DEPARTMENT OF JUSTICE MEMORANDUM ON THE

CONSTITUTIONAL BASIS FOR RESIDENCY PROVISIONS OF THE "VOTING RIGHTS ACT AMENDMENTS OF 1970"

1. Subsection 2(c) of the proposed "Voting Rights Act Amendments of 1970" 1 would effectively eliminate state residency requirements as a basis for denying the right to vote for President and Vice President. Under the proposed legislation, no person otherwise qualified who has resided in a state or political subdivision since September 1 of the election year could be denied, because of failure to comply with a residency or registration requirement, the right to vote in the presidential election in that state or political subdivision. Any person otherwies qualified who changes his residence after September 1 of the election year (and does not meet the residence requirement of the new state or political subdivision) would be permitted to vote for President and Vice President in the state or political subdivision from which he moved.

Subsection 2(c) of the bill also provides that no person otherwise qualified to vote by absentee ballot in any state or political subdivision in a presidential election may be denied the right to vote in such election because of any requirement of registration that does not include a provision for absentee registration.

2. At the time of the November 1968 election, 42 states and the District of Columbia imposed some residence requirement with respect to presidential elections. The minimum length of residence in the state required varied from 30 days to 2 years. According to a recent Bureau of the Census report, for more than 3 million of the persons who were not registered to vote as of the November 1968 election, the primary reason for not being registered was inability to satisfy residence requirements.*

Eight states had no residence requirement with regard to voting for President and Vice President. In 21 of the states which had a residence requirement for presidential elections, the time period was 60 days or shorter. Therefore, in those states and in the 8 which had no residence requirement as to presidential elections, any otherwise qualified person who moved to the state (or within the state) by September 1 of the election year would under the terms of existing state law be eligible to vote for President and Vice President. Thus, the proposed federal statute would not affect application of the residence requirement in such states.5

In the other 21 states and in the District of Columbia, the period of residence within the state required for presidential elections exceeded 60 days. Under the proposed legislation, such requirements could not be enforced. For example, a state law requiring one year's residence in the state with respect to all elections could not be used to prohibit an otherwise qualified person, who began residence in the state on or before September 1 of the election year, from voting for President and Vice President in that state.

The same would apply to requirements of residence within the county and/or precinct. Almost all of the states which had lengthy state residence requirements as to presidential elections also imposed county or precinct requirements (or both) with respect to such elections. Fourteen of those states had a county or precinct residence requirement which exceeded 60 days. Thus, where 6 months' residence in the county was required, a person who moved from one county to another within the state in June 1968 would have been barred from voting for President and Vice

1 A bill entitled the "Voting Rights Act Amendments of 1969" was introduced during the first session of the 91st Congress. See H. R. 12695 (introduced on July 9, 1969); S. 2507 (introduced on June 30, 1969).

On December 11, 1969, the House of Representatives adopted (as a substitute amendment to H.R. 4249) the provisions of H. R. 12695. Thus, as passed by the House of Representatives, H.R. 4249 is identical in substance to H.R. 12695 as introduced.

The proposed legislation would have no effect upon residency requirements in regard to voting for members of Congress or for state and local offices.

3 See the U.S. Bureau of the Census, Current Population Reports, Series P-25, No. 406, Estimates of the Population of Voting Age (Oct. 4, 1968), table A-1.

U.S. Bureau of the Census, Current Population Reports, series P-20, No. 192, Voting and Registration in the Election of November 1968 (Dec. 2, 1969), table 16. The above figure does not include military per

sonnel.

Of course, a person who moved from such a state after September 1 of the election year would, under the proposal, be able to vote in the presidential election in that state, assuming he could not satisfy the residence requirement of his new state.

It should be noted that, as of November 1968, seven states permitted former residents to vote for President and Vice President if such persons were not qualified in the state to which they had moved.

