Warren E. Burger: Number 39, Hall against Beals and others. Mr. Hall.
Richard A. Hall: Yes, sir.
Warren E. Burger: You may proceed whenever you're ready.
Richard A. Hall: Mr. Chief Justice and may it please the Court. I am Richard Hall, appellant pro se in this case. I appear this morning to appeal from a decision of the United States District Court for the District of Colorado, which decision upheld the constitutionality of a Colorado law which requires that a voter be a resident of the State of Colorado for six months before being allowed to vote for president and vice-president. I must state to the Court that the law has since been amended by the Colorado legislature and it now requires a two-month residence.
Warren E. Burger: But you're position is the two months is just as bad as six months or one year.
Richard A. Hall: Yes, sir. The facts in this case--
Potter Stewart: Although, if it had been two month at the time you wanted to vote, you wouldn't have been able to bring this lawsuit, I suppose.
Richard A. Hall: I wouldn't have been able to.
Potter Stewart: No.
Richard A. Hall: No, sir.
Potter Stewart: But you could've voted.
Richard A. Hall: Yes, sir, but at the time, I was disenfranchised and I am now the representative of a class of all voters who were disenfranchised by similar qualms.
Potter Stewart: Well, you -- well, we both know there's a mootness question in this case.
Richard A. Hall: Yes, sir.
Potter Stewart: I presume you'll address yourself to it.
Richard A. Hall: Yes, sir.
Byron R. White: You can be representative of the class and not be a member of it, I suppose.
Richard A. Hall: Well, I was a member of the class at the time the -- of my case, Your Honor, and I was disenfranchised and was prevented from voting.
William J. Brennan, Jr.: By any residence requirement, it wouldn't matter as to the class what the length of the residence requirement was, I gather, is that your position?
Richard A. Hall: Well, the residence requirements vary per state.
William J. Brennan, Jr.: Well, in other words, at the time you brought the lawsuit, you could've --
Richard A. Hall: It was six months and I was disenfranchised.
William J. Brennan, Jr.: Yes, and you couldn't appear for anyone except the resident at Colorado, I take it.
Richard A. Hall: Well, Your Honor, I believe the problem is similar in all the states.
William J. Brennan, Jr.: I know, but --
Richard A. Hall: It isn't my problem.
William J. Brennan, Jr.: But as a class action, could you appear for a class of residents of New York, for example, in the juris --
Richard A. Hall: No, sir. My class was the class in Colorado.
William J. Brennan, Jr.: So then, at that time, it was six months.
Richard A. Hall: That's correct, Your Honor.
William J. Brennan, Jr.: Now, it's two months.
Richard A. Hall: That's correct.
William J. Brennan, Jr.: Did you represent, at the time you brought the action, anyone less than two months?
Richard A. Hall: I would've represented everyone from six months on down which would've included people who'd been there two months.
Warren E. Burger: Down to one day? How far down do you go?
Richard A. Hall: Well, it's my contention, Your Honor, that no period longer than the registration period should be required by the state. Colorado allows people to appear and register up until the Friday before the election. They evidently feel that that's the amount of time they need to process registration applications.
Thurgood Marshall: Mr. Hall, where is it that you said people in Colorado?
Richard A. Hall: I beg your pardon, Your Honor?
Thurgood Marshall: Did you say your class is limited to people in Colorado?
Richard A. Hall: Well, I think, as a technical matter of the drafting of my complaint, that's the class I attempted to represent, but I --
Thurgood Marshall: Well, wouldn't your class rather be people who, at the present time, are in Colorado but who weren't there when you brought the case, because all those who were there when you brought the case are now franchised?
Richard A. Hall: That's correct, Your Honor, and, of course, the question won't come up again.
Thurgood Marshall: You got a little technical problem.
Richard A. Hall: Yes, sir. The question won't come up again until 1972, maybe people who are in Colorado now who will not be there then and maybe people who will move into Colorado --
Thurgood Marshall: Well, what would be your status if you leave Colorado next week and then come back two years from now? You wouldn't be allowed to vote as it now stands, is that right?
Richard A. Hall: If I acquired a residence in another state and then move back into Colorado less than two months before the National Election, no, I would not be allowed to vote.
Thurgood Marshall: Well, doesn't that give you status?
Richard A. Hall: Well, I would feel it does, Your Honor.
Thurgood Marshall: I'm just worried about you giving up so quick.
Richard A. Hall: Well, Your Honor, I think, first, I do face the problem I've pointed out in the amicus briefs that I may move again in the future. I, in an analogous situation of the taxpayer, Glass versus Collin, I have an interest in other people being allowed to vote. Their ability to register and become a qualified elector affects their right to join a political party and other items, and I do believe that the class that I represent is, first, nationwide and, secondly, that it affects people who will be affected. We don't know who they are, but we know, as a statistical matter, that they will certainly exist in 1972. And, I think the question every one of those voters will face will be the same.
Warren E. Burger: Mr. Hall, is one of the purposes of the residence requirement to protect the integrity of the elective process?
Richard A. Hall: Yes, sir. I believe that is one of the purposes.
Warren E. Burger: Well, if you could vote in Colorado by arriving there on Friday to regis -- in time to register with no other requirement, this would mean that you can vote by absentee ballot in New York and move to Colorado or --
Richard A. Hall: Well, if you would tip to that --
Warren E. Burger: And vote in Colorado again. Isn't that possible?
Richard A. Hall: Well, if one attempted that, he would be in violation of the law because when you apply in Colorado, you --
Warren E. Burger: Well, I suppose anytime anybody ever votes twice he's violating some rule, wouldn't that be true?
Richard A. Hall: Well, yes, sir. The question is whether the waiting period serves that purpose. Colorado has determined that you don't have to apply for the ballot until the Friday before the election. So, they don't, evidently, feel that they need the six month or the two months in which to process the application, perform any checks, nor does Colorado attempt to contact the old state from which one moved. They make no attempt to contact California, in my case. So, I don't believe, Your Honor, that they used the waiting period for the purpose you ascribe to it.
