Carrington v. Rash

Sergeant CARRINGTON, Herbert N. al., Respondents.

Alan V. RASH et

No. A-10104.

Supreme Court of Texas.

April 29, 1964.

Peticolas, Stephens, Wayne Luscombe & firm, Windle, Jr., with above relátor. Carr, Smith, Waggoner

Tad R. Gen., Mary Wall, Atty. Kate Parker Asst. Gen., Austin, Atty. respondents. STEAKLEY, military the the to forces of United States Justice. following extent: presents for deci This “Any sion the of nonresident whether a of the Armed Forces member military component at entering regular the time of the the United States or thereof, acquire military service of United the States can branches voting long States, may in he is residence Texas so services of United vote the county in military only the in service. We hold that which he or she entering not. time such resided at the long as he or a mem- service so she is Relator, Carrington, Herbert N. ber of Armed Forces.” the Army. sergeant He in the United States military entered the in service the The self-evident was a Alabama. time he resident of pre amendment to the Constitution was Sands, He has been stationed at White person entering military service as vent Mexico, New has in El Paso county a resident of a in Texas from citizen County, Texas, February, since 1962. He acquiring voting in- a different residence purchased pays a home in El period military during Texas of his the Paso, registers taxes in automobile his prevent and to purchased in El and has tax in military an service as a resident citizen of says County Paso. that El He Paso acquiring voting other resi state from residence, we assume period during dence in of mili such is the case. tary intent that the service. Relator Relator desires in vote of the 1954 amendment was to enfranchise Party Primary May Election to be held on the Armed but to all members of Forces Respondent, Alan V. restrict residence those Republican Party Chairman of the Execu- individuals service tive of El Committee Paso and the county from Texas to resi Respondent, Margaret Hockenberry is the dence; words, says in a for other precinct Presiding Judge of the in which change mer nonresident choose and Relator would vote. These de have informed Relator will that he not be nied to do- residents of Texas. We permitted vote because of regard plausible not aas reasonable or General of dated To so nar construction the amendment. 6, 1963, holding November a former rowly be in construe the amendment would position non-resident in provisions history consistent with the not vote respect the Texas Constitution with suffrage by persons mili Prior to the exercise a hundred over mentioned, tary twenty years, no mem As before Constitution of Texas disqualified regular regular ber of members of establishments prior could amend establishments of the vote Texas the 1954 ment, say from in this reasonable This included state. amendment, Legislature both submitting native residents and former non- legislative proper residents. Pursuant people and the favorable vote there action, on, there was submitted in bas from all restrictions intended free adopted by people, vote amend- had service those Suffrage ment to of the Consti- VI of another service as residents state, tution Vernon’s As Ann.St. but to restrict here, relevant first military this amendment Texas to residents of the regular enfranchised members of which. say a construc- This is Texas Consti- time. Such they resided at such to, can, purports effect, tution restrict would, a discrimina- create voting in More- of other states. against residents of the state. course, cannot, extraterritorily of purpose disfranchise- over, very the regulate voting the a personnel long, so limit residence of military of for ment military person entering the a restricting vote service as purpose the of the obvious long county of another state so as such which resident Texas resident of a person remains a citizen of the other state. the the time he entered resided at can, however, The de- Texas Constitution prevent a concentration was to policy clare the that enfranchisement where the voting strength in areas military of military be person of a shall lim- basic service military This are located. bases suffrage if ited the of in the coun- to exercise be frustrated policy would ty person in which the at the time military service individuals of the The effect another state residents of were former may they not former nonresidents is that resi- change choose and their could Texas; acquire the a residence in in Texas. while stationed dence original they upon is that effect military sub service are Persons from change their reassignment, hence ject all times to county one to another. They change to in their actual residence. a place a particular are residents This construction not violate the does compulsion particular period time under of equal protection of Fourteenth clause the orders; they to military not elect do of Amendment the of to the being they are. Their reasons for be where United States in its no state that are, the they interest and their where deny juris- shall within its are, be political they of where cannot life equal protection diction the the laws. of permanent This residents. the same as the question Involved is the reasonable- the personnel are say military is not to or, classification; express ness of the military citizens; say that it is to otherwise, less there is involved personnel sojourn at in the nature so con- whether the 1954 amendment as be, not, place particular are cannot in a strued results discrimination which community in same part local offends the Federal The Su- Constitution. Denying permanent as residents. preme long sense its Court of United States personnel right suffrage in such recognized “the to vote in place they may be stationed— jurisdiction the state state is within denying itself, sense the exercise no to be exercised as the state original resi right in their direct, such upon terms to it course, classi not unreasonable proper, provided, dence —is no dis- seem nondiscriminatory. individuals, established is fication made crimination is between operate upon alike voting restrictions in violation of the Federal Constitution. * * * State, class. Both all members of the A Federal so far concerned, provide and former nonresident lose might resident Constitution is upon change in right to in Texas vote its constitution and laws that none own legal per- residence after but native-born citizens should vote, volun service. The nonresident as the Federal mitted to origi suffrage upon tarily gives up right right his his vote confer the legal one, by changing nal state of residence his and the conditions under which The resident volun are matters residence to Texas. exercised subject by changing prescribe, tarily gives up states alone Constitution, county in of the Federal residence to another conditions (Italics T add- already cxas. stated Pope Williams, 621, 632, ed) circumventing federally protect- ment for 573, 575, 633, 24 S.Ct. 817. The right.” 48 L.Ed. Maryland case involved a statute not believe We do that a resident