President in November 1968. As noted above the proposed statute would bar application of any residence requirement-state, county or precinct-with respect to persons who moved on or before September 1 of the election year.

3. The constitutional basis for the proposed residency provisions is section 5 of the Fourteenth Amendment.' It is important to note, at the outset, that the power of Congress under section 5 to enact legislation prohibiting enforcement of a state law is not limited to situations where the state law is unconstitutional. Katzenbach v. Morgan, 384 U.S. 641, 651 (1966).8

The Constitution itself is silent with respect to the power of the states to prescribe qualifications of voters in presidential elections. In contrast to the provisions regarding voter qualifications for elections for members of Congress, the provision regarding selection of the President (Article II, section 1) merely states that: "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors [that is, members of the electoral college]. . . for the purpose of choosing the President and Vice President.10 It has long been assumed, though, that the states have authority to prescribe qualifications for voters in presidential elections. See McPherson v. Blacker, 146 U.S. 1, 35 (1892).11 In Pope v. Williams, 193 U.S. 621, 633 (1904), the Supreme Court sustained a one-year residency requirement as a reasonable classification with respect to voting generally, but the Court expressly reserved the question whether the requirement could validly be applied to presidential elections. In 1965, the Supreme Court summarily affirmed a lower court decision upholding a one-year residency requirement with respect to presidential elections. Drueding v. Devlin, 234 F. Supp. 721 (D. Md. 1964), aff'd per curiam, 380 U.S. 125 (1965).

More recently, the Supreme Court decided Hall v. Beals, a case involving an attack on Colorado's six-month residency requirement with regard to voting in the presidential election.12 396 U.S. 45 (1969) (per curiam). The majority opinion did not discuss the merits of the constitutional challenge, but ruled that, because the 1968 election had been concluded and because, as of the time of the decision, the plaintiffs satisfied the residency requirement, the case had become moot and should be dismissed.12

None of the above cases involved federal legislation implementing the Fourteenth Amendment. As mentioned previously, in exercising its power under section 5 of the Fourteenth Amendment, Congress may prohibit restrictions on the franchise even though the restrictions are not prohibited by the terms of the amendment itself. Katzenbach v. Morgan, supra. See also the dissent of Justice Black in Harper v. State Board of Elections, 383 U.S. 663, 678–680 (1966).

Section 5 is a "positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment." Katzenbach v. Morgan, supra, 384 U.S. at 651.

In assessing legislation intended to enforce the equal protection clause, the test applied by the Court is whether the statute is "appropriate legislation" under the McCulloch v. Maryland standard, that is "whether . . . [the statute] may be

5 Three of the States with lengthy county (or township) requirements permitted persons to vote in their former place of residence within the state if they failed to meet the county requirement in regard to their new residence. 7 Section 1 of the Fourteenth Amendment provides in part that: "No State shall deny to any person within its jurisdiction the equal protection of the laws." Section 5 provides that: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article [i.e., amendment]."

Katzenbach v. Morgan, supra, involved the constitutionality of section 4(e) of the Voting Rights Act of 1965, 42 U.S.C. 1973b(e) (Supp. IV, 1965-68), which provides that persons who have completed the sixth grade in an American-flag school in which the predominant classroom language was other than English shall not be denied the right to vote because of inability to pass a literacy test in English. The primary purpose and effect of this provision was to enfranchise residents of New York who were schooled in Puerto Rico and literate in Spanish but unable to pass New York's English literacy test.

Under Article I, section 2 and the Seventeenth Amendment, the states are empowered to set the qualifications for voters for members of the House of Representatives and the Senate, respectively.

10 The procedures to be followed in the electoral college are set forth in the Twelfth Amendment.

11 In Williams v. Rhodes, 393 U.S. 23, 29 (1968), the Court made clear that the authority of the states to legislate with respect to the selection of presidential electors is subject to the provisions of the Fourteenth Amendment (as well as the Fifteenth and Nineteenth Amendments).

