# Oregon v. Mitchell/Concurrence-dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurrence/Dissents Harlan Brennan Stewart
* Separate Opinion Douglas
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in part and dissenting in part.
In these cases, we deal with the constitutional validity of three provisions of the Voting Rights Act Amendments of 1970. Congress undertook in these provisions: (a) to abolish for a five-year period all literacy tests and similar voting eligibility requirements imposed by any State in the Union (§ 201); (b) to remove the restrictions imposed by state durational residency requirements upon voters in presidential elections (§ 202); and (c) to reduce the voting age to a minimum of 18 years for all voters in all elections throughout the Nation (§ 302). The Court today upholds § 201's nationwide literacy test ban and § 202's elimination of state durational residency restrictions in presidential elections. Section 302's extension of the franchise to 18-year-old voters is (by virtue of the opinion of MR. JUSTICE BLACK announcing the judgments of the Court) upheld as applied to federal elections. I agree with the Court in sustaining the congressional ban on state literacy tests, for substantially the same reasons relied upon by MR. JUSTICE BLACK. I also agree that the action of Congress in removing the restrictions of state residency requirements in presidential elections is constitutionally valid, but I base this judgment upon grounds quite different from those relied upon by MR. JUSTICE BLACK. And, finally, I disagree with the Court's conclusion that Congress could constitutionally reduce the voting [p282] age to 18 for federal elections, since I am convinced that Congress was wholly without constitutional power to alter — for the purpose of any election — the voting age qualifications now determined by the several States.
Before turning to a discussion of my views, it seems appropriate to state that we are not called upon in these cases to evaluate or appraise the wisdom of abolishing literacy tests, of altering state residency requirements, or of reducing the voting age to 18. Whatever we may think as citizens, our single duty as judges is to determine whether the legislation before us was within the constitutional power of Congress to enact. I find it necessary to state so elementary a proposition only because certain of the separate opinions filed today contain many pages devoted to a demonstration of how beneficent are the goals of this legislation, particularly the extension of the electoral franchise to young men and women of 18. A casual reader could easily get the impression that what we are being asked in these cases is whether or not we think allowing people 18 years old to vote is a good idea. Nothing could be wider of the mark. My Brothers to the contrary, there is no question here as to the "judgment" of Congress; there are questions only of Congress' constitutional power.

### I

I concur in Part II of MR. JUSTICE BLACK's opinion, which holds that the literacy test ban of § 201 of the 1970 Amendments is constitutional under the Enforcement Clause of the Fifteenth Amendment. Our decisions establish that the Fifteenth Amendment
    nullifies sophisticated, as well as simple-minded, modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race, although the abstract right to vote may remain unrestricted as to race.
Lane v. Wilson, 307 U.S. 268, 275; [p283] cf. Gomillion v. Lightfoot, 364 U.S. 339. Because literacy and illiteracy are seemingly neutral with respect to race, creed, color, and sex, we upheld a literacy requirement against a claim that it was invalid on its face under the Fifteenth Amendment. Lassiter v. Northampton Election Board, 360 U.S. 45. But in Gaston County v. United States, 395 U.S. 285, we made it clear that Congress has ample authority under § 2 of the Fifteenth Amendment to determine that literacy requirements work unfairly against Negroes in practice because they handicap those Negroes who have been deprived of the educational opportunities available to white citizens. We construed the 1965 Voting Rights Act in light of the report of the Senate Judiciary Committee which said,
    [T]he educational differences between whites and Negroes in the areas to be covered by the prohibitions — differences which are reflected in the record before the committee — would mean that equal application of the tests would abridge 15th amendment rights.
S.Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 16. See also South Carolina v. Katzenbach, 383 U.S. 301, 308-315.
Congress has now undertaken to extend the ban on literacy tests to the whole Nation. I see no constitutional impediment to its doing so. Nationwide application reduces the danger that federal intervention will be perceived as unreasonable discrimination against particular States or particular regions of the country. This, in turn, increases the likelihood of voluntary compliance with the letter and spirit of federal law. Nationwide application facilitates the free movement of citizens from one State to another, since it eliminates the prospect that a change in residence will mean the loss of a federally protected right. Nationwide application avoids the often difficult task of drawing a line between those States where a problem is pressing enough to warrant federal intervention and those where it is not. Such a [p284] line may well appear discriminatory to those who think themselves on the wrong side of it. Moreover the application of the line to particular States can entail a substantial burden on administrative and judicial machinery and a diversion of enforcement resources. Finally, nationwide application may be reasonably thought appropriate when Congress acts against an evil such as racial discrimination which in varying degrees manifests itself in every part of the country. A remedy for racial discrimination which applies in all the States underlines an awareness that the problem is a national one, and reflects a national commitment to its solution.
Because the justification for extending the ban on literacy tests to the entire Nation need not turn on whether literacy tests unfairly discriminate against Negroes in every State in the Union, Congress was not required to make state-by-state findings concerning either the equality of educational opportunity or actual impact of literacy requirements on the Negro citizen's access to the ballot box. In the interests of uniformity, Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records. Cf. Lassiter v. Northampton Election Board, supra. The findings that Congress made when it enacted the Voting Rights Act of 1965 would have supported a nationwide ban on literacy tests. Instead, at that time, "Congress chose to limit its attention to the geographic areas where immediate action seemed necessary." South Carolina v. Katzenbach, 383 U.S. at 328. Experience gained under the 1965 Act has now led Congress to conclude that it should go the whole distance. This approach to the problem is a rational one; consequently, it is within the constitutional power of Congress under § 2 of the Fifteenth Amendment. [p285]

