ANNUAL REPORT OF THE ATTORNEY GENERAL 279

Transcription

1 ANNUAL REPORT OF THE ATTORNEY GENERAL 279 the statute, constitutes a quoum. Section 25.62, F. S. The vacancies have now been filled; ho\veve, 25.63, id., povides that a chate commission shall pesent a poposed chate to the county commissiones within B months of thei initial meeting. Thus, the commission has a deadline of Aug. 26 to meet if the B-month peiod is computed fom Feb. 26, 970, without deducting the peiod duing which its membeship consisted of less than a quoum, and if the povision of the statute especting the time fo filing the poposed chate is deemed to be mandatoy athe than diectoy. t is geneally held that mandatoy wods in a statute' defining administative offices' duties may be constued as diectoy unless a contay intention is clealy indicated. See Apga v. \\'ilkinson, Fla. 92B, 6 So. 7B; Schneide v. Gustafson ndusties, nc., Fla. 962, 39 So.2d 423. This ule has been applied to statutes specifying the time within which an adminstative duty shall be pefomed. See Lomelo v. Mayo, Fla. D.C.A. 967, 204 So.2d 550, constuing a statute equiing the Public Sevice Commission to hold a heaing and ente an ode within BO days of eceipt of a witten notice filed by a public utility showing poposed changes in ates. The cout said that thee was nothing in the statute to indicate a legislative intent that the Um-day peiod was intended as a limitation on the commission's powe to act and that... the 80-day time limitation fo holding a heaing and enteing its ode by the Public Sevice Commission is designed to futhe the odely conduct of the Cqmmission's business and to fix what the legislatue consideed to be a easonable time within which to act, being accountable in mandamus fo any substantial delay beyond the 80-day peiod.. n my opinion, this language is equally applicable to the B-month peiod specified by 25.63, supa. Hee, as in the statute involved in the Lomelo case, thee is nothing to indicate a legislative intent that the B-month peiod was intended as a limitation upon the powe of the chate commission to act. The 8-month peiod constitutes a easonable time within which the chate commission should conclude its labos and pesent a poposed chate to the county commissiones; howeve, its failue to complete its wok within this peiod does not divest it of its juisdiction. As applied to the facts hee pesent, have the view that the 3-month peiod duing which the commission was unable to act due to lack of a quoum could popely be added to the initial 8-month peiod ending Aug. 26, theeby extending to Nov. 26 the time within which the chate commission could easonably be expected to file a poposed chate with the county COllmissiones. i 07l-202-August 3, 97 (See also 07l-202A) ELECTONS VOTNG-PERSONS 8 YEARS OLD-RESDENCY To: Richad Stone, Secetay of State, Tallahassee Pepaed by: Hebet T. Schwatz, Deputy Attoney Geneal QUESTON: May a vote egistant between the ages of eighteen and twentyone yeas establish a esidency, fo the puposes of voting egistation, in a locale diffeent fom the voting locale of his o he paents o guadian? j

2 280 ANNUAL REPORT OF THE ATTORNEY GENERAL SUMMARY: The 8 yea old given the fanchise by the Twenty-sixth Amendment to the Constitution of the United States may establish esidency sepaate and apat fom the esidence of his paents o guadian fo puposes of vote egistation. f the equiements of the applicable statutoy and constitutional povisions ae othewise met, pesons 8 yeas of age o olde must be egiste.ed as votes in the county of thei esidence without egad to the esidence of any paent o guadian. Aticle V, 2 of the 968 State Canst., povides as follows: Evey citizen of the United States who is at least twenty-one yeas of age and who has been a pemanent esident fo one yea in the state and six months in a county, if egisteed as povided by.law, shall be an electo of that county. Povisions may be made by law fo othe bona fide esidents of the state who ae at least twenty-one yeas of age to vote in the election of pesidential electos. The cited constitutional povson is dealt with by geneal law in 97.04, F. S., which applies both esidency equiements in descibing the details of vote egistation. n view of the ecently effective Twenty-sixth Amendment to the United States Constitution, am of the view that the field of voting age equiement has been peempted fom state contol and that 97.04, F. S., and At. V, 2, State Canst., ae changed, as a matte of law, to eflect the constitutional mandate of the eighteen-yea-old vote. t is significant that both the Floida constitutional and statutoy povisions speak only in tems of