Carrington v. Rash

PETITIONER:Carrington
RESPONDENT:Rash
LOCATION:Louisiana General Assembly

DOCKET NO.: 82
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Supreme Court of Texas

CITATION: 380 US 89 (1965)
ARGUED: Jan 28, 1965
DECIDED: Mar 01, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – January 28, 1965 in Carrington v. Rash

Hugo L. Black:

Number 82, Sergeant Herbert N. Carrington against Alan V. Rash and others.

Proceed.

Wayne Windle:

Mr. Justice Black —

Hugo L. Black:

(Inaudioble)

Wayne Windle:

— may it please the Court.

I’m here representing the petitioner in this case, Sergeant Carrington.

We initiated this case by filing a petition for writ of mandamus in the Texas Supreme Court.

The petition was denied in a 7-to-2 split decision and then this Court granted our petition for certiorari.

The case involves voting rights of servicemen residing in Texas.

The Constitution of the State of Texas contains a provision which prevents all servicemen from acquiring a voting residence in Texas so long as they remain in the service.

If a serviceman while in the service moves into a new county in Texas even if that new county becomes his bona fide residence, he will never be allowed to vote in that county so long as he remains in the military service.

And to vote in his (Inaudible)?

Wayne Windle:

If he is a Texas resident and has in fact changed from his original resident, he cannot vote there.

So it really matters not whether he originally resided in Texas or resided outside of Texas.

Once he intends to acquire a new home, he loses his right to vote in whatever county he came from.

(Inaudible)

Wayne Windle:

The provision is Article VI, Section 2, and in it effect — in effect reads like this, “Any member of the military service may vote only in the county in which he resided at the time of entering the service”.

The question of course before the Court is whether or not, this particular provision violates the Equal Protection Clause of the Fourteenth Amendment.

It is our contention that it does and the respondent — that respondent Carr contends that it does not.

The facts of the — this particular case as they relate to Sergeant Carrington are these, he is in the United States Army and entered the service in 1946.

At that time, he resided in Jefferson County, Alabama.

In 1962, he was stationed at White Sands, New Mexico which is very near El Paso County.

In February of 1962, he had the choice of either residing in New Mexico or El Paso County.

He and his family chose to reside in El Paso County simply because they like the City of El Paso and wanted to make it their home.

Potter Stewart:

You say he had the choice, was that his only choice, those two alternatives?

Was that the choice that the army gave him or what was it?

Wayne Windle:

Well, Mr. Justice Stewart, he had to live somewhere near enough to White Sands that he could work there.

Potter Stewart:

Yes.

Wayne Windle:

And as a practical matter, he would be limited to New Mexico or El Paso County.

Potter Stewart:

How far from his — from White Sands is his present residence?

Wayne Windle:

I think it’s approximately 60 miles.

Tom C. Clark:

So he could commute to his armed work —

Wayne Windle:

That’s correct.

And just like many civilians, he comes home at 4:30 in the evening, takes off his uniform, and can participate in community affairs.

There’s no question in this case but what he did, become a bona fide resident of El Paso County.

He in fact purchased a business, his children attend the public schools and that sort of thing.

So it is admit —

Potter Stewart:

Yes.

The brief said he was carrying on a business in White Sands which he has now — has moved to El Paso.

What kind of a business is that?

Wayne Windle:

It was a half hour recording — repair business.

He purchased the machinery and equipment from I believe Las Cruces, New Mexico and transferred it to El Paso County and he’s presently still operating it with a partner, in fact another serviceman.

In December of 1963, he paid his poll tax.

And then in March of 1964, he contacted me and I wrote a letter to the Republican County Chairman, asking the Chairman if Sergeant Carrington would be allowed to vote in the Republican County primary.

And he replied, “Of course no, that he could not because under the Texas Constitution, he may vote only in the county in which he resided at the time of entering the service”.

Now as a practical matter, he could not vote there.

This county was Jefferson County, Alabama.

He could not vote there because he had designated El Paso County as his home and in fact, it was his home for all purposes.

Yes, but —

Wayne Windle:

So he could not meet the residence requirements of Jefferson County, Alabama or any other county.

So he was left without a place to vote.

And he will not be allowed to vote in any local state or national election so long as this law remains on the books and so long as he remains in the military service.

(Inaudible)

Wayne Windle:

That’s correct, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Wayne Windle:

Prior to that time, members of the military had been absolutely prohibited from voting by a provision which classed him with convicted felons, lunatics, minors, and others who were obviously unqualified to vote.

In 1954, they were eliminated from that classification and this particular provision was added.

Hugo L. Black:

So this is somewhat of a major or reform legislation, isn’t it?

Wayne Windle:

Well sir, no. [Laughter]

Hugo L. Black:

You made it — that it — what other states have similar legislations?

Wayne Windle:

Your Honor, I have not.

I do know that in the case of Mabry against Davis, there was a member of the service who was supposedly qualified to know whether or not other states had similar laws.

And it was stipulated that he would testify that Texas was the only state.

Now, the respondents have pointed out in their brief that there are — I think three or four other states that have similar provisions.

My research was limited but from what I can tell, the prohibitions that appear on some of the other — in some of the other states don’t have the same effect as this one.

The effect of the other provisions is that they state that a member of the military cannot apply a voting residence simply by being stationed there.

Of course, we will agree with this more must be shown.

The serviceman must show that he is a bona fide resident of the particular county.

Potter Stewart:

Or for as long as about a year or six months.

Wayne Windle:

That’s correct.

The same requirement that is imposed upon all citizens regardless of occupation, if that is six months or a year, fine.

Hugo L. Black:

Didn’t have to have an attempt to reside on this statute?

Wayne Windle:

Yes, he does.

Not under the statute but under the election laws of Texas, he must prove to either the tax collector or to the election judge that sits at the polling place that he is a bona fide resident.

And if he falsified his statement, he is subject to felony convictions —

Potter Stewart:

But what if the states were to prove that?

Wayne Windle:

It takes —

Potter Stewart:

So far as intent is concern as my Brother Clark asked you (Voice Overlap) —

Wayne Windle:

As far as intent is concerned —

(Inaudible)

Wayne Windle:

Well, the election judge —

(Inaudible)

Wayne Windle:

— has the power to ask all of the questions that he wants to of the voter and the man must sign a statement that he does in fact intend for that to be his home and swear to it.

And then if he is further —

Byron R. White:

You mean — does that mean permanently?

Wayne Windle:

No, it does not.

But then of course, many civilians know that they’re not permanently residents of a particular county.

All he must show is that while he is there, he intends for that to be his home.

Potter Stewart:

But he has not — does he have to say, “I have no intention of departing?”

Wayne Windle:

No.

Potter Stewart:

I have no present intention of departing.

Wayne Windle:

No, he does not but neither though any of the civilian voters.

For example, members of college faculties often know that they’re going to be located in a particular area for a limited number of years.

But if they intend for that county to be their home while they are there, then they would be allowed to vote.

And of course our contention is that a man in the service should have the same opportunity to prove his residence as all of the other civilian voters in the county.

Hugo L. Black:

What provision of the constitution to allow him?

Wayne Windle:

Fourteenth Amendment, the Equal Protection Clause —

Hugo L. Black:

(Inaudible) Equal Protection?

Wayne Windle:

Yes Your Honor.

Arthur J. Goldberg:

Are you saying in fact this is not a — I mean, this is an invidious classification against him, is that true?

Wayne Windle:

That is correct, Your Honor, that the classification is unreasonable and amounts to discrimination against servicemen.

