Dunn v. Blumstein

PETITIONER:Dunn
RESPONDENT:Blumstein
LOCATION:Tennessee Governor’s Office

DOCKET NO.: 70-13
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 405 US 330 (1972)
ARGUED: Nov 16, 1971
DECIDED: Mar 21, 1972

ADVOCATES:
James F. Blumstein – pro se
Robert H. Roberts – for appellants

Facts of the case

A Tennessee law required a one-year residence in the state and a three-month residence in the county as a precondition for voting. James Blumstein, a university professor who had recently moved to Tennessee, challenged the law by filing suit against Governor Winfield Dunn and other local officials in federal district court.

Question

Did Tennessee’s durational residency requirements violate the Equal Protection Clause of the Fourteenth Amendment?

Warren E. Burger:

We will hear arguments next in Dunn against Blumstein.

Mr. Roberts you may proceed whenever you are ready.

Robert H. Roberts:

Mr. Chief Justice and may it please the Court.

This is an appeal from a Three-Judge District Court of the Middle District of Tennessee and I suppose to struck down the durational residency requirements for voting as provided by the State Constitution and implemented by statues of the legislature.

The time fixed in Tennessee for durational residency requirements was one year in the State and three months in the County for the person offers himself to vote.

The question presented is whether or not such constitutional and statutory provisions violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and whether or not in determining this, the doctrine of irrational or unreasonable or the compelling state interest doctrine is to be made applicable in this kind of a case in part of determination of this case.

At the time, this case was decided by the District Court and so far as this counsel has any way of ascertaining now, 33 states and three territories had the durational residence requirements of at least the one year as the case in Tennessee; 15 states had a six-month residency requirement which is double to the county residence requirement provided for in the State of Tennessee.

The remaining two states had respectfully 190 days and the other three months the residency requirement.

Warren E. Burger:

Mr. Roberts, have there been any studies made on a widespread or even a national basis to determine how long it takes to pack up registration and that sort of thing to check out to be sure that the voters are voting in two states.

Robert H. Roberts:

No sir, not to my knowledge, if Your Honor please, that is where we think that the District Court erred in trying to make such a determination based on the registration cutoff deadline of 30 days, which implies in Tennessee and in most of the states that have registration laws, but, it is our insistence that the Court was in error there because that cutoff period is designed specifically and it is very clearly shown in the law to be for the purpose of permitting the county election officials, the necessary time to make the administrative acts that they are required to do.

For example, they have to take your master registration list and break that down precinct by precinct and make duplicates of it throughout to the precinct.

They got to run their advertisements and the paper notices of the election, select all of the judges and officers to hold the election at the precinct level and it is countless number of things.

No word during that period of time can be Election Commission in Tennessee and I think it is generally true at everywhere else use that period of time to purge an ineligible voter.

Therefore the durational residency requirement is necessary, we feel, in order to give some time for which the Election Commission can get rid of any ineligible voters, purge them as the case might be, and then, the 30-day registration cutoff only for administrative period and things alone, because somewhere there has got to be a period of time when the voter knows that he is going to be entitled to go to the booth and vote and that is what we think the 30 days is for.

Now, as far as —

William J. Brennan, Jr.:

What is been the experience with those administrative problems in connection with the federal statute, the election, presidential and other federal elections.

Robert H. Roberts:

Of course — we of course we have not had a presidential election since then.

We do not yet how it is going to work out.

I do not think that there would —

William J. Brennan, Jr.:

I think that is 30 days, is it not?

Robert H. Roberts:

Sir?

William J. Brennan, Jr.:

30 days residence?

Robert H. Roberts:

Yes sir.

30-day registration cutoff.

William J. Brennan, Jr.:

But I gather to kind of cease that you have to accommodate itself for the forthcoming presidential election.

Robert H. Roberts:

Yes sir.

Well, Tennessee, if Your Honor please, already had done this before the 1970 Voting Rights Act was passed.

That is one of the things that I wanted to point out to Court.

There are other ways of doing it besides in effect reinterpreting the Fourteenth Amendment in order to bring it about.

In Tennessee, anybody that moves within a precinct or anywhere else in the state has 90 days in which to qualify himself in the new area or until that period of time, he can go back and vote where he had always voted either in person or by absentee ballot.

Robert H. Roberts:

He is never disfranchised.

The same is true so far as the year and the state is concerned by act — legislature even before the 1970 Voting Rights.

We provided that in Tennessee any person who live in that state would maintain his domicile, which in Tennessee is the same as legal residence, he would maintain that domicile until such time as he acquired a new one and no matter what state he went to.

And, we think that that is an essential way of doing it, so that you are protecting the people that usually would have the most standards.

It takes some little time.

I think the Court can take a notice of the fact that a person who has lived a number of years in a county and then he moves, it is a little while that he would prefer to be identified back where he had been for any period of time as opposed to immediately entering into the political arena in a new place.

Warren E. Burger:

Does Tennessee have criminal penalties for voting in Tennessee and voting somewhere else if it could be accomplished?

Robert H. Roberts:

Yes sir, we do.