Byron R. White: Well, how about other states?
Richard A. Hall: Some states, Your Honor, do have the new resident fill out what amounts to a postcard --
Byron R. White: You're asking us to lay down, to decide a basic constitution that anything should -- as long as two months is invalid, which has some impact beyond Colorado. Colorado may think it only needs three days and somebody else may think they need two months.
Richard A. Hall: Well, the question is whether the waiting period serves any state purpose.
Byron R. White: Well, you admit -- You admit the need for some way to get through to you. I think I read your brief that way.
Richard A. Hall: Yes, Your Honor I think --
Byron R. White: Why? Anybody could --
Richard A. Hall: I think the question of the purity of election is a legitimate state concern. The question is how long a period the state needs to serve that concern.
Byron R. White: Any state?
Richard A. Hall: Well, I think the question is similar for all the states, yes, sir. And, in particular, Colorado, first, does not make the attempt to contact the old state and they feel that three days is sufficient time for their purposes. And, I would suggest to the Court that that, therefore, might be an appropriate period.
Byron R. White: You can't in California?
Richard A. Hall: That's correct, Your Honor.
Byron R. White: You think the same -- you'd have the same -- what's the rule in California, do you know?
Richard A. Hall: It's 54 days, Your Honor.
Byron R. White: Do you think that's unreasonable?
Richard A. Hall: Well, the State of New York has an amicus for the State of Colorado said that they have more people, maybe that a state could show that they have added problems because of an increase population and --
Byron R. White: Are you suggesting that -- you're suggesting then that we might hold this waiting period unconstitutional in Colorado, but wholly constitutional in California and New York.
Richard A. Hall: Well, I think the particular states would have to show a legitimate state interest to support their particular requirement. New York claims in its brief that they had added problems that Colorado evidently appeals it did not have. So, we would contend, Your Honor -- yes, sir?
Potter Stewart: As I understand it, you would say that it's some sort of a burden, and I gather you think a rather heavy burden on a state to show a need for this sort of a residence requirement.
Richard A. Hall: Yes, sir.
Potter Stewart: Why?
Richard A. Hall: Well --
Potter Stewart: In view of Article 2 Section 1 and of the Twelfth Amendment of the United States Constitution --
Richard A. Hall: Well, Your Honor --
Potter Stewart: Which, effectively provides that this is up to each state legislature, why do you think the state has to --
Richard A. Hall: Well, Your Honor, I think --
Potter Stewart: Bestow such a burden?
Richard A. Hall: Article 2 Section 1 provides that the state can't chose the man in which presidential electors are appointed, but once they decide that it's to be done by popular election. I would suggest that Harper versus Virginia Board of Elections case, for example, says once the franchise is granted to the electorate, you can't have classifications that invidiously discriminate. And, I think this case affects both the right to vote and the right to travel, both of which have been held by this Court very recently to be among the most fundamental and precious rights we have.
Potter Stewart: Well, the right of free interstate travel, of course, is a constitutional right, as has been held --
Richard A. Hall: Yes, sir.
Potter Stewart: Repeatedly and very recently by this Court. That the -- I don't know that it's ever -- I know, so far as I do know, that it's never been held that the right to vote is a constitutional right, a federal constitutional right. In fact, there are statements that it is not.
Richard A. Hall: Well, I believe those statements come from cases decided in an earlier day, Your Honor. I believe the recent case --
Potter Stewart: Under the same constitution.
Richard A. Hall: Yes, sir, but I believe the recent cases such as Kramer, Williams versus Roads, and others suggest that the right to vote is a fundamental right that the Court protects with the most rigid scrutiny and that applies a compelling interest test. And, the question is whether the waiting period portion of the residence requirement serves a compelling state interest. My question is what interest it serves at all. I don't believe it serves, as applied in the State of Colorado, any administrative purposes. Furthermore, the traditional justifications that one should be a member of the community in which he seeks to vote and that he'd be familiar with the candidates and issues, I don't believe apply in the particular context of a presidential election because the would-be voter is a member of the community, which I would contend is a national one. The President and Vice-President are the only people elected by the nation as a whole that govern the nation as a whole. And, I believe that a --
Warren E. Burger: Well, are they elected by the people as a whole under the constitution as it now stands?
Richard A. Hall: Well, they are elected at the present time under the electoral college system.
Warren E. Burger: Yes, but that isn't under people as a whole. That's what the great parent debate is about.
Richard A. Hall: Well, that's correct, Your Honor, but I believe that the popular view is that they're elected by the people that it's expression of the national --
Warren E. Burger: Well, the popular view --
Richard A. Hall: Will.
Warren E. Burger: May be one thing, but the fact is another.
Richard A. Hall: Well, that may be, Your Honor, but in the Williams versus Roads case, for example, the state attempted to rely on Article 2 Section 1 and this Court said that Article 2 Section 1 does not allow a state to set up requirements that violate the Equal Protection Clause. So, the question then turns whether it does violate the Equal Protection Clause. It's my contention, under the compelling interest test which has been developed by this Court in right to vote cases, that it does not serve any state purpose. The State of Colorado --
Byron R. White: You mean the two months restriction doesn't? You'd say some kind of restriction would be -- would serve a compelling state interest.
Richard A. Hall: The State of Colorado, Your Honor, has said you could register up until Friday before the election.
Byron R. White: Would you say they can have a three-day period?
Richard A. Hall: Yes, sir. I think if they feel --
Byron R. White: That serves a compelling state interest?
Richard A. Hall: They apparently feel that it does, Your Honor. I think that would be sufficient short. I would be in favor of having as many people vote as possible, Your Honor.
Byron R. White: But would you -- if they only had a three-day waiting period, would you attack that?
Richard A. Hall: I doubt it, Your Honor.
Byron R. White: That would serve a compelling state interest.
Richard A. Hall: Arguably, Your Honor, and I don't believe I would. And, I think that there are no special voting lists to be made up or holding places to be established. In the State of Colorado, you go to vote at the County Clerk's Office --
Byron R. White: And would you --
Richard A. Hall: On a special machine.