One of the primary contingence of the respondent and the respondent takes the position that the classification is reasonable, and that there are real and substantial differences between servicemen and civilians.

Our position is that very definitely there are certain unique characteristics of the military profession.

But then their unique characteristics of all professions which distinguish them from all others, we do not feel that the differences are sufficient to restrict the serviceman’s voting rights.

Now one primary difference which respondent Carr emphasizes in his brief is that members of the military service are very often only temporary residents of a particular county.

And of course this is true.

Many of them are there for a limited number of years.

But we do not feel that this alone is a sufficient difference from other citizens to discriminate only against the servicemen.

As I mentioned, members of college faculties were there temporarily, also, employees of large national corporations, perhaps insurance executives might be located in a particular area for a limited number of years.

Arthur J. Goldberg:

(Inaudible) workers?

Wayne Windle:

Construction workers and numerous other groups are very often in an area for a limited number of years.

William J. Brennan, Jr.:

And I suppose there’s something about only the small number of military that is of the total military stationed in Texas and that was very few of them who’ve done what your client’s done.

That is to take up residence, I take it, is that —

Wayne Windle:

Your Honor, I think that is correct.

We do say that there are a substantial number who — if given the opportunity can prove that they’re bona fide residents.

For example, some men have invested $25,000 or $30,000 in their home and maybe in other private enterprise within the community.

Some of them are very active in community and civil affairs.

Some of them will swear that if they are transferred somewhere else, they would leave their family there and that they would return as soon as possible and that they in fact intend to retire there.

And there should be no question but what these men are entitled to vote there, if they can prove that they intend for that to be their home.

Byron R. White:

Are you — why don’t you think some point of a — there being a discrimination between military people, mainly those who are allowed to vote in Texas and those who aren’t?

Wayne Windle:

Namely, you mean between those who at least entered the service there in Texas and those who entered elsewhere?

Byron R. White:

Yes.

Wayne Windle:

Well, I made this contention before the Texas Supreme Court and learned that it was erroneous because I now understand that there is no distinction.

That the one who resided there, when he entered the service, cannot vote in that county if he has in fact become a bona fide resident of another county.

Byron R. White:

If — for the military man who goes into service in Texas, and he serves there and retains his home in the county where he entered the service.

And then stationed to another county, could he still vote in the first county?

Wayne Windle:

This is true unless he —

Byron R. White:

That — and yet he’s still a military man.

Wayne Windle:

Your Honor, this is true unless he intends for that new county to be his home.

In other words, once he establishes a new home in the county where he is stationed —

Byron R. White:

Oh, I understand that —

Wayne Windle:

— he loses —

Byron R. White:

I understand that.

Let’s assume that there are 10,000 military men entered the service in X County in Texas and they’re stationed there in X County.

There’s no question as to what — they can vote?

Wayne Windle:

That is correct.

Byron R. White:

And there’s no question if they could vote if they all retained their home there and was stationed in the adjoining the county.

There’s no question what they can vote in X County.

Wayne Windle:

Well, that’s correct unless —

Byron R. White:

Well, there are 10,000 servicemen —

Wayne Windle:

— unless they intended to move into that enjoined —

Byron R. White:

I understand that but I my point —

Wayne Windle:

That is correct, Your Honor.

Byron R. White:

So there’s 10,000 military men in X — in Y County who lives in X County, who can vote in X County and there are 10,000 others in Y County who live in New Mexico and they can’t vote in Texas.

Wayne Windle:

This is correct.

This is correct —

William J. Brennan, Jr.:

I suppose you have absentee voting, don’t you as for the —

Wayne Windle:

We do, yes Your Honor.

William J. Brennan, Jr.:

So, well all of those who were stationed outside of Texas proclaimed Texas their home, they’d still vote, the absentee ballot?

Wayne Windle:

Well, of course this is true unless they have acquired a new —

William J. Brennan, Jr.:

Yes.

Wayne Windle:

— home elsewhere.

And of course that’s the problem we have in our case.

All of the servicemen with which we are concerned are servicemen who intend to acquire a new residence but they cannot do it for voting purposes solely because they’re members of the military service.

(Inaudible)

Wayne Windle:

No Your Honor, I would think not primarily for this reason.

There seems to me to be a very large distinction when you’re dealing with voting rights in one case where you’re actually extending the privilege further and in other case like ours, you’re denying them.

It would seem to me that it would be difficult to complain if you were in effect by legislation extending suffrage rights but there seems to be a very big difference when you’re in fact restricting them or denying them as they are in this case.

In summary, let me point this out.

The Court well knows that in this country, voting rights are basic and essential.

The Court has recently so stated in the apportionment cases.

The President of the United States in his State of the Union Message said, “I propose we eliminate all remaining obstacles to the right to vote”.

I mentioned this simply to show that we’re living in a time when voting rights are being expanded and not restricted.

And because this case involves voting rights, it is our position that the respondents must show that some overwhelming public interest will be served by this restriction.

We feel that the respondents must show that this particular restriction promotes the public welfare to some extent.

And we submit to the Court that the State of Texas has not and cannot present any valid reason for restricting the serviceman’s right to vote.

Thank you.

Hawthorne Phillips:

May it please the Court.

Hugo L. Black:

Mr. Wall.

Hawthorne Phillips:

Phillips.

Hugo L. Black:

Phillips.

Hawthorne Phillips:

Petitioner in this case is a member of the armed services and contends that Article VI, Section 2 of the Texas Constitution violates the Equal Protection Clause of the Fourteenth Amendment.

We don’t agree with this contention.

I wish to discuss three basic questions that have arisen in this case.

First, can a state pass any laws discriminating against the particular class of individuals which I think is fairly elementary, this Court has decided that issue so many times.

Second, if the state can pass discriminatory laws where there are any constitutional innovations that would restrict the states on the term — on determining the qualifications and rules for voting.

And third, there’s the Constitution of Texas, Article VI, Section 2 arbitrarily and invidiously discriminate against members of the Armed Forces by providing that they may vote only in the county in which they resided at the time of their entry into the military service.

Or if you state it another way, as a prohibition of the members of the military service from acquiring residence for voting in Texas during the period of their service, constitute arbitrary and invidious discrimination.

Now this case on the question of the right of this Court on — question of the right of a state to discriminate has discussed that many times.

I think the last time in the case of McLaughlin versus State of Florida in which you’ve listed quite a number of cases giving rights of discrimination in particular instance.

Hawthorne Phillips:

And in the second question presented, this Court also on many occasions has held that the United States Constitution makes voter’s qualifications rest on state laws even in federal elections.

Speaking of course Article I, Section 2 of the election of members of Congress, the Seventeenth Amendment in which the election of Senators, the elector’s qualifications are based on the qualifications of the electorates to the most numerous House of the State Legislature.

Now, the right of determination of qualifications is limited according to other decisions of this Court.

And I would say now by the Fifteenth, Nineteenth, and Twenty-Fourth Amendments and by the Equal Protection Clause insofar as they might — there might be arbitrary and invidious discrimination.

The petitioner did discuss in his brief some of the language used by this Court in the — both the legislative and congressional redistricting cases.

I won’t go into detail on those but those cases dealt with discrimination in the weighing or denying of the equal weight of the vote of qualified voters within the state.

Those who were determined to qualify by state law.

And this of course, I wish to point out is a different situation and that exist — that existed there.

Now I will agree with the petitioner in this case that generally speaking this Court has held in its past decisions that the interest of the public as distinguished from those of a class requires interference and that the means adopted are reasonably necessary and not unduly oppressive on the individual.

That was held by this Court in the case of Lawton versus Steele, 152 U.S. 137.

