Amicus Curiae Brief — O'Brien v. Skinner

tat EPTirars 6.

SUPREME COURT, U. 8.

(140-D)

Suprome Court, U.

FILED

—sHe= 2 1973

IN THE

. : ICHAEL RODAK, JR.CLE

Supreme Court of the United States

‘October Term, 1972

No. 72-1058

EDWARD F. O’BRIEN, et al.,

Appellants,

Vv.

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

Appellees.

APPEAL From THE Court oF APPEALS

oF THE STATE OF NEw YorRK

BRIEF, AMICUS CURIAE, ON BEHALF OF

LOUIS J. LEFKOWITZ, AS ATTORNEY

GENERAL, IN SUPPORT OF APPELLEES

LOUIS J. LEFKOWITZ

Attorney General of the State

of New York

Amicus Curiae in Support

of Appellees

The Capitol

Albany, New York 12224

Ruts Kesster Tocu

Solicitor General

Wruum J. Kocan

Assistant Attorney General

of Counsel

BATAVIA TIMES, LAW PRINTERS,

BATAVIA, RN. Y.

TABLE OF CONTENTS.

a PAGE

SS 1

Interest of the Amicus Curiae ...................... 2

Questions Presented .........0.0.0.0...00.00--0-.. 2

Legislative History of Absentee Voting ............. 3

Decision Below .........0.0000.0 ccc cece cece. 5

Summary of Argument ............................ 7

Argument ....... 0.0.0.0 ce cece cece ee. 8

Point I. New York Election Law, §§ 117, 117-a and

153 should be judged by the traditional standards

of reasonableness and rational relationship to

legitimate State goals ............... ts goes 8

Point II. New York State’s absentee ballot and

registration statutes are a constitutionally valid

exercise of the power of the State ............... 9

Point III. The distinctions made by the New York

absentee provisions are not drawn on the basis of

WOU, oa ocd 354.00 e oder eedervcencwacesu: 13

Conclusion. The order of the Court below should he

Las | 14

CrraTIons.

Bullock v. Carter, 405 U. S. 134 .................... 9

Carbo v. United States, 82S. Ct. 662................

City of Phoenix, Ariz. v. Kolodziejski, 399 U.S. 204... 8

Dandridge v. Williams, 397 U.S.741................ 12

Dunn v. Blumstein, 405 U.S. 330.................... 8

Evans v. Cornman, 398 U.S. 419 ....................

Fidell v. Board of Elections, 343 F. Supp. 913 affd. 409

U.S. 972, 34 L. Ed. 2d 236 .................. 8, 9, 11, 12

Goosby v. Osser, 409 U.S.512....................7) 10

im eR ays eS ae,

BIOTIN RH 41 oe He

II.

PAGE

Katzenbach v. Morgan, 384 U.S. 641 .............. 11,12

McDonald v. Board of Election Comm., 394 U. S. 802 . 8, 3

a,

O’Brien v. Skinner, 31 N Y 2d 317 ............. se eB Fe

Oregon v. Mitchell, 400 U.S. 112 ..........00..0..... 12

Rosario v. Rockefeller, U.S. ___, 36 L. Ed. 2d 1 8,11

San Antonio School Dist. v. Rodriguez, U.S. ___,

' +e ae ee reer 8, 11,13

» Sheils v. Flynn, 252 App. Div. 238 .................. 3

New York State Election Law ;

POERE wert ccee tee tesiky cnaayereekedeeds 1, 3, 4, 5, 8, 10

BE iso eoca cnc aaneneccseexe 1, 4, 5, 7, 8, 10

UO es oS os ews oy ok ewe cb ecess gancns 10

GS chs see iiaddenyverceataeen venue: 1, 2, 4,8, 11

-/ Ill. Ann. Stat. Chap. 46.02.0000. 0c eee.

> Pa. Stat. Ann. Tit.25..................00 10

IN THE

Supreme Court of the United States

October Term, 1972

No. 72-1058

EDWARD F. O’BRIEN, et al.,

Appellants,

v.

ALBERT SKINNER, Sheriff, Monroe County, et al.,

Appellees.

AppraL From THe Court or APPEALS

or THE Strats or New York

BRIEF, AMICUS. CURIAE, ON BEHALF OF

LOUIS J. LEFKOWITZ, AS ATTORNEY

GENERAL, IN SUPPORT OF APPELLEES

Statement

Appellants have appealed to this Court from an order of

the New York State Court of Appeals entered on the deci-

sion herein (31 N Y 2d 317, 391 N.E. 2d 134) which upheld

the constitutionality of the New York State Election Law

(§§ 117, 117-a and 153) which enables certain enumerated

categories of voters to register and vote absentee, but which

makes no provision for absentee registration and voting

hy appellants who are detainees at the Monroe County jail

awaiting trial on various charges or serving sentences on

misdemeanor convictions.

2

Interest of the Amicus Curiae

This brief is filed, amicus curiae, by the Attorney Gen-

eral of New York pursuant to his statutory duty to defend

the constitutionality of State statutes. The position of the

- amicus here is to uphold the right of the State, by the

enactment of what this Court has referred to as “remedial

legislation”, to extend the franchise to those who had pre- | .

viously been uable to exercise it notwithstanding the fact aa

that the legislation may not immediately encompass“all _

classes of persons who might benefit from it.

Questions Presented

The New York State Court of Appeals refused the

appellants’ requests for transportation to polling places or

the establishment of voting facilities at the County jail.

