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United States District Court, Northern District of Illinois, E. D

April 24, 1973


Before Swygert, Chief Circuit Judge, and Decker and McGARR, District Judges.

The opinion of the court was delivered by: Decker, District Judge.


The relevant facts of this case are simple and essentially undisputed. Plaintiff Howard Blassman is a nineteen-year old registered voter who resides in High School District 207, Maine Township, Cook County, Illinois. Mr. Blassman wishes to become an elected member of the District 207 Board of Education. The election will be held April 14, 1973. Plaintiffs Julian Yedor, aged twenty-one, and Robert Amedeo, aged nineteen, are registered voters who reside in District 207 and support the candidacy of plaintiff Blassman. According to the complaint filed in this cause, plaintiff Blassman is in all respects qualified to become a candidate for the aforesaid office except that he has not reached the age of twenty-one as required by Illinois statute. Ill.Rev. Stat. ch. 122, § 10-10. On that basis, defendant Harold Markworth, Secretary of the District 207 Board of Education, refused to accept plaintiff Blassman's nominating petitions and statement of candidacy. Plaintiffs allege that the foregoing statutory provision violates their rights to equal protection of the law, to associate freely and generally to enjoy their civil rights as protected by the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Plaintiffs seek declaratory and injunctive relief barring enforcement of the Illinois statute by defendant Markworth. In accordance with provisions of 28 U.S.C. § 2281 et seq., a three-judge court was convened to consider the constitutionality of the statute in question.*fn1

The principal argument advanced by plaintiffs is that because the twenty-one year old age minimum set forth in the Illinois statute is not supported by any "compelling state interest" it runs afoul of the First and Fourteenth Amendments.*fn2 Reliance is placed upon the general principle that:

  "Before a state can place any restrictions upon
  the freedom to associate freely and to vote, it
  must be shown that a compelling state interest
  justifies such regulation." Bendinger v. Ogilvie,
  335 F. Supp. 572, 574 (N.D.Ill. 1971).

Defendant takes the position that the statutory age requirement is both rationally related to its objective and supported by a compelling state interest. Accordingly, defendant has moved to dismiss the complaint.

While there has been some uncertainty as to the circumstances under which the courts must apply the "compelling interest" test in Fourteenth Amendment cases,*fn3 we do not disagree with plaintiffs' statement of the general principle. There is no question that recent decisions have established the principle that state action regulating suffrage is not immune from the impact of the Equal Protection Clause. However, those decisions were never intended to vitiate the traditional prerogatives of the states in governing their internal affairs. See, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969);*fn4 Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). Cf. Amendment X, United States Constitution; Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct 260, 27 L.Ed.2d 272 (1970); Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). See also, McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). In declaring unconstitutional that portion of the Voting Rights Act Amendments of 1970, which had lowered the minimum voting age to eighteen years for state and local elections, Justice Black, delivering the majority opinion, stated:

  "[T]he Constitution was also intended to preserve
  to the States the power that even the Colonies
  had to establish and maintain their own separate
  and independent governments, except insofar as
  the Constitution itself commands otherwise. My
  Brother Harlan has persuasively demonstrated that
  the Framers of the Constitution intended the
  States to keep for themselves, as provided in the
  Tenth Amendment,*fn8 the power to regulate
  elections. My major disagreement with my Brother
  Harlan is that, while I agree as to the States'
  power to regulate the elections of their own
  officials, I believe, contrary to his view, that
  Congress has the final authority over federal
  elections. No function is more essential to the
  separate and independent existence of the States
  and their governments than the power to determine
  within the limits of the Constitution the
  qualifications of their own voters for state,
  county, and municipal offices and the nature of
  their own machinery for filling local public
  offices. Pope v. Williams, 193 U.S. 621 [24 S.Ct.
  573, 48 L.Ed. 817] (1904); Minor v. Happersett,
  21 Wall. 162 [22 L.Ed. 627] (1875). Moreover,
  Art. I, § 2,*fn9 is a clear indication that the
  Framers intended the States to determine the
  qualifications of their own voters for state
  offices, because those qualifications were adopted
  for federal offices unless Congress directs
  otherwise under Art. I, § 4. It is a plain fact of
  history that the Framers never imagined that the
  national Congress would set the qualifications for
  voters in every election from President to local
  constable or village alderman. It is obvious that
  the whole Constitution reserves to the States the
  power to set voter qualifications in state and
  local elections, except to the limited extent that
  the people through constitutional amendments have
  specifically narrowed the powers of the States.
  Amendments Fourteen, Fifteen, Nineteen, and
  Twenty-four, each of which has assumed that the
  States had general supervisory power over state
  elections, are examples of express limitations on
  the power of the States to govern themselves. And
  the Equal Protection Clause of the Fourteenth
  Amendment was never intended to destroy the States'
  power to govern themselves, making the Nineteenth
  and Twenty-fourth Amendments superfluous. My
  Brother Brennan's opinion, if carried to its
  logical conclusion, would, under the guise of
  insuring equal protection, blot out all state
  power, leaving the 50 States as little more than
  impotent figureheads. In interpreting what the
  Fourteenth Amendment means, the Equal Protection
  Clause should not be stretched to nullify the
  States' powers over elections which they had before
  the Constitution

  was adopted and which they have retained
  throughout our history."

The difficulty in this case lies in the apparent anomaly between holding the states to a strict standard of scrutiny when regulation of the franchise is involved and, at the same time, supporting the principle that the states have the unfettered power to regulate the terms and mechanics of their own elections. Yet, the anomaly disappears if attention is directed to the specific "right" protected by the Fourteenth Amendment. Hence, even if this case involved a direct restriction on the right to vote, which it does not, we could not immediately resort to the compelling interest analysis. The reason is that there is no constitutionally protected right to vote per se. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

  "[T]he Equal Protection Clause confers the
  substantive right to participate on an equal
  basis with other qualified voters whenever the
  State has adopted an electoral process for
  determining who will represent any segment of the
  State's population. See, e. g., Reynolds v. Sims,
  377 U.S. 533 [84 S.Ct. 1362, 12 L.Ed.2d 506];
  Kramer v. Union School District, 395 U.S. 621 [89
  S.Ct. 1886, 23 L.Ed.2d 583]; Dunn v. Blumstein,
  405 U.S. 330, 336 [92 S.Ct. 995, 31 L.Ed.2d 274].
  But there is no constitutional right to vote, as
  such. Minor v. Happersett, 88 U.S. 162 [22 L.Ed.
  627]. If there were such a right, both the
  Fifteenth Amendment and the Nineteenth Amendment
  would have been wholly unnecessary." 93 S.Ct.
  1310 (Opinion of Stewart, J.)

It must be emphasized that equal participation with other qualified voters implies that power is reserved to the states to establish some voter qualifications without "compelling interest" justification. The line may be difficult to draw in some cases, but it is at least clear that absent discrimination based on race, which however trifling is forbidden, the effect of the law must be "invidiously discriminatory" if it is to be proscribed by the Fourteenth Amendment. There is little question that, prior to the Twenty-sixth Amendment, age minimums, as long as they were reasonable, did not fall into the "invidiously discriminatory" category. Oregon v. Mitchell, supra.

    "To be sure, recent decisions have established
  that state action regulating suffrage is not
  immune from the impact of the Equal Protection
  Clause. But we have been careful in those
  decisions to note the undoubted power of a State
  to establish a qualification for voting based on
  age. See, e. g., Kramer v. Union School District,
  395 U.S. 621, 625 [89 S.Ct. 1886, 1888, 23
  L.Ed.2d 583]; Lassiter v. Northampton Election
  Board, 360 U.S., at 51 [79 S.Ct., at 989-990].
  Indeed, none of the opinions filed today suggest
  that the States have anything but a
  constitutionally unimpeachable interest in
  establishing some age qualification as such. Yet
  to test the power to establish an age
  qualification by the `compelling interest'
  standard is really to deny a State any choice at
  all, because no State could demonstrate a
  `compelling interest' in drawing the line with
  respect to age at one point rather than another.
  Obviously, the power to establish an age
  qualification must carry with it the power to
  choose 21 as a reasonable voting age, as the vast
  majority of the States have done.*fn14