The problem with this though if you go to confine it through registration deadline, for example, as it is determining, whether or not the person really is a bona fide resident of the state.

Now, the District Court in striking down a year and the state and the three months in the county, did indicate that they felt that the 30-day registration deadline was sufficient to accomplish this, and it then argued in opposing counsel’s brief that anybody that would go into the registrar’s office and be willing to make an oath that he is a bona fide resident would also be willing to make an oath and swear a lie about anything else that would be necessary to do this.

But, that does not follow because it is nebulas sort of thing.

The matter of whether a person is a bona fide resident is almost decided on the matter of intent.

Now, you can very well leave —

William J. Brennan, Jr.:

Is Tennessee preparing some sort of procedure to deal with this problem in the next year’s presidential election?

Robert H. Roberts:

Yes sir.

William J. Brennan, Jr.:

I mean as I gather it you are going to have to permit everybody to vote who is been a 30-day resident of Tennessee?

Robert H. Roberts:

Yes sir, that is true if this —

William J. Brennan, Jr.:

(Inaudible) the two offenses.

Robert H. Roberts:

Yes and this Court upholds the lower court’s decision that that would be —

William J. Brennan, Jr.:

No, I mean I am speaking only of the presidential election.

And am I not correct that that statute which we sustained I think last year, did we not?

Now, it says, you must let, every state must let everyone vote who has been 30 days of resident of the state in the presidential election?

Robert H. Roberts:

Yes sir.

William J. Brennan, Jr.:

So, I gather you are going to have to accommodate, Tennessee is going to have to accommodate its whole system in that requirement?

Robert H. Roberts:

Yes sir.

Have you any plans underway for doing that?

Robert H. Roberts:

Yes sir.

They are already raged them, you see, under this Three-Judged Court ordered down there act of the 30 days, if they have been there over thirty days and have satisfied the requirements of being a bona fide resident.

Now so there — we have already had an election in other words since —

William J. Brennan, Jr.:

Since the judge —

Robert H. Roberts:

Since this was changed, yes sir.

The November general election the last year.

William J. Brennan, Jr.:

And, did that create any difficulties in Tennessee?

Robert H. Roberts:

No sir.

We have no way of knowing how many fraudulent votes were cast.

We have this problem in Tennessee.

It is a little different for most states and that we are bounded by eight states.

Three of our four large metropolitan areas are on the state lines.

In the case of Memphis which is our largest metropolitan area, three states bound on that one county, Arkansas, Mississippi and Missouri.

Now, ever since the reapportionment decisions and the breakdown within the county of legislative seats, for example, took place.

The county has divided into these various legislative seats based on population, of course, and it would take very few votes to change the outcome of an election in many of these.

But House seat changes in Tennessee would change the complete complexion of the legislature itself for that matter.

The possibility of colonization is just too greater risk we feel to go through just to ensure somebody the right to vote in one election at the very most before he would otherwise become qualified to do so.

Now when you start trying to determine who is going to draw that line, all we have to do is just look at what has happened in the US District Courts already in regard to it to see the court’s known position to do it.

The people, lacked into their constitution, we feel, are in position to do it.

Since this Court spoke on the question, I think at least 12 Federal District Court’s decisions.

Four of them sustained the four-year residency period.

That was in Ohio, Illinois, Arizona and Washington.

Three found the one-year residency requirement unconstitutional but upheld shorter periods.

For example, in the Burg which is out in Massachusetts, the first one of them I believe, it was decided.

The Court there held that six months in the county, double our county residency requirement was fine and said that there had been showing of a compelling state interest to justify the additional six months in the state.

And that therefore is discriminatory against someone that might live just across the state line but had moved and been there more than six months.

So, that is the situations you had.

In fact, one of the amazing things about this case when it was heard in Nashville was the fact that direct from the Bench, the court for all practical purposes, discounted the three months question just about rule from the bench that they were not concerned at all of the three months.

There did not see anything wrong with this.

They were only concerned of whether this year was too long.

And then to our amazement, they give the opinion.

They struck down not only the one-year but the tree months in the county provision, which could not be discriminatory and viewed in any line.

Potter Stewart:

And, that is because, Mr. Roberts, under existing Tennessee law, you can move into another county and still vote in the old county, is it —

Robert H. Roberts:

Yes sir, until such time as you get reregistered.

Robert H. Roberts:

In other words, there is no such thing as subtle first of all from being able to vote.

We have got to see — the virgin is required to take place 90 days before an election.

We have also got the three months or ninety days directly to change from one precinct to another or from one county to another and you could still go back to the other.

Now, you can go ahead and register in the new county as soon as you got there as long as it would be three months before there would be an election.

Potter Stewart:

And then, you would have to vote in the new county.

Robert H. Roberts:

Yes sir.

And then the act of the —

Potter Stewart:

If a man move from Shelby County to Jackson County of Tennessee, say, he could continue to vote in Shelby County so long as he have not reregistered in Jackson County for a period of at least of 90 days?

Robert H. Roberts:

Yes sir.

In other words, until such time as he would have been able to live new county to —

Potter Stewart:

To the volatile —

Robert H. Roberts:

Yes sir, or he is never really cutoff.

