|Rosario v. Rockefeller
[ Stewart ]
[ Powell ]
Rosario v. Rockefeller
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MR. JUSTICE STEWART delivered the opinion of the Court.
For more than 60 years, New York has had a closed system of primary elections, whereby only enrolled members of a political party may vote in that party's primary. [n1] Under the State's Election Law, a registered voter enrolls as a party member by depositing an enrollment blank in a locked enrollment box. The last day for enrollment is 30 days before the general election each year. Section 186 of the Election Law provides that the enrollment boxes shall not be opened until the Tuesday following the general election, and party affiliations are then entered on the State's official registration books. The voter is then duly enrolled as a member of his party and may vote in a subsequent primary election. [n2] [p754]
The effect of § 186 is to require a voter to enroll in the party of his choice at least 30 days before the general election in November in order to vote in the next subsequent party primary. If a voter fails to meet this deadline, he cannot participate in a party primary until after the following general election. Section 187 provides an exemption from this waiting period for certain classes of voters, including persons who have attained voting age after the last general election, persons too ill to enroll during the previous enrollment period, and persons who moved from one place to another within a single county. Under § 187, these classes of voters may be specially enrolled as members of a party even after the general election has taken place. [n3] [p755]
The petitioners are New York residents who became eligible to vote when they came of age in 1971. Although they could have registered and enrolled in a political party before the cut-off date in 1971 -- October 2 -- they failed to do so. [n4] Instead, they waited until early December, 1971, to register and to deposit their enrollment blanks. At that time, they could not be specially and immediately enrolled in a party under § 187, since they had attained the voting age before, rather than after, the 1971 general election. Hence, pursuant to § 186, their party enrollment could not become effective until after the November, 1972, general election. Because of New York's enrollment scheme, then, the petitioners were not eligible to vote in the presidential primary election held in June, 1972. [p756]
The petitioners filed these complaints for declaratory relief, pursuant to 42 U.S.C. § 1983 alleging that § 186 unconstitutionally deprived them of their right to vote in the June primary and abridged their freedom to associate with the political party of their choice. The District Court, in an unreported opinion, granted them the declaratory relief sought. The Court of Appeals for the Second Circuit reversed, holding § 186 constitutional. 458 F.2d 649. We granted certiorari, but denied the petitioners' motion for summary reversal, expedited consideration, and a stay. 406 U.S. 957 (1972). [n5]
The petitioners argue that, through § 186, New York disenfranchised them by refusing to permit them to vote in the June, 1972, primary election on the ground that they had not enrolled in a political party at least 30 days prior to the preceding general election. More specifically, they contend that § 186 has operated to preclude newly registered voters, such as themselves, from participating in the primary election of the party of their choice. According to the petitioners, New York has no "compelling state interest" in its delayed-enrollment scheme so as to justify such disenfranchisement, and hence the scheme must fall. In support of this argument, the petitioners rely on several cases in which this Court has struck down, as violative of the Equal Protection Clause, state statutes that disenfranchised certain groups of people. Carrington v. Rash, 380 U.S. 89 (1966); Kramer v. Union [p757] School District, 395 U.S. 621 (1969); Cipriano v. City of Houma, 395 U.S. 701 (1969); Evans v. Cornman, 398 U.S. 419 (1970); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Dunn v. Blumstein, 405 U.S. 330 (1972).
We cannot accept the petitioners' contention. None of the cases on which they rely is apposite to the situation here. In each of those cases, the State totally denied the electoral franchise to a particular class of residents, and there was no way in which the members of that class could have made themselves eligible to vote. In Carrington, for instance, the Texas Constitution disabled all servicemen from voting in Texas, no matter how long they had lived there. In Kramer, residents who were not property owners or parents were completely precluded from voting in school board elections. In Cipriano and Kolodziejski, the States prohibited non-property owners from ever voting in bond elections. In Evans, Maryland refused to permit residents at the National Institutes of Health, located within its borders, ever to vote in state elections. And in Dunn, Tennessee totally disenfranchised newly arrived residents, i.e., those who had been residents of the State less than a year or residents of the county less than three months before the election.
