WALGREN v. HOWES, 482 F.2d 95 (1st Cir. 1973)

ERIC WALGREN ET AL., PLAINTIFFS, APPELLANTS, v. MERLE HOWES ET AL., DEFENDANTS, APPELLEES.

No. 73-1045.United States Court of Appeals, First Circuit.Heard May 8, 1973.
Decided July 18, 1973.

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Eric Walgren, pro se.

David M. Roseman, Boston, Mass., with whom H. Theodore Cohen and Tyler Reynolds, Boston, Mass., were on brief, for defendants, appellees.

Appeal from the United States District Court for the District of Massachusetts.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

[1] Appellants Walgren, Glusco and Sherman,[1] proceeding in forma pauperis

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and pro se, appeal from an order of the district court dismissing their complaint against appellees, the members of the Board of Selectmen of the Town of Amherst, for alleged violation of, principally, the First, Fourteenth, and Twenty-Sixth Amendments to the United States Constitution in scheduling a special caucus for town elections on January 19, 1973 when the University of Massachusetts was in the midst of a semester recess.[2] We vacate the order of the district court and remand for further consideration in accordance with this opinion.

[2] All three appellants claimed to be resident voters of the Town of Amherst, 51 M.G.L.A. ch. 51, § 1. Walgren was a candidate for the office of selectman. Sherman is a full-time undergraduate student at the University, residing in one of its dormitories. They were concerned that the Board of Selectmen, as it had done since 1939, had set the annual town election for the third week in February. In accordance with state law,[3] a “special caucus” in the nature of a nonpartisan primary election would be necessary in the event that more than twice as many candidates as the number to be elected for an office might file nomination papers, and such caucus would have to be held at least 31 days, before the town election. Appellants realized that any such special caucus would take place in mid-January when, as alleged in Sherman’s affidavit, “most students who reside on compus during the academic year are required by university policy to vacate their residences and therefore do so.” In that event, it was claimed, a large number of young persons enfranchised by the Twenty-Sixth Amendment would be discouraged from voting since they would have to use the cumbersome and less meaningful method of voting by absentee ballots.

[3] Appellant Walgren, concerned about the youth and student vote, arranged to appear at a Board meeting on December 11, at which time he endeavored to persuade the Board to rearrange the election schedule to encourage maximum voting in the college community. The Board agreed to do so if it was legally permissible,[4] and upon advice of counsel adopted at its December 18 meeting a new election schedule providing for the special caucus to be held on January 29, after the University would have commenced its second semester. Between December 11 and December 18, appellants alleged, the Board received numerous telephone calls from older town residents who objected to plans to accommodate student voters. There being some confusion whether the dates proposed by counsel were in accordance with state law, the Board met and voted on December 19 to adhere to its initial plans to hold the special caucus during the semester recess, simultaneously rejecting another plan prepared by its counsel attempting to eradicate all doubts as to compliance with state law.[5]

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[4] Thereupon appellants filed this suit, contending that the Board action in returning to the initial election schedule, violated the First, Fourteenth and Twenty-Sixth Amendments to the United States Constitution; that it “willfully discourages and prevents full participation in the electoral process by an entire constituency of voters — some 30 per cent of the registered voters of the Town of Amherst”;[6] that the action was arbitrary, discriminatory, and had the purpose to disenfranchise the new student vote in the local elections of Amherst, and to prevent the election of [Walgren] and others, who might represent the interests of young people . . .” They sought to maintain the suit as a class action.

[5] On January 17 the district court denied temporary relief and the special caucus took place as planned.[7] Subsequently appellees replied with a motion to dismiss the suit under F.R.Civ.P. 12 for lack of subject matter jurisdiction, and failure to state a claim upon which relief could be granted, and alternatively, moved for summary judgment. They also claimed that the suit was not properly maintainable as a class action.[8]
Affidavits from various officials at the affected educational institutions were filed. A few weeks later, the court not having ruled on these motions, appellees filed an answer to the complaint which is most easily summarized by stating that it denied virtually all of appellants’ allegations. A hearing was held the day the answer was filed, though the record does not contain a transcript or a summary of testimony. Some days later the district court issued its order, granting appellees’ motions for summary judgment and dismissal for failure to state a claim.