The Court of Appeals further held that New York State

Election Law, §§117-a and 153, pertaining to absentee

voting and registration by several other categories of

voters, were not applicable to the appellants and that the

failure to provide these absentee rights to the appellants

did not deprive them of their equal protection guarantees.

The questions presented are thus:

1. Are the New York State absentee voting and regis-

tration provisions unconstitutional insofar as they do not

provide for absentee voting and registration by appellants

who are incarcerated in a county jail while awaiting trial

or serving sentences as convicted misdemeanants?

2. Have the appellants been denied constitutional rights

because of the absence of absentee registration and voting

statutes of which they might avail themselves?

3

Legislative History of Absentee Voting

A brief sketch of the development of and changes in the

New York Election Law as it relates to absentee voting

demonstrates the evolutionary process which has taken

place. The grant of absentee voting rights has been sys-

tematically extended to various classes of citizens by statu-

tory amendment. Election Law, $117, as recodified in

1909 (chapter 22) and in 1929 (chapter 588) provided ab-

sentee ballots only for those qualified voters who, on the

day of the general election, would be absent from their

county of residence if their “duties, occupation or busi-

ness” so required and provided that such voters would be

elsewhere within the United States. The foregoing re-

quirement was noted in an opinion rendered by the New

York State Attorney General in 1932, wherein it was stated

that there were no provisions for absentee voting and reg-

istration by persons who were crippled and confined to

their homes (1932 Atty. Gen. 114).

Although, in 1934, a Federal employee, whose occupa-

tion took him from his county of residence, was himself

entitled to an absentee ballot without making personal

application therefor, his wife, not being included in the

statutory scheme, was required to apply for the absentee

ballot in person (1934 Atty. Gen. 169). By 1937 “in.

mates of soldiers’ and sailors’ homes” and of “United

States veterans bureau hospitals” were added to the list

of eligibles under section 117 (see Sheils v. Flynn, 252

App. Div. 238, 300 N.Y.S. 536, affd. 275 N.Y. 446, 11 N.E.

2d 1).

In 944 the State Attorney General stated that prior to

the amendment of section 117 by chapter 71 of the Laws of

a,

ee Pe ee

4

1948, an absentee ballot could not be furnished to a Fed-

eral employee rendering service at the United States

‘Embassy in Mexico because the applicant was then re-

quired to be within the territorial limits of the forty-eight

States (1944 Atty. Gen. 370).

In 1956 the New York State Election Law was amended

to provide for absentee voting by qualified voters unable to

appear at the time of the general election because of illness

or physical disability (Election Law,,§ 117-a). Also added

to the Election Law in 1956 was provision for absentee

registration by ill and disabled voters and by those whose

duties, occupation or business require them to be outside

New York State (Election Law, § 153-a [Section 153-a was

repealed and the subject matter reenacted as Section 153

by Laws of 1972, ch. 962, eff. Jan. 1, 1973]).

New York State Election Law, § 117, subd. (1), presently

provides :

“A qualified voter, who, on the occurrence of any

general election, may be—

“a. unavoidably absent from his residence be-

cause 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, occupation 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.”

PS ee

5

Section 117, subd. 4 enables a spouse, parent or child of

a person in any of the above-enumerated categories to

qualify for an absentee ballot “[w]Jhere a person is, or

would be, if he were a qualified voter, entitled to apply for

the right to vote by absentee ballot”.

Section 117-a subd. 1 provides :

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

general election, may be unable to appear personally

at the polling place of the election district in which he

is a qualified voter because of illness or physical dis-

ability, may also vote as an absentee voter under this

chapter; but the right to apply for an absentee ballot

as provided in this section shall not extend to any per-

son having the right to aply for an absentee ballot

under section one hundred seventeen on account of

unavoidable absence from his residence because he is

an inmate of a veterans’ bureau hospital.

Decision Below

Five members of the Court of Appeals joined in holding

that the New York State laws providing for absentee vot-

ing did not violate appellants’ constitutional rights. Chief

Judge Furp and Judge Burke dissented in separate -

opinions.

After rejecting “out of hand” any scheme which would

commit appellees to transporting appellants to a polling

place or which would require polling facilities at the jail,

the Court turned to the questions of whether appellants’

incarceration is a physical disability under Election Law,

§117-a and if not, whether denial of an absentee ballot is

a violation of equal protection of the law. The Court con-

cluded that confinement to a penal institution is not a

physicial disability contemplated by section 117-a.

6

The Court then turned to the equal protection question

‘and stated as follows:

“Nor does the failure to provide these absentee

rights deprive the petitioners of their equal protection

tees. These provisions set forth no voter quali-

tion nor reseiien which, by its terms would de-

ny the franchise to any group otherwise qualified to

vote (Cf. Atkin v. Onondaga Co. Bd. of Elections, 31

N Y 2d 401; Dunn v. Blumstein, 405 U. § . 330; see also

Kramer v. Union School Dist., 395 U. S. 621, 626-627).

Such conditions must, of course be ‘ necessary to pro-

mote a compelling state interest’ (Dunn v. Blumstein,

405 U. S. 330, supra; Bullock v. Carter, 405 U. S. 134,

143; Atkin v. Onondaga Co. Bd. of Elections, 30 NY

2d 401, 404-405, supra; Palla v. Suffolk Co. Ba. of

Elections, 30 N Y 24 3 36, 49-50).

