The plaintiffs also claim that the defendant has violated the Equal Protection Clause by limiting the number of registrars with the intent of discriminating against Hispanics. The defendant has moved to dismiss this claim on the grounds that she limits all state civic organizations to two registrars, and therefore cannot be said to have discriminated against Hispanics.
In Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 438, 91 S. Ct. 1940 (1971), a deeply divided Supreme Court upheld a municipality's decision to close all public pools against a challenge that the municipality closed the pools in order to avoid having blacks and whites swim together. The Court held that a discriminatory motivation does not invalidate a facially neutral law, and thus that the pool closing, which on its face impacted on whites equally with blacks, did not violate the blacks' equal protection rights irrespective of the legislature's intent. Id. at 224-25.
The Supreme Court has never expressly overturned Palmer, but it has all but done so. Time and again over the past two decades, the Court has held that facially neutral laws may run afoul of the Equal Protection Clause if they are enacted or enforced with a discriminatory intent. E.g., Washington v. Davis, 426 U.S. 229, 244 n.11, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) ("To the extent that Palmer suggests a generally applicable proposition that legislative purposes is irrelevant in constitutional adjudication, our prior cases . . . are to the contrary.").
In Hunter v. Underwood, 471 U.S. 222, 85 L. Ed. 2d 222, 105 S. Ct. 1916 (1985), the Court faced a law that denied franchise to anyone who had committed "any crime . . . involving moral turpitude." Id. at 223. The plaintiffs challenged the law on the grounds that, though neutral on its face, its purpose was to discriminate against blacks. The district court, citing Palmer, upheld the law on the grounds that, because it was neutral on its face, "proof of an impermissible motive for the provision would not warrant its invalidation." Id. at 225.
The Supreme Court unanimously reversed. Without reconciling Palmer, the Court held that where "a neutral state law . . . produces disproportionate effects along racial lines . . . 'proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection clause.'" Id. at 227-28 (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977)); accord Rogers v. Lodge, 458 U.S. 613, 73 L. Ed. 2d 1012, 102 S. Ct. 3272 (1982). Whatever remains of Palmer does not prevent the plaintiffs here from prevailing on their equal protection claims if they can prove that the defendant imposed the two registrar limit for the purpose of discriminating against Hispanics. See Coalition for Sensible & Humane Solutions v. Wamser, 771 F.2d 395, 400 (8th Cir. 1985).
The defendant next contends that the plaintiffs lack standing to seek invalidation of para. 4-6.2(a) under the Equal Protection Clause because the plaintiffs are not members of organizations which fall outside para. 4-6.2(a)(5), and thus would not obtain relief were this court to hold that members of organizations which are not bona fide State civic organizations could become deputy registrars. This is straw man argumentation at its best. To the extent the plaintiffs seek invalidation of para. 4-6.2(a), they do so on the grounds that anyone should be eligible for appointment as a deputy registrar, not just anyone who is a member of an organization.
In truth, it is difficult to tell whether the plaintiffs even are attacking para. 4-6.2(a) under the Equal Protection Clause. Their complaint and their brief each focuses primarily on the defendant's actions under the Code, not on the Code itself, yet they seek as relief a declaration that para. 4-6.2(a) is unconstitutional.
In any event, the plaintiffs have standing to bring such a claim. Paragraph 4-6.2(a) prohibits most private citizens who are not members of State civic organizations from becoming deputy registrars, and this prohibition unquestionably limits the number of deputy registrars who may be appointed. The plaintiffs allege that they suffer injury from this limitation since it reduces the number of Hispanic registered voters, and thus their voting power as a group:
Were more people eligible for appointment as deputy registrar, the Hispanic voter roles would grow. Thus, the plaintiffs may sue to nullify para. 4-6.2(a). See Coalition for Sensible & Humane Solutions v. Wamser, 771 F.2d at 399; Harris v. Siegelman, 695 F. Supp. 517, 528-29 (M.D. Ala. 1988).