[6] We first note that the district court should not have granted a summary judgment. F.R.Civ.P. 56 may be utilized only when there is “no genuine issue as to any material fact”. Here almost all of the factual claims of appellants were denied by appellees in their answer. Moreover, the affidavits did little to dissolve that real factual controversy. For example, at least one important issue in the case — whether the residence halls at the University were generally closed to students during the semester break so that for this or perhaps another reason a large number of students left town during that period — could not be resolved without an evidentiary hearing. “Summary judgment is not a substitute for the trial of disputed factual issues.” 10 Wright
Miller, Federal Practice Procedure: Civil § 2712 at 379 (1971) cf. Briggs v. Kerrigan,

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431 F.2d 967 (1st Cir. 1970). See Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944).

[7] That the court improperly granted summary judgment does not end our inquiry, for the court also dismissed the suit for failure to state a claim. F.R. Civ. P. 12(b)(6). A remand, therefore, without addressing appellants’ legal arguments in some respect would be less than helpful. We cannot emphasize enough the rule that a court should not dismiss a complaint under 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Ballou v. General Electric Corp., 393 F.2d 398
(1st Cir. 1968). For the reasons hereinafter enunciated, we believe that appellants have presented legal issues which can be resolved only after a trial on the merits.[9]

[8] We first address appellants’ equal protection claim under the Fourteenth Amendment. The appellants argue that the town law setting the election date interferes with the equal exercise of the franchise right — i. e., one large, identifiable class is said to have been deprived of the opportunity to visit personally the polls and must utilize instead the allegedly more cumbersome and less effective method of voting by absentee ballot. They add that the right to participate in elections on an equal basis with other citizens has been denominated a fundamental right, Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16
(1973). They conclude therefore that any infringement of that right must be scrutinized under the compelling interest test Harper, supra; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370
(1970); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

[9] We do not view the compelling interest test as applicable here. There being no allegation that the town has improperly denied absentee ballots to residents requesting them, it has not “totally denied the electoral franchise to a particular class of residents [such that] there [might be] no way in which the members of that class could [make] themselves eligible to vote.” Rosario v.

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Rockefeller, 93 S.Ct. 1245, 1249 (1973).[10] We believe that the instant case, if considered simply as one in which a large, identifiable class is burdened by the choice of a particular election date, must track the analysis in Rosario,
rather than apply the more rigorous compelling interest standard.

[10] The Court engaged in three inquiries. It first considered whether the time limitation before it was “so severe as itself to constitute an unconstitutionally onerous burden” on the exercise of the franchise and freedom of political association. It then asked whether it was “an arbitrary time limit unconnected to any important state goal” which must, of course, be “a legitimate and valid state goal”. Id. 93 S.Ct. at 1251. Finally, the Court noted that there were no less drastic (and feasible) means to effectuate the state’s goal. Id. 93 S.Ct. at 1252 n. 10.

[11] The district court must therefore attempt to assess the nature and weight of the burdens inherent in absentee voting — the separate application, the taking of an oath, and execution of an affidavit, payment of the postage and notary fees, M.G.L.A. ch. 51, § 86 et seq., cf. Bishop v. Lomenzo, 350 F. Supp. 576, 583-584 (E.D.N.Y. 1972), the risk of delay, etc. The judicial inquiry should be focused on the extent of other obstacles, not merely technical, to casting an effective and informed vote. The state goals involved would seem to include the minimizing of fraud, accidental error, disruption of ongoing public and private activities, delay in determining outcome, voter confusion, and the maximizing of voter participation and appraisal of candidates and issues. The connection of the election date to these goals can be answered only by factual inquiries. Lastly, where an election date is set by a town vested with absolute discretion, and the chosen date is found to bear demonstrably on a large and identifiable class of voters, to their disadvantage, the court should explore the feasibility of other dates which have a lesser adverse impact on these voters.

