Petitioners Brief — Goosby v. Osser

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IN THE

Supreme Court of the United States.

OCTOBER TERM, 1971

No. 71-6316

ANDREW C. GOOSBY, et ai.,

Petitioners,

Vv.

~ MAURICE OSSER, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE PETITIONERS

ANN S. TORREGROSSA

JOSEPH A. TORREGROSSA

ELLIOT B. PLATT

JONATHAN M. STEIN

LAURENCE M. LAVIN

Of Counsel: 313 South Juniper Street

DONALD A.GIANNELLA _ Philadelphia, Pennsylvania 19107

GREGORY M.HARVEY 4 ttorneys for Petitioners

August 28, 1972

Washington OC © THIEL PRESS « (202) 393 0625

(i)

TABLE OF CONTENTS

Page

OPINIONS BELOW .......----- ec err rrterteceee 1

JURISDICTION .....------ ees ec ee eer teerecees 2

QUESTIONS PRESENTED ......---------2+++e00s 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED ....... 22 cc ccc cece ce ccc cceeecees 2

STATEMENT OF THECASE ......---------++000: 3

SUMMARY OF ARGUMENT .....--------+eeeeee: 9

ARGUMENT :

1. Petitioners’ case presents substantial constitu-

tional questions which require the convening of a

threejudge court since petitioners’ complaint

alleges that they and other pretrial detainees in

Philadelphia County are absolutely denied the

right to vote by the Commonwealth of

Pennsylvania .....----- eee e eee eeeeereees 12

Il. Petitioners’ case constitutes a case or controversy

under Article III of the Constitution .........-.- 28

CONCLUSION ........- 0c eee cere ere eeceeee 33

TABLE OF AUTHORITIES

Cases:

Anderson v. Martin, 375 U.S. 399 (1964) .....-------+-- 23

Anderson v. Nosser, 438 F.2d 183 (1971) modified,

456 F.2d 835 (Sth Cir. 1972)... eee eee ee ee eeee 20

Bailey v. Patterson, 369 U.S. 31 (1962) .....-------- 12, 13

Boddie v. Connecticut, 401 U.S. 371(1971) .....--.---- 17

Bolling v. Sharpe, 347 U.S. 497 (1954) ....-------++-- 22

Brown v. Board of Education, 347 U.S. 483 (1954) ......- ye

Brown v. Board of Education, 349 U.S. 2941955) ..... 11,31

(ii)

Bullock v. Carter, 405 U.S. 134(1972) ........... 19, 20, 23

California Water Service Co. v. City of Redding, 304

Oe ge ed sae ay o's ee ee re ee 13

Carrington v. Rash, 380 US.89(1965) ............... 15

Cipriano v. City of Houma, 395 U.S. 701 (1969) ....... 19, 20

City of Phoenix v. Kolodziejski, 399 U.S. 204(1970) .... 19,20

Conklin v. Hancock, 334 F. Supp. 1119 (D. NH.

i gee ge PELE EE TET ECE: Che ete eee 20

Davis v. Lindsay, 321 F. Supp. 1134 (S.D.N.Y.1970) ..... 20

Douglas v. California, 372 U.S. 353 (1963) ......... 15, 22, 23

Dunn v. Blumstein, 405 U.S. 330(1972) ........... “ae 19

Edwards v. California, 314 U.S. 160(1941) ............ 22

Evans v. Cornman, 398 U.S.419(1970) .............. 19

Ex Parte Poresky, 290 U.S. 30(1933) ............3... 13

Fair v. Osser, Civil Action No. 71-2212, Eastem

_ District of Pennsylvania, September oy Seer re 32

Federal Trade Commission v. Dean Foods Co., 7”

SONU 9 oo bal bs Kh ban es tice cc's kaa os 17

Goldberg v. Kelly, 397 U.S. 254(1970) .. 9 ........... 3

Gomillion v. Lightfoot, 364 U.S. 339 (1960) . . . 9, 10, 17, 22, 25

Goosby v. Osser, 452 F.2d 39 (3d Cir. 1971) ......... 8, 13, 28

Gregory v. Litton Systems, Inc., 316 F. Supp. 401

oe BS a ee er a er 23, 24

Griffin v. Illinois, 351 U.S. 12 (1956) ............ 10, 23, 24

Griggs v. Duke Power Co., 401 U.S.424(1971) ......... 23

Guinn v. United States, 238 U.S. 347(1915) ........... 25

Hamilton v. Love, 328 F. Supp. 1182 (E.D. Ark. 1971)... ... 20

Harper v. Virginia Board of Elections, 383 U.S. 663

isk ee 15, 16, 18, 23

(iti)

Hawkins 'v. Town of Shaw, 437 F.2d 1286 (Sth Cir.

Hobson v. Hansen, 269 F. Supp. 401 (D. D.C. 1967)

aff'd sub nom., Smuck v. Hobson, 408 F.2d 175

Hunter v. Erickson, 393 U.S. 385 (1969)

Johnson v. Pike Corp., 332 F. Supp. 490 (C.D. Cal.

» 1971)

Jones v. Wittenberg, 323 F. Supp. 93 and 330 F. Supp.

707 (N.D. Ohio 1971) affd sub nom., Jones v.

Metzger, 456 F.2d 854 (6th Cir. 1972)

Korematsu vy. United States, 323 U.S. 214 (1944)

Kramer v. Union Free School District, 395 US. 621

Lane v. Wilson, 307 U.S. 268 (1939)

Levering & Garrigues Co. v. Morrin, 289 US. 103

ea a ee eee 9, 13,17

Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971)

“Local 189, United Papermakers & Paperworkers v.

United States, 416 F 2d 980 (Sth Cir. 1969)

Louisiana v. United States, 380 U.S. 145 (1965)

McDonald v. Board of Elections, 394 U.S. 802 (1969)

McLaughlin v. Florida, 379 US. 184 (1964)

Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972)

Myers v. Anderson, 238 US. 368 (1915)

Norwalk CORE v. Norwalk Redevelopment Agency,

395 F.2d 920 (2d Cir. 1968)

Palmigiano v. Travisono, 317 F. Supp. 776 (D. RI.

1970)

Re Metropolitan Railway Receivership, 208 U.S. 90

(iv)

Reynolds v. Sims, 377 U.S. 533 (1964) ............00. 15

Serrano v. Priest, 96 Cal. Rptr. 601, 487 P.2d 1241

WN ss 5S Fh ks bw bs SE AKAs 23

Tyler v. Ciccone, 299 F. Supp. 685 (W.D. Mo. 1969) ...... 21

Walling v. Helmerich and Payne, Inc., 323 U.S. 37

SR Spb GY La PRE Se 30

Wayne County Jail Inmates v. Wayne County Board,

No. 173217, Wayne County Circuit Court, May 18,

REN cht eh WA 6 Aah Ws OK Ae ee gee ces 21

Williams v. Illinois, 399 US.235(1970) .......... 10, 23, 24

Constitutional and Statutory Provisions:

ce er 2,6

Permanent Registration Act of March 30, 1937,

Pennsylvania P.L. 115, §§ 1-46 as amended, 25

Purdon’s Statutes § 621-1 ef seg. (1963) and

Permanent Registration Act of April 29, 1937,

Pennsylvania P.L. 487, §1, et seq., as amended, Act

of May 31, 1955, Pennsylvania P.L. 707, §§1 and

2, 25 Purdon’s Statutes §951-2 ef seq. (1963) ....... > ae

Illinois Rev. Stat. c. 46, §19-1 to 19-3. .............. Passim

Pennsylvania Constitution, Article I,SectionS ........... i

Pennsylvania Constitution, Article VII, Section4 ......... 2

Pennsylvania Election Code, Act of June 3, 1937,

Pennsylvania P.L. 1333, Article I, §102 as

amended by Act of August 13, 1963, Pennsylvania

P.L. 707, §§1 and 2, 25 Purdon’s Statutes

§2602(2XxMy)z-1) and (z-3) (Supp. 1972); Act of

June 3, 1937, Pennsylvania P.L. 1333, Article XII,

§1210, 25 Purdon’s Statutes §3050 (a) and (d)

BBE OR a PEC SER oe ur se eg a ee Passim

United States Code, Title 28, NS ck vs awe 2

United States Code, Title 28, §2281 .............. 2, 12,13

United States Code, Title 28, §2284(1) ...............

United States Constitution, Article I,Section2 .......... 2

United States Constitution, Article III, Section2 . 2,7, 11,28, 31

United States Constitution, AmendmentI ............. 2

United States Constitution, Amendment VIII ........... 2

United States Constitution, Amendment XIV ........... ao

United States Constitution, Amendment XV_...... 2, 5, 10, 25

United States Constitution, Amendment XXIV ..........- 2

Voting Rights Act of 1965, 42 U.S.C. $1971 (aX(1)

DED cps D ak ces receded siveecendwses 2, 5, 6, 25

Miscellaneous:

Coons, Clune & Sugerman, Educational Opportunity,

A Workable Constitutional Test for State Financial

Structures, 57 Calif. L. Rev. 305 (1969) ..........-- 24

Goldberg, Equality and Governmental Action, 39

WVU. Rev. 205 (1964) ona ccc ccc ecw cnce 24

Michelman, The Supreme Court, 1968 Term, Forward:

On Protecting the Poor Through the Fourteenth

Amendment, 83 Harv. L. Rev. 7(1969) ........... 22, 24

Note, Supreme Court, 1968 Term, 83 Harv. L. Rev. 7

Bere a re eee ee ee 26

Official Records of the Statistical Unit of the

Pennsylvania Department of Justice, Sept. 30,1971 ..... 3

Sager, Tight Little Islands: Exclusionary Zoning, Equal

Protection and the Indigent, 21 Stan. L. Rev. 767

A ra ee 24

United States Department of Justice, 1970 National

ESSE ES ee eee ee Eee eee ee Le a

(vi)

APPENDIX TO BRIEF

United States Constitution

United States Code

Pennsylvania Constitution

Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-6316

ANDREW C. GOOSBY, et al.,

Petitioners,

MAURICE OSSER, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

\ BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the Court of Appeals (A. 88) is

reported at 452 F.2d 39 (3d Cir. 1971). The opinion of

Circuit Judge Arlin Adams, dissenting from the denial by

the Court of Appeals of rehearing en banc (A. 94), is

reported at 452 F.2d at 41..No written opinion was

rendered by the District Court’for the Eastern District of

Pennsylvania, but a transcript of the oral opinion of the

District Court given from the Bench is set out in the

Appendix (A. 81).

