U.S. Supreme Court Harman v. Forssenius, 380 U.S. 528 (1965) Harman v. Forssenius No.

360 Argued March 1-2, 1965 Decided April 27, 1965 380 U.S. 528 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Syllabus In anticipation of the promulgation of the Twenty-fourth Amendment abolishing the poll tax as a requirement for voting in federal elections, Virginia eliminated the poll tax as an absolute prerequisite to voting in federal elections and in its stead substituted a provision whereby the federal voter could qualify either by paying the customary poll tax or by filing a certificate of residence six months before the election. In suits attacking the constitutionality of the Virginia statutes, the three-judge District Court refused to abstain to afford the Virginia courts an opportunity to pass on underlying issues of state law and to construe the statutes involved. Reaching the merits, the District Court held the certificate of residence requirement invalid, as an additional "qualification" imposed solely upon federal voters in violation of Art. I, 2, and the Seventeenth Amendment. Held: 1. The District Court did not abuse its discretion in refusing to abstain: the state statutes are clearly and unambiguous, the rights allegedly impaired are the fundamental civil rights of a broad class of citizens, and the immediacy of the problem facing the District Court was evident. Pp. 380 U. S. 534-537. 2. The certificate of residence requirement is a material requirement imposed upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax, and thus constitutes an abridgment of the right to vote in violation of the Twenty-fourth Amendment. Pp. 380 U. S. 538-544. (a) The poll tax is abolished absolutely as a prerequisite to voting in federal elections, and no equivalent or milder substitute may be imposed. P. 380 U. S. 542. (b) The statutory scheme may not be saved on the ground that the certificate of residence requirement is a necessary method of proving residence, for constitutional deprivations may not be justified by some remote administrative benefit to the State. Pp. 380 U. S. 542-544. 235 F.Supp. 66, affirmed. chanroblesvirtualawlibrary Page 380 U. S. 529 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. We are called upon in this case to construe, for the first time, the Twenty-fourth Amendment to the Constitution of the United States:

"The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax." The precise issue is whether 24-17.2 of the Virginia Code -- which provides that, in order to qualify to vote in federal elections, one must either pay a poll tax or file a witnessed or notarized certificate of residence [Footnote 1] -- contravenes this command. chanroblesvirtualawlibrary Page 380 U. S. 530 Prior to the adoption of the Twenty-fourth Amendment, the Virginia Constitution (Art. II, 18-20) and statutes (Va.Code Ann. 24-17, 24-67 (1950)) established uniform standards for qualification for voting in both federal and state elections. The requirements were: (1) United States citizenship; (2) a minimum age of twenty-one; (3) residence in the State for one year, in the city or county for six months, and in the voting precinct for thirty days; and (4) payment "at least six months prior to any election . . . to the proper officer all State Page 380 U. S. 531 poll taxes ($1.50 annually) assessed or assessable against him for three years next preceding . . . such election. [Footnote 2]" The statutes further provided for permanent registration. [Footnote 3] Once registered, the voters could qualify for elections in subsequent years merely by paying the poll taxes. In 1963, in anticipation of the promulgation of the Twenty-fourth Amendment, the Governor of Virginia convened a special session of the Virginia General Assembly. On November 21 of that year, the General Assembly enacted two Acts [Footnote 4] designed "(1) to enable persons to register and vote in federal elections without the payment of poll tax or other tax, as required by the 24th Amendment to the Constitution of the United States, (2) to continue in effect in all other elections the present registration and voting requirements of the Constitution of Virginia, and (3) to provide methods by which all persons registered to vote in federal or other elections may prove that they meet the residence requirements of 18 of the Constitution of Virginia. [Footnote 5]" "No changes were made with regard to qualification for voting in state elections. With regard to federal elections, however, the payment of a poll tax as an absolute prerequisite to registration and voting was eliminated, Page 380 U. S. 532 and a provision was added requiring the federal voter to file a certificate of residence in each election year or, at his option, to pay the customary poll taxes. The statute provides that the certificate of residence must be filed no earlier than October 1 of the year immediately preceding that in which the voter desires to vote, and not later than six months prior to the election. The voter must state in the certificate (which must be notarized or witnessed) his present address, that he is currently a resident of Virginia, that he has been a resident since the date of his registration, and that he does not presently intend to remove from the city or county of which he is a resident prior to the next general election. Va.Code Ann. 2417.2 (1964 Supp.). Thus, as a result of the 1963 Acts, a citizen, after registration, may vote in both federal and state elections upon the payment of all assessable poll taxes. Va.Code Ann. 24-17 (1964 Supp.). If he has not paid such taxes, he cannot vote in state elections, and may vote in federal elections only upon filing a certificate of residence in each election year. Va.Code Ann. 24-17.1, 24-17.2 (1964 Supp.)."

The present appeal originated as two separate class actions, brought by appellees in the United States District Court for the Eastern District of Virginia, attacking the foregoing provisions of the 1963 Virginia legislation as violative of Art. I, 2, of the Constitution of the United States, and the Fourteenth, Seventeenth, and Twenty-fourth Amendments thereto. The complaints, which prayed for declaratory and injunctive relief, named as defendants (appellants here) the three members of the Virginia State Board of Elections and, in one case, the County Treasurer of Roanoke County, Virginia, and, in the other, the Director of Finance of Fairfax County. The jurisdiction of the District Court was invoked pursuant to 28 U.S.C. 1331, 1343, 2201 (1958 ed.), and chanroblesvirtualawlibrary Page 380 U. S. 533 a court of three judges was convened pursuant to 28 U.S.C. 2281, 2284 (1958 ed.). The District Court denied the State's motion to stay the proceedings in order to give the Virginia courts an opportunity to resolve the issues and interpret the statutes involved. The court further denied the State's motions to dismiss for failure to join indispensable parties, for failure to state a claim on which relief could be granted, and for want of a justiciable controversy. [Footnote 6] On the merits, the District Court held that the certificate of residence requirement was "a distinct qualification," or at least an "increase [in] the quantum of necessary proof of residence" imposed solely on the federal voter, and that it therefore violated Art. I, 2, and the Seventeenth Amendment, which provide that electors choosing a Representative or Senator in the Congress of the United States "shall have the qualifications requisite for electors of the most numerous branch of the State legislature." The court rejected the argument that the residency certificate was merely a method, like the poll tax, of proving the residence qualification which is imposed on both federal and state voters. Accordingly, the District Court entered an order declaring invalid the portions of the 1963 Virginia legislation which required the filing of a certificate of residence and enjoining appellants from requiring compliance by a voter with said portions of the 1963 Acts. We noted probable jurisdiction. 379 U.S. 810. We hold that 24-17.2 is repugnant to the Twenty-fourth Amendment, and affirm the decision of the District chanroblesvirtualawlibrary Page 380 U. S. 534 Court on that basis. We therefore find it unnecessary to determine whether that section violates Art. I, 2, and the Seventeenth Amendment. I At the outset, we are faced with the State's contention that the District Court should have stayed the proceedings until the courts of Virginia had been afforded a reasonable opportunity to pass on underlying issues of state law and to construe the statutes involved. We hold that the District Court did not abuse its discretion in refusing to postpone the exercise of its jurisdiction. In applying the doctrine of abstention, a federal district court is vested with discretion to decline to exercise or to postpone the exercise of its jurisdiction in deference to state court resolution of underlying issues of state law. Railroad Comm'n v. Pullman Co., 312 U. S. 496. [Footnote 7] Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federalstate relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication. E.g., Railroad Comm'n of Texas v. Pullman Co., supra. The doctrine, however, contemplates that deference to state court adjudication only be made where the issue of state law is uncertain. Davis v. Mann, 377 U. S. 678, 377 U. S. 690; McNeese v. Board of Education, 373 U. S. 668, 373 U. S. 673-674; City of Chicago v. Atchison, T. & S.F.R. Co., 357 U. S. 77. [Footnote 8] If the state statute chanroblesvirtualawlibrary Page 380 U. S. 535