provided coming that a nonresident into another state reside must have declaration filed a possesses protected “federally service year he should intent before right” Texas elections while registered to be as a voter have in whatever in the state. The statute unsuccess- district in Texas which he elect fully right violating attacked as a federal change his residence. The Maryland. new of the resident of of the Texas Constitution under review Later, 1959, The States Su- right in the does not result loss of the of the .preme prin- Court foregoing reaffirmed the voting privileges retain his nonresident to saying: ciples, of the under the laws state of his residence service; when he its entered effect “The States have held to long been resident of another state that a enter powers broad have to determine up ing military give cannot later conditions under which * * * residence, and with it the former suffrage may exercised, state, thereupon, while to vote in such absent course the discrimination military service, acquire in the which condemns. * * * in Texas. suffrage So guaranteed by is established and petition for writ of is de- The mandamus * ** subject it is nied. imposition state standards not discriminatory and which CALVERT, J., SMITH, C. J., dis- not contravene that restriction senting. Congress acting pursuant its con- ** powers, imposed. stitutional has SMITH, (dissenting). suggest We do that standards Justice adopt may which a State desires to petition This is an for writ required of is wide But there voters. by Relator, filed Herbert N. Car- mandamus scope jurisdiction.” for exercise of its compel respondents rington, to to determine Northampton County Lassiter v. Board whether not Relator elector Elections, 985, 45, 360 U.S. 79 S.Ct. Republican for the in the 3 L.Ed.2d 1072. party May 2, primary to be held on Supreme taking without into consideration the fact Court in this sustained case required that he a member of the United States a statute of North Carolina which Army service while prospective voters be able to read English residing in Alabama. in this language any write section Carr, Waggoner of the Constitution of are Honorable the state. Texas; Attorney General Honorable Gray Sanders, 83 S. Alan Chairman V. Ct. 9 L.Ed.2d 821 [holding that party Executive Committee of El Paso Georgia system unit violated the County, Texas, Margaret and Honorable equal protection clause of the Fourteenth Hockenberry, “presiding judge” who Court reaffirmed Amendment] Republican party primary will conduct the principle that “When a exercises State election in No. Precinct 16 of El Paso Coun- power wholly within the domain of ty, Texas. interest, judicial it is insulated from federal Sergeant review. But such insulation carried is not is a in the United States power Army. over when state is used instru- He entered service in County, Articles 5.01 and 5.02 of the Elec- a resident of he was when Jefferson V.A.T.S., Code, restate, effect, continuously Alabama, and has been It un- law as contained the above amendment. that time. service since present disputed at a resi- Relator is correspondence Prior to Relator’s with dent of El Paso Respondents, Hockenberry, Rash and February, family have resided since and his Respondent Attorney General, in an Paso, designated He has El opinion, interpreted had amend- above purposes permanent for all as his home counterparts. statutory ment and its records, paid ad valorem provisions, interpreting these pay the future taxes and will taxes part: General’s stated in City El and to the Paso “ * his federal and has shown on goes saying without that he regulate income tax return resides the Texas Constitution cannot voting rights other than within the State paid 17, 1963, Relator December On can not affect the year 1963 to the tax levied for the residents of other States while station- County, County Tax of El Paso Collector provision ed in Texas. This relates Thereafter, March Texas. State; only it of this but residents Respondent letter to Relator wrote a persons does relate both to who were Relator would asking whether or not entering residents of Texas before party