### II

Section 202 added by the Voting Rights Act Amendments of 1970 is a comprehensive provision aimed at insuring that a citizen will not be deprived of the opportunity to vote for the offices of President and Vice President because of a change of residence. Those who take up a new residence more than 30 days before a presidential election are guaranteed the right to register and vote in the State to which they have moved notwithstanding any durational residency requirement imposed by state law, provided, of course, that they are otherwise qualified to vote. Those who take up a new residence less than 30 days before a presidential election are guaranteed the right to vote, either in person or by absentee ballot, in the State from which they have moved, provided that they satisfied, as of the date of their change of residence, the requirements to vote in that State.

### II A

Congress, in my view, has the power under the Constitution to eradicate political and civil disabilities that arise by operation of state law following a change in residence from one State to another. Freedom to travel from State to State — freedom to enter and abide in any State in the Union — is a privilege of United States citizenship. Shapiro v. Thompson, 394 U.S. 618"]394 U.S. 618; 394 U.S. 618; United States v. Guest, 383 U.S. 745"]383 U.S. 745, 757-760; 383 U.S. 745, 757-760; Truax v. Raich, 239 U.S. 33"]239 U.S. 33, 39; 239 U.S. 33, 39; Twining v. New Jersey, 211 U.S. 78, 97; Crandall v. Nevada, 6 Wall. 35. Section 1 of the Fourteenth Amendment provides:
    All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or [p286] immunities of citizens of the United States. . . .
In discussing the privileges of citizens of the United States within the meaning of § 1, Mr. Justice Miller wrote for the Court in the Slaughter-House Cases:
    One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.
16 Wall. 36, 80.
Although § 5 of the Fourteenth Amendment confers on Congress the "power to enforce, by appropriate legislation, the provisions of this article," this Court has sustained the power of Congress to protect and facilitate the exercise of privileges of United States citizenship without reference to § 5. United States v. Guest, 383 U.S. at 757-760; United States v. Classic, 313 U.S. 299; Burroughs v. United States, 290 U.S. 534. These cases and others establish that Congress brings to the protection and facilitation of the exercise of privileges of United States citizenship all of its power under the Necessary and Proper Clause. Consequently, as against the reserved power of the States, it is enough that the end to which Congress has acted be one legitimately within its power and that there be a rational basis for the measures chosen to achieve that end. McCulloch v. Maryland, 4 Wheat. 316, 421.
In the light of these considerations, § 202 presents no difficulty. Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the privilege of taking up residence in another State. The objective of § 202 is clearly a legitimate one. Federal action is required if the privilege to change residence is not to be undercut by parochial local sanctions. No State could undertake [p287] to guarantee this privilege to its citizens. At most, a single State could take steps to resolve that its own laws would not unreasonably discriminate against the newly arrived resident. Even this resolve might not remain firm in the face of discriminations perceived as unfair against those of its own citizens who moved to other States. Thus, the problem could not be wholly solved by a single State, or even by several States, since every State of new residence and every State of prior residence would have a necessary role to play. In the absence of a unanimous interstate compact, the problem could only be solved by Congress. Quite clearly, then, Congress has acted to protect a constitutional privilege that finds its protection in the Federal Government and is national in character. Slaughter-House Cases, 16 Wall. at 79.