Section 186 of New York's Election Law, however, is quite different. It did not absolutely disenfranchise the class to which the petitioners belong -- newly registered voters who were eligible to enroll in a party before the previous general election. Rather, the statute merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary. Since the petitioners attained voting age before the October 2, 1971, deadline, they clearly could have registered and enrolled in the party of their choice before that date and been eligible to vote in the June, 1972, [p758] primary. [n6] Indeed, if the petitioners had not been able to enroll by the October 2, 1971, deadline because they did not attain the requisite age until after the 1971 general election, they would have been eligible for special enrollment under § 187. The petitioners do not say why they did not enroll prior to the cut-off date; however, it is clear that they could have done so, but chose not to. Hence, if their plight can be characterized as disenfranchisement at all, it was not caused by § 186, but by their own failure to take timely steps to effect their enrollment. [n7]
For the same reason, we reject the petitioners' argument that § 186 violated their First and Fourteenth Amendment right of free association with the political party of their choice. Since they could have enrolled in a party in time to participate in the June, 1972, primary, § 186 did not constitute a ban on their freedom of association, but merely a time limitation on when they had to act in order to participate in their chosen party's next primary. [n8] [p759]
Indeed, under the New York law, a person may, if he wishes, vote in a different party primary each year. All he need do is to enroll in a new political party between the prior primary and the October cut-off date. For example, one June he could be a registered Republican and vote in the Republican primary. Before enrollment closed the following October, he could enroll in the Democratic Party. Since that enrollment would be effective after the November general election and before the following February 1, he could then vote in the next Democratic primary. Before the following October, he could register to vote as a Liberal, and so on. Thus, New York's scheme does not "lock" a voter into an unwanted preexisting party affiliation from one primary to the next. [n9] [p760]
The only remaining question, then, is whether the time limitation imposed by § 186 is so severe as itself to constitute an unconstitutionally onerous burden on the petitioners' exercise of the franchise or on their freedom of political association. As the dissent acknowledges, the State is certainly justified in imposing some reasonable cut-off point for registration or party enrollment, which citizens must meet in order to participate in the next election. Post at 765. Hence, our inquiry must be whether the particular deadline before us here is so justified.
The cut-off date for enrollment prescribed by § 186 occurs approximately eight months prior to a presidential primary (held in June) and 11 months prior to a nonpresidential primary (held in September). The petitioners argue that this period is unreasonably long, and that it therefore unduly burdens the exercise of their constitutional rights. According to the petitioners, § 186 requires party enrollment before prospective voters have knowledge of the candidates or issues to be involved in the next primary elections. The requirement is especially onerous, the petitioners say, as applied to new voters, who have never before registered to vote or enrolled in a political party.
It is true that the period between the enrollment deadline and the next primary election is lengthy. But that period is not an arbitrary time limit unconnected to any important state goal. The purpose of New York's delayed-enrollment scheme, we are told, is to inhibit party "raiding," whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary. This purpose is accomplished, the Court of Appeals found, not only by requiring party enrollment several months in advance of the primary, on the theory that "long-range planning in politics is quite difficult," [p761] 458 F.2d at 653, but also by requiring enrollment prior to a general election. The reason for the latter requirement was well stated by the court below:
[T]he notion of raiding, its potential disruptive impact, and its advantages to one side are not likely to be as apparent to the majority of enrolled voters, nor to receive as close attention from the professional politician just prior to a November general election, when concerns are elsewhere, as would be true during the "primary season," which, for the country as a whole, runs from early February until the end of June. Few persons have the effrontery or the foresight to enroll as, say, "Republicans" so that they can vote in a primary some seven months hence, when they full well intend to vote "Democratic" in only a few weeks. And it would be the rare politician who could successfully urge his constituents to vote for him or his party in the upcoming general election while, at the same time, urging a cross-over enrollment for the purpose of upsetting the opposite party's primary. Yet the operation of section 186 requires such deliberate inconsistencies if large-scale raiding were to be effective in New York. Because of the statute, it is all but impossible for any group to engage in raiding.