We hold that the principles applicable to state election voting qualifications apply with equal force to cases involving qualifications for state offices. As it is our opinion that the states have [had]*fn5 the power, at least under the Equal Protection Clause, to establish the age of twenty-one as a reasonable voting age minimum, they have a similar power with respect to setting reasonable age minimums for state and local offices. We do not find the twenty-one year old age minimum for school board membership to be unreasonable or irrational in terms of the purpose it is designed to serve.

The Illinois Constitution of 1970, Art. 10 § 1, states that educational development is a "fundamental goal" of the people of the state. It provides that "The State shall provide for an efficient system of high quality" public education. The responsibility of the legislature to set qualifications for school board members so as to enhance the probability that competent, mature and experienced individuals will fill those positions is undisputed. Local school boards are entrusted with the expenditure of a large proportion of tax monies, and the quality of education depends on the wise use of these funds. We find it patently reasonable for the state legislature, in fulfilling its responsibility, to insist that a person at least reach the age of twenty-one before assuming the important and heavy responsibility of school board membership.

In Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the Supreme Court considered the application of the "compelling interest" standard to a restriction on candidacy. The case illustrates two principles germane to this case. First, the Court states that the right to be a candidate, like the right to vote, is not per se a "fundamental right" for purposes of the Equal Protection Clause. Second, only a restriction on candidacy which has a substantial and invidiously discriminatory effect on the voters will be "strictly scrutinized" by the courts.

The distinction between the statutory qualification involved in Bullock v. Carter and the statutory qualification challenged here best exemplifies why the strict equal protection analysis is inappropriate in this case. The statute under review in Bullock required candidates for local offices to pay substantial filing fees in order to be placed on primary election ballots. In striking down the statutory requirement, the Court stated that:

    "The initial and direct impact of filing fees
  is felt by aspirants for office, rather than
  voters, and the Court has not heretofore attached
  such fundamental status to candidacy as to invoke a
  rigorous standard of review. However, the rights of
  voters and the rights of candidates do not lend
  themselves to neat separation; laws that affect
  candidates always have at least some theoretical,
  correlative effect on voters. Of course, not every
  limitation or incidental burden on the exercise of
  voting rights is subject to a stringent standard of
  review. McDonald v. Board of Election, 394 U.S. 802
  [89 S.Ct. 1404, 22 L.Ed.2d 739] (1969). Texas does
  not place a condition on the exercise of the right
  to vote, nor does it quantitatively dilute votes
  that have been cast. Rather,

  the Texas system creates barriers to candidate
  access to the primary ballot, thereby tending to
  limit the field of candidates from which voters
  might choose. The existence of such barriers does
  not of itself compel close scrutiny. Compare
  Jenness v. Fortson, 403 U.S. 431 [91 S.Ct. 1970, 29
  L.Ed.2d 554] (1971), with Williams v. Rhodes,
  393 U.S. 23 [89 S.Ct. 5, 21 L.Ed.2d 24] (1968). In
  approaching candidate restrictions, it is essential
  to examine in a realistic light the extent and
  nature of their impact on voters.

    "Unlike a filing-fee requirement that most
  candidates could be expected to fulfill from
  their own resources or at least through modest
  contributions, the very size of the fees imposed
  under the Texas system gives it a patently
  exclusionary character. Many potential office
  seekers lacking both personal wealth and affluent
  backers are in every practical sense precluded
  from seeking the nomination of their chosen
  party, no matter how qualified they might be and
  no matter how broad or enthusiastic their popular
  support. The effect of this exclusionary mechanism
  on voters is neither incidental or remote. Not only
  are voters substantially limited in their choice of
  candidates, but also there is the obvious
  likelihood that this limitation (would fall) more
  heavily on the less affluent segment of the
  community, whose favorites may be unable to pay the
  large costs required by the Texas system.