12 Subsequent to the November 1968 election, the Colorado Legislature reduced the residency requirement for presidential elections from six months to two months.

13 Two justices dissented, asserting that the case was not moot and that the Colorado statute was in vio. lation of the equal protection clause of the Fourteenth Amendment. Hall v. Beals, supra, 396 U.S. at 50, 511 In Shapiro v. Thompson, 394 U.S. 618 (1969), a majority of the Supreme Court held to be unconstitutiona statutes imposing upon new residents a one-year waiting period for eligibility for welfare benefits. The Court expressed no view as to other types of waiting periods or residency requirements. 394 U.S. at 638, footnote 21.

regarded as an enactment to enforce the Equal Protection Clause, whether it is 'plainly adapted to that end' and whether it is not prohibited by but is consistent with 'the letter and spirit of the constitution.'" Katzenbach v. Morgan, 384 U.S. at 651. Clearly, the proposed residency provisions are "appropriate legislation" within the meaning of the standard set forth above.

First, the proposal may properly be regarded as an enactment to implement the equal protection clause. It is firmly established that the equal protection clause itself prohibits certain types of restrictions on the franchise. See, e.g., Kramer v. Union School District, 395 U.S. 621 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); Carrington v. Rash, 380 ̊ U.S. 89 (1965). The state laws which would be affected by the proposed legislation operate so as to prevent a large class of citizens from voting for President and Vice President. The purpose of the proposal is to secure for that class the equal protection of the laws, that is, in regard to voting in presidential elections, to place such persons upon equal footing with persons who do not change their residence.

Secondly, the proposed residency provisions are "plainly adapted" to the end of enforcing the equal protection clause. The effect of the proposal would be to enable any otherwise qualified citizen to vote for President and Vice President, regardless of the date when he changes his residence. Here, as with regard to the provision at issue in Katzenbach v. Morgan (see 384 U.S. at 653), it is well within congressional authority to determine that the rights of individuals who are disfranchised by residency requirements warrant federal intrusion upon any state interests served by those requirements.

The Supreme Court has stressed repeatedly the fundamental importance of the right to vote, the right "preservative of other basic civil and political rights." Reynolds v. Sims, 377 U.S. 533, 562 (1964). See also, e.g., Kramer v. Union School District, supra, 395 U.S. at 626. Certainly, this is true with respect to selection of the President and Vice President. Burroughs v. United States, 290 U.S. 534, 545 (1934); Williams v. Rhodes, 393 U.S. 23, 31 (1968).

Residency requirements as a prerequisite to voting are commonly justified as necessary to assure familiarity with issues and candidates and to prevent fraud. Congress could properly conclude that no substantial state interest is advanced by residency requirements in presidential elections or at least that narrower means exist to promote such interests. Cf. Carrington v. Rash, supra.

The primary justification for residency requirements, familiarity with candidates and issues, is largely inapplicable to presidential elections because the issues and personalities involved are national. The new resident is as familiar with them as the older resident.

Similarly, there is no merit in the notion that a state may require a lengthy period of residence on the ground that the presidential election may involve certain parochial interests of the state and, therefore, time is required to impress local viewpoints upon voters. Cf. Carrington v. Rash, supra, 380 U.S. at 94, where the Court stated that: "Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." See Hall v. Beals, supra, 396 U.S. at 53 (dissent of Justice Marshall).

A second justification often advanced for residency requirements, prevention of frauds such as double voting, may be a legitimate state concern with respect to presidential elections. However, a lengthy residence requirement is an unnecessarily broad and inefficient means to this end. Criminal sanctions for double voting or administrative safeguards such as requiring surrender of registration certificates from states of former residence may be viewed as equally effective in preventing abuse.

