Opinion of Justices of Supreme Judicial Court

303 A.2d 452 (1973)

OPINION OF the JUSTICES OF the SUPREME JUDICIAL COURT Given Under the Provisions of Section 3 of Article VI of the Constitution.

Supreme Judicial Court of Maine.

April 10, 1973.

*453 HOUSE ORDER PROPOUNDING QUESTIONS

Questions Propounded by the House in an Order Dated March 21, 1973.

Whereas, it appears to the House of Representatives of the 106th Legislature that the following are important questions of law, and that the occasion is a solemn one; and

Whereas, Article II, Section 1, Constitution of Maine, makes certain provisions regarding durational residency requirements for voting; and

Whereas, the decision of the Supreme Court of the United States in Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274, seems to cast some doubt on the validity under the Constitution of the United States of the durational residency requirements in Article II, Section 1, Constitution of Maine; and

Whereas, there is pending before the House of Representatives of the 106th Legislature a "RESOLUTION, Proposing an Amendment to the Constitution Reducing Residence Requirement for Voting to Thirty Days" (House Paper 9, Legislative Document 9); and

Whereas, it is important that the Legislature be informed as to the validity under the Constitution of the United States of the present provision in Article II, Section 1, Constitution of Maine, concerning durational residency requirements and of the proposed amendment thereto; now, therefore, be it

Ordered, that in accordance with the provisions of the Constitution of the State, the Justices of the Supreme Judicial Court are hereby respectfully requested to give the House of Representatives their opinion on the following questions:

1. Is the present provision concerning durational residency requirements for voting in Article II, Section 1, Constitution of Maine, valid under the Constitution of the United States?

2. Would the "RESOLUTION Proposing an Amendment to the Constitution Reducing Residence Requirement for Voting to Thirty Days" (House Paper 9, Legislative Document 9) if passed by the Legislature and adopted by the electorate be valid under the Constitution of the United States?

*454 =============================================================================== ONE HUNDRED AND SIXTH LEGISLATURE =============================================================================== Legislative Document No. 9 =============================================================================== H.P. 9 Office of the Clerk of the House Filed November 20, I972 under Joint Rule 6 by Mr. Ross of Bath. To be printed and delivered to the House of Representatives of the Io6th Legislature. BERTHA W. JOHNSON, Clerk Presented by Mr. Ross of Bath. ============================================================================== STATE OF MAINE IN THE YEAR OF OUR LORD NINETEEN HUNDRED SEVENTY-THREE RESOLUTION, Proposing an Amendment to the Constitution Reducing Residence Requirement for Voting to Thirty Days.

Constitutional amendment. Resolved: Two-thirds of each branch of the Legislature concurring, that the following amendment to the Constitution of this State be proposed:

Constitution, Article II, Section I, amended. The first sentence of section I of Article II of the Constitution, as amended, is further amended to read as follows:

Every citizen of the United States of the age of eighteen years and upwards, excepting persons under guardianship for reasons of mental illness, having his or her residence established in this State for the term of six months thirty days next preceding any election, shall be an elector for Governor, Senators and Representatives, in the city, town or plantation where his or her residence has been established for the term of three months thirty days next preceding such election, and he or she shall continue to be an elector in such city, town or plantation for the period of three months thirty days after his or her removal therefrom, if he or she continues to reside in this State during such period, unless barred by the provisions of the second paragraph of this section; and the elections shall be by written ballot.

Form of question and date when amendment shall be voted upon. Resolved: That the aldermen of cities, the selectmen of towns and the assessors of the several plantations of this State are empowered and directed to notify the inhabitants of their respective cities, towns and plantations to meet in the manner prescribed by law for calling and holding biennial meetings of said inhabitants for the election of Senators and Representatives at a special state-wide election on the Tuesday following the first Monday of November following the passage of this resolution to give in their votes upon the amendment proposed in the foregoing resolution, and the question shall be:

"Shall the Constitution be amended as proposed by a resolution of the Legislature reducing residence requirement for voting to thirty days?"

The inhabitants of said cities, towns and plantations shall vote by ballot on said question, and shall indicate by a cross or check mark placed against the *455 words "Yes" or "No" their opinion of the same. The ballots shall be received, sorted, counted and declared in open ward, town and plantation meetings and returns made to the office of the Secretary of State in the same manner as votes for Governor and Members of the Legislature, and the Governor and Council shall review the same, and if it shall appear that a majority of the inhabitants voting on the question are in favor of the amendment, the Governor shall forthwith make known the fact by his proclamation, and the amendment shall thereupon, as of the date of said proclamation, become a part of the Constitution.

