Wednesday, November 17, 2010

Does the TSA Backscatter Search Violate the “Right to Travel?”

Hugh Wood, Atlanta, GA

It is hard to read any website (circa November 2010) and not encounter citizen protests against TSA’s Backscatter or Body Imaging X-Ray Machines.

As opposed to merely writing in this Blog, I pose a question to Blogosphere: “Do any of the legal eagles out in the Blogosphere have an opinion concerning whether the TSA backscatter invasive searches violate the fundamental ‘right to travel?’”

I pose this question based on the experience that occurred in our very own home-grown Hartsfield-Jackson Airport a few days ago. A Midwestern Choir member and former Eagle Scout was subjected to the following humiliating search:

A Traveler at Atlanta Hartsfield-Jackson Airport Says:
November 17th, 2010 at 6:09 am
Just wanted to relate my experience at the Hartsfield Atlanta Airport on Sunday. I happened to find that he fastest line at the airport had a surprise at the end – a backscatter naked scanning machine. As I got to the front of the line, I realized my mistake. I asked the TSA attendant if I could use the standard x-ray machine in the adjacent line, as I would prefer not to go through the backscatter machine. She said no, I had to go through it. I said I would like a hand inspection. She called for another agent. I was unceremoniously asked to step aside and wait for the agent. An agent came and escorted me to the rollers on the xray belt to point out my belongings. He gathered it up and took it to a nearby bench.
I followed him to an inspection area. Next to me at the bench was an older lady, about my mom’s age who was about to start a similar inspection. Poor lady, she was frightened, embarrassed, angry, and humiliated. You could tell by her voice that she was really upset. The agent came with my belongings, and asked If I would stand up and spread my arms. I asked if I could have a private inspection. He said there was a line and did I want to wait. I said yes. The lady next to me was asked if she wanted a private inspection. She was upset, explained about the line, and she said, “no, I am going to be late to my plane.” She was even more upset when her agent explained how she was going to be inspected. I followed my agent to the inspection room area.
I immediately asked, in accordance with TSA rights, if I he would put new gloves on, and if I could have a gown. He said yes. He escorted me to the room – an electrical closet (so I traded one form of radiation exposure for another). Another witness TSA agent was in the room. No gown – I was half expecting to be strip searched, but it was an over clothes inspection. I would have proudly worn the government issued uniform through the airport.
I was nervous – this is pretty intimidating. With the three of us in the room, he explained the back of the hand lower body inspection process , inside waistband feel, upper body and leg grope. I stood mute. He asked if I had any medical or religious reasons not to follow any procedure. I stood mute. He asked if I had any questions – I said I believe this is a violation of due process and an illegal search in violation of the constitution. I asked that he not touch my genitals. He proceeded to do his pat down. The leg inspection put his hand in contact with my testicles through clothing, the waistband inspection with my lower abdomen.
Upon concluding the inspection, he removed his gloves and said he was going to have them tested for residue. While he left, I asked the second agent if he had a lot of protests. He said a few. He said he does not know how he feels about this. On one hand he understands the safety concerns, on the other, he does not know if would want to be inspected this way. He said he understood my objection. The TSA agent returned and said I was free to go. He took my belongings to the bench and I reassembled myself.
The poor lady was still there. She was practically in tears. I really felt bad for her. Invasively searching our mothers, children, and citizens is not right. Anyway, got to finish up – plane is taking off.
About me – I am a typical Midwesterner – 40 something years old, lawyer, married, father of two children with a third on the way, Eagle Scout and church choir member. I am not a believer in the far left or right. In this case, the government is overstepping and needs to change.
Sunday November, 14, 2010. [1]

The “right to travel,” discussed infra, has been found by the United States Supreme Court to be a “fundamental right.” United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170; 16 L. Ed. 2d 239 (1966). Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). [2]

It is a right that rises to the highest level of Constitutional examination. It has been held akin to the freedom of speech, the freedom of the press, etc.

Consider how this technology is set to migrate. It is apparent that once Backscatter Technology becomes a fixture at airports, it will migrate to rail stations and bus stations. My question is: Does this requirement or examination to “travel,” run afoul of the very right to travel found sacrosanct by the Supreme Court? If these searches are extended to passenger automobiles, then the right to travel would be reduced to walking across a state border. Consider: The “Transportation” Safety Administration is charged with “safety,” no matter where the “transportation.”

It is clear that when you purchase an airline ticket and enter airport security you voluntarily waive many constitutional rights. The theory is that you voluntarily submitted to these searches for the privilege of traveling by air. It does not take much of a stretch of the law to envision the following: the use of an automobile is a privilege granted by the state. You do not have to avail yourself of the privilege. Pulling into a rest area is a privilege; you do not have to avail yourself of that privilege. You may drive by the rest area. However, assuming searches extend to our Interstate Road System, does a search run afoul of the right to travel?

Mr. Justice Marshall wrote in Dunn v. Blumstein, supra at 338.

[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution." United States v. Guest, 383 U.S. 745, 758 (1966). See Passenger Cases, 7 How. 283, 492 (1849) (Taney, C.J.); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U.S. 160 (1941); Kent v. Dulles, 357 U.S. 116, 126 (1958); Shapiro v. Thompson, 394 U.S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400 U.S. at 237 [ . . . ], 285-286 [ . . . ] And it is clear that the freedom to travel includes the "freedom to enter and abide in any State in the Union,"  Id. at 285. Id.

So I suppose my question is: Does any of this technology impinge on the “right to travel?” I will forgo the question on whether it impinges on the 4th Amendment to the United States Constitution, since The Patriot Act I and II [3] – as a practical matter – legislated the 4th Amendment out of existence.

Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
twitter: USALawyer_
Phone: 404-633-4100
Fax: 404-633-0068



Alex Jones’ Website, TSA Hit With Lawsuit as Revolt Explodes, November 17, 2010.


Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

Tennessee closes its registration books 30 days before an election, but requires residence in the State for one year and in the county for three months as prerequisites for registration to vote. Appellee challenged the constitutionality of the durational residence requirements, and a three-judge District Court held [92 S.Ct. 997] them unconstitutional on the grounds that they impermissibly interfered with the right to vote and created a "suspect" classification penalizing some Tennessee residents because of recent interstate movement. Tennessee asserts that the requirements are needed to insure the purity of the ballot box and to have knowledgeable voters.
Held: The durational residence requirements are violative of the Equal Protection Clause of the Fourteenth Amendment, as they are not necessary to further a compelling state interest. Pp. 335-360.
(a) Since the requirements deny some citizens the right to vote, "the Court must determine whether the exclusions are necessary to promote a compelling state interest." Kramer v. Union Free School District, 395 U.S. 621, 627 (emphasis added). Pp. 336-337.
(b) Absent a compelling state interest, Tennessee may not burden the right to travel by penalizing those bona fide residents who have recently traveled from one jurisdiction to another. Pp. 338-342.
(c) A period of 30 days appears to be ample to complete whatever administrative tasks are needed to prevent fraud and insure the purity of the ballot box. Pp. 345-349.
(d) Since there are adequate means of ascertaining bona fide residence on an individualized basis, the State may not conclusively presume nonresidence from failure to satisfy the waiting period requirements of durational residence laws. Pp. 349-354.
(e) Tennessee has not established a sufficient relationship between its interest in an informed electorate and the fixed durational residence requirements. Pp. 354-360.
337 F.Supp. 323, affirmed.
Page 331
MARSHALL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and WHITE, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 360. BURGER, C.J.; filed a dissenting opinion, post, p. 363. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.
MARSHALL, J., lead opinion
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Various Tennessee public officials (hereinafter Tennessee) appeal from a decision by a three-judge federal court holding that Tennessee's durational residence requirements for voting violate the Equal Protection Clause of the United States Constitution. The issue arises in a class action for declaratory and injunctive relief brought by appellee James Blumstein. Blumstein moved to Tennessee on June 12, 1970, to begin employment as an assistant professor of law at Vanderbilt University in Nashville. With an eye toward voting in the upcoming August and November elections, he attempted to register to vote on July 1, 1970. The county registrar refused to register him, on the ground that Tennessee law authorizes the registration of only those persons who, at the time of the next election, will have been residents of the State for a year and residents of the county for three months.
After exhausting state administrative remedies, Blumstein brought this action challenging these residence requirements
Page 332
on federal constitutional grounds.[1] A three-judge court, convened pursuant to 28 [92 S.Ct. 998] U.S.C. §§ 2281, 2284, concluded that Tennessee's durational residence
Page 333
requirements were unconstitutional (1) because they impermissibly interfered with the right to vote and (2) because they created a "suspect" classification penalizing some Tennessee residents because of recent interstate movement.[2] 337 F.Supp. 323 (MD Tenn.1970). We noted probable jurisdiction, 401 U.S. 934 (1971). For the reasons that follow, we affirm the decision below.[3]
Page 334
The subject of this lawsuit is the durational residence requirement. Appellee does not challenge Tennessee's power to restrict the vote to bona fide Tennessee residents. Nor has Tennessee ever disputed that appellee was a bona fide resident of the State and county when he attempted to register.[4] But Tennessee insists that, in addition to being a resident, a would-be voter must have been a resident for a year in the State and three months in the county. It is this additional durational residence requirement that appellee challenges.
Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter to the extent
Page 335
of totally denying them the opportunity to vote.[5] The constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens.
To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. Cf. Williams v. Rhodes, 393 U.S. 23, 30 (1968). In considering laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved.[6] First, then, we must determine what standard of review is appropriate. In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel), we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.
Page 336
Durational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of "`a fundamental political right, . . . preservative of all rights.'" Reynolds v. Sims, 377 U.S. 533, 562 (1964). There is no need to repeat now the labors [92 S.Ct. 1000] undertaken in earlier cases to analyze this right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e.g., Evans v. Cornman, 398 U.S. 419, 421-422, 426 (1970); Kramer v. Union Free School District, 395 U.S. 621, 626-628 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 667 (1966); Carrington v. Rash, 380 U.S. 89, 93-94 (1965); Reynolds v. Sims, supra. This "equal right to vote," Evans v. Cornman, supra, at 426, is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. See, e.g., Carrington v. Rash, supra, at 91; Oregon v. Mitchell, 400 U.S. 112, 144 (opinion of DOUGLAS, J.), 241 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.), 294 (opinion of STEWART, J., concurring and dissenting, with whom BURGER, C.J., and BLACKMUN, J., joined). But, as a general matter,
before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.
Evans v. Cornman, supra, at 422; see Bullock v. Carter, ante, p. 134, at 143.
Page 337
Tennessee urges that this case is controlled by Drueding v. Devlin, 380 U.S. 125 (1965). Drueding was a decision upholding Maryland's durational residence requirements. The District Court tested those requirements by the equal protection standard applied to ordinary state regulations: whether the exclusions are reasonably related to a permissible state interest. 234 F.Supp. 721, 724-725 (Md.1964). We summarily affirmed per curiam without the benefit of argument. But if it was not clear then, it is certainly clear now that a more exacting test is required for any statute that "place[s] a condition on the exercise of the right to vote." Bullock v. Carter, supra, at 143. This development in the law culminated in Kramer v. Union Free School District, supra. There, we canvassed in detail the reasons for strict review of statutes distributing the franchise, 395 U.S. at 626-630, noting, inter alia, that such statutes "constitute the foundation of our representative society." We concluded that, if a challenged statute grants the right to vote to some citizens and denies the franchise to others, "the Court must determine whether the exclusions are necessary to promote a compelling state interest." Id. at 627 (emphasis added); Cipriano v. City of Houma, supra, at 704; City of Phoenix v. Kolodziejski, 399 U.S. 204, 205, 209 (1970). Cf. Harper v. Virginia Board of Elections, supra, at 670. This is the test we apply here.[7]
Page 338
This exacting test is appropriate for another reason, never considered in Drueding: Tennessee's durational residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period. Thus, the durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.
"[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution." United States v. Guest, 383 U.S. 745, 758 (1966). See Passenger Cases, 7 How. 283, 492 (1849) (Taney, C.J.); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U.S. 160 (1941); Kent v. Dulles, 357 U.S. 116, 126 (1958); Shapiro v. Thompson, 394 U.S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400 U.S. at 237 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.), 285-286 (STEWART, J., concurring and dissenting, with whom BURGER, C.J., and BLACKMUN, J., joined). And it is clear that the freedom to travel includes the "freedom to enter and abide in any State in the Union," id. at 285. Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly. We considered such a durational residence requirement in Shapiro v. Thompson, supra, where the pertinent statutes imposed a one-year waiting period for interstate migrants as a condition to receiving welfare benefits. Although, in Shapiro, we specifically did not decide whether durational residence requirements could be used to determine voting eligibility,
Page 339
id. at 638 n. 21, we concluded that, since the right to travel was a constitutionally protected right,
any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.
Id. at 634. This compelling state interest test was also adopted in the separate concurrence of MR. JUSTICE STEWART. Preceded by a long line of cases recognizing the constitutional right to travel, and repeatedly reaffirmed in the face of attempts to disregard it, see Wyman v. Bowens, 397 U.S. 49 (1970), and Wyman v. Lopez, 404 U.S. 1055 (1972), Shapiro and the compelling state interest test it articulates control this case.
Tennessee attempts to distinguish Shapiro by urging that "the vice of the welfare statute in Shapiro . . . was its objective to deter interstate travel." Brief for Appellants 13. In Tennessee's view, the compelling state interest test is appropriate only where there is "some evidence to indicate a deterrence of or infringement on the right to travel. . . ." Ibid. Thus, Tennessee seeks to avoid the clear command of Shapiro by arguing that durational residence requirements for voting neither seek to nor actually do deter such travel. In essence, Tennessee argues that the right to travel is not abridged here in any constitutionally relevant sense.
This view represents a fundamental misunderstanding of the law.[8] It is irrelevant whether disenfranchisement or [92 S.Ct. 1002] denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other "right to travel"
Page 340
cases in this Court always relied on the presence of actual deterrence.[9] In Shapiro, we explicitly stated that the compelling state interest test would be triggered by "any classification which serves to penalize the exercise of that right [to travel]. . . ." Id. at 634 (emphasis added); see id. at 638 n. 21.[10] While noting the frank legislative purpose to deter migration by the poor, and speculating that "[a]n indigent who desires to migrate . . . will doubtless hesitate if he knows that he must risk" the loss of benefits, id. at 629, the majority found no need to dispute the "evidence that few welfare recipients have in fact, been deterred [from moving] by residence requirements." Id. at 650 (Warren, C.J., dissenting); see also id. at 671-672 (Harlan, J., dissenting). Indeed, none of the litigants had themselves been deterred. Only last Term, it was specifically noted that, because a durational
Page 341
residence requirement for voting
operates to penalize those persons, and only those persons, who have exercised their constitutional right of interstate migration . . . , [it] may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest.
Oregon v. Mitchell, 400 U.S. at 238 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.) (emphasis added).
Of course, it is true that the two individual interest affected by Tennessee's durational residence requirements are affected in different ways. Travel is permitted, but only at a price; voting is prohibited. The right to travel is merely penalized, while the right to vote is absolutely denied. But these differences are irrelevant for present purposes. Shapiro implicitly realized what this Court has made explicit elsewhere:
It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. . . . "Constitutional rights would be of little value if they could be . . . indirectly denied." . . .
Harman v. Forssenius, 380 U.S. 528, 540 (1965).[11] See also Garrity v. New Jersey, 385 U.S. 493 (1967), and cases cited therein; Spevack v. Klein, 385 U.S. 511, 515 (1967). The right to travel is an "unconditional personal right," a right whose exercise may not be conditioned. Shapiro v. Thompson, 394 U.S. at 643 (STEWART, J., concurring) (emphasis added); Oregon v. Mitchell, supra, at 292 (STEWART, J., concurring and dissenting,
Page 342
with whom BURGER, C.J., and BLACKMUN, J., joined). Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right.[12] In the present case, such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote. Cf. United States v. Jackson, 390 U.S. 570, 582-583 (1968). Absent a compelling state interest, a State may not burden the right to travel in this way.[13]
In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are "necessary to promote a compelling governmental interest." Shapiro v. Thompson, supra, at 634 (first emphasis added); Kramer v. Union Free School District, 395 U.S. at 627. Thus phrased, the constitutional question may sound like a mathematical formula. But legal "tests" do not have the precision of mathematical
Page 343
formulas. The key words emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes.
It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with "precision," NAACP v. Button, 371 U.S. 415, 438 (1963); United States v. Robel, 389 U.S. 258, 265 (1967), and must be "tailored" to serve their legitimate objectives. Shapiro v. Thompson, supra, at 631. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose "less drastic means." Shelton v. Tucker, 364 U.S. 479, 488 (1960).
We turn, then, to the question of whether the State has shown that durational residence requirements are needed to further a sufficiently substantial state interest. We emphasize again the difference between bona fide residence requirements and durational residence requirements. [92 S.Ct. 1004] We have in the past noted approvingly that the States have the power to require that voters be bona fide residents of the relevant political subdivision. E.g., Evans v. Cornman, 398 U.S. at 422; Kramer v. Union Free School District, supra, at 625; Carrington v. Rash, 380 U.S. at 91; Pope v. Williams, 193 U.S. 621 (1904).[14] An appropriately defined and uniformly applied requirement
Page 344
of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny.[15] But durational residence requirements, representing a separate voting qualification imposed on bona fide residents, must be separately tested by the stringent standard. Cf. Shapiro v. Thompson, supra, at 636.
It is worth noting at the outset that Congress has, in a somewhat different context, addressed the question whether durational residence laws further compelling state interests. In § 202 of the Voting Rights Act of 1965, added by the Voting Rights Act Amendments of 1970, Congress outlawed state durational residence requirements for presidential and vice-presidential elections, and prohibited the States from closing registration more than 30 days before such elections. 42 U.S.C. § 1973aa-1. In doing so, it made a specific finding that durational residence requirements and more restrictive registration practices do "not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections." 42 U.S.C. § 1973aa-1(a)(6). We upheld this portion of the Voting Rights Act in Oregon v. Mitchell, supra. In our present case, of course, we deal with congressional, state, and local elections, in which the State's interests are arguably somewhat different; and, in addition, our function is not merely to determine whether there was a reasonable basis for Congress' findings. However, the congressional finding which forms the basis for the Federal Act is a useful background for the discussion that follows.
