Jolicoeur v. Mihaly, S.F. 22826

Citation5 Cal.3d 565,488 P.2d 1,96 Cal.Rptr. 697
Decision Date27 August 1971
Docket Number22827,S.F. 22826
CourtUnited States State Supreme Court (California)
Parties, 488 P.2d 1 Colette JOLICOEUR et al., Petitioners, v. Emmery MIHALY, as Registrar of Voters, etc., et al., Respondents. James TABILIO et al., Petitioners, v. Emmery MIHALY, as Registrar of Voters, etc., et al., Respondents. Mark Steven RANDELL, a Minor, etc., et al., Petitioners, v. James S. ALLISON, as Registrar of Voters, Respondent. L.A. 29906.

John R. Cosgrove, Jorgenson, Cosgrove, Andrews, Elliott & Gillio, Menlo Park, Joseph Freitas, Jr., Dov M. Grunschlag, Davis, Robert Powsner, Beverly Hills, William A. Dobrovir, David L. Crump, Roger Jon Diamond, Pacific Palisades, and William Bennett, for petitioners.

Thomas M. O'Connor, City Atty., Milton H. Mares, Deputy City Atty., Richard J. Moore, County Counsel, Thomas J. Fennone, Deputy County Counsel, George P. Kading, County Counsel, Don H. Vickers, Deputy County Counsel, Robert G. Berrey, County Counsel, Joseph Kase, Jr., Asst. County Counsel, John D. Maharg, County Counsel, Edward H. Gaylord, Asst. County Counsel, Edmund G. Brown, Jr., Los Angeles, and Daniel H. Lowenstein, Modesto, for respondents.

PETERS, Justice.

In these proceedings we are called upon to determine whether the newly enfranchised young people of this state residing apart from their parents shall be treated like other voters for purposes of acquiring a voting residence or, on the contrary, shall be presumed to reside with their parents. We conclude that for state officials to treat minor citizens differently from adults for any purpose related to voting would violate the Twenty-Sixth Amendment to the United States Constitution. We also conclude that strong state policies require that voters participate in elections where they reside and, in accordance with California law permitting a minor to be emancipated for residential or other purposes, that California law requires that minors of 18 years of age or older be treated as emancipated and hence as adults for voting purposes in light of the Twenty-Sixth Amendment.

Petitioners are nine individual unmarried minors and two organizations. The nine individuals sought to register to vote in the jurisdiction they claim to be their actual permanent residence. Registrars of voters in the City and County of San Francisco, Alameda County, Santa Barbara County, San Diego County, and Los Angeles County refused to register the individual petitioners because they did not register at their parents' address, pursuant to the California Attorney General's opinion of February 17, 1971 (Opn. No. 70/213, 54 Adv.Ops.Cal.Atty.Gen. 7, 12), in which he concluded that 'for voting purposes the residence of an unmarried minor (whether student or not) * * * will normally be his parents' home' regardless of where the minor's present or intended future habitation might be.

In reliance upon this opinion, respondent Mihaly told petitioner McConville, whose parents live in Argentina, that he could not vote in local elections at all unless he became a Married minor. Petitioners Pang and Fruchtendler were told that they would have to register to vote in Hawaii and Arizona, respectively. The six other individual petitioners were told to register in other California jurisdictions up to 700 miles away from their claimed permanent residences. Petitioners Jolicoeur and King, who are fully self-supporting and work full-time, were told that these facts were irrelevant to their capacity to establish a legal residence for voting purposes. Petitioner Randell, who has Never lived at his parents' current domicile, and is not familiar with any political issues pertinent to that area, was told that he must vote there and not where he lives.

Petitioners invoke the original jurisdiction of this court, 1 seeking writs of mandate directed to the respondent registrars ordering respondents to register petitioners according to the same procedures and qualifications that are followed with respect to adult registrants, pursuant to Elections Code, sections 14280--14292. 2

The Twenty-Sixth Amendment: On June 22, 1970, President Nixon signed into law the Voting Rights Act of 1970 (P.L. 91--285, 84 Stats. 314), title III of which purported to lower the voting age to 18 for all federal, state, and local elections. After the United States Supreme Court held unconstitutional that part of title III which applied to nonfederal elections (Oregon v. Mitchell (1970) 400 U.S. 112, 118, 91 S.Ct. 260, 27 L.Ed.2d 272), Congress passed Senate Joint Resolution 7 on March 23, 1971, submitting a proposed constitutional amendment to the states for ratification, pursuant to article 5 of the federal Constitution. On June 30, 1971, Ohio became the 38th state to ratify the Twenty-Sixth Amendment to the United States Constitution, and it became law.