[12] While appellants may be able to meet the burdens of proof imposed upon them under Rosario, supra, their task is not easy. They argue, however, that the town must justify its choice of the election date because there has been an abridgement of the right to vote on account of age in violation of the Twenty-Sixth Amendment. Testing the action of the town under this amendment poses new problems of analysis. Few cases have been decided under it and none pose a fact situation similar to the instant one. Our guidance at this stage of the proceedings is necessarily limited. Perhaps most clear is the purpose of the amendment in the light of its history. In addition to avoiding what would have been an administrative nightmare brought upon by the decision in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272
(1970),[11] the backers of

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the amendment argued that, young persons between 18 and 21 being otherwise treated as adults for purposes of civil and criminal responsibility and military service, it was anomalous to deny them the franchise right; and that the frustration of politically unanticipated young persons, which had manifested itself in serious mass disturbances, occurring for the most part on college campuses,[12] would be alleviated and energies channeled constructively through the exercise of the right to vote. It is this latter goal, seeking to substitute the ballot for the bullet, with which we are concerned. Thus, while the Twenty-Sixth Amendment speaks only to age discrimination, it has, as noted by Senators Percy and Brooke, among many other legislators, particular relevance for the college youth who comprise approximately 50 per cent of all who were enfranchised by this amendment. 117 Cong.Rec. 5817, 5825.

[13] While both the Fifteenth and Nineteenth Amendments served as models for the Twenty-Sixth,[13] more case law has developed under the Fifteenth. Most relevant would seem to be the general admonitory teaching of Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939). Justice Frankfurter, addressing the question whether the Fifteenth Amendment was violated by a state statute which, though neutral on its face, had the effect of enfranchising all white voters through a grandfather clause, while requiring black would-be voters to register within a twelve day period or forever lose the franchise right, wrote as follows:

“The [Fifteenth] Amendment nullifies sophisticated as well as simpleminded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” Lane, supra at 275, 59 S.Ct. at 876.[14]

[14] At other times, the Supreme Court has been even less explicit in its analysis under the Fifteenth Amendment. See, e. g., Hadnott v. Amos, 394 U.S. 358, 364, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969); Lassiter v. Northampton County Board

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of Elections, 360 U.S. 45, 50-54, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959). No clear test has yet emerged to help determine when a statute, which has the effect of placing an unequal burden on a class protected by a voting amendment, may be justified by some compelling governmental objective unobtainable by any less drastic means; or when the burden is so selective and egregious on its face as to constitute an “abridgement” per se.

[15] In this case, a town, given discretion under state law to hold its elections almost anytime, has exercised that discretion with the effect of imposing additional procedural requirements and other disadvantages, inherent in the absentee voting process, on what is alleged to be a large group of young voters, said to be some thirty per cent of those eligible to vote in the town election. A violation of the Twenty-Sixth Amendment is said to have occurred. The parties have not adequately argued this point before us and we prefer to leave its resolution, in the first instance, to the district court. Without attempting to define the boundaries of “abridgement”, we deem it sufficient to state, for now, that it seems only sensible that if a condition, not insignificant, disproportionately affects the voting rights of citizens specially protected by a constitutional amendment,[15]
the burden must shift to the governmental unit to show how the statutory scheme effectuates, in the least drastic way, some compelling governmental objective. In other words, the voting amendments would seem to have made the specially protected groups, at least for voting-related purposes, akin to a “suspect class”, to use the contemporary label. Of course, if the court were to find the burden of such a significant nature as to constitute an “abridgement”, it presumably would not take the additional step of considering the adequacy of governmental justification.

[16] The passage of a constitutional amendment does not take place lightly. It creates serious problems of accommodation as the Fifteenth Amendment demonstrated. The specific problem faced by college communities with concentrated youth populations was faced in the consideration of the Twenty-Sixth Amendment. To the expressed fears of campus takeovers of small communities — since “the student body [is] composed largely of 18 to 21-year-olds” — the candid response in debate was that if students “satisfy the residency requirement of that town obviously they would be entitled to vote.” 117 Cong.Rec. 7538-39, 7547. This is the same answer that the Court gave to the same concern in Carrington, supra 380 U.S. at 94, 85 S.Ct. at 779: “`Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” See also Dunn, supra, 405 U.S. at 356 n. 28, 92 S.Ct. 995.

[17] As Congressman Randall said, “It is quite possible that there may be other laws governing non-Federal elections in

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the various states which will have to be changed to prevent conflict with the proposed intent of this amendment.” 117 Cong.Rec. 7565. The determination whether there is an impermissible conflict with one or more of the goals of this amendment will, should the court reach this issue, admittedly call for sensitive analysis. We cannot say whether or not the election date set by Amherst will prove to be one of the non-federal decisions which are vulnerable under the new amendment. Enough has been said to indicate that this case, appearing no doubt to some as an unnecessary irritant in municipal life, encompasses questions both broad and deep.

[18] Judgment vacated; case remanded for further proceedings consistent with this opinion.

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