Meyers v. Jackson, LR-74-C-320.

• Decision Date: 24 February 1975
• Docket Number: No. LR-74-C-320.,LR-74-C-320.
• Citation: 390 F. Supp. 37
• Parties: Louis E. MEYERS, Individually, and on behalf of all other residents of Arkansas who are similarly situated, Plaintiffs, v. Charles JACKSON, Clerk and Permanent Registrar of Pulaski County, Individually and on behalf of all other persons in the State of Arkansas who are County Clerks and Permanent Registrars, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

390 F. Supp. 37

Louis E. MEYERS, Individually, and on behalf of all other residents of Arkansas who are similarly situated, Plaintiffs, v. Charles JACKSON, Clerk and Permanent Registrar of Pulaski County, Individually and on behalf of all other persons in the State of Arkansas who are County Clerks and Permanent Registrars, Defendants.

No. LR-74-C-320.

United States District Court, E. D. Arkansas, W. D.

February 24, 1975.

Thomas A. Glaze, Little Rock, Ark., for plaintiffs.

Tom Tanner, Deputy Pros. Atty., Little Rock, Ark., for defendants.

Before WEBSTER, Circuit Judge, and HENLEY and EISELE, District Judges.

MEMORANDUM OPINION

This clause, in which a District Court of three Judges has been empaneled, is now before the Court on the motion of plaintiff for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

I.

Plaintiff is an adult citizen of Pulaski County, Arkansas; defendant is the County Clerk and ex officio Permanent Voter Registrar of Pulaski County. Plaintiff sues on his own behalf and on behalf of all other citizens of Arkansas similarly situated. The defendant is sued in his own official capacity and also as representative of a class consisting of the seventy-four other County Clerks and ex officio Voter Registrars in the State of Arkansas.

Plaintiff attacks the "within precinct" durational residency requirement for voters appearing in Amendment 8 to the Constitution of the State of Arkansas and in Ark.Stats., Ann., Cum.Supp., § 3-707, on the ground that those provisions are violative of the Fourteenth Amendment to the Constitution of the United States. Both declaratory and injunctive relief is sought.

Insofar as is here pertinent, Amendment 8 to the Arkansas Constitution, as amended by section 17 of Amendment 51, which was adopted by the voters of Arkansas in 1964 and which sets up a system of permanent registration for Arkansas voters, provides that any person is eligible to vote in this State if, among other things unnecessary to be mentioned here, he or she has resided in the State for twelve months, in his or her County for six months, and in his or her ward or voting precinct for thirty days.

Ark.Stats., Ann., Cum.Supp., § 3-707, which is Article 7, Section 7 of the Arkansas Election Code of 1969, Act 465 of 1969, provides that a qualified voter must have been a resident of the State for one year, of his or her County for at least six months, and of his or her voting precinct for at least thirty days, and must have registered in the precinct in which he or she resides and desires to vote for at least twenty days immediately prior to the election and in the manner set forth by Amendment 51.

Section 9 of Amendment 51 is in part as follows:

"(a) All persons may register who:

"(1) are qualified electors and who have not previously registered;

"(2) will become qualified electors during the twenty (20) day period immediately prior to the next election scheduled within the county; or

"(3) are qualified electors but whose registration has been cancelled or is subject to cancellation in a manner provided for by this amendment.

"(b) Registration shall be in progress at all times except during the last twenty (20) day period immediately prior to any election scheduled within the county, during which period registration of voters shall cease for that election, but registration during such period shall be effective for subsequent elections."

The record reflects that plaintiff has been a qualified elector of Pulaski County for many years and was duly registered to vote in the precinct of his residence until he moved from it to another precinct in Pulaski County on October 15, 1974. Plaintiff undertook to register in his new precinct for the purpose of voting in the General Election to be held on November 5, 1974 and was refused registration solely on the basis that he had not resided in the new precinct for at least thirty days prior to the election. We observe that plaintiff made his move into his new precinct more than twenty days prior to the election, and had he lived in that precinct for at least thirty days he would have been eligible for registration to vote in the November election. Thus, he was refused registration solely on the basis of the "within precinct" durational residency requirement that has been mentioned.