in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction.Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 375379. Thus, "recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law." England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 375 U. S. 415-416. The state statutes involved here are clear and unambiguous in all material respects. [Footnote 9] While the State suggests that the Virginia tribunals are "unquestionably far better equipped than the lower [federal] court to unravel the skeins of local law and administrative practices in which the Appellees' claims are entangled, [Footnote 10] the State Page 380 U. S. 536 does not point to any provision in the legislation which leaves" "reasonable room for a construction by the Virginia courts which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." Harrison v. NAACP, 360 U. S. 167, 360 U. S. 177. In spite of the clarity of the 1963 legislation, the State argues that the District Court should have abstained on the ground that, if the certificate of residence requirement were found to be a qualification distinct from those specified in the Virginia Constitution, it would be invalid as a matter of Virginia law, and "a crucial federal constitutional issue would accordingly disappear from the case." We find little force in this argument. The section of the Virginia Constitution (Art. II, 18) on which the State relies expressly limits the franchise to citizens who have met certain residency requirements. [Footnote 11] The statute in issue, 24-17.2, requires the voter to certify that he meets those residence requirements. It is thus difficult to envisage how 24-17.2 could be construed as setting forth a qualification not found in the Virginia Constitution. [Footnote 12] chanroblesvirtualawlibrary Page 380 U. S. 537 In addition to the clarity of the Virginia statutes, support for the District Court's refusal to stay the proceedings is found in the nature of the constitutional deprivation alleged and the probable consequences of abstaining. Griffin v. County School Board of Prince Edward County,377 U. S. 218, 377 U. S. 229; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 375-379. The District Court was faced with two class actions attacking a statutory scheme allegedly impairing the right to vote in violation of Art. I, 2, and the Fourteenth, Seventeenth and Twenty-fourth Amendments. As this Court has stressed on numerous occasions, "[t]he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U. S. 533, 377 U. S. 555. The right is fundamental "because preservative of all rights." Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 370. In appraising the motion to stay proceedings, the District Court was thus faced with a claimed impairment of the fundamental civil rights of a broad class of citizens. The motion was heard about two months prior to the deadline for meeting the statutory requirements and just eight months before the 1964 general elections. Given the importance and immediacy of the problem, and the delay inherent in referring questions of state law to state tribunals, [Footnote 13] it is evident that the District Court did not abuse its discretion in refusing to abstain. Griffin v. County School Board of Prince Edward County, 377 U. S. 218, 377 U. S. 229; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 375-379. [Footnote 14] chanroblesvirtualawlibrary

Page 380 U. S. 538 II Reaching the merits, it is important to emphasize that the question presented is not whether it would be within a State's power to abolish entirely the poll tax and require all voters -- state and federal -- to file annually a certificate of residence. Rather, the issue here is whether the State of Virginia may constitutionally confront the federal voter with a requirement that he either pay the customary poll taxes as required for state elections or file a certificate of residence. We conclude that this requirement constitutes an abridgment of the right to vote in federal elections in contravention of the Twenty-fourth Amendment. Prior to the proposal of the Twenty-fourth Amendment in 1962, federal legislation to eliminate poll taxes, either by constitutional amendment or statute, had been introduced in every Congress since 1939. The House of Representatives passed anti-poll tax bills on five occasions and chanroblesvirtualawlibrary Page 380 U. S. 539 the Senate twice proposed constitutional amendments. [Footnote 15] Even though, in 1962, only five States retained the poll tax as a voting requirement, Congress reflected widespread national concern with the characteristics of the tax. Disenchantment with the poll tax was many-faceted. [Footnote 16] One of the basic objections to the poll tax was that it exacted a price for the privilege of exercising the franchise. Congressional hearings and debates indicate a general repugnance to the disenfranchisement of the poor occasioned by failure to pay the tax. [Footnote 17] "While it is true that the amount of poll tax now required to be paid in the several States is small, and imposes only a slight economical obstacle for any citizen who desires to qualify in order to vote, nevertheless, it is significant that the voting in poll tax States is relatively low as compared to the overall population which would be eligible. . . . [T]he historical analysis . . . indicates that, where the poll tax has been abandoned . . . voter participation increased." H.R.Rep.No.1821, 87th Cong., 2d Sess., p. 3. Another objection to the poll tax raised in the congressional hearings was that the tax usually had to be paid long before the election -- at a time when political campaigns were still quiescent -- which tended to eliminate from the franchise a substantial number of voters who did chanroblesvirtualawlibrary Page 380 U. S. 540 not plan so far ahead. [Footnote 18] The poll tax was also attacked as a vehicle for fraud which could be manipulated by political machines by financing block payments of the tax. [Footnote 19] In addition, and of primary concern to many, the poll tax was viewed as a requirement adopted with an eye to the disenfranchisement of Negroes and applied in a discriminatory manner. [Footnote 20] It is against this background that Congress proposed, and three-fourths of the States ratified, the Twenty-fourth Amendment abolishing the poll tax as a requirement for voting in federal elections. Upon adoption of the Amendment, of course, no State could condition the federal franchise upon payment of a poll tax. The State of Virginia accordingly removed the poll tax as an absolute prerequisite to qualification for voting in federal elections, but, in its stead substituted a provision whereby the federal voter could qualify either by paying the customary poll tax or by filing a certificate of residence six months before the election. It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution.Frost & Frost Trucking Co. v. Railroad Comm'n of California, 271 U. S. 583. "Constitutional rights would be of little value if they could be . . . indirectly denied," Smith v. Allwright, 321 U. S. 649, 321 U. S. 664, or "manipulated out of existence." Gomillion v. Lightfoot, 364 U. S. 339,364 U. S. 345. Significantly, the Twenty-fourth Amendment does not merely insure that the franchise shall not be "denied" by reason of failure to pay the poll tax; it expressly guarantees that the

right to vote shall not be "denied or abridged" for that reason. Thus, like the Fifteenth Amendment, the Twenty-fourth "nullifies sophisticated, as well as simple-minded modes" of impairing chanroblesvirtualawlibrary Page 380 U. S. 541 the right guaranteed. Lane v. Wilson, 307 U. S. 268, 307 U. S. 275. "It hits onerous procedural requirements which effectively handicap exercise of the franchise" by those claiming the constitutional immunity. Ibid.; cf. Gray v. Johnson, 234 F.Supp. 743 (D.C.S.D.Miss.). Thus, in order to demonstrate the invalidity of 24-17.2 of the Virginia Code, it need only be shown that it imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax. Section 24-17.2 unquestionably erects a real obstacle to voting in federal elections for those who assert their constitutional exemption from the poll tax. As previously indicated, the requirement for those who wish to participate in federal elections without paying the poll tax is that they file in each election year, within a stated interval ending six months before the election, a notarized or witnessed certificate attesting that they have been continuous residents of the State since the date of registration (which might have been many years before under Virginia's system of permanent registration), and that they do not presently intend to leave the city or county in which they reside prior to the forthcoming election. Unlike the poll tax bill which is sent to the voter's residence, it is not entirely clear how one obtains the necessary certificate. The statutes merely provide for the distribution of the forms to city and county court clerks, and for further distribution to local registrars and election officials. Va.Code Ann. 24-28.1 (1964 Supp.). Construing the statutes in the manner least burdensome to the voter, it would seem that the voter could either obtain the certificate of residence from local election officials or prepare personally "a certificate in form substantially" as set forth in the statute. The certificate must then be filed "in person, or otherwise" with the city or county treasurer. This is plainly a cumbersome procedure. chanroblesvirtualawlibrary Page 380 U. S. 542 In effect, it amounts to annual re-registration, which Virginia officials have sharply contrasted with the "simple" poll tax system. [Footnote 21] For many, it would probably seem far preferable to mail in the poll tax payment upon receipt of the bill. In addition, the certificate must be filed six months before the election, thus perpetuating one of the disenfranchising characteristics of the poll tax which the Twentyfourth Amendment was designed to eliminate. We are thus constrained to hold that the requirement imposed upon the voter who refuses to pay the poll tax constitutes an abridgment of his right to vote by reason of failure to pay the poll tax. The requirement imposed upon those who reject the poll tax method of qualifying would not be saved even if it could be said that it is no more onerous, or even somewhat less onerous, than the poll tax. For federal elections, the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed. Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twentyfourth Amendment, and must fall under its ban. Nor may the statutory scheme be saved, as the State asserts, on the ground that the certificate is a necessary substitute method of proving residence, serving the same function as the poll tax. As this Court has held in analogous situations, constitutional deprivations may not be justified by some remote administrative benefit to the State. Carrington v. Rash, 380 U. S. 89, 96; @ 332 U. S. 646-647. Moreover, in this case the State has not demonstrated that the alternative requirement is in any sense necessary to the proper administration of its election laws. The forty-six States which do not require the payment of poll taxes have apparently found no great administrative burden in insuring that the electorate is limited to bona fide residents. The availability of numerous devices to enforce valid residence requirements -such as registration, use of the criminal sanction, purging of registration lists, challenges and oaths, public scrutiny by candidates and other interested parties -- demonstrates quite clearly the lack of necessity for imposing a requirement whereby persons desiring to vote in federal elections must either pay a poll tax or file a certificate of residence six months prior to the election.