Potter Stewart:

And, this is at existing Tennessee law long before this Court decision.

Robert H. Roberts:

Yes sir.

Potter Stewart:

And then, you also said that a man can move away from the State of Tennessee and continue to vote in Tennessee.

For how long?

Robert H. Roberts:

Until such time as he established his domicile in the new state and becomes eligible to vote there.

Potter Stewart:

And becomes eligible to vote by registering or —

Robert H. Roberts:

Yes sir.

Whatever, there so we are not saying there are few states that do not have registration laws —

Potter Stewart:

Your are not talking simply about absentee ballots, are you?

Robert H. Roberts:

No sir.

Potter Stewart:

All right

Robert H. Roberts:

They could come back and do it in person or by absentee in their law that could return to Tennessee authority.

Potter Stewart:

Or the man can move, we would say, the company sends into Missouri.

He does not know how long he had been staying there so he is living in an apartment or a motel and doest not plan to make that his home.

He can continue to vote in Tennessee even though he is physically out of the state and has been for a period of weeks or months.

Robert H. Roberts:

Yes sir.

An example of the inside of the state, intrastate state situation of that — I have been in Nashville now for 17 years and I still vote in Mountain City (ph).

It is still my home and so what I think — that is my home and where I expect to return.

Robert H. Roberts:

And so long as that is established, the laws in Tennessee permits that voting there as well.

Potter Stewart:

Yeah, because that is — that is different though from what you told me about changing your home from Pickett County to Nashville.

If you changed your home, you could vote in Pickett County only until you would register in Nashville.

Is that not right?

Robert H. Roberts:

Yes sir if I — but I do not —

Potter Stewart:

If you did not consider Pickett County your home.

If you had moved — moved your domicile from Picket County to — what is the County’s name?

Robert H. Roberts:

Davidson County.

Potter Stewart:

Davidson County.

You could continue to vote in Pickett County for 90 days until you became eligible and registered to vote in Davidson County, even though you had moved, which you tell us you have not.

Robert H. Roberts:

We — traditionally, the purposes of residency requirement as set out in most of legal publications and the one I have selected to use here is from (Inaudible).

This is the reason for it to ensure security of a ballot box through proper legislation by prediction against frauds through colonization and inability to identify a person offering the vote.

And two, to afford some surety that the voter has in fact become a member of the community and that as such, he has a common manner in all matters pertained to its government and therefore he is likely to exercise his right more intelligently.

Now, those are the reasons we say that there is a need for benefit that boils down to how much time and how is a state going to show if he had used the compelling state interest doctrine, however, the state is going to possibly show that 31 days is as proper as opposed to 45 days or 60 days.

We just insist that it is a thing that can not be done, and it has been recognized by this Court on all previous occasions that this is a proper regulation by the state and the state residency or durational residency requirements had been upheld by this Court in cases here before, in every essence that it has been challenged.

Now the first case for example in 1904, Pope versus Williams coming out of Maryland where they had six months in the county and a year in the state which is longer than Tennessee’s durational residency requirement.

This Court upheld those requirements and in doing so, stated that at that time they had registration already in Maryland.

They took notice of what this Court did of the fact that they had registration there and said, well, we might personally feel that the one year is too long now in due of having registration.

At the same time, we cannot say that this is a function of the Court to take it away — the decision away from the state of Maryland and its people in deciding this.

Harry A. Blackmun:

Do you feel that Pope against Williams will be overruled if this case is affirmed.

Robert H. Roberts:

Yes sir and so will Drueding versus Devlin, 1964 case would necessarily be overruled if this case is affirmed barely to — that get directly, and both of them incidentally awarded from the State the Maryland where the one year in the state and six months in the county was involved.

Now in addition to that —

Potter Stewart:

What if the state said that you had to be a resident of the state for 30 years and a resident of the county for 15 years for you are eligible to vote.

Do you not think that might be the business of the court than somebody with constitutional adjudication.

Robert H. Roberts:

Yes sir, and under the — yes sir, and, this Court has said repeatedly in the past that they have used the unreasonable or irresponsible rule in the time.

Well, now that is done, I do not think that surely the one year in the state or at least the three months in the county could be conceived —

Potter Stewart:

Obviously to justify a long, long period like that, it could just say that we only want old-timers around here to vote.

Robert H. Roberts:

One year is — it is more difficult of course to justify than three months.

I would not agree but at the same time, I think it is a question of who is to make that determination.

As we have found here, the Court has been trying to make it if they went another direction.

Robert H. Roberts:

The 12 different US District Courts that in fact decided this, none of them have agreed on what it is or what it ought to be.

Not a single one, except for the four that said that the courts have no business ended in the first place and upheld the state durational residency requirement.

Potter Stewart:

Was Tennessee itself had decided that 30 days is sufficient for registration purposes, had it not, by through its own legislature?

Robert H. Roberts:

Yes sir for registration — that is a cutoff for registration, but the purpose — but what I was attempting to explain a while ago, the purpose for having that cut off is not the same purpose that you obtained from having a durational residency requirement, because that is to check the eligibility of the voters.

