some other State, and in 1972 face disqualification under that State's law. But such speculative contingencies afford no basis for our passing on the substantive issues the appellants would have us decide with respect to the now-amended law of Colorado. Golden v. Zwickler, supra.

The judgment of the District Court is vacated and the case is remanded with directions to dismiss the cause as moot.

It is so ordered.

Judgment vacated and case remanded with directions.

Mr. Justice BRENNAN, dissenting.

I dissent from the direction to dismiss this case as moot. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), involved a challenge to the constitutionality of a statute which had been invoked to deny the appellants a place on the 1968 ballot. We were not persuaded in that case by the argument that the appeal should be dismissed since the 1968 election had been held and there was no possibility of granting any relief to appellants. Even though appellants did not allege they would seek a place on the ballot at future elections, we held that the constitutional question was one 'capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), and, therefore, that mootness would not prevent our decision of its merits. In my view the present case is an even stronger one for application of that principle. At stake here is the fundamental right to vote—the right 'preservative of other basic civil and political rights,' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); see also Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966), and the constitutional challenge of the amended Colorado statute is peculiarly evasive of review. This is because ordinarily a person's standing to make that challenge would not mature unless he had become a Colorado resident within two months prior to a presidential election. Barring resort to extraordinary expedients, that interval is obviously too short for the exhaustion of state administrative remedies and the completion of a lawsuit through filing of the complaint in a federal district court, convening of a three-judge court, trial, and review by this Court.^* True, today's virtual foreclosure of any opportunity for definitive judicial review may in some measure be prevented by resort to waiver of the requirement of exhaustion of administrative remedies, preferred calendar position, or even relaxation of the rules of ripeness to permit a person not yet a resident to challenge the statute on a showing of reasonable certainty that he would be moving to the State within the two-month period. But the difficulties which attend these expedients only buttress my conclusion that if mootness did not bar decision of the constitutional question in Moore v. Ogilvie, there is even more reason to hold that mootness does not bar decision of the constitutional question presented here.

Reaching the merits, I would reverse for the reasons stated by Mr. Justice MARSHALL in his dissenting opinion, which I join.

Mr. Justice MARSHALL, whom Mr. Justice BRENNAN joins, dissenting.

I agree with my Brother BRENNAN that this case is not moot. It involves one of those problems "capable of repetition, yet evading review," that call for relaxation of traditional concepts of mootness so that appellate review of important constitutional decisions not be permanently...