Ten years after Baker v. Carr (1962),¹ the United States Supreme Court would decide another voting rights case arising in Tennessee. Once again, the court would strike down a state statute for violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 2022 is the 50th anniversary of this landmark decision of Dunn v. Blumstein (1972).²

Vanderbilt Law Professor James Blumstein in the 1970s.

On June 12, 1970, young James Blumstein, a native of New York and recent graduate of Yale Law School, arrived in Tennessee to commence teaching that summer at Vanderbilt Law School in Nashville. With elections approaching in August and November, on July 1, Blumstein went to the Davidson County registrar’s office to register to vote but was refused.3

The law required those moving to Tennessee to live in the state for one year before registering. Also, there was a three-month county residency requirement applicable to those moving into the state and to Tennesseans moving from one county to another.⁴ It was claimed these measures helped to prevent fraud and allowed new residents time to become knowledgeable of “the local viewpoint” before voting.⁵

During the summer of 1970, primary campaigns were raging as a resurgent Tennessee GOP had its sights on Democratic U.S. Senator Albert Gore Sr.’s seat and the governorship. (In November, Chattanooga Republican Congressman Bill Brock would win the Senate race and Memphis dentist Winfield Dunn would be the first Republican elected governor in 50 years.)⁶ Determined to vote, Blumstein sought relief at the election commission but was turned away because of the residency requirements.⁷

Victory at the District Court

Blumstein invented the novel concept of a sealed provisional ballot, now a federal requirement when a ballot is contested. He convinced election officials to take and hold it. Therefore, his votes could be counted if his lawsuit succeeded, then he went to court. Representing himself in Blumstein v. Ellington,⁸ and not yet a member of the Tennessee bar, the professor filed suit in July in the U.S. District Court for the Middle District of Tennessee, and a three-judge panel, as in Baker v. Carr, was appointed to hear the case alleging violations of equal protection.⁹

Although the federal trial court agreed Blumstein’s ballot for the November general election should be counted, Judge Frank Gray had earlier observed that the challenge to the three-month county residency requirement would be moot when the November general election took place. However, after filing a 16-page, legal-size memorandum, Blumstein convinced the court the exception of “capable of repetition, yet evading review” should prevent his claim from being deemed moot, since he represented a recurring class of disenfranchised voters. (He calculated that at any time 3.3% of Tennesseans were disenfranchised by the one-year requirement and 3.3% by the three-month requirement.)¹⁰

The same reasoning would be applied in Roe v. Wade,¹¹ because the litigation and appeal of every abortion case would take longer than pregnancy. So, for the judiciary to address such critical questions, an exception to the mootness doctrine is necessary.

On the same day, Blumstein received the District Court order ruling in his favor and his notice that he passed the Tennessee bar exam. He later said, “it was my best mail day ever.”¹²

Justice Thurgood Marshall (1908-1993) served on the U.S. Supreme Court from 1967 to 1991

Victory at the Supreme Court

The victory in the U.S. District Court was news across Tennessee, and in response Blumstein’s life was threatened. And, after hesitating at first, Tennessee’s attorney general, David Pack, appealed directly to the U.S. Supreme Court. Accordingly, on Nov. 16, 1971, Blumstein appeared before the Supreme Court pro se in his first case at the age of 26. Robert H. Roberts, assistant Tennessee attorney general, argued for the state. With a change in administrations resulting from the consequential November 1970 general election, Governor Winfield Dunn, in his official capacity, was substituted for former Governor Buford Ellington as the first named appellant.

In the six-to-one decision of Dunn v. Blumstein,¹³ rendered on March 21, 1972, with the majority opinion written by Justice Thurgood Marshall, the High Court applied the compelling interest test because fundamental rights of voting and interstate travel were involved. In doing so, the justifications advanced for the two waiting periods were found wanting.

The court held the 30-day waiting period for residents not newly arriving is sufficient to perform the administrative tasks needed to prevent fraud by those claiming to be new residents, and the state cannot assume non-residency by failure to meet the one-year state and three-month county waiting periods. Justice Marshall stated:

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 that are more than adequate to detect and deter whatever fraud may be feared.¹⁴

Finally, the court concluded there was an insufficient relationship between the state’s interest in delaying the right to vote so new arrivals have time to become better informed.¹⁵

Blumstein did not expect to win Justice Harry Blackmun to his side. But Blumstein’s father, a math teacher and an excellent judge of people, was in the audience. He assured his son that from observing Blackmun’s body language, he had his vote.¹⁶ The elder Blumstein was correct. Blackmun joined the majority. Nevertheless, the professor said of the justice’s concurring opinion, “he needled me for launching what he disparagingly called a test case.”¹⁷

Blackmun stated:

Usually, such zeal to exercise the franchise is commendable. The professor, however, encountered — and I assume, knowingly so — the barrier of the Tennessee durational residence requirement and, because he did, he instituted his test suit.¹⁸

The lone dissenter, Chief Justice Warren Burger, reasoned:

It is no more a denial of equal protection for a State to require newcomers to be exposed to state and local problems for a reasonable period such as one year before voting, than it is to require children to wait 18 years before voting.¹⁹

Chief Justice Warren E. Burger (1907-1995) served on the Supreme Court from 1969 to 1986.

The subsequent public release of internal Supreme Court papers revealed that Chief Justice Burger asked Justice Blackmun to write a dissent, indicating that Blackmun had been in dissent earlier on. But, based on a more careful review, Blackmun went with the majority, and Burger wrote a dissent for himself alone.²⁰

Professor James Blumstein teaches constitutional and health law at Vanderbilt Law School.

Considering those enfranchised by the case in Tennessee, and in the many other states having similar unconstitutional barriers to voting, Blumstein recently said, “Dunn v. Blumstein likely enfranchised more voters than any other single case.”²¹ The recording of the young lawyer’s skillful argument before the Supreme Court can be heard online.²² Concerning today’s ongoing national debate about voter access and ballot security, Professor Blumstein, who still teaches constitutional law at Vanderbilt, believes a sensible balance can be found between both important interests.²³ |||

RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET), and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has written many publications on law and legal history, and is a regular columnist in this magazine.

NOTES

1. 369 U.S. 186.
2. 410 U.S. 113 (1972).
3. Grace Renshaw, A New York Yankee in Tennessee Court, Vol. 40, No. 2 (2012).
4. Dunn v. Blumstein at 332-33.
5. Id. at 343-44; 354-55.
6. See Neal R. Peirce, The Border South States 306-07 (1975); Robert E. Corlew, Tennessee: A Short History 584-89 (1981).
7. Renshaw supra note 2.
8. 337 F. Supp. 323 (M.D. Tenn. 1970).
9. Renshaw supra note 2.
10. Id.
11. 410 U.S. 113 (1973).
12. Renshaw supra note 2.
13. 405 U.S. 330 (1972).
14. Dunn v. Blumstein at 353.
15. Id. at 354-56.
16. Author Russell Fowler interviewed James Blumstein on Jan. 19, 2022.
17. Renshaw supra note 2.
18. Dunn v. Blumstein at 360-61.
19. Id. at 363.
20. Author Russell Fowler interviewed James Blumstein on Jan. 19, 2022.
21. Vanderbilt Law School News, “James Blumstein Addresses Voting Rights in Testimony Before Senate Subcommittee Sept 5,” https://law.vanderbilt.edu/news/james-blumstein-addresses-voting-rights-in-testimony-before-senate-subcommittee-sept-5.
22. Oyez, “Oral argument from Nov. 16, 1971,” https://www.oyez.org/cases/1971/70-13.
23. Author Russell Fowler interviewed James Blumstein on Jan. 19, 2022.