    "Because the Texas filing fee scheme has a real
  and appreciable impact on the exercise of the
  franchise, and because this impact is related to
  the resources of the voters supporting a
  particular candidate, we conclude, as in
  Harper, [Harper v. Virginia Board of Elections,
  383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169] that the
  laws must be `closely scrutinized' and found
  reasonably necessary to the accomplishment of
  legitimate state objectives in order to pass
  constitutional muster." 405 U.S. at 142-144, 92
  S.Ct. at 855, 856 (Footnotes omitted; emphasis

The distinction between that case and the case before this court should be clear. First of all, the age qualification falls with equal weight on all voters. The challenged classification does not burden more heavily any traditionally recognized "suspect class". Furthermore, the effect on voters is insubstantial. The age minimum does not permanently exclude any candidate, nor more importantly, has it been shown to preclude or substantially narrow the field of candidates who espouse any given political, ideological, and/or socio-economic views. We are simply not prepared to accept the idea that by striking down the age minimum in this case we will be removing a discriminatory barrier to the exercise of plaintiffs' rights to vote and to participate on an equal basis in the political process.

We assume that plaintiffs' allegation that the age minimum abridges the right of free association is founded on the proposition that voters have the right to "associate" politically with candidates within the age group eighteen to twenty-one. Yet under that interpretation of the First Amendment, any qualification on eligibility to hold office would be an abridgment of the freedom to associate. That is not what the framers could have intended, see Art. 1 § 2, cl. 2, United States Const., nor does it conform to the universal interpretation the courts have given to the words "or [abridge] the right of the people peaceably to assemble, and to petition the government for a redress of grievances". Amendment I, U.S. Constitution.

  "The right of `association,' like the right of
  belief (Board of Education v. Barnette,
  319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628), is more than
  the right to attend a meeting; it includes the
  right to express one's attitudes or philosophies
  by membership in a group or by affiliation with
  it or by other lawful means. Association in that

  context is a form of expression of opinion; and
  while it is not expressly included in the First
  Amendment its existence is necessary in making
  the express guarantees fully meaningful."
  Griswold v. Connecticut, 381 U.S. 479, 483, 85
  S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965).

There is absolutely no suggestion here that the statute in question impedes plaintiffs' right "to engage in association for the advancement of beliefs and ideas". N. A. A. C. P. v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958). Cf. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). See also, N. A. A. C. P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Pontikes v. Kusper, 345 F. Supp. 1104 (N.D.Ill. 1972).

Finally, were we to strike down the age minimum requirement here, we would be accomplishing nothing more than substituting our judgment for that of the Illinois legislature. This we decline to do. Although there might be, as plaintiffs suggest, reasons why the present age minimum is undesirable and good reasons why someone old enough to vote should be old enough to serve on a local school board, those reasons should be presented to the legislature, not to a court. Plaintiffs' apparent suggestion that, at least in this instance, there must be equality between the voting age and the age qualification for candidacy is simply unsupportable under any constitutional doctrine known to this court. In fact, the Constitution itself belies such an assertion. Cf. Art. 1 § 2 cl. 2; Art. 1 § 3 cl. 3; Art. 2 § I cl. 4 with Amendment XIV § 2; Amendment XXVI.

Hence, we hold that Ill.Rev.Stat. ch. 122, § 10-10 is the result of a valid exercise of legislative power by the State of Illinois as preserved for it by the Tenth Amendment.

  "In its internal administration the State (so far
  as concerns the Federal Government) has entire
  freedom of choice as to the creation of an office
  for purely state purposes, and of the terms upon
  which it shall be held by the person filling the
  office. . . ." (Emphasis added.) Wilson v. North
  Carolina, 169 U.S. 586, 594, 18 S.Ct. 435, 438, 42
  L.Ed. 865 (1898).

Accordingly, defendant's motion to dismiss is hereby granted.

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