Young v. Gnoss

• Decision Date: 04 May 1972
• Docket Number: S.F. 22888
• Citation: 496 P.2d 445,101 Cal.Rptr. 533,7 Cal.3d 18
• Court: California Supreme Court
• Parties: , 496 P.2d 445 Jeffrey A. YOUNG et al., Petitioners, v. George H. GNOSS, as County Clerk, etc., et al., Respondents. In Bank

Page 533

101 Cal.Rptr. 533

7 Cal.3d 18, 496 P.2d 445

Jeffrey A. YOUNG et al., Petitioners, v. George H. GNOSS, as County Clerk, etc., et al., Respondents.

S.F. 22888.

Supreme Court of California,

In Bank.

May 4, 1972.

J. Anthony Kline, Robert L. Gnaizda, San Francisco, William A. Dobrovir and Sarel M. Kandell, Washington, D.C., for petitioners.

Douglas J. Maloney, County Counsel, George J. Silvestri, Jr., Deputy County Counsel, and William H. Stoffers, County Counsel, for respondents.

John D. Maharg, Los Angeles County Counsel, Edward H. Gaylord, Asst. County Counsel, and Joe Ben Hudgens, Deputy County Counsel, Robert G. Berrey, San Diego County Counsel, and Joseph Kase, Jr., Asst. County Counsel, as amici curiae on behalf of respondents.

MOSK, Justice.

This proceeding for writ of mandate challenges the constitutionality of the provisions of California law which impose durational residence requirements of 90 days in the county and 54 days in the precinct as a prerequisite to voting in this state, ¹ and which close the voter registration books 54 days before an election. ² As will appear, we have concluded that the cited provisions violate the equal protection clause of the Fourteenth Amendment as applied in Dunn v. Blumstein (1972) 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274, but that petitioners are not entitled to relief at this time.

Petitioner Young established his present residence in Marin County, California, on March 10, 1972. Prior to that date he was a resident of Iowa. He applied to register to vote in Marin County in the primary election to be held on June 6, 1972. He was refused registration by respondent Gnoss, the Marin County Clerk, on the sole ground that he could not comply with the 90-day residence requirement. ³

At the time of filing the petition, petitioner Isaac was a resident of Texas intending to establish a new permanent residence in Monterey County, California, no later than May 1, 1972. Through her counsel petitioner inquired of respondent Maggini, the Monterey County Clerk, whether she would be permitted at that time to register to vote in Monterey County in the June primary election. Respondent replied in the negative, basing his refusal on the fact that petitioner would then be unable to comply with the 54-day residence requirement and the corresponding period for closing of registration. ⁴

The remaining petitioners are three nonprofit organizations which assert that the right to vote and the right to travel of numerous individuals among their membership is or will be denied or abridged by reason of the enforcement or threat of enforcement of the provisions of law here challenged. ⁵

Petitioners invoke the original jurisdiction of this court, and seek relief by writ of mandate. For the reasons stated in Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 570, fns. 1 and 2, 96 Cal.Rptr. 697, 488 P.2d 1, the case falls within the limited category in which we deem it proper to exercise original jurisdiction, and the prayer is for the appropriate remedy. (Accord, Wenke v. Hitchcock (1972) 6 Cal.3d 746, 750--751, 100 Cal.Rptr. 290, 493 P.2d 1154.)

The restrictions placed on the right of suffrage by article II, section 1, of the California Constitution have more than once failed to survive judicial scrutiny. In Otsuka v. Hite (1966) 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412, we held that the section's disenfranchisement of all persons convicted of 'infamous crimes' can constitutionally be applied only to those guilty of offenses which actually evidence corruption or dishonesty. In Castro v. State of California (1970) 2 Cal.3d 223, 85 Cal.Rptr. 20, 466 P.2d 244, we held that the section exclusion from voting of all persons unable to 'read the Constitution in the English language' cannot constitutionally be invoked against those who are fully literate in another tongue and have access to substantial sources of political information in that language. And in Keane v. Mihaly (1970) 11 Cal.App.3d 1037, 90 Cal.Rptr. 263, the Court of Appeal struck down on equal protection grounds the section's limitation of the franchise to persons who have resided in this state for one year prior to election day. We approve of Keane, and now turn to the question whether the remaining durational residence requirements of article II, section 1, can withstand constitutional analysis.