JURISDICTION

The judgment of the Court of Appeals for the Third

Circuit was entered on October 26, 1971. A timely

petition for rehearing en banc was denied on December

17, 1971, three of seven judges dissenting. The petition

for a writ of certiorari was filed on March 10, 1972, and

was granted on June 26, 1972. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether petitioners’ case presents substantial

constitutional issues which require the convening of a

three-judge court where petitioners’ complaint alleges

that they and other unconvicted pretrial detainees in

Philadelphia County are absolutely denied the right to

vote by the Commonwealth of Pennsylvania.

2. Whether petitioners’ case constitutes a case or

controversy within the meaning of Article III of the

Constitution.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Article I, Section 2,

Article III, Section 2 and Amendments 1, 8, 14, 15, and

24.

United States Code, Title 28 § §2281, 2284(1), Title

42 §1971(a)(1) and (2)(A), Title 42 § 1983. ‘

Pennsylvania Constitution, Article I, Section 5, Article

VII, Section 4.

Permanent Registration Act of March 30, 1937,

Pennsylvania P.L. 115, §§ 1-46, as afnended, 25 Purdon’s

Statutes § 623-1 et seg. (1963) and Act of April 29,

1937, Pennsylvania P.L. 487, $1, et seq., as amended Act

of May 31, 1955, Pennsylvania P.L. 707, §1, et seq., 25

Purdon’s Statutes §951-2 et seq. (1963).

Pennsylvania Election Code, Act of June 3, 1937,

Pennsylvania P.L. 1333, Article I, §102, as amended by

the Act of August 13, 1963, Pennsylvania P.L. 707, §§1

and 2, 25 Purdon’s Statutes §2602(w)\(x)y)(z-1) and

(z-3) (Supp. 1972), Act of June 3, 1937, Pennsylvania

P.L. 1333, Article XII, $1210, 25 Purdon’s Statutes

§ 3050(a) and (d) (1963).

The text of the above provisions is set forth in the

Appendix to this Brief.

STATEMENT OF THE CASE

Petitioners represent a class of untried pretrial

detainees who possess all the voter qualifications required

of a citizen of Pennsylvania and who are incarcerated in

Philadelphia County prisons either because they cannot

afford bail or because they are charged with non-bailable

offenses. (Complaint, 4s23, 27, and 44, A. 16, 17, and

20).! The class consists of approximately 2,000 persons,

over 90 percent of whom are “non-white’’,? and almost

‘At the time the complaint was filed, twelve individuals were

named as representatives of petitioners’ class. Subsequently, several

of these named class representatives lost their status as class

members, either because they have been released on bail,

transferred to institutions outside of Philadelphia County, or been

discharged, acquitted, or convicted. This does not, of course,

render the case moot. See McDonald y. Board of Elections, 394

US. 802, 803 n. 1 (1969); Goldberg ». Kelly, 397 U.S. 254, 256 n.

2 (1970).

2Official Records of the Statistical Unit of the Pennsylvania

Department of Justice, September 30, 1971.

all of whom are indigent.’ Petitioners desire to vote in all

future federal, state and local elections and fall into two

sub-classes: (a) those who were registered to vote prior to

their present incarceration, and (b) those who are not

registered to vote. (Complaint, { 23, A. 16).

Petitioners allege in their complaint that the

Commonwealth of Pennsylvania is absolutely denying

them the right to vote because (1) their incarceration and

the laws of Pennsylvania prevent them from registering

and voting in person, (2) the laws of Pennsylvania

prohibit them from registering by absentee means and

expressly prohibit them from voting by absentee ballot

because they are “confined in a penal institution”, and

(3) the election officials of the Commonwealth of

Pennsylvania, acting pursuant to and under state law, will

neither permit them to leave prison to register and vote

nor bring registrars and voting machines to the prisons.

(Complaint, 4 s 30-34, 40, 47-56, A. 17-21).

Petitioners further allege that this absolute denial of

the right to register and vote is unconstitutional for the

following reasons, >...

1. Petitioners are ied equal protection of the law

because those who can afford bail are not denied the

right to vote and, therefore, petitioners’ right to vote is

3Some petitioners, for example, cannot afford to pay $100 for

a $1,000 bail bond. (Complaint, 47, A. 12-13).

There are approximately 83,000 pretrial detainees incarcerated

in the United States, 4,000 of whom are in Pennsylvania. (US.

Dept. of Justice, 1970 National Jail Census, pp. 1 and 10). These

men and women are often incarcerated for substantial periods of

time while awaiting trial, some for as many as several years. One of

the named class representatives, for example, was incarcerated

awaiting his trial for almost 4 years (Complaint, 413, A. 14), and

another for over one year (Complaint, 412, A. 14).

directly tied to their indigency and their inability to

afford bail is a de facto poll tax. (Complaint, 461(a),

A. 22).

2. Petitioners: are denied equal protection of the law

because those who are convicted of a crime but who are

free on probation or parole are not denied the right to

yote. (Complaint, 441 and Exhibit C, 958, A. 19, 21,

and 61).

3. Petitioners aré denied due process of law because

they are unconvicted pretrial detainees who must be

presumed innocent by the law and are being impermis-

sibly punished without conviction. (Complaint, q 63,

A. 23). |

4. Petitioners’ right to vote is being infringed in

violation of the Fourteenth and Fifteenth Amendments

and the Voting Rights Act of 1965 because the laws of

Pennsylvania have the effect of denying them the right to

vote because of their race. (Complaint, 4s 59 and 61(d),

A: 21-22).

5. Depriving petitioners of their right to vote is

neither a necessity of nor inherently related to their

incarceration. (Complaint, 4s59 and 63, A. 21-23).

Prior to the filing of their complaint, petitioners

attempted to redress these grievances by requesting that

the election officials of the Commonwealth of Pennsyl-

vania (1) permit them to register and vote by proxy

exercised in person by their attorneys, or (2) permit

- petitioners to go to the polls on their own, by guarded

transportation, if necessary, or (3) furnish.the jails with

polling booths, or (4) permit them to register and vote by

mail or other absentee means or (5) generally to allow

petitioners to register and vote by any means which they

deemed advisable. (Complaint, 9s31-34, 52 and 54,

A. 17-18, 20, and 21). However, all of petitioners’

fequests were refused. (Complaint, 9s34 and 52, A. 18

‘and 20).

Accordingly, petitioners are confronted with the

situation, as alleged in their complaint, where there are

no existing procedures whereby they may register and

vote. (Complaint, 4s50 and 51, A. 20).‘

On October 6, 1972, after the election officials of the

- Commonwealth had refused petitioners’ numerous

requests, petitioners filed their complaint, on behalf of

themselves and all others similarly situated, with the

United States District Court for the Eastern District of

Pennsylvania. Petitioners’ action was brought against the

Commonwealth of Pennsylvania, J. Shane Creamer,

Attorney General, C. Delores Tucker, Secretary of the

Commonwealth (all of whom are hereinafter referred to

as the “Commonwealth” defendants) and Maurice S.

Osser, Frank Patterson, and Louis Menna, City

Commissioners (constituting the Board of Elections of

the City and County of Philadelphia), Edward Mekel,

Deputy Commissioner, Jack Welsh, Voting Registration

Supervisor, the Registration Commission of Philadelphia,

and Edward Hendricks, Superintendent of Philadelphia

County prisons (all of whom are hereinafter referred to as

the “Philadelphia” defendants).

Petitioners’ complaint seeks to enjoin all defendants

from depriving them of their right to register and vote in

violation of their constitutional rights and in violation of

the Voting Rights Act of 1965 and the Civil Rights Act.

“Since the majority of states have enacted registration and

voting laws similar to those in Pennsylvania, a majority of the

83,000 pretrial detainees in the United States are disenfranchised

by the existing laws. See Appendix C to petitioners’ Petition for a

Writ of Certiorari for a survey of United States law on the right of

unconvicted pretrial detainees to register and vote.

In addition to their complaint, petitioners filed a

motion for leave to proceed in forma pauperis, a motion

for a three-judge court (A. 78), and motions for a

temporary restraining order (A. 68) and a preliminary

injunction (A. 76).

On October 6, 1971, the day the complaint was filed,

the District Court granted petitioners’ motion for leave to

proceed in forma pauperis and held oral argument on

petitioners’ motion for a temporary restraining order.

During the one-hour argument, the Commonwealth

defendants admitted that the statutes challenged by

petitioners unconstitutionally denied them the right to

vote. The Philadelphia defendants, on the other hand,

who claimed that they were not bound by the admission

of the Commonwealth defendants, took the position that

the Commonwealth’s statutes did not unconstitutionally

deny petitioners the right to vote.

At the conclusion of the argument, the District Court

sua sponte dismissed petitioners’ complaint on the

ground that the Court lacked subject-matter jurisdiction.

The District Court held that since the Commonwealth

defendants had made the above-mentioned admission

there was no case or controversy before the Court within

the meaning of Article III of the Constitution. (A. 81,

84-85).

Two days thereafter petitioners appealed this decision

to the Court of Appeals for the Third Circuit and the case

was set down for oral argument during the week of

October 18, 1971.

The panel of the Third Circuit to which the case was

assigned notified the parties ‘that it had decided to

dispense with oral argument of the matter. On October

26, 1971, the panel, acknowledging that the matter was

being hurriedly decided by it, filed a per curiam Opinion

affirming the decision of the District Court. The Court

affirmed without discussion the District Court’s finding

on jurisdiction and additionally found that the

substantive constitutional challenge of petitioners’

complaint was wholly insubstantial in light of the

decision by this Court in McDonald v. Board of Elections,

394 U.S. 802 (1969). Accordingly, the panel stated, there

was no need for the District Court to convene-a

three-judge court. The Court further held that the

statutes challenged by petitioners were clearly consti-

tutional. Goosby v. Osser, 452 F.2d 39 (3d Cir. 1971).