If in that last 30 days while you are trying to get an election ready to go with all the appointment of the officials, the ballot prepared, the machines service — now, everything like that, if the election commissioners are tempted to at that time, they try to get in to the eligibility of voters, many, many voters would probably get this and franchise because they would have no opportunity to overcome it before the election.

So that this matter of — Excuse me sir.

I was going to ask you is Mr. Blumstein attacking the 30-day provision also as well as the three-month provision here?

Robert H. Roberts:

No sir.

The District Court recognized that 30 days was all right, but they did not –Mr. Blumstein —

He can not very well attack it because he brought his suit within the 30 days of his, assuming his residency.

Robert H. Roberts:

Yes sir.

We would respectfully insist that all of the previous cases are on the appellant side in this matter.

Not only of the cases that I have cited but where this Court dealt directly with the proposition, but also, on interpreting provisions under the Tenth Amendment and in other cases, this Court has used the durational residency requirement or residency power of a state for voting as example, a state power that still left to it.

Now, that was true in Kramer versus Union Free School District as late as in 1969.

The only thing that the US District Court could have gotten their key from was when this Court granted their noted proper jurisdiction in Hall versus Beals coming out in Colorado which later was dismissed as being moot.

Now, there was no other law that the District Courts could be using out of that their second guess in this Court, and, that is all — all the basis or authority that they could have for hold in a way to have in this case.

I just want to say one other thing in that and I am going to close and that is, in 1970, Mr. Chief Justice in the Walz v. Tax Commission of the City of New York quoted from the old Jackman case where Mr. Justice Holmes said that “If a thing has been practiced for 200 years but common can certainly lead a strong case for the Fourteenth Amendment to affect.”

We think that is what you have here.

You have all of the states fixing residential or residency requirements and it has been that way for a long time and it is not — it is not just antiquated provisions.

In the case of Tennessee, (Inaudible) point this out, the adversary counsel insists and the Court has even handed tort in their opinion that the registration laws took the place of the residency requirements in Tennessee and that that was a stated purpose and it was a later law.

Well, that is not true.

In 1953, it is when the people had the chance to relook at the durational residency requirement provision in Tennessee and their constitution, and they did retain the one year in the state, but it was at that time that the six months in the county was lowered to three months.

So, that that is not an antiquated provision and it is one the clearly shows that the people want in their constitutions some protection against voter fraud and that they put it in there after they had registration.

There could be no serious argument that the registration law and the 30-day cutoff there did away or just does away with any purpose to be served by durational residency requirement.

So, that just is not the case.

I might have just a short rebuttal.

Warren E. Burger:

Very well, Mr. Roberts.

Mr. Blumstein?

James F. Blumstein:

Mr. Chief Justice and may it please the Court.

I think it is important to understand that the first measure that this case does not involve the question of residency.

James F. Blumstein:

There is no question in this case that I am a bona fide resident of the state.

The state has conceded this throughout and the District Court found this as a fact.

There is no question that I meet the standards of domicile that Tennessee imposes as its standard residence.

So, the state’s argument entirely has been pitched to the fact that there is a question of residency here.

This is not a question of residency.

This is a question of an additional separate factor and that is a calendar waiting period beyond the bona fide residency criteria.

There is currently in Tennessee — the Law Revision Commission of Tennessee is currently under a mandate of the legislature to revise the Election Code.

And a specific section of that tentative draft of the revision goes to the question of defining bona fide residents.

Tennessee is now planning to adapt the standards of New Mexico setting out several indicia in criteria of determining bona fide residents.

Duration of residence is a separate category; it is not within one of these factors.

So, I just want to make that perfectly clear at the outset.

Potter Stewart:

But by the same token I gather Mr. Blumstein, you are not asserting that a state is constitutionally required to let every single resident, who is qualified by age, vote, are you, because a person can become a resident under the law in less than 24 hours, be in the state with no intention to live elsewhere and that can happen in a matter of hours.

And, are you contending that the Constitution requires the state to permit every resident of Tennessee who is 18 years old or over and otherwise qualified to vote.

James F. Blumstein:

Mr. Justice Stewart, there are several points that I can make a response to that.

First, there is a 30-day cutoff period for registration.

Potter Stewart:

There is, but, I am asking you if you — there is, as a matter of state statute.

I am asking about what your constitutional claim is.

James F. Blumstein:

If a person comes in to the State of Tennessee and establishes its domicile, according to the relevant tennessee standards, you would look at whether he has become a domicile for tax purpose, you would look at whether he becomes a domicile for purposes of his driver’s license, his automobile registration and so forth.

If he meets those criteria, either separate independent criteria that the election commission and the county registrars are entitled to investigate.

If after their investigation at the time of registration, it is their conclusion that a new resident is a bona fide resident, then, it is my contention that there is a discrimination that this Court must then review under the compelling interest standards.

Just showing the discrimination, Your Honor, is not the answer to a constitutional question.

At that point, it triggers a strict constitutional standard of review and then we must go into the policy questions that the state articulates to support this discrimination.

So, my answer to your question then is, yes, it does trigger strict review and know that the state does not meet –

Potter Stewart:

I did not ask the kind of review it triggered, I asked you whether your claim is that the State is compelled to commit every bona fide resident of Tennessee who is over 18 years old to vote.

