EQUAL PROTECTION STANDARDS AND STATE "EXTRA MAJORITY" VOTE REQUIREMENTS*

EQUAL PROTECTION STANDARDS AND STATE "EXTRA MAJORITY" VOTE REQUIREMENTS* I. INTRODUCTION As a rather unexpected result of the development of the "one man, one vote" rule of legislative reapportionment, many state election procedures requiring extraordinary majority voter approval in "direct elections" are now being challenged as unconstitutional. The constitutional provisions and statutes under attack are common, in one form or another, in a large number of states.' Basically they all involve a requirement that more than a simple majority of the voters, voting in a direct election upon a particular issue, approve that issue before it can become effective. For example, involved in the recent case of Lance v. Board of Education, 2 were state constitutional 3 and companion statutory 4 requirements * L.B. 534, 82nd Neb. Leg. Sess. (1971), pending in the unicameral at time of publication, would change the "extra majority" vote requirement in a number of Nebraska election statutes to a simple majority. 1. Several Nebraska statutes are typical of "extra majority" vote laws. For instance, the authority granted to counties to issue "bonds to aid in the construction of any railroad or other work of internal improvement," under NEB. REV. STAT. 10-401 (Reissue 1970) can be exercised only upon approval by the electorate as provided in NEB. REV. STAT. 10-404 (Reissue 1970). Regarding such county bond election that "extra majority" provision provides: Upon sixty per cent of the votes cast being in favor of the proposition submitted, the county board, in the case of a county, and the city council, in the case of a city, shall cause the proposition and the result of the vote to be entered upon the records of said county or city, and a notice of its adoption to be published for two successive weeks in any newspaper in said county or city, if there be one, and if not, then without such publication; and shall thereupon issue said bonds, which shall be and continue a subsisting debt against such county or city until they are paid and discharged; Provided, that the question of bond issues in such county or city, when defeated, shall not be resubmitted in substance for a period of six months from and after the date of said election. Another "extra majority" provision frequently acts as a stumbling block to the issuance of "school bonds" in Nebraska. That law, NEB. REV. STAT. 10-702 (Supp. 1969) provides: No bonds shall be issued until the question has been submitted to the qualified electors of the district, and fifty-five per cent of all the qualified electors voting on the question shall have voted in favor of issuing the same, at an election called for the purpose, upon notice given by the officers of the district at least twenty days prior to such election. The question of bond issues in such districts, when defeated, shall not except in case of fire or other disaster or in the case of a newly-created district, be resubmitted in substance for a period of six months from and after the date of such election except when submitted at a regular election. 2. 170 S.E.2d 783 (W. Va. 1969). 3. W. VA. CONST. art. X, 1, 8. 4. W. VA. CODE ANN. 13-1-4, 13-1-14 (1966),

1970] COMMENTS that bond issues for improvement of educational facilities receive 60% voter approval for passage. Of course, as a practical matter, these extraordinary majority requirements often prove to be insurmountable obstacles to the approval of direly needed community projects. The facts of the Lance case reveal that from 1946 to 1969 no school bond issue put to the voters pursuant to the extraordinary majority provisions involved therein received the necessary 60% approval. 5 From 1967 to 1969, on six different occasions, bond issues received the approval of over 50% of the electorate voting, but less than the required 60%.6 Of course, the approval percentage varies from state to state and within states from election to election. In four recent cases some indication is provided of the varying degrees of difficulty the extraordinary majority provisions present to the passage of "special issues" in various states; 7 the approval percentages varying from 55% in Minnesota to two-thirds in California and Idaho. s II. EQUAL PROTECTION AND GEOGRAPHIC VOTE DISCRIMINATION Opponents of state "extra majority" vote laws have levied their attack on the basis of the "one man, one vote" principle. 9 The argument is dependent upon an analogy to the legislative reapportionment cases which proscribe the unequal distribution of voting power upon geographic considerations.' 0 Since the essential fea- 5. 170 S.E.2d at 787. 6. Id. at 788. 7. Rimarcik v. Johansen, 310 F. Supp. 61 (D. Minn. 1970); Westbrook v. Mihaly, 2 Cal. 3d 765, 471 P.2d 487, 87 Cal. Rptr. 839 (1970); Bogert v. Kinzer, 93 Ida. 515, 465 P.2d 639 (1970); Lance v. Bd. of Educ., 170 S.E.2d 783 (W. Va. 1969) ; cf. State ex rel. Witt v. State Canvassing Bd., 78 N.M. 682, 437 P.2d 143 (1968). 8. As noted previously, the "extra majority" requirement involved in the West Virginia case of Lance v. Bd. of Educ., 170 S.E.2d 783 (W. Va. 1969) was 60%. 9. The "one man, one vote" principle stems from a statement in Gray v. Sanders, 372 U.S. 368, 381 (1963) wherein the Court said: The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thingone person, one vote (emphasis added). For other cases decided on the basis of the "one man, one vote" principle, see, e.g., City of Pheonix v. Kolodziejski, 399 U.S. 204 (1970); Evans v. Cornman, 398 U.S. 419 (1970); Hadley v. Junior College Dist., 397 U.S. 50 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969); Kramer v. Union Free School Dist., 395 U.S. 621 (1969); Avery v. Midland County, 390 U.S. 474 (1968); Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964). 10. See, e.g., Hadley v. Junior College Dist., 397 U.S. 50 (1970); Avery v. Midland County, 390 U.S. 474 (1968); Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964); Gray v. Sanders, 372 U.S. 368 (1963).