(A. 88, 90-91).

On November 9, 1972, petitioners filed with the Court

of Appeals a petition for rehearing en banc. On December

17, 1971, this petition was denied per curiam, three of

the seven judges dissenting including one member of the

panel which had affirmed the decision of the District

Court. Circuit Judge Arlin Adams filed an opinion

dissenting from the Court’s denial of rehearing. Goosby y.

Osser, 452 F.2d at 41. (A. 94). In“his dissent, Judge

Adams stated that:

(a) petitioners’ case was not controlled by McDonald

v. Board of Elections, supra, but rather presented serious

constitutional questions unanswered by McDonald, and

(b) the Court of Appeals had exceeded its proper

adjudicatory role by deciding that the statutes challenged

by the petitioners were constitutional.

On March 10, 1972, petitioners filed with this Court a

Petition for a Writ of Certiorari, which was granted on

June 26, 1972.

SUMMARY OF ARGUMENT

I. Petitioners’ case presents substantial constitutional

questions which require the empanelling of a three-judge

court.

The Court of Appeals held that petitioners were not

entitled to a three-judge court because it found that the

substantive constitutional challenge of petitioners’

complaint was wholly insubstantial in view of McDonald

y. Board of Elections, 394 U.S. 802 (1969). Petitioners

ase is, however, distinguishable from McDonald and

‘presents several substantial constitutional issues not

cleatly foreclosed by that decision.

First, unlike the McDonald appellants, petitioners are

absolutely denied the very right to vote. Petitioners have

alleged in their complaint an absolute denial of the

franchise because they have attempted to register and

vote in various ways, both by absentee means and in

person, but all their attempts have been refused by the

respondents. (Complaint, 431-34, 52 and 54, A. 17-18,

20, and 21). In the present procedural posture of their

case, the allegations of their complaint must be assumed

to be true. Gomillion ¥. Lightfoot, 364 U.S. 339, 341

(1960); Levering & Garrigues Co. v. Morrin, 289 US.

103, 105 (1933). Indeed, at no time during the

proceedings below or in this Court has any respondent

denied that petitioners are absolutely denied the right to

vote.

Second, the Pennsylvania absentee ballot statute,

unlike the Illinois statute in McDonald, draws lines on the

basis of wealth and race. While the Illinois statute did not

expressly deny .an absentee ballot to anyone, the

Pennsylvania statute denies an absentee ballot to one

“confined in a penal institution.” 25 Purdon’s Statutes

§2602(w)(12) (Supp. 1972). Although this legislative

classification is not expressly or designedly discrimina-

tory on the -basis of wealth or race, it is grossly

discriminatory in fact, both on the basis of wealth and

race, because over 90 percent of the petitioners are

“non-white” and indigent. As this Court has recognized

in several cases, “‘a law nondiscriminatory on its face may

be grossly discriminatory in its operation.” Williams v.

Minois, 399 US. 235, 242 (1970); Griffin v. Illinois, 351

U.S. 12, 17 n. 11 (1956). Further, it should be noted that

the McDonald appellants did not allege, as petitioners do,

that they are being denied the right to vote on the basis

of color in violation of the Fifteenth Amendment. This

raises a substantial constitutional question not in issue in

McDonald. See Gomillion v. Lightfoot, 364 U.S. 3339,

342 (1960); Lane v. Wilson, 307 U.S. 268, 275 (1939).

Since petitioners are absolutely denied the right to

vote and since the Pennsylvania statute draws lines on the

basis of wealth and race, the Pennsylvania statute, unlike

the Illinois statute in McDonald, must be tested by the

compelling state interest test. ‘

Even if, however, the Pennsylvania statute is not tested

by the compelling state interest test, it must nevertheless

be declared unconstitutional because of yet a third

distinction between this case and McDonald. The

McDonald Court, applying the reasonableness test,

upheld the Illinois absentee ballot statute on the ground

that it was “remedial” in nature, that is, it extended

absentee ballot coverage to some but did not deny

coverage to any eligible voter. 394 U.S. at 809-11. The

Pennsylvania statute, on the other hand, is not

“remedial” in nature since it expressly denies coverage to

petitioners. This important statutory distinction raises a

substantial constitutional question not re 5 by

McDonald. |

II. Petitioners’ case constitutes a case or controversy

under Article III of the Constitution.

The District Court found that there was no adversity

of interests between petitioners and all defendants

because the Commonwealth defendants admitted that the

laws of Pennsylvania unconstitutionally deprived peti-

tioners of their right to vote. However, the Philadelphia

defendants made no such admission and have vigorously

defended this case’ on the merits in all courts. Thus,

adversity of interest remains between petitioners and the

Philadelphia defendants notwithstanding the admission of

the Commonwealth defendants. Moreover, this Court has

held that the admission of liability by a defendant does

not operate to divest a federal court of jurisdiction. Re

Metropolitan Railway Receivership, 208 U.S. 90 (1908).

The District Court also dismissed the petitioners’

complaint because it lacked expertise to frame a remedy.

However, even assuming there might be some difficulty in

framing a remedy, this is not a sufficient basis for

dismissing the complaint. A federal court sitting in equity

has broad remedial powers and has the duty to remedy

the deprivation of constitutional rights. Louisiana v.

United States, 380 U.S. 145, 154 (1965); Brown v- Board

of Education, 349 U.S. 294, 300 (1955).

Finally, the District Court dismissed petitioners’ case

because the defendant Attorney General had not issued a

formal Attorney General’s Opinion to the Philadelphia —

defendants. This can have no effect on petitioners’ case

since, notwithstanding the Attorney General’s conduct,

petitioners remain unconstitutionally deprived of their

right to vote.

ARGUMENT

PETITIONERS’ CASE PRESENTS SUBSTANTIAL

CONSTITUTIONAL QUESTIONS WHICH REQUIRE

THE CONVENING OF A THREE-JUDGE COURT

SINCE. PETITIONERS’ COMPLAINT ALLEGES

THAT THEY AND OTHER PRETRIAL DETAINEES

IN PHILADELPHIA COUNTY ARE ABSOLUTELY

DENIED THE RIGHT TO VOTE BY THE COM-

MONWEALTH OF PENNSYLVANIA

Petitioners moved in the District Court pursuant to 28

U.S.C. § 2281 for the empanelling of a three-judge court.

Although the District Court specifically did not rule on

this motion and dismissed petitioners’ complaint for lack

of subject-matter jurisdiction, the Court of Appeals

affirmed the District Court’s dismissal of the complaint,

without discussion of the jurisdictional issue, on the

ground that petitioners were not entitled to a three-judge

Court. Relying on Bailey v. iutterson, 369 U.S. 31

(1962), the Court of Appeals held that the substantive

constitutional challenge of petitioners’ complaint was

wholly insubstantial in view of McDonald v. Board of

Elections, 394 U.S. 802 (1969).*

- $The Court of Appeals did not find that petitioners’ case failed

to satisfy any other requirement for the empanelling of a

three-judge Court. Indeed, petitioners’ case clearly meets these

other requirements since their complaint challenges state statutes

of general application and statewide concern, the complaint seeks

an injunction against the enforcement of these statutes, and the

actions of both state officers and local officers performing state

functions.are sought to be enjoined.

Moreover, it should also be noted that the Court of Appeals not

only decided that petitioners were not entitled to a three-judge

Court; but: also held that the statutes in question were

| constitutional. As Judge Adams noted in his dissenting opinion

Pret Ary (ill)

In Bailey and in several other cases, this Court has

established that a statute is not challenged upon the

groumd of unconstitutionality within the meaning of 28

U.S.C. § 2281 where the claim of unconstitutionality is

(1) “essentially. fictitious” or “legally speaking non-

existient,” or (2) is “frivolous” because of prior decisions.

Bailey v. Patterson, 369 U.S. 31, 33 (1962); California

Water Service Co. v. City of Redding, 304 U.S. 252, 254

(1938); Levering & Garrigues Co. v. Morrin, 289 US.

103,, 105 (1933).

Im Ex Parte Poresky, 290 U.S. 30, 32 (1933) the Court

expressed this rule as follows:

The question may be plainly unsubstantial, either

because it is ‘obviously without merit’ or because

“its unsoundness so clearly results from the previous

diecisions of this court as to foreclose the subject

and leave no room for the inference that the

questions sought to be raised can be the subject of

controversy.’ (citations omitted).

Accordingly, the issue before this Court is whether the

McDonald decision so clearly forecloses the constitu-

tional questions raised by petitioners’ complaint and

leaves no room for the inference that these questions can

be the subject of controversy. Petitioners contend that

the constitutional issues of their case are clearly not

foreclosed by McDonald.

In McDonald, appellants were a class of untried pretrial

detainees in Cook County, Illinois, who were already

registered to vote and who sought to vote only by

absentee ballot. Appellants made a timely application for

(A..94), the Court of Appeals by this decision has exceeded its

proper adjudicatory role and usurped the function of a three-judge

Cowrt. Goosby v. Osser, 452 F.2d at 41. :

iwi

) |

A | | |

an absentee ballot to the Cook County Board of Election

Commissioners, but the Board denied their application on

the ground that appellants did not fall within those

groups which the Illinois Election Code specifically

permitted to vote by absentee means.°®

Appellants then filed a complaint alleging that the

provisions of the Illinois Election Code denied them

equal protection of the law by not including them within

the groups allowed to vote by absentee ballot. Appellants

claimed that they were denied equal protection because

the Illinois Election Code (1) did not provide for an

absentee ballot for one “judicially incapacitated,” but

made it available to one “medically incapacitated” and

(2) did not provide for an absentee ballot for appellants,

but made it available to pretrial detainees who were

residents of Cook County incarcerated outside of Cook

County.