Now, I also wish to point out to the Court that it has been held in the past that when a provision or a law is attacked, that if there any state of facts that would sustain it, then there is a presumption of the existence of that state of facts, and the person assailing that classification has the burden of showing that the Legislation Act — legislative action is arbitrary.

Again, this Court held that the determination of the legislature will not be questioned if grounds may reasonably be conceived to justify.

That was held in one case, Metropolitan Casualty Company of New York versus Brownell in 295 U.S. 580.

And we can name a number of them on down until recent times in which this Court has held that it’s only invidious and arbitrary discrimination with which we’re interested in.

Alright now, historically, we might go back a little.

States have classified and prohibited certain classes of people from voting.

And as has been mentioned, among these people in these classes, and these are each classes are miners, lunatics, women, Indians, poppers, felons, colored people, people not owning property, and members of the military.

Now certainly, we have had some constitutional amendments that have eliminated some of these discriminations.

To go back to the time when the Fourteenth Amendment was passed and shortly thereafter, this Court decided the case of Miner versus Happersett in — reported in 21 Wall. 178.

In that case, this Court held that Fourteenth Amendment did not grant citizenship to anyone, that the women already were citizens of this country.

That if the right of suffrage was a necessary privilege of citizenship then the Constitution of Missouri which denied the women the right to vote would violate the Fourteenth Amendment.

However, this was not the case as it was held that the power of the state was supreme to set out the qualifications even in national elections.

It was further stated that Article IV, Section 2 didn’t confer the right to vote.

And if suffrage was necessary like in the incident of national citizenship, then the citizens of each state would be entitled to vote in every other state where they might happen to be just as if they were citizen of that state.

Again, just a few years later in 1876, in U.S. versus Cruikshank, the Court held that it appears that the right of suffrage is not a necessary attribute of national citizenship but that exemption from discrimination and the exercise of that right on account of race is the right to vote in the state comes from the state.

But the right of the exemption from the prohibited discrimination comes from the United States, the Fifteenth Amendment.

The first has not been granted or secured by the Constitution of the United States but the last one has.

Now we feel that these cases are rather significant because as this Court held in the case of U.S. versus Wong Kim Ark in 169 U.S. 649.

The interpretations by authorities in the field at the relative time that an Act or Amendment was passed should be given even more weight than the debates in the Congress in the legislative history.

Another contemporary author of that particular time had commented on the Fourteenth Amendment which the Honorable George W. McCrary, Judge of the U.S. Circuit Court of the Eighth Circuit and formerly he was Chairman of the Committee on Elections of the House of Representatives.

Hawthorne Phillips:

He stated in a work that he had published, “A Treatise on the American Law of Elections” which was published in 1875 and again revised in 1880, that the right of suffrage is not a natural right nor is it an absolute and unqualified right.

It is a right derived in this country from the constitution and statutes.

It is regulated by the states in their power to fix the qualifications of voters as limited only by the provisions of the Fifteenth Amendment to the constitution which forbids any discrimination on account of race, color, or previous condition of servitude.

And then again, in 1887, property plane of the Washington Bar, compared the treatise on the law of elections to public offices in which he commented that accordingly, the right of suffrage is in fact enjoined in the United States as in England only by a minority of members of the state.

It is in practice held — withheld from women and in theory, if not in practice, from miners, idiots, lunatics, and criminals which five classes together constitute a majority of the citizens of the United States.

These authorities all held in effect that state suffrage laws could be discriminatory.

And except for the Fifteenth Amendment, there was no constitutional inhibition.

That was felt necessary that the constitution be amended to prevent discriminate — discriminatory classifications because of race, trade or color as set out — or race or previous condition of servitude as set out in the Fifteenth Amendment.

And again in the Nineteenth Amendment, we had the elimination of women from the discrimination.

Now — or the states forbidden to place military personnel in a separate and distinct class when they find a valid reason to do so.

Arthur J. Goldberg:

Mr. Attorney General, are you discussing about your concern (Inaudible), is that correct?

Hawthorne Phillips:

Mr. Justice Goldberg, I think that is correct.

At least they have been voting.

That was overlooked by the legislature I’m sure and the people in citing and adopting (Inaudible).

Arthur J. Goldberg:

(Inaudible)

Hawthorne Phillips:

Alright sir, I’ll try to do so.

Now going back of course, I think that this Court is aware and will take notice of the fact that there have been a number of discriminatory laws passed in favor of people in military service.

I believe, Mr. Justice Goldberg, mentioned some of those earlier.

You have laws giving military the right to get a pension.

You have the — of discrimination in civil — in jobs in civil service regulations, and loan preferences, and for example, I think you might also state that in most instances jury service is another area where military men are not required to serve.

Byron R. White:

Don’t we have to inquire the differences (Inaudible)?

Hawthorne Phillips:

Mr. Justice White, I’m not contending if that’s a reason, just an example to show discrimination does exist in other fields in favor of the military as they are now claiming there is some discrimination against them in this area.

I think you’ll find that historically and this question was asked if there were other states that prohibited or had equal provisions regarding the voting privileges of the military.

And Mrs. Wall will discuss that in more detail but I might point out that historically, an early Pennsylvanian case of Chase versus Miller held that the right of a soldier to vote is confined to the election district where he resided at the time he entered the military service, same situation we have here.

Again, it was stated in paragraph 71, page 50 of planes treatise on the law of elections, that enlistment in service on the army of the United States do not disqualify an elector from voting at the place of his legal residence but he cannot by service of a military post acquire the residence prescribed by law as one of the qualifications of an elector.

Also cited in the cases of contested elections in Congress by Clark and Hall as the case of (Inaudible) Richard versus Wayne at page 512 which states that a requirement that soldiers must remain a year after discharge in an area if they wish to vote, if the voting requirement is a one year residence.

And it doesn’t make any difference how long they might have been stationed there.

That they cannot begin to acquire residence for voting purposes until they have been there a year after discharge.

Now those are a few examples of cases where military classification has existed.

I think this Court will concede that this Government, the people of the United States and of all of the states have most jealously guarded against the military taking over the civilly — the civil government in the country.

Hawthorne Phillips:

As I understand it, the Constitution of 49 of our states now has some provision in that regard, that the military will be subordinate to the civilian.

Then we might say, is this discrimination invidious?

We would say that it was and I think it was pointed out a little earlier in one of the questions that Texas, I believe Mr. Justice Black asked if this one, the modification of our constitution.

It certainly is a modification.

Hugo L. Black:

Instead of reform?

Hawthorne Phillips:

A reform, I beg your pardon.

That’s a little stronger language.

Hugo L. Black:

(Inaudible)

Hawthorne Phillips:

It is a reform —

Hugo L. Black:

Ameliorating statute?

Hawthorne Phillips:

It is because Texas did not allow the military to vote at all.

And there was historically a good reason for it.

And shortly after Texas won their independence, the army tried to take over the Government and they were seeking to imprison President Barnett and later when Sam Houston became president, he was able to disperse the army.

Now that has been not fair in the background and in the reasoning for the — in the history of this particular provision in the constitution.

In 1954, the people by a vote, the constitution is amended in Texas by first the legislature passing the matter and then it’s being given to the people to vote on.

This amendment was adopted allowing some latitude there.

And certainly I don’t know the reasoning, Mr. Justice Goldberg, and I can’t state — put any valid reason why as so not including the wives other than the fact maybe they thought they would not be under direct military control.

I can’t honestly answer if I know that if any consideration was actually given to the fact that the wives were not prohibited by this amendment.

