Young v. Gnoss

Opinion

This proceeding for writ of mandate challenges the constitutionality of the provisions of California law which impose durational residence requirements of 90 days in the county and 54 days in the precinct as a prerequisite to voting in this state,^[1] and which close the voter registration books 54 days before an election.^[2] As will appear, we have concluded that the cited provisions violate the equal protection clause of the Fourteenth Amendment as applied in Dunn v. Blumstein (1972) 405 U.S. 330

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

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

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

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

The restrictions placed on the right of suffrage by article II, section 1,

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

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

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

A more difficult question is presented by the 54-day residence requirement and parallel closing date of the registration books. It is true that the Supreme Court has in fact not yet adjudicated the constitutionality of any period shorter than 90 days.^[7] But it is well to remember that in Dunn the court declared that the “strict” equal protection test must be applied not

No claim is made that the 54-day period serves the purpose of preventing fraud by permitting election officials to go behind the prospective voter’s oath and determine the bona fides of his asserted residence.^[8] Nor is it contended the 54-day period is required to insure that the prospective voter will have resided in the community long enough to have become acquainted with local issues (cf. Bourland v. Hildreth (1864) 26 Cal. 161 , 179). In fact, respondents and amici curiae are not essentially concerned with the 54-day residence requirement of article II, section 1, of the Constitution, but with the code provision (§ 203) closing registration 54 days before an election. Were it not for that period, they argue, it would be physically impossible for them to discharge certain pre-election duties imposed by other sections of the code. Stating the point conversely, the Secretary of State asserts that “The 54-day registration cut-off does not appear to be an administrative necessity in California, so long as local officials are relieved of certain mechanical requirements with respect to those voters who register after the 54th day prior to an election.”^[9] We therefore inquire into the substance of those “mechanical requirements.”

The first group of statutes relied on by respondents directs the county clerk to furnish lists of registered voters and affidavit information to the Secretary of State and to political parties within a specified number of days before the election.^[10] In Silver v. Brown (1965) 63 Cal.2d 270 , 277 [ 46

Thirdly, respondents stress that under section 14002, subdivisions (a) and (b), the county clerks are required to provide local election officials with the original affidavits of registration and printed copies of the indexes of registered voters in each precinct. Such documents are needed, of course, to identify each prospective voter as he presents himself at the polls. Their timely delivery to the precinct officials is therefore essential to the conduct of the election, and constitutes a compelling governmental interest. But the. question remains whether the closing of registration 54 days before the election is necessary to achieve that goal.

No such showing is here made. We observe, rather, that in distinction to the other statutes discussed above, section 14002 prescribes no minimum pre-election period within which it must be obeyed. Greater flexibility, therefore, may be permitted in complying with its terms. For example, if an influx of registrations after the 54th day prior to the election were to render impractical the schedule heretofore followed, nothing in the statute would prevent the county clerks from delivering the affidavit books and voter indexes in two cycles—i.e., the first covering the voters whose affidavits were on file 54 days before the election, and the second for those whose affidavits were received during the remaining registration period. We recognize that the volume of registrations usually increases as the end of that period approaches, but the evidence before us indicates that the second group of voters would nevertheless remain a relatively small percentage of the first.^[13] Accordingly, to cut off all registration 54 days before

We conclude that both the 54-day residence requirement of article II, section 1, of the Constitution and the parallel closing date for voter registration prescribed by Elections Code section 203 violate the equal protection clause of the Fourteenth Amendment.

We turn to the question of remedy. The parties have submitted a number of plans to this court. They suggest a variety of alternative closing dates for voter registration, and propose elaborate provisions for solving the different administrative problems assertedly caused by each of those dates. But to adopt any of the proposed solutions—or to devise still another response to the administrative difficulties in question—is a matter for the legislative branch of the government. Our function at this time is simply to declare the minimum that must be done to implement Dunn v. Blumstein.

In Dunn the Supreme Court, having struck down Tennessee's durational residence requirements of one year and 90 days, concluded that a period of 30 days should be ample to permit the state to complete its administrative tasks prior to elections. (92 S.Ct. at p. 1006.) We concur in that figure.^[14] By parity of reasoning, we hold that in California no durational residence requirement in excess of 30 days may constitutionally be imposed, and general voter registration must remain open at all times except during

Finally, we have determined that the changes in election procedures which we now announce need not be put into effect for the June 1972 primary, but must be enforced at the November 1972 general election. “[A] determination that an existing plan of governmental operation denies equal protection does not necessarily require invalidation of past acts undertaken pursuant to that plan or an immediate implementation of a constitutionally valid substitute.” (Serrano v. Priest (1971) 5 Cal.3d 584 , 619 [ 96 Cal.Rptr. 601 , 487 P.2d l241, 41 A.L.R.3d 1187 ].) Too little time remains before the June primary to permit the county clerks to implement these changes in orderly fashion, and an order compelling hasty action could well result in needless confusion. Deferring the changes until the November election, moreover, will give the Legislature the opportunity to address itself to the problem and to adopt whatever measures may be deemed necessary or appropriate to give effect to Dunn v. Blumstein and the decision herein.

It follows that petitioners are not entitled to the relief prayed for with