The threshold question confronting this Court was

“how stringent a standard to use in evaluating the

classifications made [by the Illinois’ absentee provisions]

and whether the distinctions must be justified by a

compelling state interest... .” 394 U.S. at 806. In

resolving this question, the Court recognized that its

previous decisions required the application of the more

stringent compelling state interest test in either of two

situations:

6The Illinois absentee voting statute, Ill. Rev. Stat., c. 46, :

§§19-1 to 19-3, made absentee balloting available to four classes

of persons: (1) those who were absent from their county of

residence for any reason; (2) those who were “physically

incapacitated”; (3) those whose observarice of a religous holiday

prevented attendance at the polls; and (4) those who served as poll

. watchers in precincts other than their own on election day. 394

US. at 803-04. é

(1) if the appellants’ right to vote were infringed,

Reynolds v. Sims, 377 U.S. 533 (1964); Harper v.

Virginia Board of Elections, 383 U.S. 663 (1966);

Carrington v. Rash, 380 U.S. 89 (1965); or

(2) if the statutory classifications were drawn on the

basis of wealth or race, Harper v. Virginia Board of

Elections, supra, McLaughlin v. Florida, 379 U.S. 184,

192 (1964); Douglas v. California, 372 U.S. 353 (1963).

394 U.S. at 807. °

The Court found, however, that appellants’ case did not

fall within either of these two situations.

First, with respect to the infringement of appellants’

right to vote, the Court said, at page 807-08:

_.. [t] here is nothing in the record to indicate that

the Illinois statutory scheme has an impact on

appellants’ ability to exercise the fundamental right

to vote. It is thus not the right to vote that is at

stake here but a claimed right to receive absentee

ballots... . 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.

Second, with respect to the nature of the

classifications drawn by the Illinois statute, the Court

said that the “‘exacting approach” was not necessary since

“the distinctions made by Illinois’ absentee provisions are

not drawn on the basis of wealth or race.” 394 U.S. at

807.

Additionally, the Court noted, in footnote 7 on page

808, that it would not reach appellants’ contentions that

they were the recipients of-an impermissible consequence

of pretrial detention and were being denied their right to

vote solely because of their inability to post bail,

}

aii (|

wen oe _O>-

contrary to Harper v. Virginia Board of Elections, 383

U.S. 663 (1966), “[s]ince there is nothing in the record

to show that appellants are in fact absolutely prohibited

from voting by the State... .”

Having resolved the threshold question in this manner,

the Court tested the Illinois absentee ballot provisions by

the usual standards applicable when a fundamental right

is not in issue. The Court said that the statutory

classifications must be upheld if they bear a reasonable

relationship to a legitimate state end. 394 U.S. at 808-09.

The Court then found that it was reasonable to treat the

appellants differently from the medically handicapped

and from those incarcerated outside of Cook County,

394 U.S. at 809-10, and concluded that it was

“satisfied . . . that appellants’ challenge to the allegedly

unconstitutional incompleteness of Illinois’ absentee

voting provisions cannot be sustained.” 394 U.S. at 810.

In summary, then, the Court held in McDonald:

(1) that it would not apply the compelling state

interest test to appellants’ challenge to the Illinois

absentee ballot statute (a) because appellants’ could not

show that they were absolutely denied the right to vote

but only that they were denied the use of an absentee

ballot and (b) because the Illinois absentee ballot laws

were not drawn on the basis of race or wealth; and

(2) that the Illinois absentee ballot laws reasonably

discriminated against appellants in favor of the medically

incapacitated and pretrial detainers incarcerated outside

of Cook County.

Petitioners contend for several reasons that their case is

factually and legally distinguishable from McDonald and

presents substantial constitutional questions unanswered

by McDonald. Indeed, petitioners’ case : raises some

questions clearly left open by McDonald and other

questions not in issue in McDonald.

First Distinction — Petitioners, unlike the McDonald

appellants, are absolutely denied the right to vote.

Petitioners’ are a class of untried pretrial detainees in

Philadelphia County, Pennsylvania, many of whom seek

not only to vote but to register to vote. Petitioners

sought to register and to vote not only by absentee

means, but also by various other means including

appearance by proxy, by requesting that the election

officials bring polling booths and registration facilities to

prisons, by. requesting permission to go personally to

polling places, by guarded transportation if necessary,

and generally by any means which the defendant election

officials deemed advisable to utilize. Since both the

Commonwealth and Philadelphia defendants refused all

of petitioners’ attempts to register and to vote,

petitioners are absolutely denied the right to vote.

(Complaint, 9s30-34, 47-56, 59, A. 17-18 and 20-21).”

7In the present procedural posture of petitioners’ case, the

allegations of their complaint must be deemed to be true. Boddie v.

Connecticut, 401 U.S. 371, 373 (1971); Federal Trade Commission

v. Dean Foods Co., 384 US. 597, 601 (1966); Gomillion v.

Lightfoot, 364 U.S. 339, 341 (1960); Levering & Garrigues Co. v.

Morrin, 289 US. 103, 105 (1933).

In Gomillion, the lower courts dismissed the plaintiffs’

contention that their right to vote was being infringed on the basis

of race in violation of Fourteenth and Fifteenth Amendments on

the grounds of lack of jurisdiction and failure to state a claim. In

ing on the propriety of the dismissal, this Court said, at page

341:

At this stage of the litigation we are not concerned with the

truth of the allegations, that is, the ability of petitioners to

Indeed, at no time during this litigation has any

respondent disputed that petitioners are absolutely

denied the franchise. Rather, the Philadelphia defendants

have vigorously contended in all the proceedings below

that, notwithstanding this absolute denial, the laws of

Pennsylvania are constitutional.

In view of this total denial of the franchise, the

following consequences, specifically recognized by

McDonald, result:

(1) the classifications drawn by the challanged

Pennsylvania statutes must be tested by the compelling

state interest test, 394 U.S. at 807-08;

(2) petitioners’ claim that they are the recipients of an

impermissible consequence of pretrial detention in

violation of due process of law must be addressed by the

courts, 394 U.S. at 808, footnote 7; and

(3) petitioners’ claim that they are being denied the

right to vote because they cannot afford bail, contrary

to Harper v. Virginia Board of Elections, 383 U.S. 663

(1966), must also be addressed by the courts, 394 US. at

808, footnote 7.

Since these three consequences flow from the absolute

denial of the franchise to petitioners, it is clear for this

reason alone that petitioners’ case is not foreclosed or

rendered frivolous by McDonald.

Further, it must be also noted that the substantiality

of the constitutional questions raised by this case cannot

sustain their allegations by proof. The sole question is

whether the allegations entitle them to make good on their

claim that they are being denied rights under the United

States Constitution. | | coe

be doubted in view of decisions by this Court subsequent

to McDonald. In Dunn vy. Blumstein, 405 U.S. 330

(1972), City of Phoenix v. Kolodziejski, 399 U.S. 204

(1970), Evans v. Cornman, 398 U.S. 419 (1970), Kramer

y. Union Free School District, 395 U.S. 621 (1969) and

Cipriano v. City of Houma, 395 U.S. 701 (1969), the

Court applied the compelling state interest test to

statutes challenged by plaintiffs who were absolutely

prohibited by their states from voting.

In Dunn, the Court held that Tennessee’s durational

residency requirements, which restricted voting to

citizens who lived in the state for one year and in a

country for three months, were unconstitutional since

they served no compelling state interest and placed an

impermissible burden on interstate travel.

Similarly, in Evans, the court declared that Maryland

could not deny the vote to individuals who resided in@

federal enclaves within the State.

In Kramer, Cipriano, and Kolodziejski the Court

declared that laws which prohibited non-property owners

from voting in certain local elections were unconstitu-

tional even though the non-property owners were not

denied the right to vote in state and federal elections.

Moreover, in Bullock v. Carter, 405 U.S. 134 (1972),

the Court recently had the opportunity to address and

comment upon a situation where a state tied the right to

vote to the affluence of the voter. In Bullock the Court

was confronted with a claim by a candidate that the filing

fee requirements imposed on candidates by Texas law

constituted a denial of equal protection of the law. The

threshold question for the Court was whether the

compelling state interest test or the any rational basis

test should be applied to the Texas filing fee system. The

Court found that the more rigid standard of review

applied because, inter alia, the filing fee requirement had

the “liklihood” of denying to some voters the

opportunity to vote for a candidate of their choice

because of their lack of affluence. 405 U.S. at 144.

Tested by this more stringent standard, the Court

declared the filing fee unconstitutional.

Petitioners’ case is even more compelling than Bullock

since the impact of the Pennsylvania statutes on

petitioners’ right to vote is more direct and more clearly

related to petitioners’ lack of affluence than was the

impact of the Texas filing fee system. Petitioners’ case is

also more compelling than the Kramer, Kolodziejski and

Cipriano cases since the plaintiffs in those cases were only

disenfranchised in certain local elections whereas

petitioners are disenfranchised in all elections, federal,

state and local.

Finally, it should also be noted that there have been

several lower court cases since McDonald, both state and

federal, which have recognized that due process requires

that a pretrial detainee not be deprived of any rights

except those inherently related to his confinement.®

Svoore v. Ciccone, 459 F.2d 574 (8th Cir. 1972) (delay,

censorship and reading of incoming mail from attorney); Anderson

vy. Nosser, 438 F.2d 183 (1971), modified 456 F.2d 835 (Sth Cir.

1972) (inadequate hygienic facilities); Hamilton v. Love, 328 F.

Supp. 1182 (E.D. Ark. 1971) (inadequate hygienic facilities); Jones

v. Wittenberg, 323 F. Supp. 93 and 330 F. Supp. 707 (N.D. Ohio

1971) aff'd sub nom., Jones v. Metzger, 456 F.2d 854 (6th Cir.

1972) (inadequate hygienic and other facilities); Conklin v.