“The underlying right which is the subject of these

proceedi is not the righit.to vote, that right is in-

ETD. y guaranteed, but merely a claimed right to

absentee ballots, and in some instances, absentee

registration. (McDonald v. Board of Election, 394 U.S.

802, 807; Goosby v. Osser, 452 F. 2d 39, 40 [3rd Cir.,

971]). And, since these provisions have no direct

impact on petitioners’ right to vote, they need only

be reasonable in light of the scheme’s pu s in order

to be sustained. (McDonald v. Board of Election,

394 U. S. 802, 809; Goosby v. Osser, 452 F. 2d 39,

supra.) Measured in terms of this less stringent

standard, at least one Federal court, on identical facts,

has sustained a similar scheme under Pennsylvania

law (Goosby v. Osser, 452 F. 2d 39, supra).

“In the end, petitioners’ plaint is directed towards

the consequences of their incarceration. In this re-

gard, however, it is significant that they are not alone.

Others, including poll watchers assigned outside

their voting district, and those confined to mental in-

stitutions, to name just two groups who, absent an

absentee ballot, would find it well-neigh impossible

to vote, are similarly disadvantaged. Perhaps, the

statutory scheme should be extended further to in-

elude all those so situated. The question has been

posed before by a higher source (see McDonald v.

9S

7

Board of Election, 394 U. S. 802, 809-810, supra); its

resolution, nonetheless, is one for the legislature not

‘the courts.

“The right to vote does not protect or insure agai

those circumstances which render voting impracticable.

The fact of incarceration imposes many other dis-

abilities, some private, others public, of which voti

is only one. Under the circumstances, and in view o

the legislature’s failure to extend these absentee pro-

visions to others similarly disadvantaged, it hardly

seems plausible that petitioners’ right to vote has been

arbitrarily denied them. It is enough that these handi-

caps, then, are functions of attendant impracticalities

or contingencies, not legal design.”

Chief Judge Futp, citing provisions of the State Con-

stitution, dissented and concluded that the appellants are

entitled to absentee ballots by virtue of Election Law,

§117-a. Judge Burxe concurred in Judge Futp’s dissent

and added that, in his opinion the precluding of absentee

voting rights to the appellants is a violation of their rights

of equal protection.

Summary of Argument

The basic question in this appeal concerns the extent

to which the State may be required to proceed in the enact-

ment of remedial legislation. There is not involved herein

the enactment of discriminatory legislation which is

designed to exclude members of a class. Rather, this ease

presents a circumstance where a category of persons, de-

tainees in a county jail, has not yet been included in the

continuing development of the absentee voting provisions

of New York State. It is submitted by the State that

the absence of such provision in its remedial legislation

does not render the statutory scheme invalid and does not

result in a denial of the appellants’ guarantee of equal pro-

tection of the law.

MURRIETA RSE . ae

8

iF ARGUMENT

POINT I

New York Election Law, §§ 117, 117-a and 153 should be

judged by the traditional standards of reasonableness and

:Fational relationship to legitimate State goals.

In the instant case, as in McDonald v. Board of Election

Commissioners of Chicago (394 U. S. 802, 22 L. Ed. 2d 739)

the provisions in question set forth no voter qualification

or restriction such as wealth or race which denies the

franchise to any group otherwise qualified to vote. It @the

right to an absentee ballot rather than the right to vote

which is at issue herein. Since, as in McDonald, the New

York statutory scheme does not affect appellants’ right to

vote, this is, therefore, not a case-for the application of

the compelling state interest test (cf. Dunn v. Blumstein,

405 U. S. 330, 31 L. Ed. 2d 274; Evans v. Cornman, 398

U. S. 419, 26 L. Ed. 2d 370; City of Phoenix, Ariz. v.

Kolodztejski, 399 U. S. 204, 26 L. Ed. 2d 523). Rather

than being restrictive, discriminatory or “fencing out” in

nature, Election Law §§, 117, 117-a and 153 are remedial

in nature and serve to extend the franchise to those who

‘would otherwise be deprived of the franchise. Under

similar circumstances this Court has repeatedly held that

such legislation. must be reasonable and must bear a

rational relation to a legitimate state goal (see e.g. San

Antonio School District v. Rodriquez, | a. ees

36 L. Ed. 2d 16 [1973]; Fidell v. Board of Elections of City

of New York, 343 F. Supp. 913 affd. 409 U. S. 972, 34 L.

Ed. 2d 236 [1972]; Rosarito v. Rockefeller, U8 2

36 L. Ed. 2d 1 [1973]; McDonald v. Board of Election Com-

missioners of Chicago, supra).

9

In Fidell v. Board of Elections of City of New York

(supra), the plaintiffs alleged a denial of equal protection

as a result of New York State’s failure to provide absentee

ballots at primary elections. The three judge District

Court held that it was sufficient that New York had dem-

onstrated a rational basis for the lack of absentee balloting

in primaries quoting from Bullock v. Carter (405 U. S. 134,

143, 31 L. Ed. 2d 92 [1972]) as follows:

“Of course, not every limitation or incidental burden

on the exercise of voting rights is subject to a stringent

standard of review.”

