Carrington v. Rash/Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

380 U.S. 89

Carrington  v.  Rash

 Argued: Jan. 28, 1965. --- Decided: March 1, 1965

Mr. Justice HARLAN, dissenting.

Anyone not familiar with the provisions of the Fourteenth Amendment, the history of that Amendment, and the decisions of the Court in this constitutional area, would gather from today's opinion that it is an established constitutional tenet that state laws governing the qualifications of voters are subject to the limitations of the Equal Protection Clause. Yet any dispassionate survey of the past will reveal that the present decision is the first to so hold.

In making this holding the Court totally ignores, as it did in last Term's reapportionment cases, Reynolds v. Sims, 377 U.S. 533 84 S.Ct. 1362, 12 L.Ed.2d 506 (and companion cases), all the history of the Fourteenth Amendment and the course of judicial decision which together plainly show that the Equal Protection Clause was not intended to touch state electoral matters. See my dissenting opinion in Reynolds v. Sims, at 589, 84 S.Ct. at 1395. If that history does not prove what I think it does, we are at least entitled to be told why. While I cannot express surprise over today's decision after the reapportionment cases, which though bound to follow I continue to believe are constitutionally indefensible, I can and do respectfully, but earnestly, record my protest against this further extension of federal judicial power into the political affairs of the States. The reapportionment cases do not require this extension. They were concerned with methods of constituting state legislatures; this case involves state voter qualifications. The Court is quite right in not even citing them. ^[1]

I deplore the added impetus which this decision gives to the current tendency of judging constitutional questions on the basis of abstract 'justice' unleashed from the limiting principles that go with our constitutional system. Constitutionally principled adjudication, high in the process of which is due recognition of the just demands of federalism, leaves ample room for the protection of individual rights. A constitutional democracy which in order to cope with seeming needs of the moment is willing to temporize with its basic distribution and limitation of governmental powers will sooner or later find itself in trouble.

For reasons set forth at length in my dissent in Reynolds, I would dismiss the complaint in this case for failure to state a claim of federal right.

I also think this decision wrong even on the Court's premise that it is free to extend the Equal Protection Clause so as to reach state-established voter qualifications. The question here is simply whether the differentiation in voting eligibility requirements which Texas has made is founded on a rational classification. In judging this question I think that the dictates of history, even though the Court has seen fit to disregard them for the purpose of determining whether it should get into the matter at all, should cause the Court to take a hard look before striking down a traditional state policy in this area as rationally indefensible.

Essentially the Texas statute establishes a rule that servicemen from other States stationed at Texas bases are to be treated as transients for voting purposes. No one disputes that in the vast majority of cases Texas' view of things accords with fact. Although it is doubtless true that this rule may operate in some instances contrary to the actual facts, I do not think that the Federal Constitution prevents the State from ignoring that possibility in the overall picture. In my opinion Texas could rationally conclude that such instances would likely be too minimal to justify the administrative expenditure involved in coping with the 'special problems' (ante p. 96) entailed in winnowing out the bona fide permanent residents from among the transient servicemen living off base and sending their children to local schools.

Beyond this, I think a legitimate distinction may be drawn between those who come voluntarily into Texas in connection with private occupations and those ordered into Texas by military authority. Residences established by the latter are subject to the doubt, not present to the same degree with the former, that when the military compulsion ends, so also may the desire to remain in Texas.

And finally, I think that Texas, given the traditional American notion that control of the military should always be kept in civilian hands emphasized in the case of Texas by its own special historical experience, ^[2] could rationally decide to protect state and local politics against the influences of military voting strength by, in effect, postponing the privilege of voting otherwise attaching to a serviceacquired domicile until the serviceman becomes a civilian and by limiting Texas servicemen to voting in the counties of their original domicile. ^[3] Such a policy on Texas' part may seem to many unduly provincial in light of modern conditions, but it cannot, in my view, be said to be unconstitutional.

Thus, whether or not this Court has subject matter jurisdiction in this case, the judgment of the Supreme Court of Texas should not be disturbed.

Notes

1. None of the cases on which the Court does rely lends any support to its decision.
2. The 1837 election law of the Republic of Texas, § 9, provided 'That regular enlisted soldiers, and volunteers for during the war, shall not be eligible to vote for civil officers.' 2 Laws of Republic of Texas, p. 8, in 1 Gammel, Laws of Texas, p. 1350. 'This provision was no doubt inspired by the mutinous conduct of the nonresident volunteers who had been recruited in the United States after the Battle of San Jacinto. They had defied the provisional government and on one occasion in July, 1836, had sent an officer to arrest President David G. Burnett and his cabinet to bring them to trial before the army. They had continued their rebellious conduct after Sam Houston became the first president under the Constitution of 1836. It was not until May, 1837, that Houston was able to dissolve the army and eliminate this threat to civil authority. This provision disfranchising soldiers in the regular army was placed in the 1845 Constitution of the State of Texas and has remained in each succeeding constitution. It was modified in 1932 to exempt the National Guard and reserve and retired officers and men.' McCall, History of Texas Election Laws, 9 Vernon's Ann.Tex.Civ.Stat., p. XVII-XVIII (1952).
3. Tex.Const., Art. VI, § 2, quoted in Court's opinion, ante, n. 1.