Appellants Brief — O'Brien v. Skinner

EDWARD F. O’BRIEN, e¢ al.,

Appellants,

v.

ALBERT SKINNER, Sheriff, Monroe County, e¢ al.,

Appellees.

Appreat From tHe Court or APPEALS OF THE STATE oF

New York.

BRIEF FOR APPELLANTS.

: WuuumM D. Eacers,

Davin N. KunkEL,

Ruts B. Rosenserc,

New York Civil Liberties Union,

c/o One Lincoln First Tower,

Rochester, N. Y. 14603

Attorneys for Appellants.

Of Counsel:

Ronatp L. Brown,

“ Rochester, N. Y.;

Burt NEvBORNE,

Mervin L. Woetr,

New York, N. Y.

TT ————————————————————

Table of Contents.

Page

Opinions Below 1

Jurisdiction 1

Questions Presented 2

Statutes Involved 2

Statement of the Case 3

The operation of New York’s statutory scheme

regulating absentee participation in the elec-

toral process

Statement of Facts

Summary of Argument .............---------------

1. New York may not absolutely disenfrancise

appellants while it selectively extends the

franchise to other qualified voters similarly

unable to appear in person

2. New York’s absentee voting provisions are

unconstitutional under any standard of review

3. New York has not demonstrated that appel-

lants’ confinement necessarily precludes voting

by absentee means or by paper ballot; accord-

ingly, that confinement does not justify the

compromise of the fundamental right to vote

4. New York has imposed an unlawful financial

test for voting by denying the franchise to

pre-trial detainees who cannot post BR ssincas

10

hd

Page

ARGUMENT:

I. New York may not absolutely disenfrancise ap-

pellants while it selectively extends the fran-

chise to other qualified voters similarly un-

able to appear in person 11

A. The classifications in the absentee voting

provisions are unconstitutional unless they

are necessary to advance a compelling state

interest 11

B. Appellants have been disenfranchised under

a statutory classification that is unrelated to

the purposes of absentee voting and that does

not serve any compelling state interest .......... 13

C. Because New York has absolutely precluded

appellants from voting, Goosby v. Osser dem-

onstrates that McDonald v. Board of Elections

is not controlling 14

II. New York’s absentee voting provisions are un-

constitutional under any standard of review 17

Ill. New York has not demonstrated that appel-

lants’ confinement necessarily precludes vot-

ing by absentee means or by paper ballot and

hence New York must provide the means to

protect that fundamental right 19

IV. New York has imposed an unlawful financial

test for voting by denying the franchise to

pre-trial detainees who cannot post bail

Page

Conciusion. For the reasons stated, the judgment

appealed from should be reversed ..........-...-.---- 27

CITATIONS.

Cases:

Boddie v. Connecticut, 401 U. S. 371 (1971) ............ 25, 26

Brenneman v. Madigan, 343 F. Supp. 128 (N. D.

Cal. 1972)

Bullock v. Carter, 405 U. S. 134 (1972) .-........... 12, 13, 14,

25, 26

Carrington v. Rash, 380 U. S. OP CR vicsieclece 12

Cipriano v. City of Hauma, 395 U. S. 701 (1969) ...... 12

City of Phoenix v. Kolodziejski, 399 U. S. 204 (1970) 12

Coffin v. Reichard, 143 F. 2d 443 (6th Cir. 1944),

cert. denied, 325 U. S. 887 (1945) -................... 10, 19

Cooper v. Pate, 378 U. S. 546 (1964) 20

Dahnke-Walker Mill Co. v. Bondurant, 257 U. S.

282 (1921) 2

Dunn v. Blumstein, 405 U. S. 330 (1972) .... 9, 11, 12, 13, 22

Evans v. Cornman, 398 U. S. 419 (1970) ................... 12

Goosby v. Osser, 409 U. S. 512 (1973) -... 8,9, 11, 14, 15, 16

Hamilton v. Lowe, 328 F. Supp. 1182, 1191 (L. D.

Ark. 1971) 23

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

(1964) 11, 12, 22, 3%

Se ber roe te <1

iv.

Page

Jackson v. Godwin, 400 F. 2d 529 (5th Cir. 1968) 20, 21

Johnson v. Avery, 393 U. S. 483 (1969) -.....--.---------- 10, 20

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

707 (N. D. Ohio 1971), aff'd sub nom. Jones

v. Metzger, 456 F. 2d 854 (6th Cir. 1972) -...- 23

Kramer v. Union Free School District No. 15, 395

U. S. 621 (1969) 2 12

Love v. Hughes, Civ. No. 72-1081 (N. D. Ohio, filed

Oct. 27, 1972) 10, 20, 24, 25

McDonald v. Board of Elections, 394 U. S. 802

(1969) 8, 9, 10, 11, 14, 16, 22, 24

O’Brien v. Skinner, 31 N. Y. 2d at 331 -..........-.-...----- 12, 22

Oswald v. Sostre, 405 U. S. 978 (1972) 20

Police Dept. of Chicago v. Mosley, 408 U. S. 92, 101,

n. 8 (1972) 13

Powell v. Alabama, 287 U. S. 45 (1932) -...........-.-.---- 26

Price v. Johnston, 334 U. S. 266 (19) .........-..-------- 20, 24

Reynolds v. Sims, 377 U. S. 533 (1964) -..............---- 12, 21

Rosario v. Rockefeller, U. S. , 36 L. Ed.

2d at 6 8, 9, 11, 12, 16, 17

San Antonio Ind. School Dist. v. Rodriguez,

U.S. , 96 L. Ed. 24 16 (1978) >. 12

Seale v. Manson, 326 F. Supp. 1375 (D. Conn. 1971) 19

Sewell v. Pegelow, 291 F. 2d 196 (4th Cir. 1971) -..... 19

Vv.

Page

Sostre v. McGinnis, 442 F. 2d 178 (2d Cir. 1971),

cert. denied, Oswald v. Sostre, 405 U. S. 978

(1972) 19, 20

Walker v. Blackwell, 411 F. 2d 23 (5th Cir. 1969) .... 20

Washington v. Lee, 263 F. Supp. 327 (M. D. Ala.

1966), aff’d per curiam, 390 U. S. 333 (1968) 20

Williams v. Illinois, 394 U. S. 235 (1970) -................. 12, 25

Williams v. Rhodes, 393 U. S. 23 (19) ..........---------- 12, 21

Wright v. McMann, 460 F. 2d 126 (2d Cir. 1972),

cert. denied, 34 L. Ed. 2d 141 (1972) .............. 19, 20

New York State Constitution:

Art. I,

§1 23

§3 23

CS omen 23

§5 23

New York State Evection Law:

§117 2,3

§117-a 2, 3,4

$152 .... 23

§153-a 2,3, 4,18

OTHER New York State Statutes:

Correction Law:

Pens “Law:

§195.00(1) 18

Page

Minimum Standards and Regulations, promulgated

by N. Y. State Commission of Correction,

7 NYCRR:

§5100.5 24

§5100.6(b) 24

§5100.7(a) and (b) 24

In THE

Supreme Court of the United States

October Term 1972.

