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June 23, 1970

YMCA VOTE AT 18 CLUB, an unincorporated association, by R. Peter Straus, et al., Plaintiffs,
The BOARD OF ELECTIONS OF the CITY OF NEW YORK, the Board of Elections of the County of Westchester, Louis J. Lefkowitz, Attorney General of the State of New York, Frank S. Hogan, District Attorney for the County of New York, and Carl A. Vergari, District Attorney for the County of Westchester, Defendants

Palmieri, District Judge.

The opinion of the court was delivered by: PALMIERI

PALMIERI, District Judge.

The plaintiffs are allegedly aggrieved by New York State's constitutional and statutory provisions setting the minimum age for the exercise of the franchise in New York at 21 years. They ask that a three-judge court be convened with a view to obtaining injunctive relief and a declaration of unconstitutionality with respect to these provisions.

 The jurisdiction of this Court is based upon the Civil Rights Act, 42 U.S.C. §§ 1983, 1988, and upon Title 28, § 1343(3) of the United States Code. Plaintiffs' basic contention is that the challenged provisions deny them the equal protection of the laws as guaranteed by the Fourteenth Amendment of the United States Constitution. For the reasons which follow, the application for the convening of a three-judge court must be denied and the complaint dismissed.

 Plaintiffs contend that notwithstanding the fact that 18 to 21 year old citizens in New York State must bear substantially all of the burdens of full citizenship, they are denied the exercise of the fundamental right to participate in the choice of the government which acts to impose these burdens upon them. They assert that this group of citizens has reached a level of maturity, under the conditions of life in New York in the past few decades, which is comparable to that found among the general population of voters over the age of 21. Thus, they conclude, it is a denial of equal protection to them, as sufficiently mature citizens who are subject to the burdens of citizenship, to be denied the franchise. *fn1"

 The New York State constitution establishes the right of every citizen to vote in all New York elections, "provided that such citizen is twenty-one years of age or over," and fulfills the residency and literacy requirements. N.Y. Const. Art. II § 1. This provision is restated in the New York Election Law, section 150: "A qualified voter is a citizen who is or will be on the day of election twenty-one years of age, * * *" Additional sections make it a felony to attempt to register when the individual knows that he is not a "qualified" voter, or knowingly to attempt to vote when not qualified. N.Y. Election Law §§ 422, 436. Parenthetically, it is of interest that forty-six other states presently impose a 21-year old voting requirement.

 Threshold Considerations Foreclose Any Judgment by a Three-Judge Court

 This matter presents the Court with a precise and limited function. "The court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute." Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 1296, 8 L. Ed. 2d 794 (1962). And the failure to raise a substantial constitutional question "may appear either because [the issue presented] is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S. Ct. 865, 867, 82 L. Ed. 1323 (1938). Accord Bynum v. Connecticut Commission on Forfeited Rights, 410 F.2d 173, 176 (2d Cir. 1969); American Commuters Ass'n v. Levitt, 405 F.2d 1148, 1150 (2d Cir. 1969); Green v. Board of Elections of City of New York, 380 F.2d 445, 448 (2d Cir. 1967). Neither of the tests for lack of substantiality, i.e., foreclosure by past decisions or an obvious lack of merit, is susceptible of application with mathematical precision. Where the federal question is insubstantial the complaint may be dismissed, particularly in view of the burden in time and effort which the convening of a three-judge court places on the judicial system, American Commuters Ass'n v. Levitt, supra, and cases cited therein; Green v. Board of Elections, supra; see Bynum v. Connecticut Commission, supra, 410 F.2d at 177. Since this Court believes that the federal question before it lacks substantiality under both tests, a dismissal must follow. *fn2"

