Pennsylvania Advisory Opinions May 05, 1972: AGO 121 (May 05, 1972)

Advisory Opinion Text

Voting—Durational Residency as a Qualification for Electors

1. The Supreme Court of the United States declared, in Dunn v. Blumstein, 405 U.S. 330 (1972), durational residency requirements are unconstitutional.

2. The Supreme Court, in its discussion, stated that durational residency requirements in excess of 30 days were unconstitutional.

3. The Pennsylvania Constitution and Statutes, Article VII, § 1 (2) (3), 25 P. S. § § 1362 and 2811 provide for durational residency requirements in excess of 30 days and are, therefore, unenforceable.

4. The Secretary of the Commonwealth is advised to instruct local voting officials of the effect of Dunn v. Blumstein, 405 U. S. 330 (1972).

Harrisburg, Pa. May 5, 1972

Honorable C. DeLores Tucker

Secretary of the Commonwealth

Department of State

Harrisburg, Pennsylvania

Dear Secretary Tucker:

You have, by letter dated April 14, 1972, requested my opinion as to the effect of the case of Dunn v. Blumstein on the durational residency qualifications for electors in Pennsylvania,

You are hereby advised that, as a result of the decision of the United States Supreme Court, in Dunn v. Blumstein, 405 U. S. 330 (1972), the present durational residency requirements for qualification of electors in Pennsylvania are unenforceable. You are further advised that, as Chief Election Officer of the Com- monwealth of Pennsylvania, you are to instruct local election officials to disregard the following presently existing durational residency requirements in registering and qualifying citizens of Pennsylvania to vote:

Article VII, § 1 (2),(3), of the Constitution of the Commonwealth of Pennsylvania insofar as it requires a ninety-day durational residency in the State and a sixty-day durational residency in the election district as a prerequisite to voting.

25 P. S. § 2811 (2), (3), insofar as it requires durational residency of one year in the State and sixty days in the election district as a prerequisite to voting. 25 P. S. § 1362, insofar as it requires durational residency of six months prior to an election as a qualification to voting in a borough election.

In the case of Dunn v. Blumstein, supra, Plaintiff, being denied the right of registering as a voter in Tennessee, challenged provisions of the Tennessee Constitution and Tennessee Statutes requiring durational residency of 12 months in the State and 3 months in the county as preconditions to voting. See Article IV, Section I of the Tennessee Constitution and Section 2-201, Tennessee Code Annotated. The Supreme Court of the United States stated that durational residency requirements denying some citizens the right to vote are unconstitutional, unless necessary to promote a compelling State interest. The Court found Tennessee's challenged residency provisions unconstitutional as the State had failed to establish a compelling need for such requirements to assure voter knowledgeability or a common interest of voters, nor could the length of Tennessee's durational residency requirements be justified on the grounds of prevention of voter fraud. In drawing the latter conclusion, the Court stated:

"Thirty 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. This is the judgment of Congress in the context of Presidential elections." 405 U. S. at 348.

On the basis of the foregoing ruling by the Supreme Court of the United States, it is clear that the present durational residency requirements in Pennsylvania cannot be enforced. As a result local election officials may not bar citizens and residents of Pennsylvania from voting for failure to meet presently existing durational residency requirements and you, as chief official of this Commonwealth, are advised to so instruct relevant local authorities.

Sincerely yours,

Peter W. Brown Deputy Attorney General

J. Shane Creamer Attorney General