No. 72-1058.

———=>_

Epwarp F. O’Brien, et al.,

Appellants,

v.

Apert Skinner, Sheriff, Monroe County, et al.,

Appellees.

AppeaL From THE Court oF APPEALS OF THE STATE OF

New York.

— oo

BRIEF FOR APPELLANTS.

Opinions Below.

The opinion of the New York Court of Appeals (J.S.

24-28) is reported at 31 N. Y. 2d 317, 338 N. Y. Supp.

2d 890, 391 N. E. 2d 134 (1972). The opinion of the

Appellate Division of the Supreme Court, Fourth Depart-

ment (J.S, 22-23) is reported at 40 A. D. 2d 942, 337

N. Y. Supp. 2d 700 (1972). The opinion of Supreme

Court, Monroe County (Blauvelt, J.) (J.S. 18-21) has

not been reported.

Jurisdiction.

The judgment of the New York Court of Appeals was

entered November 3, 1972 (J.S. 29-31). Notice of Ap-

2

peal was served November 3, 1972 and filed November 9,

1972 (J.S. 35-36). The appeal was docketed January 31,

1978. Probable jurisdiction was noted May 7, 1973. The

jurisdiction of this Court rests on 28 U.S.C. § 1257(2).

Dahnke-Walker Mill Co. v. Bondurant, 257 U. S. 282

(1921).

Questions Presented.

The Court of Appeals of New York has denied all re-

quests by pretrial detainees and misdemeanants for a

means to vote in person and has construed the New York

absentee voting provisions (N. Y. Election Law §§ 117

(6), 117-a, 153-a) as barring persons confined in prison

in the county of their legal residence from voting by °

absentee means. The absentee provisions extend the

right to vote to persons confined because of a medical

disability and to numerous persons absent from the

county of their legal . residence, presumably ineluding

persons confined in a prison located outside the county

of their legal residence. The questions presented are:

1. Whether this unequal treatment is repugnant to

the Equal Protection Clause of the Fourteenth Amend-

ment in the absence of a state interest of such overriding

importance that the right to vote must give way.

2. Whether the absolute denial of a means by which -

pretrial detainees and misdemeanants may vote. violates

the Due Process and Equal Protection Clauses of the

Fourteenth Amendment as an impermissible consequence

of their state-imposed confinement.

Statutes Involved.

The pertinent parts of N. Y. Election Law §§ 153-a

and 117-a (McKinney Supp. 1972) are printed at J.S.

1972).

uh Ro Ne BARRENS DRESS EMER LIM LS, Fine D0 RTE, IC AARE ENT. at "LS TNR LI

3

37-47. The pertinent parts of N. Y. Election Law § 117

(McKinney Supp. 1972) are printed as an appendix to

this brief.

Sratemnant of the Case.

The operation of New York’s statutory scheme regulating

absentee ‘participation in the electoral process.

New York has provided that, when qualified voters are

unable to be physically present at the polls, they may

nevertheless participate in the electoral process pursuant

to a system of absentee registration and absentee voting.

In order to qualify for absentee participation in the

electoral process in New York, otherwise qualified voters

must demonstrate either:

(1) that they are unable to appear personally at the

polls because. of confinement at home or in a hos-

pital or institution (other than a mental institution)

because of illness or physical disability;* or

(2) that they are unable to appear personally for

~* yregistration because their duties, occupation or

business require thém to be outside the county of

their residence,’ or that they expect in good faith

to be absent from the county of their residence

by reason of federal service, education, duties,

occupation, business or vacation.®

Persons seeking absentee participation in the electoral

process because of illness or physical disability must

IN. Y. Election Law, §§153-a(1); 117-a(1) (McKinney Supp.

2N. Y. Election Law, §153-a(1) (McKinney Supp. 1972).

8N. Y. Election: Law, §117(6) (McKinney Supp. 1972).

Reicks ses

4

present a medical certificate attesting to their physical -

inability to register or to vote in person. 2

Persons seeking absentee participation in the electoral

process because their “duties, occupation or business” re-

quire them to be outside their county of residence must

submit a sworn affidavit describing the facts which will

cause their absence.*

Thus, New York has provided a comprehensive and

effective scheme to insure that otherwise qualified voters

retain the ability to vote despite their inability to appear

at the polls. Unfortunately, however, qualified voters

who cannot physically appear at the polls because they

are confined to penal institutions awaiting trial or serving

a misdemeanor sentence are excluded from New York’s

statutory scheme as a result of the construction placed

on the statute by the New York Court of Appeals in this

action. That court reasoned that confinement to a penal

institution did not constitute a “physical disability” under

Election Law, §§117-a and 153-a, because the statute re-

quired a medical certificate attesting to the inability of

the voter to appear personally. The issue posed by this

ease is whether New York may single out this “disfavored

class” of otherwise qualified voters and deny them access

to the ballot.

Statement of Facts.

Appellants are 72 otherwise qualified voters who, dur-

ing the fall of 1972, were confined to the Monroe County

“Since appellants are confined in Monroe County—the county

of their residence—they were not permitted to apply for ab-

sentee participation under this provision. Presumably, those

inmates incarcerated in prisons outside the county of their’ resi-

dence would qualify for absentee ballots under the New York

statute.

5

Jail as pre-trial detainees unable to post bond or as

misdemeanants serving sentences for minor offenses (A. —

lla). ‘

Commencing in August, 1972, the League of Women

Voters (“the League”), acting on behalf of appellants,

repeatedly sought to evolve a procedure which would

permit appellants to participate in the electoral process

(A. 5a, 18a-23a). :

First the League unsuccessfully sought to persuade

the County Sheriff and the Monroe County Board of

Elections to establish a mobile voter registration unit at

the County Jail pursuant to a program of, mobile regis-

tration under way throughout New York State® (A. 17a- |

18a).

Second, when its request for a mobile registration unit

was denied, the League unsuccessfully urged that ap-—

pellants be physically transported, under guard, to an

appropriate polling place for registration and voting

(A.*22a-23a). ‘

Third, the League—customarily assists qualified voters

in obtaining absentee ballots—requested the Commis-

sioners of Election for Monroe County (“Commissioners”)

to provide appellants with application forms for absentee

registration and voting (A. 20a). The Commissioners

refused on the grounds that incarceration in a penal in-

stitution did not constitute a physical disability within

the meaning of New York absentee registration and

ballot laws (A. 20a).