Secretary of State shall prepare ballots. Resolved: That the Secretary of State shall prepare and furnish to the several cities, towns and plantations ballots and blank returns in conformity with the foregoing resolution, accompanied by a copy thereof.

STATEMENT OF FACT

The purpose of the Constitutional Resolution is to reduce the residency requirement of new residents within the State from 6 months to 30 days and the residency requirements of new residents within a municipality from 3 months to 30 days.

ANSWERS OF THE JUSTICES

To the Honorable House of Representatives of the State of Maine:

In compliance with the provisions of Section 3 of Article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit the following answers to the questions propounded on March 22, 1973.

QUESTION I: Is the present provision concerning durational residency requirements for voting in Article II, Section 1, Constitution of Maine, valid under the Constitution of the United States?

ANSWER: We are unable to give a direct answer to this question because of an erroneous assumption upon which it is based. It is clear to us, both from the wording of the question and the wording of the proposed pending Resolution before the Legislature, that the Legislature assumes that the Constitution of Maine, Article II, Section 1, still retains a durational residency requirement for voting. We respectfully direct the attention of the Legislature to the action of the Chief Justice of the Supreme Judicial Court, taken recently pursuant to Article X, Section 6. That Section directs him to "arrange the Constitution, * * *, omitting all sections, clauses and words not in force * * *." (Emphasis supplied.) It being apparent that the provision for a durational residency requirement for voting of six months in the State and three months in a city, town or plantation, formerly included in Article II, Section I, was no longer valid and effective in the light of Dunn v. Blumstein (1972) 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274, the Chief Justice properly deleted this requirement from Section 1 as shown by his report to the Legislature. It is apparent that Section 1 as thus reworded satisfies all requirements of the Equal Protection Clause of the 14th Amendment of the United States Constitution. We take this occasion to direct the attention of the Legislature to 21 M.R.S.A., Sec. 241(4), which suffers from the same constitutional infirmity as did the deleted provisions of the Constitution of Maine and which has not as yet been repealed. Attention is also directed to the incorporation in 21 M.R.S.A., Sec. *456 102, by reference, of 21 M.R.S.A., Sec. 241 (4), thus creating the need for legislative reconsideration for the reasons stated above.

QUESTION II: Would the "RESOLUTION Proposing an Amendment to the Constitution Reducing Residence Requirement for Voting to Thirty Days" (House Paper 9, Legislative Document 9) if passed by the Legislature and adopted by the electorate be valid under the Constitution of the United States?

ANSWER: We answer in the negative. By the provisions of 21 M.R. S.A., Sec. 631, the Legislature has established various time requirements for registration based upon municipal population. In so doing the Legislature has expressed its judgment as to the time required under varying circumstances in which to complete the administrative tasks of voter registration. The holdings of Dunn v. Blumstein, supra, and Marston v. Lewis (Opinion March 19, 1973), ___ U.S. ___, 93 S. Ct. 1211, 35 L. Ed. 2d 627, must be read as permitting a durational residency requirement only upon a showing of a compelling State interest. Where the only State interest shown is the State's need to complete the administrative tasks of registration, these cases hold that a State imposed durational residency requirement is constitutionally permissible but only to the extent that it is "tied to" and does not exceed in duration prior to election day such a reasonable period for completion of the "registration process" as is "necessary to achieve the State's legitimate goals." Marston, supra. We are not aware of any other compelling State interest which Maine has which would justify an exception to that rule. The constitutional invalidity of this proposed amendment to the Constitution of Maine therefore stems from the fact that the durational residency requirement of thirty days therein provided exceeds the various time limits contained in the statutory registration requirements which presently reflect "a state legislative judgment" that no longer period is required in which effectively to complete the "registration process."

Dated at Portland, Maine, this tenth day of April, 1973.

Respectfully submitted:

ARMAND A. DUFRESNE, Jr. DONALD W. WEBBER RANDOLPH A. WEATHERBEE CHARLES A. POMEROY SIDNEY W. WERNICK JAMES P. ARCHIBALD