U.S. Supreme Court HALL v. BEALS, 396 U.S. 45 (1969) 396 U.S. 45

[Page 396 U.S. 45, 46]

for the United States; by William F. Reynard, Melvin L. Wulf, and Eleanor Holmes Norton for the American Civil Liberties Union et al.; by Joseph L. Rauh, Jr., John Silard, and Elliott C. Lichtman for the Bipartisan Committee on Absentee Voting; and by Harvey M. Burg.

Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Assistant Attorney General, filed a brief for the State of New York as amicus curiae urging affirmance.

PER CURIAM.

The appellants moved from California to Colorado in June 1968. They sought to register to vote in the ensuing November presidential election, but were refused permission because they would not on election day have satisfied the six-month residency requirement that Colorado then imposed for eligibility to vote in such an election.[Footnote 1] The appellants then commenced the present

[Page 396 U.S. 45, 47]

class action against the appellees, electoral officials of El Paso County, Colorado. Their complaint challenged the six-month residency requirement as a violation of the Equal Protection, Due Process, and Privilege and Immunities Clauses of the Constitution. For relief they sought (1) a writ of mandamus compelling the appellees to register them for the upcoming presidential election; (2) an injunction restraining the enforcement and operation of the Colorado residency laws insofar as they applied to the presidential election; and (3) a direction that the appellees register the appellants and allow them to vote "on a conditional basis, so that should either party choose to appeal to the Supreme Court of the United States and such appeal should run past the time of the National Election on November 5, 1968, . . . the relief sought by [the appellants will] not become moot."[Footnote 2]

On October 30 the three-judge District Court entered judgment for the appellees and dismissed the complaint, holding that the six-month requirement was not unconstitutional. Hall v. Beals, 292 F. Supp. 610 (D.C. Colo.).[Footnote 3] As a result the appellants did not vote in the 1968 presidential election. They took a direct appeal to this Court pursuant to 28 U.S.C. 1253, and we noted

[Page 396 U.S. 45, 49]

because the appellants denominated their suit a class action on behalf of disenfranchised voters. The appellants "cannot represent a class of [which] they are not a part," Bailey v. Patterson, 369 U.S. 31, 32-33 - that is, the class of voters disqualified in Colorado by virtue of the new two-month requirement, a class of which the appellants have never been members.

[Page 396 U.S. 45, 51]

complaint in a federal district court, convening of a three-judge court, trial, and review by this Court.* True, today's virtual foreclosure of any opportunity for definitive judicial review may in some measure be prevented by resort to waiver of the requirement of exhaustion of administrative remedies, preferred calendar position, or even relaxation of the rules of ripeness to permit a person not yet a resident to challenge the statute on a showing of reasonable certainty that he would be moving to the State within the two-month period. But the difficulties which attend these expedients only buttress my conclusion that if mootness did not bar decision of the constitutional question in Moore v. Ogilvie, there is even more reason to hold that mootness does not bar decision of the constitutional question presented here.

Reaching the merits, I would reverse for the reasons stated by MR. JUSTICE MARSHALL in his dissenting opinion, which I join.

[Footnote *] The proceedings would probably require even more time if the plaintiff sued in state court, for review in this Court would come only after one or more levels of state appellate review.

[Page 396 U.S. 45, 56]

arrivals is not a constitutionally sufficient reason for denying the vote to those who have settled in good faith.

Finally, appellees argue that the logistics of preparing for an election require that there be some time between the close of registration and the election itself. This period serves as a kind of residency requirement, in that persons establishing residency after the voting lists are closed are barred from voting. Yet this requirement is justified by compelling administrative needs. And, it is argued, once some period of this sort is conceded to be required, it is arbitrary for the courts to determine as a matter of constitutional law how long it may be.

But this argument is unconvincing here. Colorado has apparently judged that administrative needs require 20 days between the close of registration and election day. Colo. Rev. Stat. Ann. 49-4-2 (2) (Supp. 1965). Appellants have not challenged this statute. What they have challenged is the separate and additional requirement that voters, all of whom register before the 20-day cutoff date, also must have been residents of the State at least six months - by recent amendment two months - before the election. Colo. Rev. Stat. Ann. 49-24-1 (1963). For the argument from logistical need to save the durational residency requirement, the State would have to show some additional administrative need for this further burden on the right to vote. No such showing has been made. In my view the Colorado durational residency requirement for voters for President and Vice President violates the Equal Protection Clause, and appellants are entitled to reversal of the District Court judgment that upheld that requirement.

[Footnote 1] Pope v. Williams, (1904), upheld a one-year residency requirement for voting in state elections. The Court specifically reserved the question of durational residency requirements as applied to voting in presidential elections. Id., at 633. In any case, Pope was decided long before application of the "compelling interest" test to restrictions on the franchise.

[Footnote 2] For instance, the appellants in this case, before applying for their ballots, had bought a home in Colorado Springs, registered their car with the Colorado Department of Motor Vehicles, acquired Colorado drivers' licenses, and registered their eldest child in a private nursery school; further, Mr. Hall had taken permanent employment with a law firm in Colorado Springs.

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