Page 345
Tennessee tenders "two basic purposes" served by its durational residence requirements:
(1) INSURE PURITY OF BALLOT BOX -- Protection against fraud through colonization and inability to identify persons offering to vote, and
(2) KNOWLEDGEABLE VOTER -- Afford some surety that the voter has, in fact, become a member of the community, and that, as such, he has a common interest in all matters pertaining to its government and is, therefore, more likely to exercise his right more intelligently.
Brief for Appellants 15, citing 18 Am.Jur., Elections, § 56, p. 217. We consider each in turn.
Preservation of the "purity of the ballot box" is a formidable-sounding state interest. The impurities feared, variously called "dual voting" and "colonization," all involve voting by nonresidents, either singly or in groups. The main concern is that nonresidents will temporarily invade the State or county, falsely swear that they are residents to become eligible to vote, and, by voting, allow a candidate to win by fraud. Surely the prevention of such fraud is a legitimate and compelling government goal. But it is impossible to view durational residence requirements as necessary to achieve that state interest.
Preventing fraud, the asserted evil that justifies state lawmaking, means keeping nonresidents from voting. But, by definition, a durational residence law [92 S.Ct. 1005] bars newly arrived residents from the franchise along with nonresidents. The State argues that such sweeping laws are necessary to prevent fraud because they are needed to identify bona fide residents. This contention is particularly
Page 346
unconvincing in light of Tennessee's total statutory scheme for regulating the franchise.
Durational residence laws may once have been necessary to prevent a fraudulent evasion of state voter standards, but today in Tennessee, as in most other States,[16] this purpose is served by a system of voter registration. Tenn.Code Ann. § 301 et seq. (1955 and Supp. 1970); see State v. Weaver, 122 Tenn.198, 122 S.W. 465 (1909). Given this system, the record is totally devoid of any evidence that durational residence requirements are, in fact, necessary to identify bona fide residents. The qualifications of the would-be voter in Tennessee are determined when he registers to vote, which he may do until 30 days before the election. Tenn.Code Ann. § 304. His qualifications -- including bona fide residence -- are established then by oath. Tenn.Code Ann. § 309. There is no indication in the record that Tennessee routinely goes behind the would-be voter's oath to determine his qualifications. Since false swearing is no obstacle to one intent on fraud, the existence of burdensome voting qualifications like durational residence requirements cannot prevent corrupt nonresidents from fraudulently registering and voting. As long as the State relies on the oath-swearing system to establish qualifications, a durational residence requirement adds nothing to a simple residence requirement in the effort to stop fraud. The nonresident intent on committing election fraud will as quickly and effectively swear that he has been a resident for the requisite period of time as he would swear that he was simply a resident. Indeed, the durational residence requirement becomes an effective voting obstacle
Page 347
only to residents who tell the truth and have no fraudulent purposes.
Moreover, to the extent that the State makes an enforcement effort after the oath is sworn, it is not clear what role the durational residence requirement could play in protecting against fraud. The State closes the registration books 30 days before an election to give officials an opportunity to prepare for the election. Before the books close, anyone may register who claims that he will meet the durational residence requirement at the time of the next election. Although Tennessee argues that this 30-day period between registration and election does not give the State enough time to verify this claim of bona fide residence, we do not see the relevance of that position to this case. As long as the State permits registration up to 30 days before an election, a lengthy durational residence requirement does not increase the amount of time the State has in which to carry out an investigation into the sworn claim by the would-be voter that he is in fact, a resident.
Even if durational residence requirements imposed, in practice, a pre-election waiting period that gave voting officials three months or a year in which to confirm the bona fides of residence, Tennessee would not have demonstrated that these waiting periods were necessary. At the outset, the State is faced with the fact that it must defend two separate waiting periods of different lengths. It is impossible to see how both could be "necessary" to fulfill the pertinent state objective. If the State itself has determined that a three-month period is enough time in which to confirm bona fide residence in the State and county, obviously a one-year period cannot also be justified as "necessary" to achieve the same purpose.[17]
Page 348
Beyond [92 S.Ct. 1006] that, the job of detecting nonresidents from among persons who have registered is a relatively simple one. It hardly justifies prohibiting all newcomers from voting for even three months. To prevent dual voting, state voting officials simply have to cross-check lists of new registrants with their former jurisdictions. See Comment, Residence Requirements for Voting in Presidential Elections, 37 U.Chi.L.Rev. 359, 364 and n. 34, 374 (1970); cf. Shapiro v. Thompson, 394 U.S. at 637. Objective information tendered as relevant to the question of bona fide residence under Tennessee law -- places of dwelling, occupation, car registration, driver's license, property owned, etc.[18] -- is easy to double-check, especially in light of modern communications. Tennessee itself concedes that "[i]t might well be that these purposes can be achieved under requirements of shorter duration than that imposed by the State of Tennessee. . . ." Brief for Appellants 10. Fixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud -- and a year, or three months, too much. This was the judgment of Congress in the context of presidential elections.[19] And, on the basis of the statutory
Page 349
scheme before us, it is almost surely the judgment of the Tennessee lawmakers as well. As the court below concluded, the cut-off point for registration 30 days before an election
reflects the judgment of the Tennessee Legislature that thirty days is an adequate period in which Tennessee's election officials can effect whatever measures may be necessary, in each particular case confronting them, to insure purity of the ballot and prevent dual registration and dual voting.
337 F.Supp. at 330.
It has been argued that durational residence requirements are permissible because a person who has satisfied the waiting period requirements is conclusively presumed to be a bona fide resident. In other words, durational residence requirements are justified because they create an administratively useful conclusive presumption that recent arrivals are not residents, and are [92 S.Ct. 1007] therefore properly
Page 350
barred from the franchise.[20] This presumption, so the argument runs, also prevents fraud, for few candidates will be able to induce migration for the purpose of voting if fraudulent voters are required to remain in the false locale for three months or a year in order to vote on election day.[21]
In Carrington v. Rash, 380 U.S. 89, this Court considered and rejected a similar kind of argument in support of a similar kind of conclusive presumption. There, the State argued that it was difficult to tell whether persons moving to Texas while in the military service were, in fact, bona fide residents. Thus, the State said, the administrative convenience of avoiding difficult factual determinations justified a blanket exclusion of all servicemen stationed in Texas. The presumption created there was conclusive -- "`incapable of being overcome by proof of the most positive character.'" Id. at 96, citing Heiner v. Donnan, 285 U.S. 312, 324 (1932). The
Page 351
Court rejected this "conclusive presumption" approach as violative of the Equal Protection Clause. While many servicemen in Texas were not bona fide residents, and therefore properly ineligible to vote, many servicemen clearly were bona fide residents. Since "more precise tests" were available "to winnow successfully from the ranks . . . those whose residence in the State is bona fide," conclusive presumptions were impermissible in light of the individual interests affected. Id. at 95. "States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State." Id. at 96.
Carrington sufficiently disposes of this defense of durational residence requirements. The State's legitimate purpose is to determine whether certain persons in the community are bona fide residents. A durational residence requirement creates a classification that may, in a crude way, exclude nonresidents from that group. But it also excludes many residents. Given the State's legitimate purpose and the individual interests that are affected, the classification is all too imprecise. See supra at 343. In general, it is not very difficult for Tennessee to determine on an individualized basis whether one recently arrived in the community is in fact, a resident, although of course there will always be difficult cases. Tennessee has defined a test for bona fide residence, and appears prepared to apply it on an individualized basis in various legal contexts.[22] That test
Page 352
could easily be [92 S.Ct. 1008] applied to new arrivals. Furthermore, if it is unlikely that would-be fraudulent voters would remain in a false locale for the lengthy period imposed by durational residence requirements, it is just as unlikely that they would collect such objective indicia of bona fide residence as a dwelling, car registration, or driver's license. In spite of these things, the question of bona fide residence is settled for new arrivals by conclusive presumption, not by individualized inquiry. Cf. Carrington v. Rash, supra, at 95-96. Thus, it has always been undisputed that appellee Blumstein is himself a bona fide resident of Tennessee within the ordinary state definition of residence. But since Tennessee's presumption from failure to meet the durational residence requirements is conclusive, a showing of actual bona fide residence is irrelevant, even though such a showing would fully serve the State's purposes embodied in the presumption and would achieve those purposes with far less drastic impact on constitutionally protected interests.[23] The Equal Protection Clause places a limit on government by classification, and that limit has been exceeded here. Cf. Shapiro v. Thompson, 394 U.S. at 636; Harman v. Forssenius, 380 U.S. at 542-543; Carrington v. Rash, supra, at 95-96; Skinner v. Oklahoma, 316 U.S. 535 (1942).
Page 353
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.[24] At least six separate sections of the Tennessee Code define offenses to deal with voter fraud. For example, Tenn.Code Ann. § 324 makes it a crime
for any person to register or to have his name registered as a qualified voter . . . when he is not entitled to be so registered . . . or to procure or induce any other person to register or be registered . . . when such person is not legally qualified to be registered as such. . . .[25]
In addition to the various [92 S.Ct. 1009] criminal penalties, Tennessee permits the bona fides of a voter to be challenged on election day. Tenn.Code Ann. § 1309 et seq. (1955 and Supp. 1970). Where a State has available such remedial action
Page 354
to supplement its voter registration system, it can hardly argue that broadly imposed political disabilities such as durational residence requirements are needed to deal with the evils of fraud. Now that the Federal Voting Rights Act abolishes those residence requirements as a precondition for voting in presidential and vice-presidential elections, 42 U.S.C. § 1973aa-1, it is clear that the States will have to resort to other devices available to prevent nonresidents from voting. Especially since every State must live with this new federal statute, it is impossible to believe that durational residence requirements are necessary to meet the State's goal of stopping fraud.[26]
The argument that durational residence requirements further the goal of having "knowledgeable voters" appears to involve three separate claims. The first is that such requirements "afford some surety that the voter has, in fact, become a member of the community." But here the State appears to confuse a bona fide residence requirement with a durational residence requirement. As already noted, a State does have an interest in limiting the franchise to bona fide members of the community. But this does not justify or explain the exclusion from the franchise of persons not because their bona fide residence is questioned, but because they are recent, rather than long-time, residents.
The second branch of the "knowledgeable voters" justification is that durational residence requirements assure that the voter "has a common interest in all matters pertaining to [the community's] government. . . ." By this, presumably, the State means that it may require a period of residence sufficiently lengthy to impress upon
Page 355
its voters the local viewpoint. This is precisely the sort of argument this Court has repeatedly rejected. In Carrington v. Rash, for example, the State argued that military men newly moved into Texas might not have local interests sufficiently in mind, and therefore could be excluded from voting in state elections. This Court replied:
But if they are, in fact, residents, . . . 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.
380 U.S. at 94. See 42 U.S.C. § 1973aa-1(a)(4).
Similarly, here, Tennessee's hopes for voters with a "common interest in all matters pertaining to [the community's] government" is impermissible.[27] To paraphrase what we said elsewhere, "All too often, lack of a [`common interest'] might mean no more than a different interest." Evans v. Cornman, 398 U.S. at 423. "[D]ifferences of opinion" may not be the basis for excluding any group or person from the franchise. Cipriano v. City of Houma, 395 U.S. at 705-706.
[T]he fact that newly arrived [Tennesseeans] may have a more national outlook than long-time residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the
Page 356
electoral vote of their new home State.
Hall v. Beals, 396 U.S. 45, 53-54 (1969) (dissenting opinion).[28]
Finally, the State urges that a long-time resident is "more likely to exercise his right [to vote] more intelligently." To the extent that this is different from the previous argument, the State is apparently asserting an interest in limiting the franchise to voters who are knowledgeable about the issues. In this case, Tennessee argues that people who have been in the State less than a year and the county less than three months are likely to be unaware of the issues involved in the congressional, state, and local elections, and therefore can be barred from the franchise. We note that the criterion of "intelligent" voting is an elusive one, and susceptible of abuse. But without deciding as a general matter the extent to which a State can bar less knowledgeable or intelligent citizens from the franchise, cf. Evans v. Cornman, 398 U.S. at 422; Kramer v. Union Free School District, 395 U.S. at 632; Cipriano v. City