‘New York’s mobile registration process is described in

Bishop v. Lomenzo, F. Supp. (E.D.N.Y. 1972). The

League was successful in establishing a mobile registration unit

at the Erie County Jail in Buffalo.

Finally, the League prepared and distributed to ap-

pellants application forms on which each appellant re-

cited his residence and his desire to register* and vote

(A. 2la-22a; A. 25a-28a). The Sheriff's department as-

sisted in distributing and collecting these application

forms’ (A. 22a). The League thereupon delivered the

applications to the Commissioners on October 10, 1972,

the last day for registration (22a).

In spite of these applications, the Commissioners ad-

hered to their position, first, that they were under no

duty to permit appellants to register or to vote in person,

and, second, that appellants did not qualify for absentee

participation in the electoral process.

On October 11, 1972, appellants commenced a proceed-

ing® seeking an order directing the Sheriff and the Com-

missioners to provide means for registration and voting

in person, either at the jail or at the established places

of registration and voting, or, in the alternative, directing

the Commissioners to permit appellants to file applica-

tions for absentee registration and balloting and to com-

plete such registration and to provide such ballots to

those appellants found to be otherwise eligible to vote

‘*Five appellants had been previously registered in Monroe

County and sought only absentee ballots.

"The Sheriff’s assistant informally indicated that his de-

partment had no objection to permitting absentee registration

and voting forms to reach prisoners qualified to vote (A. 22a-23a).

‘The proceeding was brought as a ‘‘summary proceeding”’

authorized by New York Election Law, §331; N. Y. CPLR 401

et seq., and N. Y. CPLR 7801 et seq. The procedure is akin to

a motion for summary judgment with an immediate trial of dis-

puted factual issues. N. Y. CPLR 409(b). (MeKinney, 1964) ;

1 Weinstein-Korn-Miller, N. Y. Civ. Prac., 409.03 (1972 Supp.) ;

22 Carmody-Wait 2d, N. Y. Prac. §137:2 (1966).

7

(A. 5a-8a, lla-l6a). In their verified petition and sup-

porting affidavit, appellants alleged that (a) they had*

legal residences in Monroe County; (b) were eligible to

vote ;* (c) were confined in Monroe County Jail awaiting

trial and unable to post bail or serving sentences im-

posed following misdemeanor convictions; and (d) had

exhausted administrative channels of relief that would

permit registration and balloting in person or by absentee

means (A. 12a-13a). As an alternative to their plenary

requests for relief under state law, appellants asserted

that, if the absentee provisions were construed to exclude

them, and if they were absolutely unable to register and

vote in person, those provisions were invalid under the

Fourteenth Amendment (A. 13a, 21a).

Although appellees initially made a general denial of

the matters alleged in the petition (A. 29a), they sub-

sequently conceded the material facts and have relied

exclusively upon the contention that appellants’ requests

for absentee voting and other forms of relief were prop-

erly denied because state law imposed no duty on ap-

pellees to provide any of the means of voting proposed

by appellants.

The New York Supreme Court (Monroe County) and

the Appellate Division, Fourth Department, of the Su-

preme Court construed the New York absentee registra-

tion and balloting provisions to apply to appellants since

they were “unable to appear because of physical dis-

ability.” 40 A. D. 2d 942. On November 3, 1972, the

New York Court of Appeals reversed that determination

in an opinion concurred in by five of the seven judges.

*Counsel for appellees advised the trial court that he was

informed that some of the named appellants had felony con-

vietions. He therefore properly reserved the right to have the

Board of Elections review the elegibility of appellants on a

case by case basis if a means of voting were to be provided.

8

The majority of the Court of Appeals “reject[ed] out

of hand” all methods of registration and voting in person

and construed the absentee provisions of the New York

Election Law to apply only to persons “medically dis-

abled by reason of some malady or other physical im-

pairment,” but not to persons confined in a penal in-

stitution. 31 N. Y. 2d at 319. The Court of Appeals

further held that the absentee statutes, as so construed

and applied, were not repugnant to the Fourteenth

Amendment because “these handicaps * * * are functions

of attendant impracticalities or contigencies, not legal

design.” 31 N. Y. 2d at 321. Chief Judge Fuld dis-

sented on the grounds that the Election Law could and

should be construed to permit appellants to vote by

absentee means. Judge Burke concurred in Chief Fuld’s

dissent and added that “any construction of the Election

Law effectively precluding [appellants] from exercising

their rights to register and vote is also a violation of the

equal protection guarantees of the United States Con-

stitution.”

Appellants filed a notice of appeal, unsuccessfully

sought a stay from Judge Scileppi of the New York

Court of Appeals, and on November 4, 1972, filed an

application with Mr. Justice Marshall for provisional

relief that would protect their right to vote pending

appeal. On November 6, 1972, Mr. Justice Marshall

denied their application on the grounds that “effective

relief cannot be provided at this late date.” 409 U. S.

1240, 1242 (1972). Probable jurisdiction was noted on

May 7, 1973.”

The questions raised are not moot even though the election

has been held and the named appellants are no longer confined

in jail. Goosby v. Osser, 409 U. S. 512, 514 n. 2 (1973) ; Rosario

v. Rockefeller, U.S. 36 L. Ed. 2d 1, 6 n. 5 (1973); Me-

Donald v. Board of Elections, 394 U. S. 802, 803 n. 1 (1969).

See Jurisdictional Statement, pp. 15-16.

9

Summary of Argument.

1. New York may not absolutely disenfranchise appellants

while it selectively extends the franchise to other

qualified voters similarly unable to appear in person.

It is well established that statutory classifications that

absolutely disenfranchise a class of citizens must be

evaluated under the most stringent equal protection stand-

ard. Dunn v. Blumstein, 405 U. S. 330, 336 (1972). Be-

cause New York has refused all of appellants’ requests

for a means of voting in person, the statutory classifica-

tions that further deny them the right to vote by absentee

means, while granting the right to vote to other qualified

voters confined and unable to appear in person, are re-

pugnant to the Fourteenth Amendment unless the classi-

fications advance a compelling state interest by the least

drastic means. Compare Goosby v. Osser, 409 U. S. 512

(1973), with McDonald v. Board of Elections, 394 U. S.

802, 807-08 (1969). No such compelling state interest

has ever been suggested. oe

2. New York’s absentee voting provisions are unconstitu-

tional under any standard of review.

This Court has ruled that even those restrictions on the

franchise which fall short of an absolute prohibition may

be “so severe as to constitute an unconstitutionally oner-

ous burden on the * * * exercise of the franchise.”

