Bernal v. Fainter

Alienage classifications ordinarily receive strict scrutiny because lawful resident aliens are a discrete and insular minority. The Court has recognized a narrow political-function exception, however, for positions closely connected to the formulation or execution of democratic self-government. Under that exception, a State may reserve certain offices for citizens without satisfying strict scrutiny.

The Court applied the two-part framework from Cabell v. Chavez-Salido. First, the classification must be sufficiently tailored rather than substantially overinclusive or underinclusive. Second, and critically here, the position must be an elective or important nonelective executive, legislative, or judicial office whose holder directly participates in the formulation, execution, or review of broad public policy.

Texas's law was not overinclusive in the obvious sense because it singled out one occupation—notaries public—rather than broadly excluding aliens from a large range of public jobs. The Court noted possible underinclusiveness, because Texas permitted noncitizens to serve as court reporters and apparently as Secretary of State despite overlaps in responsibility. But it did not need to decide whether that defect was fatal, because the position failed the second Cabell prong.

The State's designation of notaries as public officers in its constitution did not control the analysis. The relevant question is what notaries actually do, not whether the State labels their office as constitutional or public. A State cannot bring an office within the political-function exception simply by formally characterizing it as important.

Notaries perform important work: they authenticate instruments, administer oaths, take acknowledgments, and take out-of-court depositions. Yet those duties are clerical and ministerial rather than policymaking. Notaries do not routinely exercise coercive authority, broad discretion in executing public policy, or direct authority over persons in the manner of police officers, public-school teachers, or probation officers.

The Court also found confirmation in In re Griffiths, which held that a State could not exclude aliens from the bar even though Connecticut lawyers could perform functions closely resembling those of notaries. If such functions did not justify excluding aliens from bar membership, they could not justify treating the less expansive office of Texas notary as a political office reserved for citizens.

Because the political-function exception did not apply, Texas had to show that its citizenship rule served a compelling state interest and did so through the least restrictive practicable means. The State's asserted interests were ensuring that notaries understand Texas law and institutions and ensuring that notaries remain available later to testify about acts they performed.

The State offered no basis for believing that resident aliens as a class cannot learn Texas law or institutions. A concern that some individual applicants may be unqualified cannot support an absolute exclusion of all resident aliens, particularly where individual qualifications can be evaluated directly.

Texas's own appointment process undercut its claim that legal familiarity was a compelling concern. The State required only a basic application addressing matters such as age, citizenship, residence, and criminal history; it administered no examination or other measure of knowledge of Texas law. A State genuinely pursuing that interest could use less restrictive methods, such as testing or individualized qualifications.

The claimed need to secure notaries' future testimony was likewise inadequate. Texas made no factual showing that unavailability of testimony from notaries was a real problem rather than a speculative possibility. Without factual support, the asserted interest lacked the force required to qualify as compelling.