The Virginia poll tax was born of a desire to disenfranchise the Negro. [Footnote 22] At the Virginia Constitutional Convention of 1902, the sponsor of the suffrage plan of which the poll tax was an integral part frankly expressed the purpose of the suffrage proposal: "Discrimination! Why, that is precisely what we propose; that, exactly, is what this Convention was elected for -- to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate. [Footnote 23] Page 380 U. S. 544 The poll tax was later characterized by the Virginia Supreme Court of Appeals as a device limiting 'the right of suffrage to those who took sufficient interest in the affairs of the State to qualify themselves to vote.' Campbell v. Goode, 172 Va. 463, 466, 2 S.E.2d 456, 457. Whether, as the State contends, the payment of the poll tax is also a reliable indicium of continuing residence need not be decided, for even if the poll tax has served such an evidentiary function, the confrontation of the federal voter with a requirement that he either continue to pay the customary poll tax or file a certificate of residence could not be sustained. For federal elections, the poll tax, regardless of the services it performs, was abolished by the Twenty-fourth Amendment. That Amendment was also designed to absolve all requirements impairing the right to vote in federal elections by reason of failure to pay the poll tax. Section 24-17.2 of the Virginia Code falls within this proscription." The judgment of the District Court is Affirmed. Mr. Justice HARLAN agrees with this opinion insofar as it rests on the proposition that the Twenty-fourth Amendment forbids the use of a state poll tax for any purpose whatever in determining voter qualifications in all elections for federal office. He also agrees that this is not a case for application of the abstention doctrine. [Footnote 1] Va.Code Ann. 24-17.2 (1964 Supp.) provides: "Proof of residence required; how furnished. --" "(a) No person shall be deemed to have the qualifications of residence required by 18 of the Constitution of Virginia and 24-17 and 24-17.1 in any calendar year subsequent to that in which he registered under either 24-67 or 24-67.1, and shall not be entitled to vote in any election held in this State during any such subsequent calendar year unless he has offered proof of continuing residence by filing in person, or otherwise, a certificate of residence at the time and in the manner prescribed in paragraph (b) of this section, or, at his option, by personally paying to the proper officer, at least six months prior to any such election in which he offers to vote, all State poll taxes assessed or assessable against him for the three years next preceding that in which he offers to vote. Proof of continuing residence may only be established by either of such two methods." "(b) Any person who shall offer proof of continuing residence by filing a certificate of residence as provided in paragraph (a) of this section, shall file with the treasurer of his county or city not earlier than the first of October of the year next preceding that in which he offers to vote and not later than six months prior to the election, a certificate in form substantially as follows:" " I do certify that I am now and have been a resident of Virginia since the date of my registration to vote under the laws of Virginia, that I am now a resident of _______ (city or county), residing at ________ (street and number, or place of residence therein), and that it is my present intention not to remove from the city or county stated herein prior to the next general election."

"______________________" "Witnessed: ____________________" "or" "Subscribed and sworn to before me this ___ day of ______, 19__." "______________________" "Notary Public" [Footnote 2] Members of the Armed Services are exempt from the poll tax requirement. Va.Code Ann. 24-23.1 (1950). [Footnote 3] Va.Code Ann. 24-52 to 24-119 (1950). Registration, effected by filing an application showing that the statutory requirements had been met ( 24-68), was permanent. Thereafter, in order to qualify for subsequent elections, the voter merely had to pay the assessed poll taxes (unless, of course, his name had been removed from the registration lists for, inter alia, failure to meet the statutory and constitutional requirements ( 24-94 to 24-96)). [Footnote 4] Va.Acts, 1963, Extra Sess., cc. 1 and 2. Chapter 2 is now codified in Title 24 of the Virginia Code. Chapter 1-applicable to 1964 elections only -- has not been codified. [Footnote 5] Va.Acts, 1963, Extra Sess., c. 2, 1(a). [Footnote 6] The motion to dismiss for failure to state a claim on which relief could be granted and for failure to set forth a justiciable controversy was directed solely at the complaint of appellee Henderson, who was registered and had already paid his poll tax. The District Court was patently correct in rejecting the State's argument that appellee Henderson lacked standing to maintain this action. Gray v. Sanders, 372 U. S. 368, 372 U. S. 374-376; Baker v. Carr, 369 U. S. 186, 369 U. S. 204-208. [Footnote 7] See Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324, 377 U. S. 328-329; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 375; England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 375 U. S. 415-416. [Footnote 8] To the same effect, see England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 375 U. S. 415-416; United Gas Pipe Line Co. v. Ideal Cement Co., 369 U. S. 134, 369 U. S. 135-136; Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 323 U. S. 105. [Footnote 9]

The only ambiguity discussed in the briefs of the parties or developed during argument concerned the question whether 24-17.2 required the voter to secure a prepared certificate of residence from local election officials or whether he could personally prepare one "in form substantially" as set forth in the statute. We do not regard this as a material ambiguity having any effect on the constitutional question and accept, for the purposes of this decision, the State's assertion that the voter may secure such a form from local election officials or prepare one according to the statutory description. Infra, p. 380 U. S. 541. [Footnote 10] The State also argues that, since the States are empowered by Art. I, 2, Art. II, 1, and the Seventeenth Amendment to create voter qualifications for federal elections, the question whether a state statutory enactment creates a voter qualification must initially be referred to the state tribunals. True, "[t]he States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised." Lassiter v. Northampton County Board of Elections, 360 U. S. 45, 360 U. S. 50; Pope v. Williams, 193 U. S. 621, 193 U. S. 633; Mason v. Missouri, 179 U. S. 328, 179 U. S. 335. The right to vote, however, is constitutionally protected, Ex parte Yarbrough, 110 U. S. 651, 110 U. S. 663665; Smith v. Allwright, 321 U. S. 649, 321 U. S. 664; and the conditions imposed by the States upon that right must not contravene any constitutional provision or congressional restriction enacted pursuant to constitutional power.Carrington v. Rash, 380 U. S. 89, 380 U. S. 91; Lassiter v. Northampton County Board of Elections, 360 U. S. 45, 360 U. S. 50-51; United States v. Classic, 313 U. S. 299, 313 U. S. 315. The question presented in this case -- whether the Virginia statute imposes a condition upon the franchise which violates the United States Constitution -- is thus quite clearly a federal question. The precise nature of the condition imposed is, of course, a question of Virginia law. However, the statutory requirement is clear and unambiguous, and the sole question remaining is whether the state requirement is valid under the Federal Constitution. [Footnote 11] Va.Const., Art. II, 18, sets forth as a qualification for voting: residency in the State for one year, in the city or county six months, and in the voting precinct thirty days. [Footnote 12] Moreover, the State cites no Virginia decisions in support of its contention that the requirement might constitute an impermissible "qualification" according to Virginia law. [Footnote 13] See Baggett v. Builitt, 377 U. S. 360, 377 U. S. 378-379; England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 375 U. S. 425-426 (DOUGLAS, J., concurring). [Footnote 14] The State also asserts that the District Court erred in denying its motion to dismiss for failure to join indispensable parties. The argument is that the relief requested in the complaints was an injunction against the enforcement of all provisions of the 1963 legislation, which included a system for separate registration of state and federal voters. Va.Code Ann. 24-67, 24-67.1 (1964 Supp.). Since registration in Virginia is entrusted to local registrars, the State argues, their joinder was essential in order to effect the relief requested. Williams v. Fanning, 332 U. S. 490, 332 U. S. 493-494. While the State is correct in asserting that the complaints were phrased broadly enough to encompass all portions of the 1963 Acts, the District Court was certainly warranted in concluding that the basic aim of the complaints was to secure relief from the certificate of residence requirement. The named defendants were clearly capable of effecting this relief, and hence the District Court did not err in denying the motion to dismiss. Ceballos v. Shaughnessy, 352 U. S. 599, 352 U. S. 603-604. Moreover, even accepting the State's broad construction of the complaints, it is apparent that, given the State Board of Elections' power to supervise and to insure "legality" in the election process (Va.Code Ann. 24-25, 24-26, 24-27