Tt is submitted that the reform measures here under re-

view, and the incidental burden not yet remedied thereby,

are not subject to the stringent standard of review estab-

lished by this Court. The New York State absentee regis-

tration and balloting statutes should be judged by the

less stringent reasonableness test and the burden to demon-

strate unconstitutionality is therefore placed upon the ap-

pellants. The statutory classifications will be set aside

only if no grounds ean be conceived to justify them

(McDonald v. Board of Elections Commissioners of

Chicago, 394 U. S. 802, 809).

POINT II

New York State’s absentee ballot and registration statutes

are a constitutionally valid exercise of the power of the

State.

The history of the New York State absentee ballot and

registration statutes, outlined supra, is strikingly similar

to that of Illinois, described by this Court in McDonald v.

Board of Election Commissioners of Chicago (394 U. S.

802, 22:L. Ed. 2d 739) as

i Bs ite 6 Rh Lal

ELLE LLL PIE EE SPORE

PUG OS HY

10

“not an arbitrary scheme or plan but, rather, the very

ite—a consistent and laudable state policy of

ing, over a 50-year period, groups to the absentee

coverage as their existence comes to the attention of

the legislature.” (id. at p. 811)

In New York, as in Illinois, the affected prison inmates

‘are convicted misdemeanants and are trial detainees. In

both states the inmates cannot obtain absentee ballots be-

eause they constitute one of several classes for whom the

state legislatures have not provided absentee ballots. In

‘neither state are such persons disenfranchised.! This is

to be contrasted with the Pennsylvania statute, with which

this Court was concerned in Goosby v. Osser (409 U.S. 512,

35 L. Ed. 2d 36), which affirmatively and absolutely ex-

eluded from its absentee voter provisions “persons con-

fined in a penal institution”.*

A review of the development of New York’s absentee

voter provisions supra since 1909 has revealed that initially

only those qualified voters whose duties, occupation or

business required them to be absent from their county of

residence but within the United States were eligible to vote

by absentee ballot. Inmates of veterans hospitals were

added thereafter. The requirement of presence in the

United States was then removed. Subsequently, eligibility

for the absentee ballot by the spouse, parent or child of the

voter® and absence by reason of vacation‘ was added to

section 117. The absentee provisions underwent major

revision by the addition of section 117-a relating to absentee

1New York State Election Law, § 152, excludes convicted felons

from the suffrage but not misdemeanants. Cf. Tll. Ann. Stat.. Chap.

46, §§ 3-5.

2 Pa. Stat. Ann. Tit. 25, § 2602, subd. 12.

* Laws of 1948 Chap. 71.

* Laws of 1964 Chap. 726.

11

voting by physically disabled persons and by the addition

of the absentee registration provisions of section 153-a.5

To paraphrase the language of this Court in McDonald

(supra), it is submitted that merely because New York has

not gone still further should not render void its remedial

legislation. Such legislation need not “strike at all evils at

the same time”. (McDonald, supra at p. 811; cf. Fidell v.

Board of Elections of City of New York, 343 F. Supp. 913,

affd. 409 U. S. 972 34 L. Ed. 2d 236: San Antonio School

District v. Rodriquez, U. S. ___ 36 L. Ed. 2d 16:

Katzenbach v. Morgan, 384 U. S. 641, 16 L. Ed. 2d 828.)

The State has a legitimate and valid interest in the integ-

rity of the electoral process (Rosario v. Rockefeller,

U.S. __ 36 L. Fd. 24 1, 9) and in McDonald (supra at p.

394) this Court noted that “the different treatment

accorded unsentenced inmates within and those inearcer-

ated without their resident counties may reflect a legisla-

tive determination that without the protection of the voting

booth, local officials might be too tempted to try to influence

the local vote of in-county inmates.” The state legisla-

tures have traditionally heen allowed to take reform one

step at a time, addressing themselves to the phase of a

problem which seems most acute at the time ( McDonald,

supra). Were, as in McDonald, there remain several iden-

tifiable categories of voters who do not vet have access to

absentee hallots (see opinion of New York State Court of

Appeals, 31 NY 2d at p. 320) but, as has been shown, the

State continues to pursue its course of remedial legislation

and such efforts should be upheld.

There are, of course, numerous valid reasons why a

defendant charged with crime may he detained pending

5 Laws of 1956 Chap. 600,

BILE

LO LIE LORS GI BSE) KAA

b SONMNTR SE Se eS SSG ANTONE NEARS PERE SEE POG

iia hat I

Bato ne Dt fe is

MOORS

12

trial rather than being released on bail (see e.g. Carbo v.

United States, 82 S, Ct. 662, 7 L. Ed. 2d 769). It can no

more be argued that the appellants’ incarceration without

absentee ballot rights is a violation of equal protection than

it could be said that such incarceration unlawfully deprives

them of their constitutional right to freedom of travel.

“The fact of incarceration imposes many other disabilities,

some private, others public, of which voting is only one.”

(Decision of the New York State Court of Appeals, 31

NY 2d p. 320.)

'. The present disability re voting thus experienced by the

appellants by the fact of their incarceration is, it is sub-

mitted, of the type referred to by Justice Brack in Oregon

v. Mitchell (400 U. S. 112, 127, 27 L. Ed. 2d 272, 283), where-

in he stated:

“The Fourteenth Amendment was surely not intended

to make every discrimination between groups of people

a constitutional denial of equal protection.”