duational esidency equiements as a peequisite to vote egistation. t is the dual citeia of one yea in the state and six months in the county coupled with the facto of pemanence which qualify a peson to egiste who is not othewise disqualified unde 97.04(5), F. S. The qualification povisions do not mention o set foth any citeion equiing an intent to eside pemanently in a given county. Neithe do those povisions speak in tems of domicile which is clealy distinguishable fom esidency as a matte of legal pinciple. t is my view that the duation peiods ae self-executing in egad to the pemanency citeia. This is to say that once a peson has esided in the state fo one yea and in the county fo six months, the pesumption of pemanent esidence attaches. When the pesumption occus, am of the opinion that the buden of poving the nonpemanent natue of the potential vote egistant is on the peson challenging the egistant's ight to egiste. Fo voting, a peson ove 8 yeas of age is sui juis fo the puposes of the Twenty-sixth Amendment to the United States Constitution and the Voting Rights Act of 970 (Public Law 9-285, 84 Stat. 34). Those two povisions have confeed upon the 8 yea old a pesonal ight execisable in peson, that being the ight to vote. That pesonal ight has a meaning only if it can be execised in the political subdivision in which the elected political officeholdes epesent thei constituents' inteest, and in the communities in which thei inteest of political moment may elate. Since the 8 yea old is sui juis fo voting puposes, the common law must be constued to pemit him to acquie a esidance fo the specific pupose of voting. am mindful of the histoical eason fo the geneal ule fo the incapacity of a mino; howeve, am of the opinion that the eason fo the geneal ule no longe exists. The eason fo that geneal ule which imputes the fathe's esidence to the unmaied mino offsping is the common law assumption that a mino is not sui juis, and theefoe is not capable of foming an intent fo

3 ANNUAL REPORT OF THE ATTORNEY GENERAL 28 U, of ~d nt, al S o s n. esidency puposes. Howeve, unde the Twenty-sixth Amendment and the Voting Rights Act of 9iO, supa, young adults do have the ight to vote, and ae theefoe sui juis fo that pupose, and do have the powe to fom the equisite intent fo that pupose. f the state, acting though the seveal voting egistas, should seek to impose the additional equiement of all pesons enfanchised by the Twentysixth Amendment having to egiste in the voting locale of thei paents o guadian, the unifomity and intent of that amendment might well be fustated in Floida by the anomalous and divese esults. - To justify such a state-imposed mandate thee must be "compelling state inteest." Kame v. Union Fee School Dist., 395 U.S. 62 at 62i (969); Cipiano v. City of Houma, 395 U.S. iol (969); Bug v. Canniffe, 35 F. Supp. 380 (D. Mass. 9iO); Kohn v. Davis, 320 F. Supp. 246 (D. Vemont, 9iO). n the landmak case of Caington. v. Rash, 380 U.S. 89 (965) at i80, the Supeme Cout spoke to the issue of selective vote egistation thusly: We deal hee with mattes close to the coe of ou constitutional system. The ight... to choose that this Cout has been so zealous to potect, means, at least, that the States may not casually depive a class of individuals of the vote because of some emote administative benefit to the State. Befoe the ight to egiste and vote may be validly esticted at least thee elements must be opeative and coalesce:. The state inteest elied on to justify the estictive classification must be "compelling," not meely "ational" o "legitimate." See Cipiano v. City of Houma, supa; Kame v. Union Fee School Dist., supa; Hape v. Viginia Bd. of Elections, 383 U. S. 663; Casto v. Califonia, 38 U.S.L.W (Calif. Ma. 24, 9iO). 2. Even assuming a sufficiently compelling state inteest, the classification must be closely scutinized to detemine whethe it is necessay. Moeove, the classification must be scutinized to detemine if the pupose has been accomplished with pecision. Kame v. Union Fee School Dist., supa; Cipiano v. City of Houma, supa; Caington v. Rash, supa. 3. The state, not the vote, has the buden of poving and demonstating that the standads of the cited cases have been met. See also, Hadnott v. Amos, 394 U.S. 358 (969); Gaston County v. United States, 395 U.S. 285 (969). The taditional justifications fo vote egistation equiements ae () pomotion of a moe intelligent vote by insuing that votes have at least had an oppotunity to become knowledgeable about local affais; (2) pevention of faud; (3) identification of the vote; and (4) assuance of the vote's membeship and inteest in the