Page 357
of Houma, 395 U.S. at 705,[29] we conclude that durational residence requirements cannot be justified on this basis.
In Kramer v. Union Free School District, supra, we held that the Equal Protection Clause prohibited New York State from limiting the vote in school district elections to parents of school children and to property owners. The State claimed that, since nonparents would be "less informed" about school affairs than parents, id. at 631, the State could properly exclude the class of nonparents in order to limit the franchise to the more "interested" group of residents. We rejected that position, concluding that a "close scrutiny of [the classification] demonstrates that [it does] not accomplish this purpose with sufficient precision. . . ." Id. at 632. That scrutiny revealed that the classification excluding nonparents from the franchise kept many persons from voting who were [92 S.Ct. 1011] as substantially those allowed to vote; given this, the classification was insufficiently "tailored" to achieve the articulated state goal. Ibid. See also Cipriano v. City of Houma, supra, at 706.
Similarly, the durational residence requirements in this case founder because of their crudeness as a device for
Page 358
achieving the articulated state goal of assuring the knowledgeable exercise of the franchise. The classifications created by durational residence requirements obviously permit any long-time resident to vote regardless of his knowledge of the issues -- and obviously many long-time residents do not have any. On the other hand, the classifications bar from the franchise many other, admittedly new, residents who have become at least minimally, and often fully, informed about the issues. Indeed, recent migrants who take the time to register and vote shortly after moving are likely to be those citizens, such as appellee, who make it a point to be informed and knowledgeable about the issues. Given modern communications, and given the clear indication that campaign spending and voter education occur largely during the month before an election,[30] the State cannot seriously maintain that it is "necessary" to reside for a year in the State and three months in the county in order to be knowledgeable about congressional, state, or even purely local elections. There is simply nothing in the record to support the conclusive presumption that residents who have lived in the State for less than a year and their county for less than three months are uninformed about elections. Cf. Shapiro v. Thompson, 394 U.S. at 631. These durational residence requirements crudely exclude large numbers of fully qualified people. Especially since Tennessee creates a waiting period by closing registration books 30 days before an election, there can be no basis for arguing that any durational residence requirement is also needed to assure knowledgeability. It is pertinent to note that Tennessee has never made an attempt to further its alleged interest in an informed electorate in a universally applicable way. Knowledge
Page 359
or competence has never been a criterion for participation in Tennessee's electoral process for long-time residents. Indeed, the State specifically provides for voting by various types of absentee persons.[31] These provisions permit many long-time residents who leave the county or State to participate in a constituency in which they have only the slightest political interest, and from whose political debates they are likely to be cut off. That the State specifically permits such voting is not consistent with its claimed compelling interest in intelligent, informed use of the ballot. If the State seeks to assure intelligent [92 S.Ct. 1012] use of the ballot, it may not try to serve this interest only with respect to new arrivals. Cf. Shapiro v. Thompson, supra, at 637-638.
It may well be true that new residents as a group know less about state and local issues than older residents; and it is surely true that durational residence requirements will exclude some people from voting who are totally uninformed
Page 360
about election matters. But as devices to limit the franchise to knowledgeable residents, the conclusive presumptions of durational residence requirements are much too crude. They exclude too many people who should not, and need not, be excluded. They represent a requirement of knowledge unfairly imposed on only some citizens. We are aware that classifications are always imprecise. By requiring classifications to be tailored to their purpose, we do not secretly require the impossible. Here, there is simply too attenuated a relationship between the state interest in an informed electorate and the fixed requirement that voters must have been residents in the State for a year and the county for three months. Given the exacting standard of precision we require of statutes affecting constitutional rights, we cannot say that durational residence requirements are necessary to further a compelling state interest.
Concluding that Tennessee has not offered an adequate justification for its durational residence laws, we affirm the judgment of the court below.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
BLACKMUN, J., concurring
MR. JUSTICE BLACKMUN, concurring in the result.
Professor Blumstein obviously could hardly wait to register to vote in his new home State of Tennessee. He arrived in Nashville on June 12, 1970. He moved into his apartment on June 19. He presented himself to the registrar on July 1. He instituted his lawsuit on July 17. Thus, his litigation was begun 35 days after his arrival on Tennessee soil, and less than 30 days after he moved into his apartment. But a primary was coming up on August 6. Usually, such zeal to exercise
Page 361
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.
I have little quarrel with much of the content of the Court's long opinion. I concur in the result, with these few added comments, because I do not wish to be described on a later day as having taken a position broader than I think necessary for the disposition of this case.
1. In Pope v. Williams, 193 U.S. 621 (194), Mr. Justice Peckham, in speaking for a unanimous Court that included the first Mr. Justice Harlan and Mr. Justice Holmes, said:
The simple matter to be herein determined is whether, with reference to the exercise of the privilege of voting in Maryland, the legislature of that State had the legal right to provide that a person coming into the State to reside should make the declaration of intent a year before he should have the right to be registered as a voter of the State.
* * * *
. . . The right of a State to legislate upon the subject of the elective franchise as to it may seem good, subject to the conditions already stated, being, as we believe, unassailable, we think it plain that the statute in question violates no right protected by the Federal Constitution.
The reasons which may have impelled the state legislature to enact the statute in question were matters entirely for its consideration, and this court has no concern with them.
193 U.S. at 632, 633-634. I cannot so blithely explain Pope v. Williams away, as does the Court, ante at 337 n. 7, [92 S.Ct. 1013] by asserting that, if that
Page 362
opinion is "[c]arefully read," one sees that the case was concerned simply with a requirement that the new arrival declare his intention. The requirement was that he make the declaration a year before he registered to vote; time, as well as intent, was involved. For me, therefore, the Court today really overrules the holding in Pope v. Williams, and does not restrict itself, as footnote 7 says, to rejecting what it says are mere dicta.
2. The compelling state interest test, as applied to a State's denial of the vote, seems to have come into full flower with Kramer v. Union Free School District, 395 U.S. 621, 627 (1969). The only supporting authority cited is in the "See" context to Carrington v. Rash, 380 U.S. 89, 96 (1965). But as I read Carrington, the standard there employed was that the voting requirements be reasonable. Indeed, in that opinion, MR. JUSTICE STEWART observed, at 91, that the State has "unquestioned power to impose reasonable residence restrictions on the availability of the ballot." A like approach was taken in McDonald v. Board of Election Commissioners, 394 U.S. 802, 809 (1969), where the Court referred to the necessity of "some rational relationship to a legitimate state end" and to a statute's being set aside "only if based on reasons totally unrelated to the pursuit of that goal." I mention this only to emphasize that Kramer appears to have elevated the standard. And this was only three years ago. Whether Carrington and McDonald are now frowned upon, at least in part, the Court does not say. Cf. Bullock v. Carter, ante, p. 134.
3. Clearly, for me, the State does have a profound interest in the purity of the ballot box and in an informed electorate, and is entitled to take appropriate steps to assure those ends. Except where federal intervention
Page 363
properly prescribes otherwise, see Oregon v. Mitchell, 400 U.S. 112 (1970), I see no constitutional imperative that voting requirements be the same in each State, or even that a State's time requirement relate to the 30-day measure imposed by Congress by 42 U.S.C. § 1973aa-1(d) for presidential elections. I assume that the Court, by its decision today, does not depart from either of these propositions. I cannot be sure of this, however, for much of the opinion seems to be couched in absolute terms.
4. The Tennessee plan, based both in statute and in the State's constitution, is not ideal. I am content that the one-year and three-month requirements be struck down for want of something more closely related to the State's interest. It is, of course, a matter of line drawing, as the Court concedes, ante at 348. But if 30 days pas constitutional muster, what of 35 or 45 or 75? The resolution of these longer measures, less than those today struck down, the Court leaves, I suspect, to the future.
BURGER, J., dissenting
The holding of the Court in Pope v. Williams, 193 U.S. 621 (1904), is as valid today as it was at the turn of the century. 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. Cf. Oregon v. Mitchell, 400 U.S. 112 (1970). In both cases, some informed and responsible persons are denied the vote, while others less informed and less responsible are permitted to vote. Some lines must be drawn. To challenge such lines by the "compelling state interest" standard is to condemn them all. So far as I am aware, no state law has ever satisfied this seemingly
Page 364
insurmountable standard, and I doubt one ever will, for it demands nothing less than perfection.
[92 S.Ct. 1014] The existence of a constitutional "right to travel" does not persuade me to the contrary. If the imposition of a durational residency requirement for voting abridges the right to travel, surely the imposition of an age qualification penalizes the young for being young, a status I assume the Constitution also protects.
[1] Involved here are provisions of the Tennessee Constitution, as well as portions of the Tennessee Code. Article IV, § 1, of the Tennessee Constitution, provides in pertinent part:
Right to vote -- Election precincts. . . . -- Every person of the age of twenty-one years, being a citizen of the United States, and a resident of this State for twelve months, and of the county wherein such person may offer to vote for three months next preceding the day of election, shall be entitled to vote for electors for President and Vice-President of the United States, members of the General Assembly and other civil officers for the county or district in which such person resides; and there shall be no other qualification attached to the right of suffrage.
The General Assembly shall have power to enact laws requiring voters to vote in the election precincts in which they may reside, and laws to secure the freedom of elections and the purity of the ballot box.
Section 2-201, Tenn.Code Ann. (Supp. 1970) provides:
Qualifications of voters. -- Every person of the age of twenty-one (21) years, being a citizen of the United States and a resident of this state for twelve (12) months, and of the county wherein he may offer his vote for three (3) months next preceding the day of election, shall be entitled to vote for members of the general assembly and other civil officers for the county or district in which he may reside.
Section 2-304, Tenn.Code Ann. (Supp. 1970) provides:
Persons entitled to permanently register -- Required time for registration to be in effect prior to election. -- All persons qualified to vote under existing laws at the date of application for registration, including those who will arrive at the legal voting age by the date of the next succeeding primary or general election established by statute following the date of their application to register (those who become of legal voting age before the date of a general election shall be entitled to register and vote in a legal primary election selecting nominees for such general election), who will have lived in the state for twelve(12) months and in the county for which they applied for registration for three (3) months by the date of the next succeeding election shall be entitled to permanently register as voters under the provisions of this chapter provided, however, that registration or re-registration shall not be permitted within thirty (30) days of any primary or general election provided for by statute. If a registered voter in any county shall have changed his residence to another county, or to another ward, precinct, or district within the same county, or changed his name by marriage or otherwise, within ninety (90) days prior to the date of an election, he shall be entitled to vote in his former ward, precinct or district of registration.
[2] On July 30, the District Court refused to grant a preliminary injunction permitting Blumstein and members of the class he represented to vote in the August 6 election; the court noted that to do so would be "so obviously disruptive as to constitute an example of judicial improvidence." The District Court also denied a motion that Blumstein be allowed to cast a sealed provisional ballot for the election.
At the time the opinion below was filed, the next election was to be held in November, 1970, at which time Blumstein would have met the three-month part of Tennessee's durational residency requirements. The District Court properly rejected the State's position that the alleged invalidity of the three-month requirement had been rendered moot, and the State does not pursue any mootness argument here. Although appellee now can vote, the problem to voters posed by the Tennessee residence requirements is "`capable of repetition, yet evading review.'" Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). In this case, unlike Hall v. Beals, 396 U.S. 45 (1969), the laws in question remain on the books, and Blumstein has standing to challenge them as a member of the class of people affected by the presently written statute.