The New York State system of absentee voting should

therefore be upheld by the application of the principle that

remedial legislation should not he invalidated merely

because it does not cover all classes of persons who might

benefit from it (see e.g. Fidell v. Board of Elections of City

of New-York, supra; Dandridge v. Williams, 397 U. S. 741,

25 L. Fd. 2d 491; Katzenhbach v. Morgan, supra).

13

POINT i

sions are not drawn on the basis of wealth.

The appellants contend that since persons who ave fman-

cially unable to post bail® will be detained in prison and

thereby disenfranchised New York is imposing an unlaw-

ful financial test for voting. McDonald v. Board of Elec-

tian Commissioners of Chicago (394 U.S. 802, 22 L. Ed 2d

739), was also eoncerned with pre-trial detainees who were

unable te post bail but this Court did not conclude therein

that there had been an invidious discrimination on the

basis of wealth.

It is clear that not every statutory inequality resulting

from differing financial circumstances amounts to a denial

of constitutional rights (see San Antonio School District v.

Rodriguez U. S. , 36 L Ed 2d 16 [1973]). The

entire system will not be struck down “simply because it

imperfectly effectuates the State’s goals” (id.___ ss *iU.. 8.

, 36 L Ed 2d 16, 53). It is dear that the absentee

voting statutes were not drawn to discriminate against

persons on the basis of wealth and that any such incidental

result is not tantamount to a denial of constitutional rights.

As stated by the New York State Court of Appeals, “these

handicaps * * * are functions of attendant impracticalities

or contingencies, not legal design.” (31 NY 2d at p. 321.)

® The record does not appear to establish that any of the appellants

are, in fact, in this category.

SS HPL IMCL Bt a

14

CONCLUSION.

.’, She Order of the New York Court of Appeals should be

affirmed.

Dated: July 25, 1973.

Respectfully submitted,

LOUIS J. LEFKOWITZ

Attorney General of the State

of New York

Amicus Curiae in Support

of Appellees

The Capitol

Albany, New York 12224

Ruts Kessier Tocr

Solicitor General

Wuuum J. Kocan

Assistant Attorney General

of Counsel

FILED

LIBRARY, “|. gn

UPREME COURT, U, B&

Senne htt

In the

Supreme Court of the United States

3

No. 72-1058 “3

EDWARD F. O'BRIEN, et al.,

Appellants,

v.

ALBERT SKINNER, Sheriff, Monroe County, et al.,

Appellees.

BRIEF FOR APPELLEES

WILLIAM J. STEVENS

307 County Office Building

Rochester, New York 14614

Attorney for Appellees

O/f Counsel:

MICHAEL K. CONSEDINE

Rochester, New York

Daily Record Corporation

Rochester, New York

(11187)

TABLE OF CONTENTS

Page

Opinions Below... ccc ccc cues 1

A I

Questions Presented . 0... 0.6 1

Statutes Involved o.oo ce ccc cece cece 2

Statement of the Case ©... occ ccc eee 2

The absence in the New York Election Law of

provisions which provide the right to absentee ballot or

registration to pre-trial detainees and misdemeanants

incarcerated in the county of their residence. ......... 2

Statement of Facts... 2... eee

Summary of Argument ..... 2.020000. >

Do New York's absentee voting provisions absolutely

disenfranchise the appellants, and if so, are they un-

constitutional when evaluated under the most stringent

equal protection standards ...........0..00.000.... $

Do the New York statutes in question create so severe a

restriction on the franchise as to constitute an un-

constitutionally onerous burden on the exercise of the

franchise occ ccc cc cece ue ecceee *°

Do the New York statutes create an unlawful financial

test for voting by denying the franchise to pre-trial

detainees who cannot post bail 2... 6... oe. 6

ARGUMENT:

1. — Do New York's absentee voting provisions absolutely

disentranchise the appellants, and if so, are they un-

constitutional when evaluated under the most stringent

equal protection standards ............0........... 7

ll. — Do the New York statutes in question create so

severe a restriction on the franchise as to constitute an

unconstitutionally onerous burden on the exercise of the

| SE ee 9

Ill. — Does the New York statute create an unlawful

financial test for voting by denying the franchise to pre-

trial detainees who cannot post bail ................ 10

CONCLUSION — For the reasons stated, the judgment

appealed from should be upheld ................... 11

CITATIONS

CASES:

Carrington v. Rash, 380 U.S. 89, 91 (1965) ...........-- 7

Dunn v. Blumstein, 405 U.S. 330, 336 (1972) ........... S.7

Evans v. Cornman, 398 U.S. 419, 421 - 422, 426 (1970) ... S

Goosby v. Osser, 409 U.S. $12 (1973)... 2.6... ee eee eee

Harper v. Virginia Board of Elections, 383 U.S. 663 (1964)

(ua Seeeee s5 uA u Sa ERAS FSROEM GENO SdERN ATOR ERS Fa 6,8, 11

McDonald v. Board of Election Commissioners, 394 U.S.

CE 5.6 ix 5.4 e 45h k bree ce nns unin es 45400408 7,9

McLaughlin v. Florida, 379 U.S. 184, 192 (1964) ........

Montano v. Lee, 298 F. Supp. 862 (1966) ...... 2.2.2...

Morgan v. Kennedy, 331 F. Supp. 861, 863 (1971) ....... 6

O'Brien v. Skinner, et al., 31 N.Y. 2d 318; 40 A.D. 2d 942

GUPTEE 64 6 kG ee Rebate aed kee RG dade eek ee ebro nee 8

Oregon v. Mitchell. 400 U.S. 112, 114(1970) 2.0.2.2... 7

Reynolds v. Sims, 377 U.S. 533, 562 (1963) . 2.2... 2. 5,10

Rosario v. Rockefeller, 36 L. Eds. 2d, 1,6, 7 (1973) ......