Hancock, 334 F. Supp. 1119 (D. N.H. 1971) (delay, censorship

and reading of incoming and outgoing correspondence with

attomey); Davis v. Lindsay, 321 F. Supp. 1134 (S.D. N.Y. 1970)

(solitary confinement of pretrial detainee unconstitutional),

Palmigiano v. Travisono, 317 F. Supp. 776 (D. R.1. 1970) (reading

j ! |

These cases also serve to highlight the substantiality of

petitioners’ constitutional claims.

Second Distinction — The Pennsylvania absentee

voting statute, unlike the Illinois statute challenged in

McDonald, draws lines on the basis of wealth and race.

The Illinois absentee ballot statute challenged in

McDonald made absentee ballots available to four classes

of persons and did not expressly deny an absentee ballot

to any eligible voter. Although the McDonald appellants

contended that this statute drew lines on the basis of

wealth and therefore should be tested by the compelling

state interest test, the Court rejected this contention

finding that the statute was not so drawn. 394 U.S. at

807.

The Pennsylvania absentee ballot statute, on the other

hand, does not merely fail to include petitioners in the

class of eligible absentee voters, but rather specifically

excludes them. The statute defines “qualified absentee

elector” to include twelve classes of persons and then

provides: “...That the words ‘qualified absentee

elector’ shall in nowise be construed to include persons

confined in penal institution or a mental institution nor

shall it in anywise be construed to include a person not

qualified as a qualified elector.... ” 25 Purdon’s

Statutes §2602(w)(1){12).?

of all outgoing and incoming mail); Tyler v. Ciccone, 299 F. Supp.

685 (W.D. Mo. 1969) (censorship and confiscation of manuscript);

Wayne County Jail Inmates v. Wayne County Board, No. 173217, ~

Wayne County Circuit Court, May 18, 1971 (inadequate hygienic

facilities). :

*For the complete text of this statute, see Appendix to Brief,

pp. 9a-lla. .

For the following reasons, petitioners contend that this

statute does draw lines on the basis of wealth and race

and must, as specifically recognized in McDonald, be

tested by the compelling state interest test.

This Court has long applied the principle that statutes

which draw classifications on the basis of wealth or race

are “inherently suspect” and require an overriding state

interest to be sustained. McDonald v. Board of Elections,

394 U.S. 802, 807 (1969); Hunter v. Erickson, 393 US.

385, 389, 391-92 (1969) (housing ordinance regulating

sale and lease of land based on race or religion must be

approved by majority of voters at election); McLaughlin

v. Florida, 379 U.S. 184, 191-93 (1964) (prohibition of

interracial cohabitation); Douglas v. California, 372 U.S.

353, 355-58 (1963) (right to counsel on appeal); Brown

v. Board of Education, 347 U.S. 483 (1954) (segregation

in public schools); Bolling v. Sharpe, 347 U.S. 497 (1954)

(segregation in public schools); Korematsu v. United

States, 323 U.S. 214, 216 (1944) (restrictions on persons

of Japanese ancestry); Edwards v. California, 314 US.

160, 184-85 (1941) (Jackson, J., concurring) (misde-

meanor to bring indigent into state).

This principle was first applied by the Court to statutes

which explicitly classified by race or wealth, Bolling v.

Sharpe, supra, Brown v. Board of Education, supra,

Korematsu v. United States, supra, or which, though not

explicitly classifying by race or wealth, were found to be

obviously intended to have such an effect. See Gomillion

v. Lightfoot, 364 U.S. 339, 341 (1960) (redistricting

measure a device to disenfranchise black citizens).'°

19¢¢¢ Michelman, The Supreme Court, 1968 Term, Forward:

On Protecting the Poor Through the Fourteenth Amendment, 83

Harv. L. Rev. 7, 20-21 (1969).

This principle has more recently been applied by the

Court to statutes which, though not explicitly or

purposely designed by legislatures to classify by race or

wealth, in fact have that effect. Bullock v. Carter, 405

U.S. 134, 142-44 (1972) (filing fee for candidates

invidiously discriminates against low income voters);

Williams v. Illinois, 399 U.S. 235, 242 (1970) (indigents

who cannot afford to pay fine may not be imprisoned

beyond maximum term); Harper v. Virginia Board of

Elections, 383 U.S. 663, 668-70 (1966) (poll tax

invidiously discriminates against indigents); Anderson v.

Martin, 375 U.S. 399, 403-04 (1964) (requiring

designation of race of candidate on ballot unconsti-

tutional); Douglas v. California, supra; Griffin v. Illinois,

351 U.S. 12, 16-18 (1956) (transcript of criminal

proceedings must be given without cost to indigent

criminal defendants); cf. Griggs v. Duke Power Co., 401

U.S. 424, 432-33 (1971) (private employers may not

adopt arbitrary barriers to employment which operate in

fact to discriminate on the basis of race).'' As this Court

11 For lower court cases applying this principle, see Hawkins v.

Town of Shaw, 437 F.2d 1286 (Sth Cir. 1971) (failure to provide

certain municipal services in black neighborhood); Norwalk CORE

v, Norwalk Redevelopment Agency, 395 F.2d 920, 931 (2d Cir.

1968) (displacement by urban renewal project based on race);

Hobson v. Hansen, 269 F.Supp. 401 (D. D.C. 1967) aff'd sub

nom., Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) (disparate

educational facilities based on race and lack of affluence); Serrano

v. Priest, 487 P.2d 1241, 1249-54 (Cal. 1970) (financing of public

school system based on property taxes invidiously discriminates

against poor); cf. Local 189, United Papermakers & Paperworkers

v. United States, 416 F.2d 980, 988 (Sth Cir. 1969) (private

employer’s seniority system discriminates on basis of race);

Johnson v. Pike Corp., 332 F. Supp. 490, 493 (C.D. Cal. 1971)

(private employer’s practice of discharging employees whose wages

were garnished discriminates against minorities); Gregory v. Litton

| on 1 |

said in Griffin, and recently reaffirmed in Williams, ‘‘a

law nondiscriminatory on its face may be grossly

discriminatory in its operation.” Griffin v. Illinois, supra,

at 17 n. 11; Williams vy, Illinois, supra at 242.

The Penrisylvania statute attacked by petitioners,

although not explicitly or designedly discriminatory on

the basis of wealth or race, is grossly discriminatory in

fact both on the basis of race and wealth and must be

strictly scrutinized in order to pass constitutional muster.

The line drawn by the statute is between those confined

in penal institutions and those not confined in penal

institutions who qualify for an absentee ballot. As

petitioners allege, and can prove, this line has the effect

of discriminating against both racial minorities and

indigents because over 90 percent of petitioners’ class is

“non-white” and indigent. The impact of the line drawn

by the Pennsylvania statute is thus clearly distinguishable

from the line drawn by the statute in McDonald. The

Illinois statute merely drew a line between four classes of

voters eligible to vote by absentee ballot and all others,

white and black, poor and affluent, who could not vote

by absentee ballot. :

Systems, Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (private

employer’s policy of excluding from employment persons who

have a number of arrests without convictions discriminates against

black job applicants).

See generally Michelman, supra note 10, at 21, 24-27; Sager,

Tight Little Islands: Exclusionary Zoning, Equal Protection and

the Indigent, 21 Stan. L. Rev. 767, 774 (1969); Goldberg, Equality

and Governmental Action, 39 N.Y.U.L. Rev. 205, 221 (1964);

Coons, Clune & Sugarman, Educational Opportunity, A Workable

Constitutional Test for State Financial Structures, 57 Calif. L. Rev.

- 305, 358-61 (1969).

25.

‘Moreover, it should: be noted that petitioners’

contention that they are denied the right to vote on the

basis of race raises constitutional and statutory questions

which were not raised in the McDonald case and which

were not, therefore, before the Court. Unlike the

McDonald appellants, petitioners allege that their right to

vote is being infringed on the basis of race in violation of

the Fifteenth Amendment and the Voting Rights Act of

1965. The substantiality of these questions is apparent

from decisions of this Court. In Lane v. Wilson, 307 U.S.

268, 275 (1939), the Court said:

The reach of the Fifteenth Amendment against

contrivances by a state to thwart equality in the

enjoyment of the right to vote by citizens of the

United States regardless of race of color, has been

amply expounded by prior decisions. Guinn vy.

United States, 238 U.S. 347; Myers v. Anderson,

238 U.S. 368. The Amendment _nullifies

sophisticated as well as simple-minded modes of

discrimination. It hits onerous procedural require-

ments which effectively handicap exercise of the

franchise by the colored race although the abstract

right to vote may remain unrestricted as to race.

(emphasis added).

See also Gomillion v. Lightfoot, 364 U.S. 339 (1960).

For these additional reasons, therefore, petitioners’

case presents constitutional questions not foreclosed by

McDonald.

Third Distinction — Even if the classifications. drawn

by the Pennsylvania absentee voting statute are not tested

by the compelling state interest test, there are significant

differences between McDonald and petitioners’ case

which. raise a substantial constititonal question as to

whether the Pennsylvania statute invidiously dis.

caloeed inst petiti

As noted above, the Illinois statute in McDonald

extended the right to vote by absentee ballot to four

classes of voters and did not expressly deny an absentee

ballot to anyone. The McDonald court, in applying the

test of reasonableness to this statute, emphasized that the

alleged unconstitutional deficiency of the statute was its

failure to include appellants in its remedi Visions.

The Court said that such “remedial” legislation, i.e,

legislation which in the voting context extends the

franchise, cannot be considered unconstitutional simply

because it fails to go far enough. 394 U.S. at 809-11. !?

The Court further commented that the Illinois legislature

should be commended for adding groups to the absentee

ballot coverage as those groups came to the legislature’s

attention and that legislatures are entitled to take reform

one step at a time and need not strike at all evils at the

same time. 394 U.S. at 809 and 811.

