Oregon Advisory Opinions March 30, 1972: OAG 72-20 (March 30, 1972)
Collection: Oregon Attorney General Opinions
Docket: OAG 72-20
Date: March 30, 1972
Advisory Opinion Text
OAG 72-20.
May Oregon election officials continue to enforce the provisions of Or. Const. Art II, § 2(1)(b), requiring six months' residence in the state as a prerequisite to voting, and Or. Const. Art VIII, § 6 and ORS 331.020, requiring six months' residence in the district before voting in a school district election?
ANSWER GIVEN
No. These requirements are clearly in violation of Federal Constitutional rights, under the holding of the United States Supreme Court in Dunn v. Blumstein.
Article II, Section 2(1) of the Oregon Constitution establishes the qualifications of electors in elections held in this state. It provides:
"(1) Every citizen of the United States is entitled to vote in all elections not otherwise provided for by this Constitution if such citizen:
"(a) Is 21 years of age or older;
"(b) Has resided in this state during the six months immediately preceding the election , except that provision may be made by law to permit a person who has resided in this state less than six months immediately preceding the election, but who is otherwise qualified under this subsection, to vote in the election for
candidates for nomination or election for President or Vice President of the United States or elector of President or Vice President of the United States;
"(c) Is registered prior to the election in the manner prescribed by law; and
"(d) Is able, except for physical disability, to read and write the English language. The means of testing such ability to read and write the English language may be provided by law." (emphasis supplied)(fn1)
Article VIII, Section 6 of the Oregon Constitution covers the only elections "otherwise provided for by this Constitution." It reads:
"In all school district elections every citizen of the United States of the age of twenty-one years and upward who shall have resided in the school district during the six months immediately preceding such election , and who shall be duly registered prior to such election in the manner provided by law, shall be entitled to vote, provided such citizen is able to read and write the English language." (emphasis supplied)
In Dunn v. Blumstein , _____ U.S. _____, 40 L.W. 4269 (March 21. 1972), the United States Supreme Court struck down provisions of the Tennessee Constitution and statutes which required, as a condition to registration as a voter, that the registrant have resided in the state for one year and the county for three months preceding the next subsequent election. The court held that durational residence laws are unconstitutional:
". . . unless the State can demonstrate that such laws are ' necessary to protect a compelling
governmental interest.'
Shapiro v.
Thompson
,
supra
, 394 U.S., at
634 (emphasis added);
Kramer v. Union Free
School District
,
supra
, 395
U.S., at 627." 40 L.W. at 4273.
The court went on to hold that Tennessee had failed to
demonstrate that the durational residency requirements were
necessary either to protect the purity of the ballot box, or
to ensure that voters were sufficiently knowledgeable of
state and local issues; and in fact implied that the second
stated purpose might not be a sufficiently compelling
governmental interest, or perhaps even a valid purpose.
The court did not state the maximum permissible durational requirement, but held:
"It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud -- and a year, or three months, too much." 40 L.W. at 4275.(fn2)
We are asked whether the Oregon durational residency requirements, i.e., six months' residence in the state before the election, and six months' residence in the district before any school district election, are rendered invalid by this decision, or whether election officials should continue to enforce the requirements of the Oregon Constitution until such time as they may specifically be held to be invalid in a case brought in this state.
We conclude that Dunn v. Blumstein does render invalid the durational residency requirements established by Or. Const. Art II, § 2, and Or. Const. Art VIII, § 6. We also conclude that election
officials should immediately permit any citizen who becomes a bona fide resident of this state before the close of the registration period, to register and to vote in national, state and local elections; and permit any citizen who is a bona fide resident of a school district on the day of an election, and who has previously duly registered, to vote in a school district election.
As stated by Justice Blackmun in his concurring opinion, ". . . much of the opinion seems to be couched in absolute terms." 40 L.W. at 4280.(fn3) This is, in our opinion, a fair characterization of the majority opinion, and we accordingly conclude that the Oregon durational residency requirements would inevitably be found invalid, as failing to meet the tests established by the court.
The durational residency requirement established by Or. Const. Art II, § 2 (6 months) is substantially shorter than the one year requirement applicable in most states, the two year requirement applicable in a few. Nevertheless it deprives one class of Oregon residents, those who have resided in the state less than six months, of a right enjoyed by all other citizen-residents.