Byron R. White: Would you have a different view if this was for a state office, this election was for state office?
Richard A. Hall: Yes, sir, I would.
Byron R. White: Why? What compelling state interest would --
Richard A. Hall: I think there is the --
Byron R. White: Suffice a jury?
Richard A. Hall: Question of ensuring that the voter is familiar with the state candidates and the state issues so that he can vote intelligently.
Byron R. White: And you don't think that's relevant in voting for electors?
Richard A. Hall: No, sir. I think the --
Byron R. White: You don't think electors should really understand the problems of the state?
Richard A. Hall: The electors, perhaps, Your Honor, but the people who vote for the electors vote on the basis of national issues for national candidates. The information they learned about the candidates comes from national sources. I feel that I was --
Byron R. White: Do you think voters ought to know the difference between presidential candidates in terms of, say, their views on reclamation or water or natural resources?
Richard A. Hall: I feel the dominant issues in, for example, last year's campaign, Your Honor, were national in scope. I think the critical issues with the war and civil rights, and inflation and crime, I think those are national problems. I don't believe that the effect of state issues placed at large apart in --
Byron R. White: In whether a --
Richard A. Hall: A selection of a pres --
Byron R. White: In whether a President carries a state, the western state?
Richard A. Hall: I don't believe so, Your Honor. I think the majority of the voters vote on national issues. They may have a different feel about some of those national issues, but I think that they are paramount issues or national in scope. So, I think a voter is able to case an intelligent ballot and I think that meets the interest of the state in that particular question, and that's why it's different than a state or local election.
Potter Stewart: Well, that is contrary, is it not, both to the original theory of the constitution of Article 2 Section 1 as well, I suppose, to statistical fact even in modern contemporary elections? Whole areas will go -- a series of states will be for one candidate and --
Richard A. Hall: Well, as I say, Your Honor --
Potter Stewart: Another area is for another, and I said -- and can't -- you mean, you cannot concede that a person who is familiar with a particular problem, say, of the western slope of the rocky mountains in Colorado might be quite differently attuned to a national election based upon the candidate's views of some of the issues that my brother White has mentioned - reclamation, conservation, water. Then, that same person might be, if he lived in the lower east side of New York City and they --
Richard A. Hall: First, Your Honor --
Potter Stewart: Are attuned and familiar with the problems of that sort of an urban society?
Richard A. Hall: I believe, Your Honor, that the problems you mention are local instances of other national problems. The question of conservation and water usage is a national one. I think the question of gun-control, for example, might be looked at one way in the western states as opposed to the eastern states but, nevertheless, it is a national problem. The people in the eastern states are aware of the problem.
Potter Stewart: Yes.
Richard A. Hall: And furthermore, Your Honor, I don't believe that if that is the justification the state wishes to comply, as expressed in Carrington versus Rash, I don't believe a state has the right to prevent people from voting because of a concern as to which way they would vote.
Potter Stewart: I know, but the -- one of the justifications asserted here is that a state has an interest and a right in seeing to it that its voters are familiar with local problems, and it's your submission, as I understand it that local problems or local impact, if you will, of national issues is of absolutely no relevance whatever.
Richard A. Hall: I don't claim it's of absolutely no relevance, Your Honor, but I do think that the dominant influence on a voter in the presidential election are national issues. Local issues may have an effect, but I don't believe they have controlling facts. I don't believe they had a sufficient effect to meet a compelling state interest. I contend, Your Honor, that the question is whether the resident's waiting period serves a legitimate interest, in that, it affects both the right to vote and the right to travel and that both these rights are protected by the compelling interest test. I would contend that the residence requirement, in particular as applied by the State of Colorado, serves none of these purposes, that it, therefore, sets up a discrimination between voters that is not supported by any reason and, therefore, would be in violation of the constitution. This is a problem of, I would contend, some national significance. Figures have shown recently that disenfranchised voters number into the millions, and I would point out to the Court that two of our last three elections have been very, very close. And, I would contend, first, as just the magnitude of the civil liberties problem involved that five million voters are disenfranchised and, I would contend, for no legitimate reason, that this is a problem that merits correction. The District Court in Colorado itself recognized that the situation was, in their words, unfair and unjust. And, I would hope that the problem could be corrected. I feel that the requirement is unconstitutional, both the original six-month requirement and as amended down to two months. I don't believe the State of Colorado can show that it needs the two months for any purpose. They do not attempt to use the two months for any purpose. They do not attempt to notify the old state and take the voter off the roles to prevent double voting. It may be that that would be a good idea, but they don't attempt to do it. So, I don't believe they could claim at this time that that's one of the justifications for the law. I don't believe that the case of Drueding versus Devlin, which was affirmed by this Court in pre curium four years ago on similar situation, necessitates an affirmance in this case. I believe the law, since Drueding, has been modified. The compelling interest test has come into play by this Court. The right to travel in the Shapiro versus Thompson case involving welfare residents requirements as --
Potter Stewart: When you say that the decision in Drueding doesn -- against Devlin doesn't necessitate a decision against you, what -- I suppose you do concede we have to overrule Drueding in order to decide this case in your favor, would we not?
Richard A. Hall: Well, first, Your Honor, the right to travel theory that came up in the Shapiro versus Thompson was not before the Drueding Court. So, there is a different theory involved.
Potter Stewart: Yes, but we'd have to overrule that decision in order to rule in this case in your favor, assuming this case is not moot, isn't that correct?
Richard A. Hall: Yes, sir, I believe that's correct, but I believe that a different theory is present here. A different standard of evaluation has come into effect since then. I believe that Article 2 Section 1 has been downgraded somewhat since then. So, I don't believe there are any obstacles to it. Furthermore, I believe the District Court in Drueding failed to analyze the National Community Doctrine and, of course, the case wasn't argued here. It wasn't submitted on briefs. So, the Court didn't have an opportunity to consider it as fully as they have here. So, I don't believe that it constitutes a scope of an obstacle that some cases might --
Potter Stewart: Well, we'd have to overrule it.
Richard A. Hall: Yes, sir.