(1950)), the local registrars were not indispensable parties. See Louisiana v. United States, 380 U. S. 145, 380 U. S. 151, n. 10. [Footnote 15] H.R.Rep. No. 1821, 87th Cong., 2d Sess., p. 2. [Footnote 16] See generally Ogden, The Poll Tax in the South (1958). [Footnote 17] See, e.g., Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on Amendments to Abolish Tax and Property Qualifications for Electors in Federal Elections, 87th Cong., 2d Sess., 14-22, 48-58 (hereinafter cited as House Hearings); Hearings before a Subcommittee of the Senate Committee on the Judiciary on S.J.Res. 29, 87th Cong., 2d Sess., 33 (hereinafter cited as Senate Hearings). [Footnote 18] See, e.g., House Hearings 14-15. See generally Ogden, supra, note 16 at 44-52. [Footnote 19] See Ogden, supra, note 16 at 59-110. [Footnote 20] See House Hearings 14-22, 26-27, 48-58; Senate Hearings 33. [Footnote 21] See, e.g., the testimony of Judge William Old before the House Judiciary Committee, defending the poll tax as enabling Virginia "to avoid the burdensome necessity for annual registration." House Hearings 81. See also id. at 98-99 (Attorney General Button); 108 Cong.Rec. 4532 (Senator Byrd); 108 Cong.Rec. 4641 (Senator Robertson); R. 73, 76 (Governor Harrison). [Footnote 22] See 2 Virginia Constitutional Convention (Proceedings and Debates, 1901-1092) 2937-3080. [Footnote 23] Statement of the Honorable Carter Glass, id. at 3076-3077. This statement was characteristic of the entire debate on the suffrage issue; the only real controversy was whether the provisions eventually adopted were sufficient to accomplish the disenfranchisement of the Negro. See id. at 2937-3080.

U.S. Supreme Court Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959) Lassiter v. Northampton County Board of Elections No. 584 Argued May 18-19, 1959 Decided June 8, 1959 360 U.S. 45 APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA Syllabus 1. A State may, consistently with the Fourteenth and Seventeenth Amendments, apply a literacy test to all voters irrespective of race or color. Gunn v. United States, 238 U. S. 347. Pp. 360 U. S. 50-53. 2. The North Carolina requirement here involved, which is applicable to members of all races and requires that the prospective voter "be able to read an write any section of the Constitution of North Carolina in the English language," does not, on its face, violate the Fifteenth Amendment . Pp. 360 U. S. 53-54. 248 N.C. 102,102 S.E.2d 853, affirmed. MR. JUSTICE DOUGLAS delivered the opinion of the Court. This controversy started in a Federal District Court. Appellant, a Negro citizen of North Carolina, sued to have the literacy test for voters prescribed by that State declared unconstitutional and void. A three-judge court was convened. That court noted that the literacy test was part of a provision of the North Carolina Constitution that also included a grandfather clause. It said that chanroblesvirtualawlibrary Page 360 U. S. 46 the grandfather clause plainly would be unconstitutional under Guinn v. United States, 238 U. S. 347. It noted, however, that the North Carolina statute which enforced the registration requirements contained in the State Constitution had been superseded by a 1957 Act, and that the 1957 Act does not contain the grandfather clause or any reference to it. But being uncertain as to the significance of the 1957 Act, and deeming it wise to have all administrative remedies under that Act exhausted before the federal court acted, it stayed its action, retaining jurisdiction for a reasonable time to enable appellant to exhaust her administrative remedies and obtain from the state courts an interpretation of the statute in light of the State Constitution. Lassiter v. Taylor, 152 F.Supp. 295. Thereupon, the instant case was commenced. It started as an administrative proceeding. Appellant applied for registration as a voter. Her registration was denied by the registrar because she refused to submit to a literacy test as required by the North Carolina statute. [Footnote 1] She appealed to the County Board of Elections. On the de novo hearing before that Board, appellant again refused to take the literacy test, and she was again denied registration for that reason. She appealed to the Superior Court, which sustained the Board against the claim that the requirement of the literacy test violated the Fourteenth, Fifteenth, and Seventeenth Amendments of the Federal Constitution. Preserving her federal question, she appealed to the North Carolina Supreme Court, which affirmed the lower court. 248 N.C. 102, 102 S.E.2d 853. chanroblesvirtualawlibrary Page 360 U. S. 47

The case came here by appeal, 28 U.S.C. 1257(2), and we noted probable jurisdiction. 358 U.S. 916. The literacy test is a part of 4 of Art. VI of the North Carolina Constitution. That test is contained in the first sentence of 4. The second sentence contains a so-called grandfather clause. The entire 4 reads as follows: "Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language. But no male person who was, on January 1, 1867, or at any time prior thereto, entitled to vote under the laws of any state in the United states wherein he then resided, and no lineal descendant of any such person, shall be denied the right to register and vote at any election in this State by reason of his failure to possess the educational qualifications herein prescribed: Provided, he shall have registered in accordance with the terms of this section prior to December 1, 1908. The General Assembly shall provide for the registration of all persons, entitled to vote without the educational qualifications herein prescribed, and shall, on or before November 1, 1908, provide for the making of a permanent record of such registration, and all persons so registered shall forever thereafter have the right to vote in all elections by the people in this State, unless disqualified under section 2 of this article." Originally, Art. VI contained in 5 the following provision: "That this amendment to the Constitution is presented and adopted as one indivisible plan for the regulation of the suffrage, with the intent and purpose to so connect the different parts, and to make them so dependent upon each other, that the whole shall stand or fall together. " Page 360 U. S. 48 But the North Carolina Supreme Court in the instant case held that a 1945 amendment to Article VI freed it of the indivisibility clause. That amendment rephrased 1 of Art. VI to read as follows: "Every person born in the United States, and every person who has been naturalized, twenty-one years of age, and possessing the qualifications set out in this Article, shall be entitled to vote." That court said that "one of those qualifications" was the literacy test contained in 4 of Art. VI; and that the 1945 amendment "had the effect of incorporating and adopting anew the provisions as to the qualifications required of a voter as set out in Article VI, freed of the indivisibility clause of the 1902 amendment. And the way was made clear for the General Assembly to act." 248 N.C. at 112, 102 S.E.2d at 860. In 1957, the Legislature rewrote General Statutes 163-28 as we have noted. [Footnote 2] Prior to that 1957 amendment, 163-28 perpetuated the grandfather clause contained in 4 of Art. VI of the Constitution, and 163-32 established a procedure for registration to effectuate it. [Footnote 3] But chanroblesvirtualawlibrary Page 360 U. S. 49 the 1957 amendment contained a provision that "[a]ll laws and clauses of laws in conflict with this Act are hereby repealed." [Footnote 4] The federal three-judge court ruled that this 1957 amendment eliminated the grandfather clause from the statute. 152 F.Supp. at 296. The Attorney General of North Carolina, in an amicus brief, agrees that the grandfather clause contained in Art. VI is in conflict with the Fifteenth Amendment. Appellee maintains that the North Carolina Supreme Court ruled that the invalidity of that part of Art. VI does not impair the remainder of Art. VI, since the 1945 amendment to Art. VI freed it of its indivisibility clause. Under that view, Art. VI would impose the same literacy test as that imposed by the 1957 statute, and neither would be linked with the grandfather

