U.S. Supreme Court McDONALD v. BOARD OF ELECTION, 394 U.S. 802 (1969) 394 U.S. 802

McDONALD ET AL. v. BOARD OF ELECTION COMMISSIONERS OF CHICAGO ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 68. Argued November 19, 1968. Decided April 28, 1969.

Appellants are qualified Cook County electors who are unsentenced inmates of the Cook County jail awaiting trial. They allege that Illinois' failure to include them among the classes of persons entitled to absentee ballots violates the Equal Protection Clause of the Fourteenth Amendment. The District Court granted summary judgment for appellees holding that extending absentee ballots to those physically incapacitated for medical reasons constituted a proper and reasonable classification not violative of equal protection. Held: Illinois' failure to provide absentee ballots for appellants does not violate the Equal Protection Clause. Pp. 806-811.

(a) While classifications "which might invade or restrain [voting rights] must be closely scrutinized and carefully confined," a more exacting judicial scrutiny is not necessary here, since the distinctions made by Illinois' absentee voting provisions are not drawn on the basis of wealth or race, Harper v. Virginia Board of Elections, 383 U.S. 663, and there is nothing in the record to show that Illinois has precluded appellants from voting. Pp. 806-808.

[Page 394 U.S. 802, 803]

Stanley A. Bass argued the cause for appellants. With him on the briefs was Marshall Patner.

Stanley T. Kusper, Jr., argued the cause for appellees. With him on the brief was Matthew J. Beemsterboer.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

Appellants and the class they represent are unsentenced inmates awaiting trial in the Cook County jail who, though they are qualified Cook County electors, cannot readily appear at the polls either because they are charged with nonbailable offenses or because they have been unable to post the bail imposed by the courts of Illinois.[Footnote 1] They cannot obtain absentee ballots, for they constitute one of a number of classes for whom no provision for absentee voting has yet been made by the Illinois Legislature. The constitutionality of Illinois' failure to include them with those who are entitled to vote absentee is the primary issue in this direct appeal from a three-judge court.

[Page 394 U.S. 802, 804]

other than their own on election day.[Footnote 2] The availability of the absentee ballot in Illinois has been extended to its present coverage by various amendments over the last 50 years. Prior to 1917, Illinois had no provision for absentee voting, requiring personal attendance at the polls, and in that year the legislature made absentee voting available to those who would be absent from the county on business or other duties. In 1944 absentee voting was made available to all those absent from the county for any reason. The provisions for those remaining in the county but unable to appear at the polls because of physical incapacity, religious holidays, or election duties were added in 1955, 1961, and 1967, respectively.

On March 29, 1967, appellants made timely[Footnote 3] application for absentee ballots for the April 4 primary because of their physical inability to appear at the polls on that election day. The applications were accompanied by an affidavit from the warden of the Cook County jail attesting to that inability. These applications were refused by

[Page 394 U.S. 802, 805]

the appellee Board of Election Commissioners on the ground that appellants were not "physically incapacitated" within the meaning of 19-1 and 19-2 of the Illinois Election Code. On the same day appellants filed a complaint, alleging that they were unconstitutionally excluded from the coverage of the absentee provisions. They requested that a three-judge court be convened to rule the provisions violative of equal protection insofar as the provisions required denial of an absentee ballot to one judicially incapacitated while making it available at the same time to one medically incapacitated; and they sought an injunction to restrain appellee Board "from refusing to grant [appellants'] timely applications for absentee ballots." The District Court granted appellants' request for temporary relief on March 30, before the three-judge court was convened, and ordered the Board to issue ballots to qualified Illinois electors awaiting trial in the Cook County jail.[Footnote 4] Both parties then filed motions for summary judgment, the Board asserting that to honor the applications would subject its members to criminal liability under Illinois law.[Footnote 5]

[Page 394 U.S. 802, 808]

appellants the exercise of the franchise; nor, indeed, does Illinois' Election Code so operate as a whole, for the State's statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants. Ill. Rev. Stat., c. 46, 3-5 (1967). Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting.[Footnote 6] We are then left with the more traditional standards for evaluating appellants' equal protection claims.[Footnote 7] Though the wide leeway allowed the States by the Fourteenth Amendment to enact legislation that appears to affect similarly situated people differently, and the presumption of statutory validity that adheres thereto, admit of no

[Page 394 U.S. 802, 810]

by the absentee provisions, for whom voting may be extremely difficult, if not practically impossible.[Footnote 8]

Similarly, the different treatment accorded unsentenced inmates incarcerated within and those incarcerated without their resident counties may reflect a legislative determination that without the protection of the voting booth, local officials might be too tempted to try to influence the local vote of in-county inmates. Such a temptation with its attendant risks to prison discipline would, of course, be much less urgent with prisoners incarcerated out of state or outside their resident counties. Constitutional safeguards are not thereby offended simply because some prisoners, as a result, find voting more convenient than appellants.

We are satisfied then that appellants' challenge to the allegedly unconstitutional incompleteness of Illinois' absentee voting provisions cannot be sustained. Ironically, it is Illinois' willingness to go further than many States[Footnote 9] in extending the absentee voting privileges so

[Page 394 U.S. 802, 812]