And, I point out that as a matter of law while apart from these evidentiary indicia having to do with driver’s licenses and taxes and so on, as a matter, well-established law, a person can become a resident of the state — a new resident of a state in a matter of minutes.

James F. Blumstein:

Yes sir, under those circumstances unless the state can show a compelling reason to discriminate against this bona fide resident, it is the constitutional obligation of the State to allow him to vote.

And there are other classes of people perhaps in certain situations that may be able to — the state may be able to discriminate against as far as the franchise is concerned.

For example, many states discriminate against felons who have already been convicted, and even though they are bona fide residents, they may be eliminated from the franchise.

But, that is not the case here, Your Honor.

These are not a class of insane committed people or felons, these are qualified voters in every other respect except as far as durational residence are concerned.

Warren E. Burger:

But on your theory, a man can move into Tennessee in the morning, get off the plane, go and buy a house that afternoon which he might readily do, present himself in the afternoon at 5 o’clock in the polling booth and insist on voting.

Is that right?

James F. Blumstein:

Yes, Your Honor; that is correct.

Under existing Tennessee law, to take your hypothetical a step further, if a person were to move to the State — suppose someone in my situation was is an academic.

He moved to the State, buy a house and then go on a sabbatical leave for the first year of his tenure out of a university, for example.

He never appeared in the state; He never have anything to do whatsoever with the politics of the state or go to rush ro go anywhere and come back one year later precisely having no contact whatsoever with the state and he would be allowed to vote because he would be a domiciliary.

Warren E. Burger:

Do you think Tennessee could, by its Constitution, fix voting age at the age 25 for everyone under the Fourteenth Amendment of the Federal Constitution?

James F. Blumstein:

Well, that specifically the —

Warren E. Burger:

Except for national elections?

I am talking about local elections.

Could Tennessee fix the voting age at the age 25?

James F. Blumstein:

I believe Your Honor that would be covered by the most recent Twenty Sixth Amendment which stipulates 18 years old for all elections.

Warren E. Burger:

I was just asking your response on it.

James F. Blumstein:

Well, I think it would be specifically barred by the Twenty Sixth Amendment from doing that.

Warren E. Burger:

In the state and local elections?

James F. Blumstein:

My understanding is that the Twenty Sixth Amendment covers both, Your Honor.

This Court’s opinion in United States against Arizona or Oregon against Mitchell covered, restricted only to federal elections, but, the Twenty Sixth Amendment specifically covers all elections.

Warren E. Burger:

So, inspired of the Twenty Sixth Amendment, could it be that Tennessee have made that choice?

James F. Blumstein:

Under this Court’s opinion in Oregon against Mitchell, I think it certainly could.

It would face the penalty however, Your Honor, under Section 2 of the Fourteenth Amendment which establishes a 21-year-old age requirement.

It would then lose the aliquot share if its representation in Congress.

Warren E. Burger:

That is the penalty that is surprising.

James F. Blumstein:

Yes, Your Honor; that is right.

Harry A. Blackmun:

Now, do I understand from your answer to Justice Stewart’s question that you are attacking the 30-day provision?

James F. Blumstein:

No, Your Honor, Justice Blackmun.

The 30-day provision is not discriminatory.

This applies equally to all residents of the state.

The only issue under attack here is the discriminatory aspect.

So there is no — there is an administrative period that the State has said is necessary to prepare voter list and do other administrative matters prior to an election.

It was this 30-day period by the way that the District Court relied upon to deny the preliminary injunction in this case.

James F. Blumstein:

The hearing occurred on July the 30th in the District Court and the primary election was set for August the 6th, it was only one week later.

And, the Court refused to interfere not because it said the three-month period was reasonable but because they thought it would be judicially improper.

Harry A. Blackmun:

I understood your answer to one of the questions was that if you moved in Tennessee today and bought a house, you could present yourself to the polling place to vote at 5 p.m.

James F. Blumstein:

Provided that you are within the 30-day — provided the registration books were open which only occurs more than 30 days before the election.

What I am — Mr. Justice Blackmun, the position that the appellee is taking is that new residents must be permitted to register under the same standards and under the same criteria as long time residents.

If a long time resident happens to delay his attempt to register beyond the 30-day period, then he is disfranchised too, and we are not asking for any greater or special treatment for new residents.

All the appellee is seeking is that new residents be treated the same as long time residents.

Harry A. Blackmun:

Then, your answer is that he cannot present himself at 5 p.m.

on the day he moved in the state.

James F. Blumstein:

Not if it is — within that 30-day period, no sir.

Potter Stewart:

You are not complaining that 30-day period is constitutionally invalid?

James F. Blumstein:

No sir.

That remains after this case.

I think I may point out to the Court that that is an obvious loophole in appellee’s theory.

If the state for the example were legislatively to argue that 35 or 40 days were the appropriate period and this would apply equally to all new residents and old residents alike, this would be, if you will, a backdoor away of achieving some of the same objectives.

I think that administratively, this would cause chaos because of the 30-day period Congress has set in the 1970 Voting Rights Act.