[3] The important question in this case has divided the lower courts. Durational residence requirements ranging from three months to one year have been struck down in Burg v. Canniffe, 315 F.Supp. 380 (Mass.1970); Affeldt v. Whitcomb, 319 F.Supp. 69 (ND Ind.1970); Lester v. Board of Elections for District of Columbia, 319 F.Supp. 505 (DC 1970); Bufford v. Holton, 319 F.Supp. 843 (ED Va.1970); Hadnott v. Amos, 320 F.Supp. 107 (MD Ala.1970); Kohn v. Davis, 320 F.Supp. 246 (Vt. 1070); Keppel v. Donovan, 326 F.Supp. 15 (Minn.1970); Andrews v. Cody, 327 F.Supp. 793 (MDNC 1971), as well as this case. Other district courts have upheld durational residence requirements of a similar variety. Howe v. Brown, 319 F.Supp. 862 (ND Ohio 1970); Ferguson v. Williams, 330 F.Supp. 1012 (ND Miss.1971); Cocanower v. Marston, 318 F.Supp. 402 (Ariz.1970); Fitzpatrick v. Board of Election Commissioners (ND Ill.1970); Piliavin v. Hoel, 320 F.Supp. 66 (WD Wis.1970); Epps v. Loan (No. 9137, WD Wash.1970); Fontham v. McKeithen, 336 F.Supp. 153 (ED La.1971). In Sirak v. Brown (Civ. No. 70-164, SD Ohio 1970), the District Judge refused to convene a three-judge court and summarily dismissed the complaint.
[4] Noting the lack of dispute on this point, the court below specifically found that Blumstein had no intention of leaving Nashville, and was a bona fide resident of Tennessee. 337 F.Supp. 323, 324.
[5] While it would be difficult to determine precisely how many would-be voters throughout the country cannot vote because of durational residence requirements, but see Cocanower & Rich, Residency Requirements for Voting, 12 Ariz.L.Rev. 477, 478 and n. 8 (1970), it is worth noting that, during the period 1947-1970 an average of approximately 3.3% of the total national population moved interstate each year. (An additional 3.2% of the population moved from one county to another intrastate each year.) U.S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Population Characteristic, Series P-20, No. 210, Jan. 15, 1971, Table 1, pp. 7-8.
[6] Compare Kramer v. Union Free School District, 395 U.S. 621 (1969), and Skinner v. Oklahoma, 316 U.S. 535 (1942), with Williamson v. Lee Optical Co., 348 U.S. 483 (1955); compare McLaughlin v. Florida, 379 U.S. 184 (1964), Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), and Graham v. Richardson, 403 U.S. 365 (1971), with Morey v. Doud, 354 U.S. 457 (1957), and Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959).
[7] Appellants also rely on Pope v. Williams, 193 U.S. 621 (1904). Carefully read, that case simply holds that federal constitutional rights are not violated by a state provision requiring a person who enters the State to make a "declaration of his intention to become a citizen before he can have the right to be registered as a voter and to vote in the State." Id. at 634. In other words, the case simply stands for the proposition that a State may require voters to be bona fide residents. See infra at 343-344. To the extent that dicta in that opinion are inconsistent with the test we apply or the result we reach today, those dicta are rejected.
[8] We note that, in the Voting Rights Act of 1965, as amended, Congress specifically found that a durational residence requirement "denies or abridges the inherent constitutional right of citizens to enjoy their free movement across State lines. . . ." 84 Stat. 316, 42 U.S.C. § 1973aa-1(a)(2).
[9] For example, in Crandall v. Nevada, 6 Wall. 35 (1868), the tax imposed on persons leaving the State by commercial carrier was only $1, certainly a minimal deterrent to travel. But in declaring the tax unconstitutional, the Court reasoned that "if the State can tax a railroad passenger one dollar, it can tax him one thousand dollars," id. at 46. In Ward v. Maryland, 12 Wall. 418 (1871), the tax on nonresident traders was more substantial, but the Court focused on its discriminatory aspects, without anywhere considering the law's effect, if any, on trade or tradesmen's choice of residence. Cf. Chalker v. Birmingham N.W. R. Co., 249 U.S. 522, 527 (1919); but see Williams v. Fears, 179 U.S. 270 (1900). In Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 79-80 (1920), the Court held that New York could not deny nonresidents certain small personal exemptions from the state income tax allowed residents. The amounts were certainly insufficient to influence any employee's choice of residence. Compare Toomer v. Witsell, 334 U.S. 385 (1948), with Mullaney v. Anderson, 342 U.S. 415 (1952).
[10] Separately concurring, MR. JUSTICE STEWART concluded that, quite apart from any purpose to deter,
a law that so clearly impinges upon the constitutional right of interstate travel must be shown to reflect a compelling governmental interest.
Id. at 643-644 (first emphasis added). See also Graham v. Richardson, 403 U.S. at 375.
[11] In Harman, the Court held that a Virginia law which allowed federal voters to qualify either by paying a poll tax or by filing a certificate of residence six months before the election "handicap[ped] exercise" of the right to participate in federal elections free of poll taxes, guaranteed by the Twenty-fourth Amendment. Id. at 541.
[12] Where, for example, an interstate migrant loses his driver's license because the new State has a higher age requirement, a different constitutional question is presented. For, in such a case, the new State's age requirement is not a penalty imposed solely because the newcomer is a new resident; instead, all residents, old and new, must be of a prescribed age to drive. See Shapiro v. Thompson, 394 U.S. 618, 638 n. 21 (1969).
[13] As noted infra at 343-344, States may show an overriding interest in imposing an appropriate bona fide residence requirement on would-be voters. One who travels out of a State may no longer be a bona fide resident, and may not be allowed to vote in the old State. Similarly, one who travels to a new State may, in some cases, not establish bona fide residence, and may be ineligible to vote in the new State. Nothing said today is meant to cast doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements.
[14] See n. 7, supra.
[15] See Fontham v. McKeithen, 336 F.Supp. at 167-168 (Wisdom, J., dissenting); Pope v. Williams, 193 U.S. 621 (1904); and n. 7, supra.
[16] See, e.g., Cocanower & Rich, 12 Ariz.L.Rev. at 499; MacLeod & Wilberding, State Voting Residency Requirements and Civil Rights, 38 Geo.Wash.L.Rev. 93, 113 (1969).
[17] Obviously, it could not be argued that the three-month waiting period is necessary to confirm residence in the county, and the one-year period necessary to confirm residence in the State. Quite apart from the total implausibility of any suggestion that one task should take four times as long as the other, it is sufficient to note that, if a person is found to be a bona fide resident of a county within the State, he is, by definition, a bona fide resident of the State as well.
[18] See, e.g., Brown v. Hows, 163 Tenn. 178, 42 S.W.2d 210 (1930); Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173 (1905). See generally Tennessee Law Revision Commission, Title 2 -- Election Laws, Tentative Draft of October 1971, § 222 and Comment. See n. 22, infra.
[19] In the Voting Rights Act Amendments of 1970, Congress abolished durational residence requirements as a precondition to voting in presidential and vice-presidential elections, and prohibited the States from cutting off registration more than 30 days prior to those elections. These limits on the waiting period a State may impose prior to an election were made "with full cognizance of the possibility of fraud and administrative difficulty." Oregon v. Mitchell, 400 U.S. 112, 238 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.). With that awareness, Congress concluded that a waiting period requirement beyond 30 days "does not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections." 42 U.S.C. § 1973aa-1(a)(6). And, in sustaining § 202 of the Voting Rights Act of 1965, we found
no explanation why the 30-day period between the closing of new registrations and the date of election would not provide, in light of modern communications, adequate time to insure against . . . frauds.
Oregon v. Mitchell, supra, at 239 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.). There is no reason to think that what Congress thought was unnecessary to prevent fraud in presidential elections should not also be unnecessary in the context of other elections. See infra at 354.
[20] As a technical matter, it makes no sense to say that one who has been a resident for a fixed duration is presumed to be a resident. In order to meet the durational residence requirement, one must, by definition, first establish that he is a resident. A durational residence requirement is not simply a waiting period after arrival in the State; it is a waiting period after residence is established. Thus, it is conceptually impossible to say that a durational residence requirement is an administratively useful device to determine residence. The State's argument must be that residence would be presumed from simple presence in the State or county for the fixed waiting period.
[21] It should e clear that this argument assumes that the State will reliably determine whether the sworn claims of duration in the jurisdiction are themselves accurate. We have already noted that this is unlikely. See supra at 346. Another recurrent problem for the State's position is the existence of differential durational residence requirements. If the State presumes residence in the county after three months in the county, there is no rational explanation for requiring a full 12 months' presence in the State to presume residence in the State.
[22] Tennessee's basic test for bona fide residence is (1) an intention to stay indefinitely in a place (in other words, "without a present intention of removing therefrom," Brown v. Hows, 163 Tenn. at 182, 42 S.W.2d at 211), joined with (2) some objective indication consistent with that intent, see n. 18, supra. This basic test has been applied in divorce cases, see, e.g., Sturdavant v. Sturdavant, 28 Tenn.App. 273, 189 S.W.2d 410 (1944); Brown v. Brown, 150 Tenn. 89, 261 S.W. 959 (1924); Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173 (1905); in tax cases, see, e.g., Denny v. Sumner County, 134 Tenn. 468, 184 S.W. 14 (1916); in estate cases, see, e.g., Caldwell v. Shelton, 32 Tenn.App. 45, 221 S.W.2d 815 (1948); Hascall v. Hafford, 107 Tenn. 355, 65 S.W. 423 (1901); and in voting cases, see, e.g., Brown v. Hows, supra; Tennessee Law Revision Commission, Title 2 -- Election Laws, supra, n. 18.
[23] Indeed, in Blumstein's case, the County Election Commission explicitly rejected his offer to treat the waiting period requirement as
a waivable guide to commission action, but rebuttable upon a proper showing of competence to vote intelligently in the primary and general election.
Complaint at App. 8. Cf. Skinner v. Oklahoma, 316 U.S. at 544-545 (Stone, C.J., concurring).
[24] See Harman v. Forssenius, 380 U.S. at 543 (1965) (filing of residence certificate six months before election in lieu of poll tax unnecessary to insure that the election is limited to bona fide residents in light of "numerous devices to enforce valid residence requirements"); cf. Schneider v. State, 308 U.S. 147, 164 (1939) (fear of fraudulent solicitations cannot justify permit requests since "[f]rauds may be denounced as offenses and punished by law").
[25] Tenn.Code Ann. § 2-1614 (Supp. 1970) makes it a felony for any person who "is not legally entitled to vote at the time and place where he votes or attempts to vote . . to vote or offer to do so," or to aid and abet such illegality. Tenn.Code Ann. § 2-2207 (1955) makes it a misdemeanor
for any person knowingly to vote in any political convention or any election held under the Constitution or laws of this state, not being legally qualified to vote . . . ,
and Tenn.Code Ann. § 2-2208 (1955) makes it a misdemeanor to aid in such an offense. Tenn.Code Ann. § 2-202 (Supp. 1970) makes it an offense to vote outside the ward or precinct where one resides and is registered. Finally, Tenn.Code Ann. § 2-2209 (1955) makes it unlawful to
bring or aid in bringing any fraudulent voters into this state for the purpose of practising a fraud upon or in any primary or final election. . . .
See, e.g., State v. Weaver, 122 Tenn.198, 112 S.W. 465 (1909).
[26] We note that in the period since the decision below, several elections have been held in Tennessee. We have been presented with no specific evidence of increased colonization or other fraud.
[27] It has been noted elsewhere, and with specific reference to Tennessee law, that
[t]he historical purpose of [durational] residency requirements seems to have been to deny the vote to undesirables, immigrants and outsiders with different ideas.
Cocanower & Rich, 12 Ariz.L.Rev. at 484 and nn. 44, 45, and 46. We do not rely on this alleged original purpose of durational residence requirements in striking them down today.
[28] Tennessee may be revealing this impermissible purpose when it observes:
The fact that the voting privilege has been extended to 18-year-old persons . . . increases, rather than diminishes, the need for durational residency requirements. . . . It is so generally known, as to be judicially accepted that there are many political subdivisions in this state, and other states, wherein there are colleges universities and military installations with sufficient student body or military personnel over eighteen years of age as would completely dominate elections in the district, county or municipality so located. This would offer the maximum of opportunity for fraud through colonization, and permit domination by those not knowledgeable or having a common interest in matters of government, as opposed to the interest and the knowledge of permanent members of the community. Upon completion of their schooling or service tour, they move on, leaving the community bound to a course of political expediency not of its choice, and, in fact, one over which its more permanent citizens, who will continue to be affected, had no control.
Brief for Appellants 116.
[29] In the 1970 Voting Rights Act, which added § 201, 42 U.S.C. § 1973aa, Congress provided that "no citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election. . . ." The term "test or device" was defined to include, in part,
any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject. . . .
By prohibiting various "test[s]" and "device[s]" that would clearly assure knowledgeability on the part of voters in local elections, Congress declared federal policy that people should be allowed to vote even if they were not well informed about the issues. We upheld § 201 in Oregon v. Mitchell, supra.
[30] H. Alexander, Financing the 1968 Election 106-113 (1971); Affeldt v. Whitcomb, 319 F.Supp. at 77; Cocanower & Rich, 12 Ariz.L.Rev. at 498.
[31] The general provisions for absentee voting apply in part to
[a]ny registered voter otherwise qualified to vote in any election to be held in this state or any county, municipality, or other political subdivision thereof, who by reason of business, occupation, health, education, or travel, is required to be absent from the county of his fixed residence on the day of the election. . . .
Tenn.Code Ann. § 2-1602 (Supp. 1970). See generally Tenn.Code Ann. § 2-1601 et seq. (Supp. 1970). An alternative method of absentee voting for armed forces members and federal personnel is detailed in Tenn.Code Ann. § 2-1701 et seq. (Supp. 1970). Both those provisions allow persons who are still technically "residents" of the State or county to vote even though they are not physically present, and even though they are likely to be uninformed about the issues. In addition, Tennessee has an unusual provision that permits persons to vote in their prior residence for a period after residence has been changed. This section provides, in pertinent part:
If a registered voter in any county shall have changed his residence to another county . . . within ninety (90) days prior to the date of an election, he shall be entitled to vote in his former ward, precinct or district of registration.
Tenn.Code Ann. § 204 (Supp. 1970). See also Tenn.Code Ann. § 2-204 (1955).