CREIGHTON LAW REVIEW [Vol. 3 ture of the extraordinary majority provision is the requirement that there be cast an "unusually" greater number of affirmative votes than negative, it is argued that a negative vote is given greater weight, with the result that those voting "yes" are denied equal protection of the laws. Prior to the United States Supreme Court's decision in Baker v. Carr," voter discrimination even on the basis of geographic considerations seemed to be within the scope of constitutional sanction. 1 2 However, from Baker and its progeny' 8 it soon became clear that no scheme of geographic vote discrimination would stand under the pervasive protection of the equal protection clause, at least where elections for public officers performing "legislative" duties were involved. Prior to Baker all challenges to geographic vote discrimination fell before the ambiguous language of the "guaranty clause." 14 However, in Baker the Court shifted away from the "guaranty clause" to consider the challenge to geographic vote discrimination under the equal protection clause of the Fourteenth Amendment.' 5 In order to properly understand the rationale underlying the Court's application of equal protection standards to the problem of geographic vote discrimination and how those same standards may be applicable as well to "extra majority" vote discrimination it is necessary to briefly examine the development of equal protection theory in general. 16 The protection provided by the equal protection clause traditionally consisted of assuring that state legislation was not "purely arbitrary" and "without any reasonable basis."' 1 7 Such a test-the "rational basis" test-is still used today in cases which do not involve what has been termed a "fundamental right" or "suspect classification.' 8 The limitations placed upon state action by the equal protection clause under the "rational basis" test are two: (1) The state 11. 369 U.S. 186 (1962). 12. See, e.g., Kidd v. McCanless, 352 U.S. 920 (1956); South v. Peters, 339 U.S. 276 (1950); Colegrove v. Green, 328 U.S. 495 (1946); Snowden v. Hughes, 321 U.S. 1 (1944). 13. See cases cited in note 1 supra. 14. U.S. CONST. art. IV, 4: "The United States shall guarantee to every State in this Union a Republican Form of Government... 15. 369 U.S. at 208-37. 16. For an extended analysis of equal protection, see generally, Tussman and tenbroeck, The Equal Protection of the Laws, 37 CAL. L. REV. 341 (1949). See also Comment, Developments in the Law-Equal Protection, 82 HARV. L. REv. 1065 (1969). 17. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911). 18. See text at notes 23 to 32 infra.

1970] COMMENTS cannot create arbitrary classifications; 9 and (2) The classifications created must bear some reasonable relationship to the achievement of some state end. 20 Since under the "rational basis" test, state laws are presumed to be constitutional, any challenge thereto must overcome this presumption, a task which has proven to be quite formidable. In fact, it is now evident that, under the "rational basis" test, a claimant will be unsuccessful arguing equal protection unless he can demonstrate that the legislation attacked constitutes a grossly arbitrary classification or that it forwards no legitimate :governmental interest. 21 The "rational basis" test is primarily applicable to state action in the area of economic and fiscal regulation. 22 However, if a law invades the "sensitive area of human rights, ' 28 if a prima facie showing can be made of discrimination involving a "suspect classification" such as race, 24 or if it can be shown that a "fundamental right" has been impaired, 25 the equal protection test is somewhat different. Equal protection standards are then stringently applied. 26 The test applicable then is not whether the classification is arbitrary but whether the classification is necessary; 2 7 not whether the classification carries out a legitimate state interest but whether it necessarily furthers a compelling state interest. 28 If either a "suspect classification" or a "fundamental right" is involved, the burden shifts to the state to overcome the presumption of unconstitutionality. 2 9 19. Madden v. Kentucky, 309 U.S. 83 (1940). 20. Barbier v. Connolly, 113 U.S. 27 (1885). 21. Int'l Harvester Co. v. Missouri, 234 U.S. 199 (1914). 22. For an analysis concluding that equal protection under traditional standards is no longer a forceful doctrine, see Comment, Developments in the Law-Equal Protection, 82 HARV. L. REV. 1065, 1087 (1969). See, e.g., Morey v. Doud, 354 U.S. 457 (1957). 23. 24. See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942). See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954). Discriminations premised on nationality have likewise been accorded a strict application of the equal protection principles; see, e.g., Takahashi v. Fish and Game Comm., 334 U.S. 410 (1948); Yick Wo v. Hopkins, 118 U.S. 356 (1886). 25. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Skinner v. Oklahoma, 316 U.S. 535 (1942). 26. See generally Comment, Developments in the Law-Equal Protection, 82 HARv. L. REV. 1065 (1969). 27. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944). See also Kramer v. Union Free School Dist., 395 U.S. 621 (1969). Cf. text at note 19 supra. 28. Shapiro v. Thompson, 394 U.S. 618 (1969). Cf. text at note 22 supra. 29. Kramer v. Union Free School Dist., 395 U.S. 621 (1969). Cf. text at note 21 supra.