Potter Stewart: Well, whatever obstacle that might constitute for --
Richard A. Hall: Yes, sir.
Potter Stewart: Various members of this Court.
Richard A. Hall: Yes, sir, nor do I believe, Your Honors, that the question is moot. First, the fact that the election is over, I don't believe makes the case moot because another presidential election will appear in 1972. As a matter of statistical certainty, we know under the present framework of the laws that millions of voters will be disenfranchised. This is what the statistics show us.
Warren E. Burger: Are there any reliable records anywhere on how many people who moved and sought and could not vote in the new place of residence, reliable statistics?
Richard A. Hall: Well, I have referred in brief, Your Honor, to statistics introduced by Senator Kennedy in support of a Bill he introduced in Congress, which he had prepared by the Bureau of the Census, and those figures are set forth in a particular page in the congressional order.
Warren E. Burger: Well, those are people who moved, not -- that doesn't go to the -- that's an objective factor. That doesn't go to the subject or factor of how many of them applied before and were denied permission to vote.
Richard A. Hall: No, sir. I don't believe there are any figures that show how many people actually applied. It may be that they made private inquiry and found out that the rule was and simply didn't bother to apply, but the rule was there.
Warren E. Burger: So, when we're talking about millions of people being disenfranchised, we don't know whether they were disenfranchised or whether they just didn't care one way or the other.
Richard A. Hall: Well, we don't know that, Your Honor, but, as I say, they may have made private inquiry or articles come out in the paper before election about what the registration requirements are and they could just, in the privacy of their living room, read that they are not eligible and not make the effort to go down and apply. So, I don't believe that we could hold that against the question. There are reliable statistics that a substantial number anywhere from two million which was Senator Kennedy's figures, five million which was the result of a statistical survey by the ballot poll, eight million which was the result of a presidential commission which studied the problem. So, I would suggest, Your Honor, that the figure is in the millions of people who could've been disenfranchised. And, we have no way of knowing how many people actually made application. So, I would suggest that the question is not moot because the 1968 election is over because we're going to have another presidential election in four years.
Potter Stewart: You're not s -- you're not asking that the 1968 election be set aside.
Richard A. Hall: No, sir, nor do I feel that the amendment of the law down to two months makes the case moot, first, because I feel that the two-month requirement still has the question of being unreasonable and, secondly, there are 20 states in the Union that still have a requirement of six months or longer. So, as a national problem, and I would contend that it is a national problem, the issues involved are the same for all the states that six months, as a standard, is still the precedent of the United States. It's still affecting voters. And, if I have -- if I represent the class of voters throughout the United States, which I would certainly suggest, then the question of six months is still before the Court. So, I don't believe the question is moot. I do feel that the law, since Drueding, undercuts the theory of that case. The right to vote and the right to travel have both been protected by very strict scrutiny and compelling interest test, and I would ask that this Court set the matter or declare the Colorado requirement unconstitutional on that basis.
Warren E. Burger: What is the lowest requirement of any state, Mr. Hall?
Richard A. Hall: The lowest?
Warren E. Burger: Yes.
Richard A. Hall: The State of Wisconsin has no requirement at all, Your Honor. As I understand the Wisconsin law, you could come in the day of election and sign up. Nebraska and -- Nebraska has two days. Alaska and Ohio have four days. North Dakota has 10 days.
Warren E. Burger: For both national and state now?
Richard A. Hall: No, sir, just for the presidential election. Many states have made special provision for just the presidential election because they realize that the issues involved are different.
William J. Brennan, Jr.: As has Colorado?
Richard A. Hall: As has Colorado, yes, sir.
Potter Stewart: The -- Excuse me. I'm not sure you were finished.
Richard A. Hall: Yes, sir, I am finished.
Potter Stewart: There's no very clear definition that I can find in your complaint or elsewhere as to the class that you purportedly represent. You talk about other similarly situated and that could be giving --
Richard A. Hall: Well, Your Honor, that --
Potter Stewart: A broad or a narrow definition.
Richard A. Hall: That question wasn't decided by the District Court because they decided against me personally. I would contend that the class is everyone who was disenfranchised by a similar state or precinct and county. I think the issues are the same.
Potter Stewart: Wherever -- in any of the 50 states?
Richard A. Hall: Yes, sir, that would be my contention.
Byron R. White: That would be someone at your class. The class that you are representing at the time --
Richard A. Hall: Well, at the time, I was representing people trying to vote in 1968, but I would contend that I -- the question is the same and will come up --
Byron R. White: The class is constantly changing every --
Richard A. Hall: But it constantly exists. We know that it will exist in 1972.
Byron R. White: So, all the people you represent when the case started have to qualify to vote, but there are some new ones.
Richard A. Hall: We know that there will be new ones, Your Honor. That's just what statistics tell us. They will move and, in 1972, they will be disenfranchised.
Potter Stewart: Really, you represent, I suppose you might assert, every adult in the United States because anybody in any state might want to move --
Richard A. Hall: Prospectively, that's correct, Your Honor.
Potter Stewart: Probably before the next presidential election.
Richard A. Hall: And also, I would point out --
Potter Stewart: Do you represent everybody in the United States?
Richard A. Hall: Everyo -- prospectively, you could say that. Yes, sir. Also, as the amicus brief of Mr. Harvey Burg points out, the District Court for the District of Massachusetts is presently withholding a decision in a case compiled there, pending the determination of this case. So, we have at least one District Court of the United States that's specifically waiting to see how this case comes out because they feel it will affect their decision. So, the question is still with us, Your Honors, and I don't believe it's moot. I would ask that the Court decide it and that the unfairness and injustice, as the District Court puts it, of disenfranchising that many voters for the most important election in the country be removed. If the Court please, I shall close at this time in grants of a few closing remarks after Mr. Baker is finished.
Warren E. Burger: Thank you, Mr. Hall. Mr. Baker.