Rosario v. Rockefeller, 8 6», i Se Se

(1973). New York's statutory scheme discriminates

against appellants on grounds that are wholly arbitrary.

The statutory classification between qualified voters medi-

cally disabled and qualified voters judicially disabled is

both unrelated to whether the voters in question are

able to appear in person and unrelated to any reasonable

0 C7 pRBEY deg

10

state interest of sufficient importance to override the right

to vote. The state justifications found sufficient in Mc-

Donald v. Board of Elections, 394 U. S. 802, are inap-

plicable when appellants are denied all means of voting

in person. Therefore, the discrimination against appel-

lants is repugnant to the Fourteenth Amendment under

any standard of review.

3. New York has not demonstrated that appellants’ con-

finement necessarily precludes voting by absentee

means or by paper ballot; accordingly, that con-

finement does not justify the compromise of the

fundamental right to vote.

It is now familiar law that “a prisoner retains all the

rights of an ordinary citizen except those expressly, or

by necessary implication, taken from him by law.” Cof-

fin v. Reichard, 143 F. 2d 448, 445 (6th Cir. 1944), cert.

denied 325 U. S. 887 (1945); see, also, Johnson v. Avery,

393 U. S. 483, 486 (1969). The New York court in this

proceeding has expressly acknowledged that New York

law does not take Pate eae from pretrial detainees

and misdemeanants. e necessary implications of state-

imposed confinement do not compromise the right to

vote, because that right may be protected by absentee

means or by paper ballots and ballot boxes in prison.

Love v. Hughes, Civ. No. 72-1081 (N. D. Ohio, filed Oct.

27, 1972). Prison officials are fully competent to protect

this fundamental right to vote in the same manner that

they protect prisoners’ rights to practice their religion,

use postal facilities, obtain health care, and confer with

counsel.

11

4. New York has imposed an unlawful financial test for

voting by denying the franchise to pre-trial detainees

who cannot post bail.

Since Harper v. Virginia Board of Elections, 383 U. 8S.

663 (1966), this Court has absolutely forbidden the states

from conditioning access to the ballot upon the payment

of any “tax.” In New York, persons awaiting trial who

are financially able to post bond are freely permitted to

vote, while persons identically situated, who are finan-

cially unable to post bond, are denied access to the

franchise. Such a “squalid discrimination” based solely

upon wealth is unconstitutional.

ARGUMENT.

I.

New York may not absolutely disenfranchise appel-

lants while it selectively extends the franchise to other

qualified voters similarly unable to appear in person.

A. The classifications in the absentee voting provisions are

unconstitutional unless they are necessary to advance

a compelling state interest.

A long line of decisions by this Court establishes be-

yond dispute that statutory classifications that absolutely

disenfranchise a class of citizens must be evaluated un-

der the most stringent equal protection standard. Dunn

v. Blumstein, 405 U. S. 330, 336 (1972); compare Goosby

v. Osser, 409 U. S. 512 (1973), with McDonald v. Board of

Elections, 394 U. S. 802, 807-08 (1969). See Rosario v.

Rockefeller, U.S. , 36 L. Ed. 2d 1, 6 (1973). The

right to equal treatment in the voting process is a funda-

Test 0 Sg rte y ee oer ie FAs

12

mental, personal right, a right essential to citizenship in

a free and democratic society. Dunn v. Blumstein, 405

U. S. 330, 336; Reynolds v. Sims, 377 U. S. 533, 562

(1964). As the Court observed in San Antonio Inde-

pendent School District v. Rodriguez, U. S. » 36

L. Ed. 2d 16, 43, n. 74 (1973), “[t]he constitutional

underpinning of the right to equal treatment in the voting

process can no longer be doubted * * *.” Although a

denial of the right to vote is always taken seriously,

it is taken more seriously when, as here,-a state dis-

criminates against a disfavored class, a class hoth “po-

litically disconnected and financially disabled.” O’Brien

v. Skinner, 31 N. Y. 2d at 331 [Burke, J., dissenting];

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

(1964); Bullock v. Carter, 405 U. S. 134 (1972); ef. Wil-

liams v. Iinois, 394 U. S. 235, 241 (1970).

By applying these principles this Court has struck

down state statutes which, as Mr. Justice Stewart ob-

served in Rosario v. Rockefeller, 36 L. Ed. 2d at 6, “totally

denied the electoral franchise to a particular class of

residents, and there was no way in which the members

of that class could have made themselves eligible to vote.”

FE. g., Carrington v. Rash, 380 U. S. 89 (1965): Kramer

v. Union Free School District No. 15, 395 U. S. 621

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

Evans v. Cornman, 398 U. S. 419 (1970); City of Phoenix

v. Kolodziejski, 399 U. S. 204 (1970): Damn v. Blum-

stein, 405 U. S. 330 (1972). Thus, it is firmly established

that a state may not absolutely preclude a class of citizens

from exercising the franchise unless it can demonstrate

a competing right of such substantial and overriding im-

portance that the right to vote must necessarily give

way.

This Court has articulated three tests for the judicial

serutiny of a state’s claim of sufficient justification for

13

the invasion of a fundamental right: (1) the state’s

goals must be of compelling importance; (2) its means

must be closely related to those goals and may not un-

necessarily burden or restrict the fundamental right; and

(3) the state’s claim must involve an element of neces-

sity, not mere speculation about possible evils to which

the classifications may be related. Dunn v. Blumstein,

405 U. S. at 343; Bullock v. Carter, 405 U. S. at 145;

Police Dept. of Chicago v. Mosley, 408 U. S. 92, 101, n. 8

(1972). It is against these tests that New York’s in-

terests must be measured.

B. Appellants have been disenfranchised under a statutory

classification that is unrelated to the purposes of

absentee voting and that does not serve any com-

pelling state interest.

New York has absolutely disenfranchised pretrial de-

tainees and misdemeanants, although both classes are

qualified voters under state law, by means of an irrational

distinction between persons confined for medical reasons

and persons confined and unable to appear in person for

voting because of a “judicial disability.” There are, we

submit, no compelling reasons for denying the right to

vote to persons “judicially disabled,” while extending that

right to other persons confined and unable to appear in

person. Nor is there any compelling reasén for denying

appellants the franchise when New York has extended

‘absentee voting to persons absent from the county of their

residence because of federal service, attendance at an

institution of learning, or because of duties, occupation,

business or vacation. To the extent that any state in-

terests are at all related to the statutory classifications,

they may be adequately served by “*** other, reason-

able ways * * * with a lesser burden on constitutionally

protected activity * * *.” Dunn v. Blumstein, 405 U. S.

at 343.

Pe ate ae ees Te

NGL rscoad Li eet ena

14

New York has suggested no compelling interest that is

sufficient to justify the denial of appellants’ right to vote.

