This is a proceeding for writ of mandate brought by three ex-felons to compel respondent election officials to register them as voters. The case calls into question once again the constitutionality of provisions of California law excluding from the franchise all persons who have been
Petitioner Ramirez is a 43-year-old farmworker, married, with five children. Twenty-one years ago he was convicted in Texas of a felony entitled "robbery by assault." He avers that the offense arose out of an argument in a restaurant, and that at the trial he was without counsel and pleaded guilty on the advice of the judge. After serving only three months in jail he was released on parole. His parole successfully terminated 11 years ago.
In February 1972 petitioner applied to register to vote in San Luis Obispo County. He was refused registration by respondent San Luis Obispo County Clerk on the sole ground that he had been convicted of a felony and had spent some time in incarceration.
Petitioner Lee, a resident of Salinas, is 54 years old, married, with four children. Eighteen years ago he was convicted of the felony of possession of heroin. After serving two years in prison he was released on parole. His parole successfully terminated 14 years ago.
In March 1972 petitioner applied to register to vote in Monterey County. He was refused registration by respondent Monterey County Clerk on the sole ground that he had been convicted of a felony and had not obtained a pardon from the Governor.
Petitioner Gill is a 45-year-old winery worker, married, with four children. He was convicted in 1952 and 1967 of second degree burglary, and in 1957 of forgery. He avers that his offenses arose out of efforts to obtain money to support a narcotics addiction. On each conviction he served some time in prison, followed by a successful parole.
In April 1972 petitioner applied to register to vote in Stanislaus County. He was refused registration by respondent Stanislaus County Clerk on the sole ground of his prior felony convictions.
Our alternative writ of mandate directed that respondents "register to vote all ex-felons whose term[s] of incarceration and parole have expired and who upon application demonstrate that they are otherwise fully qualified to vote," or show cause why this should not be done. The Clerks of San Luis Obispo, Monterey and Stanislaus Counties decided not to contest the issue and advised the court they will hereafter register all such ex-felons who apply, presumably including the present petitioners. It does not follow, however, that this proceeding should be dismissed as moot. The acquiescence of the three named county clerks is in no way binding on election officials of the 55 other counties of California in which the petitioners might choose to reside. Moreover, it is undisputed that in many of those other counties there are ex-felons among the resident population who have been or would be refused registration on the precise ground here challenged.
We conclude that under both the present and former article II of our Constitution, the controlling issue is whether the disfranchisement of all persons who have been convicted of crime violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.
When this issue was presented to us in Otsuka v. Hite (1966) supra, 64 Cal.2d 596, we resolved it by invoking the then current rules for applying the equal protection clause to a restriction on a fundamental interest
We then turned to the second branch of the prevailing equal protection test, namely, an inquiry into whether the restriction was "drawn with sufficient specificity." (Id. at p. 603.) At the time of Otsuka, however, the contours of that requirement had not been clearly delineated by the United States Supreme Court. The most recent authority then was Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663 [16 L.Ed.2d 169, 86 S.Ct. 1079], filed just 60 days before Otsuka. In holding that a state poll tax violated the equal protection clause, the high court reasoned (at p. 666 [16 L.Ed.2d at p. 172]) that "Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax." (Italics added; fn. omitted.)
Our analysis in Otsuka followed the traditional path. We began (at p. 603) by quoting McLaughlin v. Florida (1964) 379 U.S. 184, 191 [13 L.Ed.2d 222, 228, 85 S.Ct. 283], for the proposition that "The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose." (Italics added.) We then demonstrated the "unreasonableness" of a classification which disfranchises all ex-felons without distinction: raising the possibility of citizens losing the right to vote upon conviction of felonies of a comparatively minor nature, we cited Harper for the conclusion that "No reasonable relation is apparent between this result and the purpose of protecting the integrity of the elective process." (Italics added.) Such malum prohibitum conduct, we reiterated, may be "totally unrelated to the goal of preservation of the integrity of the elective process." (Italics added; fn. omitted.) (Id. at p. 606.)
Accordingly, in order to save the constitutionality of article II we held that it could be permitted to disfranchise only those voters who had been convicted of a certain limited class of offenses which we defined as follows
In Kramer v. Union School District (1969) 395 U.S. 621 [23 L.Ed.2d 583, 89 S.Ct. 1886], the United States Supreme Court was called upon to review the constitutionality of a New York statute which excluded from voting in school district elections persons who neither owned nor leased real property in the district, or who were not parents of children in the local schools. The court set forth the controlling test in the following language (at pp. 626-627 [23 L.Ed.2d at p. 589]): "if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest." (Italics added.)