Bernard R. Baker: Mr. Chief Justice and may it please the Court. I would like to briefly introduce my associates who have worked with me in this case, Mr. Carol Moltz, Deputy District Attorney of Alpasa County, Colorado and the District Attorney, Mr. Robert Russell. Gentlemen, Colorado is not trying to disenfranchise anyone. Colorado is merely trying to protect the electoral process for presidential elections. Colorado, in furtherance of a constitutionally delegated responsibility under Article 2 Section, Colorado, in furtherance of that responsibility, has enacted legislation, of course, the history of the legislation going back to the time when it in fact became a state. And, this legislation's primary purpose is to protect the purity of the election process in keeping with the constitution. Colorado maintains that when there is responsibility delegated under the constitution, in this case Article 2 Section 1, that there must be the corresponding authority to carry out the responsibility and do it in an equitable way, a reasonable way. And, we maintain that this is what Colorado has done. Your Honors, before I get into the substance of my argument, I would like to clarify the Colorado election law. It has been misstated. The Colorado election law at issue, Colorado Revised Statutes 49-24-1, with reference to the three-day that Mr. -- three days that Mr. Hall makes reference to, Your Honors, these three days refers to the time when a new resident can vote. He must vote three days precedent to the regular election under Colorado law because a special polling place has been setup for him since they are in a status by themselves, since our general requirement is one year for our local elections. We, like many states, have enacted a special legislation for presidential and vice-presidential electors. And, under that special provision of the election, the new resident casts his vote, applies for his ballot not later than three days before the elections for president. However, as the law reads, such new resident must have been dully registered as required by the provisions of this article. This throws back to the general registration provision, namely 20 days, so a new resident must have registered to vote in order to pick up his ballot. The -- three-day prior to election, he must have been registered 20 days prior to the election as every other elector in the state. So, we're talking about 20 days where the registration is cut off. The new resident must comply with that also. So, Colorado has not cut themselves down to three days in view of their two-month residency requirement for new residents. We also would contend that Mr. Hall does not represent even a class in Colorado. On October 22, 1968, after filing his original complaint on October 4, 1968, Mr. Hall filed a motion that he be considered a member of the class. This was done on October 22, 1968. The District Court never ruled as to whether he was or was not representative of a class. The motion was never ruled upon. Therefore, we would have to say, under the law, since he wasn't affirmatively declared by the District Court representative of a class, that he is not in fact representative of a class in the State of Colorado.
Thurgood Marshall: Suppose Mr. Hall leaves Colorado tomorrow and returns 30 days before election day in 1972.
Bernard R. Baker: Yes.
Thurgood Marshall: He couldn't vote?
Bernard R. Baker: Oh, yes, Your Honor. He is dully registered to vote now.
Thurgood Marshall: But he leaves tomorrow.
Bernard R. Baker: And becomes a resident of another state.
Thurgood Marshall: Becomes a resident of another state.
Bernard R. Baker: Yes, sir.
Thurgood Marshall: And returns to Colorado, well, would that be 59 days before.
Bernard R. Baker: Yes, Your Honor, two months. He would then once again, having lost his residency, have to pick it up once again and be such a resident for two months prior to the election.
Thurgood Marshall: He would not be able to vote.
Bernard R. Baker: Not if he returned within 30 days and established a new residency in Colorado at that time.
Thurgood Marshall: So, this case is moot.
Bernard R. Baker: Your Honor, we certainly declare that this case -- maintain that this case is moot as to all of the issues.
Thurgood Marshall: Well, would you think for a moment and tell me how a person in Mr. Hall's situation could ever litigate this matter?
Bernard R. Baker: He can litigate it as he did at the District Court level.
Thurgood Marshall: And if he loses there, is there any way under the sun for him to get here before election?
Bernard R. Baker: Your Honor, I would feel that the suit should have been filed in a timely manner so that time could've been allowed for review, although your point is certainly well taken, Mr. Justice Marshall, namely that it would be very difficult. It would be very difficult for the matter to be heard when the suit is filed in October and the election is held in November.
Thurgood Marshall: You wouldn't go as far as impossible, would you?
Bernard R. Baker: No, sir. Now, going to this mootness question, we rely upon the authority of the landmark case of Mills v. Green. That case holding of course that it was now impossible to grant any effectual relief and that did involve an election, the old Mills v. Green case decided in 1895 by this Court. And, I'm sure the Court is well aware of the law in this case that when it's impossible to give an effective remedy because of changed conditions, the Court is reluctant, well, in this case says “we'll not consider -- we'll not proceed to a formal judgment but we'll dismiss the appeal.” Your Honors, in view of the six-month amendment down to two months, we feel this is really the telling point in this case. Colorado, by its legislative enactment on April 23 of this year, amended their statute down to two months. Apparently, the legislature of Colorado themselves thought that action needed to be taken to lower that requirement. They took such action, signed in the law. We now have a two-month requirement. And, under the precedence of this Court, namely the Carpenter v. Wabash Railway case, 309 US 23 at 1940 and the Hines v. Davidowitz outlined in our brief at 312 US 52 1941 case, this Court held that when a subsequent legislative enactment occurs which has a bearing upon a case, the case, when it goes up on appeal, must be considered in light of the subsequent legislative enactment. And, therefore, the issue before this Court now is really moving into the equal protection argument, the reasonableness of two months.
Potter Stewart: That's never been passed on the Registration Board in Colorado?
Bernard R. Baker: No, Your Honor. Six months was the basis of the Federal Court decision in Denver in October of --
Byron R. White: But they held the six months reasonable.
Bernard R. Baker: They held the six months reasonable, Your Honor, yes. We go back to the constitution itself. We don't feel that any part of the constitution should be downgraded, as the term was used here. With -- the constitution is a living instrument all alive, and Article 2 Section 1, of course, gives the states the power, the responsibility to establish voter qualifications, both in federal and state elections. Now, with this constitutional prerogative, many cases of course have interpreted this prerogative and have not downgraded this prerogative one iota. This is a viable prerogative, a responsibility. Going as far back of course as Pope v. Williams and Miner v. Happersett, 1875 case, Pope v. Williams 1904, and then working forward all away up to Drueding v. Devlin where Drueding took this same case, the same facts, almost identical. The issue is certainly identical. There, a one-year residency requirement in the State of Maryland was held -- affirmed per curium by this Court in March of 1965, upholding a three-judge District Court for the District of Maryland. And, the District Court in Maryland said that the one-year is not unreasonable. Now, I'm not going to argue for one year. I'm not really going to argue for six months. Colorado argues for the present law. Colorado -- El Paso County, Colorado is the appellee in this case and we have a two-month law and we are here to uphold that law.
