MOSK, J.
Plaintiffs appeal from a judgment which upholds a refusal of defendant, Los Angeles County Registrar of Voters, to register plaintiffs as voters. (Elec. Code, § 350.)
This case presents the difficult question whether bona fide conscientious objectors who pleaded guilty more than 20 years ago to a violation of the federal Selective Service Act can constitutionally be treated as persons convicted of an "infamous crime" and hence rendered ineligible to vote by article
The facts are not in dispute. During World War II plaintiff Otsuka, a Quaker, was classified 1A-O, i.e., a conscientious objector subject to noncombatant service in the armed forces of the United States. By reason of his religious training and belief, however, he felt he could not perform military service of any kind and should have been classified 4E, i.e., a conscientious objector subject to civilian work of national importance. He informed his draft board of his decision and refused to report for induction, surrendering himself instead at the office of the New York District Attorney. Upon his plea of guilty he was convicted of a violation of the Selective Service and Training Act of 1940 (former 50 U.S.C. App. § 311), and was sentenced by the federal district court to three years in the penitentiary. He served his term of imprisonment and was duly released.
Plaintiff Abbott's conscientious objection to military participation in any form was recognized by his draft board, and he was classified 4E. He complied with an order to report to a civilian work camp, but subsequently left the camp when it appeared to him that such activity was "an integral part of the war effort." Like Otsuka, Abbott pleaded guilty in federal court to a violation of the Selective Service Act; he was sentenced to two years in the penitentiary, served his term, and was duly released.
Now, more than 20 years later, the Los Angeles County Registrar of Voters has refused to register either plaintiff as a voter because of his wartime conviction of violating the Selective Service Act. It is conceded that in all other respects each
We meet at the threshold an apparent misconception as to the source of the right to vote.
While the right to vote is not among the specifically enumerated rights of the First Amendment, it is nevertheless one which "this [Supreme] Court has been so zealous to protect" (Carrington v. Rash (1965) supra, 380 U.S. 89, 96). For language of the high court typical of its ever-increasing recognition of the importance of this right, we need look no further than the decisions of the 1965 term. Thus "this Court has stressed on numerous occasions, `The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.' Reynolds v. Sims, 377 U.S. 533, 555 [84 S.Ct. 1362, 1378, 12 L.Ed.2d 506, 523]. The right is fundamental `because preservative of all rights.' Yick Wo v. Hopkins, 118 U.S. 356, 370 [6 S.Ct. 1064, 1071, 30 L.Ed. 220, 226]." (Harman v. Forssenius (1965) 380 U.S. 528, 537 [85 S.Ct. 1177, 14 L.Ed.2d 50].) Such matters are "close to the core of our constitutional system" (Carrington v. Rash (1965) supra, 380 U.S. 89, 96) and "vital to the maintenance of democratic institutions" (id. at p. 94, quoting from Schneider v. New Jersey, 308 U.S. 147, 161 [60 S.Ct. 146, 84 L.Ed. 155]). (See also, United States v. Mississippi (1965) 380 U.S. 128, 144 [85 S.Ct. 808, 13 L.Ed.2d 717] ["the right to vote in this country is ... precious"]; Louisiana v. United States (1965) 380 U.S. 145, 153 [85 S.Ct. 817, 13 L.Ed.2d 709] ["The cherished right of people in a country like ours to vote"]; and, finally, the recent case of Harper v. Virginia State Board of Elections (1966) supra, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169, 175 ["the right to vote is ... precious, ... fundamental"].)
In ruling on the validity of state-imposed restrictions on this fundamental right the United States Supreme Court has in effect tended to apply the principle that the state must show it has a compelling interest in abridging the right, and that in any event such restrictions must be drawn with narrow specificity. For example, race, creed, color and wealth are impermissible bases for restricting the right to vote; they are "not germane to one's ability to participate intelligently in the electoral process." (Harper v. Virginia State Board of Elections (1966) supra, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169, 173.) And this court has recently adopted a similar approach in considering a county charter provision prohibiting civil servants from participating in a political campaign or election. (Fort v. Civil Service Com. (1964) 61 Cal.2d 331, 337 [38 Cal.Rptr. 625, 392 P.2d 385].) Viewed in this light, serious constitutional difficulties appear when the disfranchising provision of article II, section 1, is applied to these plaintiffs.