 Insubstantiality for Lack of Merit

 The right to vote is a fundamental right of citizenship. The United States Constitution entrusts to the states primary responsibility for the fixing of voter qualifications. U.S. Const. Art. I, § 2; Art. II, § 1; Amend. 17. The Supreme Court has consistently restated the principle that the states have broad powers to determine the conditions under which the right to vote may be exercised. E.g., Evans v. Cornman, 398 U.S. 419, 90 S. Ct. 1752, 26 L. Ed. 2d 370 (June 16, 1970); McDonald v. Board of Election, 394 U.S. 802, 807, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969); Williams v. Rhodes, 393 U.S. 23, 29, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968); Carrington v. Rash, 380 U.S. 89, 91, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965); Lassiter v. Northampton County Elections Bd., 360 U.S. 45, 50, 79 S. Ct. 985, 3 L. Ed. 2d 1072 (1959); Pope v. Williams, 193 U.S. 621, 633, 24 S. Ct. 573, 48 L. Ed. 817 (1904). Thus, while the right to vote is established and guaranteed by the United States Constitution, e.g., Lassiter v. Northampton Election Bd., supra; Ex parte Yarbrough, 110 U.S. 651, 663-665, 4 S. Ct. 152, 28 L. Ed. 274 (1884), it is subject to the imposition of standards by the states. These standards may not be discriminatory and may not contravene any restriction that Congress may constitutionally have imposed. E.g., Williams v. Rhodes, supra, 393 U.S. at 29, 89 S. Ct. 5, 21 L. Ed. 2d 24; Carrington v. Rash, supra, 380 U.S. at 91, 85 S. Ct. 775, 13 L. Ed. 2d 675; Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 665, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). Thus, voter qualifications are subject to scrutiny under the Equal Protection clause. Evans v. Cornman, supra ; Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969); Harper v. Virginia State Bd. of Elections, supra; Carrington v. Rash, supra. Certain discriminations are inherently suspect, such as those based on race or wealth. E.g., Kramer v. Union Free School Dist. No. 15, supra; Harper v. Virginia State Bd. of Elections, supra.

 In terms of the standards by which discrimination in voter qualifications is to be judged under the Equal Protection clause, a distinction may be drawn, based upon the decisions of the Supreme Court, between state restrictions on the franchise practiced on those otherwise qualified to vote by reason of age, residence, and citizenship, on the one hand, and state decisions to withhold the franchise by reason of the failure to meet age, residence, and citizenship requirements. In the former situations, the Court has held that the state must demonstrate a compelling state interest to justify its infringement of the franchise. Evans v. Cornman, supra; Kramer v. Union Free School Dist. No. 15, supra ; Harper v. Virginia State Bd. of Elections, supra ; Carrington v. Rash, supra. And notwithstanding their arguments to the contrary, the plaintiffs have failed to demonstrate that this case falls within this category of decisions. In the latter situations, however, which are comparable to the case here, the Court has applied the traditional test in the equal protection area, i.e., whether the means chosen by the state bear a reasonable relation to a permissible state end. Lassiter v. Northampton County Election Bd., supra; see McDonald v. Board of Election, supra, 394 U.S. at 807, 89 S. Ct. 1404, 22 L. Ed. 2d 739.

 In the present case, the interest of New York State is the protection of the integrity of the franchise through the imposition of a requirement of maturity on the exercise of the franchise. Thus the state seeks to promote "intelligent use of the ballot." Lassiter v. Northampton County Election Bd., supra, 360 U.S. at 51, 79 S. Ct. 985, 3 L. Ed. 2d 1072. The means chosen to further that interest is the requirement of a minimum age of 21 years for voters. It is clear that the choice of a minimum age of 21 by the people of New York is defensible as a reasonable enactment in furtherance of the state's valid interest. It is clear that fully equal treatment as an adult under the laws of New York is achieved only at age 21, and it has not been established that the 18th birthday is a "magic" date on which a young person becomes a citizen for all purposes except voting. While New York might have chosen a different minimum age between 18 and 21, New York is not compelled, under the Equal Protection clause as presently interpreted, to choose 18 as that minimum age. This Court cannot say that New York's legislative determination is unreasonable, arbitrary or capricious. Again, although New York might encounter difficulty in raising its minimum age for voting, e.g., U.S. Const. Amend. 14, or in lowering it to an absurd minimum, it is for the state to set a minimum age at which a voter can be deemed qualified. In the present case, New York has done so within the scope of its permissible powers.

 Insubstantiality due to Foreclosure by Prior Decisions

 Additionally, an application for a three-judge court may be dismissed if prior decisions, binding on the Court, have foreclosed all possible and otherwise substantial federal questions on the issues presented. California Water Service Co. v. City of Redding, supra; Green v. Board of Elections, supra. The issues presented need not necessarily have been passed upon in specific holdings of the Supreme Court or the Circuit Court of Appeals. As the Court of Appeals for this Circuit stated in the Green case,

Even though the precise issue has not arisen before the Supreme Court, the propriety of excluding felons from the franchise has been so frequently recognized -- indeed put forward by the Justices to illustrate what the states may properly do -- ...

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