Thurgood Marshall: Didn't the Maryland say in the last paragraph that we've been assured by the Attorney General that the General Assembly of Maryland is going to change the law?
Bernard R. Baker: There was some mention made to that.
Thurgood Marshall: And didn't he also say that the plaintiff did a wonderful job in getting it changed, assuming that they would change it?
Bernard R. Baker: Yes, I recall there was some reference to that, Mr. Justice Marshall. And who knows what the motives of our legislature were? I certainly do not. I do know that they changed this law and Colorado, of course, is not unhappy that it was changed to two months. Now, going from this fundamental power that rests with the states, we move to the traditional equal protection test. Is there a rational relationship? What state interest is Colorado trying to protect here? Very briefly, Your Honors, if I may refer to our brief. The interest that Colorado is furthering is, one, to preserve the purity of the elections to identify the voter so that double voting could be prevented. Picture the situation of a Manhattan precinct and Newark, New Jersey across the Hudson and Greenwich, Connecticut up the line a short distance away. Where, if there were no state residency requirements whatsoever, there would be no check upon wholesale moving across state lines. We really feel this is a legitimate view. And, if there were no residency requirements whatsoever, our state lines would be a Mecca for voter fraud. We really feel this. Now, if one day is not sufficient to ensure some check on a boarder, how can we say that two months is unreasonable?
Thurgood Marshall: Wouldn't that voter who went from New York to New Jersey be subject to the same criminal penalties of the voter that went from Wart 6 to Wart 8 in New York?
Bernard R. Baker: Yes, Your Honor.
Thurgood Marshall: And do you -- you're sure that that happens?
Bernard R. Baker: But the criminal penalty --
Thurgood Marshall: There is illegal voting in every state, I assume.
Bernard R. Baker: Yes, Your Honor. I'm afraid --
Thurgood Marshall: And I assume that they are punishable and this person would be punishable here.
Bernard R. Baker: He would be punishable, but the election would be over and, no doubt, the electoral college would've met on December 5 of the particular presidential election year and we would have an election on the books.
Thurgood Marshall: That goes where they have great congressional investigations as to vote frauds in certain states. It doesn't affect the election. Now, why is two months necessary?
Bernard R. Baker: Two months is necessary, Your Honor, for this reason. We have a new resident coming into the state. As a new resident, he of course has a residence.
Thurgood Marshall: This resident here bought a home, registered his car, and paid taxes.
Bernard R. Baker: Yes, sir.
Thurgood Marshall: What else would you need to find out about him?
Bernard R. Baker: Well, we feel that tying all these other requisites you've mentioned, Your Honor, go to status and we don't feel that that's at all legitimate. In other words, reasonable residence requirement would go to whether he owns a car or whether he's bought a house. Certainly, this status cries in the face of our system. So, time is the most fair.
Thurgood Marshall: Well, what makes him --
Bernard R. Baker: We need some indicia --
Thurgood Marshall: What makes him such a good citizen in two months?
Bernard R. Baker: In two months, Your Honor, there is time --
Thurgood Marshall: What else could he do in two months, other than to buy a home, register his car, pay his taxes, and do everything that any other resident does? What else could he do under the two-month period?
Bernard R. Baker: The two months is not giving him status to vote, Your Honor. The two months is time to check out whether he is a legitimate resident. This is the primary purpose.
Thurgood Marshall: Couldn't you check these facts in two minutes?
Bernard R. Baker: This is administrative -- this is an administrative reason to protect the period of election.
Thurgood Marshall: How long would it take you to find out that he owned a home, owned a car and registered the car, and paid his taxes?
Bernard R. Baker: On a full-scaled basis, Your Honor, our legislature -- this indicia, our legislature has determined that it takes two months on a new resident to legitimately check out these things. These things take time. We're talking about many people now. We have people employed by our county to check out these things and a new resident, because his ties to the community are newer, it is reasonable that it takes longer to check out his legitimate residence.
Thurgood Marshall: Well, they changed it from six to two.
Bernard R. Baker: Pardon me?
Thurgood Marshall: They changed it from six months to two months.
Bernard R. Baker: Yes, Your Honor.
Thurgood Marshall: Because, obviously, they thought six months was wrong. They'd made a mistake about six months.
Bernard R. Baker: They -- I'm not conceding --
Thurgood Marshall: Couldn't I assume that?
Bernard R. Baker: I won't concede that, Your Honor.
Thurgood Marshall: I could assume that, couldn't I?
Bernard R. Baker: I will concede that in order to make it as far as possible, humanly possible, they took it down to two months. I will not --
Thurgood Marshall: Like the fact that the difference between the six-month period and the two, you had an increase in population, haven't you?
Bernard R. Baker: Colorado, like many states -- western states, is noting a great increase in population.
Thurgood Marshall: So, there's a good possibility we're wrong about the six months. I say that because my second question is --
Bernard R. Baker: Well, I can't second guess the legislature, Your Honor, whether they felt they were wrong or not.
Thurgood Marshall: Well, speaking for myself, if I assumed that maybe they were wrong about the six months, a few years from now they might find they were wrong about the two. Would that follow?
Bernard R. Baker: Well, it could follow, Your Honor.
Speaker: But you apparently don't place any reliance at all on the factor of identification.
Bernard R. Baker: Yes, we certainly do, Your Honor.
Speaker: State --
Bernard R. Baker: This is second --
Speaker: They are state concerns.