in the allowed to vote persons resi- service and who became 2,May primary election to be held on entering dents of after Texas capacity Respondent Rash, as Chair- in his only place person If at which a Republican party Executive man of the vote in this State is the be- and on of El Paso Committee which he resided at the time of enter- “pre- Hockenberry, Respondent as half of service, ing if did at that time he 16, answered siding judge” of Precinct No. any County reside by letter that: follows that he cannot vote in this Accordingly, State. it was said Hockenberry I Margaret “Mrs. an no who S-148 that refuse, re- hereby continue to will entered service as a resident another Sergeant Carrington recognize fuse to may acquire voting State qualified have taken voter. We he is in service.” position he is in the this because Respondents opinion, Rash Based on this Army and he resided outside Hockenberry recognize refused to he entered at the time State of Texas qualified Relator as a voter. military service.” Relator first contends that amendment was added following In 1954 above-quot- interpretation General’s to Article provision incorrect. ed Constitutional Texas: position provision is Relator’s apply members of not intended to “Any Armed Forces member of the component Forces who were not residents of the Armed or of the United States they thereof, State of Texas at the time branches military service, States, but who are now service of the United Instead, Relator contends that only county in or she which he intend- the Constitutional amendment was the time of resided at resided apply ed to servicemen who long as he or she a mem- service so they entered the service. Texas when ber of the Armed Forces.” next that if the Relator Constitu- Fourteenth Amendment of the United apply regardless tional amendment States Constitution because resided in Texas and those who serviceman service, changes resided elsewhere at time of enter- if he who ing then the amendment constitutes residence while in service in he re- linquishes anywhere. within the unlawful discrimination class and, therefore, military personnel; vio- opinion, my a determination of this protection clause lates of Section does not rest whether the United of the Fourteenth Amendment to not the Constitutional under at- Relator bases this States Constitution. unlawfully tack within discriminates theory argument upon Consti- personnel, class of as contended applied amendment, all tutional if assuming not, Even Relator. that it does personnel, against discriminates argue, this still does not servicemen who were not residents of Texas problem settle ultimate constitutional at the time of To il- the service. per- as to segregate whether all alleged discrimination, lustrate class, sons in service as a himself, argues that a serviceman such as class is differently treated from other enters the Armed Forces in another regard vote. state, and thereafter his resi- establishes my opinion, arbitrary such a distinction deprived dence in unreasonable, thereby violating the to become a election voter equal protection clause of the Fourteenth long as he resides in so Texas and remains Amendment of the Constitution of the Unit- a member of the This is Forces. so Armed ed States. acquires he because when new residence privilege he loses his fully recognize I that the Federal Consti- place where he resided when he enter- tution, amendments, of its does not service, he meet cannot the residence give to a to vote in requirements Therefore, of Texas. he is Happersett, See Minor v. 21 state. Wall. left without a On to vote. the other 162,22 privi- L.Ed. 627. is clear that the hand, Relator that the Constitution- lege jurisdic- in a state within the provision question deprive al itself, tion of the state “to be exercised as serviceman, who was a resident of Texas * * Pope the state direct v. Wil- Forces, at the entered the Armed liams, 621, 573, 24 48 S.Ct. L.Ed. of his vote. According fact, (1904). 