Arthur J. Goldberg:

(Inaudible)

Hawthorne Phillips:

I do because now the reason given by the legislature and given in the opinion of our Supreme Court, was that this was to prevent a concentration of military vote in a particular area, in a particular county, whereby the military might take over the local government.

Texas is maybe unique.

I don’t imagine it has these many people in military service as California but we do have at all times some 162,000 members of the military within the limits of the State of Texas.

Hugo L. Black:

I thought we had the largest numbers?

Hawthorne Phillips:

I can’t answer that.

I know that California has some awfully large establishments since (Voice Overlap) —

William J. Brennan, Jr.:

(Inaudible) that many more than we do?

Hawthorne Phillips:

Sir?

William J. Brennan, Jr.:

I suppose Hawaii proportionately has many more military than we do.0

Hawthorne Phillips:

That couldn’t be.

I have not check on proportionate numbers.

William J. Brennan, Jr.:

But the (Inaudible) — the — I take it since this applies only to those who have made Texas as domicile of the 162 odd thousands stationed there at any one time.

There must be a small portion of those who would make Texas as domicile, isn’t that correct?

Hawthorne Phillips:

Our voting laws require that they be domiciled in the state for a period of one year and in the county for a period of six months.

William J. Brennan, Jr.:

And I take it domicile really means domicile, doesn’t it?

Hawthorne Phillips:

Well, that — I think that would be a question of intent.

William J. Brennan, Jr.:

In other words, they’ve given up whatever that may have been their place of abode in their home state and have decided that henceforth it shall be Texas.

Hawthorne Phillips:

That’s right —

William J. Brennan, Jr.:

But that must be I think —

Hawthorne Phillips:

— Mr. Brennan.

William J. Brennan, Jr.:

— a small number isn’t it to — proportionate at least of 162 odd thousands are maybe stationed there.

Hawthorne Phillips:

At the present time under the present state of the law, I don’t think — don’t know the exact percentage of — that have acquired domicile.

I will say this that some of the figures we have indicate that 93% have been there less than five years.

William J. Brennan, Jr.:

I mean, Texas with all its appeal, and I take it the — most military men are looking forward to getting out and go back home.

Hawthorne Phillips:

In a good many instances and of course there are a lot of military that do retire in the areas of the places —

William J. Brennan, Jr.:

Oh, retired military —

Hawthorne Phillips:

— where the served.

William J. Brennan, Jr.:

— are not affected by this, are they?

Hawthorne Phillips:

Retired military are not affected.

When they’re out of the service, they’re free to vote wherever they wish.

This inhibition of course was for that particular purpose.

And some of the theories that were related or could be related, I think we’ve had examples of military indoctrinating soldiers on a particular theory of military commander.

We’ve had that instances of that in the past.

If a commander want to order his men or suggest to his men which would under the military concept that the commander giving the orders and the soldier obeying, and asking him to show their residences taxes and telling them they wanted everyone to do it.

I don’t know how much would — fear that would be created if they would not change their residence or their domicile to Texas on their records.

If they did that, that possibly would be the only requirement under our present laws to show that they were domicile if this provision is not dealt.

Arthur J. Goldberg:

Is the (Inaudible)?

Hawthorne Phillips:

Any eligible voter is eligible to run for office.

Now there are some inhibitions —

(Inaudible)

Hawthorne Phillips:

Age so on and member of the legislature during the term can’t run for another office or be appointed to another office.

Hawthorne Phillips:

Certain other offices where he might have had vote in creating the office or raising the pay or some such matters is there or some other public officials can’t run for the legislature while their term — they can’t resign from office to run for the legislature in other words.

Nor — and I think under our laws and constitution you — or that you cannot hold two public offices, you would be — or two positions or receive remuneration from two government sources.

A soldier would be prohibited —

From the —

Hawthorne Phillips:

— from running for office.

If that was the — what — the question you wish answered.

(Inaudible)

Hawthorne Phillips:

I think it probably —

(Inaudible)

Hawthorne Phillips:

Now certainly, one of the principal reasons that require a person to become a resident and remain in a state for a number of months or years is to acquire a community of interest.

One of our court decided (Inaudible) on the constitution is saying that if he lacks a community of interest in the laws which are to govern the community, it is not only a serious danger but a false principle to give to him for thus you have given power to the hand which is alien to the rights of others which he controls.

Now, let’s extend that situation and we have had the argument that the military are just like any other particular group of persons having jobs as construction workers as other people.

Let me point out to this Court, there’s one major difference.

A military man does not have the freedom of choice.

Yes, he might give a preference of a location or station.

Whether the military sees fit to send him there or not is another matter, and if he’s an enlisted man, and he’s ordered to go to a particular locality, he had better go.

He has no freedom of choice in that connection.

He has to go.

Potter Stewart:

That doesn’t necessarily mean that he has to change his domicile, his home.

Hawthorne Phillips:

That’s correct; he doesn’t have to change his domicile.

Potter Stewart:

The order around physically to be —

Hawthorne Phillips:

But —

Potter Stewart:

— that his body in — any place that the army tells him to be.

Hawthorne Phillips:

That’s the difference (Voice Overlap) —

Potter Stewart:

Now, where his home is depends upon his — ultimately upon his own state of mind.

Hawthorne Phillips:

His own state of mind.

He is different from a construction worker in that regard.

Construction worker can quit his job if he didn’t want to go.

Or if the construction is over he can maintain his home and find new employment.

During the period of an enlistment, the serviceman can’t do that.

Hawthorne Phillips:

We do have that knowledge on their part that they will be moving on.

And that certainly in some of our smaller counties could have a very vital effect.

Before — I think as I recall something like 39,000 people assigned to it roughly.

It’s in two counties, two small counties; one county, the largest city as I recall is 10,000 or 12,000 people (Inaudible).

The other has a relatively small population.

(Inaudible)

Potter Stewart:

As I understand it, I’m sure you don’t have the statistics to fully know where to get them.

But of those 39,000 people, a very tiny percentage would consider (Inaudible) or the — it’s in environ as their home and — or qualify under your general election statutes in Texas as I’ve understand them, I’ve just been reading this case of —

Hawthorne Phillips:

Only — only —

Potter Stewart:

— Maby — Mabry against Davis where the general election laws are described in the Court’s opinion, I suppose there’s a record of it.

You told that six months in the county and —

Hawthorne Phillips:

That is correct.

Potter Stewart:

— one year in the state and plus a subjective intention that this be my home, is that it?

Hawthorne Phillips:

That is correct.

Potter Stewart:

To be proved (Voice Overlap) —

Hawthorne Phillips:

Or present home.

Potter Stewart:

— (Voice Overlap) declarations of — by external circumstances.

Hawthorne Phillips:

My present home.

I do — I thought that I had answered the question that you asked regarding how many people would be affected.

Now certainly we do not have statistics —

Potter Stewart:

No —

Hawthorne Phillips:

— I grant you that.

But we were talking about indoctrination by a military commander.

If the military commander is in disagreement with the local government, he could suggest that his men are domicile to Texas.

He could suggest that they might want to get rid of the local government.

I’m talking about possibilities now.

And that if that suggestion is conceived as an order by those men, certainly — and enough of them do change their domicile or go down and vote, and have been indoctrinated in the manner of thinking of the military commander.

Now it’s true that the military commander might be disciplined but the election would be over, the vote would be cast.

The results of the election would be excited regardless of what later happened to the military commander.

Although we did on occasion have military commanders, I know in the past, disciplined for improper indoctrination of their troops.

Hawthorne Phillips:

That was the danger that the legislature and the people of Texas felt that actually existed in adopting this and relaxing the prohibition against military voting at all.