Bernard R. Baker: This is secondary. Yes, we certainly do. As a western state, we get back to the states under our system, electing the president. This is the way it's set up. And, since the states elect the president, each state -- when our constitution was formulated, the framers knew that each state had certain interests. This is why the states elect the president. Now, in Colorado, we certainly have unique interests, our western spoke proclamation, our water, our atomic energy experiments that are going on out there that have caused a great deal of concern, our poisonous gas storage in Denver, Colorado at the Rocky Mountain Arsenal. I could go one with many other issues and I'm sure each state has its own unique issues where the state feels that there should be some identification. We don't want that identification to be burdensome and we don't feel that two months is a burdensome identification.
William O. Douglas: If I may ask you this question, is there a difference in the residence requirement for being a state voter in the state elections and in the national?
Bernard R. Baker: Yes, Your Honor. The -- like the majority -- great majority of states, Colorado has a one-year residency requirement for their so-called elections, all elections other than presidential and vice-presidential. Therefore, it was necessary, in order to separate these people, because Colorado did recognize the problem, it was necessary to enact special legislation knocking their requirement down to two months because, and this is just for -- these people only vote for presidential and vice-presidential electors only and the two months, as opposed to one year, for all other elections.
Speaker: To return to the expedience that you've been arguing just a moment.
Bernard R. Baker: Yes, Your Honor.
Speaker: That's the basis of the differentiation between presidential voters and state voters.
Bernard R. Baker: We would namely --
Speaker: Now that your state concern with the state.
Bernard R. Baker: We would maintain that election, when it's wholly local, of course the local interest predominate in that particular election and, therefore, it requires a one-year identification with these particular local problems. A presidential election of course, being the embodiment of the federal system, that is, the national issues and the state issues and the nexus between the two, that the balance goes to these national issues enough to bring it down to two months.
Speaker: As a matter of degree.
Bernard R. Baker: Yes, Your Honor.
Byron R. White: Does Colorado have a residence res -- retention law in the event -- assume a Colorado resident moves out to Kansas, does Colorado permit him to retain his residence for voting purposes for any period of time? Some states do, don't they?
Bernard R. Baker: Colorado -- if a person manifests his desire to establish residence elsewhere, of course, he has lost his Colorado residence.
Byron R. White: And so you don't let him --
Bernard R. Baker: But we go back to fundamental common law test, Your Honor, as to whether one has lost his residence or not. I believe that's our law.
Byron R. White: I suppose you might argue that the proper defendant in a case like this should've been California.
Bernard R. Baker: We've often thought that, Your Honor.
Byron R. White: I take it --
Bernard R. Baker: California would --
Byron R. White: That would've accommodated everybody's interest.
Bernard R. Baker: California, very much, was at issue in this case also. Now, if I may, moving on to my example of the Manhattan precinct, we feel that since one day is not sufficient, certainly, two months -- can we say that two months is an unreasonable period of time? And, we must maintain is two months is certainly reasonable under this equal protection test. Now, whether it's the compelling state interest test or the traditional test, this of course is a very new development in the decisions of this Court. The compelling state interest test, we maintain, does not apply in this particular incident even under the Kramer v. Union Free School District case, the City of Cipriano versus Home, quoted by Mr. Hall, and Williams v. Roads because these cases placed these other requirements on voting, namely property and so on. Over and above a superstructure, if you have, over and above the fundamental requirements of residency, United States citizenship, and age, these three fundamental things are fundamental. Now, these other cases dealt with things superimposed over and above different requirements there, they apply the compelling state interest status.
Byron R. White: So you're -- but your test isn't critical in this case.
Bernard R. Baker: We feel, Your Honor, it's the rationally, traditional, reasonable --
Byron R. White: I know but the -- which --
Bernard R. Baker: Furtherance of legitimate status.
Byron R. White: The question of which test is to be applied isn't critical.
Bernard R. Baker: We feel it is not, Your Honor, because we feel that we do have compelling interest. That's a fortiori.
Byron R. White: It could be -- I take it, the appellant concedes that some period justified by helping the interest.
Bernard R. Baker: We know that mentions in his brief that some period of time is necessary.
Warren E. Burger: But didn't he think fix that at three days?
Bernard R. Baker: Pardon me, Your Honor?
Warren E. Burger: Didn't he fix that at three days?
Bernard R. Baker: He mentioned the three days. He didn't specifically hang his head at three days reading his brief, but he mentions the three day as -- that Colorado apparently only needs three days which is incorrect. We have 20 days for everybody at the minimum because the three-day person, the new resident must have a 20-day registration. Your Honor, moving on to the Privileges and Immunities Clause, we hold that there's no case that has ever held that the right to vote for president and vice-president is a federal privilege and immunity. There's no case that has ever held that. In fact, this case has held that the right to vote for president and vice-president is something springing out of state citizenship. Now, you take your congressional elections, your Congress. There, under Article 1 Section 4, setting up the Congress originally, there the federal government was given certain prerogatives of control. It was a dual thing, the Congressional, but the president and vice-president were given exclusively to the states. So, they're in a different category and those cases like ex parte Yarbrough and so on that are quoted by appellant apply only to Congressional elections and do not apply to the presidential and vice-presidential elections. And, I would please ask that you please consider this at your decision. Very briefly, to conclude, we --
Warren E. Burger: I think we'll terminate at this point, counsel, unless you're ready to conclude. You were not quite finished I think when we recessed.
Bernard R. Baker: May it please the Court, Mr. Chief Justice, and please the other members of the Court. To synopsize what Colorado's position is in this matter, we've outlined the state interest that we feel are wholly legitimate and reasonable that we are trying to further in our two-month residency requirement the administrative reasons, the feeling that it takes two months when thousands of voters a day in El Paso County Register in the last days prior to the election with a new resident, since his ties to the community are two, it takes that much additional time to check his legitimate status out. Then, going to the member of the community argument, weighing the state citizenship in the one hand, the federal citizenship on the other hand, the dual citizenship of a new resident of Colorado, we feel that two months does, to some small degree, identify him with the problems of Colorado so that when he casts his vote, Colorado interest have some bearing in his decision as a new resident of that state since, of course, the president under the constitution.