USA Patriot Act I. 18 USC §2712, et seq.

USA Patriot Act II. 18 U.S.C. § 2516 (Authorization for interception of wire, oral, or electronic communications) This section allows (under certain specific conditions) the United States Attorney General (or some of his subordinates) to authorize a Federal judge to make an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation (FBI), or another relevant U.S. Federal agency.
The Attorney General's subordinates who can use Section 201 are: the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division who is specially designated by the Attorney General.
The amendment added a further condition which allowed an interception order to be carried out. The interception order may now be made if a criminal violation is made with respect to terrorism (defined by 18 U.S.C. § 2332):
* the use of weapons of mass destruction (defined by 18 U.S.C. § 2332a), or
* providing financial aid to facilitate acts of terrorism (defined by 18 U.S.C. § 2332d), or
* providing material support to terrorists (defined by 18 U.S.C. § 2339A), or
* Providing material support or resources to designated foreign terrorist organizations (defined by 18 U.S.C. § 2339B). wiki.


Wednesday, November 10, 2010

Pre and Post Foreclosure Litigation in Georgia

By: Hugh C. Wood, Esq.
Wood & Meredith, LLP
Atlanta, GA

Georgia is a non-judicial foreclosure state. As a title theory state, the lender owns the title in the security deed as opposed to having mere lien on title. Once these rapid fire foreclosures get started in Georgia, they are hard to stop. [1]

If the borrower does not pay according to the terms of the security deed, the lender then proceeds to sell the borrower’s real property in a non-judicial sale on the courthouse steps. Pursuant to the terms of most standard Fannie Mae and Freddie Mac security deeds, the lender will send a ten (10) day default and acceleration letter to the borrower and allow the borrower ten (10) days in which to pay all sums then due to avoid the imposition of attorney’s fees in foreclosure. [2]

If and to the extent the borrower does not cure the default, the lender will proceed to notice the property for sale on the courthouse steps. If the property is residential (the rules are relaxed for a purely commercial foreclosure), then the lender must publish for four (4) consecutive weeks in the legal organ of the county where the property is located and provide the borrower with thirty (30) days written notice prior to sale. The rule used to be fifteen (15) days written notice. [3]

For a borrower to raise issues in court in Georgia, the borrower must “get into a Georgia courtroom.” Getting into court in a non-judicial foreclosure proceeding is not an easy task. This article will review the four (4) possible methods of raising claims about a foreclosure in a Georgia (including federal) courtroom: 1) the pre-foreclosure injunction hearing, 2) the pre-foreclosure adversary proceeding bankruptcy hearing, 3) the post-foreclosure wrongful foreclosure suit, and 4) the post-foreclosure deficiency judgment hearing.

1. The Pre-Foreclosure Injunction Filing

Once a property gets listed for a foreclosure sale in Georgia, it becomes extremely difficult to stop the foreclosure sale. For some reason, television perhaps, borrowers think that the lender must sue them prior to foreclosure. While that is true in a pure judicial foreclosure state, for example, Ohio, New York, Florida, there is no such requirement in Georgia. All the borrower will receive in a non-judicial Georgia foreclosure is the notice of default and acceleration and the notice of publication in the legal organ.

Stopping a Georgia foreclosure is not easy. First, though they rarely realize it, the borrower must have some cogent reason to stop the sale – other than mere nonpayment. Mere non-payment standing alone will not stop the foreclosure. A borrower must be able to show that the lender is foreclosing on the wrong parcel, or that the lender is foreclosing on too many parcels or that only one is pledged for the debt. Or, the borrower must show that the lender has received a partial payoff of the debt and the noticed debt is now incorrect, or (and this is currently vogue) that the lender is not the proper party to bring the action because there is a missing assignment or lost assignment. [4] Or, the borrower shows, based on facts, that the lender does not have “standing” to proceed with a non-judicial foreclosure. That is fancy language for a statement that the lender does not own the debt at the time it published the foreclosure. Id.

Assuming that the borrower has a legal reason to stop the foreclosure, then and in that event, the borrower may file a Petition (in equity) for a Temporary Restraining Order (TRO). [5] It is important to note that, because Georgia has a confusing name for its lower court of unlimited jurisdiction, the “state court,” an injunction suit must be filed in the plenary court, the “superior court.” Only the superior court has jurisdiction in equity to stop foreclosure. By the time this error is spotted, the sale will have passed.

In an injunction lawsuit, the borrower must allege the promissory note and the security deed. The borrower must fully describe the real property with a valid legal description, he must assert that he is in the correct court and he must allege that he as the Petitioner will suffer immediate and irreparable harm if the foreclosure sale is not immediately enjoined. He must allege and meet the Georgia TRO standard. [6] The immediate threat is that the property will be wrongfully sold to a third party. While the court will have jurisdiction over the lender based on the TRO suit and the suggested filing of a Lis Pendens on the land records, no such jurisdiction will be had over a third party purchaser. The third party may become a bona fide purchaser for value, if the sale is not enjoined.

The notice standard to the lender is quite strict. The borrower must give the lender notice of the emergency hearing on the TRO and provide it with an opportunity to oppose the TRO. Two or three days notice is not unusual. Almost no hearings are granted ex parte. Not only must the borrower make out his claim for relief, but he must show at the TRO hearing that there is a substantial likelihood that he will prevail against the lender at a full trial on the matter. This proof is always a challenge with no discovery at this stage of the proceedings. The best attacks are that the lender has no valid assignment, or no standing, or that lender is foreclosing on the wrong loan. Or, that borrower’s loan has been reinstated. The new and novel claim is that the lender has entered into a written modification of the loan, but no one at lender’s office told foreclosure counsel to stop the pending foreclosure.

Assuming that borrower wins the TRO hearing, the battle is not over. By law, the TRO expires within thirty (30) days. A superior court cannot issue a TRO for longer than thirty (30) days. Thus, for borrower to seek complete relief under this equitable statute, he must proceed to obtain a hearing on a permanent injunction within the next 30 days. The permanent injunction may or may not end the matter.

Generally, if the permanent injunction is granted in a later hearing it is only good through a trial on the matter, which may occur within a year or two. If borrower does obtain a permanent injunction the cases almost invariably settle, resolve or deteriorate into fights over who as the legal authority or standing to foreclosure. These suits are expensive and do not always prevail. If they fail, they expose the borrower and the borrowers’ lawyer to an adverse award of attorney’s fees. [7] That said, they are the most powerful tool at the state level to stop a pending foreclosure.

2. The Pre-Foreclosure Bankruptcy Filing

A federal bankruptcy filing pre-foreclosure will absolutely stop the foreclosure. Once bankruptcy is filed, the automatic stay granted all debtors automatically stops a Georgia foreclosure. [8]

The technical aspects of bankruptcy are beyond the scope of this article. However, if a borrower considers the potential of filing an Adversary Proceeding suit in bankruptcy prior to a Georgia non-judicial foreclosure, he will be able to “get into” a Georgia courtroom prior to the foreclosure.

There are only four (4) relevant bankruptcy chapters under which a debtor may stop a foreclosure. They are, generally, Chapter 7 (complete liquidation), Chapter 12 (small farmers and small fishermen), Chapter 13 (wage earner plans) and Chapter 11 (business reorganization). The focus of this analysis is not bankruptcy, but whether the borrower (now debtor) can get into a courtroom pre-foreclosure and assert claims against a lender in Georgia prior to the exercise by the lender of the non-judicial foreclosure. An Adversary Proceeding is a lawsuit filed inside the confines of the bankruptcy court, either by the lender against the borrower or by the borrower (debtor) against the lender (creditor).