The language of Dunn v. Blumstein is instructive:
"Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes,
old residents and new residents, and discriminate against the latter to the extent of totally denying them the right to vote . . . .
". . . . In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction . . . .
". . . . We concluded [in Kramer v. Union Free School District, 395 U.S. 621, 627 (1969)] that if a challenged statute grants the right to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.' . . . (emphasis added). . .
The court went on to cite Oregon v. Mitchell , 400 U.S. 112 (1970), Shapiro v. Thompson , 394 U.S. 618 (1969) and other cases to the effect that any impingement on the right to travel must also meet the "compelling interest" test."This exacting test is appropriate for another reason . . . Tennessee's durational residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period. Thus, the durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel." 40 L.W. at 4271 - 4272.
It is true that both Tennessee and Oregon have a compelling interest in preventing fraudulent voting and voting by nonresidents. The court said:
"Preservation of the 'purity of the ballot box' is a formidable sounding state interest . . . . But it is impossible to view durational residence requirements as necessary to achieve that state interest. . . . .
"Durational residence laws may once have been necessary to prevent fraudulent evasion of state voter standards, but today in Tennessee, as in most other states, this purpose is served by a system of voter registration. . . . Given this system, the record is totally devoid of any evidence that durational
residency requirements are in fact necessary to identify bona fide residents. The qualifications of the would-be voter in Tennessee are determined when he registers to vote, which he may do until 30 days before the election. . . . His qualifications -- including bona fide residence -- are established then by oath. . . There is no indication on the record that Tennessee routinely goes beyond the would-be voter's oath to determine his qualifications . . . .
"Moreover, to the extent the State makes an enforcement effort after the oath is sworn, it is not clear what role the durational residence requirement would play in protecting [against?] fraud . . . . As long as the State permits registration up to 30 days before an election, a lengthy durational residence requirement does not increase the amount of time the State has in which to carry out an investigation into the sworn claim by the would-be voter that he is in fact a resident." 40 L.W. at 4274-4275.(fn4)
We have quoted the court at length to demonstrate that its arguments apply with equal force to Oregon's durational residency requirement. Oregon's registration system, its time limits, the provision for an oath by the registrant, and the criminal penalties available for voting fraud are all indistinguishible from equivalent Tennessee provisions referred to by the court.
The second and perhaps the principal purpose relied on in support of the durational requirements, that is the purpose to ensure that voters are knowledgeable, was demolished by the court, which said:
"The argument that durational residence requirements further the goal of having 'knowledgeable voters' appears to involve three separate claims.
The first is that such requirements 'afford some surety that the voter has, in fact, become a member of the community.' But here the State appears to confuse a bona fide residence requirement with a durational residence requirement . . . .
"The second branch of the 'knowledgeable voters' justification is that durational residence requirements assure that the voter 'has a common interest in all matters pertaining to [the community's] government . . . .' By this, presumably, the State means that it may require a period of residence sufficiently lengthy to impress upon its voters the local viewpoint. This is precisely the sort of argument this court has repeatedly rejected. . . .
". . . To paraphrase what we said elsewhere, 'All too often, lack of a ["common interest"] might mean no more than a different interest.' Evans v. Cornman , 398 U.S. 419, 423. 'Differences of opinion' may not be the basis for excluding any group or person from the franchise. Cipriano v. City of Houma , [395 U.S. 701] at 705-706 . . . ." 40 L.W. at 4277.
Finally, Tennessee urged that a long-time resident is more likely to vote intelligently, to which the court replied:
"Similarly, the durational residency requirements in this case founder because of their crudeness as a device for achieving the articulated state goal of assuring the knowledgeable exercise of the franchise. The classification . . . obviously permits 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, such as appellee, who make it a point to be informed and knowledgeable about the issues . . . .
"It may well be true that new residents as a group know less about state and local issues than older residents; and it is surely true that durational residence requirements will exclude some people from voting who are totally uninformed about election matters. But as devices to limit the franchise to minimally knowledgeable residents, the conclusive presumptions of durational residence requirements are much too crude. They exclude too many people who should not, and need not, be excluded. They represent a require
ment of knowledge unfairly imposed on only some citizens . . . ." 40 L.W. at 4278-4279.
Arguments similar to those rejected in this case were made by the Oregon Court in Wright v. Blue Mt. Hospital District , 214 Or. 141 (1958). This case, of course, must be considered overruled by Dunn v. Blumstein .