Section 1 of the Twenty-Sixth Amendment provides: 'The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied Or abridged by the United States or by any State on account of age.' (Italics added.)

The Twenty-Sixth Amendment prohibits abridging the right to vote on account of age. The word 'abridge' means diminish, curtail, deprive, cut off, reduce. (Webster's New Internat. Dictionary (3d ed. 1961) p. 6; Schermerhorn v. Local 1625 of Retail Clerks Int. Assn. (Fla.1962) 141 So.2d 269, 276; Piegts v. Amalgamated Meat Cutters, etc. (1955) 228 La. 131, 139, 81 So.2d 835, 838; Gray v. Johnson (S.D.Miss.1964) 234 F.Supp. 743, 746.) Gray is significant for its interpretation of similar language in the Twenty-Fourth Amendment, which forbids denial or abridgment of the right to vote on account of failure to pay a poll tax. The court in Gray held unconstitutional as abridging the right to vote a Mississippi statute which compelled persons exempted from the poll tax by the Twenty-Fourth Amendment to secure special receipts within a limited period of time. The burden put on exempted voters to obtain the special receipts was held to circumscribe, impair, and impede the right to vote.

Compelling young people who live apart from their parents to travel to their parents' district to register and vote or else to register and vote as absentees burdens their right to vote no less than the State of Mississippi burdened its poor people in Gray. Such young people would be isolated from local political activity, with a concomitant reduction in their political influence and information. The burden placed on youth would be different than that placed on other absentee voters. The youth, unlike other absentee voters, claims his current residence as his domicile but would be disqualified solely 'on account of age.'

Sophisticated legal arguments regarding a minor's presumed residence cannot blind us to the real burden placed on the right to vote and associated rights of political expression by requiring minor voters residing apart from their parents to vote in their parents' district. The Twenty-Sixth Amendment, like the Twenty-Fourth, Nineteenth, and Fifteenth before it, 'nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise * * * although the abstract right to vote may remain unrestricted. * * *' (Lane v. Wilson (1939) 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281.)

An unmarried minor must be subject to the same requirements in proving the location of his domicile as is any other voter. Fears of the way minors may vote or of their impermanency in the community may not be used to justify special presumptions--conclusive or otherwise--that they are not bona fide residents of the community in which they live.

In Carrington v. Rash (1965) 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, the United States Supreme Court was faced with a quite similar problem. There a Texas statute prevented persons entering the state as soldiers from acquiring a voting residence in the state while soldiers. The state claimed that military personnel might not make responsible use of the ballot, might vote in a bloc if under the dominating influence of a commanding officer, and, as transients without a stake in the future of the area, might vote against needed bond issues and property taxes. The court's answer was clear: Texas might restrict the franchise to bona fide residents, but it could not conclusively presume soldiers to be transients. To the state's claim that soldiers could 'take over' a small town near the base, the court responded firmly: "Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.' (Id., at p. 94, 85 S.Ct. at p. 779.) Carrington obviously applies to minors as well as to soldiers.

Were there any doubt that the Twenty-Sixth Amendment is intended to compel adult treatment of minors for voting purposes, reference to the legislative history of the amendment would dispel it. It is clear from that history, which is entitled to 'an important place in ascertaining the legislative intent' (Freedland v. Greco (1955) 45 Cal.2d 462, 467, 289 P.2d 463, 466; cf. Bourland v. Hildreth (1864) 26 Cal. 161, 180; Keeler v. Superior Court (1970) 2 Cal.3d 619, 624, 87 Cal.Rptr. 481, 470 P.2d 617), that Congress believed both that minor voters are entitled to be treated as adults for voting purposes and that voting in the youth's actual place of residence is essential to accomplishing a primary congressional goal of channelling youthful idealism through the political process.

The legislative history of title III of the Voting Rights Act of 1970 and the Twenty-Sixth Amendment reveals a rare consensus of concerns and objectives among Senators and Representatives who engaged in debate. Congressmen stressed three consistent themes: first, that today's youth is better informed and more mature than any other generation in the nation's history. 3 Second, Congre...

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