The Pennsylvania statute, on the other hand, because it

specifically excludes petitioners from the class of

qualified absentee electors cannot be considered a

“remedial” statute vis-a-vis petitioners. Unlike the Illinois

legislature, the Pennsylvania legislature has not merely

'2For a discussion of this aspect of McDonald, see Note,

Supreme Court, 1968 Term, 83 Harv. L. Rev. 7, 84-86 (1969).

failed to include petitioners in remedial legislation but

rather has affirmatively taken steps to exclude

petitioners. Nevertheless, the legislature has extended

absentee voting privileges over the years to numerous

other classes, including members of the military and the

Merchant Marine, members of religious or welfare groups

serving the armed forces, civilian employees of the United

States, those who are absent from the county of their

residence becausé of their duties, occupation or business,

the spouses and dependents of the preceding groups,

those who are ill or physically disabled, and bedridden

war veterans. 25 Purdon’s Statutes § 2602(w)(1)(12).

Until 1963, Pennsylvania had extended absentee voter

privileges: only to the ill and those absent from their

counties on business, while specifically disqualifying

those “committed to and confined in a _ penal

institution.” In 1963, the statute was amended to extend

its remedial provisions to additional classes, as specified

above, but the disqualification applicable to petitioners

remained intact. In fact, the specific statutory words

disqualifying petitioners from absentee ballot coverage

were changed slightly by the elimination of the words

“committed to.” This is a clear indication that the

legislature was intentionally reaffirming its policy in this

area as to petitioners.

Given this important statutory distinction, even if the

compelling state interest test is not applied to the

Pennsylvania absentee ballot statute, the statute will not

survive the test of reasonableness as applied in McDonald.

At the very least, it is clear that the Pennsylvania statute

is subject to an analysis different than the one by which

the McDonald Court analyzed the Illinois statute.

Accordingly, it must be concluded for this reason also

that petitioners’ case raises substantial constitutional

questions unanswered by McDonald.

PETITIONERS’ CASE CONSTITUTES A CASE OR

CONTROVERSY UNDER ARTICLE Ill OF THE

CONSTITUTION

The District Court, sua sponte, dismissed petitioners’

complaint for lack of subject matter jurisdiction on the

ground that petitioners’ case did not constitute a case or

controversy with the meaning of Article III of the

Constitution. On appeal, the Court of Appeals affirmed

the District Court without discussion. Goosby v. Osser,

452 F.2d 39 (1971)¢) Consequently, in order for

petitioners to obtain the hearing which they seek before a

three-judge court, it is necessary for this Court to find

not only that petitioners’ complaint presents substantial

constitutional questions, but also that petitioners’ case

constitutes a case or controversy within the meaning of

Article III of the Constitution.

The District Court appears to have held that

petitioners’ case failed to constitilte a case or controversy

for the following three reasons:

1. Since the Commonwealth defendants admitted that

the laws in question unconstitutionally deprived

petitioners of their right to vote, there is no adversity of

interests between petitioners and all defendants.

2. Specific or conclusive relief is not available to

petitioners because the District Court lacked expertise to

frame a plan. of registration or voting.

3. Since the Attorney General of Pennsylvania has not

issued a formal Attorney General’s Opinion to guide the

Philadelphia defendants in this matter, the Philadelphia

defendants have no legal standing to defend this law suit

and therefore this case is hypothetical or not ripe as to

them. /

For the following reasons, however, the decision of the ©

District Court is in error.

1. Adversity of interests between parties.

Notwithstanding the admission of the Commonwealth

defendants, adversity of interests between petitioners and

all defendants remains for two readily apparent reasons.

_ First, the Philadelphia defendants have made no

admission and in fact have vigorously contended in all the

proceedings below (1) that they are not bound by any

admissions or opinions of the Attorney General and (2)

that the laws of Pennsylvania do not unconstitutionally

deprive petitioners of their right to vote. Thus, adversity

of interests between petitioners and the Philadelphia

defendants clearly remains.

Second, even assuming that the Philadelphia

defendants were bound by the admission of the

Commonwealth defendants, the reasoning and result of

the District Court has been expressly rejected in a similar

case by this Court. Re Metropolitan Railway

Receivership, 208 U.S. 90 (1908). In this case the Court

held that there was a case or controversy even though the

defendant admitted the claims of the plaintiff and

consented to the relief requested. The Court reasoned

that since demand for relief was made and refused prior

to institutions of the suit,

{t]} here was therefore an unsatisfied demand made

by complainants and refused by defendant at the

time of the filing of the bill. We think that where

there is a justiciable claim of«some right . . . which

claim is not satisfied by the party against whom it is

made, there is a controversy, or dispute, between

the parties.... It is not necessary that the

defendant should controvert or dispute the claim. It

is sufficient that he does not satisfy it. It might be

that he could not truthfully dispute it, and yet, if

from inability, or mayhap, from indisposition, he

fails to satisfy it, it cannot be that because the claim

is not controverted the Federal court has no

jurisdiction of an action brought to enforce it. 208

U.S. at 107-108.

The reasoning of Metropolitan Railway is equally

applicable to petitioners’ case. Petitioners made several

demands for relief of Ps A agRa prior to commencing

suit. These demands wefe and remain unsatisfied since,

notwithstanding the admission, petitioners are still unable

to register and vote. Therefore, adversity of legal interest

between petitioners and defendants remains until

petitioners’ demands are satisfied by consent decree or

court order.

Moreover, it should be noted that if the rule were

otherwise a defendant could have an action against him

dismissed merely by admitting liability or fault. The

Court would then lose jurisdiction over the case and the

plaintiff would be without redress for his injury. Re

Metropolitan Railway Receivership, supra, at 108. In

Walling v. Helmerich and Payne, Inc., 323 U.S. 37

(1944), where the defendant voluntarily discontinued an

alleged illegal practice, this Court found that nevertheless

there was a case or controversy, noting that “the

defendant would presumably be free to resume the use of

the illegal plan were not some effective restraint made.”

Id. at 43. Here, despite the Commonwealth defendants’

admission, they did not voluntarily cease the illegal

practice and continue, for whatever reasons, to deny

petitioners the right to register and. vote. Petitioners will

obtain relief only by a binding court order.

2. Availability of Relief

The District Court held that it lacked expertise to

formulate a plan of registration and voting, and;

therefore, could not afford petitioners specific relief. An

action does not, however, lose its stature as a case or

controversy under Article III simply because of possible

difficulty in framing relief. A court of equity is endowed

with broad remedial powers and any difficulty it may

have in formulating a remedy where rights have been

infringed will not justify dismissal of a case. Louisiana v.

United States, 380 U.S. 145, 154 (1965); Brown v. Board

of Education, 349 U.S. 294, 300 (1955); Lewis v. Kugler,

446 F.2d 1343, 1352 (3d Cir. 1971). As the above-cited

cases recognized, federal district courts have broad

powers to remedy the deprivation of constitutional

rights. Indeed, this Court has said that courts not only

have the power, but the duty, to remedy discriminatory

practices. Louisiana v. United States, supra, at 154. If the

District Court felt the need for guidance as to remedy it

could have asked for expert testimony, which the

petitioners were and are ready to present, or it could have

asked the parties to submit proposals to it. Indeed, the

prayer for relief in petitioners’ complaint (A. 24) sets

forth specific steps for implementing voting and registra-

tion procedures for petitioners.

Accordingly, even given the District Court’s concern

for appropriate remedies, dismissal of petitioners’ case

was not proper. The District Court could clearly grant

specific relief of a conclusive nature to petitioners by

enjoining defendants from continuing to refuse to allow

petitioners to register and vote. -

3. Hypothetical Nature of the Case

The District Court found that since the Common-

wealth defendants admitted the unconstitutionality of

- the challenged statutes but did not issue a formal

Attorney General’s Opinion on the subject to the

Philadelphia defendants, the Philadelphia defendants, by

resisting petitioners’ case, were, in effect, asking the

Court to render an advisory opinion before the Attorney

General had issued his own formal opinion. It is clear,

however, that the abserice-of an Opinion of the Attorney

General neither transforms petitioners’ plight into an

abstract situation nor fails to make it any less a present,

existing deprivation of constitutional rights. The

Attorney General of Pennsylvania is not required to issue

Opinions and throughout all the proceedings in this case

the Philadelphia defendants have steadfastly maintained

that they are independent officials not bound by the

opinions and admissions of the Attorney General.'*

13.4 month before the institution of this case, the Attorney

General issued an Opinion regarding student registration in

Pennsylvania. The Philadelphia defendants refused to follow the

procedures outlined in that Opinion. When a class action was

brought on behalf of the students, the Philadelphia defendants

signed a consent decree. A specific provision of that decree recites

that the Philadelphia defendants do not admit or recognize by

entering into a consent decree that they are bound by the Opinions

of the Attorney General. Fair v. Osser, Civil Action No. 71-2212,

Eastern District of Pennsylvania, Stipulation and Order dated

September 27, 1971.

CONCLUSION

For all of the foregoing reasons petitioners respectfully

request that the judgment, opinion and order of the

Court of Appeals be reversed because (1) the Court of

Appeals erroneously held that petitioners’ case is wholly

insubstantial in view of McDonald v. Board of Elections,

and (2) the Court of Appeals erroneously affirmed the

District Court’s dismissal of petitioners’ complaint for

lack of subject-matter jurisdiction. Petitioners

respectfully request that the Court remand the case to

the Court of Appeals with instructions to remand to the

District. Court for the empanelling of a three-judge Court.

ANN S. TORREGROSSA

JOSEPH A. TORREGROSSA

ELLIOT B. PLATT

JONATHAN M. STEIN

LAURENCE M. LAVIN

Attorneys for Petitioners

Of Counsel:

DONALD A. GIANNELLA ~

GREGORY M. HARVEY

On the Brief:

Allan H. Lawson

DATED: August 28, 1972

APPENDIX TO BRIEF

UNITED STATES CONSTITUTION

Article I, Section 2, Clause 1

The House of Representatives shall be composed of

Members chosen every second Year by the People of the

several States, and the Electors in each State shall have

the Qualifications requisite for Electors of the most

numerous Branch of the State Legislature.

Article II}, Section 2, Clause 1 .

The judicia} Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of

the United States, and Treaties made, or which shall be

made, under their Authority;—to all Cases affecting

Ambassadors, other public Ministers and Consuls;—to all

Cases of admiralty and maritime Jurisdiction;—to

Controversies to which the United States shall be a

Party;-to Controversies between two oor more

States;—between a State and Citizens of another

State;—between Citizens of different States;—between

Citizens of the same State claiming Lands under Grants

of different States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Subjects.