clause, which, though present in print, is separable from the rest, and void. We so read the opinion of the North Carolina Supreme Court. Appellant argues that that is not the end of the problem presented by the grandfather clause. There is a provision in the General Statutes for permanent registration in some counties. [Footnote 5] Appellant points out that, chanroblesvirtualawlibrary Page 360 U. S. 50 although the cut-off date in the grandfather clause was December 1, 1908, those who registered before then might still be voting. If they were allowed to vote without taking a literacy test, and if appellant were denied the right to vote unless she passed it, members of the white race would receive preferential privileges of the ballot contrary to the command of the Fifteenth Amendment. That would be analogous to the problem posed in the classic case of Yick Wo v. Hopkins, 118 U. S. 356, where an ordinance unimpeachable on its face was applied in such a way as to violate the guarantee of equal protection contained in the Fourteenth Amendment. But this issue of discrimination in the actual operation of the ballot laws of North Carolina has not been framed in the issues presented for the state court litigation. Cf. Williams v. Mississippi, 170 U. S. 213, 170 U. S. 225. So we do not reach it. But we mention it in passing so that it may be clear that nothing we say or do here will prejudice appellant in tendering that issue in the federal proceedings which await the termination of this state court litigation. We come then to the question whether a State may, consistently with the Fourteenth and Seventeenth Amendments, apply a literacy test to all voters irrespective of race or color. The Court in Guinn v. United States, supra, at 238 U. S. 366, disposed of the question in a few words: "No time need be spent on the question of the validity of the literacy test, considered alone, since, as we have seen, its establishment was but the exercise by the state of a lawful power vested in it not subject to our supervision, and, indeed, its validity is admitted." The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised,Pope v. Williams, 193 U. S. 621, 193 U. S. 633; Mason v. Missouri, 179 U. S. 328, 179 U. S. 335, absent, of course, the discrimination which the Constitution condemns. chanroblesvirtualawlibrary Page 360 U. S. 51 Article I, 2 of the Constitution in its provision for the election of members of the House of Representatives and the Seventeenth Amendment in its provision for the election of Senators provide that officials will be chosen "by the People." Each provision goes on to state that "the Electors in each State shall the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." So, while the right of suffrage is established and guaranteed by the Constitution ( Ex parte Yarbrough, 110 U. S. 651, 110 U. S. 663-665; Smith v. Allwright, 321 U. S. 649, 321 U. S. 661-662), it is subject to the imposition of state standards which are not discriminatory, and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.See United States v. Classic, 313 U. S. 299, 313 U. S. 315. While 2 of the Fourteenth Amendment, which provides for apportionment of Representatives among the States according to their respective numbers counting the whole number of persons in each State (except Indians not taxed), speaks of "the right to vote," the right protected "refers to the right to vote as established by the laws and constitution of the state." McPherson v. Blacker, 146 U. S. 1, 146 U. S. 39. We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record (Davis v. Beason, 133 U. S. 333, 133 U. S. 345-347) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show. [Footnote 6] Literacy chanroblesvirtualawlibrary

Page 360 U. S. 52 and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet, in our society, where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. Cf. Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221, appeal dismissed, 339 U.S. 946. It was said last century in Massachusetts that a literacy test was designed to insure an "independent and intelligent" exercise of the right of suffrage. [Footnote 7] Stone v. chanroblesvirtualawlibrary Page 360 U. S. 53 Smith, 159 Mass. 413-414, 34 N.E. 521. North Carolina agrees. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards. Of course, a literacy test, fair on its face, may be employed to perpetuate that discrimination which the Fifteenth Amendment was designed to uproot. No such influence is charged here. On the other hand, a literacy test may be unconstitutional on its face. In Davis v. Schnell, 81 F.Supp. 872, 873, affirmed, 336 U.S. 933, the test was the citizen's ability to "understand and explain" an article of the Federal Constitution. The legislative setting of that provision and the great discretion it vested in the registrar made clear that a literacy requirement was merely a device to make racial discrimination easy. We cannot make the same inference here. The present requirement, applicable to members of all races, is that the prospective voter "be able to read and write any section of the Constitution of North Carolina in the English chanroblesvirtualawlibrary Page 360 U. S. 54 language." That seems to us to be one fair way of determining whether a person is literate, not a calculated scheme to lay springes for the citizen. Certainly we cannot condemn it on its face as a device unrelated to the desire of North Carolina to raise the standards for people of all races who cast the ballot. Affirmed. [Footnote 1] This Act, passed in 1957, provides in 163-28 as follows: "Every person presenting himself for registration shall be able to read and write any section of the Constitution of North Carolina in the English language. It shall be the duty of each registrar to administer the provisions of this section." Sections 163-28.1, 163-28.2, and 163-28.3 provide the administrative remedies pursued in this case. [Footnote 2] Note 1 supra. [Footnote 3] Section 163-32 provided: "Every person claiming the benefit of section four of article six of the Constitution of North Carolina, as ratified at the general election on the second day of August, one thousand nine hundred, and who shall be entitled to register upon the permanent record for registration provided for under said section four, shall, prior to December first, one thousand nine hundred and eight, apply or registration to the officer charged with the registration of voters as prescribed by law in each regular election to be held in the State for

members of the General Assembly, and such persons shall take and subscribe before such officer an oath in the following form, viz.:" " I am a citizen of the United States and of the State of North Carolina; I am __ years of age. I was, on the first day of January, A.D. one thousand eight hundred and sixty-seven, or prior to said date, entitled to vote under the constitution and laws of the state of _______, in which I then resided (or, I am a lineal descendant of ___________, who was, on January one, one thousand eight hundred and sixty-seven, or prior to that date, entitled to vote under the constitution and laws of the state of _________, wherein he then resided)." [Footnote 4] N.C.Laws 1957, c. 287, pp. 277, 278. [Footnote 5] Section 163-31.2 provides: "In counties having one or more municipalities with a population in excess of 10,000 and in which a modern loose-leaf and visible registration system has been established as permitted by G.S. 163-43, with a full time registration as authorized by G.S. 163-31, such registration shall be a permanent public record of registration and qualification to vote, and the same shall not thereafter be cancelled and a new registration ordered, either by precinct or countywide, unless such registration has been lost or destroyed by theft, fire or other hazard." [Footnote 6] World Illiteracy at Mid-Century, Unesco (1957). [Footnote 7] Nineteen States, including North Carolina, have some sort of literacy requirement as a prerequisite to eligibility for voting. Five require that the voter be able to read a section of the State or Federal Constitution and write his own name. Arizona Rev.Stat. 16-101; Cal.Election Code 220; Del.Code Ann., Tit. 15, 1701; Me.Rev.Stat., c. 3, 2; Mass.Gen.L.Ann., c. 51, 1. Five require that the elector be able to read and write a section of the Federal or State Constitution. Ala.Code, 1940, Tit. 17, 32; N.H.Rev.Stat.Ann. 55:10-55:12; N.C.Gen.Stat. 163-28; Okla.Stat.Ann., Tit. 26, 61; S.C.Code 2362. Alabama also requires that the voter be of "good character" and "embrace the duties and obligations of citizenship" under the Federal and State Constitutions. Ala.Code, Tit. 17, 32 (1955 Supp.). Two States require that the voter be able to read and write English. N.Y. Election Law 150; Ore.Rev.Stat. 247.131. Wyoming (Wyo.Comp.Stat.Ann. 31-113) and Connecticut (Conn.Gen.Stat. 9-12) require that the voter read a constitutional provision in English, while Virginia (Va.Code 24-68) requires that the voting application be written in the applicant's hand before the registrar and without aid, suggestion or memoranda. Washington (Wash.Rev.Code 29.07.070) has the requirement that the voter be able to read and speak the English language. Georgia requires that the voter read intelligibly and write legibly a section of the State or Federal Constitution. If he is physically unable to do so, he may qualify if he can give a reasonable interpretation of a section read to him. An alternative means of qualifying is provided: if one has good character and understands the duties and obligations of citizenship under a republican government, and he can answer correctly 20 of 30 questions listed in the statute (e.g., How does the Constitution of Georgia provide that a county site may be changed?, what is treason against the State of Georgia?, who are the solicitor general and the judge of the State Judicial Circuit in which you live?), he is eligible to vote. Ga.Code Ann. 34117, 34-120.