Goosby v. Osser, 409 U. S. 512 (1973), demonstrates that

New York’s reliance of McDonald v. Board of Elections,

394 U. S. 802 (1969), is entirely misplaced. This record

conclusively shows, unlike the record in McDonald, that

New York has absolutely precluded appellants from voting.

Accordingly, New York must show much more than a

state interest that will justify an incidental burden on

the right to vote; it must demonstrate that. it has suf-

ficient grounds for absolutely precluding a class of citi-

zens from voting. New York’s failure to even suggest a

compelling state interest renders its position untenable.

C. Because New York has absolutely precluded appellants

from voting, Goosby v. Osser demonstrates that Mce-

Donald v. Board of Elections is not controlling.

The decision of the New York Court of Appeals leaves

appellants, and all other persons hereafter similarly situ-

ated, with no means of registration and balloting. Al-

though appellants have sought relief through the available

administrative channels and have asked the state courts

to frame a decree that would provide any means of voting,

their requests have been deniéd and their petition dis-

missed.

Under these cireumstances, the New York Court of

Appeals was clearly mistaken in its reliance on McDonald

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

illustrates the narrow exception to the general rule re-

quiring strict judicial scrutiny of classifications affecting

the right to vote. The exception is applicab‘e when the

classification imposes no more than an “incidental bur-

den” on the right to vote. Bullock v. Carter, 405 U. S.

134, 143 (1972) [citing McDonald for the proposition that

15

incidental burdens on the exercise of voting rights are

not subject to the strict standard of review].

This court’s decision in Gooshy v. Osser demonstrates

that McDonald does not support the unqualified proposi-

tion that the denial of absentee ballots has no impact on

a pretrial detainee’s exercise of the franchise." In Mc-

Donald-the Court was constrained to assume that the II-

linois detainees could vote in person since they had not

demonstrated that Illinois would foreclose alternative

' means of voting. 394 U. S. at 807-08, n. 6 and 7 at 808,

and 809; see Goosby v. Osser, 409 U. S. at 519-21. Thus,

the Court.in McDonald contrasted the presumably sur-

mountable burdens imposed on the Illinois detainees with

the absolute barriers confronting persons medically dis-

abled (394 U. S. at 809):

Since there is nothing to show that a judicially

incapacitated, pretrial detainee is absolutely pro-

hibited from exercising the franchise, it seems quite

reasonable for Tllinois’ Legislature to treat dif-

ferently the physically handicapped, who must,

after all, present affidavits from their physicians at-

testing to an absolute inability to appear person-

ally at the polls in order to qualify for an absentee

ballot.

It is, indeed, ironic that McDonald has heen advanced in

support of the absolute denial of appellants’ franchise

1The New York court relied on McDonald for its statement

that the absentee provisions ‘‘have no direct impact on [appel-

lants’] right to vote.’’ As long as 1939, however, Mr. Justice

Frankfurter, writing for the court in Lane v. Wilson, 307 U. 8.

268, 275 (1939), held that the constitution forbids ‘‘onerous pro-

cedural requirements which effectively handicap exercise of the

franchise * * * although the abstract right to vote may remain

unrestricted * * *.” The New York court’s conclusion in the

instant case leaves appellants with a “right” that they cannot

exercise and in yo different position than if that “right” had

been denied.

FP ae ee ee ee

Pw)

16

when the Court there took such pains to state that it

could not presume that Illinois would deny alternative

means of voting because that denial would have clear

constitutional implications.

In Goosby the Court found the challenge by the Penn-

sylvania detainees to be in “sharp contrast” to the chal-

lenge in McDonald because the Pennsylvania detainees

alleged that means of voting in person had been denied.

409 U. S. at 522. Although holding no more than that

“McDonald does not ‘foreclose the subject’ * * *” (409

U. S. at 522), the Court followed the general rule that

the incidental burden exception applied in McDonald has

no place when it is demonstrated that a class of citizens

is absolutely precluded from voting. See also, Rosario v.

Rockefeller, 36 L. Ed. 2d at 6-7. Goosby also departs

from McDonald’s statement that a legislature need not

“strike at all evils at the same time.” See McDonald v.

Board of Elections, 394 U. S. at 809, 811. McDonald,

we submit, applied the traditional presumption that a

legislature has acted constitutionally and deferred to re-

form legislation only as part of the traditional equal pro-

tection test applicable when the burdens on voting are

merely incidental. The rule is quite clear that a higher

standard of judicial scrutiny is appropriate when it has

been demonstrated that the right to vote is at stake.

%

This record demonstrates, in “sharp contrast” to Mc-

Donald, that New York is claiming the right to absolutely

deny the exercise of the franchise by one class of quali-

fied voters. That claim may not be upheld because New

York has no “compelling state interest” that justifies the

challenged disenfranchisement.

17

Il.

New York’s absentee voting provisions are unconstitu-

tional under any standard of review.

Even where a statutory classification does not abso-

lutely disenfranchise a class of citizens, the restrictions

upon the exercise of the franchise may be. “so severe as

to constitute an unconstitutionally onerous burden on the

* * * exercise of the franchise.” Rosario v. Rockefeller,

36 L. Ed. 2d at 8. Under that standard of review, the

particular limitation or burden is reasonable only if it

is “tied to a particularized legitimate purpose, and is in no

sense invidious or arbitrary.” Rosario v. Rockefeller, 36

L. Ed 2d at 9. New York’s absentee voting provisions

are unconstitutional even under the standard of ‘review ap-

plied in Rosario because the classification denying the

franchise to pretrial detainees and misdemeanants is in-

vidious, unreasonable and arbitrary.

The state interests identified in McDonald as plausible

justification for the classification are no longer adequate

when appellants are denied all means of voting in person.

In McDonald this Court sustained the denial of absentee

ballots to persons judicially incapacitated hecause on that

record it appeared merely more difficult for such persons

to vote in person while persons medically disabled were

absolutely unable to appear. That supporting reason has

no application where, as established here, neither class

can vote by means other than absentee ballots. Nor can

the McDonald justification for the ‘discrimination against

persons incarcerated within their counties of residence,

as contrasted to those absent from their counties of resi-

dence, be applied when in-county inmates are absolutely

precluded from voting. The hypothetical evil that “local

officials might be too tempted to try to influence the

ae

18 *

local vote of in-county inmates” (394 U. S. at 810)>>

ean be cured by a number of less drastic means directed

to the conduct of local officials. See, e. g. N. Y. Cor-

rection Law §500 (McKinney 1968); N. Y. Penal Law

§195.00(1) (MeKinney 1967); 7 NYCRR $5100.18 (1972).

