Hinnant v. Sebesta, 72-440-Civ-T-H and 72-443-Civ-T-H.

• Decision Date: 07 September 1973
• Docket Number: No. 72-440-Civ-T-H and 72-443-Civ-T-H.,72-440-Civ-T-H and 72-443-Civ-T-H.
• Citation: 363 F. Supp. 398
• Parties: Jim HINNANT, Individually and as representative of the class of similarly situated residents of the State of Florida, Plaintiff, v. Jim SEBESTA, Supervisor of Elections, Hillsborough County, Florida, et al., Defendants. Joel Francis WOODMAN et al., Plaintiffs, v. James SEBESTA et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

363 F. Supp. 398

Jim HINNANT, Individually and as representative of the class of similarly situated residents of the State of Florida, Plaintiff, v. Jim SEBESTA, Supervisor of Elections, Hillsborough County, Florida, et al., Defendants.

Joel Francis WOODMAN et al., Plaintiffs, v. James SEBESTA et al., Defendants.

Nos. 72-440-Civ-T-H and 72-443-Civ-T-H.

United States District Court, M. D. Florida, Tampa Division.

September 7, 1973.

Richard P. Condon, Tampa, Fla., for plaintiffs.

Jim Hinnant, pro se.

Robert Shevin, Atty. Gen., State of Florida, Tallahassee, Fla., for State defendants.

Michael J. O'Brien, Resident County Atty., Hillsborough County, Tampa, Fla., for defendant Jim Sebesta.

Before RONEY, Circuit Judge, and KRENTZMAN and HODGES, District Judges.

PER CURIAM:

These consolidated suits were filed on August 2 and 3, 1972, challenging the constitutionality of Florida Statute 97.041, F.S.A. which requires a minimum durational residency of sixty days preceding the election as a prerequisite to voter registration. The Chief Judge of the Circuit was notified of the filing of the cases pursuant to 28 U.S.C.A. § 2281 et seq., but declined to convene a three-judge court. The District Judge then heard and determined the actions, finding the statute to be unconstitutional. Hinnant v. Sebesta, 346 F.Supp. 913 (M.D.Fla.1972). On appeal from that decision to the Fifth Circuit, the Court held that a three-judge court should have been constituted. It therefore vacated the decision of the single judge and remanded the case to the District Court. Fair and Hinnant v. Sebesta, 475 F.2d 1140 (5th Cir. 1973). Chief Judge Brown then convened this three-judge court and the case was reargued.

We find, as the single District Judge did initially, that the statute is unconstitutional on the authority of Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Since that time, however, the Supreme Court has rendered two additional decisions of pertinence to the issue. Marston v. Lewis, 410 U.S. 679, 93 S.Ct. 1211, 35 L.Ed.2d 627 (1973) and Burns v. Fortson, 410 U.S. 686, 93 S.Ct. 1209, 35 L.Ed.2d 633 (1973).

In Marston the Court approved an Arizona statute, and in Burns a Georgia statute, each of which established a fifty day durational residence requirement. In both cases, however, the length of the residence requirement coincided with the length of the period between closing of registration and the election. By contrast, the Florida book closing period, like that of Tennessee in Dunn v. Blumstein, is only thirty days preceding the election. Florida Statute 98.051(4), F.S.A. The crucial importance of this distinction is emphasized in both Marston and Burns. Where there is hard evidence, as there was in each of those cases, that a certain period of time is required between the end of registration and the holding of the election in order to certify the rolls and perform the many other administrative tasks necessary to conducting the election, the incidental result that prospective voters who become bona fide residents during that period are effectively denied an opportunity to register is not constitutionally impermissible.

In effect, when the durational residency requirement is a mere corollary of and/or coincident with a reasonable period of time before an election during which all registration is precluded, the state is able to justify the resulting limitation upon the electoral franchise (and the right to travel) due to its "compelling interest" in preparing for and conducting the election itself.

"Fixing a constitutionally acceptable period for this purpose is surely a matter of degree. 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." Dunn v. Blumstein, 405 U.S. at 348, 92 SCt. at 1006.

Where the line will be drawn by the Supreme Court in those circumstances is as yet unclear. In Burns the Court remarked that "the 50-day registration period approaches the outer constitutional limits in this area . . ." 93 S.Ct. at 1210. See also the concurring opinion of Mr. Justice Blackmun. Ibid

It is unnecessary for us to attempt to decide those limits in this case, however, since Florida has already determined, at least under its present statutory scheme, that 30...