Keppel v. Donovan

• Decision Date: 04 December 1970
• Docket Number: No. 4-70 Civ. 423.,4-70 Civ. 423.
• Citation: 326 F. Supp. 15
• Parties: William J. KEPPEL and Michael J. Radmer, individually, and on behalf of the class of similarly situated residents of the State of Minnesota, Plaintiffs, v. Joseph L. DONOVAN, Secretary of the State of Minnesota, Richard Johanson, Clerk and Commissioner of Voter Registration of the City of Minneapolis, Vern Janowiec, Deputy Commissioner of Voter Registration for the City of Minneapolis, Hennepin County, and Hesther Truax, Municipal Clerk for the City of Crystal, Defendants.
• Court: U.S. District Court — District of Minnesota

326 F. Supp. 15

William J. KEPPEL and Michael J. Radmer, individually, and on behalf of the class of similarly situated residents of the State of Minnesota, Plaintiffs, v. Joseph L. DONOVAN, Secretary of the State of Minnesota, Richard Johanson, Clerk and Commissioner of Voter Registration of the City of Minneapolis, Vern Janowiec, Deputy Commissioner of Voter Registration for the City of Minneapolis, Hennepin County, and Hesther Truax, Municipal Clerk for the City of Crystal, Defendants.

No. 4-70 Civ. 423.

United States District Court, D. Minnesota, Fourth Division.

December 4, 1970.

William J. Keppel and Michael J. Radmer, Minneapolis, Minn., for plaintiffs.

Douglas M. Head, Atty. Gen., and Jerome D. Truhn, Sol. Gen., St. Paul, Minn., for defendants.

Before HEANEY, Circuit Judge, and NORDBYE and LORD, District Judges.

OPINION AND ORDER

MILES W. LORD, District Judge.

I

Plaintiff William J. Keppel, 29, a former resident of Wisconsin, moved to Minnesota on or about June 15, 1970. Plaintiff Michael J. Radmer, 25, moved to Minnesota from the Commonwealth of Massachusetts about June 10, 1970. Both are members of the Bar of the State of Minnesota, are associates in a Minneapolis law firm, and intend to remain permanently as residents of the state. No question is raised as to the validity of their status as residents of Minnesota.

Plaintiffs sought to register in the November 3, 1970, general election. They were not permitted to register to vote by the terms of Article VII of the Constitution of the State of Minnesota which requires that citizens must be residents of the state for six months preceding the election in order to be eligible to vote. This residency requirement is also referred to and expressed in Minnesota Statutes 200.02 and 204.075.

Plaintiffs then brought this action for injunctive and declaratory relief. They assert that Article VII of the state Constitution and Minnesota Statutes 200.02 and 204.075, insofar as they require six months' residency for voting eligibility, are unconstitutional under the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.

The plaintiffs sought to maintain the action on behalf of themselves and all those similarly situated, i. e., those residents of Minnesota who were denied the franchise because they had not resided in the state for six months next preceding the election.

A temporary restraining order was issued twenty days before the election— the last day on which citizens could register to vote under Minnesota law—enjoining the voter registration officials from refusing to permit the named plaintiffs to register.

Because plaintiffs challenge the operation of sections of the Minnesota Constitution and statutes, a three-judge court was convened pursuant to 28 U.S. C.A. 2281 et seq.¹

After hearing the arguments of counsel on the merits, this Court issued an order that permitted the named plaintiffs, Keppel and Radmer, to vote, but kept their ballots impounded pending the filing of this decision.

Since the named plaintiffs were the only members of the class who were permitted to register and to cast ballots on election day they constitute the only members of the class for the purposes of the immediate relief to be granted by this decision. Thus, these named plaintiffs cannot properly maintain a class action, but the relief granted here, inasmuch as it is declaratory in nature, benefits a class of persons who in the future would be similarly situated.²

II

We are mindful of the traditional prerogative that states have possessed in determining eligibility standards for voting. However, in light of recent constitutional doctrine which we shall discuss below, we conclude that Article VII of the Minnesota Constitution and Minnesota Statutes 200.02 and 204.075, to the extent that they require six months' residency for voting eligibility, are contrary to the United States Constitution.