But, I think that it is clear and I think I have made that point in the brief that this is a potential loophole that is not involved in this case.

Potter Stewart:

Does Tennessee has a permanent registration or does a person have to register for each election or does he have to register only if he misses a couple of elections?

James F. Blumstein:

There is permanent registration but they are all provisions for purging if you do not vote for a certain number of years.

Potter Stewart:

Certain number consecutively.

James F. Blumstein:

Yes sir.

At this point, I think it would be relevant to talk about what the discrimination is.

I have talked about discrimination between new and old residents.

Well, the State of Tennessee is a homogenous community and Nashville, Davidson County is a homogenous community that is stable over time.

Well, this flies in the face of census statistics.

Americans are extremely mobile people.

Over the course of a very few years, the entire character of a community may change.

Communities are in no sense stable in the Unites States.

Each year for example, more than 13 million people move from one county to another.

And of those, more than 7 million move from one state to another.

James F. Blumstein:

This represents an annual interstate migration almost the size of the City of New York.

Moreover, of those almost 4,500,000 people of voting age adults, who move from one state to another, are disfranchised.

In addition, census figures estimate that the total disfranchisement from these residency period is 5,590,000 people throughout the United States.

This is a staggering figure and it represents about 7.7% of the total vote cast in the 1968 Presidential Election.

Thurgood Marshall:

Does that figure include an assumption against fact that everybody votes?

James F. Blumstein:

Your Honor, the 7.7 figure?

Thurgood Marshall:

Yes.

James F. Blumstein:

That was a percent of the actual vote cast.

Thurgood Marshall:

Well, I am talking about the people that move from state to state.

James F. Blumstein:

No, Your Honor.

That does make that assumption.

The census refined that figure.

In a questionnaire they asked people who were potentially disfranchised, who were not eligible to vote because of these durational residency requirements, and census figure show that 3,022,000 of those numbers would have, according to a questionnaire, would have participated in the election.

The figure is smaller when you only look at those who would have participated.

Thurgood Marshall:

(Inaudible) that some people would not admit that they would not vote?

What I am saying is why stretch figures so far.

James F. Blumstein:

Well, it is possible, Your Honor, the amicus points out that it might overstate the actual disfranchisement of those who would vote.

However, I would like to point out in this regard, one of the characteristics of the class of new residents are that they typically have higher educational levels.

They tend to have finished high school more frequently than the rest of the population and if they tend to have to been at least to some college to a significant degree more than the rest of the population.

There is also evidence to show, Your Honor, that people who have higher degrees of education who typically find themselves in white collar and professional occupations are tend to participate more frequently in the election process.

And therefore, I think the figure is not as overstated as it might seem on its face.

The new residents, I think typically do participate as a group more because of these characteristics.

Harry A. Blackmun:

Mr. Blumstein, you are all registered now and ready to go, are you in Tennessee?

James F. Blumstein:

Yes, Your Honor.

The District Court was handed down on September 9, 1970, and since that time, two general elections and one primary election have been held in the State of Tennessee.

It might be interesting to add that Tennessee was a major political battle ground in 1970 where a former Senator Gore was defeated by the incumbent Senator Brock.

This was an election of nationwide significance.

And since this decision was one of the earliest handed down by the District Court involving durational residency, there was no question that it got widespread dissemination among all the neighboring states in Tennessee.

And, there was ample opportunity with colonization of the other fraudulent devices of the state it refers to, and there was no evidence whatsoever and it was reported to me of any problems in this regards, to be sure that the registrar of Davidson County did make the statement that she would have to ensure a bicycle rack in front of her county courthouse, but this is the kind of armchair assertion that is not backed up by any data at all.

There was no evidence whatsoever of fraud; there was no data that the State has brought to bear on this question.

James F. Blumstein:

In discussing the constitutional claim, it is essential to look at the alternatives that the State has in order to prevent frauds, since we seem to have focused on fraud.

The voter registration system was not — statewide voter registration did not come in being in Tennessee until 1951.

The expressed purpose of voter registration, as stated in the statute, is to protect the purity of the ballot.

The District Court found this as a fact.

There is no interest that the State is protecting by duration of residency that cannot be protected in determining bona fide residents at the time of registration.

There is no additional protection that the period of durational residency provides at all.

And the state — just this morning in fact, in discussing the need to purge voters and so forth, does not go to the question of why at the time of registration, the state cannot make the determination of bona fide residence.

This is the role of registration.

In fact, there are figures to indicate that the system of voter registration itself has raised a great obstacle for Voter Turnout.

Voter Turnout in the last three presidential elections did not match at all with what Voter Turnout was prior to voter registration law has been enacted and there is the study that shows, in the 1880’s and 1890’s, voter participation was at a much higher level than voter participation is now.

Now appellee does not argue that voter registration is an impermissible bar in the franchise, but, what the appellee does asserts is the only justification for this disfranchisement is that it does not prevent voter fraud.

But, if that is a significant enough price to pay for prevention of fraud and if there is no need to have an additional penalty imposed and that is the durational residency provisions.

Moreover, there are —

Byron R. White:

You would let to state in terms that the interest that it asserts to put on a 30-day requirement?

