Otsuka v. Hite

• Citation: 414 P.2d 412,51 Cal.Rptr. 284,64 Cal.2d 596
• Court: California Supreme Court
• Decision Date: 24 May 1966
• Parties: , 414 P.2d 412 Katsuki James OTSUKA et al., Plaintiffs and Appellants, v. Benjamin S. HITE, as Registrar of Voters, etc., Defendant and Respondent. L.A. 28537. In Bank

Page 284

51 Cal.Rptr. 284

64 Cal.2d 596, 414 P.2d 412

Katsuki James OTSUKA et al., Plaintiffs and Appellants, v. Benjamin S. HITE, as Registrar of Voters, etc., Defendant and Respondent.

L.A. 28537.

Supreme Court of California,

In Bank.

May 24, 1966.

A. L. Wirin, Fred Okrand, Los Angeles, and Richard W. Petherbridge, Santa Ana, for plaintiffs and appellants.

Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Asst. County Counsel, for defendant and respondent.

MOSK, Justice.

Plaintiffs appeal from a judgment which upholds a refusal of defendant, Los Angeles County Registrar of Voters, to register plaintiffs as voters. (Elec.Code, § 350.)

This case presents the difficult question whether bona fide conscientious objectors who pleaded guilty more than 20 years ago to a violation of the federal Selective Service Act can constitutionally be treated as persons convicted of an 'infamous crime' and hence rendered ineligible to vote by article II, section 1, of the California Constitution. ¹ After reviewing the history and purpose of this ground of voter disqualification we have concluded that to preserve its constitutionality it must be limited to conviction of crimes involving moral corruption and dishonesty, thereby branding their perpetrator as a threat to the integrity of the elective process. Plaintiffs' crime was not 'infamous' as thus construed, and hence the judgment must be reversed.

The facts are not in dispute. During World War II plaintiff Otsuka, a Quaker, was classified 1A--O, i.e., a conscientious objector subject to noncombatant service in the armed forces of the United States. By reason of his religious training and belief, however, he felt he could not perform military service of any kind and should have been classified 4E, i.e., a conscientious objector subject to civilian work of national importance. He informed his draft board of his decision and refused to report for induction, surrendering himself instead at the office of the New York District Attorney. Upon his plea of guilty he was convicted of a violation of the Selective Service and Training Act of 1940 (former 50 U.S.C.App. § 311), and was sentenced by the federal district court to three years in the penitentiary. He served his term of imprisonment and was duly released.

Plaintiff Abbott's conscientious objection to military participation in any form was recognized by his draft board, and he was classified 4E. He complied with an order to report to a civilian work camp, but subsequently left the camp when it appeared to him that such activity was 'an integral part of the war effort.' Like Otsuka, Abbott pleaded guilty in federal court to a violation of the Selective Service Act; he was sentenced to two years in the penitentiary, served his term, and was duly released.

Now, more than 20 years later, the Los Angeles County Registrar of Voters has refused to register either plaintiff as a voter because of his wartime conviction of violating the Selective Service Act. It is conceded that in all other respects each plaintiff is a qualified elector under California law. Plaintiffs joined in this suit to compel registration (Elec.Code, § 350), and the matter was submitted on the pleadings together with a stipulation as to certain testimony plaintiffs would have given if called as witnesses. The trial court made findings in accord with the above statement of facts; in particular, the court found that in violating the federal statute each plaintiff 'acted pursuant to his personal conscientious opposition to participation in war in any form,' and that such violation was 'the sole reason' for defendant's refusal to register either plaintiff as a voter. The court concluded as a matter of law, however, that under article II, section 1, of the California Constitution such convictions rendered plaintiffs ineligible to be voters, and entered judgment upholding defendant's refusal to register them.

We meet at the threshold an apparent misconception as to the source of the right to vote. Defendant correctly asserts that the right to vote is not so much a 'natural' as a 'political' right, and that within constitutional limitations the several states are free to prescribe minimum qualifications for the exercise of that right within their borders. (Compare Carrington v. Rash (1965) 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, with Lassiter v. Northampton County Bd. of Elections (1959) 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072.) But it does not follow, as defendant also contends, that in California the right to vote is 'granted by' article II, section 1, of the state Constitution. Yet acceptance of that assertion is crucial to defendant's position: it is the premise from which he insists that plaintiffs' right to vote has not been 'abridged' by article II, section 1, but was simply 'not granted' by that provision in the first place.