The United States Constitution refers to voting qualifications in seven separate places.³ None of these references, however, specifically deals with the limits within which the states can impose residency requirements. These references perhaps acknowledge by their silence what the Supreme Court stated in Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959):

The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, * * * absent of course the discrimination which the Constitution condemns. 360 U.S. at 50-51, 79 S.Ct. at 989.

The Constitution has never been regarded as giving the states unchecked authority to set voting eligibility. In Ex Parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884), the Supreme Court said:

(T)he right of suffrage was considered to be of supreme importance to the national government, and was not intended to be left within the exclusive control of the states. * * * 110 U.S. at 664, 4 S.Ct. at 158.

The Supreme Court in Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), in striking down Virginia's poll tax, said:

(O)nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection clause of the Fourteenth Amendment. 383 U.S. at 665, 86 S.Ct. at 1081.

And in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the Supreme Court referred to the franchise as a "fundamental political right, because preservative of all rights," 118 U.S. at 370, 6 S.Ct. at 1071.

Early cases do not provide much precedential value to the instant case, because the careful scrutiny given by the Supreme Court and lower federal courts to state-imposed voting eligibility standards is a relatively recent development; e. g., Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), Harper v. Virginia State Board of Elections, supra, Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L. Ed.2d 506 (1964), Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), Lassiter, supra, Avery v. Midland County et al., 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970), and City of Phoenix, Ariz. v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970).

Thus, Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904), a case dealing indirectly with residency for voting and relied upon by defendants here, is inapposite. In Pope, the Supreme Court upheld a Maryland statute that required citizens moving into the state to declare an intent to remain one year before being permitted to register to vote. The Court, answering the argument that this statute abridged a privilege of United States citizenship, said:

(T)he privilege to vote in any state is not given by the Federal Constitution * * *. It is not a privilege springing from citizenship of the United States.

The Court said that the federal Constitution prohibited discrimination among different classes of voters, but did not reach the question whether the discrimination between longtime residents and recently arrived residents was permissible under the Fourteenth Amendment. Whether the Court at that time would have seriously considered an Equal Protection argument is not relevant today, for as the Court said some 60 years later in Harper, supra:

(T)he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are constitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. * * * Notions of what constitutes equal treatment for purpose of the Equal Protection Clause do change. 383 U.S. at 669, 86 S.Ct. at 1083.

Thus, even in Cocanower v. Marston, 318 F.Supp. 402 (D.Ariz.1970), a case supporting defendant's position, the court admitted that the value of Pope "may be largely historical."

III

It is therefore clear that the Minnesota residency requirement must be given close scrutiny to determine whether it violates the Fourteenth Amendment. The Minnesota requirement discriminates against new residents in that they are not permitted to vote. In the 1968 general election, there were 34,000 persons estimated to have been denied the franchise by the state's residency requirement, according to the U. S. Department of Commerce;⁴ by affidavit the Assistant Secretary of State of Minnesota says that an estimated 30,000 to 40,000 persons failed to meet the residency requirement for the November 3, 1970 election.

Defendants argue that the state need only show a reasonable or rational basis for this discrimination; plaintiffs assert that the state must show a "compelling interest" in order to justify the denial of the franchise to new residents.⁵

In support of their argument, defendants cite Drueding v. Devlin, 234 F. Supp. 721 (D.Md.1964), aff'd per curiam, 380 U.S. 125, 85 S.Ct. 807, 13 L. Ed.2d 792 (1965). In Drueding, a three-judge court upheld a Maryland Statute that required one year's residency in order to be eligible to vote in a Presidential election. The District Court held that the crucial question was whether the discrimination was unreasonable:

The Court cannot say that the requirements of the Maryland Constitution and statutes in question here are so unreasonable that they amount to an irrational or unreasonable discrimination.

The full text of the Supreme Court's affirmance is "The judgment is affirmed." 380 U.S. at 125, 85 S.Ct. 807.

In 1969, the Supreme Court in Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, struck down a New York statute that required that citizens own or lease taxable realty in order to...