James F. Blumstein:

Your Honor, I think there has been some confusion generated about that and I would like to set the record clear.

There is no —

Byron R. White:

You agree that a man must be a resident of a state for at least 30 days before you can vote?

James F. Blumstein:

Before you can vote but not before you can register.

Byron R. White:

I understand that but I just asked you, if you have to be — now the only reason that the state can do that, I suppose, is in terms of the interest of what you have just been talking about.

James F. Blumstein:

Yes sir.

Byron R. White:

And you say those interests are good for 30 days but no longer?

James F. Blumstein:

Your Honor, there is no discrimination in that.

Byron R. White:

I mean, it is a compelling — for 30 days those interests are compelling, for any longer they are not compelling?

James F. Blumstein:

They are also, if please Your Honor, They are also not discriminatory.

They apply equally to long time residents and to new residents a lot.

Byron R. White:

I understand that; I understand that, but you are just saying that if the state just have to do on any longer period, would you have to be resident, you would say as a violation of equal protection.

James F. Blumstein:

No, I think that would be a different case, Your Honor.

It would have to be analyzed under different constitutional theory.

Of course, it would be applicable to new residents and old residents.

Potter Stewart:

I do not see how you can say that 30-day provision applies equally to long time residents and new residents.

Potter Stewart:

It is a matter of degree but certainly, it discriminates against people who have been residents of the state only 29 days or anything less than that.

James F. Blumstein:

Or, it discriminates against all those who have not attempted to register at that point.

Potter Stewart:

Then all person who has been in the state 29-and-a-half days or less may attempt because he wants to register but he cannot.

So, it does discriminate against him, doest it not, the new resident?

James F. Blumstein:

Yes sir, to that extent, it does discriminate against him.

Potter Stewart:

So, it is a matter of degree as the question of My Brother White implies.

James F. Blumstein:

To that extent, yes sir, it is.

Mr. Roberts, in his argument, mentioned the concepts of line drawing and whether this was an appropriate judicial function.

In this case, the District Court did not attempt to draw a line as to a permissible duration of residency period.

It said that this was an impermissible — in position regardless of how long the line was provided that discriminated in the way that we were talking about it, Mr. Justice Stewart.

As far as colonization argument is concerned, the State protects its interest against fraud in several ways as far in the criminal penalties.

There is a specific provision of the Tennessee Code Section 2-2209 which makes the colonization a criminal penalty, a felony and poses a minimum term of two years and a maximum term of five years for bringing voters from out of state.

There are similar provisions.

Tennessee Code 2-1614, makes it a felony to vote when note legally entitled and there are other provisions in the Tennessee Code which make it a misdemeanor to vote when note legally entitled to vote.

Moreover, there are the possibilities of purchase, as Mr. Roberts mentions, is another way of assuring of this interest that the state has in maintaining the purity of the election.

Also, Tennessee provides for a challenge system at the polls for people who are not bona fide residents.

This is another way that the state’s interest can be protected in this way.

In short, these durational residency requirements had nothing in a significant way towards improving the states purity of the election system.

At this point, what are you asking us to do with Pope against Williams?

James F. Blumstein:

Your Honor, I think candidly, Pope against Williams — the reasoning in Pope against Williams would have to be overruled in this case.

But, I think that there are certain factual distinctions in Pope against Williams that are germane.

First in Pope, Mr. Pope himself —

If we are going to overrule it anyway?

James F. Blumstein:

Your Honor, the reasoning of that case, I think, is no longer applicable in this case.

I believe, if it please the Court, that there are certain factual distinctions which also help distinguish the case.

Well, what I am asking you is that do you want us to distinguish it or to overrule it?

James F. Blumstein:

I think Your Honor, despite the factual distinctions, candidly, it must be overruled.

I was just pointing out that there are factual distinctions.

Well, there always are there are never two cases as alike that I wanted to pin down your approach on Pope v. Williams, whether you thought it could stand, be distinguished because of the popularity of different approaches in the past or whether it should go and to discard, and I take it, it is the latter that you are asking us to do.

James F. Blumstein:

Yes, Your honor, I think so.

James F. Blumstein:

But, I beg your indulgence, I think that the factual distinction is worth at least mentioning at this point.

Mr. Pope was a resident of the State of Maryland for beyond — for more than the duration of residency provision.

He was a resident for more than a year.

And, what he was challenging was the specific statute that required him to state his intent to become a resident one year in advance.

I just think that factual distinction is worth making at this point.

The State, in its brief, has also asserted another interest and this is a knowledgeability, learning about the local community.

I think that the point that I raised before about the domicile requirement is worth mentioning here.

There is no requirement, for example, in Tennessee that you physically be present in the state during the period of this duration of residency.

There is no requirement that you physically reside and just that you establish your intent to remain definitely and set up the indicia of domicile.

Now you have used both terms, domicile and residence, are you drawing any technical distinctions between the two?

James F. Blumstein:

No sir.

That is a slip on my part.

The Tennessee Courts have defined them as the same.

Warren E. Burger:

So, what you are challenging is the right of Tennessee to say that they want people who are politically mature in relationship to the issues and the candidates, is that it?

