Carrington v. Rash

380 U.S. 89

Case Year: 1965

Case Ruling: 7-1, Reversed

Opinion Justice: Stewart

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Black, Brennan, Clark, Douglas, Goldberg, White


1st Concurring Opinion



1st Dissenting Opinion

Author: Harlan


2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


Herbert Carrington joined the military in Alabama in 1946 and eventually became a sergeant in the U.S. Army. In 1962 he moved his residence to El Paso, Texas, where he lived with his wife and two children. He purchased a home, registered his automobile, paid state taxes, and started a small business. Carrington was assigned to an army facility in White Sands, New Mexico, but commuted from El Paso. He considered Texas his permanent home and planned to live there indefinitely.

In spite of his legal residence in the state, Carrington was denied the right to vote. A provision of the Texas constitution prohibited time spent in the military from counting toward the length of residency required for voter registration. Specifically, the state constitution held that members of the U.S. military who moved their residences to Texas could not vote as long as they remained in the armed forces.

Carrington filed suit against Alan Rash and other local elections officials, claiming that the Texas constitutional provision was a violation of the Fourteenth Amendment's Equal Protection Clause. The Texas Supreme Court rejected Carrington's argument and refused to issue an order commanding local officials to permit him to register to vote.



... Texas has unquestioned power to impose reasonable residence restrictions on the availability of the ballot....

There can be no doubt either of the historic function of the States to establish, on a nondiscriminatory basis, and in accordance with the Constitution, other qualifications for the exercise of the franchise.... This Texas constitutional provision, however, is unique. Texas has said that no serviceman may ever acquire a voting residence in the State so long as he remains in service. It is true that the State has treated all members of the military with an equal hand. And mere classification, as this Court has often said, does not of itself deprive a group of equal protection.... But the fact that a State is dealing with a distinct class and treats the members of that class equally does not end the judicial inquiry....

It is argued that this absolute denial of the vote to servicemen like the petitioner fulfills two purposes. First, the State says it has a legitimate interest in immunizing its elections from the concentrated balloting of military personnel, whose collective voice may overwhelm a small local civilian community. Secondly, the State says it has a valid interest in protecting the franchise from infiltration by transients, and it can reasonably assume that those servicemen who fall within the constitutional exclusion will be within the State for only a short period of time.

The theory underlying the State's first contention is that the Texas constitutional provision is necessary to prevent the danger of a "takeover" of the civilian community resulting from concentrated voting by large numbers of military personnel in bases placed near Texas towns and cities. A base commander, Texas suggests, who opposes local police administration or teaching policies in local schools, might influence his men to vote in conformity with his predilections. Local bond issues may fail, and property taxes stagnate at low levels because military personnel are unwilling to invest in the future of the area. We stress--and this a theme to be reiterated--that Texas has the right to require that all military personnel enrolled to vote be bona fide residents of the community. But if they are in fact residents, with the intention of making Texas their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation.... "Fencing out" from the franchise a sector of the population because of the way they may vote is constitutionally impermissible....

The State's second argument is that its voting ban is justified because of the transient nature of service in the Armed Forces. As the Supreme Court of Texas stated: "Persons in military service are subject at all times to reassignment, and hence to a change in their actual residence ... they do not elect to be where they are. Their reasons for being where they are ... cannot be the same as [those of] the permanent residents ."... The Texas Constitution provides that a United States citizen can become a qualified elector if he has "resided in this State one (1) year next preceding an election and the last six (6) months within the district or county in which such person offers to vote."... It is the integrity of this qualification of residence which Texas contends is protected by the voting ban on members of the Armed Forces.

But only where military personnel are involved has Texas been unwilling to develop more precise tests to determine the bona fides of an individual claiming to have actually made his home in the State long enough to vote. The State's law reports disclose that there have been many cases where the local election officials have determined the issue of bona fide residence. These officials and the courts reviewing their actions have required a "freely exercised intention" of remaining within the State.... The declarations of voters concerning their intent to reside in the State and in a particular county is often not conclusive; the election officials may look to the actual facts and circumstances.... By statute, Texas deals with particular categories of citizens who, like soldiers, present specialized problems in determining residence. Students at colleges and universities in Texas, patients in hospitals and other institutions within the State, and civilian employees of the United States Government may be as transient as military personnel. But all of them are given at least an opportunity to show the election officials that they are bona fide residents....

... By forbidding a soldier ever to controvert the presumption of nonresidence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment. "[T]here is no indication in the Constitution that ... occupation affords a permissible basis for distinguishing between qualified voters within the State." Gray v. Sanders.

We recognize that special problems may be involved in determining whether servicemen have actually acquired a new domicile in a State for franchise purposes. We emphasize that Texas is free to take reasonable and adequate steps, as have other States, to see that all applicants for the vote actually fulfill the requirements of bona fide residence. But this constitutional provision goes beyond such rules.... All servicemen not residents of Texas before induction come within the provision's sweep. Not one of them can ever vote in Texas, no matter how long Texas may have been his true home....



... For reasons set forth at length in my dissent in Reynolds [ v. Sims], I would dismiss the complaint in this case for failure to state a claim of federal right.

I also think this decision wrong even on the Court's premise that it is free to extend the Equal Protection Clause so as to reach state-established voter qualifications. The question here is simply whether the differentiation in voting eligibility requirements which Texas has made is founded on a rational classification. In judging this question I think that the dictates of history, even though the Court has seen fit to disregard them for the purpose of determining whether it should get into the matter at all, should cause the Court to take a hard look before striking down a traditional state policy in this area as rationally indefensible. Essentially the Texas statute establishes a rule that servicemen from other States stationed at Texas bases are to be treated as transients for voting purposes. No one disputes that in the vast majority of cases Texas' view of things accords with fact. Although it is doubtless true that this rule may operate in some instances contrary to the actual facts, I do not think that the Federal Constitution prevents the State from ignoring that possibility in the overall picture. In my opinion Texas could rationally conclude that such instances would likely be too minimal to justify the administrative expenditure involved in coping with the "special problems" entailed in winnowing out the bona fidepermanent residents from among the transient servicemen living off base and sending their children to local schools.

Beyond this, I think a legitimate distinction may be drawn between those who come voluntarily into Texas in connection with private occupations and those ordered into Texas by military authority. Residences established by the latter are subject to the doubt, not present to the same degree with the former, that when the military compulsion ends, so also may the desire to remain in Texas.

And finally, I think that Texas, given the traditional American notion that control of the military should always be kept in civilian hands, emphasized in the case of Texas by its own special historical experience, could rationally decide to protect state and local politics against the influences of military voting strength by, in effect, postponing the privilege of voting otherwise attaching to a service-acquired domicile until the serviceman becomes a civilian and by limiting Texan servicemen to voting in the counties of their original domicile. Such a policy on Texas' part may seem to many unduly provincial in light of modern conditions, but it cannot, in my view, be said to be unconstitutional.