We might say at this point that this case is the lineal descendant of Smith v. Climer, Circuit Clerk and Permanent Voter Registrar of Pulaski County, Arkansas, E.D., Ark., 1972, 341 F.Supp. 123. In that case a statutory court held that the "within State" and "within County" durational residency requirements of Amendment 8 and Ark.Stats., Ann., § 3-707 were unconstitutional. However, the plaintiff in that case met the within precinct requirement, and the court had no occasion to rule on the constitutional validity of that particular requirement, which is the one challenged here.¹

II.

Before going further, we think it desirable to comment in some detail on the procedural history of the case.

Plaintiff filed his complaint on October 16, 1974 immediately after he had been refused registration. He moved for a temporary restraining order, and the application was heard on October 24 by the single District Judge to whom the case had been assigned originally. 28 U.S.C.A. § 2284(5). On October 25 that Judge entered an order granting temporary relief which enabled the plaintiff to mark and cast a ballot in the November, 1974 election.

On November 14, 1974 the Judge addressed a letter to counsel, a copy of which was filed with the Clerk as an Order. In that letter the plaintiff was granted permission to prosecute the suit as a class action, and it was directed that notice of the pendency of the action be given as provided by Rule 23 of the Federal Rules of Civil Procedure. Notice was given, and twenty-three of the seventy-five Voter Registrars in Arkansas asked to be disassociated from the case; their requests were duly granted.

In the fifth numbered paragraph of the Order of November 14 it was stated:

"5. While it may not be strictly the concern of this Court, I might point out that in Climer, supra, certain durational residency requirements of the Arkansas election laws were stricken down. That case was decided in 1972, and the Court pointed out that the Legislature was due to meet in 1973 and might desire to make some changes in the laws. As far as I know, the Legislature did not do so. If as a result of this suit the remaining durational residency requirement is held unconstitutional, there may be more urgent need for legislative action. For that reason I hope that the submission of the case can be expedited so that the Legislature which convenes in January, 1975 may take such action, if any, as seems to be indicated."

On November 20, 1974 Registrar Jackson filed his answer to the complaint, and in a letter to the Court requested an evidentiary hearing "for the purpose of allowing the defendant to testify as to the mechanics of his office which would establish the reasonableness of the thirty day residency requirement in the election code." And counsel concurred with the single Judge that early disposition of the case was desirable because of the imminence of the next regular session of the Legislature.²

The single Judge on November 25, 1974 entered another Order. In that Order note was taken of the defendant, Jackson's, request for an evidentiary hearing and of his expressed desire to testify. The Order, after referring to the defendant's desire and request, recited:

". . . It occurs to the writer that Mr. Jackson may submit an affidavit setting out those mechanics (of voter registration) and stating his views, or that his deposition may be taken and filed. If counsel for Mr. Jackson has any serious trouble with the writer's suggestion, the writer should be advised."

The Judge then called for the filing of simultaneous pretrial briefs by December 9 and gave either side leave to file a reply brief if it desired to do so, and leave was also granted to the parties to request oral argument, if desired.

On December 9 counsel for plaintiff filed the motion for summary judgment that is now before the Court and supported it with a memorandum brief.

Counsel for the defendant did not file a formal response to the motion and has submitted no brief. On December 13 Mr. Jackson filed a long affidavit with attached appendix explaining in detail registration procedures, including procedures for changing and cancelling registrations, that are followed in Pulaski County, which is the State's most populous County, and setting out the problems and difficulties that he claims would be encountered should the within precinct residency requirement be eliminated.

A few days later counsel for plaintiff filed a motion to strike the affidavit as being irrelevant and immaterial. On January 7, 1975, the single Judge filed still another Order which, among other things, overruled plaintiff's motion to strike the Jackson affidavit and appendix. The Order recited:

"The motion to strike the affidavit will be, and is hereby, overruled. The Court will consider the affidavit for what it is worth, if anything, in determining whether the case presents any genuine issue as to any material fact which would render summary judgment inappropriate. If defendant Jackson has anything further of a documentary nature, including any brief, to submit in opposition to the motion, he should file the same within one week from this date, after which the motion will be taken under consideration.

"If the Court concludes that the case presents no genuine issue as to any material fact and that plaintiff is entitled to judgment as a matter of law, summary judgment will be entered. Otherwise the motion will be denied, and the case set down for such other and further proceedings as may appear necessary.

"3. The writer notes the statement in defendant Jackson's affidavit to the effect that

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