Harman v. Forssenius

LOCATION:United States Post Office and Courthouse

DECIDED BY: Warren Court (1962-1965)

CITATION: 380 US 528 (1965)
ARGUED: Mar 01, 1965 / Mar 02, 1965
DECIDED: Apr 27, 1965

Facts of the case


  • Oral Argument – March 02, 1965
  • Audio Transcription for Oral Argument – March 02, 1965 in Harman v. Forssenius

    Audio Transcription for Oral Argument – March 01, 1965 in Harman v. Forssenius

    Earl Warren:

    Number 360, A. M. Harman Jr., et al, Appellants, versus Lars Forssenius.

    Mr. Carter.

    Joseph C. Carter, Jr.:

    Mr. Chief Justice, may it please the Court.

    Before stating precisely the issues in this case on appeal and the facts out of which they arose may I first draw the attention of the Court to the fact that the basic underlying issue here is the constitutionality of a single section of the Virginia Code designated as Section 24—17.2 and appearing at the middle of page 9 in the record.

    This statute is entitled Proof of residence; how it furnish and it states the methods available to prove residence of the qualification for voting in elections held in Virginia.

    With this general question in mind may I now state the precise questions on appeal in this case, first of all as stated appellant’s opening brief, did the court below err in holding this statute, Section 24—17.2 invalid under Article I, Section 2 and the Seventeenth Amendment of the constitution of the United States as creating a new qualification for voting in congressional elections which was not required for voting in elections for the most numerous branch of the General Assembly of Virginia.

    Question number two, did the court below err in issuing on the authority of Article I, Section 2 and the Seventeenth Amendment a general injunction against the enforcement of the statute which injunction applied in presidential elections as well as congressional election.

    Number three, did the court below err in denying two preliminary motions by the appellants on a motion to state the proceedings under the doctrine of abstention and the other, a motion to dismiss for failure to join indispensible parties and for lack of standing to sue on the part of the complainants.

    Now, these three questions have been added two other since the brief for the appellees and the amicus brief for the government has been filed in this case.

    The first is and this is the thread of argument that seems to run throughout the brief of the appellees, does the statute.

    Section 24—17.2 violate the Equal Protection Clause of the Fourteenth Amendment of the constitution?

    And I hope in view of the opinion announced this morning as well as the shortness of time that I may reserve an opportunity to answer this argument later.

    In the amicus brief filed by the United States, we have presented for the first time the question, does this Section of the Virginia Code violate the Twenty-fourth Amendment itself without more and without reference to other constitutional provisions?

    The facts of the case maybe stated briefly as follows; prior to the ratification of the Twenty-fourth Amendment last year, the constitution of Virginia in Sections 18 and 20 and the Virginia Code in the implementing Sections 24—17 and 24—67 provided a uniform rule for registration and voting of electors in all election, state and federal.

    The qualifications for voting set forth in Section 18 of the Virginia constitution are as follows; U.S. citizenship, 21 years of age, residence in the state one year, the city or county six months and the voting precinct 30 days prior to the election in question.

    Number four, registration to vote under Section 20 of the constitution and number five, payment of poll taxes.

    The qualifications for a registration set forth in Section 20 of the Virginia constitution are virtually the same as those for voting contained in Section 18, they’re restated in Section 20 including poll tax claims.

    But under Section 20 of the Virginia constitution the applicant must complete and sign in the presence of the registration officer an application for registration which states the required qualifications outlined in that constitutional section.

    And it’s also answered under oath any additional questions as to those precise qualifications which may be put to him by the registration officer.

    But to answer to those questions on the written applications filed must be certified by that officer and kept by him as permanent records.

    William O. Douglas:

    And he could avoid all that by paying the poll tax?

    Joseph C. Carter, Jr.:

    No sir.

    The poll tax payment is only one of the four qualifications for registration and of the five qualifications for voting.

    He must still when he goes to register —

    William O. Douglas:

    Does he – (Voice Overlap) — does he still have to do this if he pays the poll tax?

    Joseph C. Carter, Jr.:

    Yes sir.

    At the same time payment of the poll tax became a voter qualification in Virginia, this has been some years ago.

    Permanent registration became a practical institution there.

    That means that once a voter is registered in the first place he remains on the registration role until he dies or moves away or take some voluntary action to have himself removed.

    As a practical matter, his name remains there for many years.

    Arthur J. Goldberg:

    Mr. Carter, in reference to Justice Douglas’ question, if the man is registered and then pays the poll tax, permanently registered and then pays the poll tax then he doesn’t have to file the certificate and he’s now required by those who do not pay the poll tax because if the federal officer they want to vote for, is that correct?