Contrary to defendant's view, however, the right to vote in federal elections is conferred by the federal Constitution. (Harper v. Virginia State Bd. of Elections (1966) 86 S.Ct. 1079, 1080.) 'While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states (citations), this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I, to the extent that Congress has not restricted state action' by the exercise of its constitutional powers. (United States v. Classic (1941) 313 U.S. 299, 315, 61 S.Ct. 1031, 85 L.Ed. 1368.) 'It is not true, therefore, that electors for members of congress owe their right to vote to the state law, in any sense which makes the exercise of the right to depend exclusively on the law of the state.' (Ex parte Yarbrough (1884) 110 U.S. 651, 663--664, 4 S.Ct. 152, 28 L.Ed. 274; accord, Baker v. Carr (1962) 369 U.S. 186, 242--243, 82 S.Ct 691, 7 L.Ed.2d 663 (concurring opinion of Douglas, J.).) The question of the source of the right to vote in state elections appears still to be open (Harper v. Virginia State Bd. of Elections (1966) supra, 86 S.Ct. 1079, 1080--1081); but it is settled that whatever the source, 'once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.' (Ibid.) The provision of the California Constitution here challenged, as defendant construes it, purports to deny plaintiffs the right to vote in both federal and state elections.

While the right to vote is not among the specifically enumerated rights of the First Amendment, it is nevertheless one which 'this (Supreme) Court has been so zealous to protect' (Carrington v. Rash (1965) supra, 380 U.S. 89, 96, 85 S.Ct. 775). For language of the high court typical of its ever-increasing recognition of the importance of this right, we need look no further than the decisions of the 1965 term. Thus 'this Court has stressed on numerous occasions, '(t)he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.' Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506. The right is fundamental 'because preservative of all rights.' Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220.' (Harman v. Forssenius (1965) 380 U.S. 528, 537, 85 S.Ct. 1177, 14 L.Ed.2d 50.) Such matters are 'close to the core of our constitutional system' (Carrington v. Rash (1965) supra, 380 U.S. 89, 96, 85 S.Ct. 775) and 'vital to the maintenance of democratic institutions' (id. at p. 94, 85 S.Ct. at p. 779, quoting from Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155). (See also, United States v. Mississippi (1965) 380 U.S. 128, 144, 85 S.Ct. 208, 13 L.Ed.2d 717 ('the right to vote in this country is * * * precious'); Louisiana v. United States (1965) 380 U.S. 145, 153, 85 S.Ct. 817, 13 L.Ed.2d 709 ('The cherished right of people in a country like ours to vote'); and, finally, the recent case of Harper v. Virginia State Bd. of Elections (1966) supra, 86 S.Ct. 1079, 1083 ('the right to vote is * * * precious, * * * fundamental').) Rather than being a creature of California Constitution, the right of suffrage in this as in every other state of the Union flows from the wellsprings of our national political heritage.

In ruling on the validity of state-imposed restrictions on this fundamental right the United States Supreme Court has in effect tended to apply the principle that the state must show it has a compelling interest in abridging the right, and that in any event such restrictions must be drawn with narrow specificity. For example, race, creed, color and wealth are impermissible bases for restricting the right to vote; they are 'not germane to one's ability to participate intelligently in the electoral process.' (Harper v. Virginia State Bd. of Elections (1966) supra, 86 S.Ct. 1079, 1082.) And this court has recently adopted a similar approach in considering a county charter provision prohibiting civil servants from participating in a political campaign or election. (Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 337, 38 Cal.Rptr. 625, 392 P.2d 385.) Viewed in this light, serious constitutional difficulties appear when the disfranchising provision of article II, section 1, is applied to these plaintiffs.

First, we must determine what compelling state interest may be served by denying plaintiffs the vote. If it be argued that a person once convicted of an 'infamous crime' does not 'deserve' the right to vote, then the disqualification is in effect an additional punishment for the crime; such a punishment, which here would be imposed by a state for a prior federal offense, is of doubtful constitutionality. (Cf. Trop v. Dulles (1958) 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630.) Although plaintiffs...