Henderson v. Fort Worth Independent School Dist.

• Decision Date: 22 January 1976
• Docket Number: No. 75--2361,75--2361
• Citation: 526 F.2d 286
• Parties: Thomas Earl HENDERSON, Jr., et al., Plaintiffs-Appellants, v. FORT WORTH INDEPENDENT SCHOOL DISTRICT and John R. Leatherbury et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 286

526 F.2d 286

Thomas Earl HENDERSON, Jr., et al., Plaintiffs-Appellants, v. FORT WORTH INDEPENDENT SCHOOL DISTRICT and John R Leatherbury et al., Defendants-Appellees.

No. 75--2361.

United States Court of Appeals Fifth Circuit.

Jan. 22, 1976.

Arthur J. Brender, Jr., Don Gladden, Ft. Worth, Tex., for plaintiffs-appellants.

David B. Owen, Cecil A. Morgan, Ft. Worth, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before BELL, THORNBERRY and MORGAN, Circuit Judges.

THORNBERRY, Circuit Judge:

The instant appeal presents a challenge to the local statutory requirement that candidates for the Fort Worth, Texas school board be 'qualified voters' in the district for a period of three years. Appellants sought declaratory and injunctive relief below on the theory that the candidacy requirement violates the Equal Protection Clause of the Fourteenth Amendment and unduly burdens the right of interstate travel. 42 U.S.C. § 1983; 28 U.S.C. §§ 1331, 1343, 2201, and 2202. Appellants Henderson and Puente desired places on the ballot for a school board election scheduled and held in March, 1974. Appellant Boles is a registered voter in the district who desires to cast her vote for both Henderson and Puente. The district court rejected appellants' equal protection and right to travel arguments. It thus refused to compel school board officials to place the names of Henderson and Puente on the ballot for the March, 1974, election or declare unconstitutional that portion of the statute specifying the three year 'qualified voter' requirement. The next scheduled election for school board in Fort Worth is in April, 1976. Both appellants Henderson and Puente have expressed their desire to participate as candidates in that election. Resolution of appellants' challenge requires two separate inquiries: (1) Is the controversy moot at this point in time, and (2) does the three year 'qualified voter' requirement comport with the applicable constitutional standards?

Mootness

Appellant Henderson has been a 'qualified voter' in the Fort Worth School District since September 15, 1973. Failing to satisfy the three year requirement, Henderson was denied a place on the ballot in the election held in March, 1974. In the next school board election, scheduled for April, 1976, Henderson will still not qualify under the statute, though he has expressed by affidavit his intention to run for school board at that time. While the 1974 election has been held and the court cannot grant retrospective relief as to that election, the instant case is not moot. See American Party v. White, 1974, 415 U.S. 767, 770 n. 1, 94 S.Ct. 1296, 1301, 39 L.Ed.2d 744; Rosario v. Rockefeller, 1973, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1; cf. Sosna v. Iowa, 1975, 419 U.S. 393, 95 S.Ct. 553, 557,43 L.Ed.2d 532. It can be assumed that since appellant Henderson will still not qualify under the statute in April, 1976, school board officials will again deny him access to the ballot as a candidate. See Storer v. Brown, 1974, 415 U.S. 724, 737 n. 8, 94 S.Ct.. 1274, 1282, 39 L.Ed.2d 714; Moore v. Ogilvie, 1969, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1. As between Henderson and the Fort Worth School Board and its officials there exists a live controversy over his place on the ballot in April, 1976, and the requirement of Article III is met. See Powell v. McCormack, 1969, 395 U.S. 486, 496 n. 7, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491; Sibron v. New York, 1968, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917; Liner v. Jafco, 1964, 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394, 11 L.Ed.2d 347. Appellant Henderson's case is not moot, and on that basis we proceed to the merits of his claim. ¹

Equal Protection

Section 7 of Chapter 230, Local and Special Laws, Acts of the 39th Legislature, 1925, provides in pertinent part that persons offering themselves as candidates for school board in Fort Worth

must have been freeholders in said district for at least one year, and qualified voters of said district for a period of three years . . ..

The district court held and appellees concede that the freeholder provision of section 7 is unconstitutional in light of the decision in Turner v. Fouche, 1970, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567. The district court further held, however, that the three year 'qualified voter' requirement did not violate the Equal Protection Clause or infringe on appellants' rights to travel. Appellants limit their argument in this court to equal protection grounds.

The district court analyzed section 7 as serving a dual function: prescribing a minimum age requirement and a durational residency requirement. Appendix at 79--80. The district court's assessment of section 7 is accurate--within limits. When enacted in 1925, the statute was certainly viewed by the Texas Legislature as an efficient device for ensuring that persons seeking a school board position be familiar with the workings of the board and the concerns of the district, and by reason of that familiarity possessed of a modicum of expertise. However, section 7 does not by its terms prescribe three years residency within the district or stipulate a minimum age for school board candidates. The statute goes farther than that; it requires a candidate for school board in Fort Worth to have been a registered voter in the district for three years. This follows from the definition of 'qualified voter' contained in the Texas Election Code, which provides that no person shall be so qualified unless he has registered in accordance with the provisions of the Code. ² Under the current Texas Election Code, voter registration is effective for a three year period, ³ and if a registered voter does in fact vote during that three year period, his registration is automatically renewed for another three year period. ⁴ Therefore, to qualify as a school board candidate in Fort Worth, a person must have registered to vote at least once at some point three years prior to the election in which he desires to offer himself as a candidate. The importance of this distinction--between residency and registration--is no more amply demonstrated than by the fact that appellant Henderson has been a resident of the Fort Worth School District for thirteen years, but will still be ineligible as a candidate in the 1976 election. With the operative effect of section 7 thus in mind, ⁵ it is appropriate to address the merits of the equal protection challenge.

The initial step in any equal protection case is determination of the appropriate standard of review under which the statutory classification in question must be judged. The scheme embodied by section 7 divides the residents of the Fort Worth School District into two camps. The first consists of all residents who are not registered to vote or who have been registered to vote for a period less than three years. The second consists of all residents who have been registered voters for a period of three years or more. Only the latter group of residents is eligible to run for school board. Relying on the decision in Bullock v. Carter, 1972, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92, the district court held that section 7 should be tested under the traditional 'rational relationship' formula, see Dandridge v. Williams, 1970, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; McGowan v. Maryland 1961, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, rather than the more stringent 'strict scrutiny' standard, see San Antonio School Bd. v. Rodriquez, 1973, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16; Bullock v. Carter, supra; Shapiro v. Thompson, 1969, 394 U.S. 618, 89 S.Ct. 1332, 22 L.Ed.2d 600, or the suggested intermediate test of 'substantial relationship in fact.' See Reed v. Reed, 1971, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Frontiero v. Richardson, 1973, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (plurality opinion); Aguayo v. Richardson, 2 Cir. 1973, 473 F.2d 1090, 1108--10; City of New York v. Richardson, 2 Cir. 1973, 473 F.2d 923, 930--31; but compare Village of Belle Terre v. Borass, 1974, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797. We are of the view that the district court erred in its choice of the appropriate standard of review. Though prolix, that portion of the opinion in Bullock v. Carter relied on by the district court warrants repetition in substantial part.

The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). Texas does not place a condition on the exercise of the right to vote, nor does it quantitatively dilute votes that have been cast. Rather, the Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny. Compare Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), with Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters. (emphasis added).

405 U.S. at 142--44, 92 S.Ct. at 855--56, 31 L.Ed.2d at 99--100.

As the quoted language indicates, the mere existence of barriers standing in the path of potential candidates does not automatically require strict scrutiny of the...