Judges: J.D. MacFARLANE, Attorney General
Filed Date: 9/30/1976
Status: Precedential
Modified Date: 7/5/2016
Honorable Mary Estill Buchanan Secretary of State 1576 Sherman Street Denver, Colorado 80203
Dear Ms. Buchanan:
QUESTIONS PRESENTED AND CONCLUSIONS
You have asked what procedure county clerks must follow in registering electors under C.R.S. 1973,
1. Specifically, you have asked what effect article VII, section 4 (the "provision") of the Colorado constitution has on the voting rights of the mentally ill who are in treatment facilities.
It is my conclusion that legally qualified voters in state institutions must be allowed to establish residence in the communities which they receive treatment. In determining whether residence has been established, county clerks must treat this group of citizens in the same way others are treated. There is no compelling state interest to be served by treating this group differently.
2. You have also asked whether C.R.S. 1973,
It is my opinion that the statute is valid, legal and constitutional in all its terms.
ANALYSIS
Regarding question #1, the provision reads as follows:
For the purposes of voting and eligibility to office, no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence, while in the civil or military service of the state, or of the United States, nor while a student at any institution of learning, nor while kept at public expense in any poorhouse or other asylum, nor while confined in public prison.
(Emphasis added.)
The election statute differs somewhat from the constitutional provision. C.R.S. 1973,
For the purposes of registration, voting, and eligibility to office, no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence, while in the civil or military service of the state or of the United States; nor while a student at any institution of higher education; nor while kept at public expense in any public prison or state institution, unless the person is an employee or a member of the household of an employee of such prison or institution.
In analyzing the provision and the statute it is important to touch on some basic propositions. First, both the statute and provision are presumptively constitutional, C.R.S. 1973,
There are three Colorado Supreme Court cases interpreting the provision. In Merrill v. Sheartson,
The provisions were read as prohibiting residents of a federal institution from establishing domicile in the precinct in which the federal institution was located. The court found that theonly evidence sufficient to overcome the presumption of nonresidence was proof that the elector's residence had been within the precinct prior to the elector's admittance to the federal institution.
The decision in Kemp v. Heebner,
The Supreme Court in Israel v. Wood,
Developments in the law of equal protection since the above cases were decided have cast serious doubt on the continuing validity of these cases. Creation of a presumption of nonresidency against several of the categories listed in the provision have been held to be unconstitutional by the United States Supreme Court and other courts.1 As I shall discuss later, statutes saying that students or military personnel can never gain residency for registration and voting purposes have been struck down as violations of the equal protection clause. These cases are directly applicable to the issue at hand, and are dispositive of it. Therefore, for the reasons that follow, I find that the interpretations of the statute and provision are constitutionally invalid, as violations of the equal protection clause. There is no compelling interest to be served by burdening that class of citizens kept at public expense in a poorhouse or asylum. Because there is no compelling state interest, and because the fundamental right of voting is involved the cases interpreting the provision and the statute as creating an irrebuttable presumption are invalid.
It must be remembered that residence is established by physical presence and intent to remain. Restatement (Second)Conflict of Laws, sections 15, 16 (1971). The provision and statute are constitutional if they are read to mean that physical presence of a former nondomiciliary within the state or county is not alone sufficient to supply, nor is absence of a former domiciliary alone sufficient to lose the required mental element. This reading means that the "gain or loss" provision does not operate as an irrebuttable, exclusionary presumption but as a restatement of the general principle that a citizen retains his prior residence until it is affirmatively established that he has acquired a new one. The general assembly has provided for this way of looking at the "gain or loss" provision by adding subsection (2) to C.R.S. 1973,
Section 1 of the
If a law sets up a "suspect classification" or affects the exercise of a "fundamental right," the "rational basis" standard is abandoned in favor of the compelling state interest standard,Kramer v. Union Free School District,
Second, the interpretations burden a suspect classification. The cases state that those kept at public expense shall be treated differently for establishment of residence purposes, from those who can afford to pay. This imposes a burden on a class based on indigency. Such classes are suspect, Griffin v.Illinois,
Is there a compelling state interest which can justify impinging the exercise of a fundamental right and burdening of a suspect classification. The stated reason for denying students or patients the ability to establish residency for voting purposes was given in Merrill v. Sheartson, supra, where the court quoted with approval from a New York case:
This provision of the constitution is aimed at the participation of an unconcerned body of men in the control through the ballot box of municipal affairs in whose further conduct they have no interest and from the mismanagement of which by the officers their ballots might elect they sustain no injury.