UNITED STATES CONSTITUTION: Fourteenth

pS near ae ere 8

In the

Supreme Court of the United States

No. 72-1058

EDWARD F. O'BRIEN, et al.,

~ Appellants,

v.

ALBERT SKINNER, Sheriff, Monroe County, et al.,

Appellees.

BRIEF FOR APPELLEES

Opinions Below

The opinion of the Lower Courts as stated in the Brief for

Appellants is substantially correct.

Jurisdiction

The statement of jurisdiction in the Brief for Appellants is

substantially correct. :

Questions Presented

The Court of Appeals of New York has left to the New York

State Legislature the question of remedying the absence of

provisions in the New York Election Law which would allow pre-

trial detainees and misdemeanants incarcerated within the

county of their residence to register and vote by absentee or other

means. (New York Election Law, §§117(6), 117-a, 153-a)

The questions presented are these:

1. Does the fact that the New York State Legislature has not

yet established the right to an absentee ballot or absentee

registration procedure for misdemeanants and _ pre-trial

detainees incarcerated in their counties of residence cause the

above mentioned New York Election Law sections to be subject

to the stringent standards of the Fourteenth Amendment.

2. Dothe above mentioned sections of the New York Election

Law have some rational relationship to a legitimate state end.

3. Dothe above mentioned sections of the New York Election

Law impose an unlawful financial test for voting by denying the

franchise to pre-trial detainees who cannot post bail.

4. Dothe above mentioned sections of the New York Election

Law absolutely disenfranchise the appellants.

Statutes Involved

The Brief for Appellants as to statutes involved is substantially

correct. (New York Election Law, §§153-a, 117-a and pertinent

parts of §117)

Statement of the Case

The State of New York has through its Election Law expanded

the privilege of voting and registering by absentee methods

throughout the last fifty years to include persons absent from

their county of residence because of duties, occupations or

business or because of illness or physical disability (in this case,

such persons may still be present in their county of residence but

be unable to attend the polls).

Such persons seeking to register and vote by absentee methods

must provide sworn affidavits describing the facts which would

cause their absence, or in the case of persons requesting absentee

registration and ballots who are in a hospital or confined to their

homes because of illness or physical disability, must present a

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medical certificate attesting to their physical inability to register

and vote in person.

There are, however, no provisions in the New York Election

Law which provide the right to absentee ballot or registration to

persons incarcerated in the county of their residence while

awaiting disposition of their case or serving sentences as

misdemeanants. It is to be noted that there are no provisions

which deny such persons the aforementioned right to receive

absentee ballots and to register by absentee method. The New

York State Election Law is simply silent on this matter.

The issue presented is this:

Is this absence, in the New York Election Law, of provisions

granting the above mentioned prisoners the right to register and

vote by absentee methods, an absolute prohibition imposed upon

a class from exercising the franchise, thus rendering it un-

constitutional, or is it otherwise unconstitutional.

Statement of Facts

The appellants are seventy-two persons who were at the time

of initiation of this law suit incarcerated in the Monroe County

Jail and who alleged that they were non-felons and pre-trial

detainees or serving misdemeanor sentences. Although the

League of Women Voters allege they attempted to obtain

procedures which would permit such detainees as aforemen-

tioned the privilege of registering and voting. there was no

application to the Board of Elections by any individual who

sought this privilege until October 10, 1972. Slightly before that

time, the League caused to be distributed throughout the jail

population application forms on which each appellant recited his

residence and proclaimed his desire to register and vote (A 21a -

22a; A 25a - 28a). On the date aforementioned. these forms were

presented to the Board of Elections of Monroe County, this being

the last day for registration.

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The Commissioners of Election, in the absence of provisions in

the Election Law as above cited, refused to issue absentee forms

for either registration or ballot to the seventy-two prisoners. The

Board felt further that the aforementioned detainees were not

qualified under the Election Law for such absentee participation

in the election process.

On October 11, 1972 the appellants commenced an action in

the New York Supreme Court of Monroe County for an order

directing the Sheriff and the Commissioners of Election to

provide some means of registering and voting the seventy-two

detainees aforementioned, either by absentee means or in

person, should they prove to be otherwise eligible. There is no

issue here as to the right of the Board of Elections to disqualify

any: of these seventy-two detainees for valid grounds, such as

prior felony convictions or non-residence in the community, or

any other valid ground under the New York Election Law. The

issue is, can the Board of Elections be compelled to provide a

method of registration and voting for these persons. The

Supreme Court Judge ordered that those persons who had

registered prior to incarceration be allowed to vote by absentee

ballot but that those who had not registered should be denied the

absentee ballot. Both parties appealed to the New York State

Appellate Division, Fourth Department, which Appellate Court

held that the appellants should be allowed to register and vote by

absentee means in that they were unable to appear because of

physical disability and thus came under the New York Election

Law. The appellees herein immediately appealed to the New

York Court of Appeals, which, on November 3, 1972, reversed

the Appellate Division. The New York Court of Appeals held

that the sections referred to by the Appellate Division involving

physical disability refer to a medically disabled person and the

fact of confinement to a penal institution does not entitle a voter

to avail himself of these absentee privileges (P. 319). The Court

held further that the underlying right which is the subject of

these proceedings is not the right to vote but merely a claimed

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right to absentee ballots and/or absentee- registration. Since

these provisions have no direct impact on petitioners’ right to

vote, they need only be reasonable in light of the scheme’s

purposes in order to be sustained. (P. 320) The Court held that:

“Under the circumstances and in view of the Legislature's

failure to extend these absentee provisions to others

similarly disadvantaged (poll watchers assigned outside

the voting districts) it hardly seems plausible that

petitioners’ right to vote has been arbitrarily denied them.