First Amendment

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof: or

abridging the freedom’ of speech, 6r of the press; or the

tight of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

Fourteenth Amendment, Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

‘the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

Fifteenth Amendment

Section 1. The right of citizens of the United States to

vote shall not be denied or abridged by the United States

or by any State on account of race, color, or previous

condition of servitude.

Section 2. The Congress shall have power to enforce

this article by appropriate legislation.

Twenty-Fourth Amendment

Section 1. The right of citizens of the United States to

vote in any primary or other election for President or

Vice-President, for electors for President or Vice-

President, or for Senator or Representative in Congress,

shall not be denied or abridged by the United States or

any State by reason of failure to pay a poll tax or other

tax.

Section 2. The Congress shall have power to enforce

this article by appropriate legislation.

UNITED STATES CODE

Title 28, Section 2281

An interlocutory or permanent injunction restraining

the enforcement, operation or execution of any State

statute by restraining the action of any officer of such

State in the enforcement or execution of such statute or

of an order made by an administrative board or

commission acting under State statutes, shall not be

granted by any district court or judge thereof upon the

_ ground of the unconstitutionality of such statute unless

the application thereof is heard and determined by a

district court of three judges under section 2284 of this

title.

Title 28, Section 2284(1)

In any action or proceeding required by Act of

Congress to be heard and determined by a district court

of three judges the composition and procedure of the

court, except as otherwise provided by law, shall be as

follows:

(1) The district judge to whom the application for

injunction or other relief is presented shall constitute one

member of such court. On the filing of the application,

he shall immediately notify the chief judge of the circuit,

who shall designate two other judges, at least one of

whom shall be a circuit judge. Such judges shall serve as

members of the court to hear and determine the action or

proceeding.

Title 42, Section 1971(a)(1) and (a)(2)(A)

(a)(1) All citizens of the United States who are

otherwise qualified by law to vote at any election by

the people in any State, Territory, district, county,

city, parish, township, school district, municipality,

or other territorial subdivision, shall be entitled and

allowed to vote at all such elections, without

distinction of race, color, or previous condition of

servititude; any constitution, law, custom, usage, or

regulation of any State or Territory, or by or under

its authority, to the contrary notwithstariding.

(2) No person acting under color of law shali—

(A) in determining whether any individual is

qualified under State law or laws to vote in any

election, apply any standard, practice, or pro-

cedure different from the standards, practicies, or

procedures applied under such law or laws to

other individuals within the same county, parish,

or similar political subdivision who have been

found by State officials to be qualified to vote

Title 42, Section 1983

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citizen

of the United States or other person within the juris-

diction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress.

PENNSYLVANIA CONSTITUTION

Article I, Section 5

Elections shall be free and equal; and no power, civil or

military, shall at any time interfere to prevent the free

exercise of the right of suffrage.

Article VII, Section 4

All elections by the citizens shall be by ballot or by

such other method as may be prescribed by law:

Provided; That secrecy in voting be preserved.

PENNSYLVANIA ELECTION LAWS

___ First Class City Permanent Registration Act,

25 Purdon’s Statutes §623-1 et seq., in relevant part

Section 623-20(a)

(a) Every person claiming the right to be registered as

an elector must appear in person before the commission,

a commissioner, a derk or employee of the commission

acting as registrar or a registrar at the main office of the

commission, or at such other office or place as the

commission shall have designated, and answer the

questions required to be asked in accordance with this

act.

Every person claiming the right to be registered as an

elector who is physically disabled so that he cannot

appear in person to be registered.may request, in writing,

that the registration commission send a registrar to the

residence of such person for the purpose of registering

such person in the same manner as required by law of

other persons appearing for registration. The letter

requesting such registration shall be accompanied by a

statement of the physician attending such person, stating

that such person is physically disabled to the extent that

such person is unable to appear at any of the established

places for registration. Upon receipt by the registration

commission of such a letter duly accompanied by the

required physician’s statement, the registration com-

mission shall direct one of its registrars to go to the

residence of such disabled person and register him or her,

as the case may be. —

\ \ 68

—

Section 623-20.2(a),(d),(e)

In addition to any other method herein provided, the

following persons may also be registered in the manner

hereinafter set forth under this section: (1) any person in

military service, his spouse and dependents; or (2) any

person in the Merchant Marine, his spouse and

dependents; or (3) any person in religious and welfare

groups Officially attached to and serving with the Armed

Forces, his spouse and dependents; or (4) any person who

is a civilian employee of the United States outside the

territorial limits of the several states of the United States

and the District of Columbia, whether or not such person

is subject to the civil service laws and the Classification

Act of 1949 and whether or not paid from funds

appropriated by the Congress, his spouse and dependents.

(a) He may make application to the commission for a

registration card. The commission is hereby authorized to

consider a request for an absentee ballot from any person

enumerated in this section as an application for a

registration card and to cause to be forwarded to any

such person, together with his absentee ballot and

balloting material, a registration card in duplicate to be

completed and sworn to or affirmed prior to or concur-

rently with the time of voting the absentee ballot .. .

- (d) Upon written application by any person who may

registration commission having jurisdiction in the city in

which the applicant resided on the date of leaving his

home residence, a registration card, in the form herein

prescribed, in duplicate, shall be mailed to the applicant

at the address given in such application. Such person shall

thereupon supply the information required on the regis-

tration card, in duplicate, and shall take the affidavit

thereto, in duplicate, in the presence of any person

authorized to administer oaths, and shall mail the same,

in duplicate, to the registration commission from which it

was procured.

(e) Registration in the manner prescribed for by

persons registering under this section may be made at any

time.

Section 623-20.3(a).(d),(e) |

Any elector who is unable to appear in person to

addition to any other method herein provided, also be

registered in the following manner:

(a) He may make application to the commission for a

registration card.

(d) as in section 623-20.2(d), supra.

(e) as in section 623-20.2(e), supra.

Section 623-21

Every person who shall possess all the qualifications of

an elector as provided in the Constitution and laws of this

Commonwealth, or who by continued residence in his

election district. will obtain such qualifications before the

next ensuing general or municipal election, shall be

entitled to be registered as herein provided, and no

person shall be permitted to vote at any election or

primary held in such city unless he shall have been 9

registered, and no elector so registered shall be required

to register again for any election or primary while he

continues to reside at the same address, or has removed

his residence to another address in the same district and

has filed a removal notice as provided by this act, unless

his registration i¢ Cancelled by the commission by reason

of his failure to vote during the certain period as

hereinafter provided, or for any other reason under the

provisions of this act.

Section 623-38, in part

(a) Any person whose registration affidavit appears in

the district register of any election district in the city,

and who, upon applying to vote, shall have signed his

name to a voter's certificate, in the form hereinafter

provided, as a means of identification, and whose

signature thereon shall have been compared by the

election officers in the presence and view of the watchers,

with the signature of the applicant as recorded in the

district register and shall have been deemed authentic by

said election officers, shall be entitled to vote in such

district at any general, municipal or special election,

unless it be shown to the satisfaction of the election

officers that he has become disqualified by removal from

the district since registration, or that he has violated any

‘law of this Commonwealth prohibiting bribery at

elections...

lvania Election Code, 25 Purdon’s Statutes §2602

(wXx)y)(z-1) and (z-3) in part

(w) The words “qualified absentee elector’’ shall mean:

(1) Any qualified elector who is or who may be in the

military service of the United States regardless of whether

at the time of voting he is present in the election district

of his residence or is within or without this Common-

wealth and regardless of whether he is registered or

enrolled; or

(2) Any qualified elector who is a spouse or dependent

residing with or accompanying a person in the military

service of the United States if at the time of voting such

spouse or dependent is absent from the State or county

of his residence: Provided, however, That the said elector

has been registered or enrolled according to law or is

entitled, under provisions of the Permanent Registration

Law as now or hereinafter enacted by the General

Assembly, to absentee registration prior to or con-

currently with the time of voting; ' or

(3) Any qualified elector who is or who may be in the

service of the Merchant Marine of the United States if at

the time of voting he is absent from the State or county

of his residence. . . .; or

(4) Any qualified elector who is a spouse or dependent

residing with or accompanying a person who is in the

service of the Merchant Marine of the United States if at

the time of voting such spouse or dependent is absent

from the State or county of his residence . . . .; or

The clause of this subsection commencing with “Provided,

however” is repeated in subsections (3) through (8) which follow

and will be omitted therefrom.

10a

(5) Any qualified elector who is or who may be ina

religious or welfare group officially attached to and

serving with the armed forces if at the time of voting he is

absent from the State or county of his residence . . . .; or

(6) Any qualified elector who is a spouse or dependent

residing with or accompanying a person in a religious or

welfare group officially attached to and serving with the

armed forces if at time of voting such spouse or

dependent is absentfrom the State or county of his

residence . .. .; OF

(7) Any qualified elector who is or who may be a civilian

employee of the United States outside the territorial

limits of the several States of the United States and the

District of Columbia, whether or not such elector is

subject to civil-service laws and the Classification Act of

1949 and whether or not paid from funds appropriated

by the Congress, if at the time of voting he is absent from

the State or county of his residence . . . .; or

(8) Any qualified elector who is a spouse or dependent

residing with or accompanying a person who is a civilian

employee of the United States outside the territorial

limits of the several States of the United States and the -

District of Columbia whether or not such person is

subject to civil-service laws and the Classification Act of

1949 and whether or not paid from funds appropriated

by the Congress if at the time of voting such spouse or

dependent is absent from the State or county of his

residence ....; OF

(9) Any qualified war veteran elector who is bedridden

or hospitalized due to illness or physical disability if he is

absent from the Commonwealth or county of his

residence and unable to attend his polling place because

lla

of such illness or physical disability regardless of whether

he is registered and enrolled; or

As amended 1968, Dec. 11, P.L.__, No. 375, §1.