New York, rather than providing a reasoned argument

in. support of the statutory discrimination, has merely

labeled it a “function of attendant impracticalities or con-

tingencies® [of state-imposed nent * 3L M& Y. 2d

at 321. These attendant conti T ttached to state-

imposed confinement, however, must themselves be strictly

scrutinized to determine whether they unnecessarily com-

promise fundamental rights. See Point III, infra. More-

over, the fact of confinement merely means that a quali-

fied voter is absolutely unable to appear in person for

voting. It does not ‘tlistinguish persons confined by rea-

son of medical disability from those confined as pretrial

detainees or misdemeanants. .

In-county prisoners could, we submit, use precisely the

same procedures to vote by absentee means as do medi-

cally confined voters: a request by mail by the qualified

voter for an application, or a request in person on be-

half of the person confined (N. Y. Election Law, §153-a

{4]); the completion of the application, and its return by

mail, accompanied by a certificate of the administrative

head of the institution; ‘a determination by the board of

elections as to whether the applicant is unable to appear

personally and whether he legally qualifies to register

“If we correctly understand the opinion of the Court of

Appeals, the “‘contingencies’’ are merely a‘ set of facts includ-

ing the state-imposed confinement, the inability to post bail (for

detainees), the administrative and judicial denial of appellants’’

requests for the means to vote in person, and the construction

of the absentee provisions to exclude persons confined in jail.

The New York court has, we believe, avoided the constitutional

question by merely restating the cireumstances in which it arose.

19

and vote; and the mailing, completion’ and return of the

ballot. Pretrial detainees and misdemeanants have the

right to receive and transmit mail. (Sostre v. McGinnis,

442 F. 2d 178, 199-200 (2d Cir. 1971), cert. denied, Os-

wald v. Sostre, 405 U. S. 978 (1972); Wright v. McMann,

460 F. 2d 126 (2d Cir. 1972), cert. denied, 34 L. Ed. 2d

141 [1972]) and their exercise of the franchise by ab-

sentee means involves no greater burden on jail admin-

istrators than that involved in routine correspondence be-

tween the prisoner and his attorneys or other public of-

ficials: The sheriff’s department has, in fact, informally

expressed willingness to permit absentee means of vot-

ing (A. 22a).

Therefore, appgllants submit that the absentee voting

provisions, with the, invidious discrimination between

claSses of qualified voters unable to appear in person, are

repugnant to the equal protection guarantees of the United

States Constitution under any standard of review.

New York has not demonstrated that appellants’ con-

finement necessarily precludes voting by absentee

means or by paper ballot and hence New York must

provide the means to protect that fundamental right.

It is now familiar law that “[a] prisoner retains all

the rights of an ordinary citizen except those expressly,

or by necessary implication, taken from him by law.”

Coffin v. Reichard, 143 F. 2d 443, 445 (6th Cir. 1944),

cert. denied, 325 U. S. 887 (1945): See Sewell v. Pegelow,

291 F. 2d 196, 198 (4th Cir. 1961): Seale v. Manson, 326

F. Supp. 1375, 1379 (D. Conn. 1971). Tt is equally in-

disputable that lawful imprisonment does not remove de-

20 .

tainees or misdemeanants from the protection of the Four-

teenth Amendment:

ad Although it is true that “lawful incarceration

brings about the necessary withdrawal or limitation

of many privileges and rights, a retraction justified

by the considerations underlyi ing our penal system,”

it is well established that prisoners do not lose all

their constitutional rights and that the Due Proc-

ess and Equal Protection Clauses of the Four-

teenth Amendment follow them into prison and pro-

tect them there from unconstitutional action on

the part of prison aythorities carried out. under

color of state law. ;

Washington v. Lee, 263 F. Supp. 327, 331 (M. D.

Ala. 1966) [quoting from Price v. Johnston, 334

U. S. 266, 285], aff'd. per curiam, 390 U. S. .333

(1968); see, Johnson v. Avery, 393 U. S. 483, 486

(1969); Cooper v. Pate, 378 U. S. 546 (1964).

Under these principles the courts have held that a state

may not, subject to limited exceptions, deny a prisoner's

First Amendment rights to receive and transmit mail,

read newspapers and periodicals, and practice his religion.

Cooper v. Pate, 378 U.S. 546 (1964); Sostre v. McGinnis,

442 F. 2d 178, 200-201 (2d Cir. 1971), cert. denied, Oswald

v. Sostre, 405 U. S. 978 (1972); Wright v. McMann, 460

F. 2d 126 (2d Cir. 1972), cert. denied, 34 L. Ed. 2d 141

(1972); Walker v. Blackwell, 411 F. 2d 23 (Sth Cir. 1969);

Jackson v. Godwin, 400 F. 2d 529, 533, 541 (Sth Cir. 1968).

Similarly, New York may not deny its otherwise qualified

prisoners the ability to exercise their most fundamental

right. Just as access to the courts is a fundamental right

which prison officials may not curtail, so access to the bal-

lot is entitled to similar protection. Compare Johnson v.

Avery, 393 U. S. 483 (1969) with Love v. Huahes, Civ. No.

72-1081 (N. D. Ohio, filed Oct. 27, 1972).

i sence

)

21

In evaluating the claim by prison officials that a par-

ticular right must give way to the necessary implications

of prison life, the courts have stated that

rigid scrutiny must be brought to bear on the justi-

fications for encroachments on [fundamental] rights.

The state must strongly show some substantial and

controlling interest which requires the subordina-

tion or limitation of these important constitutional

rights, and which justifies their infringement [cita-

tions omitted] and in the absence of such compel-

ling justification the state restrictions are imper-

missible infringements of these fundamental and

preferred rights. [citations omitted. ]

Jackson v. Godwin, 400 F. 2a 029, 541 (Sth Cir.

: 1968).

io

The right to vote“... is a fundamental matter in a free

and democratic society . . . preservative of other basic

civil and political rights... .” (Reynolds v. Sims, 377:

U.S. 533, 561-562), closely related to the right to associate

with the party of one’s choice (See Williams v. Rhodes, .

393 U. S. 23, 30-31), and an integral part of the right to

petition for a redress of grievances. ~New York carries

a heavy burden of justification when appellants’ voting

rights are denied because of state-imposed confinement.

Unless the denial of all means of voting is a necessary,

unavoidable consequence of confinement, New York. may

not discriminate between other qualified voters and ap-

pellants or, more particularly, between (a) those qualified

voters charged with crimes but able to post bail and those

qualified voters similarly charged but finanéially unable

22

to post bail;'* and (b) those qualified voters convicted of

— who have completed their sentences, or

have received suspended sentences or fines, and those qual-

ified voters convicted of misdemeanors who are serving

sentences in a jail in the county of their legal residence.