The school authorities contended they had a compelling interest in limiting the right to vote in school district elections to persons "primarily interested in school affairs." The high court assumed arguendo that the claimed concern was legitimate, but emphasized (at p. 632 [23 L.Ed.2d at p. 592]) that the classifications resulting from the statute must nevertheless "be tailored so that the exclusion of appellant [a nonparent neither owning nor leasing real property in the district] and members of his class is necessary to achieve the articulated state goal." (Italics added; fn. omitted.) Invalidating the statute, the court held the classifications were not "necessary" in the sense that they were both overinclusive and underinclusive.
In two cases decided last term the United States Supreme Court struck down state-imposed restrictions on the franchise on the ground they were not "necessary" in yet another sense, i.e., they were not the least burdensome means available of achieving the articulated state interest. First, in Bullock v. Carter (1972) 405 U.S. 134 [31 L.Ed.2d 92, 92 S.Ct. 849], the court unanimously invalidated a Texas statutory scheme whereby certain candidates for public office were required to pay substantial filing fees for the right to run in primary elections. The court recognized that the state has a legitimate interest in regulating the number of candidates on the ballot and in protecting "the integrity of its political processes from frivolous or fraudulent candidacies." (Id. at p. 145 [31 L.Ed.2d at p. 101].) The court also conceded that large filing fees will tend in fact to limit the number of candidates on the ballot, and "There may well be some rational relationship between a candidate's willingness to pay a filing fee and the seriousness with which he takes his candidacy" (id. at pp. 145-146 [31 L.Ed.2d at p. 101]). Nevertheless the court ruled (at p. 146 [31 L.Ed.2d at p. 101]) not only that the filing fee requirement was both underinclusive and overinclusive, but also that "other means to protect those valid interests are available." The court did not articulate the "other means" intended, but we infer from its reliance on Jenness v. Fortson (1971) 403 U.S. 431 [29 L.Ed.2d 554, 91 S.Ct. 1970], that such means at least include the use of nominating petitions signed by a prescribed percentage of registered voters.
Even more in point is Dunn v. Blumstein (1972) 405 U.S. 330 [31 L.Ed.2d 274, 92 S.Ct. 995], decided a month after Bullock. At issue in Dunn was the constitutionality of the requirements of Tennessee law that a voter be a resident of the state for one year and of the county for 90 days in order to exercise the suffrage. The high court reiterated the strict equal protection test of Kramer (id. at p. 342 [31 L.Ed.2d at p. 284]), and emphasized in particular that "It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means which unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with `precision,' [citations] and must be `tailored' to serve their legitimate objectives. [Citation.] And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the
Tennessee first contended it had a compelling interest in "preserving the purity of the ballot box." The high court apparently found this phraseology somewhat overblown, calling it a "formidable sounding" state interest. (Id. at p. 345 [31 L.Ed.2d at p. 286].) But the court then conceded that when the purpose of the statutory scheme is narrowed down to prevention of election fraud by nonresidents' falsely swearing they are eligible to vote, it does constitute a legitimate governmental goal. Nevertheless, the court held that durational residence requirements were not "necessary" to achieve that goal because two less burdensome means of doing so were available.
First, the court stressed that early abuses have been eliminated by the development of elaborate procedural safeguards governing election practices: "Durational residence laws may once have been necessary to prevent a fraudulent evasion of state voter standards, but today in Tennessee, as in most other States, this purpose is served by a system of voter registration. [Citations.] Given this system, the record is totally devoid of any evidence that durational residence requirements are in fact necessary to identify bona fide residents." (Fn. omitted.) (Id. at p. 346 [31 L.Ed.2d at p. 286].)
Second, the court gave full weight to the fact that election fraud in Tennessee is also punishable as a crime: "Our conclusion that the waiting period is not the least restrictive means necessary for preventing fraud is bolstered by the recognition that Tennessee has at its disposal a variety of criminal laws which are more than adequate to detect and deter whatever fraud may be feared." (Fn. omitted.) (Id. at p. 353 [31 L.Ed.2d at p. 290].) After reviewing a half-dozen Tennessee statutes defining "offenses to deal with voter fraud," the court concluded (at pp. 353-354 [31 L.Ed.2d at p. 291]): "Where a State has available such remedial action to supplement its voter registration system, it can hardly argue that broadly imposed political disabilities such as durational residence requirements are needed to deal with the evils of fraud." (See also United States v. State of Texas (W.D.Tex. 1966) 252 F.Supp. 234, 251, fn. 71, motion to affirm granted without opinion, 384 U.S. 155 [16 L.Ed.2d 434, 86 S.Ct. 1383].)