CREIGHTON LAW REVIEW [Vol. 3 Although the United States Supreme Court has never clearly defined "fundamental right," at least in relation to the more stringent equal protection test, apparently the "right to vote" is so considered by virtue of its effect as being "preservative of other basic civil 30 and political rights. Accordingly, state attempts to favor one group of voters over another on the basis of geographic considerations result in a "dilution" of the individual's "fundamental right" to vote and, hence, summon the application of the "exacting standard" of equal protection. Of course, under this standard the Court has found no "compelling state interest" to save geographic vote discrimination from the prohibitions of the equal protection clause. 3 1 Similarly, the Court has struck down state statutes denying the franchise to a certain class of voters. 3 2 All the "voting" cases decided by the Supreme Court under the more stringent "compelling state interest" equal protection test since Baker v. Carr 3 can be distinguished factually, one way or another, from the problems presented by the "extra majority" situation. For instance, the cases which directly devolve from Baker v. Carr all contain two threads of similarity not present in the "extra majority" situation; they all deal with discriminatory treatment of voters based upon their geographical status and they all deal with elections for representatives. The fact that a representative election is involved in each of these cases may increase the "tenderness" of the area and present a more compelling reason to provide constitutional protection for the right to voting equality therein since many of the voters' rights are subject to the decisions of the representative. 34 The fact that they deal with geographical discrimination should decrease their precedential value in the area of "extra majority" voting cases. Of course, the cases involving the outright exclusion of a class 30. Reynolds v. Sims, 377 U.S. 533, 562 (1964). 31. The United States Supreme Court in Gray v. Sanders indicated that no form of geographic vote discrimination is permissible under the prohibitions of the equal protection clause: The only weighting of votes sanctioned by the Constitution concerns matters of representation, such as the allocation of Senators irrespective of population and the use of the electoral college in the choice of a President... But once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded. Gray v. Sanders, 372 U.S. 380-81 (1963). 32. See, e.g., City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Evans v. Cornman, 398 U.S. 419 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969); Kramer v. Union Free School Dist., 395 U.S. 621 (1969); Carrington v. Rash, 380 U.S. 89 (1965). Cf. Williams v. Rhodes, 393 U.S. 23 (1968). 33. 369 U.S. 186 (1962). 34. See text at note 23 to 32 infra.

1970] COMMENTS from the electorate also arise from a different type of vote discrimination than is involved in the "extra majority" cases. However, the distinguishing factors in both the geographic vote dilution cases and the voter exclusion cases may be o no meaning if "extra majority" vote discrimination is to be examined under the same stringent equal protection test applicable to geographic vote discrimination and voter exclusion. 3 5 Perhaps an indication of the view of the United States Supreme Court as to the scope of the one person, one vote principle, is found in Gray v. Sanders. 3 6 There the Court said: The only weighting of votes sanctioned by the Constitution concerns matters of representation, such as the allocation of Senators irrespective of population and the use of the electoral college in choice of a President... But once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded. 3 7 Although the Court may not have contemplated the application of the above quoted language to a case of "extra majority vote discrimination," until limited, the broad prescription of "equality of voting power" would seem to cast substantial doubt upon the constitutional validity of "extra majority" vote laws. III. POLITICAL QUESTION? The only case decided to date upholding an "extra majority" vote provision suggests a rationale which would avoid consideration of the application of the equal protection clause. Although the Idaho Supreme Court in Bogert v. Kinzer 3 8 did not expressly enunciate the "political question" doctrine as the basis for its decision upholding a two-thirds "extra majority" vote requirement, the decision is clearly premised on the conclusion that such a determination is a "political question." In Bogert, the court went to considerable effort to distinguish, on a factual basis only, virtually all of the United States Supreme Court "voting" decisions from the "extra majority" vote problem. 3 9 However, implicitly recognizing the futility of attempting to work the "extra majority" case outside the Supreme Court's pervasive application of equal protection to voting rights, the Idaho court stated: 35. See text at notes 30 to 32 supra. 36. 372 U.S. 368 (1963). 37. Id. at 380-81. 38. 93 Ida. 515, 465 P.2d 639 (1970). 39. Id. at 642-45.