See Dunn v. Blumstein, 405 U. S. 330, 336 (1972).

Of all qualified voters, prisoners are the only class fore-

ibly restrained by the state from attending the polls in

person, and only the state has the ability to assure that

this restraint will not unnecessarily compromise funda-

mental rights. Accordingly, the state, acting through local

election officials and jail administrators, has a duty to pro-

vide some means for the exercise of appellants’ funda-

mental right to vote, unless it can satisfactorily show that

all means of voting are necessarily precluded because of

the purposes or necessary consequences of the confine-

ment.**

New York has failed to carry its burden of justification.

The only legitimate state purpose served by pretrial de-

tention is to assure the presence of an accused at trial

“The state statutory scheme leaves intact the voting rights

of persons financially able to post bail. That result conditions

the full exercise of the franchise upon weasth, just as surely

as does the poll tax, which was struck down in Harper v. Vir-

ginia Board of Elections, 383 U. S. 663 (1964). Although ap-

pellants rely upon the claim that the right to equal treatment

in voting is a fundamental right, sufficient by itself to require

application of the strict equal protection test, it is surely cor-

rect, as Judge Burke has observed, that the New York scheme

discriminates individiously against the ‘*politically disconnected

and the financially disabled’ (O’Brien v. Skinner, 31 N. Y. 2d

at 321 [dissenting opinion].

“Although this argument was presented in McDonald v.

Board of Elections, 394 U. S. at 808, n. 7, it was not* reached

or decided because the Illinois detainees, unlike appellants here,

had not exhausted state remedies.

99

vu

when he is financially unable to post sufficient money bail

to guarantee his appearance or when he is charged with

committing an offense made non-bailable. This purpose

can hardly be a basis for depriving a presumably innocent

person of not only his liberty but also his fundamental

right to participate in the democratic process, when the

right to vote can so easily be protected. The decisions

involving similar fundamental rights are clearly to the

contrary. Jones v. Wittenberg, 323 F. Supp. 93, 100, 330

F. Supp. 707 (N. D. Ohio 1971), aff'd. sub nom. Jones v.

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

Madigan, 343 F. Supp. 128, 138-40 (N. D. Cal. 1972);

Hamilton v. Lowe, 328 F. Supp. 1182, 1191 (E. D. Ark.

1971).

The New York Court of Appeals has held that New

York law does not deprive a misdemeanant of his right

to vote. 31 N. Y. 2d at 320. New York law, although

expressly disqualifying certain unpardoned felons, does

not disenfranchise misdemeanants; nor does the New York

Legislature have the authority to do so. See N. Y. Elee-

tion Law §152 (McKinney Supp. 1972); N. Y. Const. Art.

ITI, §$1, 3, 4,5 (MeKinney 1969). Accordingly, the New

York Court of Appeals has held that the law does not in-

tentionally impose a forfeiture of the right to vote as a

punitive consequence of a misdemeanor conviction. That

Court found that the right was “independently guaran-

teed,” and that the forfeiture resulted solely as one of

the “attendant impracticalities or contingencies” flowing

from the “fact of inearceration .. . [in the county of

the voter’s legal residence].” 31 N. Y. 2d at 320-321.

Therefore, it is unnegessary to decide whether such a for-

feiture, if imposed by law, would be arbitrary and un-

reasonable. We need only consider whether the fact of

confinement necessarily makes all means of voting so bur-

densome for the state as to justify the absolute denial

of the right to vote.

24

Although we recognize that “{lJawful incarceration

brings about the necessary withdrawal or limitation of

many privileges and rights . . .” (Price v. Johnston, 334

U. S. 226, 287 (1948)), the right to vote is not among the

rights that a misdemeanant or a detainee must necessar-

ily surrender at the jailhouse door. Transporting pris-

oners to places of polling outside the jail may in fact

be disruptive and expensive (31 N. Y. 2d at 319; See

McDonald v. Board of Elections, 394 U. S. at 808 n.

7), but it hardly seems plausible that competent prison

administrators, with the cooperation of the election of-

ficials, would be unable to implement procedures for vot-

ing within the institution. At least one three-judge dis-

trict court has recognized that paper ballots could be

used in prison. Love v. Hughes, Civ. No. 72-1081 (N. D.

Ohio, filed Oct. 27, 1972). And in the instant case the

Sheriff's assistant, apparently seeing no insurmountable

problems, was willing to distribute forms for absentee

registration and voting. (A 22). A system of voting using

paper ballots made available to prisoners on election day

would present no greater difficulties than the supervision

of the present absentee system for out-of-county prisoners

or of normal prison routine, inchiding the prisoners’ exer-

cise of the rights to practice their religion, use the postal

facilities, obtain health care, and confer with counsel. See

minimum standards and regulations, promulgated by N.

Y. State Commission of Correction, 7 NYCRR §§ 5100.5,

9100.6(b), 5100.7(a) and (b), 5100.9, 5100.11 (filed Sept.

25, 1972, eff. Sept. 25, 1972); N. Y. Correction Law $136

(McKinney Supp. 1972). These paper ballots may be

prepared, with no burden on election officials, from the

absentee ballots that are presently made available to

other voters.

Under identical circumstances at least one three-judge

court has held the denial of the right to vote to be un-

constitutional. In Love v. Hughes (N. D. Ohio 1972; No.

25

C€ 72-1081), pretrial detainees and misdemeanants held

in jails in Cuyahoga County raised the same two-pronged

constitutional challenge as that presented here. The

Court ordered county election officials to furnish the de-

tainees and misdemeanants with printed paper ballots

and to furnish sufficient manpower to facilitate voting

at the jails. By so ordering, the Court found it unnec-

essary to decide the constitutionality of the Ohio ab-

sentee provisions excluding prisoners. Appellants sub-

mit that Love v. Hughes accords with sound constitu-

tional theory and has applied a remedy appropriate here.

IV.

New York has imposed an unlawful financial test for

voting by denying the franchise to pre-trial detainees

who cannot post bail.

Person awaiting trial in New York may vote, so long

as they are financially able to post bond. Identically

situated persons who are unable to post bond are totally

disenfranchised. New York's procedure, which erects an

arbitrary financial obstacle between a pre-trial detainee

and access to the ballot, cannot survive constitutional

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

663 (1966); Bullock v. Carter, 405 U. S. 134 (1972); Bod-

die v. Connecticut, 401 U. S. 371 (1971); cf. Williams v.

Illinois, 394 U. S. 235 (1970).

