McDonald v. BOARD OF ELECTION COMMISSIONERS OF CHICAGO, 67 C 494.

• Decision Date: 11 December 1967
• Docket Number: No. 67 C 494.,67 C 494.
• Citation: 277 F. Supp. 14
• Parties: Sam L. McDONALD and Andrew Byrd on behalf of themselves and all other persons similarly situated, Plaintiffs, v. BOARD OF ELECTION COMMISSIONERS OF CHICAGO, Sidney T. Holzman, Chairman, Marie H. Suthers, Commissioner, and Francis P. Canary, Commissioner, Defendants.
• Court: U.S. District Court — Northern District of Illinois

277 F. Supp. 14

Sam L. McDONALD and Andrew Byrd on behalf of themselves and all other persons similarly situated, Plaintiffs, v. BOARD OF ELECTION COMMISSIONERS OF CHICAGO, Sidney T. Holzman, Chairman, Marie H. Suthers, Commissioner, and Francis P. Canary, Commissioner, Defendants.

No. 67 C 494.

United States District Court N. D. Illinois, E. D.

December 11, 1967.

Stanley A. Bass, Chicago, Ill., Civil Legal Aid Service, for plaintiffs.

Stanley T. Kusper, Jr., Chicago, Ill., Board of Election Comrs., for defendants.

Before CASTLE, Circuit Judge, and HOFFMAN and AUSTIN, District Judges.

OPINION

AUSTIN, District Judge.

This action seeks to enjoin the enforcement of the Illinois Election Code because it is unconstitutional insofar as the absentee ballot provisions thereof and defendants' administration thereunder exclude the plaintiffs and others similarly situated from that class of persons entitled to such ballots because of "physical incapacity" to appear at the polls on any election day. Chapter 46, §§ 19-1, 19-2 and 19-3, Ill.Rev.Stats. It is urged that such exclusion violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States because a classification between the voters who are medically incapacitated and voters who are judicially incapacitated, by reason of commitment to jail on election day is arbitrary and an invidious discrimination, and bears no rational or reasonable relation to the salutary purpose of granting absentee ballots to all qualified registered voters who are incapable of being present at the polls on election day.

Plaintiffs and the class they represent are unsentenced inmates confined in the Cook County Jail who cannot appear at the polls either because they are charged with non-bailable offenses or because they have been unable to post the bail imposed by the courts of Illinois. The plaintiff McDonald, who is still awaiting trial, has been charged with the offense of murder and is being held without bail; the plaintiff Byrd, who has since the filing of the complaint been discharged, had been held because of his inability to post the $5,000 bond. Understandably, plaintiffs do not contend that the operation of the bail bond system impinges upon, or results in a constitutional deprivation of, their right to absentee voting privileges.

The named plaintiffs seeking to exercise the voting privilege at an election which was to be held on April 4, 1967, made timely application for absentee ballots on March 29, 1967 because of their physical inability to appear at the polls on election day. Said applications were accompanied by an affidavit of the Warden of Cook County Jail attesting to such inability. These applications were refused by defendants because their "physical incapacity" did not bring them within the class of persons covered by §§ 19-1, 19-2 and 19-3 of the Illinois statute. Defendants assert that to have honored such requests would subject them to possible imprisonment for a term of five years and/or a fine not to exceed $5,000. Chapter 46, §§ 29A-1, 29A-5, Ill.Rev.Stats. The instant complaint was filed on March 29, 1967. On March 30, 1967, on the basis of McDonald v. Board of Election Commissioners of Chicago, 265 F.Supp. 816 (D.C.Ill., 1967), this court, before a three-judge court was convened, ordered defendants to issue the ballots requested so that they could be cast in the April 4 election. Both parties have filed motions for summary judgment.

Section 19-1 of the Election Code identifies those persons to whom absentee ballots must be given. They are:

"Any qualified elector * * * who expects to be absent from the county in which he is a qualified elector or who because of physical incapacity or the tenets of his religion in the observance of a religious holiday will be unable to be present at the polls on the day of holding any special, general or primary election * * * may vote at such election as hereinafter in this Article provided."

Section 19-2 provides for the time and manner in which such application must be made. The requirement pertinent to our question is as follows:

"* * * any such elector who will be absent because of physical incapacity shall submit with his application the certificate of his duly licensed attending physician or a Christian Science practitioner living and residing in the State of Illinois, * * * to the fact that such elector is so physically incapacitated."

Section 19-3 sets forth the format of the applications and the affidavits which must accompany applications for electors qualifying for absentee ballots.

The classes of persons covered by these sections are: (1) those absent from the county, (2) those physically incapacitated, and (3) those whose observance of a religious holiday prevents attendance at the polls. We are concerned with the category of those who are physically incapacitated.

In resolving the issue before us it is helpful to review some of the legislative developments which underlie the grant of absentee voting. Prior to 1917 the Illinois statutes contained no provision for absentee voting and Illinois voters were required to be physically present in order to cast their vote on election day. In 1917 the legislature granted to qualified electors the privilege of absentee voting if they expected to be absent from the county because of their business or duties; and in 1944 that restriction was removed and absence from the county for whatever reason entitled an elector to an absentee ballot. All other qualified electors were still required to appear personally at the polls in order to vote. In 1955 the privilege of casting absentee ballots was extended to those who would be unable to be present because of physical incapacity provided such physical incapacity was attested to by an attending licensed physician or Christian Science practitioner. All other qualified voters, not absent from the county or physically incapacitated, were required to appear personally at the polls in order to vote. Again, in 1961 the privilege was extended to include those qualified electors whose tenets of religion in the observance of a religious holiday prevented attendance at the polls.

It is conceded by the plaintiffs that the privilege of absentee voting is one within the legislative power to grant or withhold. See also Hilliard v. Park, 212 Tenn. 588, 370 S.W.2d 829 (1963); Hallahan v. Mittlebeeler, 373 S.W.2d 726, 727, 97 A.L.R.2d 215 (Ky.Ct.App., 1964). Nevertheless, as plaintiffs state, in the exercise of such power to classify persons to whom such privilege is given, no legislature may enact...