The court also implied, without deciding, that a state's power to bar less knowledgeable or less intelligent citizens from the franchise is at least strictly limited. See n. 29, 40 L.W. at 4278.
The decision holds, in effect, that a state may not impose any durational residency requirement as a prerequisite to voting, beyond that minimum period necessary to permit the state's election machinery to operate, in order to screen out persons who have fraudulently registered and to permit preparation of poll books. That period has been established by Oregon's election laws (ORS 247.070) as 30 days. Under Dunn v. Blumstein , Oregon's six month durational residency requirement is as invalid as Tennessee's one year.
In fact, certain arguments unsuccessfully advanced in the Tennessee case cannot even be made in Oregon. Under ORS 247.145 and 247.155, any previously registered Oregon resident may vote from his new place of residence, even though he has established his new residence the day before the election, if he obtains a certificate of residence from the county clerk of his previous place of residence. He may then present himself at the polling place and vote, upon presenting the certificate and simply stating that he now resides in the precinct. A fraudulent statement of residence would be much less subject to discovery than a fraudulent statement by someone attemptin to register in the normal registration period. Furthermore, he may
vote "the entire ballot or ballots issued to that precinct," although he may be entirely ignorant of purely local issues and candidates. The State of Oregon has thus through these statutes declared that it does not have a compelling interest in requiring any durational residency requirement, either to prevent fraud or to insure knowledge-ability, at least for these favored in-state movers. Article II, Section 2(1)(b) of the Oregon Constitution must thus fall.
Article VIII, Section 6, relating to school districts must also fall, for it lacks any rational justification, even the justification held insufficient in Dunn v. Blumstein . The purity of the ballot box can hardly be in issue, since (at least for previous Oregon residents) no durational requirements, not even 30 days, are deemed necessary by the state for any other type of election. Nor can it be argued that there is some special knowledgeability requirement which can be made applicable to school district elections, but not to elections for local fire districts, city council, county clerks, or state representatives.
It is true that the Dunn v. Blumstein case is at least technically binding only upon the parties to that case. It may be argued that Oregon's election officials should accordingly continue to enforce the provisions of the Oregon Constitution, at least until a court holds them invalid in a decision binding upon Oregon. We would so advise if there remained any substantial question as to the applicability of the Dunn v. Blumstein holding. However, there is no substantial (or in our opinion, any ) question about its applicability, and it would accordingly be futile to insist upon the initiation and conclusion of litigation in this state. Furthermore, it
would be in violation of the oath and official duties of any state officer, to refuse to comply.
State and local officials are required to obey the laws and constitution of Oregon. However, the laws and constitution of Oregon are subject to the Supremacy Clause of the United States Constitution, which provides:
"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U. S. Const. Art VI, Cl. 2.
Thus any state law or constitutional provision may be superseded or nullified by any valid law passed by Congress; and any law or constitutional provision which is contrary to a provision of the United States Constitution, is invalid and of no effect. The United States Supreme Court is the final authority on the meaning of the United States Constitution; and the Court has held that a durational residency requirement, of the same nature as the Oregon requirement, is a violation of the Fourteenth Amendment to the United States Constitution.
Thus, although Or. Const. Art II, § 2(1)(b) and Art VIII, § 6 remain in the Oregon Constitution, they are null and void, and Oregon's election officials may not enforce them.
In fact, Article II, § 2(1) has already suffered several amputations. Paragraph (a) establishes the minimum voting age as 21; but this age was lowered to age 18 for all federal elections by 42 U.S.C.A. § 1973 66-1 and Oregon v. Mitchell , supra , and for
all elections by adoption of the 26th Amendment to the United States Constitution. Paragraph (d) requires voters to be able to read and write English; but 42 U.S.C.A. § 1973aa(a) prohibits the states from requiring literacy tests as a prerequisite to voting. This was also affirmed in Oregon v. Mitchell , but states which were not parties to that litigation could hardly assert that they may continue to require literacy tests until individually ordered to stop. To carry this point a step further, no court has ever held that the 26th Amendment invalidates higher minimum voting ages set in individual states; but invalidate them it does.
In this case, the Court has conclusively held that the Fourteenth Amendment invalidates durational residency requirements of three months or longer, and it has implied that the longest such requirement which would be valid may be 30 days. The effect is the same as if a constitutional amendment specifically so stating were to be adopted.