No decision of the California courts has been found discussing this point. The leading state case, quoted and paraphrased in many subsequent decisions and in the encyclopedias, is Washington v. State (1884) 75 Ala. 582 [51 Am.Rep. 479]. The court there said (at p. 585 [75 Ala.]): "It is quite common also to deny the right of suffrage, in the various American States, to such as have been convicted of infamous crimes. The manifest purpose is to preserve the purity of the ballot box, which is the only sure foundation of republican liberty, and which needs protection against the invasion of corruption, just as much as against that of ignorance, incapacity, or tyranny. The evil infection of the one is not more fatal than that of the other. The presumption is, that one rendered infamous by conviction of felony, or other base offense indicative of great moral turpitude, is unfit to exercise the privilege of suffrage, or to hold office, upon terms of equality with freemen who are clothed by the State with the toga of political citizenship. It is proper, therefore, that this class should be denied a right, the exercise of which might sometimes hazard the welfare of communities, if not that of the State itself, at least in close political contests." In this passage lies a frank recognition of at least one tenable ground for depriving a former criminal of the vote: i.e., the fact that such person committed a crime is evidence that he was morally "corrupt" at the time he did so; if still morally corrupt when given the opportunity to vote in an election, he might defile "the purity of the ballot box" by selling or bartering his vote or otherwise engaging in election fraud; and such activity might affect the outcome of the election and thus frustrate the freely expressed will of the remainder of the voters, "at least in close political contests."
These are not fanciful fears.
We must next determine whether the restriction here has been drawn with sufficient specificity.
Defendant nevertheless purports to find the highest authority for the proposition that all persons convicted of felony may, without distinction, be constitutionally excluded from the franchise. Language to this general effect in Gray v. Sanders (1963) 372 U.S. 368, 380 [83 S.Ct. 806, 9 L.Ed.2d 821], Lassiter v. Northampton County Board of Elections (1959) supra, 360 U.S. 45, 51 and Trop v. Dulles (1958) supra, 356 U.S. 86, 96, was, in the context of those cases, mere illustrative dicta which we are not compelled to accept as reasoned decisions by the high court on matters of such significance.
The term "infamous crime" first appeared in our Constitution of 1849, which similarly declared in article II, section 5, that "No idiot or insane person, or person convicted of any infamous crime, shall be entitled to the privileges of an elector." "Infamous crime" was not further defined in the Constitution, but the first session of the Legislature soon filled the gap. Article II of "An Act to Regulate Elections," passed on March 23, 1850, dealt with the qualifications and disabilities of electors. Section 12 thereof was identical with the just-quoted provision of article II, section 5, of the Constitution of 1849; and section 14 declared, "A crime shall be deemed infamous which is punishable by death or by imprisonment in the state prison." (Comp. Laws of Cal. (1850-1853), ch. 140, p. 775.)
For 22 years that definition of "infamous crime" remained on the statute books. In 1872, however, the election laws of 1850 and intervening years were superseded by the new Political Code. Section 1084 of that code restated the general disqualification that "No idiot or insane person, or person convicted of any infamous crime, is entitled to the privilege of an elector." But the statutory definition of "infamous crime" was not reenacted in the new code, nor was any substitute definition provided.
Seven years later the adoption of the Constitution of 1879 further complicated matters. Article II, section 1, of the new Constitution (ante, fn. 1) repeated the now-familiar general language denying the right to vote to persons "convicted of any infamous crime," but then extended the disqualification to the additional category of persons "hereafter convicted of the embezzlement or misappropriation of public money."
Still another complication is presented by article XX, section 11, of the Constitution of 1879 (based on article XI, section 18, of the Constitution of 1849), which directs that "Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes." (Italics added.)