### II B

But even though general constitutional power clearly exists, Congress may not overstep the letter or spirit of any constitutional restriction in the exercise of that power. For example, Congress clearly has power to regulate interstate commerce, but it may not, in the exercise of that power, impinge upon the guarantees of the Bill of Rights. I have concluded that, while § 202 applies only to presidential elections, nothing in the Constitution prevents Congress from protecting those who have moved from one State to another from disenfranchisement in any federal election, whether congressional or presidential.
The Constitution withholds from Congress any general authority to change by legislation the qualifications for voters in federal elections. The meaning of the applicable constitutional provisions is perfectly plain. Article I, § 2, and the Seventeenth Amendment prescribe the qualifications for voters in elections to choose Senators and Representatives: they "shall have the Qualifications [p288] requisite for Electors of the most numerous Branch of the State Legislature." The Constitution thus adopts as the federal standard the standard which each State has chosen for itself. Ex parte Yarbrough, 110 U.S. 651, 663; Wiley v. Sinkler, 179 U.S. 58, 64. Accordingly, a state law that purported to establish distinct qualifications for congressional elections would be invalid as repugnant to Art. I, § 2, and the Seventeenth Amendment. By the same token, it cannot be gainsaid that federal legislation that had no objective other than to alter the qualifications to vote in congressional elections would be invalid for the same reasons. What the Constitution has fixed may not be changed except by constitutional amendment.
Contrary to the submission of my Brother BLACK, Art. I, § 4, does not create in the Federal Legislature the power to alter the constitutionally established qualifications to vote in congressional elections. That section provides that the legislatures in each State shall prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives," but reserves in Congress the power to "make or alter such Regulations, except as to the Places of chusing Senators." The "manner" of holding elections can hardly be read to mean the qualifications for voters, when it is remembered that § 2 of the same Art. I explicitly speaks of the "qualifications" for voters in elections to choose Representatives. It is plain, in short, that, when the Framers meant qualifications, they said "qualifications." That word does not appear in Art. I, § 4. Moreover, § 4 does not give Congress the power to do anything that a State might not have done, and, as pointed out above, no State may establish distinct qualifications for congressional elections. The States, of course, are free to pass such laws as are necessary to assure fair elections. Congressional power under § 4 is equally broad with respect to congressional [p289] elections. United States v. Classic, 313 U.S. 299. But the States are not free to prescribe qualifications for voters in federal elections which differ from those prescribed for the most numerous branch of the state legislature. And the power of Congress to do so cannot, therefore, be found in Art. I, § 4.
This view is confirmed by extrinsic evidence of the intent of the Framers of the Constitution. An early draft of the Constitution provided that the States should fix the qualifications of voters in congressional elections subject to the proviso that these qualifications might "at any Time be altered and superseded by the Legislature of the United States." The records of the Committee on Detail show that it was decided to strike the provision granting to Congress the authority to set voting qualifications and to add in its stead a clause making the qualifications "the same from Time to Time as those of the Electors, in the several States, of the most numerous Branch of their own Legislatures." The proposed draft reported by the Committee on Detail to the Convention included the following:
    The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures.
Art. IV, § 1.
    The times and places and manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States.
Art. VI, § 1. [p290]
On August 7, Gouverneur Morris moved to strike the last clause of the proposed Art. IV, § 1, and either to provide a freehold limitation on suffrage or to add a clause permitting Congress to alter the electoral qualifications. This motion was opposed by Oliver Ellsworth, George Mason, James Madison, and Benjamin Franklin. Ellsworth protested that the proposal favored aristocracy. If the legislature could alter qualifications, it could disqualify a great proportion of the electorate. Mason voiced a similar objection. "A power to alter the qualifications would be a dangerous power in the hands of the Legislature." To the same effect, Madison said:
    The right of suffrage is certainly one of the fundamental articles of republican Government, and ought not to be left to be regulated by the Legislature.
The proposed motion was defeated by a seven-to-one vote, and no substantive change in Art. I, § 2, was proposed or made thereafter.
Thus, Alexander Hamilton accurately reported the intent of the Convention when he wrote in The Federalist No. 60 that the authority of the national government
    would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature [i.e., Congress].
(Emphasis in original.)
Different provisions of the Constitution govern the selection of the President and the Vice President. Article [p291] II and the Twelfth Amendment provide for election by electors. Article II specifies that each State shall appoint electors "in such Manner as the Legislature thereof may direct." Because the Constitution does not require the popular election of members of the electoral college, it does not specify the qualifications that voters must have when the selection of electors is by popular election. This is left to the States in the exercise of their power to "direct" the manner of choosing presidential electors. Williams v. Rhodes, 393 U.S. 23, 29. When electors are chosen by popular election, the Federal Government has the power to assure that such elections are orderly and free from corruption. Burroughs v. United States, 290 U.S. 534. But, in Burroughs, the Court noted of the Act under review:
    Neither in purpose nor in effect does it interfere with the power of a state to appoint electors or the manner in which their appointment shall be made.
290 U.S. at 544. The Court quoted with approval the following passage from Ex parte Yarbrough, 110 U.S. 651:
    [T]he importance to the general government of having the actual election — the voting for those members — free from force and fraud is not diminished by the circumstance that the qualification of the voter is determined by the law of the State where he votes.
290 U.S. at 546. And in United States v. Classic, 313 U.S. 299, the Court was careful to point out that it is the "right of qualified voters within a state to cast their ballots and have them counted" which is a privilege of United States citizenship amenable to congressional protection. Id. at 315 (emphasis added). See also Corfield v. Coryell, 6 F.Cas. 546, 552 (No. 3230) (CCED Pa.).
The issue, then, is whether, despite the intentional withholding from the Federal Government of a general authority to establish qualifications to vote in either congressional or presidential elections, there exists congressional [p292] power to do so when Congress acts with the objective of protecting a citizen's privilege to move his residence from one State to another. Although the matter is not entirely free from doubt, I am persuaded that the constitutional provisions discussed above are not sufficient to prevent Congress from protecting a person who exercises his constitutional right to enter and abide in any State in the Union from losing his opportunity to vote, when Congress may protect the right of interstate travel from other less fundamental disabilities. The power of the States with regard to the franchise is subject to the power of the Federal Government to vindicate the unconditional personal rights secured to the citizen by the Federal Constitution. Williams v. Rhodes, supra; cf. Shapiro v. Thompson, supra. The power that Congress has exercised in enacting § 202 is not a general power to prescribe qualifications for voters in either federal or state elections. It is confined to federal action against a particular problem clearly within the purview of congressional authority. Finally, the power to facilitate the citizen's exercise of his constitutional privilege to change residence is one that cannot be left for exercise by the individual States without seriously diminishing the level of protection available. As I have sought to show above, federal action is required if this privilege is to be effectively maintained. We should strive to avoid an interpretation of the Constitution that would withhold from Congress the power to legislate for the protection of those constitutional rights that the States are unable effectively to secure. For all these reasons, I conclude that it was within the power of Congress to enact § 202. [p293]

