Number 15 October 5, 1970

Number 15 October 5, 1970 Honorable John F. X. Davoren Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Sir: You have asked my opinion whether the following categories of per- sons have the right to register to vote in Massachusetts: 1. members of military forces stationed at and permanently residing on military bases in the Commonwealth; 2. employees of military or other federally owned hospitals located in the Commonwealth and 56 P.D. 12 3. patients in federal institutions within the Commonwealth. I treat these questions together since they all deal with the question of the voting rights of persons living on federal reservations. Most of my opinion, therefore, applies with equal force to each category. All Massachusetts inhabitants are guaranteed the right to vote: "All elections ought to be free; and all the inhabitants of the commonwealth, having such qualifications as they shall establish by their frame of gov- ernment, have an equal right to elect officers . . ." Mass. Const., Pt. 1, Art. IX. Qualifications which must be met to entitle a Massachusetts inhabitant to register and to vote are set forth in the Massachusetts Con- stitution (Arts. 3, 20, 28, 30, and 45 of the Articles of Amendment) and in the General Laws (c. 51, particularly §§ 1 through 4). There is no Constitutional or statutory provision that would disqualify a patient, member of the military forces, or employee of a military or other feder- ally owned hospital, permanently residing on a federal reservation in the Commonwealth, from registering to vote in Massachusetts because of his status or because of his residence on a federal reservafion. In Opinion of the Justices, 42 Mass. 580, 583-584, the Court advised the House of Representatives that persons residing on lands purchased by or ceded to the United States for navy yards, forts, and arsenals, where no reservation of jurisdiction is made by the Commonwealth ex- cept concurrent jurisdiction to make service of process on such lands, do not acquire any elective franchise as inhabitants of towns where such lands are located. Noting that Congress had exclusive jurisdiction over such lands (U.S. Const., Art. 1, § 8), the Court declared that state law did not operate therein. Opinion of the Justices, supra, at 582. This opinion, you point out, "has always been cited as a reason why persons who lived within the boundaries of federal forts or enclaves such as in the town of Bedford, Weymouth, Athol, and the city of Chicopee, should not be allowed to register." However, since 1841, when that opinion was rendered, the relationship between federal reser- vations and the states where they are located has changed considerably. Pursuant to Acts of Congress, many state laws have been made applica- ble to persons living on federal reservations, e.g. state laws governing unemployment and workmen's compensation, criminal acts not punish- able under federal law, and income, gasoline and sales and use taxes. It was this change of relationship that recently led the Supreme Court of the United States to conclude that certain persons living on a federal re- servation in Maryland (National Institutes of Health), although exempt from local property taxes, did not have such a "degree of disinterest in electoral decisions that might justify a total exclusion from the franch- ise." Evans v. Cornman, 398 U.S. 419, 425-426. The Court affirmed the decision of the United States District Court which held that to deny such persons the right to vote was to deny them equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States. It follows from the Cornman case that patients in federal institutions in Massachusetts, employees of military or other federally owned hospi- P.D. 12 57 tals in Massachusetts, and members of the military forces stationed at military bases in Massachusetts cannot be denied registration on the ground that they reside on a federal reservation or in a federal enclave. The circumstances that the person seeking registration is a member of the military forces is not, of itself, any reason for denying registration. This is so even though such person may be residing on a military base. Arapojolii v. McMeminiin, 113 Cal. App. 2d 824. It is true that concen- trated balloting of military personnel on a base in a small town could sway an election in such a town. It is also true that, in general, a ser- viceman has no choice of duty station and is subject to reassignment. But these arguments have recently been considered and rejected by the Supreme Court of the United States as bases for excluding members of the armed forces from voting in the states where their bases were lo- cated. In Carrington v. Rash, 380 U.S. 89, the Court held invalid a pro- vision in the Texas Constitution prohibiting any member of the Armed Forces who moved his home to Texas while in the military service from voting in Texas while in the Armed Forces. That provision, the Court declared, imposed ''an invidious discrimination in violation of the Four- teenth Amendment." Carrington v. Rash, supra, at 96. On the basis of the Carrington case, then, the fact that an applicant for registration is in the military service stationed in Massachusetts, standing alone, cannot be a basis for denying registration. That a person happens to be a patient in a federal institution in Mas- sachusetts, an employee of a military or other federally owned hospital in Massachusetts, or a member of the military forces stationed at a military base in Massachusetts does not prevent him from acquiring a new domicile here. If such a person can show he has acquired a new domicile in Massachusetts, through evidence of his intention to make the Commonwealth his home indefinitely, and if he meets the voting qualifications of Massachusetts inhabitants, he must be allowed to regis- ter to vote. Carrington v. Rash, supra, at 93-94. Very truly yours, ROBERT H. QUINN Attorney General