So I wish that the Court would bear that in mind that in the exercise of the discretion of the Court or — and of the — rather of the legislature and the people.

They felt that this danger did exist, that there was enough danger to — although they wanted to allow military to vote, they did want to restrain that vote to the place where the man entered the service.

If you excuse a personal example, I vote absentee.

I moved to Austin less than a year ago.

I still vote in Brownsville.

The military man has the same right.

If he’s entered the service from Texas or from another state, he can still vote where he came from.

If he didn’t —

(Inaudible) in all states?

Hawthorne Phillips:

I don’t know if that’s true in all states, sir, but I’m sure that in every state, gives the military man the right to vote absentee.

I don’t know that any state that does not have absentee voting rights and does so permit.

Certainly, Texas does.

We have equally as many men in service from Texas as we have stationed in the service in Texas.

Those people are voting absentee if they wished, if they too have not changed their residence to another state.

William J. Brennan, Jr.:

But I take it that someone entering the military service in El Paso moves to the next county doing military service, he’s not qualified to vote.

He shipped overseas and he can’t vote absentee, can’t he?

Hawthorne Phillips:

If he enters military service in El Paso.

William J. Brennan, Jr.:

Yes and moves to another county (Voice Overlap)?

Hawthorne Phillips:

And changes his residency —

William J. Brennan, Jr.:

That’s right, in Texas while in the service.

Hawthorne Phillips:

He — if he changes his residence, his legal residence from El Paso, then he can’t vote.

William J. Brennan, Jr.:

If he shipped overseas, he can’t vote as absentee either.

Hawthorne Phillips:

No because he has already changed.

If he maintained his residence in El Paso regardless of where —

William J. Brennan, Jr.:

Yes, (Voice Overlap) —

Hawthorne Phillips:

— he descends.

William J. Brennan, Jr.:

I understand that.

Hawthorne Phillips:

It applies equally within the class.

Now, I want to point out one other thing before I do leave.

Hawthorne Phillips:

Sergeant Carrington came to Texas at the time these laws were already in existence.

This was not something that was passed after he got there.

It was an existing law, an existing condition.

He came in to Texas, decided to live there, knowing that this condition did exist.

Now why he chose El Paso, it — if — it was because Texas doesn’t have an income tax and New Mexico does.

If you reside in New Mexico or whether the facilities of the commissary and the post exchange existed, I don’t know.

He did come.

He did come with the law of being as it was in a set of facts and conditions that he found and he — now he is asking to change those already existing facts and conditions.

Thank you.

Hugo L. Black:

Mrs. Wall.

Mary K. Wall:

May it please the Court.

I want to discuss first the question which Mr. Justice White raised from the bench a few moments ago when petitioner was presenting his argument as to whether the Texas law accords a different treatment to members of the military who entered service as residence of the State of Texas and those who entered as residence of some other state.

Now there has been some other passing mentioned of that in subsequent statements of counsel but I want to be sure that this is clearly understood because it was in petitioner’s petition for writ of certiorari.

There was some confusion in his presentation I believe of whether that was an issue and also in the District Court’s opinion in the case of Mabry versus Davis which I — all of the members of the Court may now be aware of is a case of very similar nature to this one involving essentially the same matters and it is now pending on a — in a jurisdictional statement for appeal in that case has been filed by the Attorney General.

The District Court for the United States District Court for the Western District of Texas has held that the provision in the Texas law is unconstitutional.

The District Court in its opinion, clearly assumed both in its opinion and in its judgment assumed that the Texas law operates differently upon people who enter a service as a resident of some other state and those who enter as residents of the State of Texas.

Now the provision in the Texas constitution is that a person in military service may vote only in the county in which he resided so long had — as he continues to be a member of the Armed Forces.

Now this operates exactly in the same manner upon a person who entered as a resident of the State of Texas and person who entered service as a resident of some other state.

If after entering service, that person changes his legal residence to some place other than the place where he had his legal residence at the time he entered service.

The effect is that so long as that person is a resident of the State of Texas, he cannot vote because he may vote only in the county where he resided at the time he entered service.

If the person entered service as a resident of Travis County and is now stationed in El Paso County and has decided that he is going to claim legal residence in El Paso County, he may not vote in Texas at all.

If a per — if — that is exactly the same effect that it has on the person who entered as a resident of some other state and is now claiming to be a legal resident of the State of Texas.

(Inaudible)

Mary K. Wall:

In every state in the union including Texas, including Alabama, in fact every state in the union without qualification, without exception.

A person in military service is permitted to retain his legal residence in the state and in the place where he lived when he entered service as long as he continues in service regardless of the length of absence whether — if Sergeant Carrington had never set forth in Alabama once after he entered service, he still could have continued to claim that his — as his place of legal residence as long as he was in service.

That is the universal rule throughout the United States and all of the states.

Hugo L. Black:

Could you have —

Byron R. White:

Excuse me, go ahead.

Hugo L. Black:

Could you have done that if he had told Alabama that you want to continue to vote there but he had definitely made up his mind to have his home in Texas as long as he lives.

Mary K. Wall:

Well now, of course if he had said that he — it would be a question of what his present intent was if he was saying to the State of Alabama, “Well, I no longer won’t be a resident of Alabama, I want to be a resident of Texas.

Mary K. Wall:

Now, I am claiming to be a resident of Texas.

Now, I am a resident of Texas but they won’t let me vote.

I want to continue to vote here”.

No, I don’t believe the State of Alabama would allow him to do that.

Hugo L. Black:

Well, he —

Mary K. Wall:

But now if he had said to his —

Hugo L. Black:

(Voice Overlap) you would have had to tell him that, wouldn’t he, if he told them the truth that he’s told the truth here.

Mary K. Wall:

Of course, he didn’t have to make up his mind that he wanted to become a resident of Texas now.

He — it was within —

Hugo L. Black:

But he did.

Mary K. Wall:

He had the option.

He had the option to decide, “Yes, I like this place.

I want to live here when I retire but so long as I’m in military service, I’m not going to claim, it’s a matter of intent.”

And he must have had a present intent to make it — to claim it as he is domicile as of the very time.

Now he could intend —

Hugo L. Black:

That’s what he says, isn’t it?

Mary K. Wall:

Yes.

Now if all — but all of that was quickly within his own —

Hugo L. Black:

So the Alabama law wouldn’t —

Mary K. Wall:

— control and (Inaudible).

Hugo L. Black:

— have found him any good if you told the truth, wouldn’t it?

Mary K. Wall:

And if that is his attitude and if —

Hugo L. Black:

Well, that’s the record.

We have —

Mary K. Wall:

Yes.

Hugo L. Black:

— to take that —

Mary K. Wall:

That’s right.

Byron R. White:

So this —

Mary K. Wall:

But he —

Byron R. White:

Well this man could not vote in Alabama —

Mary K. Wall:

No.

Byron R. White:

— on this record?

Mary K. Wall:

That’s right.

Byron R. White:

Without telling a lie to Alabama?

Mary K. Wall:

He could not.

That is true.

Byron R. White:

Now, you say that I understand what you said about there being no discrimination among military people as far as the Texas Constitution is concerned.

My point was that the reason you say that you won’t let this particular military man vote and others like him, is that maybe this military man doesn’t have the interest, interest enough in the local government to justify — of permitting him to vote because he may be moving on.

Well this is — do you say it follows from the fact that he’s a military man but you do let other military men with the same kind of problem about him to vote —

Mary K. Wall:

Not —

Byron R. White:

The people who entered Texas, who entered the service in Texas and are allowed to go to Texas, are in the military and they aren’t even in Texas and may never be there again.