The issue of whether a borrower may stop the foreclosure, 11 U.S.C. § 362, and then proceed with an affirmative lawsuit against the lender turns on who owns the debtor’s claim. If the borrower files a complete liquidation Chapter 7, the Chapter 7 Trustee owns the estate and the borrower has no power to compel the Chapter 7 Trustee to bring an Adversary Proceeding against the lender. It is possible that the Chapter 7 trustee will abandon the claim to the debtor, but since debtor has filed for a complete liquidation, it is most likely a useless event. [9]

A Chapter 13 functions like a pseudo Debtor In Possession (DIP) case. So, in a Chapter 13 (and the more rare small farmer Chapter 12), a borrower (debtor) may be able to bring an Adversary Proceeding against the lender. The Chapter 13 debtor must make regular payments while the claim is pending. Since debtors are in bankruptcy because they do not possess liquid funds, the debtor may run of money and time before the bankruptcy court resolves the Adversary Proceeding. Yet, the Chapter 13 is a method of pulling the lender into a forum of litigation prior to the non-judicial foreclosure.

Chapter 11 in a real estate setting almost always turns on a Single Asset Real Estate (SARE) filing. [10] A SARE bankruptcy filing will be dismissed within 90 days, or shortly thereafter, if the debtor fails to pay the interest due on the scheduled real property note. Thus, most of the SARE filings are dismissed and the real estate is thereafter foreclosed upon. However, again, it is a powerful method to obtain a court hearing prior to the foreclosure. [11]

3. The Post-Foreclosure Wrongful Foreclosure Suit

Once the foreclosure has occurred in Georgia, the borrower’s options become substantially limited. There is no right of redemption in Georgia as such right exists in a handful of other states. When the foreclosure is final, the title to the property becomes vested in the lender (or a third party purchaser) and title is no longer found in the borrower.

A wrongful foreclosure case is a tort case filed against the lender. A tort is a civil wrong that is cured by damages awarded against the lender. Most generally a post foreclosure tort requires the following minimal elements: 1) a duty owed by the lender to the borrower, [12] 2) a breach of that duty by the lender, 3) a showing that the breach proximally caused damages to the borrower, and 4) a showing that the borrower suffered identifiable money damages. [13]

The Georgia Court of Appeals has stated on numerous occasions, “Georgia recognizes the tort of wrongful foreclosure. As [we have] noted, "[t]here exists a statutory duty ... to exercise fairly and in good faith the power of sale in a deed to secure debt [,and] breach of this duty is a tort compensable at law." [14]

One avenue of “redress” that a wronged borrower has “after the foreclosure,” is to sue the lender for wrongful foreclosure. It is important to note that a wrongful foreclosure suit may not recover the property. A wrongful foreclosure suit (unless settled by a return of the property – which requires no intervening third party purchaser) will only produce money damages. The reason that the wrongful foreclosure action may not produce the return of the real property is that the property may have been conveyed to a third party on the courthouse steps. Or the lender, acting well within its legal rights, may have conveyed the property to a purchaser that is not tainted by the allegations of the wrongful foreclosure claim.

What types of breach of duty rise to wrongful foreclosure? They are legion. Consider the following:

The reinstatement of the loan prior to the foreclosure, yet the foreclosure matures to sale.
A written loan modification agreement between the lender and borrower. The lender proceeds with the foreclosure on the borrower, because its lawyers are unaware of the foreclosure. [15]
A foreclosure by a lender that does not hold a proper or valid assignment.
A foreclosure that is a clear violation of a signed forbearance agreement.
A failure to comply with the statutory duty to provide notice of sale to the debtor in accordance with OCGA § 44-14-162.
Foreclosing on a cancelled security deed.
Foreclosing on a security deed barred by the passage of time.
Foreclosing on a defective security deed.

What types of damages may be recovered? Damages in wrongful foreclosure clearly include the value of the real estate wrongfully foreclosed. If the debtor elects to sue for damages, the recovery allowed is “the full difference between the fair market value of the property at the time of the sale and the indebtedness to the seller if the fair market value exceeded the amount of the indebtedness." [16]

The other damages are so variant as to go beyond the scope of this article. [17]

The time to bring this action may be as short as two (2) years from the date of the foreclosures. In some instances, it may be even shorter.

The tort suit of wrongful foreclosure is a powerful remedy to keep lender’s conduct in check. However, borrowers must be careful in asserting such claims. The claims must be non-frivolous, have a good faith basis in law and fact and not be interposed for delay. If they are not, the borrower may find himself saddled with lenders attorney’s fees. [18]

4. The Post Foreclosure Deficiency Judgment

Once the borrower loses his real property on the courthouse steps, that may not end the matter of collection. All security deeds in Georgia are underpinned by a promissory note. That is, the debtor really owes the money to the lender or the secured party via the promissory note.

If the foreclosure generates enough money to pay off the debt then and in that event the loan, security deed and promissory note are all extinguished by the sale and the lender is made whole by the sale. This almost never happens.

If the lender were always made whole at foreclosure, then all loans would need to be called “non-recourse,” loans. The secured property would stand for the debt and there would be no other promise – whether promissory note, co-signor note, personal guarantee, etc. A lender’s foreclosure would end the debtor/creditor relationship without regard to how much the property brought at foreclosure sale.

Since lenders are generally not “made whole,” by the courthouse steps sale, many pursue their right to seek a monetary judgment against the borrower. To proceed with this claim, the lender must file a direct action in the superior court of the County where the real property is located within thirty (30) days of the date of the foreclosure. If the lender misses the thirty (30) day deadline, the lender loses its right to seek a deficiency judgment. Any collection on amounts owed after that date by that lender are thereafter wrongful.

A borrower may engage in discovery, but the borrower has to be exceptionally vigilant and prompt. The statute, [19] only requires that the lender give the borrower five (5) days notice of the hearing. If the borrower can get ahead of the power curve or get the cooperation of lender’s counsel (many times lenders will cooperate. They want the judgment and do not want the court viewing their tactics as obstructionist), Borrower may serve a [20] subpoena for the person most knowledgeable about the loan at the bank and/or the person most knowledgeable about the bank’s appraisals. If a borrower cannot get the lender to cooperate with a discovery notice, a borrower may resort to trial subpoenas. Thus, if the borrower desires to proceed with any form of discovery it must use Notice to Produce Subpoenas commanding the lender to produce documents at the deficiency summary proceeding. [21]

There are two (2) bank appraisals that the borrower needs to review. They are, the appraisal that the bank obtained when it made the loan (under a special Georgia statute, the bank may use its own internal officer as an appraiser) and the appraisal it obtained shortly before it foreclosed on the property, if any. If the borrower desires to fight the deficiency judgment, he should obtain a borrower’s appraisal prior to the court hearing. This is a daunting task for most borrowers, given that they have just lost their property in foreclosure and are now facing a deficiency lawsuit. However, a borrower’s appraisal is almost mandatory to show that the sale did not bring the “true market value.” The term “true market value,” is found almost nowhere else, except the Georgia statute and we are not sure exactly what it means. It is, we suppose, akin to “fair market value,” on the day of the foreclosure sale. It may be that if a third party purchased the property on the courthouse steps, then and in that event, the court will look to see if the sale was fair, conducted according to statute and the sale price was “fair,” on the day of sale. Since lenders purchase the great bulk of all foreclosures sales (they buy the property they are selling for the debt), the court will look to see if the bank bid the “true market value” on the day of sale. [22]

When the bank buys the property for the debt it becomes much more important for a borrower to examine the numbers bid at the sale. For example, if the debt on the property is $500,000.00, but the bank only bids $50,000.00, the borrower will be facing a deficiency of $450,000.00 to be paid out of the borrowers personal assets. In such a scenario, the court will scrutinize the foreclosure sale to determine whether the amount bid by the lender on the courthouse steps constituted “true market value.” The hearing really comes down to a battle of the experts – the bank’s appraiser versus the borrower’s appraiser. The owner of the property may, legally, give his or her opinion of the value of the property. [23] However, the better practice is to have a licensed appraiser.

If the lender is successful, it obtains a judgment for the deficiency against the borrower and may pursue it like another judgment. If the borrower is successful, he obtains a resale. While that resale may or may not generate the same outcome, we have found that some type of settlement, generally, comes out of that second sale. While not pure law, the borrower’s odds of a better outcome (if not a pure no-recourse loan) improve substantially if the borrower wins at the deficiency judgment hearing.


In this article it has been shown that Georgia is primarily a non-judicial foreclosure state. It has been shown that lenders need only provide minimal notice to borrowers to proceed with a non-judicial foreclosure of secured real property in Georgia.

Because lenders are not required to file their action in court prior to foreclosure, there is no convenient method for borrowers to raise challenges to a pending foreclosure. It has been shown that there are at least four (4) methods by which a Georgia borrower can raise issues in a courtroom against a lender foreclosing in Georgia. They are: 1) a pre-foreclosure injunction hearing, 2) a pre-foreclosure adversary proceeding bankruptcy hearing, 3) a post-foreclosure wrongful foreclosure suit, and 4) a post-foreclosure deficiency judgment hearing.

Georgia’s waters are choppy for borrowers. However with careful planning and the use of expert witnesses and expert appraisals, borrowers can level the playing field and require lenders to prove each and every claim in Georgia prior to proceeding to foreclosure or obtaining a deficiency judgment.

Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
twitter: USALawyer_
Phone: 404-633-4100
Fax: 404-633-0068



Georgia allows for the use of a mortgage, a security deed, and a pledge for title, but 99% of all lending conveyances are by way of the Georgia security deed. In a standard security deed transfer, the lender lends money to the borrower and takes back a promissory note and a full conveyance of the title to the property by security deed. The borrower then is left only with the promissory note (being a contractual requirement to pay the lender) and the equitable right of redemption with regard to the security deed. That is, the borrower no longer owns the property, but has only a mere right to reclaim the property by “paying off,” the promissory note and canceling the security deed.


OCGA § 13-1-11. Validity And Enforcement Of Obligations To Pay Attorney's Fees Upon Notes Or Other Evidence Of Indebtedness
(a) Obligations to pay attorney's fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable and collectable as a part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity, subject to the following provisions:
(1) If such note or other evidence of indebtedness provides for attorney's fees in some specific percent of the principal and interest owing thereon, such provision and obligation shall be valid and enforceable up to but not in excess of 15 percent of the principal and interest owing on said note or other evidence of indebtedness;
(2) If such note or other evidence of indebtedness provides for the payment of reasonable attorney's fees without specifying any specific percent, such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00; and
(3) The holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney's fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney's fees. If the maker, endorser, or party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney's fees shall be void and no court shall enforce the agreement. The refusal of a debtor to accept delivery of the notice specified in this paragraph shall be the equivalent of such notice.
(b) Obligations to pay attorney's fees contained in security deeds and bills of sale to secure debt shall be subject to this Code section where applicable.