The United States Supreme Court recently addressed itself to this issue in Dunn v. Blumstein (1972) supra, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274. There a new resident of Tennessee challenged the jurisdiction's requirements that a voter be a resident of the state for one year and the county for 90 days in order to exercise the suffrage. The court first observed that durational residence requirements both affect the fundamental right to vote by completely excluding certain citizens from the franchise, and create a suspect classification of those citizens who lose that right merely because they have recently exercised their additional right to travel within the United States. (92 S.Ct. at pp. 999--1003.) For these reasons, the court ruled, durational residence requirements must be judged by the 'strict' equal protection test, i.e., by the now-settled principle (see cases collected in Castro v. State of California, supra, 2 Cal.3d at pp. 234--236, 85 Cal.Rptr. 20, 466 P.2d 244) that a state law which operates to deny the franchise to a portion of its citizens violates the equal protection clause unless the state can demonstrate that it promotes a compelling governmental interest and is necessary in the sense that it is the least burdensome means available to achieve that goal. (92 S.Ct. at p. 1003.)

The high court then reviewed two interests claimed to justify durational residence requirements--the prevention of electoral fraud and the informed use of the ballot by voters knowledgeable about the issues. The court agreed that preventing electoral fraud is a compelling governmental interest (see also Otsuka v. Hite (1966) supra, 64 Cal.2d 596, 603, 51 Cal.Rptr. 284, 414 P.2d 412), but held that a durational residence requirement is not a necessary means of achieving it. That purpose is adequately served, the court explained, by the oath requirement of the state's voter registration system, coupled with the threat of prosecution for violation of penal statutes prohibiting voter fraud. (Id. at pp. 1004--1009.)

Secondly, the court acknowledged it may well be true that new residents as a group know less about state and local issues than old residents, but held that a durational residence requirement is much too crude a tool for insuring that knowledge among all voters: 'The classifications created by durational residence requirements obviously permit any long-time resident to vote regardless of his knowledge of the issues--and obviously many long-time residents do not have any. On the other hand, the classifications bar from the franchise many other, admittedly new, residents who have become minimally, and often fully, informed about the issues. Indeed, recent migrants who take the time to register and vote shortly after moving are likely to be those citizens . . . who make it a point to be informed and knowledgeable about the issues. Given modern communications, and given the clear indication that campaign spending and voter education occur largely during the month before an election, the State cannot seriously maintain that it is 'necessary' to reside for a year in the State and three months in the county in order to be minimally knowledgeable about congressional, state or even purely local elections.' (Fn. omitted.) (Id. 92 S.Ct. at p. 1011.)

Accordingly, the high court affirmed a ruling of a three-judge federal panel holding unconstitutional the one-year and 90-day residence requirements challenged in Dunn.

We are bound, of course, by this decision of the United States Supreme Court. The 90-day residence requirement of article II, section 1, of our Constitution is indistinguishable in purpose and effect from the 90-day period invalidated in Dunn; for the reasons there stated, that requirement is unconstitutional. ⁶

A more difficult question is presented by the 54-day residence requirement and parallel closing date of the registration books. It is true that the Supreme Court has in fact not yet adjudicated the constitutionality of any period shorter than 90 days. ⁷ But it is well to remember that in Dunn the court declared that the 'strict' equal protection test must be applied not just to the one-year and 90-day periods there in issue, but to all such durational restrictions on the right of suffrage. (92 S.Ct. at p. 1003.) Respondents' burden, accordingly, is to show that the 54-day period prescribed by California law is necessary to promote a compelling governmental interest.

No claim is made that the 54-day period serves the purpose of preventing fraud by permitting election officials to go behind the prospective voter's oath and determine the bona fides of his asserted residence. ⁸ Nor is it contended the 54-day period is required to insure that the prospective voter will have resided in the community long enough to have become acquainted with local issues (cf. Bourland v. Hildreth (1864) 26 Cal. 161, 179). In fact, respondents and amici curiae are not essentially concerned with the 54-day Residence requirement of article II, section 1, of the Constitution, but with the code provision (§ 203) closing Registration 54 days before an election. Were it not for that period, they argue, it would be physically impossible for them to discharge certain preelection duties imposed by other sections of the code. Stating the point conversely, the Secretary of State asserts that 'The 54-day registration cut-off does not appear to be an administrative necessity in California, so long as local officials are relieved of certain mechanical requirements with respect to those voters who register after the 54th day prior to...