It is enough that these handicaps, then are functions of

attendant impracticality or contingencies in legal

design.” (PP. 320-321)

From this decision, the appellants filed a Notice of Appeal to

the United States Supreme Court. Probably jurisdiction was

noted on May 7, 1973.

SUMMARY OF ARGUMENT

Do New York’s absentee voting provisions absolutely

disenfranchise the appellants, and if so, are they un-

constitutional when evaluated under the most stringent equal

protection standards

This Court has stated in such cases as Dunn v. Blumstein, 405

U.S. 330, 336 (1972), Evans v. Cornman, 398 U.S. 419, 421-422,

426 (1970) and Reynolds v. Sims, 377 U.S. 533, 562 (1963) that

statutory classifications that absolutely disenfranchise a class of

citizens must be evaluated under the most stringent equal

protection standards. This principle has been cited by the ap-

pellants to promote their cause. The appellees disagree and

argue that there has been no showing on the record that the

appellants are absolutely disenfranchised in that (1) there is no

showing that the appellants as a class could not vote by any other

means, or (2) that any more than a small proportion of that class

would be incarcerated during the time for registration or

voting.*

*None of this class will be incarcerated for more than one year and most will

be incarcerated for a fraction of a year.

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However, even if this Court should feel that the class in

question is absolutely disenfranchised, applying the most

stringent standard of the equal protection clause would not

render the New York statutes unconstitutional as the New York

statutes show a rational relationship to a legitimate state end, i.e.

these statutes expand the right to vote by absentee method to

classes heretofore excluded, and that the fact that a class is

excluded by omission doesn’t render the statute un-

constitutional.

Do the New York statutes in question create so severe a

restriction on the franchise as to constitute an unconstitutionally

onerous burden on the exercise of the franchise

In Rosario v. Rockefeller, 36 L. Eds. 2d, 1, 6 and 7 (1973), this

Court has held that even those restrictions on the franchise

which fall short of an absolute prohibition on voting may con-

stitute an unconstitutionally onerous burden on the exercise of

the franchise by their severity. The New York statutes in

question impose no such burden upon the franchise but expand

such franchise to those hitherto excluded.

The fact that a statute fails to remedy every ill or include every

possible class in its purview does not render the same un-

constitutional. The creation of new rights are particularly a

function of the legislature. Morgan v. Kennedy 331 F. Supp. 861,

at 863 (1971)

Do the New York statutes create an unlawful financial test for

voting by denying the franchise to pre-trial detainees who cannot

post bail

The Court's ruling in Harper v. Virginia Board of Elections,

383 U.S. 663 (1964) and those following forbids the state’ im-

posing the payment of a tax to vote. These New York statutes in

question involve the right to register and vote by absentee ballot.

There is no imposition of a tax or a financial test upon the ap-

pellants.

ARGUMENT I

Do New York’s absentee voting provisions absolutely

disenfranchise the appellants, and if so, are they un-

constitutional when evaluated under the most stringent equal

protection standards

It must be conceded that this Court has clearly established the

principle that statutory classifications that absolutely disen-

franchise a class of citizens must be evaluated under the most

stringent equal protection standard. Dunn v. Blumstein, supra.

However, this Court has also established the principle that

citizens have the power to impose voter qualifications and to re-

gulate access to the franchise in other ways. Carrington v. Rash,

380 U.S. 89, 91 (1965). Oregon v. Mitchell, 400 U.S. 112, 114

(1970). Such qualifications must be closely scrutinized in light of

the Constitution. In the instant case as in the case of McDonald

v. Board of Election Commissioners, 394 U.S. 802 (1969) a

constitutional attack is made upon state statutes which expand

the franchise through absentee means to the classes heretofore

excluded because of absence from the county of residents or

_ because of physical incapacity, because such statutes do not

include within their scope pre-trial detainees or misdemeanants

incarcerated in their counties of residence. We have here an issue

thus not of the right to vote, but rather the right to vote or to

register by absentee methods. There is no question either of an

absolute prohibition on appellants’ right to franchise because

the class under discussion has not been thought to be absolutely

prevented from registering or voting. Only those members of the

class who are incarcerated during registration and voting days

are excluded and even those persons could have voted by ab-

sentee methods should they be residents of other counties.

It is to be remembered that none of the above classes could be

incarcerated for more than one year and most are incarcerated

for smaller fractions of a year.

A reading of the statute further indicates that the statute itself

does not specifically and intentionally exclude this class of

person and merely fails to provide for such a class from enjoying

the privilege of voting by absentee method.

The class of person disenfranchised because of incarceration is

so small that even the stringent application of the Fourteenth

Amendment does not render the failure to include them under

New York statutes unconstitutional.