It is clear that preservation of the integrity of the electoral process is a legitimate and valid state goal. Cf. Dunn v. Blumstein, supra, at 345; Bullock v. Carter, 405 U.S. 134, 145 (1972). In the service of that goal, New York has adopted its delayed-enrollment scheme, and an integral part of that scheme is that, in order to participate in a primary election, a person must enroll before the preceding general election. As the Court of Appeals stated:
Allowing enrollment any time after [p762] the general election would not have the same deterrent effect on raiding, for it would not put the voter in the unseemly position of asking to be enrolled in one party while at the same time intending to vote immediately for another.
458 F.2d at 653. For this reason, New York's scheme requires an insulating general election between enrollment and the next party primary. The resulting time limitation for enrollment is thus tied to a particularized legitimate purpose, and is in no sense invidious or arbitrary. Cf. Lippitt v. Cipollone, 404 U.S. 1032 (172). [n10]
New York did not prohibit the petitioners from voting in the 1972 primary election or from associating with the political party of their choice. It merely imposed a legitimate time limitation on their enrollment, which they chose to disregard.
Accordingly, the judgment below is
1. See N.Y.Election Law § 131. The State's first comprehensive primary law was enacted in 1911.
2. Section 186 provides, in pertinent part:
All enrollment blanks contained in the enrollment box shall remain in such box, and the box shall not be opened nor shall any of the blanks be removed therefrom until the Tuesday following the day of general election in that year. Such box shall then be opened by the board of elections and the blanks contained therein shall be removed therefrom by the board, and the names of the party designated by each voter under such declaration, provided such party continues to be a party, as defined in this law shall be entered by the board, opposite the name of such voter in the appropriate column of the two copies of the register containing enrollment numbers for the election district in which such voter resides. . . . Such enrollment shall be complete before the succeeding first day of February in each year.
This section finds its roots in the 1911 law.Laws 1911, c. 891, § 19.
3. Section 187 provides, in pertinent part:
Application for special enrollment, transfer or correction of enrollment. 1. At any time after January first and before the thirtieth day preceding the next fall primary, except during the thirty days preceding a spring primary, and except on the day of a primary, a voter may enroll with a party, transfer his enrollment after moving within a county, and under certain circumstances, correct his enrollment, as hereinafter in this section provided.
2. A voter may enroll with a party if he did not enroll on the day of the annual enrollment (a) because he became of age after the preceding general election, or (b) because he was naturalized subsequent to ninety days prior to the preceding general election, or (c) because he did not have the necessary residential qualifications as provided by section one hundred fifty, to enable him to enroll in the preceding year, or (d) because of being or having been at all previous times for enrollment a member of the armed forces of the United States as defined in section three hundred three, or (e) because of being the spouse, child or parent of such member of the armed forces and being absent from his or her county of residence at all previous times for enrollment by reason of accompanying or being with such member of the armed forces, or (f) because he was an inmate or patient of a veterans' bureau hospital located outside the state of New York at all previous times for enrollment, or the spouse, parent or child of such inmate or patient accompanying or being with such inmate or patient at such times, or (g) because he was incapacitated by illness during the previous enrollment period thereby preventing him from enrolling.
4. The petitioners themselves admit this failure. The present consolidated case originated in two complaints, one by the petitioner Rosario and other named plaintiffs, on behalf of a class, and one by the petitioner Eisner. Paragraph 6 of Rosario's complaint stated that
[e]ach of these plaintiffs could have registered and enrolled on or before October 2nd, 1971, the last date of registration for the November 1971 elections. They each did not do so.