community. Deuding v. Devlin, 234 F. Supp. i2 (D. Md. 964), aff'd. memo 380 U.S. 25 (965); MacLeod and Wilbeding, State Voting Residency Requiements and Civil Rights, 38 Geo. Wash. L. Hev. 93; note, ii Hav. L. Rev. 5i4 (964). The fist thee of the justifications fo egistation equiements descibed above would appea to be satisfied by the simple six-month waiting peiod contained in 9i.04, F. S., and At. 6, 2, State Constitution. The only inteest which might be futheed by a equiement that 8 yea-old votes egiste in the voting locale of thei paents o guadian is the fouth justification; namely, assuance of the vote's membeship and inteest in the community. Even assuming that the state may have a "compelling" inteest to asset such a estictive citeion, am of the view that such a estiction would be oveboad in its each and would not accomplish the pupose with sufficient

4 282 ANNUAL REPORT OF THE ATTORNEY GENERAL :, i' : l!!! :!! J~,, i ' il i;,{, l! i.! U pecision. Kame v. Union Fee School Dist., supa, at 632. You equest specifically asks my opinion in this matte in elation to the counties of ou state having lage univesities within thei boundaies. t is the students in esidence at these univesities and the counties concened whom you suggest might be geatly inteested in this matte. t is my view, consistent with the cited case law, that a equiement that univesity students egiste to vote at the voting locale of thei paents o guadian would be legally and constitutionally. suspect. Such a equiement could indeed establish these students as "men and women without a county." n Kame v. Union Fee School Dist., supa, the plaintiff would have qualified to vote unde state law if he had a spouse who owned popety o if he had childen in school. The United States Supeme Cout stuck down the law, emphasizing that the plaintiff was a bachelo and thus disadvantaged by the classification. A distinction between 8 and 2 yea olds would appea also extaodinaily weakly based. Histoically, the 2 yea age attained its impotance because it was supposed that it was the minimum age at which a knight could bea his amo in battle. Congess, in adopting the 8-yea-old statute, emphasized this histoical antecedent and its inappopiateness today. 6 Congo Rec. H5607 (June 6, 970). Poof of bona fide esidency theoetically aims at assuing an electoate that has a eal inteest in local affais, and a knowledge about them sufficient to ceate an infomed electoate. Neithe maiage no minoity is easonably elated to accomplishment of these objectives. The salient point is that the students who ae the subject of you inquiy live, and often wok, in the county in which the univesity is situate. They ead the newspapes thee, obseve local conditions, and ae affected daily by local legislative, executive and, fequently, judicial decisions. t is not illogical to view such a estictive egistation policy as the one aised by you inquiy as one which allows paticipation in eveything but the vey essence of de.mocacy. n those counties having lage numbes of esident students, it might well be that those students ae the only goup whose "occupation" may opeate to exclude them fom the fanchise. t would seem to me that a classification which ceated an atificial distinction between an emancipated 8 yea old (by vitue of maiage, judicial emoval of nonage, etc.) and an 8-yea-old student, even though both othewise meet the statutoy and constitutional povisions, would be an impemissible classification unde the constitutional mandate of equal potection. To attempt to tie an othewise qualified student to the voting locale of his o he paents would be an abitay classification without ational nexus to a beneficial and compelling state inteest. Loss of the vote is a high pice fo students to pay fo education. But it is a fa highe pice fo the community to pay, because it costs the inteest, the vote and the will to vote of the college student who desies to wok fo change within the political pocess. Although the estiction suggested by you lette might at face value have the wothy objective of assuing local inteest, it is not all clea that such a concen is elevant as a pactical matte. The vey inconvenience involved in egisteing and voting should seve to winnow out those who ae uninteested. Moeove, it would appea that the dominant "compelling" state inteest is indeed to induce those new potential votes between the ages of 8 and 2 to "dop in" the political pocess. Evey caution should be indulged to pevent these votes fom "dopping out" of the fundamental pocess of voting as a univesal execise of democacy. On the local level, any estiction which would deny paticipation in the selection of those officeholdes who most diectly goven a peson could vey well be viewed as constitutionally infim and an abidgment of the fanchise. As stated above, the execution of the oath of egistation pusuant to 97.- l