CREIGHTON LAW REVIEW [Vol. 3 It has been said that the first step in the search for truth is to call things by their right names... What is urged upon us here has nothing to do with social justice, morality or inequality. It presents a question of governmental theory. 40 In short, the court considered resolution of the question before it as simply not appropriate for judicial determination. In conclusory fashion the court found that it was unwilling to concede that a determination between competing political theories...which would require the application of the doctrine of sheer majoritarianism can be safely entrusted to the judicial branch of government of Idaho when our people and our legislature have spoken otherwise. 41 [I] t is a far different thing for this Court or any court to insert its judgment into the area of pure political theory. 42 However, the "political question" approach apparently considered by the Idaho Supreme Court to preclude examination of the merits of the "extra majority" vote question was clearly rejected by the United States Supreme Court in Baker. There the Court stated: When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used- as an instrument for circumventing a federally protected right. 4 [I]t is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which give rise to the "political question. '44 Contrary to the Idaho court's opinion, the above language from Baker clearly indicates that the federal government can intervene into the "domain of state interest" whenever a federal right is jeopardized. If the branches of state government are not co-ordinate with the federal judiciary, it is axiomatic that the "political question" doctrine, premised upon conflicts between co-ordinate branches of government, cannot arise. If the logical import of the "political question" discussion in Baker is to be taken as valid, the Supreme Court of Idaho's attempt 40. Id. at 647 (emphasis added). 41. Id. at 645. 42. Id. at 648. 43. Baker v. Carr, 369 U.S. 186, 231 (1962), quoting from Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960). 44. 369 U.S. at 210.

1970] COMMENTS to avoid confrontation with the vicissitudes of the equal protection clause by grounding its rationale in terms of "political question" doctrine must ultimately fail. Although not formally labeled as such, the California Supreme Court in Westbrook v. Mihaly 45 also considered an aspect of the question of whether the "extra majority" vote provision there at issue presented a nonjusticiable political question. As phrased by the California Supreme Court, the argument presented was that there has been no violation of the equal protection clause because the elections here in issue represent an exercise of the legislative power retained by the people rather than of that delegated to the state Legislature. 46 The court found its answer to the argument in the United States Supreme Court decision of Hunter v. Erickson. 47 In Hunter the Court stated: [I] nsisting that a State may distribute legislative power as it desires and that the people may retain for themselves the power over certain subjects may generally be true, but these principles furnish no justification for a legislative structure which otherwise would violate the Fourteenth Amendment. 48 By implication, the California Supreme Court apparently interprets the language from Hunter as precluding the assertion that the questioned validity of the extra majority provisions under the Fourteenth Amendment presents a nonjusticiable political question. IV. RECENT CASES-REVIEW AND ANALYSIS OF WESTBROOK v. MIHALY As previously discussed, the Idaho Supreme Court in Bogert v. Kinzer 49 treated the validity of the extra majority vote provision there involved as being a question of legislative policy only. Three other recent cases reached the merits of the question. In all three the courts involved determined the specific "extra majority" provisions questioned to be unconstitutional under the Fourteenth Amendment. The decisions in two of those cases, Lance v. Board of Education 50 and Rimarcik v. Johansen, 5 were stated in conclu- 45. 2 Cal. 3d 765, 471 P.2d 487, 87 Cal. Rptr. 839 (1970). 46. Id. at 797, 471 P.2d 510, 87 Cal. Rptr. 862. 47. 393 U.S. 385 (1969). 48. Id. at 392. 49. 93 Ida. 515, 465 P.2d 639 (1970). 50. 170 S.E.2d 783 (W. Va. 1969). 51. 310 F. Supp. 61 (D. Minn. 1970).