It might also be suggested that residence requirements promote the administration of voter registration procedures, since registration must be closed at some time before elections to allow time for compilation and distribution of lists of voters to the polling places. However, registration deadlines are not, generally speaking, keyed to residence requirements. Most states having lengthy residence requirements allow registration until shortly before the elections. See, e.g., Hall

14 Application of the equal protection clause to voting in presidential elections is not affected by the fact that a state might provide for appointment, rather than election, of presidential electors. Williams v. Rhodes, supra. Kramer v. Union School District, supra, 395 U.S. at 628.

v. Beals, supra, 396 U.S. at 56 (dissent of Justice Marshall). In any case, the legislative proposal in question takes this administrative problem into account. To be entitled to vote in the presidential election, the new resident must have resided in the state (or political subdivision) for at least two months as of the date of the election (unless the state provides for a shorter period). If he moved more recently, he may have to vote from his former residence. In either event, the election officials have an ample opportunity to devise procedures for establishing his identity and qualifications.15

Finally, the proposed legislation is not prohibited by, but is consistent with the Constitution. The purpose of the legislation is to remedy the existing situation under which several million citizens are prevented, merely because they exercised their right to move from one state to another or to move within their state, from voting for President and Vice President. Considering, on the one hand, the importance to the individual citizens of participating in presidential elections and, on the other, the absence of any substantial justification for lengthy residence requirements with regard to such elections, Congress can properly determine that the proposed statute would be an appropriate means of implementing the Fourteenth Amendment.

15 The states would be required to prepare separate ballots for persons eligible to vote only for presidential electors. However, there is precedent for such separate ballot procedures under the Twenty-fourth Amendment, which outlawed the poll tax as a precondition to voting in federal elections. In any case, the convenience of printing a single ballot is, at best, a "remote administrative benefit" which cannot justify deprivation of the fundamental right to vote. Carrington v. Rash, supra, 380 U.S. at 96.

The provision for absentee registration may also necessitate alteration of administrative procedures, but that provision is included in order to make fully effective the provisions protecting the voting franchise of persons who change their residence.

47-122 O - 70 - 22

KATZENBACH v. MORGAN.
384 U.S. 641 (1966)

KATZENBACH, ATTORNEY GENERAL, et al. v.
MORGAN ET UX.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.

No. 847. Argued April 18, 1966.-Decided June 13, 1966.* Appellees, registered voters in New York City, brought this suit to challenge the constitutionality of § 4 (e) of the Voting Rights Act of 1965 to the extent that the provision prohibits enforcement of the statutory requirement for literacy in English as applied to numerous New York City residents from Puerto Rico who, because of that requirement, had previously been denied the right to vote. Section 4 (e) provides that no person who has completed the sixth grade in a public school, or an accredited private school, in Puerto Rico in which the language of instruction was other than English: shall be disfranchised for inability to read or write English. A three-judge District Court granted appellees declaratory and injunctive relief, holding that in enacting §4 (e) Congress had exceeded its powers. Held: Section 4 (e) is a proper exercise of the powers under §5 of the Fourteenth Amendment, and by virtue of the Supremacy Clause, New York's English literacy requirement cannot be enforced to the extent it conflicts with § 4 (e). Pp. 646-658.

(a) Though the States have power to fix voting qualifications, they cannot do so contrary to the Fourteenth Amendment or any other constitutional provision. P. 647,

(b) Congress' power under §5 of the Fourteenth Amendment to enact legislation prohibiting enforcement of a state law is not limited to situations where the state law has been adjudged to violate the provisions of the Amendment which Congress sought to enforce. It is therefore the Court's task here to determine, not whether New York's English literacy requirement as applied vio-. lates the Equal Protection Clause, but whether § 4 (e)'s prohibition against that requirement is "appropriate legislation" to enforce the Clause. Lassiter v. Northampton Election Bd., 360 U. S. 45, distinguished. Pp. 648-650.

*Together with No. 877, New York City Board of Elections v. Morgan et ur, also on appeal from the same court.

Reproduced by the Legislative Reference Service, Library of Congress, June 18, 1968.