    Am I correct in that?

    Joseph C. Carter, Jr.:

    Yes Mr. Justice Goldberg that is generally correct.

    May I say however that this particular section to which I referred at the outset was adapted as a consequence to the ratification of the Twenty-fourth Amendment and it simply says that as a qualification of voting not registration there, I thought Mr. Justice Douglas’ question was directed in registration action but as a condition of voting when he comes to the poll he must have proved his continuing residence by means of payment of the poll tax that’s one alternative for filing a certificate or register – continuing residence which is the second alternative.

    And I might point out that in the statute itself it is specified that these proofs are required only in years subsequent to registration because when you go in to register you must file and under oath a statement of these various thing for applications.

    Now, obviously to prevent fraudulent voting and irregularities at the polls there had to be some practical means of checking this permanent registration list.

    Arthur J. Goldberg:

    Mr. Carter, how does – just as a man of curiosity, how does paying under the poll tax prove permanent residence when it has to be made six months before you vote (Voice Overlap) residence at the time of voting?

    Joseph C. Carter, Jr.:

    Mr. Justice Goldberg, in our constitution it is provided that a person may vote at a primary election which by that same constitution has held six months prior to the general election if he is qualified at the time of the general election.

    So, as a consequence the practical machinery for approving qualifications is set six months in advance of the general election.

    And I will get to that particular point in more detail because it has been raised by the Government in the amicus brief and I think it is important to the Government’s position.

    Now, prior to the ratification of the Twenty-fourth Amendment when you went to the polling place to vote in Virginia and you saw three officials behind the table, first official had the registration list, he give you names and he checks you off of that list.

    The second official had a list of persons who had paid the poll tax, you check off of that list.

    The third official has the ballot and gives it to you and records your name as voting in that particular election.

    Potter Stewart:

    But only if your names appeared on both of the first two lists.

    Joseph C. Carter, Jr.:

    Both of the preceding lists.

    Now, had this particular statute gone into effect, Section 24—17.2 that second official to whom I refer would’ve had two lists in front of him.

    One would have been the list of persons who have paid the poll tax, the other persons who have filed a certificate of continuing residence and if your name appeared on either of those then you would be given the ballot and allowed to vote.

    When ratification of the Twenty-fourth Amendment appeared to be imminent, it was obvious that extensive changes in the election of machinery in the procedural aspect of elections in Virginia had to be made.

    The reason for that was clear.

    You have the provisions of the constitution of Virginia pressing you on one side, the Twenty-fourth Amendment, pressing you on the other and it was pointing obvious that something had to be done and done quickly prior to the elections in 1964.

    The Governor of Virginia accordingly convened an extra session of the Virginia General Assembly at the end of November in 1963 and made to it an address containing certain recommendations for changes in Virginia’s election laws.

    In summary, his mess — his message contained the following recommendations.

    Number one, the numerous and complicated provisions of the constitution of Virginia relating to elections and voting and the poll tax requirements that had formally been in effect in all elections should not and indeed could not be rewritten and submitted to the people in time for use in the 1964 election.

    And Number two, he recommended that statute should be enacted to render inoperative in federal election under the authority of the Twenty-fourth Amendment the payment of poll tax as a qualification for voting and as a qualification for registration as well.

    He finally went on to recommend however that the General Assembly should leave in effect all the qualifications for registration and voting in the Virginia constitution including the payment of the poll tax so that the poll tax remains in effect in state elections as it is permitted to do by the Twenty-fourth Amendment.

    The General Assembly followed these recommendations.

    Arthur J. Goldberg:


    Joseph C. Carter, Jr.:

    It is clear from the language and the legislative history of that amendment that it was directed — pinpointed indeed at federal elections only.

    Arthur J. Goldberg:

    Yes it is, it’s the dealing (Inaudible) federal election?

    Joseph C. Carter, Jr.:

    Yes sir.

    Arthur J. Goldberg:

    But it’s not clear to be (Inaudible).

    Joseph C. Carter, Jr.:

    I didn’t mean to imply that Mr. Justice Goldberg nor that I mean to imply anything about the policy recommendations of the governor.

    I only meant to say that it was permitted to remain in effect in state elections.

    Now, the General Assembly enacted two special enactments at that session to which I refer.

    The first one applied only to the elections of 1964 and thus is now moot.

    The second enactment contains Section 24—17.2 which I have been discussing prior to this time.

    Earl Warren:

    We’ll recess now.