And you permit them to vote all the time.

And yet the person who had — like this gentleman who has decided to live in Texas, he’s there on the spot, he has a home there, he has his family, he’s not off in Hawaii or Alaska, or some place, he may never return.

I’m just suggesting that the reason you have for discriminating between one military man and another maybe — may bear some examination, that’s all.

Mary K. Wall:

We don’t allow the person who entered service as a resident of Texas to vote at the place he is stationed based up — on a residence acquired during military service.

And that is the point of distinction.

He votes — that home where he grew up, if he votes at all in Texas, he votes back where he lived before he entered service.

Byron R. White:

But if that’s —

Mary K. Wall:

When he —

Byron R. White:

— a fellow who — but if there is a — if in the carpool with the — with this sergeant here happens to be of a Texas res — a fellow who entered the service in El Paso — in El Paso, Texas, and he’s working up at White Sands and riding back and forth with him.

This sergeant can’t vote and the other fellow can.

Now you tell me how you distinguish between those two military men?

Mary K. Wall:

The — well now — we may be calling into question the very principle of permitting a person to claim residence at a place –Well, I know —

— from —

Byron R. White:

Let’s just — everybody accepts the fact here that this sergeant is living in El Paso and he’s going to live there.

He wants to make it his home, that’s the record.

That’s the fact for itself.

So here are two residents of El Paso, the City of El Paso.

One entered the service from — when he was in Alabama.

The other entered the service when he was in El Paso and they both work at White Sands, both ride together up work everyday.

Byron R. White:

Both go to the polling place, one can vote, one can’t.

Now what — just what — how do you distinguish between those two people?

Mary K. Wall:

Now the person —

(Inaudible)

Mary K. Wall:

Mr. Justice Harlan, its getting at the very same — the person, the person who lived there when he entered service has now — or let me take the other text, the person who acquires — who claims to establish residence during military service.

Now, we — let me set out some statistics first.

A person, the average length of tenure at one particular duty station varies from — a permanent duty station varies from average of two to four years.

The person is there for that length of time and then he is moved somewhere else.

He — our contention is that during — that because of the temporary nature of his sojourn in the place where he is stationed, he cannot have the same opportunity to acquire an interest in community affairs to become assimilated into the community actually to learn the needs and necessities of the community to become familiar with the local government in the manner that a person should be able to let — in the manner that a person should in order to be able to vote there that because of the nature of his military service which may take him away from there at any moment.

And at the most, is likely to keep him there only for a limited time that he does not become in fact a member of the community to entitle him to vote there.

Byron R. White:

Well, let’s add a third man to this group.

There’s another fellow who entered this service from El Paso.

The only thing is, he moved to Albuquerque.

He was first shifted up to to Albuquerque and then he was shifted to the White Sands, could he retain his — his family is in Albuquerque and he drives down to White Sands everyday from Albuquerque.

And he says, “I don’t have — I don’t know why you want to live in El Paso.

I’m never going back to El Paso.

I — as far as I know, I’m going to live in Albuquerque.”

But he works at the same des — the White Sands with these other two fellows who live in El Paso and two of them can go down to El Paso and vote and this other one can’t, this argue — in his case can’t.

And this fellow has no more interest in El Paso and — well, he certainly hasn’t got the interest that the sergeant does, he’s going to live there.

Mary K. Wall:

Now I — it — I think that (Inaudible) — you — that question would be getting to the proposition that a person must be — although he is admittedly a permanent resident of the place that he must be shown to have some kind of overwhelming interest in the community before he is going to be entitled to vote.

Now if that — if — I think that that proposition gets somewhat beyond our — the question in this present case.

Now our contention is that the people in military service because of the nature of their service, the fact that they are at the most temporary residents at the place where they are stationed, that as a class, that is a characteristic that differentiates them from any other class of citizens — of resident and for that reason, that they are entit — that the state may treat them separately as a class subject to this common characteristic.

Now the fact that there may be individual members of the class that don’t fit the pattern, as Sergeant Carrington for example, it is our contention that he doesn’t fit the pattern of the typical man in military service.

And incidentally, there’s — there are some statistics, I believe that Mr. Justice Brennan raised the question that, “Would there only be a small number of people who would want to claim residence in the State of Texas?”

Now there are 66%.

The statistics we have on that is that 66% of the people in the Fourth Army Command which embraces five states including State of Texas are career servicemen.

We don’t have any statistics on the other three services but the conjecture seems to be supportable that the percentage of career of servicemen in the other services would run as high or higher.

Now those 66% are the people who have pulled up roots back where they grew up, where they entered service, where they would be entitled to claim residence if they wanted to.

They are the people who are likely to want to claim a residence wherever they happened to be stationed.

There are —

William J. Brennan, Jr.:

(Inaudible) a little inconsistency?

I gather that you’re saying being career service people or people with long tenure, isn’t that inconsistent with your other argument that tenure is usually not more than two years.

They don’t have time enough to get used to —

Mary K. Wall:

No, I’m — I am speaking of the length of time spent in military service and not that spent at a particular duty station.

Now, I said that the length of — that a person remained at a particular duty station is of limited duration, two to four years.

Now — but the career person will be in service for a long time.

He has no particular reason to want to continue to claim residence at the place where he entered service.

Now, the other 33% are a lesser percent for some branches of the service, yes.

They’re in the service because they have to be there, they have to fulfill a certain compulsory requirement, all they’re thinking that is getting out and going back home, they aren’t the ones who are going to want this (Voice Overlap) —

Byron R. White:

Well, that 66% who are in — who in for a — or in for a long time have no reason to continue to claim residence where they entered the service that nevertheless doesn’t mean that they have no interest in maintaining residence somewhere, almost all of them before very long are going to want to plan for the future upon retirement.

And they do pick out localities to live, and just like this sergeant.

Because it’s your — your position of course does mean that — if the sergeant is 21 years old or 22 years old, and he’s going to stay in until the time of retirement.

He’s permanently disenfranchised.

If he is serious about living in El Paso and he maintains his home there, he could never vote for 20 years.

Mary K. Wall:

If during the first year of his service he decided that he was going to stay permanently in El Paso, that would be the effect (Voice Overlap) —

Byron R. White:

Well, that’s the record we have before us.

He can’t vote anywhere.

Mary K. Wall:

Well of course, I believe he has been in service for about 18 or 19 years already.

Now he’s just about out.

Byron R. White:

That’s right.

But if he would —

Mary K. Wall:

He wouldn’t have long to wait now.

Byron R. White:

If he were 22 or 23 or he could be — he could be prevented from voting for the rest of his military career.

Mary K. Wall:

That — he could be prevented from voting if he — that is —

William J. Brennan, Jr.:

(Voice Overlap)

Mary K. Wall:

— correct that if he say — if he said, “I don’t but yes, I know what I’m getting into.

I know that I’m not going to be able to vote but I just don’t want it even stated on my record anywhere that I am still a resident of Alabama.

I don’t want to vote there.”

That would be the effect.

That is correct.

William J. Brennan, Jr.:

Tell me that 66 — I get your point.

That the 33 — and the third percent may not be clear people but I’m just wondering if any numbers that 33 and a third percent wouldn’t be substantially greater than the number of career people, that is a two year draftees or stationed in Texas once we were substantially greater in number than the number of career service people stationed there.

Mary K. Wall:

Not according to the —

William J. Brennan, Jr.:

(Inaudible)

Mary K. Wall:

— information we got from the Fourth Army.

Those were their figures.