OCGA § 44-14-162.2. Sales Made On Foreclosure Under Power Of Sale - Mailing Of Notice To Debtor - Procedure For Mailing Notice
(a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. The notice required by this Code section shall be deemed given on the official postmark day or day on which it is received for delivery by a commercial delivery firm. Nothing in this subsection shall be construed to require a secured creditor to negotiate, amend, or modify the terms of a mortgage instrument.
(b) The notice required by subsection (a) of this Code section shall be given by mailing or delivering to the debtor a copy of the notice of sale to be submitted to the publisher.
History. Amended by 2008 Ga. Laws 576, §2, eff. 5/13/2008.
Amended by 2001 Ga. Laws 370, §6, eff. 7/1/2001.


OCGA § 9-11-19.


OCGA § 9-11-65. Injunctions And Restraining Orders
(a) Interlocutory injunction.
(1) Notice. No interlocutory injunction shall be issued without notice to the adverse party.
(2) Consolidation of hearing with trial on merits. Before or after the commencement of the hearing of an application for an interlocutory injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for an interlocutory injunction which would be admissible upon the trial on the merits shall become a part of the record on the trial and need not be repeated upon the trial. This paragraph shall be construed and applied so as to save any rights of the parties which they may have to trial by jury.
(b) Temporary restraining order; when granted without notice; duration; hearing; application to dissolve or modify. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if:
(1) It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and
(2) The applicant's attorney certifies to the court, in writing, the efforts, if any, which have been made to give the notice and the reasons supporting the party's claim that notice should not be required.
Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance, shall be filed forthwith in the clerk's office and entered of record, and shall expire by its terms within such time after entry, not to exceed 30 days, as the court fixes, unless the party against whom the order is directed consents that it may be extended for a longer period. In case a temporary restraining order is granted without notice, the motion for an interlocutory injunction shall be set down for hearing at the earliest possible time and shall take precedence over all matters except older matters of the same character; when the motion comes on for hearing, the party who obtained the temporary restraining order shall proceed with the application for an interlocutory injunction; and, if he does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification; and in that event the court shall proceed to hear and determine the motion as expeditiously as the ends of justice require.
(c) Security. As a prerequisite to the issuance of a restraining order or an interlocutory injunction, the court may require the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been enjoined or restrained wrongfully. A surety upon a bond or undertaking under this Code section submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the persons giving the security if their addresses are known.
(d) Form and scope of injunction or restraining order. Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice of the order by personal service or otherwise.
(e) When inapplicable. This Code section is not applicable to actions for divorce, alimony, separate maintenance, or custody of children. In such actions, the court may make prohibitive or mandatory orders, with or without notice or bond, and upon such terms and conditions as the court may deem just.


The TRO Standard in Georgia: To obtain a TRO under OCGA § 9-11-65, Plaintiffs must show that: 1) the imminent activities of the Defendants, unless stopped, will cause them immediate and irreparable harm, 2) that Plaintiffs have some legal action, whether at law or equity, concerning why the harm should be stayed, 3) that Plaintiffs can show that there is a substantial likelihood that they will prevail on the merits in a trial upon their claims and that 4) Plaintiffs claims are not mere law claims (which can be satisfied by a mere money judgment for damages or otherwise), but the immediate harm demands the plenary and equity power of the Court to maintain the status quo to stop the immediate harm pending the outcome of the legal proceedings.


OCGA § 9-15-14.


11 USC § 362.


While the Chapter 7 Trustee was reversed at the 11th Circuit, In Re: Hong Ju Kim, Debtor, 571 F.3rd 1342 (11th 2009) is a strong reminder that a Chapter 7 Trustee has “stong-arm” powers and substantial additional powers to challenge any lender activity he may deem inappropriate with regard to the debtor’s estate.


11 U.S.C. § 101(51B).


A borrower we represented recently settled substantial claim with a lender when our borrower threatened an Adversary Proceeding in a Chapter 11 setting. It was a multimillion dollar proposed foreclosure. The borrower had substantial “fraud” based claims against the lender (it was a private lender), but he did not believe that a Superior Court TRO action would be granted. When he confronted the lender with his ability file a SARE Chapter 11 and then immediately raise “fraud” claims in a bankruptcy Adversary Proceeding, the lender came to the table and negotiated a settlement. We are convinced that the lender agreed to negotiations because our borrower could raise the fraud claim pre-foreclosure in a bankruptcy Adversary Proceeding, whereas the lender thought that the borrower was only holding a tort based foreclosure card.


In such a tort, recovery of damages is allowed [only] to the holder of the equity of redemption. Kennedy v. Gwinnett Comm. Bank, 155 Ga.App. 327, 328-329(1), 270 S.E.2d 867 (1980). Tower Financial Services, Inc., et al. v. Smith, et al., 204 Ga.App. 910, 423 S.E.2d 257 (1992).


OCGA § 51-1-1 (Torts); see also, OCGA §§ 51-9-1 to 51-9-11 (Injuries to Real Property).


Boaz, et al. v. Latson, 260 Ga.App. 752, 757, 580 S.E.2d 572 (2003).


Be aware that a lender may unilaterally rescind a foreclosure in Georgia for thirty (30) days. OCGA § 9-13-172.1. [Rescission].
(a) As used in this Code section, 'eligible sale' means a judicial or nonjudicial sale that was conducted in the usual manner of a sheriff´s sale and that was rescinded by the seller within 30 days after the sale but before the deed or deed under power has been delivered to the purchaser.
(b) Upon recision of an eligible sale, the seller shall return to the purchaser, within five days of the recision, all bid funds paid by the purchaser.
(c) Where the eligible sale was rescinded due to an automatic stay pursuant to the filing of bankruptcy by a person with an interest in the property, the damages that may be awarded to the purchaser in any civil action shall be limited to the amount of the bid funds tendered at the sale.
(d) Where the eligible sale was rescinded due to:
(1) The statutory requirements for the sale not being fulfilled;
(2) The default leading to the sale being cured prior to the sale; or
(3) The plaintiff in execution and the defendant in execution having agreed prior to the sale to cancel the sale based upon an enforceable promise by the defendant to cure the default, the damages that may be awarded to the purchaser in any civil action shall be limited solely to the amount of the bid funds tendered at the sale plus interest on the funds at the rate of 18 percent annually, calculated daily. Notwithstanding any other provision of law, specific performance shall not be a remedy available under this Code section.
History. Added by 2003 Ga. Laws 173, § 1, eff. 7/1/


Roylston v. Bank of America, N.A. et al., 290 Ga.App. 556, 660 S.E.2d 412 (2008).


In a wrongful foreclosure action, an injured party may seek damages for mental anguish in addition to cancellation of the foreclosure. Clark v. West, 196 Ga.App. 456, 457, 395 S.E.2d 884 (1990). Blanton v. Wanda Duru, 247 Ga.App. 175, 543 S.E.2d 448 (2000).


OCGA § 9-15-14; OCGA § 13-6-11; OCGA § 51-7-80, et seq.


OCGA § 44-14-161.


OCGA § 9-11-30(b)(6). One of the difficulties of this civil practice act is that the hearing may occur before the 30 days granted under this subpoena run.


OCGA § 24-10-20. Subpoena For Attendance Of Witnesses - Form; Issuance; Subpoena In Blank
(a) Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.
(b) The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

OCGA § 24-10-21. Subpoena For Attendance Of Witnesses - Attendance At Hearing Or Trial; Where Served
At the request of any party, subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court in which the hearing or trial is held. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the state.

OCGA § 24-10-22. Subpoena For Production Of Documentary Evidence; Motion To Quash Or Modify; Denial On Condition
(a) A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.
(b) The court, upon written motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may:
(1) Quash or modify the subpoena if it is unreasonable and oppressive; or
(2) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

OCGA § 24-10-23. Service Of Subpoenas
A subpoena may be served by any sheriff, by his deputy, or by any other person not less than 18 years of age. Proof may be shown by return or certificate endorsed on a copy of the subpoena. Subpoenas may also be served by registered or certified mail or statutory overnight delivery, and the return receipt shall constitute prima-facie proof of service. Service upon a party may be made by serving his counsel of record.

OCGA § 24-10-24. Fees And Mileage; When Tender Required
The witness fee shall be $25.00 per diem, and execution shall be issued by the clerk upon affidavit of the witness to enforce payment thereof. The payment of fees shall not be demanded as a condition precedent to attendance; but, when a witness resides outside the county where the testimony is to be given, service of the subpoena, to be valid, must be accompanied by tender of the fee for one day's attendance plus mileage of 20¢ per mile for traveling expenses for going from and returning to his or her place of residence by the nearest practical route. Tender of fees and mileage may be made by United States currency, postal money order, cashier's check, certified check, or the check of an attorney or law firm. When the subpoena is issued on behalf of the state, or an officer, agency, or political subdivision thereof, or a defendant in a criminal case, fees and mileage need not be tendered.

OCGA § 24-10-25. Enforcement Of Subpoenas; Continuance; Secondary Evidence Of Books, Papers, Or Documents
(a) Subpoenas may be enforced by attachment for contempt and by a fine not exceeding $300.00 and imprisonment not exceeding 20 days.
In all cases under this Code section, the court shall consider whether under the circumstances of each case the subpoena was served within a reasonable time, but in any event not less than 24 hours prior to the time that appearance thereunder was required.
(b) The court may also in appropriate cases grant continuance of the cause. Where subpoenas were issued in blank, no continuance shall be granted because of failure to respond thereto when the party obtaining them fails to present to the clerk the name and address of the witness so subpoenaed at least six hours before appearance is required.
(c) When books, papers, or documents are unsuccessfully sought, secondary evidence thereof shall be admissible.

OCGA § 24-10-26. Notice To Produce
Where a party desires to compel production of books, writings, or other documents or tangible things in the possession, custody, or control of another party, in lieu of serving a subpoena under this article, the party desiring the production may serve a notice to produce upon counsel for the other party. Service may be perfected in accordance with Code Section 24-10-23, but no fees or mileage shall be allowed therefor. Such notices may be enforced in the manner prescribed by Code Section 24-10-25, and Code Section 24-10-22 shall also apply to such notices. The notice shall be in writing, signed by the party seeking production of the evidence, or his attorney, and shall be directed to the opposite party or his attorney.


Cartersville Developers, LLC v. Georgia Bank & Trust, LLC, 292 Ga.App. 375, 664 S.E2d 783 (2008).


OCGA § 24-9-66. See also, The Community Bank v. Handy Auto Parts, Inc., 173 Ga.App. 532, 327 S.E.2d 761 (1985).