In Louisiana, one qualifies if he can read and write English or his mother tongue, is of good character, and understands the duties and obligations of citizenship under a republican form of government. If he cannot read and write, he can qualify if he can give a reasonable interpretation of a section of the State or Federal Constitution when read to him, and if he is attached to the principles of the Federal and State Constitutions. La.Rev.Stat., Tit. 18, 31. In Mississippi, the applicant must be able to read and write a section of the State Constitution and give a reasonable interpretation of it. He must also demonstrate to the registrar a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government. Miss.Code Ann. 3213.

U.S. Supreme Court Myers v. Anderson, 238 U.S. 368 (1915) Myers v. Anderson Nos. 8, 9, 10 Argued November 11, 1913 Decided June 21, 1915 238 U.S. 368 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND Syllabus Guinn v. United States, ante, p. 238 U. S. 347, followed as to the effect and operation of the Fifteenth Amendment and that a state may not establish as a standard for exercising suffrage a standard existing prior to the adoption of that Amendment and which was rendered illegal thereby. While the Fifteenth Amendment does not confer the right of suffrage on any class, it does prohibit the states from depriving any person of the right of suffrage whether for federal, state, or municipal elections. chanroblesvirtualawlibrary Page 238 U. S. 369 Election officers who refuse to allow person to exercise their suffrage because of a state law disqualifying them according to a standard made unconstitutional by the Fifteenth Amendment are liable for damages in a civil action under 1979, Rev.Stat. Where the standards fixed for voters are several in number, but are all so interrelated that one cannot be held invalid without affecting the others, the entire provision must fail. Where a statute establishing qualifications for exercising suffrage is unconstitutional, it does not deprive the citizens of the right to vote, as the previously existing statute is unaffected by the attempted adoption of one that is void for unconstitutionality. The so-called Grandfather Clause in the statute of Maryland of 1908 fixing the qualifications of voters at municipal elections in the City of Annapolis based on the right of the citizen or his ancestor to vote at a date prior to the adoption of the Fifteenth Amendment is unconstitutional because the standards then existing have been made illegal by the self-operating force of the Fifteenth Amendment. 182 F.2d 3 affirmed. The facts, which involve the constitutionality under the Fifteenth Amendment to the Constitution of the United States, of the statute of Maryland fixing qualification of voters and containing what has been known as the Grandfather's Clause, and the construction and application of 1979, Rev.Stat., are stated in the opinion. chanroblesvirtualawlibrary Page 238 U. S. 375 MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.

These cases involve some questions which were not in the Guinn case, ante, p. 238 U. S. 347. The chanroblesvirtualawlibrary Page 238 U. S. 376 foundation question, however, is the same -- that is, the operation and effect of the Fifteenth Amendment. Prior to the adoption of the Fifteenth Amendment, the privilege of suffrage was conferred by the Constitution of Maryland of 1867 upon "every white male citizen," but the Fifteenth Amendment, by its self-operative force, obliterated the word "white," and caused the qualification therefore to be "every male citizen," and this came to be recognized by the Court of Appeals of the State of Maryland. Without recurring to the establishment of the City of Annapolis as a municipality in earlier days, or following the development of its government, it suffices to say that, before 1877, the right to vote for the governing municipal body was vested in persons entitled to vote for members of the General Assembly of Maryland, which standard, by the elimination of the word "white" from the Constitution by the Fifteenth Amendment embraced "every male citizen." In 1896, a general election law comprising many sections was enacted in Maryland. Laws of 1896, c. 202, p. 327. It is sufficient to say that it provided for a board of supervisors of elections in each county to be appointed by the governor, and that this board was given the power to appoint two persons as registering officers and two as judges of election for each election precinct or ward in the county. Under this law, each ward or voting precinct in Annapolis became entitled to two registering officers. While the law made these changes in the election machinery, it did not change the qualification of voters. In 1908, an act was passed "to fix the qualifications of voters at municipal elections in the City of Annapolis and to provide for the registration of said voters." Laws of 1908, c. 525, p. 347. This law authorized the appointment of three persons as registers, instead of two, in each election ward or precinct in Annapolis, and provided for the mode in which they should perform their duties, and conferred the right of registration, and consequently the chanroblesvirtualawlibrary Page 238 U. S. 377 right to vote, on all male citizens above the age of twenty-one years who had resided one year in the municipality and had not been convicted of crime, and who came within any one of the three following classes: "1. All taxpayers of the City of Annapolis assessed on the city books for at least $500. 2. And duly naturalized citizens. 2 1/2. And male children of naturalized citizens who have reached the age of twentyone years. 3. All citizens who, prior to January 1, 1868, were entitled to vote in the State of Maryland or any other state of the United States at a state election, and the lawful male descendants of any person who prior to January 1, 1868, was entitled to vote in this state or in any other state of the United States at a state election, and no person not coming within one of the three enumerated classes shall be registered as a legal voter of the City of Annapolis or qualified to vote at the municipal elections held therein, and any person so duly registered shall, while so registered, be qualified to vote at any municipal election held in said city; said registration shall in all other respects conform to the laws of the State of Maryland relating to and providing for registration in the State of Maryland." The three persons who are defendants in error in these cases applied in Annapolis to the board of registration to be registered as a prerequisite to the enjoyment of their right to vote at an election to be held in July, 1909, and they were denied the right by a vote of two out of the three members of the board. They consequently were unable to vote. Anderson, the defendant in error in No. 8, was a negro citizen who possessed all the qualifications required to vote exacted by the law in existence prior to the one we have just quoted, and who on January 1, 1868, the date fixed in the third class in the act in question, would have been entitled to vote in Maryland but for the fact that he was a negro, albeit he possessed none of the chanroblesvirtualawlibrary Page 238 U. S. 378

