This appeal is one of the relatively rare situations in which the Court of Appeals is required to review the decision of a three-judge District Court.1 The District Court held that the Texas constitutional2 and statutory3 provisions which established a system of annual voter registration during a specified time imposed an impermissible burden on the right to vote in violation of the Fourteenth Amendment's guaranty of equal protection of the laws.4 The Court's opinion was a very comprehensive one which gave a complete picture of the problem therefore eliminating the necessity of much detail here. Concluding that the statutory provisions requiring annual voter registration during a restricted four-month period served no justifiable state interest, we affirm the decision of the District Court.

The three-judge District Court after declaring unconstitutional the challenged laws insofar as they provided for annual voter registration, withheld issuance of an injunction and retained jurisdiction of the cause in order to 'afford the Texas Legislature the full opportunity to correct what we have found and held to be constitutional deficiencies in the present system.' 321 F. Supp. at 1109. In an effort to correct the objectionable features of the law, the Legislature thereafter enacted a temporary statute5 inaugurating permanent voter registration, with provisions for the automatic re-registration of those voting within a succeeding three-year period,6 and extended the time period for registration beyond the former cutoff date of January 31.7

Since the District Court's decision, the Supreme Court has considered several cases involving state deadlines for enrollment to vote. In Dunn v. Blumstein, 1972, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274, the Court struck down Tennessee's durational voter residency requirement of one year in the state and three months in the county on the grounds that the time period was excessive and did not promote any compelling governmental interest. In analyzing the statute, the Court emphasized that 'a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes.' 405 U.S. at 343, 92 S.Ct. at 1003, 31 L. Ed. 2d at 284. Tennessee failed to define any state interest which would justify the total disenfranchisement of those persons who have been residents in the state less than a year or residents of the county less than three months before the election. The Court pointed out that a year or even three months was too long since the state did not close its registration books until 30 days before an election. Therefore, the state was admitting that the 30-day period between registration and the election was sufficient for officials to prepare for the election.

One year later the Court acknowledged that sufficient state interest could be shown to allow a 50-day residency and registration requirement without being violative of equal protection. Marston v. Lewis, 1973, 410 U.S. 679, 93 S. Ct. 1211, 35 L. Ed. 2d 627; Burns v. Fortson, 1973, 410 U.S. 686, 93 S. Ct. 1209, 35 L. Ed. 2d 633. Both Arizona and Georgia had statutes providing for a 50-day durational voter residency requirement and a 50-day voter registration requirement. In upholding the constitutionality of these statutes, the Court found no conflict with its decision in Dunn v. Blumstein, supra.

'States have valid and sufficient interests in providing for some period of time-- prior to an election-- in order to prepare adequate voter records and protect its electoral processes from possible frauds. A year, or even three months, was found too long, particularly in the context of 'the judgment of the Tennessee lawmakers,' who had set 'the cut off point for registration (at) 30 days before an election . . . .' 405 U.S. at 349, 92 S.Ct. at 1006, 31 L. Ed. 2d at 274, The Arizona scheme, however, stands in a different light. The durational residency requirement is only 50 days, and not a year, or even three months. Moreover, unlike Tennessee's, the Arizona requirement is tied to the closing of the state's registration process at 50 days prior to elections and reflects the state legislative judgment that the period is necessary to achieve the state's legitimate goals.'

410 U.S. at 680, 93 S. Ct. at 1212, 35 L.Ed.2d at 629. Therefore, when compelling state interests are shown, a minimal cutoff date for registration will be allowed.

The Court's most recent decision, Rosario v. Rockefeller, 1973, 410 U.S. 752, 93 S. Ct. 1245, 36 .l.Ed.2d 1, dealt with the New York Election Law which required enrollment in a political party at least 30 days prior to the November general election in order to be eligible to vote in the party's primary election the following year. Clearly there was an extensive period between the cutoff date for enrollment under the statute and the primary, eight months prior to the presidential primary, held in June, and 11 months prior to the non-presidential primary. The Court acknowledged the excessive length of the period but found that it was 'not an arbitrary time limit unconnected to any important state goal.' 410 U.S. at 760, 93 S.Ct. at 1254, 36 L. Ed. 2d at 8. The state's interest in protected party primaries from 'raiding' justified the time limitation on enrollment. Furthermore, the Court suggested that the disenfranchisement of the appellants resulted not from the state statute, but rather from the voluntary decision of the appellants not to register within the prescribed time. The Court's opinion suggests that what might otherwise be invidious discrimination is excused by ascribing fault to the victims and an overriding justification by the state.

As the District Court found in our case, the State of Texas did not show a compelling state interest which would justify the disenfranchisement of such a large number of otherwise qualified votes. The evidentiary record below establishes that an entire class, otherwise willing to register, are unable to do so as the direct result of the challenged laws. It cannot be ascribed as a voluntary choice on their part since the statistical evidence clearly showed that the Texas laws rendered it impossible for a substantial percentage of otherwise qualified voters to register.

We acknowledge the state's right to impose some reasonable cutoff point for registration, but the Texas Legislature itself has recognized that a 28-day period is sufficient for the certification of voter lists prior to the holding of an election.8

In our decision we in no way diminish the right of the State of Texas to prescribe the qualifications for its voters, nor do we hold that all voter registration procedures are constitutionally infirm which disenfranchise a minority that fails to register. What we have held is that the tactic underlying the Texas annual voter registration system, which sought to win the war for representative government by inflicting devastating losses on its electoral army before it ever marched off to the polls, is inconsistent with the United States Constitution. The mass disenfranchisement may have been unintentional, but it was nevertheless the consequence of the law. The judgment of the District Court declaring unconstitutional the statutory provisions prescribing limited registration time periods and the requirement for annual voter registration was correct. The effect of this is to leave intact the 1971 amendments. See notes 6 and 7, supra.

Affirmed.