And as a matter of fact, we were — I don’t believe that that should tax our credulity because we hear talk of the possibility of ending the draft.

In fact there is a study going on right now as to whether it is feasible to end the draft.

And that would be on the — in the belief that there would be enough people voluntarily entering service and most of them would be entering with the purpose of making it a career.

Now I — the — coming back though to — to make a point briefly, it is our contention that a person so long as he is in military service and subject to being transferred at any time by a military order which he cannot resist, that he at the most is a mere soldier in the place where he is living, where he is stationed.

Now it is our contention that a state could withhold from him the privilege of acquiring residence for any purpose.

Now the law of Texas permits a serviceman to acquire residence for all purposes except voting.

It merely says to him — it says, “Yes, we recognize you as a resident for all other purposes but we are not going to allow you to vote if you do establish your resident during military service.”

Now it is our contention that he could — that the privilege of establishing residence for any purpose could be withheld from a person in military service so long as he continues in service because he is in fact merely temporarily within the state.

It’s not within his choice to remain no matter how much he might wish to remain.

It is not his choice.

(Inaudible) is that the case where the court held that the right to vote was constitutionally secured —

Mary K. Wall:

Well now —

— in (Inaudible) elections.

Mary K. Wall:

That was in connection with the right to vote in a congressional race was it not?

And of course what the Court —

(Voice Overlap) congressional race you say?

Mary K. Wall:

But — and the cons — and it was constitutionally secured because of the fact that the state — what — I’ve forgotten it was that —

Louisiana.

Mary K. Wall:

A Louisiana case.

It was constitutionally secured because the State of Louisiana had conferred the privilege of suffrage bond this individual and recognized him as a qualified elector of the state.

Then by virtue of the — of Article I of the Constitution of the United States, he was entitled to vote for a Congressman by virtue of the fact that he was a qualified elector of the State of Louisiana.

He had a constitutionally secured right to vote for a Congressman flowing from the fact that he was a qualified elector in the State of Louisiana, but I don’t recall that the case would have intimated that — or that the case reached the power of the state to prescribe the qualification.

I just wanted to — what you’re talking about really was that — you said that a serviceman can establish residence or everything except voting.

Mary K. Wall:

By his own volition and we must always remember that.

Mary K. Wall:

That unlike other — there are only a limited number of classes of individuals who have this choice of saying, “I maintain my residence back there or I establish my residence here.”

People in military service in most states, people in government employment, any form of government employment, students usually have that option.

The average civilian does not have that option.

William J. Brennan, Jr.:

(Inaudible) of an income tax in Texas on domicile areas?

Mary K. Wall:

And here is something else.

Now as to the number of persons whether there would be a — and a substantial number of persons claiming residence that is military personnel claiming residence in the State of Texas.

The State of Texas does not have state income tax.

And I know just from the correspondence that crosses my desk in the Attorney General’s Office that that is a very strong inducement to people in military service to want to claim residence in the State of Texas while they are stationed there and after they have been transferred somewhere else under this privilege that the Texas law gives them once having established residence that they can continue to maintain residence, and that would apply to the person in military service having residence established while in service although he couldn’t vote.

He could continue to maintain his legal residence and that is a very strong inducement to people in military service to want to establish residence in the State of Texas.

(Inaudible)

Mary K. Wall:

Well, now, I didn’t want to — I purposely avoided that because I didn’t want to give the impression the — I didn’t want to make a Chamber of Commerce speech.

What other qualifications besides residency?

Mary K. Wall:

I beg your pardon.

What other qualifications are there in Texas besides residence (Voice Overlap) —

Mary K. Wall:

For —

(Inaudible)

Mary K. Wall:

For voting?

Yes.

Mary K. Wall:

For voting, well there must — of course over 21, a citizen, residence in the state for a year and in the county for six months, and not subject to disqualifications of conviction of a felony, lunacy.

This petitioner suffered none of those disqualifications of any — the statute?

Mary K. Wall:

Just this restriction on place of voting that —

Once you qualified under the residence standard that hence the — he lived there a year —

Mary K. Wall:

Yes.

— in the county, six months?

Mary K. Wall:

Yes, yes.

Has not been convicted of any offense.

He is 21, all the others.

Mary K. Wall:

Now —

Potter Stewart:

Residence does require more than mere physical presence for six months and a year, does it not?

Mary K. Wall:

All — the rest —

Potter Stewart:

I —

Mary K. Wall:

All the residence requires is to establish that these conditions that the person no longer intends to go back — to return to —

Potter Stewart:

Anywhere else.

Mary K. Wall:

— the place where he did have residence.

Potter Stewart:

Right.

Mary K. Wall:

He no longer intends to return there.

He has abandoned that as the place he calls home.

Potter Stewart:

Right.

Mary K. Wall:

And that he intends to remain where he is at —

Potter Stewart:

Indefinitely.

Mary K. Wall:

— the present time —

Potter Stewart:

Indefinitely.

Mary K. Wall:

— if he has no —

Potter Stewart:

His present intention —

Mary K. Wall:

Well, that —

Potter Stewart:

— is to remain there (Voice Overlap) —

Mary K. Wall:

Now, when I say in — and when we say indefinitely, we don’t mean that he intends to come back there if he were called away that he would come back there.

It’s just that he has no particular intention to go anywhere —

Potter Stewart:

Or would be anywhere else —

Mary K. Wall:

— else immediately.

Potter Stewart:

— at the moment.

So it’s (Voice Overlap) —

Hugo L. Black:

(Inaudible)

Potter Stewart:

— very close to domicile which says — the law tells that.

Mary K. Wall:

Well, that is the law of —

Potter Stewart:

Yes.

Mary K. Wall:

— domicile in our state.

Potter Stewart:

(Inaudible)

Mary K. Wall:

And —

Potter Stewart:

The residence — you require domicile plus his six months in the county and the (Inaudible) — in the county and a year in the state.

Mary K. Wall:

Well, now when we — I’m using the term residence is — being used in the sense of legal residence interchangeable with domicile when I say it —

Potter Stewart:

Yes, but —

Mary K. Wall:

— for six months (Voice Overlap) —

Potter Stewart:

— you can require domicile in five minutes.

Mary K. Wall:

That’s right.

Potter Stewart:

You were — you required domicile plus this time requirement —

Mary K. Wall:

That’s right.

Potter Stewart:

— isn’t that right?

Mary K. Wall:

That’s right.

Now every state —

Does the — pardon me.

Did the sergeant — evidence and precedent is mentioned to remain in Texas as his home?

Mary K. Wall:

Now, Your Honor, we are not.

The fact of residence has been admitted, not disputed whether Sergeant Carrington actually felt there was no proof.

The allegations were accepted because the State of Texas had no reason to want to say to Sergeant Carrington, “You must prove this.

We doubt your word.”

This is what we frankly would term a test case.

Undoubtedly —

Merely instead of a stipulation I suppose —

Mary K. Wall:

There were allegations that were not disputed.

Now every state in the United States requires a certain length of residence before a person may vote.

The length of residence in some states, in most states is one year.

In some states it is two years.

Now those requirements have been held to be constitutional that at least — except, I believe there has not been an adjudication as to those requirements with respect to voting for in the presidential election and there is a case now before the Court in which that questions is being presented.

Now the theory on which those states — the theory on which states may withhold for a time the privilege of voting is because the person until he has been in the state at certain length of time has not become assimilated into the community.

The exactly we say that the same reasoning supports — would support withholding the privilege of voting from persons in military service because no matter — even though they have been within the state for that length of time and for some period in excess of that, that because they are subject to being transferred to other places without any volition on their part to remain that they never in fact become members of the community while they are in the military service.