The implications of the foregoing legislative history have
This distinction was again drawn in the California case of Application of Westenberg (1914) 167 Cal. 309 [139 P. 674]. There, a newspaper publisher was prosecuted for criminal libel, a misdemeanor, on a complaint filed in police court. He was convicted, and challenged the jurisdiction of that court by application for habeas corpus. In denying the writ this court said (id. at pp. 319-320): "The only offenses under the old Constitution required to be prosecuted by indictment and which are embraced within `offenses heretofore required to be prosecuted by indictment' in the present Constitution were and are `capital or other infamous crimes.' Crimes are infamous either by reason of their punishment or by reason of their nature. In the first class fall all felonies, as the punishment therefor is imprisonment in the state prison.... At common law crimes which rendered the person doing them infamous were treason, felony,[
"Our conclusion therefore is that as criminal libel is not an infamous crime the constitutional provision relied on does not
There can be no quarrel with the Westenberg decision, provided we bear in mind that it defined "infamous crime" only in the context of an accused's right to be prosecuted by indictment in cases of "capital or other infamous crimes." This distinction was overlooked, however, in Truchon v. Toomey (1953) 116 Cal.App.2d 736 [254 P.2d 638, 36 A.L.R.2d 1230], the first California decision to define "infamous crime" in the totally different context of the voting disqualification imposed by article II, section 1. As its sole authority on this question the court in Truchon quoted from the above language of Westenberg, and concluded (at p. 738) that "under article II of the Constitution a felony is an `infamous crime.'" Similarly, in the only other California decision mentioning the matter (Stephens v. Toomey (1959) 51 Cal.2d 864, 869 [338 P.2d 182]) this court cited Westenberg for the proposition that "Robbery of the first degree is punishable by imprisonment in state prison and is an infamous crime."
Just as the courts have distinguished between different meanings of the term "infamous crime" in considering the incompetency of an ex-convict to testify and an accused's right to be prosecuted by indictment, so also a distinction should be drawn between its meanings in the latter context and as used in restricting the right to vote in article II, section 1.
When the term "infamous crime" is thus construed, the voting disqualification imposed by article II, section 1, is sufficiently narrow in scope to withstand plaintiffs' challenge under the Fourteenth Amendment.
As noted at the outset, here each plaintiff was recognized by the authorities to be a bona fide conscientious objector, but was
The United States Supreme Court has recognized principles such as these to be worthy of the highest respect and protection. In Girouard v. United States (1946) 328 U.S. 61, 68-69 [66 S.Ct. 826, 90 L.Ed. 1085], the court said: "The struggle for religious liberty has through the centuries been an effort to accommodate the demands of the State to the conscience of the individual. The victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State. Throughout the
In view of the foregoing, it cannot reasonably be said that plaintiffs' violation of the Selective Service Act branded them as morally corrupt and dishonest men convicted of an "infamous crime" as that phrase is used in article II, section 1, of the California Constitution.
The judgment is reversed.
Peters, J., Tobriner, J., and Peek, J., concurred.
BURKE, J.
I dissent and would affirm the judgment. By what standard is the Registrar of Voters to determine whether one convicted of crime is thereby branded as a "threat to the integrity of the elective process"? Or whether the crime involved "moral corruption and dishonesty"? For example, would murder qualify? Would the circumstances under which the convicted person committed his crime be considered? If he did it while voluntarily intoxicated, would that fact have a bearing?
In the present case the majority opinon appears to emphasize that plaintiffs "were convicted more than 20 years ago; they paid their debt to society and, for aught that appears in the record, have since been leading exemplary lives." (ante, p. 606.) Does this mean that the time which has lapsed since conviction is to be considered? Should the registrar attempt to learn whether one convicted of crime has since been leading an exemplary life, or whether he has at least attained some degree of rehabilitation? What degree will suffice?
Presumably there are misdemeanors which will qualify for disfranchisement under the construction of "infamous crime" as laid down in the majority opinion, particularly offenses which violate provisions of the Elections Code relating directly to elections and, a fortiori, to the "integrity of the
In my view, the answer to the problems presented by this case is to be found in the provisions of federal and state Constitutions, both of which plainly contemplate disfranchisement for crime. The Fourteenth Amendment of the United States Constitution, here relied upon by plaintiffs, provides in section 2 that the basis of representation among the several states shall be reduced when the right to vote at any election for the choice of electors for President or for other named officials, state and federal, is denied to adult citizens "or in any way abridged, except for participation in rebellion, or other crime, ..." (Italics added.) Although the California Constitution in section 1 of article II declares that "no person convicted of any infamous crime ... shall ever exercise the privileges of an elector in this State," other provisions of the state Constitution appear to contemplate restoration of voting rights under certain circumstances. Section 4 of article II states that "For the purpose of voting, no person shall be deemed to have gained or lost a residence ... while confined in any public prison." In section 25 of article IV appears the following: "The Legislature shall not pass local or special laws in any of the following enumerated cases, ... Twenty-second — Restoring to citizenship persons convicted of infamous crimes." Article VII, section 1, specifies that the Governor of this state may grant pardons after conviction for all offenses except treason and impeachment, upon such conditions and with such restrictions and limitations as he may think proper, and subject to such regulation as may be provided by law relative to the manner of applying for pardons.