CREIGHTON LAW REVIEW [Vol. 3 sory fashion and added little to a considered analysis of the problems presented by the "extra majority" provisions. However, in the third and most recent case, Westbrook v. Mihaly, 52 the Supreme Court of California reached its decision upon the basis of an in depth analysis of the problems presented by the challenged validity of the "extra majority" provision there involved. Since that court's examination was well considered, the remainder of this article will be primarily concerned with a review and analysis of the decision in Westbrook. The extra majority vote provision in question in Westbrook v. Mihaly required that general obligation bond proposals of counties, cities, and school districts be approved by two-thirds of these voting at a particular election. 53 In several different elections a majority had voted for the approval of bonds, but in each case the total tabulation fell short of the required two-thirds. 54 As historical background for its decision, the court noted that the extra majority requirement for bond election approval had been part of the California Constitution since 1879.1 5 However, the court tempered any presumption of validity arising from the amendment's record of unquestioned validity by noting that under the equal protection clause of the Federal Constitution the simple passage of time did not render the provision immune from attack. 56 For support, the court referred to the statement from Harper v. Virginia Board of Elections 57 that "[n]otions of what constitutes equal treatment for purposes of the Equal Protection 52. 2 Cal. 3d 765, 471 P.2d 487, 87 Cal. Rptr. 839 (1970). Accord, Foytick v. Aronson, 2 Cal. 3d 818, 471 P.2d 521, 87 Cal. Rptr. 873 (1970); Larez v. Shannon, 2 Cal. 3d 813, 471 P.2d 519, 87 Cal. Rptr. 871 (1970); Alhambra City School Dist. v. Mize, 2 Cal. 3d 806, 471 P.2d 515, 87 Cal. Rptr. 867 (1970). 53. CAL. CONST. art. XI, 18. 54. 2 Cal. 3d at 772, 471 P.2d at 491, 87 Cal. Rptr. at 843. 55. The amendment was originally proposed by the California Constitutional Convention of 1878. The court was unable to discover from the records of the Constitutional Convention or from contemporary judicial opinions why a two-thirds vote requirement, rather than that of a simple majority, was adopted. The court speculated that the provision may have been seen as a method by which most long term indebtedness could be prevented; that it may have been designed to protect property owners from the unrestrained desires of the landless for publicly financed projects; or that it may have reflected an unarticulated premise that only those proposals which could command such substantial consensus should be undertaken. In any event, the court found the "extra majority" provision to be the product of the atmosphere of economic and political crisis prevalent during the depression of the 1870's. See generally 2 Cal. 3d at 776-78, 471 P.2d at 494-95, 87 Cal. Rptr. 846-47. 56. 2 Cal. 3d at 778-81, 471 P.2d at 495-97, 87 Cal. Rptr. 847-49. 57. 383 U.S. 663 (1966).

1970] COMMENTS Clause do change." 58 A part of that "changing notion," the court recognized, is the greatly expanded protection afforded the right to vote. Thus, with the "historic validity" argument disposed of, the court was free to consider the constitutional validity of the "extra majority" bond approval provision on the merits. The California Supreme Court's treatment of the issues presented by the challenge to the validity of the "extra majority" provision involved in Westbrook is best examined from the viewpoint of the arguments advanced in support of the two-thirds provision's validity. Basically these were three: (1) That the equal protection clause has no application to "extra majority" provisions; (2) That if the equal protection clause does apply, the less stringent equal protection test should be adopted; (3) That even if the more stringent or "compelling state interest" test is adopted, the "extra majority" provision is supported by a compelling state interest. The equal protection clause was said not to apply because the "extra majority" bond approval provision of the California Constitution draws no line between groups and creates no classifications. However, the court found that the provision did indeed establish classifications: "[T] hose who favor a proposed bond issue and those who oppose it." 9 Whether the class was "objectively identifiable" prior to election was found to be irrelevant since the court determined that two distinct classes emerged at election time. 60 Another argument advanced as a basis for defeating the application of the equal protection clause was that the state did not discriminate between the two classes established. That each vote be "fully counted," was said to be all the equal protection clause and the cases decided under it could require. However, the court did find discrimination in that those who voted in the affirmative needed twice as many votes to equalize the effect of each negative vote. 6 ' The court summarily stated that: 58. Id. at 669. 59. 2 Cal. 3d at 782, 471 P.2d at 498, 87 Cal. Rptr. at 850. 60. Id. 61. Of the discriminatory effect of the "extra majority" provision the California Supreme Court stated: This is the functional equivalent of according to each person in the former group [those who cast a negative vote] a vote of relatively greater weight precisely because of his position on the issue which is to be decided. In other words, a result identical to that produced by a two-thirds vote requirement could be achieved by requiring only a 50 percent affirmative vote for passage of bond issue propositions but providing that in tabulating the election results each negative vote would be multiplied by two while affirmative votes would be counted at face value. 2 Cal. 3d at 783, 471 P.2d at 499, 87 Cal. Rptr. at 851.