It is high time, however, for the plaintiffs to clarify their equal protection claim. Though they have standing to challenge para. 4-6.2(a), they have not presented any basis for a position that it violates the Equal Protection Clause. They have not alleged that para. 4-6.2(a), though facially neutral, constitutes an intentional effort to discriminate against Hispanics. See Hunter v. Underwood, 471 U.S. 222, 85 L. Ed. 2d 222, 105 S. Ct. 1916 (1985); Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). Nor have they alleged that, by classifying who may become deputy registrars, the Code represents an impermissible infringement on the right to vote. See Anderson v. Celebrezze, 460 U.S. 780, 786-87 n.7, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983); generally James, Voter Registration: A Restriction on the Fundamental Right to Vote, 96 Yale L.J. 1615 (1987). If the plaintiffs have an equal protection claim against the statute, they should make it; if not, they should drop it.
The plaintiffs have two related but distinct First Amendment claims. First, they allege that the defendant has applied para. 4-6.2(a) in violation of their rights to associational freedom by limiting the number of deputy registrars appointed from State civic organizations. Next, they allege that para. 4-6.2(a) on its face violates their associational rights by establishing organizational membership as a prerequisite to becoming a registrar.
The distinction between these two claims is one of degree rather than kind. Underlying both is the assertion that limiting the number of registrars impairs the plaintiffs' ability to associate for political purposes. The difference lies in the limitations imposed: the statute requires membership in a bona fide state civic organization, but sets no limit on the absolute number of registrars; the defendant, on the other hand, has imposed an absolute limit of two on the number of registrars from each such organization.
The First Amendment rights of free speech, press, assembly and petition
incorporate "a right to band together for the advancement of political beliefs." Hadnott v. Amos, 394 U.S. 358, 364, 22 L. Ed. 2d 336, 89 S. Ct. 1101 (1969); Tribe, American Constitutional Law, § 12-26, at 1010. In the electoral context, this right limits the government's power to enact regulations infringing the ability of voters collectively to support candidates and positions of their choice. Williams v. Rhodes, 393 U.S. 23, 30-31, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1969).
The defendant's first argument reflects once again her refusal to come to grips with the nature of the plaintiffs' claims. The defendant maintains that the First Amendment claims must fail because there is no constitutional right to become a deputy registrar. Yet, the plaintiffs do not contend that they have such a right.
Instead, they allege that the restrictions on who may become registrars impinge on the ability of Hispanics to register, and thus on the rights of Hispanics effectively to participate as a group in the electoral process. Cf. Anderson v. Celebrezze, 460 U.S. 780, 786, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983) (primary concern in ballot access cases is on rights of voters, not rights of candidates).
Any registration system obviously imposes burdens on the right to vote. Registration requires time and energy. It also takes place a number of weeks before an election, thereby forcing eligible voters to take action before most elections have hit the front page in the media, and before some voters even know if they will want to participate in the coming election.
Deputy registrars help ease these burdens by allowing for registration closer to home, and often by inspiring voters to register before the registration deadline passes. Limitations on the number and accessibility of deputy registrars stand as obstacles to the ability of eligible voters to participate in the political process. James, Voter Registration: A Restriction on the Fundamental Right to Vote, 96 Yale L.J. 1615, 1629 (1987). Where groups, formal or informal, seek to advance their goals through the electoral process, regulations preventing their members from becoming registrars impair their ability effectively to organize and make their voices heard. See Rhode Island Minority Caucus, Inc. v. Baronian, 590 F.2d 372, 376-77 (1st Cir. 1979).
At the same time, states have an interest in setting reasonable limitations on the appointment of registrars. States require registration in order to prevent voter fraud; the success of the registration system depends upon the integrity of the registrars charged with the responsibility of registering voters. A determination as to the validity of limitations on the appointment of registrars thus requires a multi-factor analysis of "the character and magnitude of the asserted injury" to the plaintiffs' rights, the "legitimacy and strength" of the government's purported interests in limiting the number of registrars, and the "extent to which those interests make it necessary to burden the [plaintiffs'] rights." Anderson v. Celebrezze, 460 U.S. at 789; see Coalition for Sensible & Humane Solutions v. Wamser, 771 F.2d at 400. This analysis must await a later stage in the litigation.
The plaintiffs' motion for class certification is granted nunc pro tunc to September 30, 1988. The defendant's motion to dismiss is denied.