The quoted sections thus appear to authorize the provisions made by the Legislature for restoration of voting rights to persons convicted of crime in this state, either by court order
Comparable procedures are provided for seeking presidential pardon for federal offenses, with resulting removal of voting disability. (28 C.F.R., §§ 1.1-1.9; see People v. Bowen (1872) 43 Cal. 439 [13 Am.Rep. 148].)
Despite the mentioned indications of legislative intent, the majority opinion declares that to meet Fourteenth Amendment equal protection challenge, the term "infamous crime" as used in the California Constitution, article II, section 1, must be construed by determining "whether the elements of the crime are such that he who has committed it may reasonably be deemed to constitute a threat to the integrity of the elective process" and "must be limited to conviction of crimes involving moral corruption and dishonesty." Even if this approach be deemed sound, plaintiffs, who were convicted of felonies under federal law (see 18 U.S.C.A. § 1), should be required to pursue their remedy of applying for executive pardon and to make the affirmative showing of rehabilitation and of merit incident thereto, as plainly envisaged by both federal and state Constitutions and the executive pardoning power therein provided (U.S. Const., art. II, § 1; Cal. Const., art. VII, § 1) as well as by the Legislature of this state. Neither the registrars of voters nor the courts ought to be expected to attempt a determination of whether a convicted felon should be permitted to vote, until after he has first exhausted the administrative remedies made available under federal and state procedures.
Traynor, C.J., and McComb, J., concurred.
FootNotes
As distinguished from the controlling constitutional or statutory language in certain of the latter jurisdictions, however, the California provision disfranchises any person "convicted of any infamous crime," without out geographical limitation. It follows, by analogy to the disbarment cases (see, e.g., Barnes v. District Court of Appeal (1918) 178 Cal. 500, 505 [173 P. 1100]), that the place of conviction is irrelevant for the purpose of applying article II, section 1, of our Constitution; the issue is not whose laws have been violated, but whether the conviction was of an "infamous crime."
"Q. Do you feel that you as an individual have any affirmative obligation to society, that made participation in war improper or wrong for you? A. Yes.
"Q. What obligation? A. Well, in an extreme emergency such as war does bring, I feel the obligation to assist in any way possible in a civilian program under civilian direction that would help to alleviate human suffering and to promote greater human happiness, I was willing to participate in a civilian program of rehabilitation assisting in wartorn ravaged areas or in a medical research program, but that was never allowed by my draft board....
"As a general rule I obey the law. I feel that it is my duty to violate the law when it involves my conscience, such as a law requiring racial segregation, or commanding me to enter the armed forces and kill human beings. When I refuse to obey the law I do not do so lightly or casually. It takes all of my faith and courage."
Plaintiff Abbott testified in part:
"Q.... Mr. Abbott, do you feel that you have the duty to obey the law as a general rule? A. I do believe that I have the duty to obey the law as a general rule.
"Q. Do you feel that there are times when you have a duty to violate the law? A. There are times when I have a clear duty to violate a man-made law.
"Q. Can you tell us what times or under what circumstances you feel you have the duty to violate the law? A. After thorough, long, deliberate questioning of myself and all aspects of the action, ...
"In the event of war, while I would not shoot or kill any human being, nor enter military service in any capacity, I would feel morally compelled voluntarily to do all that I could to assist the suffering and the hurt, no matter the risk to myself."
"`Elector' means any person who qualifies under Section 1 of Article II of the Constitution of this State." (Elec. Code, § 20.)
Comment
User Comments