### III

Section 302 added by the Voting Rights Act.Amendments of 1970 undertakes to enfranchise in all federal, state, and local elections those citizens 18 years of age or older who are now denied the right to vote by state law because they have not reached the age of 21. Although it was found necessary to amend the Constitution in order to confer a federal right to vote upon Negroes and upon females, the Government asserts that a federal right to vote can be conferred upon people between 18 and 21 years of age simply by this Act of Congress. Our decision in Katzenbach v. Morgan, 384 U.S. 641, it is said, established the power of Congress, under § 5 of the Fourteenth Amendment, to nullify state laws requiring voters to be 21 years of age or older if Congress could rationally have concluded that such laws are not supported by a "compelling state interest."
In my view, neither the Morgan case, nor any other case upon which the Government relies, establishes such congressional power, even assuming that all those cases were rightly decided. MR. JUSTICE BLACK is surely [p294] correct when he writes,
    It is a plain fact of history that the Framers never imagined that the national Congress would set the qualifications for voters in every election from President to local constable or village alderman. It is obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections, except to the limited extent that the people through constitutional amendments have specifically narrowed the powers of the States.
Ante at 125. For the reasons that I have set out in Part II of this opinion, it is equally plain to me that the Constitution just as completely withholds from Congress the power to alter by legislation qualifications for voters in federal elections, in view of the explicit provisions of Article I, Article II, and the Seventeenth Amendment.
To be sure, recent decisions have established that state action regulating suffrage is not immune from the impact of the Equal Protection Clause. But we have been careful in those decisions to note the undoubted power of a State to establish a qualification for voting based on age. See, e.g., Kramer v. Union School District, 395 U.S. 621, 625; Lassiter v. Northampton Election Board, 360 U.S. at 51. Indeed, none of the opinions filed today suggests that the States have anything but a constitutionally unimpeachable interest in establishing some age qualification as such. Yet to test the power to establish an age qualification by the "compelling interest" standard is really to deny a State any choice at all, because no State could demonstrate a "compelling interest" in drawing the line with respect to age at one point, rather than another. Obviously, the power to establish an age qualification must carry with it the power to choose [p295] 21 as a reasonable voting age, as the vast majority of the States have done.
Katzenbach v. Morgan, supra, does not hold that Congress has the power to determine what are and what are not "compelling state interests" for equal protection purposes. In Morgan, the Court considered the power of Congress to enact a statute whose principal effect was to enfranchise Puerto Ricans who had moved to New York after receiving their education in Spanish language Puerto Rican schools and who were denied the right to vote in New York because they were unable to read or write English. The Court upheld the statute on two grounds: that Congress could conclude that enhancing the political power of the Puerto Rican community by conferring the right to vote was an appropriate means of remedying discriminatory treatment in public services, and that Congress could conclude that the New York statute was tainted by the impermissible purpose of denying the right to vote to Puerto Ricans, [p296] an undoubted invidious discrimination under the Equal Protection Clause. Both of these decisional grounds were far-reaching. The Court's opinion made clear that Congress could impose on the States a remedy for the denial of equal protection that elaborated upon the direct command of the Constitution, and that it could override state laws on the ground that they were in fact, used as instruments of invidious discrimination even though a court in an individual lawsuit might not have reached that factual conclusion. Cf. Swain v. Alabama, 380 U.S. 202.
But it is necessary to go much further to sustain § 302. The state laws that it invalidates do not invidiously discriminate against any discrete and insular minority. Unlike the statute considered in Morgan, § 302 is valid only if Congress has the power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and what state interests are "compelling." I concurred in MR. JUSTICE HARLAN's dissent in Morgan. That case, as I now read it, gave congressional power under § 5 the furthest possible legitimate reach. Yet to sustain the constitutionality of § 302 would require an enormous extension of that decision's rationale. I cannot but conclude that § 302 was beyond the constitutional power of Congress to enact.

## Notes

* ↑ . 2 M. Farrand, Records of the Federal Convention of 1787, p. 153 (1911).
* ↑ . Id. at 164.
* ↑ . Id. at 178-179.
* ↑ . Id. at 201, 207.
* ↑ . Id. at 201.
* ↑ . Id. at 202.
* ↑ . Id. at 203.
* ↑ . Id. at 206.
* ↑ . Whether a particular State's durational residency requirement for voters may violate the Equal Protection Clause of the Fourteenth Amendment presents questions that are, for me, quite different from those attending the constitutionality of § 202. See Howe v. Brown, 319 F.Supp. 862 (ND Ohio 1970); Cocanower v. Marston, 318 F.Supp. 402 (Ariz.1970); Burg v. Canniffe, 315 F.Supp. 380 (Mass.1970); Blumstein v. Ellington, ___ F.Supp. ___ (MD Tenn.1970); Hadnott v. Amos, 320 F.Supp. 107 (MD Ala.1970); Bufford v. Holton, 319 F.Supp. 843 (ED Va.1970); Lester v. Board of Elections, 319 F.Supp. 505 (DC 1970).
* ↑ . U.S.Const., Amdt. XV.
* ↑ . U.S.Const., Amdt. XIX; see also Minor v. Happersett, 21 Wall. 162.
* ↑ . Carrington v. Rash, 380 U.S. 89 (1965); Louisiana v. United States, 380 U.S. 145 (1965); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); Katzenbach v. Morgan, 384 U.S. 641 (1966); Kramer v. Union 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); Phoenix v. Kolodziejski, 399 U.S. 204 (1970).
* ↑ . See, e.g., cases cited supra, n. 12.
* ↑ . If the Government is correct in its submission that a particular age requirement must meet the "compelling interest" standard, then, of course, a substantial question would exist whether a 21-year-old voter qualification is constitutional even in the absence of congressional action, as my Brothers point out. Ante at 241-246. Yet it is inconceivable to me that this Court would ever hold that the denial of the vote to those between the ages of 18 and 21 constitutes such an invidious discrimination as to be a denial of the equal protection of the laws. The establishment of an age qualification is not state action aimed at any discrete and insular minority. Cf. United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4. Moreover, so long as a State does not set the voting age higher than 21, the reasonableness of its choice is confirmed by the very Fourteenth Amendment upon which the Government relies. Section 2 of that Amendment provides for sanctions when the right to vote "is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States. . . ." (Emphasis added.)