5 ANNUAL REPORT OF THE ATTORNEY GENERAL 283 t i i { { { ( J ) { ) e :l n e a n it d, ~- g h h,n l 05, F. S., would appea to be pima facie poof that the egistant meets the equisite qualifications. t is easy to undestand the "compelling" state inteest in the esidency equiement. n 9th centuy Ameica the puity of elections equied that adequate safeguads be devised to inhibit couption of elections. Expeience with gangs of "floates" and the oganized voting of "tansients" constituted a vey eal poblem fo 9th centuy elections. These hash expeiences geatly influenced the development of ou moden esidency equiements. See Schmidhause, Residency Requiements fo Voting and the Tensions of a Mobile Society, 6 Mich. L. Rev. 823 (963) cited in Affeldt v. Whitcomb, 39 F. Supp. 69 (N.D. nd., 970). t is clea that in to day's society the 8-yea-old student is less likely to be a tansient than some othe occupations which may be pacticed by nonstudent 8 yea olds. Census bueau infomation indicates that to day's "floates" o "tansients" ae caftsmen, foemen, pofessional and technical pesonnel. Schmidhause, supa, at 830. Ous is a mobile society. The most mobile pesons in ou society ae the young, whethe in college o not. See Glenn and Gimes, Aging, Voting and Political nteest, 33 Ame. Soc. Rev. 563 (968). The latest available infomation fom the U.S. Census Bueau descibes Ameican society as one in which one of evey five pesons changes esidence evey yea, 27.8 million of them cossing county bodes. Of this goup, the lagest popotion is young people. The migation ate fo those between 20 and 34 vaies fom 35 pecent to 24 pecent, which is substantially highe than that of any othe age backet. Glenn and Gimes, supa, at 762. n Kohn v. Davis, 320 F. Supp. 246 (D. Vemont, 970), the Cout ecognized the above analysis thusly: n ou highly mobile society, one who has lived in a paticula locale fo one yea may be fimly ooted in the community o he may be eady to move on tomoow... citing Keenan v. Boad of Law Examines, 37 F. Supp. 350 (E.D. N.C. 970). To attempt to fimly bind an 8-yea-old vote to the voting locale of anothe peson would seem to fly in the face of the tone and teno of the cited authoities and be a totally iational classification. t should be especially noted that whee an impemissible facto could have possibly enteed into the ejection of an applicant fo vote egistation, the doctine enunciated in Stombeg v. Califonia, 283 U.S. 359 (93), could well become opeative to counte the administative decision. n Stombeg the Supeme Cout held that whee an unconstitutional consideation could have enteed into a decision, notwithstanding the possibility of valid easons, the entie esult is tainted. See also Geenbelt Coopeative Pub. Assn. v. Besle, 398 U.S. 6 (970); Steet v. New Yok, 394 U.S. 576 (969); Gegoy v. City of Chicago, 394 U.S. (969); Cole v. Akansas, 333 U.S. 96 (948). The Twenty-sixth Amendment to the United States Constitution, atified by the last of the equied 38 states on June 30, 97, povides that "[t]he ight of citizens of the United States, who ae eighteen yeas of age o olde, to vote shall not be denied o abidged by the United States o by any State on account of age." ts language is vitually identical to the 5th and 9th Amendments, which extended the fanchise to fobid discimination in voting against membes of minoity aces and women. ntepetations of those Amendments-paticulaly the 5th-ae petinent to undestanding the each of the 26th. As the Supeme Cout held in South Caolina v. Katzenbach, 383 U:S. 30, 325, (966): Section of the Fifteenth Amendment declaes that "[t]he ight of citizens of the United States to vote shall not be denied o

6 284 ANNUAL REPORT OF THE ATTORNEY GENERAL abidged by the United States o by any State on account of ace, colo, o pevious condition of sevitude." This declaation has always been teated as self-executing and has epeatedly been constued, without futhe legislative specification, to invalidate state voting qualifications o pocedues which ae disciminatoy on thei face o in pactice.... [T]he gist of the matte is that the Fifteenth Amendment supesedes contay exetions of state powe. "When a State execises powe wholly within the domain of state inteest, it is insulated fom fedeal judicial eview. But such insulation is not caied ove when state powe is used as an instument fo cicumventing a fedeally potected ight." The fames of the Twenty-sixth