APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist; Douglas took no part in the consideration or decision of the case.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
This case requires us once again to consider the constitutionality of a classification restricting the right to vote in a local election.
Appellees, residents of Fort Worth, Tex., brought this action to challenge the state and city laws limiting the
franchise in city bond elections to persons who have made available for taxation some real, mixed, or personal property. A three-judge District Court held that this restriction on suffrage did not serve any compelling state interest and therefore violated the Equal Protection Clause of the Fourteenth Amendment. Stone v. Stovall, 377 F. Supp. 1016 (ND Tex. 1974). We granted a partial stay of the District Court's order pending disposition of the appeal. 416 U.S. 963 (1974). We subsequently noted probable jurisdiction. 419 U.S. 822 (1974).
The Texas Constitution provides that in all municipal elections "to determine expenditure of money or assumption of debt," only those who pay taxes on property in the city are eligible to vote. Tex. Const. Art. 6, § 3. In addition, it directs that in any election held "for the purpose of issuing bonds or otherwise lending credit, or expending money or assuming any debt," the franchise shall be limited to those qualified voters "who own taxable property in the... district... where such election is held," and who have "duly rendered the same for taxation." § 3a. The implementing statutes impose the same requirements, adding that to qualify for voting a resident of the district holding the election must have "rendered"*fn1 his property for taxation to the district
during the proper period of the election year, and that he must sign an affidavit indicating that he has done so. Tex. Elec. Code §§ 5.03, 5.04, 5.07 (1967 and Supp. 1974-1975). The Fort Worth City Charter further provides that the city shall not issue bonds unless they are authorized in an election of the "qualified voters who pay taxes on property situated within the corporate limits of the City of Ft. Worth." Charter of the City of Fort Worth, c. 25, § 19.
In 1969, after our decisions in Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969), and Cipriano v. City of Houma, 395 U.S. 701 (1969), the Texas Attorney General devised a "dual box election procedure" to be used in all the State's local bond elections. Under this procedure, all persons owning taxable property rendered for taxation voted in one box, and all other registered voters cast their ballots in a separate box. The results in both boxes were tabulated, and the bond issue would be deemed to have passed only if it was approved by a majority vote both in the "renderers' box" and in the aggregate of both boxes. This scheme ensured that the bonds would be safe from challenge even if the state-law restrictions on the franchise were later held unconstitutional.
On April 11, 1972, the city of Fort Worth conducted a tax bond election, using the dual-box system to authorize the sale of bonds to improve the city transportation system and to build a city library. Since the state eligibility restrictions had previously been construed to require only that the prospective voter render some property for taxation, even if he did not actually pay any tax on the property, Montgomery Independent School District v. Martin, 464 S.W. 2d 638 (Tex. 1971), all those who signed an affidavit indicating that they had rendered some property were permitted to vote in the "renderers'
box." Of the 29,000 voters who participated in the bond election, approximately 24,000 voted as renderers and 5,000 as nonrenderers. The transportation bond proposal was approved in both boxes and in the aggregate. The library bonds, however, were less well received. Although the library bonds were approved by a majority of all the voters, they were defeated in the renderers' box, and were therefore deemed not to have been authorized.
The appellees, three of whom had voted as nonrenderers,*fn2 then filed this action in the United States District Court for the Northern District of Texas, claiming that the partial disfranchisement of persons not rendering property for taxation denied them equal protection of the laws.*fn3 A three-judge District Court was convened; it heard argument, and on March 25, 1974, it entered judgment for the appellees. The court declared the relevant provisions of the Texas Constitution, the Texas Election Code, and the Fort Worth City Charter unconstitutional "insofar as they condition the right to vote in bond elections on citizens' rendering property for taxation." 377 F. Supp., at 1024. Although the court ruled that its decree would not make invalid any bonds already authorized
or any bond elections held before the date of the judgment, it ordered the city defendants to count the ballots of those who had voted in the nonrenderers' box, and it enjoined any future restriction of the franchise in state bond elections to those who have rendered property for taxation.
While all three judges concurred in the judgment, each member of the panel wrote separately. Judge Thornberry concluded that the Texas scheme was invalid because it divided the otherwise eligible voters into two classifications - renderers and nonrenderers - and that the disfranchisement of those who did not render property for taxation violated the Equal Protection Clause. Judge Woodward concurred in the result on the ground that the rendering requirement was tantamount to a requirement of property ownership, which he concluded was impermissible under this Court's decision in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). Judge Brewster concurred in the judgment, but only because he thought the case was controlled by our decision in City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970), where we held invalid a statute restricting the franchise in a general obligation bond election to real property owners.
Appellant, the Attorney General of Texas,*fn4 argues that none of this Court's cases draws into question a voting restriction of the sort used in this election. The eligibility scheme does not impose a wealth restriction on the exercise of the franchise, the appellant contends, and any
classification that it does create is reasonable and should be upheld on that basis.
In Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969), we held that in an election of general interest, restrictions on the franchise other than residence, age, and citizenship must promote a compelling state interest in order to survive constitutional attack. The appellant in Kramer challenged a New York statute that limited eligibility to vote in local school board elections to persons who owned or leased taxable real property in the school district, or who had children enrolled in the public schools. We expressed no opinion in Kramer whether a State might in some circumstances limit the franchise to those "primarily interested" in the election,*fn5 but we held that the New York statute had impermissibly excluded many persons with a distinct and direct interest in the decisions of the school board, while at the same time including others with no substantial interest in school affairs. The fact that the school district was ...