particular qualifications enumerated by the statute in question. Howard, the defendant in error in No. 9, was a negro citizen possessing all the qualifications to vote required before the passage of the act in question, whose grandfather resided in Maryland and would have been entitled to vote on January 1, 1868, but for the fact that he was a negro. Brown, the defendant in error in No. 10, also had all the qualifications to vote under the law previously existing, and his father was a negro residing in Maryland who would have been able to vote on the date named but for the fact that he was a negro. The three parties thereupon began these separate suits to recover damages against the two registering officers who had refused to register them on the ground that thereby they had been deprived of a right to vote secured by the Fifteenth Amendment, and that there was liability for damages under 1979, Rev.Stat., which is as follows: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state or territory subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges or immunities secured by the Constitution and Laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." The complaints were demurred to, and it would seem that every conceivable question of law susceptible of being raised was presented and considered, and the demurrers were overruled, the grounds for so doing being stated in one opinion common to the three cases (182 F.2d 3). The cases were then tried to the court without a jury, and to the judgments in favor of the plaintiffs which resulted these three separate writs of error were prosecuted. The nonliability, in any event, of the election officers for their official conduct is seriously pressed in argument, and chanroblesvirtualawlibrary Page 238 U. S. 379 it is also urged that, in any event, there could not be liability under the Fifteenth Amendment for having deprived of the right to vote at a municipal election. But we do not undertake to review the considerations pressed on these subjects, because we think they are fully disposed of by the ruling this day made in the Guinn case and by the very terms of 2004, Rev.Stat., when considered in the light of the inherently operative force of the Fifteenth Amendment as stated in the case referred to. This brings us to consider the statute in order to determine whether its standards for registering and voting are repugnant to the Fifteenth Amendment. There are three general criteria. We test them by beginning at the third, as it is obviously the most comprehensive, and, as we shall ultimately see, the keystone of the arch upon which all the others rest. In coming to do so it is at once manifest that, barring some negligible changes in phraseology, that standard is in all respects identical with the one just decided in the Guinn case to be repugnant to the Fifteenth Amendment, and we pass from its consideration and approach the first and a subdivision numbered 2 1/2. The first confers the rights to register and vote free from any distinction on account of race or color upon all taxpayers assessed for at least $500. We put all question of the constitutionality of this standard out of view, as it contains no express discrimination repugnant to the Fifteenth Amendment, and it is not susceptible of being assailed on account of an alleged wrongful motive on the part of the lawmaker or the mere possibilities of its future operation in practice, and because, as there is a reason other than discrimination on account of race or color discernible upon which the standard may rest, there is no room for the conclusion that it must be assumed, because of the impossibility of finding any other reason for its enactment, to rest alone upon a purpose to violate the Fifteenth Amendment. And as, in order to dispose of the case, as chanroblesvirtualawlibrary Page 238 U. S. 380 we shall see, it is not necessary to examine the constitutionality of the other standards, that is, numbers 2 and 2 1/2 relating to naturalized citizens and their descendants, merely for the sake of argument, we assume those two standards, without so deciding, to be also free from constitutional objection, and come to consider the case under that hypothesis.

The result, then, is this: that the third standard is void because it amounts to a mere denial of the operative effect of the Fifteenth Amendment, and, based upon that conception, proceeds to recreate and reestablish a condition which the Amendment prohibits and the existence of which had been previously stricken down in consequence of the self-operative force of its prohibitions, and the other standards separately considered are valid or are assumed to be such, and therefore are not violative of the Fifteenth Amendment. On its face, therefore, this situation would establish that the request made by all the plaintiffs for registration was rightfully refused, since, even if the void standard be put wholly out of view, none of the parties had the qualifications necessary to entitle them to register and vote under any of the others. This requires us, therefore, to determine whether the two first standards which we have held were valid or have assumed to be so must nevertheless be treated as nonexisting as the necessary result of the elimination of the third standard because of its repugnancy to the prohibition of the Fifteenth Amendment. And by this we are brought, therefore, to determine the interrelation of the provisions and the dependency of the two first, including the substandard under the second, upon the third; in other words, to decide whether or not such a unity existed between the standards that the destruction of one necessarily leaves no possible reason for recognizing the continued existence and operative force of the others. In the Guinn case, this subject was also passed upon, and chanroblesvirtualawlibrary Page 238 U. S. 381 it was held that, albeit the decision of the question was, in the very nature of things, a state one, nevertheless, in the absence of controlling state rulings, it was our duty to pass upon the subject, and that, in doing so, the overthrow of an illegal standard would not give rise to the destruction of a legal one unless such result was compelled by one or both of the following conditions: (a) where the provision as a whole plainly and expressly established the dependency of the one standard upon the other, and therefore rendered it necessary to conclude that both must disappear as the result of the destruction of either, and (b) where, even although there was no express ground for reaching the conclusion just stated, nevertheless that view might result from an overwhelming implication consequent upon the condition which would be created by holding that the disappearance of the one did not prevent the survival of the other -- that is, a condition which would be so unusual, so extreme, so incongruous as to leave no possible ground for the conclusion that the death of the one had not also carried with it the cessation of the life of the other. That both of these exceptions here obtain we think is clear: first, because, looking at the context of the provision, we think that the obvious purpose was not to subject to the exactions of the first standard (the property qualification) any person who was included in the other standards, and second, because the result of holding that the other standards survived the striking down of the third would be to bring about such an abnormal result as would bring the case within the second exception, since it would come to pass that every American-born citizen would be deprived of his right to vote unless he was able to comply with the property qualification, and all naturalized citizens and their descendants would be entitled to vote without being submitted to any property qualification whatever. If the clauses as to naturalization were chanroblesvirtualawlibrary Page 238 U. S. 382 assumed to be invalid, the incongruous result just stated would, of course, not arise, but the legal situation would be unchanged, since that view would not weaken the conclusion as to the unity of the provisions of the statute, but, on the contrary, would fortify it. But, it is argued, even although this result be conceded, there nevertheless was no right to recover, and there must be a reversal since, if the whole statute fell, all the clauses providing for suffrage fell, and no right to suffrage remained, and hence no deprivation or abridgment of the right to vote resulted. But this, in a changed form of statement, advances propositions which we have held to be unsound in the Guinn case. The qualification of voters under the Constitution of Maryland existed and the statute which previously provided for the registration and election in Annapolis was unaffected by the void provisions of the statute which we are considering. The mere change, in some respects, of the administrative machinery by the new statute did not relieve the new officers of their duty, nor did it interpose a shield to prevent the operation upon them of the provisions of the Constitution of the United

States and the statutes passed in pursuance thereof. The conclusive effect of this view will become apparent when it is considered that, if the argument were accepted, it would follow that, although the Fifteenth Amendment by its self-operative force, without any action of the state, changed the clause in the Constitution of the State of Maryland conferring suffrage upon "every white male citizen" so as to cause it to read "every male citizen," nevertheless the Amendment was so supine, so devoid of effect, as to leave it open for the legislature to write back by statute the discriminating provision by a mere changed form of expression into the laws of the state, and for the state officers to make the result of such action successfully operative. There is a contention pressed concerning the application chanroblesvirtualawlibrary Page 238 U. S. 383 of the statute upon which the suits were based to the acts in question. But we think, in view of the nature and character of the acts, of the self-operative force of the Fifteenth Amendment, and of the legislation of Congress on the subject, that there is no ground for such contention. Affirmed. MR. JUSTICE McREYNOLDS took no part in the consideration and decision of these cases.

ETHEL C. MACKENZIE, Plff. in Err., v. JOHN P. HARE, Thomas V. Cater, Charles L. Queen, William McDevitt, and John Herman, as and Composing the Board of Election Commissioners of the City and County of San Francisco. 239 U.S. 299 (36 S.Ct. 106, 60 L.Ed. 297) ETHEL C. MACKENZIE, Plff. in Err., v. JOHN P. HARE, Thomas V. Cater, Charles L. Queen, William McDevitt, and John Herman, as and Composing the Board of Election Commissioners of the City and County of San Francisco. No. 79. Argued: November 11 and 12, 1915. Decided: December 6, 1915.