Amendment, awae of these pinciples, thus consideed and condemned special pocedues that states wee poposing to impose on young votes: Moeove, focing young votes to undetake special budensobtaining absentee ballots, o tavelling [sic] to one centalized location in each city, fo example-in ode to execise thei ight to vote might well seve to dissuade them fom paticipating in the election. This esult, and the election pocedues that ceate it, ae at least inconsistent with the pupose of the Voting Rights Act, which sought to encouage geate political paticipation on the pat of the young; such segegation might even amount to a denial of thei 4th Amendment ight to equal potection of the laws in the execise of the fanchise. Senate Judiciay Committee, S. Rep. No , 92nd Cong., st Sess. [Accompanying S.J. Res. 7 (97), p. 4.] The Supeme Cout found, futhemoe, in the one man-one vote Geogia pimay case, Gay v. Sandes, 372 U.S. 368 (963): The Fifteenth Amendment pohibits a State fom denying o abidging a Nego's ight to vote. The Nineteenth Amendment does the same fo women. f a State in a statewide election weighted the male vote moe heavily than the female vote o the white vote moe heavily than the Nego vote, none could successfully contend that thei discimination was allowable. t would, in my opinion, be just as disciminatoy to, in effect, weigh the ove 2-yea-old vote moe heavily than the unde-2-yea-old vote. This theoy was well teated in a ecent compehensive law eview aticle dealing with this subject: Still anothe infimity in the pesent postue of the law is indicated by the fact that the United States Census Bueau, fo puposes of counting population, consides students as esidents of the Univesity town. o Whateve impact this might have othewise on the meits of the case, the fact is that to allow students to be counted fo puposes of detemining disticting but not to be counted fo puposes of electing the officials fom that distict might well contavene the "one-man, one-vote" thesis of the Supeme Cout. Thus, Note.-Fo census puposes, "College students wee consideed esidents of the communities in which they wee esiding while attending College." U.S. Bueau of the Census, Dep't of Commece, County and City Data Book xix (967). The same pocedue was followed in the 970 Census. Woking pesons unde 2 ae, of couse, enumeated whee they eside.

7 ANNUAL REPORT OF THE ATTORNEY GENERAL 285 fo example, let us assume that the Census Bueau finds 0,000 students and 40,000 non-students in town A, and 50,000 non-students in town B. Now, assuming that all students ae "non-native," this means that Congessman B is being elected by 50,000 people, wheeas Congessman A is being elected by 40,000. Townspeople in B, theefoe, ae having thei votes diluted by 20%. This goss dispaity is obviously inconsistent with the Cout's mandate in the voting cases, and would aguably be enough to stike down the disticting. Singe, "Student Powe at the Polls," 3 Ohio St. L. J. 703, 720 (970). The fames of the Twenty-sixth Amendment to the United States Constitution intended to make pesons 8 to 20 yeas old equal, in espect of voting, to pesons ove 2 yeas old. n my opinion, any special ule fo votes unde 2 would be epugnant to the Twenty-sixth Amendment. n consideing this matte, one should be cognizant of the Fedeal Voting Rights Act Amendments of 970 (Public Law 9-285, 84 Stat. 34). Section 302 of the Voting Rights Act Amendments of 970 does not meely confe the ight to vote on citizens ove 8 but unde 2 yeas of age, but also declaes that they may vote in the same political subdivision of a state in which they would be entitled to vote if aqults. The opeative language of the statute eads as follows: "... [N]o citizen of the United States who is othewise qualified to vote in any state o political subdivision... shall be denied the ight to vote in such pimay o election on account of age if such citizen is eighteen yeas of age o olde." (Emphasis supplied.) You question appaently assumes that no peson ove the age of 2 yeas should o would be equied to egiste to vote in a county based on anothe peson's esidence. The state may not deny egistation solely on the gound that a egistant's paents eside in a diffeent county. To do so would be a denial applicable to a peson solely on account of age and would necessaily be a poscibed invidious discimination. Such a policy would not only violate the expess tems of the fedeal ight-to-vote statute, but also conflict with the 'cental goals undelying the enactment of that statute. These goals ae the elimination of the disciminatoy "unfai teatment" [Title, 30(a)(2)] of pesons between the ages of 8 and 2 