Applying this rationale to the facts before them the Merrillv. Sheartson court decided:
The patients in the hospital have no interest in the affairs of Adams County, and yet they might by their united votes, determine a matter of great local interest.
The other and related reason given for restricting the right to establish residency is that the putative electors lacked the necessary capacity to intend to make that place a permanent home. In Merrill v. Sheartson, the court stated:
From the undisputed evidence it appears that, whatever might be the patient's intention or desire, he could not make the hospital a place or permanent residence within the above definitions. His stay there was subject to the determination of the hospital authorities, and, in the nature of the case, was limited.
A study of the case law shows that these reasons are not compelling enough to meet the compelling state interest test. InCarrington v. Rash, supra, the court struck down a Texas statute which created a conclusive presumption that military personnel in Texas were nonresidents. The effect of the statute was that all servicemen not residents of Texas before induction could never vote in Texas, no matter how long Texas may have been his home. Defending the validity of the Texas statute, the state put forth the same two arguments advanced inMerrill v. Sheartson, supra. First, the state said it had an interest in protecting the franchise from transients. Second, the state argued that military personnel, because they were subject to reassignment, could never form the intention to become permanent residents. The court held that the Texas statute violated the equal protection clause of the
We deal here with matters close to the core of our constitutional system. "The right . . . to choose," . . . that this court has been so zealous to protect, means, at the least, that states may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the state . . . . By forbidding a soldier ever to controvert the presumption of nonresidence, the Texas constitution imposes an invidious discrimination in violation of the fourteenth amendment.
This holding is directly applicable to the case at hand. In some cases, citizens could be precluded from ever voting in Colorado, for either state or local offices. In all cases, citizens would be conclusively presumed to be nonresidents of the county where the facility is located.2
Decisions in the voting rights area rendered sinceCarrington v. Rash, supra, support my conclusion that case law interpretations of the statute and provision violate the equal protection clause of the
Cases in the student voting rights area include Whately v.Clark,
For the argument that unreasonable presumptions created by governmental action are a denial of due process, seeNote, 23 De Paul L. Rev. 1314, 1316. One of the more recent cases concerning the right of patients to vote in the community in which they receive treatment is Coulombre v.Board of Registrars of Voters,
SUMMARY
Legally qualified voters in state institutions must be allowed to register to vote, once they have established residence in Colorado and the precinct.
Very truly yours,
J.D. MacFARLANE Attorney General
ELECTIONS MENTAL HEALTH
C.R.S. 1973,
Colo. Const. art.
SECRETARY OF STATE DEPT. Elections, Div. of
Legally qualified voters in state institutions must be allowed to register to vote, once they have established residence in Colorado and the precinct.
1-2-101 (durational residency requirement);1-2-206 (questions answered by elector);1-2-207 (oath taken by elector);1-2-211 (purging registration book);1-2-219 (multiple registration — most recent date governs);1-2-211 (post election procedures); 1-13-114 (procuring false registration); 1-13-137 (voting twice); 1-13-148 (offenses relating to absentee voting);1-30-101 (voting twice — penalty); 1-30-118 (penalty for false affidavit); 1-30-119 (penalty for procuring false registry); 1-30-123 (false swearing penalty); 1-30-125 (false certificates by officers).
These statutes are precisely drawn to articulate the state interest in limiting the franchise to bona fide resident. There is no need for the broad and conclusive presumption of nonresidence established by the cases.
Marilyn Whatley and Carol Gerber v. T. J. Clark, Etc., Emma ... , 482 F.2d 1230 ( 1973 )
Jolicoeur v. Mihaly , 5 Cal. 3d 565 ( 1971 )
Jarmel v. Putnam , 179 Colo. 215 ( 1972 )
Kemp v. Heebner , 77 Colo. 177 ( 1925 )
Israel v. Wood , 93 Colo. 500 ( 1933 )
Bright v. Baesler , 336 F. Supp. 527 ( 1971 )
Carrington v. Rash , 85 S. Ct. 775 ( 1965 )
Wilkins v. Ann Arbor City Clerk , 385 Mich. 670 ( 1971 )
Vlandis v. Kline , 93 S. Ct. 2230 ( 1973 )
Griffin v. Illinois , 76 S. Ct. 585 ( 1956 )
Harper v. Virginia Board of Elections , 86 S. Ct. 1079 ( 1966 )
Williams v. Rhodes , 89 S. Ct. 5 ( 1968 )
Kramer v. Union Free School District No. 15 , 89 S. Ct. 1886 ( 1969 )