Now, I won’t —

This is can (Inaudible)

Mary K. Wall:

Yes, yes.

(Inaudible)

Mary K. Wall:

Oh, you were speaking about into the area of federal and not general residence requirements.

(Inaudible)

Mary K. Wall:

Yes, yes, that is true that that could be done.

I won’t — there is just one point that — my time is about to run out.

I want to emphasize and this is covered in our brief.

And I’m sorry that I can’t devote more time to it in the oral argument.

I want to emphasize that petitioner is not typical of persons in military service generally.

We contend that even as to petitioner, there is a reasonable basis for withholding voting privileges from him.

But as to the class as a whole, we say that petitioner is not typical and the fact that a few inequalities may exist because of a classification which basically is sound does not render it invalid as to the isolated examples of who are not typical of the general —

Byron R. White:

Yes, but Mrs. Wall, your problem only comes up when someone does qualify under your residence qualifications.

That’s the only time you have a problem because without that problem — without — unless they do, they don’t get to vote anyway.

And if anyone else besides the sergeant does qualify as a resident of El Paso or any other county in Texas, he joins the sergeant in that class.

And there, that’s the only kind of people that there is any problem about whatsoever.

All the rest of the people are disqualified because they don’t meet your residence requirements.

Mary K. Wall:

There are 60 per — 66% or more of persons in military service —

Byron R. White:

Yes.

Mary K. Wall:

— stationed within the State of Texas who are potential residents of the state who, if they wish to do so —

Byron R. White:

Yes.

Mary K. Wall:

— under the option that the law of every state gives them.

Byron R. White:

Yes.

Mary K. Wall:

If they wish to do so, they could claim to be residents of the State of Texas because they could or there are —

Byron R. White:

Well, until they exercise the option though to become residents, they are no problem to you whatsoever.

And when they do exercise the option, they’re just like the sergeant here.

Mary K. Wall:

No, the difference is this.

The thing that sets the sergeant apart is that he says, “I intend to remain in Texas permanently.”

Byron R. White:

Well, I know, I’m — all I’m saying is that the he does satisfy your residence requirement and he has to say that before he can vote at all.

Mary K. Wall:

That would —

Byron R. White:

You have just said so.

He has to say that before he can vote at all.

And until he — until and unless he does say that, he can’t vote anyway in the city — in Texas.

Mary K. Wall:

But all he (Voice Overlap) —

Byron R. White:

None of these permanent — none of these career people whom you say are potential voters can vote at all until and unless one or more of them says just what the sergeant says.

I like — I want to — I’m going to make Texas my home.

Mary K. Wall:

No, no, the sergeant says, “I am going to make Texas my home now and after I retire.

I’m going to continue to live here.

My family is going to live here.”

Now, all that person —

Byron R. White:

But all he’s really saying — all that he is really saying is that I have no present intention of leaving El Paso.

Mary K. Wall:

That would be all that would be necessary.

Byron R. White:

And if somebody else comes along and says, “I’m going to make Texas my home.

I have no intention of living here.

I have no present intention of living here.

I am a resident.

I’m a dom — I’m making my domicile in Texas.”

He proves that.

He’s proving as much as anybody ever has to prove or as much as anybody can prove, but the sergeant can’t prove to anyone that he’s going to stay in El Paso for the rest of his life.

Mary K. Wall:

He can assert his intention —

Byron R. White:

Yes.

Mary K. Wall:

— but of course that is —

Byron R. White:

Well, aren’t you really — that only — your only problem arises with those people who like the sergeant do establish a domicile in your state and required residence.

Mary K. Wall:

Of course our problem is with those who do establish a domicile and that is the very point of the restriction because the state —

Byron R. White:

I don’t see any difference (Voice Overlap) —

Mary K. Wall:

— has felt that it was (Voice Overlap) —

Byron R. White:

I don’t see any meaningful difference between them and the sergeant.

Mary K. Wall:

Is that an invitation to elaborate or — my time is up.

I don’t want to —

Byron R. White:

Well that’s fine.

Thank you very much.

Wayne Windle:

May it please the Court.

I will try to make my remarks as brief as possible.

Wayne Windle:

In my opening statement, I did mention that I felt that the State of Texas must show that some public interest would be served by this provision.

Let me just very briefly examine some of the reasons that respondent Carr says justifies this particular voting restriction.

I think the main contention is that if the servicemen were allowed to vote, they might constitute a majority in some particular county.

And then they would exercise complete dominion and control over the local politics.

First of all, let me say that I agree with the three judges in the Mabry case.

I don’t believe there is such an area where the balance of power would be altered by abolishing this provision.

But even if there was an area where the servicemen would be a majority and would exercise a complete control over the local politics, they have a right to do so.

If the majority happened to be members of labor unions in a particular county, they can control the politics.

Byron R. White:

And besides, this isn’t one of those areas.

Wayne Windle:

That’s correct.

I think there are no areas —

Byron R. White:

I know but (Inaudible) — El Paso isn’t one of those areas.

Wayne Windle:

No sir, it surely is not.

Another argument advanced by the respondent Carr is that a commanding officer might control the politics himself through pressure and persuasion on his men.

Well first of all, the federal law prohibits any military officer from influencing votes of the men under his command.

Secondly, we do have secret elections in Texas.

We vote by secret ballot and any pressure or persuasion that the commanding officer might put on one of his men, could not be so coercive if that man would be prevented from voting his own convictions.

But once he entered the voting booth or began marking his secret ballot.

So we do not believe that here is any threat that a commanding officer himself could control the elections.

So we feel that those arguments (Voice Overlap)

Byron R. White:

And what about this — what about this situation.

Say that there is a — say that down at Colorado Springs, Colorado there is a camp of 12,000 military men and they’re all — are stationed there for four years and they all qualified to vote.

They all say we’re going to — just —

Wayne Windle:

(Inaudible) that was one of the things mentioned in there.

Byron R. White:

That’s right.

And — then four years later — and they also vote of many improvements on roads and things like that, after the camp things like that and then four years later, the camp is closed.

They all departed.

Wayne Windle:

If those men were qualified voters while they were there, they have the right to do that.

If they were not, of course they should not be allowed to vote.

But the same thing can happen of course in a civilian community.

Wayne Windle:

One of the arguments asserted is that servicemen might like a proper concern for the best interest of the community.

Well, of course this can be set of any group.

The problem is what group of people can say that another group lacks the proper concern for the best interest of the community.

The majority of the qualified voters are the ones that should determine what is in the best interest of the community.

One argument presented was that the petitioner is not typical, that person is in the military service.

We say that if given the opportunity, there are other servicemen like petitioner who can prove that they’re bona fide residents.

Another argument was that the classification is not invalid because it results in some inequities.

In this connection, respondent, Carr mentioned that the wife can vote whereas the serviceman cannot.

And he mentioned that this was possibly an over cite.

And I got the distinct idea that if the state so decided they could also restrict her right to vote.

And let me submit this to the Court, which group will be next if this voting provision is allowed to stand for the reasons asserted by the respondent?

Which group will the State of Texas or some other state find where the members — where some of the members aren’t bona fide residents?

Which group would Texas or some other state find where the members might be influenced by somebody in a position of authority or where there are cohesion among members of the group, or where the group, if allowed to vote, might constitute a majority.

And of course — then there are other reasons.

We submit to the Court if this particular provision for voting restriction is allowed to stand for the reasons asserted by respondent Carr, then there can be and would probably be other denials of the right to vote.

Therefore we request the Court to declare this one unconstitutional.

Thank you.