O'Brien v. Skinner

• Decision Date: 03 November 1972
• Citation: 338 N.Y.S.2d 890,31 N.Y.2d 317,291 N.E.2d 134
• Parties: , 291 N.E.2d 134 In the Matter of Edward F. O'BRIEN et al., Respondents, v. Albert SKINNER, as Sheriff of Monroe County, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 890

338 N.Y.S.2d 890

31 N.Y.2d 317, 291 N.E.2d 134

In the Matter of Edward F. O'BRIEN et al., Respondents, v. Albert SKINNER, as Sheriff of Monroe County, et al., Appellants.

Court of Appeals of New York.

Nov. 3, 1972.

Michael K. Consedine and William J. Stevens, Rochester, for appellants.

William D. Eggers, Ruth B. Rosenberg and David N. Kunkel, Rochester, for respondents.

Louis J. Lefkowitz, Atty. Gen. (William J. Kogan and Ruth Kessler Toch, Albany, of counsel), amicus curiae.

SCILEPPI, Judge.

Petitioners, 72 detainees at the Monroe County Jail awaiting trial on various charges or serving sentences on misdemeanor convictions, by this proceeding seek review of the County Board of Elections' refusal to allow them to register as absentee voters upon the ground that they were not 'physically disabled' within the meaning of the applicable provisions of the Election Law; or, in the alternative, to compel the parties respondent to co-operate in undertaking all arrangements otherwise necessary to enable them to vote on November 7: including the provision of special polling booths or other voting facilities and, if necessary, guarded transportation to local polling places.

Special Term granted relief to those petitioners who had personally registered prior to their incarceration and directed that they be allowed to vote by absentee ballot; but denied similar relief to others who had not so registered, dismissing the petition as to them. On cross appeals, the Appellate Division, 40 A.D.2d 942, 337 N.Y.S.2d 700, modified, holding that because of their confinement petitioners were 'physically disabled'; hence, at least insofar as they were determined otherwise qualified to vote, entitled to cast absentee ballots. Respondents, the County Sheriff and the Board of Elections, prosecute a further appeal to this court.

We reject out of hand any scheme which would commit respondents to a policy of transporting such detainees to public polling places; would assign them the responsibility of providing special voting facilities under such conditions, and in view of the attendant difficulties; or, would threaten like hazards embraced by such schema. The question raised, then, resolves itself into simply this: whether confinement to a penal institution constitutes a 'physical disability' under sections 117--a and 153--a of the Election Law, Consol.Laws c. 17, thus affording petitioners the occasion to vote by absentee ballot; if not, whether the recognized failure to make such provision deprives them of equal protection of law.

Petitioners seek absentee registration and ballots under sections 117--a and 153--a of the Election Law, providing for absentee voting and registration where a voter is 'unable to appear personally (for either purpose) because he is confined at home or in a hospital or institution, other than a mental institution because of illness or physical disability' (Election Law, § 117--a, subd. 1; § 153--a, subd. 1). Under these provisions, however, a person seeking to qualify by reason of such a disability is further required to submit proof of this fact in the form of a medical certificate executed by an attending physician or the administrative head of a hospital or institution (Election Law, § 117--a, subd. 5; see, also, Election Law, § 153--a). What is required of an applicant, therefore, is that he be medically disabled by reason of some malady or other physical impairment. Under the circumstances, the fact of confinement to a penal institution would not entitle a voter or registrant to avail himself of the absentee provisions.

Nor does the failure to provide these absentee rights deprive the petitioners of their equal protection guarantees. These provisions set forth no voter qualification nor restriction which, by its terms would deny the franchise to any group otherwise qualified to vote (cf. Matter of Atkin v. Onondaga County Bd. of Elections, 30 N.Y.2d 401, 334 N.Y.S.2d 377, 285 N.E.2d 687; Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; see, also, Kramer v. Union School Dist., 395 U.S. 621, 626--627, 89 S.Ct. 1886, 23 L.Ed.2d 583). Such conditions must, of course, be 'necessary to promote a compelling state interest' (Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 1000, Supra; Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92; Matter of Atkin v. Onondaga County Bd. of Elections, 30 N.Y.2d 401, 404--405, 334 N.Y.S.2d 377, 378--379, 285 N.E.2d 687, 688--689, Supra; Matter of Palla v. Suffolk County Bd. of Elections, 31 N.Y.2d 36, 49--50, 334 N.Y.S.2d 860, 868--870, 286 N.E.2d 247, 253--254).

The underlying right which is the subject of these proceedings is not the right to vote, that right is independently guaranteed, but merely a claimed right to absentee ballots and, in some instances, absentee registration. (McDonald v. Board of Election, 394 U.S. 802, 807, 89 S.Ct. 1404, 22 L.Ed.2d 739; Goosby v. Osser, 452 F.2d 39, 40 (3d Cir., 1971).) And, since these provisions have no direct impact on petitioners' right to vote, they need only be reasonably in light of the scheme's purposes in order to be sustained. (McDonald v. Board of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, Supra; Goosby v. Osser, 452 F.2d 39, Supra.) Measured in terms of this less stringent standard, at least one Federal court, on identical facts, has sustained a similar scheme under Pennsylvania law (Goosby v. Osser, 452 F.2d 39, Supra).

In the end, petitioners' plaint is directed towards the consequences of their incarceration. In this regard, however, it is significant that they are not alone. Others, including...