CREIGHTON LAW REVIEW [Vol. 3 It does not require extended discussion to establish that the inevitable result of any extraordinary majority requirement is to give to one group of voters a greater influence on the outcome of an election than to another group of comparable size but opposite conviction. 2 Finally, the court concluded that even though citizens may initially have no constitutional right to vote in a municipal bond election, if such is given to the people, the protection afforded by the equal protection clause is pervasive. 6 3 Again, the court quoted from Harper, supra, that: [0] nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. 64 Thus, the California Supreme Court concluded that the "extra majority" bond approval provision of the state constitution fell within the general penumbra of the prohibitions of the equal protection clause. The determination that equal protection standards were applicable by no means answered the question of the "extra majority" provision's constitutionality under the Fourteenth Amendment. As previously noted, state-authored discriminations are not ipso facto invalid under the equal protection standard. 6 5 In fact, state regulatory authority in the "fiscal and economic area" is virtually unencumbered by the restrictions of the Fourteenth Amendment. 6 Of course, it was the more lenient equal protection standard traditionally associated with the review of state regulation in this "fiscal and economic" area which the California Supreme Court was urged to apply. The court rejected both arguments advanced in support of application of this less stringent equal protection standard. First, the court was told that a vote in a bond issue election is merely a "procedural step" in an "administrative" process of authorizing a particular form of indebtedness, and thus a purely "economic" matter. This argument was found to be conclusory, ignoring the "salient fact that what might be termed an 'administrative' decision is made, in a bond election, by a political method closely resembling direct democracy." 67 Nor could the court find 62. 2 Cal. 3d at 782-83, 471 P.2d at 499, 87 Cal. Rptr. at 851. 63. Id. at 784, 471 P.2d at 500, 87 Cal. Rptr. at 852. 64. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966). 65. See text at notes 18 to 32 supra. 66. See text at notes 18 to 22 supra. 67. 2 Cal. 3d at 786, 471 P.2d at 501, 87 Cal. Rptr. at 853.

19701 COMMENTS any reasons indicating less need for judicial scrutiny within the context of non-representative bond elections. 68 Also, the question of which equal protection standard should apply was held to have been answered by Cipriano v. City of Houma 9 and City of Phoenix v. Kolodziejski, 70 both of which the court read as applying the more stringent equal protection standard to elections similar to the type of bond election involved in Westbrook. 71 Likewise, the court ascribed no significance to the fact that unlike Harper, Kramer, and Cipriano, the Westbrook case did not involve an absolute denial of the franchise. 72 The court simply noted it could find no United States Supreme Court decision intimating that states may restrict or infringe voting rights, upon a mere showing of some rational relationship to a valid purpose, so long as the state stops short of outright denial. 78 If anything, the court found, the cases indicated the contrary, that the more stringent equal protection standard was to be pervasively applied to all state laws denying or diluting the right to vote. Consequently, the only question remaining for the court's decision was whether the "extra majority" provision could be justified as being necessitated by a "compelling state interest." A number of arguments were advanced in Westbrook in support of the "extra majority" provision as being necessary to promote a "compelling state interest." Of course, all were rejected. Of the many factors advanced as evidencing the showing of a "compelling state interest" only a few merit examination here. First, the court rather summarily dismissed the "historic argument," that the amendment's unquestioned status as valid since 1879 was evidence of its being supported by a "compelling state interest." In regard to that argument, the court did admit that the amendment was perhaps necessary to the maintenance of government fiscal integrity when enacted in 1879. 7 4 However, with today's improvement in the quality of governmental and financial administration, and with stringent safeguards regulating the activities of the bond market, the court found the two-thirds requirement's protection to be superfluous. 75 The fact that a num- 68. Id. 69. 395 U.S. 701 (1969). 70. 399 U.S. 204 (1970). 71. 2 Cal. 3d at 786-87, 471 P.2d at 501-02, 87 Cal. Rptr. at 853-54. 72. Id. at 787, 471 P.2d 502, 87 Cal. Rptr. at 854. 73. Id. 74. Id. at 788-90, 471 P.2d 503-04, 87 Cal. Rptr. at 855-56. 75. Id. at 788-89, 471 P.2d at 503, 87 Cal. Rptr. at 855. Other factors which the court regarded as depriving the "extra majority" requirement of