In our opinion, Dunn v. Blumstein will have minimal effect upon registration and voting procedures in this state. No change in registration periods is required; no change will be required in the information furnished under oath by registrants pursuant to ORS 247.121. In fact, the general six months residency requirement is found only in the Oregon Constitution, and not in any statute, and the existing statutory scheme is as adequate to handle registration and voting of persons who establish residence in the state less than six months before an election, as of persons who have established residence in the state more than six months before an election.
The six month residency requirement for voting in school
district elections, however, is reflected in the statutes. ORS 331.020 provides:
"(1) Any person who is a registered voter in a precinct or part of a precinct within a school district 30 days prior to an election and who has continuously resided in the school district six months immediately prior to the election shall be qualified to vote on any matter at the election.
"(2) . . . [Relates to absentee voting]."
As we have said, Dunn v. Blumstein operates to nullify the phrase, "and who has continuously resided in the school district six months immediately prior to the election." However, the balance of the subsection also appears to create a requirement of 30 days registration within "a" precinct within the school district prior to the election. In our opinion, this portion of the statute is also nullified, for the following reasons.
Under ORS 247.070(1), citizens may not vote in any election in this state unless they register at least 30 days before the election. If a voter is to comply with Or. Const. Art VIII, § 6 and ORS 331.020, this registration must necessarily be in a precinct within the school district. In our opinion, the reference to registration 30 days prior to the election is merely meant to reflect ORS 247.070(1), not to create any additional residency requirement. The reference is thus mere surplusage; it has no effect whatsoever, if the balance of the statute is valid, and it should not be given effect merely because the balance of the statute has been held invalid.(fn5) We
conclude that all of ORS 331.020(1) is invalidated by Dunn v. Blumstein .
Oregon may be unique among the states in that it waived the durational residency requirement for voting for the nomination and election of President and Vice President, even before passage of 42 U.S.C.A. § 1973aa-1 as part of the Voting Rights Act of 1970. The federal law provides that every citizen resident in a state shall be entitled to vote for president and vice president (or for electors) if registered not later than 30 days before the primary or general election. Most states have presumably enacted legislation pursuant to 42 U.S.C.A. § 1973aa-1, but the effect of Dunn v. Blumstein is probably to make this legislation superfluous, at least where a state's registration periods close 30 days or less before election dates.(fn6)
It was not necessary for Oregon to enact such legislation, since it has had even more liberal legislation on the books pursuant to Or. Const. Art II, § 2(1)(b) since 1961. ORS 247.410 - 247.470. Under ORS 247.420(1) a person who has been a resident of the state less than six months but is otherwise a "qualified elector" may obtain a certificate entitling him to vote for election or nomination of President or Vice President if he applies:
". . . not later than 5 p.m. of the last day prior to the day of an election . . ." (emphasis supplied)
The only significant exception is for a person who has already voted in a presidential primary in another state during the preceding six months. ORS 247.410(1).(fn7)
Since these provisions go beyond anything required by Dunn v. Blumstein or 42 U.S.C.A. § 1973aa-1, we conclude that ORS 247.410 to 247.470 remain in effect. A person becoming a resident of Oregon less than six months before a presidential primary or election accordingly has the option of registering in the ordinary way, up to 30 days before the election, in which case he may vote for all positions and questions on the ballot; or he may instead obtain a special registration certificate, up to the last day before the election, entitling him to vote for president and vice president only.
It could be argued that the special registration procedure under ORS 247.410 to 247.470 is unnecessary for persons becoming residents of Oregon more than 30 days before an election, and that we should therefore consider ORS 247.410 to have in effect been amended by Dunn v. Blumstein to apply only to persons who become residents of the state within 30 days immediately preceding a presidential primary or election. However, we note that under ORS 247.147 and 247.155 a person moving within the state up to 60 days before an election may obtain a special certificate entitling him to vote from his new residence, notwithstanding that he would not be cut off from re-registering in the ordinary way unless he moved less than 30 days before the
election. This appears to represent a legislative judgment that a person who changes his residence may have too much on his mind to require him to re-register immediately. In any event we conclude that we would be usurping the legislative prerogative to in effect "amend" the statute to make it applicable only to persons entering the state within 30 days prior to an election, or within 60 days as under ORS 247.145 and 247.155, or within any period other than the six months which ORS 247.410 now specifically provides.