Similarly, Eisner's complaint stated, in paragraph 5: "Plaintiff, Eisner, first became eligible to vote on December 30, 1970, upon the attainment of his twenty-first birthday." Whether the petitioners failed to enroll before the deadline because of inadvertence, because of lack of interest in the essentially local 1971 general election, or for other reasons is not clear, since none of them advances any explanation for this failure to enroll.
5. Although the June primary election has been completed and the petitioners will be eligible to vote in the next scheduled New York primary, this case is not moot, since the question the petitioners raise is "‘capable of repetition, yet evading review.'" Dunn v. Blumstein, 405 U.S. 330, 333 n. 2 (1972); Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).
6. Not only would the petitioners have been eligible for the 1972 primary, but, since they were eligible in 1971 for special enrollment under § 187, they could have, if they had timely registered and enrolled, participated in the September 14, 1971, primary.
7. The District Court held that the petitioners' failure to enroll before the cut-off date was not truly voluntary, because it was not done with sufficient awareness of the relevant circumstances and likely consequences. But this argument could well be made any time a State imposes a time limitation or cut-off point for registration or enrollment. The petitioners do not claim that they were unaware of New York's deadline for enrollment.
8. The dissent states that
[t]he Court apparently views this statute as a mere "time deadline" on petitioners' enrollment . . . that postpones through the next primary, rather than denies altogether petitioners' voting and associational rights.
Post at 766. And it argues that our decisions "have never required a permanent ban on the exercise of voting and associational rights before a constitutional breach is incurred." Post at 766-767. But the dissent mischaracterizes our view of § 186. We do not uphold the statute on the ground that it is merely a prohibition on voting in one particular primary, rather than a permanent ban on voting. That is neither our point nor the effect of the law. The point is that the statute did not prohibit the petitioners from voting in any election, including the 1972 primary, had they chosen to meet the deadline established by the law.
9. The petitioners also argue that § 186 establishes a durational residence requirement unconstitutional under Dunn v. Blumstein, 405 U.S. 330 (1972), and violates the right to travel under Shapiro v. Thompson, 394 U.S. 618 (1969). Since the exemption in § 187 applies only to persons whose new residence is within the same county as their old residence, persons who arrive in New York State or move from one county to another after the cut-off date, and deposit their enrollment blank at that time, are barred by the delayed-enrollment scheme from voting in the next primary election. According to the petitioners, this constitutes an unconstitutional durational residence requirement, and is violative of the 1970 amendments to the Voting Rights Act of 1965, 84 Stat. 316, 42 U.S.C. § 1973aa-1.
The petitioners, however, lack standing to raise these contentions. They make no claim that they are recently arrived residents of the State or that they have moved from one county to another, nor even that they have changed their residence at all within the period relevant here. The petitioners cannot represent a class to which they do not belong.
10. The petitioners contend that New York already has less drastic means to prevent raiding -- means that would accomplish the State's goal yet would permit the registrant who inadvertently failed to enroll in time to vote in the primary. Specifically, the petitioners point to § 332 of the State's Election Law, which provides that the party enrollment of any voter may be challenged by any party member and, upon the determination by the chairman of the party's county committee that the voter is not in sympathy with the principles of the party, may be canceled by a justice of the State Supreme Court after a hearing. That section, however, is clearly too cumbersome to have any real deterrent effect on raiding in a primary. Every challenge to a would-be raider requires a full administrative and judicial inquiry; proof that the challenged voter is not in sympathy with the party's principles demands inquiry into the voter's mind; and even if the challenge is successful, it strikes from the enrollment books only one name at a time. In the face of large-scale raiding, § 332 alone would be virtually ineffectual. We agree with the Court of Appeals that,
[i]n requiring that the state use to a proper end the means designed to impinge minimally upon fundamental rights, the Constitution does not require that the state choose ineffectual means.