with espect to the fundamental ight to vote, and the full paticipation of these citizens in the political pocess. See Statement of Senato Kennedy, inseted in the ecod by Senato Mansfield, 6 Congo Rec. S The congessional judgment that pesons unde 2 yeas of age possess the matuity necessay to execise the fanchise would be fustated by a equiement that disables these pesons fom - voting in the political subdivision in which thei inteests lie. They cannot esponsibly execise the fanchise unless they ae pemitted to vote in the political subdivision in which thei political objectives deseve to be counted. That is the political subdivision of which they ae tuly constituents. believe that 30, supa, entitles all pesons, egadless of age, to egiste in the county of thei esidence without egad to the esidence of thei paents. Section 97 (a)(2)(a) of Title 42, U.S. C., enacted in 964, povides as follows: 2. No peson acting unde colo of law: (A) [S]hall in detemining whethe any individual is qualified unde State law o laws to vote in any election, apply any standad, pactice, o pocedue diffeent fom the standads, pactices, o pocedues applied unde such law o laws to othe individuals within the same county, paish, o simila political subdivision who have

8 286 ANNUAL REPORT OF THE ATTORNEY GENERAL.,, \!,. : i : t ' : i ;. : ~ " '!:,ll,:' :....' '.. : : :! l f i "t'i"! : i : i.j : i 'ii :'. il ; :,,, f been found by State officials to be qualified to vote. (Emphasis.supplied.) By denying egistation to pesons between 8 and 2 yeas of age on the gound that thei paents eside in a diffeent county, the state may be viewed as applying a standad not applied to pesons ove 2 yeas of age. The disciminatoy teatment thus accoded these pesons would be in clea violation of the expess tems of this statute. Section 97 (a) (2)(A), supa, unlike 97 (a)(), is not limited to discimination on the basis of ace, colo, o pevious condition of sevitude. Repesentative Emmanuel Celle (D. N.Y.), Chaiman of the House Judiciay Committee and the pincipal sponso of the legislation, indicated the intent to pohibit nonacial discimination in esponse to a statement by James Fame, National Diecto of the Congess of Racial Equality. Duing the heaings, M. Fame stated: "... don't mean just Nego people, mean white people ae being 'abidged and we must not toleate this because it is a moal issue." Responded Chaiman Celle: " agee with you, woul,d like to put that in myself." House Judiciay Committee, Heaings on H. R. 752, Pat, pp See also statements by Senato Keating, 0 Congo Rec. S6728 (Apil, 964). This is suppoted in the legislative histoy suounding the 965 amendment to the statute, which extended the each of the pohibition to nonfedeal elections. Repesentative Silvio Conte (R. Mass.) said: But while the impetus fo these heaings may have been given by the Selma maches... legislation by this Congess should not be limited to coecting the wongs suffeed by one goup of citizens in seveal states of the Union. t must, as have said, be designed to' pevent the pevesion of voting ights wheneve and wheeve they may occu, no matte what goup of individuals is involved. (House Judiciay Committee, Heaings on 965 Voting Rights Bills, p. 445.) am of the opinion that denial of egistation on the gound that a peson's paents eside' in a diffeent county would be disciminatoy teatment pohibited by 97 (a)(2)(a), supa. am not unmindful of AGO dated Aug. 3, 970, which deals with the same geneal subject matte as this opinion. My pedecesso in office teats the subject matte of esideuce as synonymous with domicile. n view of the case law and othe authoities cited heein, as well as the constitutional and statutoy specificity of "esidence," view the attempted synonymity as a cucial, albeit undestandable, eo., theefoe, ecede fom AGO in those conclusions of my pedecesso mateial to the foegoing analysis. The geneal conclusion eached by a compehensive study of the gemane potions of 98 A.L.R. 2d 499, and othe authoities cited heein, lead me to the inescapable esult that, in the facts of Floida's situation, the peson 8 yeas old o olde, egadless of "occupation," must be allowed to' egiste to vote in the county in which he has esided, i.e. lived o inhabited, fo a peiod of at least six months, assuming he has also been within the state fo one yea. Mention should also be made that the povisions of 97.04(2) and (3), F. S., should be viewed by you in such a way as to allow a peson who has not attained the age of 8 at the times mateial to those subsections, as well as 97.04(), F. S., to egiste just as a 2-yea-old peson could have pio to the Twenty-sixth Amendment. "