Hugo L. Black: What was the reasoning behind the passing of this Act?
Bernard R. Baker: The two-month Act, Your Honor?
Hugo L. Black: Yes.
Bernard R. Baker: The reasoning behind it, to further the state interest that I have mentioned. First, we have the one-year general residency requirement going down to two months for the new resident for president and vice-president.
Hugo L. Black: Only?
Bernard R. Baker: Yes, and the reasoning is to bring it down to two months so that, since his federal citizenship has such a predominant interest in his vote as well as some balance to the citizenship aspect, that two months was a reasonable requirement to fulfill both objectives, fulfill both aspirations, both citizenships, both state and federal.
Hugo L. Black: Is he required to be -- have been a resident with the intention of remaining a resident?
Bernard R. Baker: Oh yes, our test for residency, of course, we utilize the traditional common law test for residency, that is, actual, physical presence plus the intention to remain.
Warren E. Burger: When was the -- when was the six-month statute passed? How long ago?
Bernard R. Baker: That was passed, Your Honor, back in 1963, to the best of my knowledge.
Warren E. Burger: It came from one year down to six-months?
Bernard R. Baker: Yes.
Warren E. Burger: And then down to two.
Bernard R. Baker: Right, following a --
Warren E. Burger: I suppose modern communication, modern methods of --
Bernard R. Baker: We are computerizing now.
Warren E. Burger: Getting information around enters into this too.
Bernard R. Baker: We have been computerizing that interim which I would feel would be one of the reasons the legislature amended down. We are not computerized in many counties in Colorado. El Paso County is partially computerized and become more so.
Hugo L. Black: What was the reasoning behind the six-month statute?
Bernard R. Baker: Once again, going down, first, starting with the one-year to come down to six months to give those new residents --
Hugo L. Black: You mean you fought down the one year with reference to a resident?
Bernard R. Baker: One year being the general requirement for local elections.
Hugo L. Black: That's the general requirement.
Bernard R. Baker: Yes, Your Honor.
Hugo L. Black: That didn't distinguish between who was voting for president in those voting requirements.
Bernard R. Baker: The six-month statute distinguished between those voting for president.
Hugo L. Black: It did but was it the first one?
Bernard R. Baker: It was the first one, Your Honor, yes, following a recommendation of the National Conference of Commissioners on uniformed state laws. In other words, six months was the time they were talking about in the early ‘60s, and whether they've come off of that or not, I don't know.
Hugo L. Black: On what reason, what reason did they give?
Bernard R. Baker: The reason being that we are a more mobile society in that a state, in protecting its interest, make every possible concession to lower those voting requirements down so that more people could vote for president and vice-president and not be disenfranchised. In other words, on the one hand, preserve the compelling state interest, the reasonable requirements. On the other hand, giving that voter as much of a break as possible at new residence so that he can vote if he fulfill certain minimum residency requirements.
Hugo L. Black: I presume that in some it could be found to prevent duplication of voting in different states for the lines that are always close together, that that argument would support a one-day.
Bernard R. Baker: Well, this is the problem, Your Honor. The states have this responsibility under the constitution and one day certainly would not be enough. We feel that two months --
Hugo L. Black: It wouldn't be enough to show residence.
Bernard R. Baker: Pardon me?
Hugo L. Black: It wouldn't be enough to show residence.
Bernard R. Baker: Yes, Your Honor, that's correct.
Hugo L. Black: But it would be enough to show that he's a man away from his home. We let him vote, if that's the argument behind the whole law.
Bernard R. Baker: Our argument is that it takes a certain amount of time to ensure that this voter votes once and only once in a presidential election. He votes through a state. And, we've determined that two months is a reasonable time to make these checks to ensure that he is, in fact, a resident of Colorado and will not vote elsewhere.
Potter Stewart: That's not your only justification.
Bernard R. Baker: Oh no, Your Honor, but that's the compelling one and there are other compelling ones also.
Thurgood Marshall: How can you be sure he won't vote some place else?
Bernard R. Baker: We, in that two-month period, can check back to the state of his former residence to see whether to inform that other state that he is going to vote in Colorado, that he is registered to vote as a new resident and that, therefore, it's our understanding in Colorado that you, California, or you, New York, or you, Illinois, he's not going to vote there, and this is done. The states are sending out letters doing this.
Thurgood Marshall: Can't you do that in 20 days?
Bernard R. Baker: 20 days counts awfully short, Your Honor, but --
Thurgood Marshall: There must be some reasoning toward the 20-day rule.
Bernard R. Baker: The 20-day rule is the general registration requirement, Your Honor.
Thurgood Marshall: Well, that's the only reason to that.
Bernard R. Baker: That's the general registration requirement. The new resident, of course, we need more indicia of evidence of his residence.
Warren E. Burger: Thank you.
Bernard R. Baker: That's all.
Warren E. Burger: Thank you, counsel.
Bernard R. Baker: Thank you very much, Your Honor.
Warren E. Burger: Mr. Hall, do you have any -- do we have any more time? You have one minute, Mr. Hall.
Richard A. Hall: Yes, sir. Very briefly, Your Honor. I'm sorry if I misstated the Colorado law. I quoted what I thought was the controlling statute that's contained on page 31 of my brief, and I did understand that they could apply up to three days before the election. On the question of mootness, Mr. Baker relies on Mills versus Green which was decided in 1895. I would rely on Moore versus Ogilvie which was decided six months ago, which held that a continuing problem such as this and that case involved Illinois election law, was not moot. I think the fact the District Court upheld the reasonableness of six months is not controlling because they did so under the traditional test and did apply the compelling interest test that now applies to the right to vote. Any reliance on the case of Pope versus Williams is misplaced because that particularly left opened the question of presidential electors. This question of voting in more than one state, we do not argue against the requirement that you be a resident of the state in which you vote. And, as in Carrington versus Rash, the state can impose reasonable requirements to see that you're a resident, but we would contend that the waiting period is not reasonable. Thank you very much, Your Honor.
Warren E. Burger: Thank you. Thank you, Gentlemen, for your submission. The case is submitted.