BA SE a

26

In a long series of decisions, this Court has refused

to sanction state procedures which condition access to

fundamental rights upon the wealth of the person in

question.*®

During the forty years since Powell v. Alabama, this

Court has handed down a consistent series of cases to as-

sure that the “majestic equality” of the law, so scorned

by Anatole France, becomes a reality in our legal sys-

tem. Over and over again this Court has emphasized

that access to fundamental rights—such as voting—can-

not be made to depend upon a person’s ability to pay.

New York’s current practice of permitting only those pre-

trial detainees who can afford to post bond to vote effects

precisely the type of “squalid discrimination” between

rich and poor which this Court has systematically sought

to eradicate.

'E.¢., Powell v. Alabama, 287 U. S. 45 (1932); Johnson v.

Zerbst, 304 U. S. 458 (1938); Edwards v. California, 314 U. S.

160, 181, 184 (1941); Griffin v. Illinois, 351 U. S. 12 (1956);

Burns v. Ohio, 360 U.S. 252 (1959); Smith v. Bennett, 364

U. S. 365 (1961); Gideon v. Wainwright, 372 U.S. 335 (1963) ;

Douglas v. California, 372 U. S. 353 (1963); Harper v. Virginia

Board of Elections, 383 U. S. 663 (1966); Roberts v. La Vallee,

389 U. S. 40 (1967); Sniadach v. Family Finance Corporation,

395 U. S. 337 (1969); Boddie v. Connecticut, 401 U. S. 371

(1971) ; Bullock v. Carter, 405 U. S. 134 (1972).

27

CONCLUSION.

For the reasons stated, the judgment appealed from

should be reversed.

Dated: June 29, 1973.

Respectfully submitted,

WILLIAM D. EGGERS,

DAVID N. KUNKEL,

RUTH B. ROSENBERG,

New York Civil Liberties Union,

One Lincoln First Tower,

Rochester, New York 14604

Attorneys for Appellants.

Of Counsel:

Ronatp L. Brown,

Rochester, New York:

Burt NEWBORNE,

Metvin L. Wo tr,

New York, New York.

28

APPENDIX A.

New York Election Law §117.

1. A qualified voter, who, on the occurrence of any gen-

eral election, may be—

a. unavoidably absent from his residence because

he is an inmate of a veterans’ bureau hospital, or

b. unavoidably absent from the county of his

residence, or, if a resident of the city of New

York from said city, because his duties, oecupa-

“tion or business require him to be elsewhere on

the day of election, or

e. absent from the county of his residence, or, if

a resident of the city of New York from said city,

because he is on vacation elsewhere on the day of

election,

may vote as an absentee voter under this chapter.

*

_ 2. A qualified voter desiring to vote at such election

as an absentee voter for the reasons specified in sub-

division one of this section who does not apply for an

absentee ballot under the provisions of subdivision six of

this section and who is not entitled to an absentee ballot

without application under the provisions of section one

hundred nineteen must appear personally before the board

of inspectors of the election district in which he is a quali-

fied voter on one of the days provided by law for local

registration, or before the board of central registration

when said board shall be open for registration or, if such

voter is registered for the next general election, then be-

fore the board of elections not later than the seventh day

29

before such election, and make and verify before such

board his affidavit, setting forth (a) his name and resi-

dence address, including the street and number, if any, or

town and rural delivery route, if any; (b) that he is a

qualified voter of the election district in which he re-

sides; (c) in case he voted at the preceding general elec-

tion, the election district, assembly district if in the city

of New York, town or city, county and state where he so

voted; (d) that he expects in good faith to be—

—unavoidably absent from his residence on the day

of the next general election because he is, or will

be on the day of such election, an inmate of a

veterans’ bureau hospital, specifying it, or

—unavoidably absent from the county of his resi-

dence, or, if a resident of the city of New York

from said city, because his duties, occupation or

business require him to be elsewhere on such

day, or

—absent from the county of his residence, or, if a

resident of the city of New York from said city, be-

cause he will be on vacation elsewhere on such day.

3. a. Where such duties, occupation or business are

of such a nature as ordinarily to require such absence, a

brief description of such duties, occupation or business

shall be set forth in such affidavit.

b. Where such duties, occupation or business are not of

such a nature as ordinarily to require such absence, such

affidavit shall contain a statement of the special circum-

stances on account of which such absence is required.

d. Where a qualified voter expects in good faith to be

absent on the day of the next general election because he

will be on vacation elsewhere on such day, such affidavit

shall also contain the dates upon which he expects to be-

gin and end such vacation, the place or places where he

expects to be on such vacation, the name and address of

his employer, if any, and if self employed, a statement to

such effect.

\

&

6. A qualified voter who expects in good faith to be—

—unavoidably absent from his residence on the

day of the next general election by reason of being

an inmate of a veterans’ bureau hospital, or

—absent from the county of his residence, or’ if a

resident of the city of New York from said city, on

the day of the next general election by reason of

being in federal service, a member of the armed

forces or a student matriculated, or a superintend-

ent or teacher Saployed, at an institution of learn-

ing located outside such county or city, as the case

may be, or

—unavoidably absent from the county of his resi-

dence, or, if a resident of the city of New York

from said city, on the day of the next general elec-

tion because his duties, occupation or business re-

quire him to be elsewhere on such day, or

PS ee ee

—absent from the county of his residence, or, if a

$ resident of the city of New York from said city,

d on the day of the next general election because he

: will be on vacation elsewhere on such day,

satmee

31

may execute the affidavit required of other voters by sub-

divisions two to four inclusive of this section without ap-

pearing before one of the boards named in subdivision

two and may mail or deliver such affidavit to the board

of elections not earlier than the thirtieth and not later

than the seventh day before the election.

7. The affidavit required of a voter entitled to apply ..

for an absentee ballot under the provisionS~ef_subdivision

six of this section may be sworn to or affirmed before

any officer authorized to administer an oath, and if made

by a voter who resides in an election district in which

personal registration is required Shall state that the af-

fiant has registered, given the date of such registration.

9. Printed forms of applications for absentee ballots in

accordance with the requirements of this section shall be

provided by the board of elections. They shall be dis-

tributed only in,the following manner:

(a) an sprint number shall be delivered to each

board of inspectors, with the election supplies required to

he delivered by the provisions of section eighty-six or sec-

tions three hundred sixty-two and three hundred sixty-

three.

(b) an appropriate number shall be retained by the

board of elections for the ‘purpose of furnishing an ap-

plication form to each qualified voter who registers cen-

trally; and

32

(c) an appropriate number shall be retained by the»

board of elections for the purpose of furnishing an ap-

‘plication form to each qualified voter who applies there-

for before the board of elections after being registered

and of mailing an application form to each qualified voter

who is entitled to make such application by mail, pursuant

to the provisions of subdivision seven of this section.

Such application form shall not be furnished to any

person, except as hereinbefore in this subdivision au-

thorized.