CREIGHTON LAW REVIEW [Vol. 3 ber of states employ a similar "direct election" procedure for bond elections without the "extra' majority" requirement and without consequent unrestrained spending or loss of credit rating also apparently influenced the court's view of the two-thirds requirement as being anachronistic. 7 6 In addition, the court pointed to provisions of the amendment itself which act to insure the state's ability to meet the obligations created by the approval of a bond issue. For instance, a part of the "extra majority" provision in question in Westbrook required the collection of an annual tax sufficient to pay the interest on any indebtedness created and the creation of a sinking fund for the payment of the principle. 77 Rather than acting as a mollifying influence on the tendency of local government to overspend, the court found that the two-thirds requirement actually led local governmental units to seek more expensive methods of financing which didn't require approval of the electorate in order to construct public improvements. 7 8 Perhaps the strongest argument advanced in support of the twothirds provision as being required by a "compelling state interest" was what might be termed the "irrevocable commitment" argument. This argument, simply stated, is that long term borrowing irrevocably commits the future revenues of a community and that such a drastic step should not be undertaken upon the will of a mere majority. The court's answer to this argument was not fully convincing. It stated: [M] any decisions of government at all levels are crucial and irreversible, yet this alone has never been thought a sufficient ground upon which to remove them from the democratic process.' The failure to specify analogous "crucial and irreversible" governmental decisions or to distinguish those situations where such decisions are, by the court's own admission, validly made by an extra its status as being supported by a compelling state interest were: the existence of more responsible and responsive local legislative bodies; the development of a corps of professional administrators and finance officers; improvements in the management of local affairs; and the development and refinement of standards, procedures, and techniques for financial administration. Id. 76. 2 Cal. 3d at 790, 471 P.2d at 505, 87 Cal. Rptr. at 857. 77. Id. at 789-90, 471 P.2d at 504, 87 Cal. Rptr. at 856. 78. The alternative methods of financing mentioned by the court include: creation of special districts, lease-purchase financing, joint powers authority bonds, and, where feasible, revenue bonds. 2 Cal. 3d at 791 n.50, 471 P.2d at 505 n.50, 87 Cal. Rptr. 857 n.50. 79. 2 Cal. 3d at 793, 471 P.2d at 507, 87 Cal. Rptr. at 859.

19701 COMMENTS majority vote renders the "irrevocable commitment" argument a likely candidate for a more intensive review in other state courts or in the United States Supreme Court. 0 V. CONCLUSION Of course, the ultimate outcome of the issues involved in Westbrook and the other extra majority vote cases is a matter for speculation only. Such is the inevitable fortune of all equal protection questions falling under the "compelling state interest" doctrine. 8 ' The determination of what constitutes a "compelling state interest" is purely subjective, no objective standard existing under the constitution or case law. 8 2 Consequently, unlike other doctrines of constitutional adjudication which are either founded upon or create objective standards upon which lower courts can rely in determining issues, the "compelling state interest" doctrine is ultimately based upon the ad hoc inclinations of the justices of the United States Supreme Court. 8 It was to this flaw in the fabric of 80. The following appeals and motions for certiorari have been filed in the lower court "extra majority" vote cases discussed herein: Rimarcik v. Johansen, 310 F. Supp. 61 (D. Minn. 1970), appeal filed, May 5, 1970, 39 U.S.L.W. 3023 no. 147; Westbrook v. Mihaly, 2 Cal. 3d 765, 471 P.2d 487, 87 Cal. Rptr. 839 (1970), cert. filed, September 21, 1970, 39 U.S.L.W. 3115 no. 730; Bogert v. Kinzer, 93 Ida. 515, 465 P.2d 639 (1970), appeal filed, August 11, 1970, 39 U.S.L.W. 3099 no. 523; Lance v. Bd. of Educ., 170 S.E.2d 783 (W. Va. 1969), sub nom., Gordon v. Lance, cert. filed, February 26 1970, 39 U.S.L.W. 3023 no. 96, cert. granted, 397 U.S. 1020 (1970). 81. See text at note 84 infra. 82. As regards "fundamental rights," the "compelling state interest" doctrine stems from Justice Douglas' opinion in Skinner v. Oklahoma, 316 U.S. 535 (1942). 83. Writing in 1959, Professor Wechsler compared the "character" of decisions of the judiciary with those of other branches of government: [P]rinciples are largely instrumental as they are employed in politics, instrumental in relation to results that a controlling sentiment demands at a given time. Politicians recognize this fact of life and are obliged to trim and shape their speech and votes accordingly... [W]hether you are tolerant, perhaps more tolerant than I, of the ad hoc in politics, with principle reduced to a manipulative tool, are you not also ready to agree that something else is called for from the courts? I put it to you that the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved. To be sure, the courts decide, or should decide, only the case they have before them. But must they not decide on grounds of adequate neutrality and generality, tested not only by the instant application but by others that the principles imply? Is it not the very essence of the judicial method to insist upon attending to such other cases, preferably those involving an opposing interest, in evaluating any principle avowed? But what is crucial, I submit, is not the nature of the question