(10) Any qualified, registered arid enrolled elector who

expects to be or is absent from the Commonwealth or

county of his residence because his duties, occupation or

business require him to be elsewhere during the entire

period the polls are open for voting on the day of any

ry or election; or

As amended 1968, Dec. 11, P.L. _, No. 375, §1.

(11) Any qualified, registered and enrolled elector who is

unable to attend his polling place because of illness or

physical disability; or

(12) Any qualified, registered and enrolled elector who is

a spouse or dependent accompanying a person employed

in the service of this Commonwealth or in the service of

the Federal Government within the territorial limits of

the several States of the United States and the District of

Columbia in the event the duties, profession or occupa-

tion of such person require him to be absent from the

Commonwealth or county of his residence:

Provided, however, That the words “qualified absentee

elector” shall in nowise be construed to include persons

confined in a penal institution or a mental institution nor

shall it in anywise be construed to include a person not

otherwise qualified as a qualified elector in accordance

with the definition set forth in section 102(t) of this act.

As amended 1963, Aug. 13, P.L. 707, §1.

(x) The words “members of the merchant marine of the

United States” mean persons {other than persons in

military service) employed as officers or members of

crews of vessels documented under the laws of the United

States or of vessels owned by the United States or of

12a

vessels of foreign flag registry under charter to or contro]

of the United States, and persons (other than persons in

military service) enrolled with the United States for

employment or for training for employment or main-

tained by the United States for emergency relief service

as Officers or members of crews of any such vessels, but

does not include so employed or enrolled for

such employment or_for training for employment or

maintained for such emergency relief on the Great Lakes

or the Inland waterways. As amended 1963, Aug. 13,

P.L. 707, §1.

(y) The word “dependent” means any person who is in

fact a dependent. Added 1963, Aug. 13, P.L. 707, §2

(z-1) The words “in military service” shall mean the

uniformed services as defined in section 102 of the Career

Compensation Act of 1949 (63 Stat. 804, U.S. Code,

Title 37 Par. 231). Added 1963, Aug. 13, P.L. 707, §2

(z-3) The words “duties, occupation or business” shall

include leaves of absence for teaching or education,

vacations, sabbatical leaves, and all other absences asso-

ciated with the elector’s duties, occupation or business,

and also include an elector’s spouse who accompanies the

elector. Added 1968, Dec. 11, P.L.__ , No. 375, §3.

The Permanent Registration Act for Cities of

the Second Class, Cities of the Second Class A,

and Cities of the Third Class, Boroughs, Towns

and Townships, 25 Purdon’s Statutes §951-1

et seq., in relevant part

Section 95 1-18(a)

(a) Every person claiming the right to be registered as

an elector must appear in person before the commission,

a commissioner, a registrar, or a clerk, at the office of the

commission, or at such other place as the commission

shall have designated, and answer the questions required

to be asked in accordance with this act.

Every person claiming the right to be registered as an

elector who is physically disabled so that he cannot

appear in person to be registered may request, in writing,

that the, registration commission send a registrar to the

residence of such person for the purpose of registering

guch person-in the same manner as required by law of

other persons appearing for registration. The letter

requesting such registration shall be accompanied by a

statement of the physician attending such person, stating

that such person is physically disabled to the extent

that such person is unable to appear dt any of the

established places for registration. Upon receipt by the

tegistration commission of such a letter duly accom-

panied by the required physician’s statement, the registra-

tion commission shall direct one of its registrars to go to

the residence of such disabled person and register him or

her, as the case may be.

Section 95 1-18.1(a), (d), (e)

In addition to any other method herein provided, the

following persons may also be registered in the manner

hereinafter set forth under this section: (1) any person in

military service, his spouse and dependents; or (2) any

person in the Merchant Marine, his spouse and depend-

14a

ents; or (3) any person in religious and welfare groups

' officially attached to and serving with the armed forces,

his spouse and dependents; or (4) any person who isa

civilian employee of the United States outside the

territorial limits of the several States of the United States

and the District of C bia, whether or not such person

is subject to the ice laws and the Classification

Act of 1949 and whether or not paid from funds

appropriated by the Congress, his spouse and dependents,

(a) He may make application to the commission fora

registration card. The Commission is hereby authorized

to consider a request for an absentee ballot from any

person enumerated in this section as an application fora

registration card and to cause to be forwarded to any

such person, together with his absentee ballot and

balloting material, a registration card, in duplicate, to be

completed and sworn to or affirmed prior to or concur-

rently with the time of voting the absentee ballot:

Provided, however, That the envelope containing such

executed duplicate registration cards shall bear a post-

mark no later than the day of the primary or election for

which the absentee ballot is being voted and shall be

received at the office of the commission no later than the

date as provided by law for the canvassing of absentee

ballots.

(d) Upon written application by any person who may

registration commission having jurisdiction in the city of

the second class, city of the second class A, city of the

third class, borough, town or township in which the

applicant last resided on the date of leaving his home

residence, a registration card, in: the form herein pre

scribed, in duplicate, shall be mailed to the applicant at

the address given in such application. Such person shall

15 2

thereupon supply the information required on the regis-

tration card, in duplicate, and shall take the affidavit

thereto in duplicate in the presence of any person

authorized to administer oaths, and shall mail the same,

in duplicate, to the registration commission from which it

was procured.

(e) Registration in the manner prescribed for by

persons registering under this section may be made at any

time.

Section 95 1-18.2(a),(d), (€)

Any elector who is unable to appear in person to

addition to any other method herein provided, also be

fegistered in the following manner:

(a) He may make application to the commission for a

registration card.

(d) as in section 951-18.1(d), supra.

(e) as in section 951-18.1(e), supra.

Section 951-19

- Every person living in a city of the second class, city of

the second class A, city of the third class, borough, town

or township who shall possess all the qualifications of an

elector as provided in the Constitution and laws of this

Commonwealth, or who by continued residence in his

election district will have obtained such qualifications

before the next ensuing elections, shall be entitled to be

fegistered as herein provided. From and after the first day

of June, one thousand nine hundred fifty-five, no person

thall be permitted to vote at any election or primary held

in any city of the second class, city of the second class A,

16a

city of the third class, borough, town or township unless

he shall have been so registered, except by order of a

court of common pleas as hereinafter provided; and no

elector so registered shall be required to register again for

any election or primary while he continues to reside at

the same address, unless his registration is cancelled by

reason of his failure to vote during a period of two years

as hereinafter provided.

Section 95 1-36(a), in part

(a) Any person whose name is in the district register

of any election district in any city of the second class,

city of the second class A, city of the third class,

borough, twon or township, and who, upon applying to

vote, shall have signed his name and address to a voter's

certificate, in the form hereinafter provided for, as a

means of identification, and whose signature thereon

shall have been compared by the election officers in the

presence and view of the watchers, with the signature of

the applicant as recorded in the district register and shall

have been deemed authentic by said election officers,

shall be entitled to vote in such district at any general,

municipal or special election, unless it be shown to the

satisfaction of the election officers that he has become

disqualified by removal from the district since registra-

tion, or that he has violated any law of this Common-

wealth prohibiting bribery at elections.

17a

Pennsylvania Election Code, 25 Purdon’s

Statutes §3050 (a) and (d)

Section 3050

(a) At every primary and election each elector who

desires to vote shall first sign a voter’s certificate, and,

unless he is a State or Federal employe who has registered

under any registration act without declaring his residence

by street and number, he shall insert his address therein,

and hand the same to the election officer in charge of

the district register. Such election officer shall thereupon

compare the elector’s signature on his'voter’s certificate

with his signature in the district register. If, upon such

comparison, the signature upon the voter’s certificate

appears to be genuine, the elector who has signed the

certificate shall, if otherwise qualified, be permitted to

vote: Provided, That if the signature on the voter's

certificate, as compared with the signature as recorded in

the district register, shall not be deemed authentic by any

of the election officers, such elector shall not be denied

the right to vote for that reason, but shall be considered

challenged as to identity and required to make the

affidavit and produce the evidence as provided in

subsection (d) of this section. When an elector has been

found entitled to vote, the election officer who

examined his voter’s certificate and compared his signa-

ture shall sign his name or initials on the voter's

certificate, shall, if the elector’s signature is not readily

legible, print such elector’s name over his signature, and

the number of the stub of the ballot issued to him or his

number in the order of admission to the voting machines,

and at primaries a letter or abbreviation designating the

party in whose primary he votes shall also be enetered by.

One of the election officers or clerks. As each voter is

18a

found to be qualified and votes, the election officer in

charge of the district register shall write or stamp the date

of the election or primary, the number of the stub of

the ballot issued to him or his number in the order of

admission to the voting machines, and at primaries a

letter or abbreviation designating the party in whose

primary he votes, and shall sign his name or initials in the

proper space on the ‘registration card of such voter

contained in the district register.

As each voter votes, his name in the order of voting

shall be recorded in two (2) numbered lists of voters

provided for that purpose, with the addition of a note of

each voter’s party enrollment after his name at primaries.

(d) No person, except a qualified elector who is in

actual military or naval service under a requisition of the

President of the United States or by the authority of

this Commonwealth, and who votes under the pro

visions of Article XIII of this act, shall be entitled or

permitted to vote at any primary or election at any

polling place outside the election district in which he

resides, nor shall he be permitted to vote in the election

district in which he resides, unless he has been personally

registered as an elector and his registration card appears

in the district register of such election district, except by

order of the court of common pleas as provided in this

act, and any person, although personally registered as an

elector, may be challenged by any qualified elector,

election officer, overseer, or watcher at any primary or

election as to his identity, as to his continued residence in

the election district or as to any alleged violation of the

provisions of section 1210 of this act, and if challenged as

to identity or residence, he shall produce at least one

qualified elector of the election district as a witness, who

shall make affidavit of his identity or continued residence

19a

in the election district: Provided, however, That no

person shall be entitled to vote as a member of a party at

any primary, unless he is registered and enrolled as a

member of such party upon the district register, which

enrollment shall be conclusive as to his party membership

and shall not be subject to challenge on the day of the

primary.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.