We have also considered whether the limitation contained in ORS 247.410(1) should be made applicable to persons registering in the ordinary way, by virtue of Dunn v. Blumstein , although they have resided in the state less than six months. This would require furnishing such persons who have voted in another presidential primary within the preceding six months with special registration certificates entitling them to vote for everything except for the nomination of president and vice president.
There seems little doubt that notwithstanding 42 U.S.C.A. § 1973aa-1 and Dunn v. Blumstein Oregon may prohibit a person who has voted for the nomination of Senator Jones for President in the New Hampshire or Florida primary, and who then becomes an Oregon resident, from again voting for the nomination of Senator Jones for President in the Oregon primary a few months later. The legislature has under ORS 247.410(1) prohibited this, and in effect has declared a public policy that such repeat voting is undesirable. However, it is a simpler matter on the one hand to grant or deny a special registration certificate which will permit voting only for the office of president and vice president; than to grant on the other hand either regular registration
permitting voting for all offices and issues, or special registration permitting voting for all offices and issues except president and vice president. We cannot say that the legislature would inevitably have carried over the public policy expressed in ORS 247.410(1) to registration permitted under Dunn v. Blumstein , had it known that such a decision would be rendered. We accordingly conclude that the limitation expressed in ORS 247.410(1) should not be made applicable to any person, resident in the state less than six months, who registers in the ordinary way before close of the registration period.
In summary, we conclude that Dunn v. Blumstein effectively nullifies the six month residency requirements stated in Or. Const. Art II, § 2(1)(b) and Art VIII, § 6, and:
1. Any citizen otherwise qualified to vote who has become a bona fide resident of this state at least 30 days before an election must be allowed to register, up until the close of registration, and to vote on all candidates and issues in the subsequent election, regardless of the duration of such residence within the state.
2. A citizen otherwise qualified to vote who becomes a resident of Oregon less than six months before a presidential primary or election may in the alternative obtain the special registration certificate provided for under ORS 247.410 to 247.470, entitling him to vote only for president, vice president and their electors.
3. Any person who resides within a school district on the day of a school district election, and is duly registered in that district 30 days before the election (or if he was previously regis
tered in the state and moved into the district less than 60 days before the election, if he has obtained a special registration certificate under ORS 247.145 or 247.155) must be allowed to vote in that election.
Footnotes:
1 Subsection (2) provides that except in school district elections:
". . . provision may be made by law to require that persons who vote upon questions of levying special taxes or issuing public bonds shall be taxpayers." Or. Const. Art II, § 2(2).
2 Tennessee law provides for a cutoff of registration 30 days before the election, as does Oregon law. ORS 247.070(1). Both states also provide that a person who will become eligible to vote after the close of registration, but before the election, may register before the close of registration. ORS 247.070(2).
3 Five members of the court joined in the majority opinion. Only Chief Justice Burger dissented. Justice Blackmun appeared to disagree with the majority that a durational residency requirement, to be valid, must be necessary to support a compelling state interest; and to favor instead a test of reasonableness. Since he concurred in the result, Justice Blackmun apparently felt that the Tennessee provisions failed even to meet the less stringent test of reasonableness.
4 Dunn v. Blumstein made it clear that a state may make necessary and appropriate inquiries of an applicant for registration, in order to determine that he is in fact a bona fide resident of the state. 40 L.W. at 4275. It is of course necessary to follow procedures which do not unfairly discriminate against some applicants for registration. See 35 Op. Att'y Gen. 933 (1971), relating to determining the residence of college studetns for voting purposes.
5 Although it appears that under Dunn v. Blumstein a 30-day advance residence-registration requirement applicable to all elections in the state is valid, a strong argument could be made that a 30-day advance residence-registration requirement applicable only to school district elections and not to any other type of election (cf. ORS 247.145 and 247.155) would be invalid.
6 In much the same way, ORS 247.282-247.288, enacted in order to comply with 42 U.S.C.A. § 1973bb-1 (as limited in applicability to Federal elections by Oregon v. Mitchell , supra ), were made superfluous by passage of the 26th Amendment to the United States Constitution. ORS 247.282 - 247.288 provide a separate registration procedure for persons 18 but not yet 21, to permit them to vote in federal elections. Since such persons are granted the unrestricted franchise by the 26th Amendment, these separate procedures are no longer necessary.
7 ORS 247.410(2) makes a similar exception for a person who has voted in a presidential election in another state during the preceding six months; but since the presidential election is held on the same day in each of the 50 states, this subsection has no practical significance.