In a group of cases after Castro not involving the exercise of the franchise but challenging statutes affecting other fundamental rights or based on suspect classifications, we likewise held that a restriction which is not the least burdensome available is not "necessary" to promote any state interest.
Again, in Zeilenga v. Nelson (1971) supra, 4 Cal.3d 716, Camara v. Mellon (1971) 4 Cal.3d 714 [94 Cal.Rptr. 601, 484 P.2d 577], and Thompson v. Mellon (1973) ante, p. 96 [107 Cal.Rptr. 20, 507 P.2d 628], we held that residence requirements of five, three, and two years respectively for candidacy for public office were not necessary to insure that the candidate was knowledgeable about local conditions, because such requirements
Finally, we applied this test in a recent voting rights case. The issue in Young v. Gnoss (1972) supra, 7 Cal.3d 18, was the constitutionality of the requirements of California law that a voter be a resident of the county for 90 days and of the precinct for 54 days in order to exercise the suffrage. After rejecting certain claimed justifications for these durational residence requirements as insufficiently compelling (id. at pp. 24-26), we considered the asserted need to furnish local election officers with affidavits of registration and indexes of registered voters so as to permit identification of prospective voters. The timely delivery of such documents, we said, is "essential to the conduct of the election, and constitutes a compelling governmental interest. But the question remains whether the closing of registration 54 days before the election is necessary to achieve that goal." (Italics added.) (Id. at p. 26.)
We found no such necessity. Instead, we emphasized that alternate means were available to solve the problem of a last-minute influx of registrations, e.g., by delivering the affidavit books and voter indexes in two cycles rather than one. (See also Stats. 1972, ch. 1356.) We therefore concluded (at pp. 26-27) that to cut off all registration 54 days before the election in order to promote this governmental purpose "is not the method which is the least burdensome on the exercise of the right of suffrage within the meaning of Dunn." (Italics in original.)
In the light of this evolution of the law of equal protection, the analysis in Otsuka of the constitutionality of disfranchising persons convicted of crime appears no longer adequate.
In the early years of California political history, that scheme was rudimentary at best. The first act to regulate elections (Stats. 1850, ch. 38, p. 101) included only a handful of sections governing the casting and counting of votes. The statute declared that "The voting shall be by ballot" (§ 24), but made no provision for furnishing official ballots printed by the state and uniform in appearance and content. Instead, each voter brought his own ballot or "ticket" to the polls, consisting of a piece of paper on which he had written — or, more commonly, a political party or candidate had printed — his choices for the various offices.
Although challenges were permitted (§§ 27-31), no voter was required to register, and the ballots were obviously not numbered. The statute simply provided (§ 25) that "Whenever any person offers to vote, the Inspector shall pronounce his name in an audible voice, and if there be no objection to the qualification of such person as an elector, shall receive his ballot, and in the presence of the other Judges put the same, without being opened or examined, into the ballot box." The system thus made it possible for unqualified persons such as nonresidents or aliens to vote, and for a voter in a single election to cast a ballot more than one time or at more than one polling place. Moreover, "Because the ballot box usually stood
Finally, "The problem was compounded because the dominant political faction in a precinct, ward, or county, usually controlled the appointment of election officials. Therefore, even if the voting was conducted by the rules, it was uncertain whether the ballots would be honestly tabulated." (Petersen, op. cit., supra, p. 229.) Little assurance could be gained from the statute, which provided only that after closing the polls the election officials were to open the ballot box, count the ballots, and send the totals to the county clerk either by mail or "by private hand." (§§ 33-36.)
In such circumstances the disfranchisement of persons convicted of an "infamous crime" (§ 12) may well have been necessary to minimize the more egregious frauds practiced on the electorate by unscrupulous candidates or voters. But the law on this subject has not remained static. In the ensuing century there have been numerous movements for electoral reform, resulting in a complex series of amendments to the voting laws. To cite only the major legislative efforts to curb election fraud, we note that in 1866 the first voter registration act was adopted. (Stats. 1865-1866, ch. 265, p. 288.) In 1872 the new Political Code required that every ballot "be of paper uniform in size, color, weight, texture, and appearance" (§ 1187), specified in detail the size and content of the ballot (§ 1191), and directed the Secretary of State to procure and sell such paper to the public (§§ 1188-1189). The code also contained elaborate provisions designed to promote secrecy in voting by forbidding that a ballot be marked on the outside or folded in any manner intended to indicate its contents. (§§ 1196-1199, 1206-1207.)