Mr. Justice McKenna delivered the opinion of the court: Mandamus prosecuted by plaintiff in error as petitioner against defendants in error, respondents, as and composing the board of election commissioners of the city and county of San Francisco, to compel her registration as a qualified voter of the city and county, in the appropriate precinct therein. An alternative writ was issued, but a permanent writ was denied upon demurrer to the petition. The facts are not in dispute and are stated by Mr. Justice Shaw, who delivered the opinion of the court, as follows: 'The plaintiff was born and ever since has resided in the state of California. On August 14, 1909, being then a resident and citizen of this state and of the United States, she was lawfully married to Gordon Mackenzie, a native and subject of the kingdom of Great Britain. He had resided in California prior to that time, still resides here, and it is his intention to make this state his permanent residence. He has not become naturalized as a citizen of the United States and it does not appear that he intends to do so. Ever since their marriage the plaintiff and her husband have lived together as husband and wife. On January 22, 1913, she applied to the defendants to be registered as a voter. She was then over the age of twentyone years and had resided in San Francisco for more than ninety days. Registration was refused to her on the ground that, by reason of her marriage to Gordon Mackenzie, a subject of Great Britain, she thereupon took the nationality of her husband and ceased to be a citizen of the United States.' 165 Cal. 778, L.R.A., , 134 Pac. 713, Ann. Cas. 1915B, 261. Plaintiff in error claims a right as a voter of the state under its Constitution and the Constitution of the United States. The Constitution of the state gives the privilege of suffrage to 'every native citizen of the United States,' and it is contended that under the Constitution of the United States every person born in the United States is a citizen thereof. The latter must be conceded, and if plaintiff has not lost her citizenship by her

marriage, she has the qualification of a voter prescribed by the Constitution of the state of California. The question then is. Did she cease to be a citizen by her marriage? On March 2, 1907, that is, prior to the marriage of plaintiff in error, Congress enacted a statute the 3d section of which provides: 'That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United states, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.' 34 Stat. at L. 1228, chap. 2534, Comp. Stat. 1913, 3960. Plaintiff contends that 'such legislation, if intended to apply to her, is beyond the authority of Congress.' Questions of construction and power are, therefore, presented. Upon the construction of the act it is urged that it was not the intention to deprive an American-born woman, remaining within the jurisdiction of the United States, of her citizenship by reason of her marriage to a resident foreigner. The contention is attempted to be based upon the history of the act and upon the report of the committee, upon which, it is said, the legislation was enacted. Both history and report show, it is asserted, 'that the intention of Congress was solely to legislate concerning the status of citizens abroad and the questions arising by reason thereof.' Does the act invite or permit such assistance? Its declaration is general, 'that any American woman who marries a foreigner shall take the nationality of her husband.' There is no limitation of place; there is no limitation of effect, the marital relation having been constituted and continuing. For its termination there is provision, and explicit provision. At its termination she may resume her American citizenship if in the United States by simply remaining therein; if abroad, by returning to the United States, or, within one year, registering as an American citizen. The act is therefore explicit and circumstantial. It would transcend judicial power to insert limitations or conditions upon disputable considerations of reasons which impelled the law, or of conditions to which it might be conjectured it was addressed and intended to accommodate. Whatever was said in the debates on the bill or in the reports concerning it, preceding its enactment or during its enactment, must give way to its language; or, rather, all the reasons that induced its enactment and all of its purposes must be supposed to be satisfied and expressed by its words, and it makes no difference that in discussion some may have been given more prominence than others, seemed more urgent and insistent than others, presented the mischief intended to be remedied more conspicuously than others. The application of the law thus being determined, we pass to a consideration of its validity. An earnest argument is presented to demonstrate its invalidity. Its basis is that the citizenship of plaintiff was an incident to her birth in the United States, and, under the Constitution and laws of the United States, it became a right, privilege, and immunity which could not be taken away from her except as a punishment for crime or by her voluntary expatriation.

The argument to support the contention and the argument to oppose it take a wide range through the principles of the common law and international law and their development and change. Both plaintiff and defendants agree that under the common law originally allegiance was immutable. They do not agree as to when the rigidity of the principle was relaxed. Plaintiff in error contests the proposition which she attributes to defendants in error, 'that the doctrine of perpetual allegiance maintained by England was accepted by the United States,' but contends 'that the prevalent doctrine of this country always has been that a citizen had a right to expatriate himself,' and cites cases to show that expatriation is a natural and inherent right. Whether this was originally the law of this country or became such by inevitable evolution it is not important to inquire. The first view has certainly high authority for its support. In Shanks v. Dupont, 3 Pet. 242, 246, 7 L. ed. 666, 668, Mr. Justice Story, delivering the judgment of the court, said: 'The general doctrine is, that no persons can by any act of their own, without the consent of the government, put off their allegiance, and become aliens.' And Kent, in his Commentaries, after a historical review of the principle and discussion in the Federal courts, declares that 'the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States without the permission of government to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered.' 2 Kent, 14th ed. 49. The deduction would seem to have been repelled by the naturalization laws, and it was certainly opposed to executive opinion; and, we may say, popular sentiment, so determined that it sought its vindication by war. Further discussion would lead us far afield, and, besides, would only have historical interest.
1

The condition which Kent suggested has occurred;

there is a legislative declaration. In 1868 Congress explicitly declared the right of expatriation to have been and to be the law. And the declaration was in effect said to be the dictate of necessity. The act recites that emigrants have been received and invested with citizenship in recognition of the principle of the right of expatriation and that there should be a prompt and final disavowal of the claim 'that such American citizens, with their descendants, are subjects of foreign states.' Rev. Stat. 1999, Comp. Stat. 1913, 3955. But plaintiff says, 'Expatriation is evidenced only by emigration, coupled with other acts indicating an intention to transfer one's allegiance.' And all the acts must be voluntary, 'the result of a fixed determination to change the domicil and permanently reside elsewhere, as well as to throw off the former allegiance, and become a citizen or subject of a foreign power.' The right and the condition of its exercise being thus defined, it is said that the authority of Congress is limited to giving its consent. This is variously declared and emphasized. 'No act of the legislature,' plaintiff says, "can denationalize a citizen without his concurrence," citing Burkett v. McCarty, 10 Bush, 758. 'And the sovereign cannot discharge a subject from his allegiance against his consent except by disfranchisement as a punishment for crime,' citing Ainslie v. Martin, 9 Mass. 454. 'The Constitution does not authorize Congress to enlarge or abridge the rights of citizens,' citing Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204. 'The power of naturalization vested in Congress by the Constitution is a power to confer citizenship, not a power to take it away. . . . The 14th Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict strict the effect of birth declared by the Constitution to constitute a sufficient and complete right to citizenship;' citing United States v. Wong Kim Ark, 169 U. S. at p. 703, 42 L. ed. 910, 18 Sup. Ct. Rep. 456.

It will thus be seen that plaintiff's contention is in exact antagonism to the statute. Only voluntary expatriation, as she defines it, can devest a woman of her citizenship, she declares; the statute provides that, by marriage with a foreigner, she takes his nationality. It would make this opinion very voluminous to consider in detail the argument and the cases urged in support of or in attack upon the opposing conditions. Their foundation principles, we may assume, are known. The identity of husband and wife is an ancient principle of our jurisprudence. It was neither accidental nor arbitrary, and worked in many instances for her protection. There has been, it is true, much relaxation of it, but in its retention as in its origin it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity, and give dominance to the husband. It has purpose, if not necessity, in purely domestic policy; it has greater purpose, and, it may be, necessity, in international policy. And this was the dictate of the act in controversy. Having this purpose, has it not the sanction of power? Plaintiff contends, as we have seen, that it has not, and bases her contention upon the absence of an express gift of power. But there may be powers implied, necessary or incidental to the expressed powers. As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers. But monition is not necessary in the present case. There need be no dissent from the cases cited by plaintiff; there need be no assertion of very extensive power over the right of citizenship or of the imperative imposition of conditions upon it. It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. We concur with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal considerations. As we have seen, the legislation was urged by conditions of national moment. And this is an answer to the apprehension of counsel that our construction of the legislation will make every act, though lawful, as marriage, of course, is, a renunciation of citizenship. The marriage of an American woman with a foreigner has consequences of like kind, may involve national complications of like kind, as her physical expatriation may involve. Therefore, as long as the relation lasts, it is made tantamount to expatriation. This is no arbitrary exercise of government. It is one which, regarding the international aspects, judicial opinion has taken for granted would not only be valid, but demanded. It is the conception of the legislation under review that such an act may bring the government into embarrassments, and, it may be, into controversies. It is as voluntary and distinctive as expatriation and its consequence must be considered as elected. Judgment affirmed. Mr. Justice McReynolds is of opinion that this court is without jurisdiction, and that therefore this writ of error should be dismissed.