James F. Blumstein:

Yes sir.

Tennessee is arguing that this one-year and the three-month period is necessary for becoming knowledgeable about the candidates.

I think it is interesting to note in disregard, sir, that the figures that amicus curiae brought to their common cause in the case.

And, I think it is recognized that the California case in striking down its durational residency noted that the campaigns typically now are conducted through the media, and the data of the common cause show that within the last 30 days, candidates spent from between 70% to 85% of their dollars for advertising within this last 30-day period.

Warren E. Burger:

Is that true on bond issues for example?

James F. Blumstein:

The data did not show —

Warren E. Burger:

Constitutional amendments and things of that kind?

James F. Blumstein:

Sir, the data did not show —

Warren E. Burger:

Well, I suppose we could take traditional notice that money is not spent that way generally speaking on bond issue problems that are submitted to the voters.

Would you agree with that?

James F. Blumstein:

I am not sure that I understand Your Honor’s point?

Warren E. Burger:

You were placing a great deal of weight on someone making a survey that most of the money that a candidate spends is spent in the last 30 days on television, and I was simply asking you whether the same thing is true with respect to bond issue which is being submitted to the voters.

James F. Blumstein:

As far as ascertaining the developing factors behind the bond issue, again, I think that there is no indication why a long time resident is necessarily more knowledgeable about the fact that is involved than someone who is a new resident although I do not have any figures about the advertising expenditures.

In sum, the State has not shown its interest in this case; it is compelling that the durational residency requirements are required to prevent fraud or to ensure knowledgeability.

The case falls comfortably within the rationale that this Court has articulated in the Kramer case and within the Shapiro against Thompson case as far as interstate travel is concerned.

Both of those fundamental rights are infringed in this case.

James F. Blumstein:

And therefore, the strict standard of review is triggered.

Under the strict standard of review, the State does not make its burden of showing that its interests are compelling.

Thank you.

Warren E. Burger:

Thank you Mr. Blumstein.

Mr. Roberts, I think we will not ask you to split your rebuttal.

You will have six minutes after lunch.

Mr. Roberts, you have six minutes for rebuttal.

Robert H. Roberts:

Mr. Chief Justice and may it please the Court.

One of things I wish to point out is the distinction that adversary counsel has attempted to make between the time elements of durational residence in saying that 30 days, there would be no discrimination but somehow rather, reading into it, that 90 days in the county would be.

I submit that there is no discrimination there as found in the Burg case coming out of Massachusetts.

This would be applicable thereby that there is no discrimination at all, and if anybody whether he had lived in the state before or not, after three months in the county where he proposes to vote, would be entitled to do so.

Now a little better case could be made out on the hype of what he has alleged in regard to the one year in the State, because there you could be discriminated against just by the virtue of the fact that you lived across a state line or even though you worked back and fourth during the year and then moved in for the three months preceding an election and satisfied the country requirement, but would not have satisfied the state requirement.

Now, there was one other thing that I did wish to point out to the Court, and that is the obvious intent of Congress in this matter.

And that is the Court as to where the 1970 Voting Rights Act amendment originally contained the provision that would have abolished the durational residency requirements in all elections.

It was Congress’s decision to remove that.

They rejected this proposal, yet despite that, somehow rather our District Court, in its opinion, has read into that an interpretation that Congress really is supporting the proposition of abolishing residency requirement when actually they had it in their bill and then took it out on their own.

At Page 9 of his brief, the appellee, in discussing whether or not voter waiting period is beneficial in weeding out ineligible voters, concludes that anyone who is willing to swear falsely that he is an ineligible voter would is just as readily swear falsely that he had been in the state for a year and then a county for three months.

Well, that just does not necessarily follow at all.

The second oath could be proven much more easily than the other.

All of the precinct workers at an election are local to the voting precincts.

The judges and officers and all are local people.

For purposes of identity, they can challenge any voter that comes up even on election day, if they have an opportunity to know that that person has not been in the community that long, they can challenge him and the election commission decide itself then whether he really is entitled to cast that ballot.

But, there is no other way except for having a time element involved in the community, I submit, that for the local people to be able to pull out the illegal voter.

Now this could be a very serious thing in connection with the question of mobility.

That is a two-way sword.

Not only there are lot more people moving intrastate and interstate as a result of the type of society that we now have, but that also goes the other way too and it offers an opportunity for a type of fraud that before could not have existed.

I submit that (Inaudible) in his state and my state would have had a field day out of a 30-day cutoff deadline and no other resident requirements for voters.

That is just the way it works.

I had the opportunity a few years ago to be an state election coordinator in my home state, and while at that, I organized the statewide association of county election commissioners, and I have heard every kind of complaints and I submit that if there is any way of stealing election, somebody has got a way to figure out how to do it.

And, every time that we opened a gate like that and let fraud get into our elections, then the republic an form of government that Article IV Section 4 of our Constitution guarantees, no longer will be applicable to it.

Robert H. Roberts:

Thank you.

Warren E. Burger:

Thank you Mr. Roberts and Mr. Blumstein.

The case is submitted.