The opinion of the court was delivered by: MOTLEY
Linda Waddy was indicted in the Southern District of New York on June 17, 1971, on three counts of mail theft under 18 U.S.C. § 1709. She moves to dismiss the indictment and to quash the grand and petit jury arrays.
Defendant's contention is that the "Plan for Random Selection of Grand and Petit Jurors in the United States District Court for the Southern District of New York", pursuant to which the grand jury which indicted defendant was selected, violates the Fifth, Sixth, Fourteenth, and Twenty-Sixth Amendments to the Constitution by excluding from the master jury wheel for grand and Petit juries, registered voters under the age of twenty-one.
According to defendant, the master jury wheel from which defendant's petit jury will be drawn is the same constitutionally defective master jury wheel as that from which defendant's grand jury venire was selected earlier. Thus the prospective petit jury venire is challenged at this time as well.
Though defendant need not be a member of the allegedly excluded group to make her claim, Thiel v. Southern Pacific Co., 328 U.S. 217, 223, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), she is, in fact, a representative of that group, being nineteen years old and a registered voter. However, defendant's motion must be denied as to both the grand and petit jury claims.
Defendant's contention will be brought into clearer focus if we first note what she is not claiming here. Defendant does not argue that the broad class of "young people" is excluded from jury service in the Southern District. Nor does she claim that young people, as a class, are underrepresented on the jury wheel in comparison with their proportion in the population of this District, see United States v. Deardorff, 343 F. Supp. 1033 (S.D.N.Y. 1971), p. 13, except insofar as the subgroup of eighteen to twenty-one year old registered voters is entirely excluded. Her contention, slightly rephrased, is rather that the limited class of "registered voters under the age of twenty-one" is a cognizable group, and that this group has been systmatically excluded from jury service under the Southern District Plan without there being any "compelling governmental interest" for doing so. Absent a compelling interest, argues defendant, such an exclusion is unconstitutional as violative of her fundamental right to an impartial jury, a right said to arise under the due process clause of the Fifth Amendment, which includes the equal protection clause concepts of the Fourteenth Amendment, Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954), and under the impartial jury clause of the Sixth Amendment.
The right to an impartial jury is characterized by defendant as including the right to have members of the class of eighteen to twenty-one year old registered voters on one's master jury wheel. This definition of the right is said to originate from the Twenty-Sixth Amendment, giving the right to vote to this group, and thereby making it a cognizable class.
The government does not dispute the fact that the Southern District Plan provides that all jurors shall be selected from the voter registration lists of the counties comprising the Southern District, and that twenty-one shall be the minimum age for jury service.
The first premise of defendant's argument is that there must be a compelling governmental interest to be served before any cognizable group can be excluded from jury service. The line of reasoning leading to this premise is as follows. The due process clause of the Fifth Amendment, including the equal protection clause concepts of the Fourteenth Amendment, together with the Sixth Amendment, guaranteeing an impartial jury, is said to imply a fundamental constitutional right to an impartial jury. Because the right is fundamental, exclusion of a cognizable group from jury service can only be permitted where there is a compelling governmental interest, instead of merely a rational reason, for the exclusion.
The second premise is that the class of eighteen to twenty-one year old registered voters is a cognizable group. Defendant derives this premise from the Twenty-Sixth Amendment, ratified June 30, 1971, which lowered the minimum age for voting to eighteen. This Amendment clearly indicated, according to defendant that the group of eighteen to twenty-one year olds is a cognizable class. Furthermore, defendant reads Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260, 27 L. Ed. 2d 272 (1970), which upheld the 1970 Voting Rights Act Amendments (giving the right to vote to eighteen to twenty-one year olds), to hold that the granting of the right to vote to eighteen to twenty-one year olds was constitutionally required by the equal protection clause of the Fourteenth Amendment. Defendant infers from this decision that the eighteen to twenty-one year old group had been held by the Supreme Court to be a cognizable class, under the equal protection clause, even before passage of the Twenty-Sixth Amendment made the constitutional definition of the class explicit.
Defendant claims that there is a clear nexus between voting and jury service, indicated by the "intricate relationship between jury service and voting as created and established by the Congress [in the Jury Selection and Service Act]."
Defendant argues, based on this relationship, that because Oregon v. Mitchell held that the group of eighteen to twenty-one year olds was a cognizable class for purposes of voting rights they must be a cognizable class for purposes of jury service. Thus defendant states that the right to a cross section is now, under Oregon v. Mitchell, the right to a master jury wheel which includes registered voters of the ages of eighteen to twenty-one, in addition to those over the age of twenty-one.
Assembling defendant's premises, her argument runs as follows. Since the jury right is a fundamental one, the exclusion of a particular group cannot be justified merely by the reasonableness of the exclusion. Rather, there must be a compelling governmental interest to support such an exclusion. There can be no compelling governmental interest served by the exclusion of eighteen ...