‘

The Court of Appeals of New York State was not unreasonable

in holding that these statutes are not repugnant to the Four-

teenth Amendment because the handicaps imposed upon the

appellants “are functions of attendant impracticalities or

contingencies, not legal design."’ O'Brien v. Skinner, et al., 31

N.Y. 2d 318 (1972). Certainly, it is not suspected classification

based on wealth or race. Harper v. Virginia Board of Elections,

supra. McLaughlin v. Florida, 379 U.S. 184, 192 (1964).

Should this Court order the State of New York to provide

means for registering pre-trial detainees, this Court could be

venturing deeply into the political thicket, making decisions best

left to the Legislature.

Courts should not lightly intrude upon functions which are

properly within the assigned powers of the legislature, unless the

legislature fails to comply with constitutional requirements —

after being given an opportunity to do so. Montano v. Lee, 298 F.

Supp. 862 (1966) at 864.

A rational view of this Court's holdings regarding the fran-

chise indicates that this Court will not permit a state to embark

upon a course of disenfranchising classes of persons for such

reasons as wealth, the color of their skin or-their sex. It is indeed

reasonable for a Court to hold such classifications to be im-

proper. However, it is not unreasonable for a state to exclude

persons who are absent from their polling place from voting. The

fact that they have nonetheless extended this privilege to certain

persons who are absent from their polling place, does not taint

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the statutes conferring this privilege with a violation of the

Fourteenth Amendment because other persons have not been

included in the privilege. To do so would be to make the

Supreme Court of the United States a super-legislature. It. is

interesting to note that nowhere has it been shown that any

efforts were made by the appellants to have the New York State

Legislature include them as a class under the purview of the

statutes in question.

ARGUMENT II

Do the New York statutes in question create so severe a

restriction on the franchise as to constitute an unconstitutionally

onerous burden on the exercise of the franchise

The appellants cite Rosario v. Rockefeller, supra, and allege

that even if these statutes should fall short of an absolute

prohibition on voting, they constitute an unconstitutionally

onerous burden in the exercise of the franchise by their severity.

However, it is obvious that these statutes in question impose no

burden upon the franchise, but indeed expand the franchise to

classes of persons who heretofore have been denied that

privilege.

The appellants rely heavily on Goosby v. Osser, 409 U.S. 512

(1973) in an attempt to distinguish McDonald. supra, from the

instant case. The Pennsylvania statutes in Goosby v. Osser,

supra, specifically excluded pre-trial detainees from obtaining

the privilege of absentee ballot. The New York statutes, like the

Illinois statutes in McDonald, supra, are silent on this subject.

Therefore, it would certainly be reasonable for this Court to hold

that McDonald, supra, does not foreclose the Lower Courts from .

inquiring in Goosby as to whether or not the Pennsylvania

statutes are constitutional.

However, in the case where the exclusion is not specifically

mentioned, as in the New York case, this Court has upheld

similar statutes in McDonald, supra. It may be beneficial for the

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community to include pre-trial detainees in the franchise. On the

other hand, it may be wise for a community to exclude such

persons for such reasons as to prevent the widespread voting of

jail prisoners by corrupt political machines.

There are many conceivable issues which should be weighed

by a legislative body when considering extension of the absentee

ballot and this Court has neither the time nor the constitutional

mandate to go into this consideration when it appears that there

is no question here of a class being unconstitutionally denied its

franchise. The question of extending the right to an absentee

ballot is a legislative one.

This issue seems clearly a legislative issue. The fact that a

statute fails to remedy every ill or include every possible class in

its purview, does not render the same unconstitutional. The

question of new rights are particularly a function of the

legislature. Reynolds v. Sims, supra.

ARGUMENT III

Does the New York statute create an unlawful financial test

for voting by denying the franchise to pre-trial detainees who

cannot post bail

Unlike the poll tax which would exclude any citizen from

voting who could not afford to pay the same, or unlike the im-

position of property qualifications, the New York statutes merely

refer to the extension of the right to vote by absentee methods to

classes heretofore denied the same. It does not impose a financial

test on anyone. It is merely a circumstance that a person is in-

carcerated in jail and is required to meet bail. The bail laws were

not created to prevent a person from voting but to assure the

presence of a prisoner before the Court. The class of persons so

denied the franchise is so small and the class of persons thus

discernable is so shifting and imprecise* as to render them not in

*Such persons would frequently be convicted of a felony before they receive

the absentee ballot but subsequent to registering. Others would complete

their sentences as misdemeanants and leave jail without return addresses.

(thers would make bail and disappear.

any way within the same class referred to in Harper v. Virginia

Board of Elections, supra, or other classes declared by this Court

to be suspect.

Any person familiar with the thrust of our constitutional

history is certainly not alarmed by this Court’s decision

outlawing such financial tests as the poll tax or property

qualifications but to extend to persons held because they cannot

meet bail the same stringent standards applied to those who

could not pay their poll tax, would be extending unreasonably

the protection of the Fourteenth Amendment.

If it is constitutional for states to impose bail thus allowing

those who can post it to remain at large and those who cannot

post it to remain incarcerated, it is certainly not an un-

constitutional financial test because some persons who make bail

can go to their polling place to vote while those who cannot are

denied the franchise.

CONCLUSION

For the reasons stated, the judgment appealed from should be

upheld.

Respectfully submitted,

WILLIAM J. STEVENS

307 County Office Building

Rochester, New York 14614

Attorney for Appellees

Of Counsel:

MICHAEL K. CONSEDINE

Rochester, New York