817 In the Federal Constitu- County, serviceman who resides Harris qualifications tion makes voters’ rest on Texas, at the time he Armed enters the state even federal law elections. Art. Forces, changes and who thereafter However, pow- exercising its broad § County, residence to El Paso ers to determine the under which conditions n can qualified still remain voter in Harris exercised, suffrage may n County. Thus, Relator concludes Con- impose the state cannot standards which the provision unlawfully stitutional discrimi- United Constitution condemns as dis- person- nates within the class of criminatory. Northampton See Lassiter v. nel. Elections, Board of U.S. 79 S.Ct. 3 L.Ed.2d 1072. Respondents argue provision Texas Consti- elementary legislation” It is that “class apply arbitrary tution persons intended to invalid where the classification is were Texas at the time of and unreasonable. The must classification and to who were rest on real and substantial differences and Respondents proper reasonably promote residents. must further con- some ob- ject Thus, tend that this public does not violate welfare or interest. pate in have an restriction that the election contravening without race, imposed, deter- their whatever can vote—whatever Congress has occupation, sex, who are liter- whatever those mine that income, ability read wherever whatever their vote since ate should “[t]he * * * geographical their home be in that has some relation and write required Equal promote intelligent designed unit. This standards Northampton Protection Clause of the Fourteenth ballot.” Lassiter v. use of the concept supra. Elections, Amendment. The of ‘we the County Bd. of people’ visu- under the Constitution Respondents present contend In the case preferred alizes no of voters but class purpose of the Constitutional equality among who meet prevent a con- amendment in ”* qualifications. (Em- basic strength in military voting centration of phasis added.) be- are located bases areas might lead to such concentration cause present case, proven Relator of local complete control domination and Respondent that he meets satisfaction prejudice politics by men to qualifications holding the basic valid community. the civilian citizens of receipt, all of tax and that he meets ground my this is not a reasonable age requirements and residence say that there the State can elector in El Paso Texas. be- difference a real and substantial exists not contend that Rela- citizens, and and other tween servicemen unqualified im- tor is to vote because he is thereby different confer mature, mind, or is of unsound or is these classes. Instead, by public charge. criminal or a Respondent’s admission, is un- own present day mobility industrali- With qualified solely because he is a member of servicemen, zation, than large groups, other Forces, the Armed who resides communities of this into the various move Such a “distinction” does not fulfill the test stays, and establish vot- for limited as re- reasonableness classification ing need look to residence. One quired by the Fourteenth Amendment major population to large shifts civilian Moreover, the Constitution. of this as an illustration construction areas ma- are recited considerations which fact. jority opinion affording sound basis basis for dis- Wherein lies the reasonable denying to members to vote groups? tinguishing between these apply only local the Armed Forces elections; majority but the effect of the Sanders, 372 Gray In the recent case of in all deny is to (1963), L.Ed.2d 821 9 U.S. S.Ct. elections, a President even the election of Supreme has said: our Court of the United States. “ * * * there is no indication 2 of the Inasmuch as Section or oc- that homesite pro- violates cupation permissible basis for affords a the Four- tection clause qualified voters distinguishing between ” * * * the Constitution of teenth Amendment to (Emphasis within a State. States, petition Relator’s the United added.) granted. writ mandamus should “ * * * geographical unit Once representative is to be for which a CALVERT, J., joins in dissent. partici- designated, C. all chosen is

Case Details

Case Name: Carrington v. Rash

Court Name: Texas Supreme Court

Date Published: Apr 29, 1964

Citation: 378 S.W.2d 304

Docket Number: A-10104

Court Abbreviation: Tex.