CREIGHTON LAW REVIEW [Vol. 3 the "compelling state interest" doctrine that Justice Harlan addressed the following comments in Shapiro v. Thompson: 8 4 Today's decision [based on the compelling state interest doctrine] reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises. 85 The California Supreme Court's application of the equal protection clause to the extra majority provision considered in the Westbrook case would seem to be undeniably correct. Clearly, two classes are created with inevitable discrimination resulting therefrom against members of the class supporting a particular issue to which an "extra majority" requirement is applicable. Prior to the Supreme Court's decision in Cipriano v. City of Houma" 6 substantial support could be found in a number of cases for limiting the characterization of voting rights as being "fundamental" to elections for representatives only. Indeed, the Court has never explicitly determined that there is a constitutional right to vote. As previously noted, the right to the franchise has been deemed "fundamental" for equal protection purposes. 7 The reason the right to vote is so regarded was orginally stated in Reynolds v. Sims: 88 [S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. 8 The above language could have been read as excluding "nonrepresentative" elections from the more stringent equal protection test but the nature of the answer that may be validly given by the courts. No legislature or executive is obligated by the nature of its function to support its choice of values by the type of reasoned explanation that I have suggested is intrinsic to judicial action-however much we may admire such a reasoned exposition when we find it in those other realms. Wechsler, Toward Neutral Principles of Constitutional Law, 73 HAv. L. REV. 1, 14-16 (1959). 84. 394 U.S. 618 (1969). 85. Id. at 677 (dissenting opinion). 86. 395 U.S. 701 (1969). 87. In Reynolds v. Sims, 377 U.S. 533 (1964) the Supreme Court, at 561-62 stated: "Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society." And, in Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) the Court referred to "the political franchise of voting" "a fundamental as political right, because preservative of all rights." 88. 377 U.S. 533 (1964). 89. Id. at 562.

1970] COMMENTS applied to "fundamental rights." Certainly such elections are not as "preservative of other basic civil and political rights" as are elections for representatives. In addition, Justice Stewart's dissent in Kramer v. Union Free School District 9 " seemed to be directed at the Court's later inclusion of non-representative elections, such as bond elections, within the penumbra of the more stringent equal protection test. Judging by those comments, it is apparent that Justice Stewart would not have preferred to characterize the right to vote in non-representative elections as being "preservative of other basic civil and political rights." He stated: [I]t must be emphasized-despite the Court's undifferentiated references to what it terms "the franchise"-that we are dealing here, not with a general election, but with a limited, special-purpose election. The appellant is eligible to vote in all state, local, and federal elections in which general governmental policy is determined. He is fully able, therefore, to participate not only in the processes by which the requirements for school district voting may be changed, but also in those by which the levels of state and federal financial assistance to the District are determinedy1 Nevertheless, the exclusion of non-representative elections from the now pervasive ambit of the more stringent "compelling state interest" standard of equal protection would seem to be precluded by the Court's decisions in Cipriano and City of Phoenix v. Kolodziejski. 9 2 In Cipriano the court applied the "exacting standard" of equal protection to invalidate a statute which excluded non-property owners from voting in a revenue bond election. 9 3 Similarly, in Phoenix the standard was applied to a general obligation bond election from which non-property owners were excluded. 9 4 Although the elections in Cipriano and Phoenix did not involve an extra majority vote requirement, it is clear that the "more 90. 395 U.S. 621 (1969). 91. Id. at 640. 92. 399 U.S. 204 (1970). 93. 395 U.S. at 652. 94. In Phoenix, the Court stated: Arizona nevertheless excludes nonproperty owners from participating in bond elections and vests in the majority of individual property owners voting in the election the power to approve or disapprove facilities which the municipal government has determined should be financed by issuing general obligation bonds. Placing such power in property owners alone can be justified only by some overriding interest of those owners which the State is entitled to recognize. 399 U.S. at 209.

CREIGHTON LAW REVIEW [Vol. 3 stringent" equal protection test was applied and that it was ap-. plied because the right to vote in the non-representative election in question was considered to be fundamental. Thus, no adequate reason can be shown for not characterizing as fundamental the right to vote in an extra majority bond election, such as that involved in Westbrook. If that right is fundamental, it is axiomatic that the more stringent or "compelling state interest" standard of equal protection should apply. The only question then remaining is whether indeed the state can show that the particular extra majority election in question is necessary to promote a compelling state interest. Unfortunately, that question must of necessity await the ad hoc decision of the United States Supreme Court on each type of extra majority election to be challenged 5 Roy G. Breeling '71 95. But cf. A. Cox, THE WARREN COURT: CONSTITUTIONAL DECISION AS AN INSTRUMENT OF REFORM 130-32 (1968) wherein he states that the United States Supreme Court in Fortson v. Morris, 385 U.S. 231 (1966) read Gray v. Sanders, 372 U.S. 368 (1963) as holding "that a State violates the Fourteenth Amendment when it gives a minority of its people more political power than the majority, because of the unequal treatment thus accorded equally qualified voters."