Voting secrecy was assured, however, by the adoption of the Australian ballot two decades later. (Stats. 1891, ch. 130, p. 165.) Under this legislation
After several false starts, the Legislature has also taken advantage of various technological developments in the election process. Each such development, of course, has tended to make it more difficult for dishonest individuals to tamper with either the casting or the counting of the ballots. Thus in 1903 the use of voting machines was authorized, permitting mechanical tabulation of results. (Stats. 1903, ch. 226, p. 262; see also Stats. 1923, ch. 96, p. 182.) In 1949 the Legislature provided for punch-card voting and electromechanical tabulation. (Stats. 1949, ch. 41, p. 57.) And in 1953 it authorized the marking of ballots by specially prepared pencils, with consequent electronic tabulation of the vote. (Stats. 1953, ch. 1046, p. 2514.)
Taken together, these and other reforms of the past hundred years have radically diminished the possibility of election fraud in California. The voting and counting process is now thoroughly hemmed in by control mechanisms at every stage, so that deliberate irregularities, "if present today, are rare and have negligible effects on election results." (Note (1967) 14 U.C.L.A.L.Rev. 699, 702 (reporting that the Los Angeles County Registrar of Voters had received no complaints of this type for the previous 41 years).) In sum, it may have been feasible in 1850 to influence the outcome of an election by rounding up the impecunious and the thirsty, furnishing them with free liquor, premarked ballots, and transportation to the polls; to do so in 1973, if possible at all, would require the coordinated skills of a vast squadron of computer technicians.
Turning to the second point emphasized in Dunn — the range of penal sanctions available to prevent election fraud — we observe a similar development. The California Constitution has directed since its inception that the right to vote shall be supported by laws not only regulating elections but also "prohibiting, under adequate penalties, all undue influence
In holding that a challenge to state laws identical to those here in issue required the convening of a three-judge federal court, the Ninth Circuit Court of Appeals reasoned: "Earlier in our constitutional history, laws disenfranchising persons convicted of crime may have been immune from attack. But constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber. `Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.' (Harper v. Virginia Board of Elections (1966) 383 U.S. 663, 669, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169.) In the wake of the many decisions dismantling restrictions on voting rights, we cannot say that this challenge to Washington laws is now unsubstantial." (Dillenburg v. Kramer (1972) supra, 469 F.2d 1222, 1226.)
The same challenge to California's laws on this topic is not only substantial, it is meritorious.
The alternative writ, having served its purpose, is discharged, and the petition for peremptory writ is denied. All parties shall recover their costs from the State of California. (See Code Civ. Proc., § 1095.)
Wright, C.J., McComb, J., Tobriner, J., Burke, J., Sullivan, J., and Taylor, J.,
There is no merit in petitioners' argument that deletion of the word "ever" signifies that a person convicted of crime is hereafter disfranchised only so long as he is on probation or is serving his sentence. In drafting the amendments which eventually became new article II, the California Law Revision Commission proposed express language to limit disfranchisement to that period. (Cal. Const. Revision Com., Proposed Revision of the Cal. Constitution (1970) pt. 2, p. 18.) The Legislature, however, declined to adopt the change when it submitted Proposition 7 to the voters.
Section 12000: "A person shall not directly or through any other person receive, agree, or contract for, before or during an election, any money, gift, loan, or other valuable consideration, office, place, or employment for himself or any other person for either:
"(a) Voting or agreeing to vote.
"(b) Coming or agreeing to come to the polls.
"(c) Refraining or agreeing to refrain from voting.
"(d) Voting or agreeing to vote for any particular person.
"(e) Refraining or agreeing to refrain from voting for any particular person."
Section 12001: "A person shall not directly or through any other person receive any money or other valuable thing, during or after an election, because he or any other person:
"(a) Voted or refrained from voting for any particular person.
"(b) Came to the polls or remained away from the polls.
"(c) Induced any other person to:
Section 12003: "A person shall not directly or through any other person pay, lend, or contribute, or offer or promise to pay, lend, or contribute, any money or other valuable consideration to or for any voter or to or for any other person to:
"(a) Induce the voter to:
"(b) Reward the voter for having:
Each of these offenses is punishable by an indeterminate prison term of one to seven years. (§ 12012.)