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McDonald v. Board of Election Comm'rs

Supreme Court of the United States

November 19, 1968, Argued ; April 28, 1969, Decided

No. 68


 [*803]  [***742]  [**1405]    MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

Appellants and the class they represent are unsentenced inmates awaiting trial in the Cook County jail who, though they are qualified Cook County electors, cannot readily appear at the polls either because they are charged with nonbailable offenses or because they have been unable to post the bail imposed by the courts of Illinois. 1 They cannot obtain absentee ballots, for they constitute one of a number of classes for whom no provision for absentee voting has yet been made by the Illinois Legislature. The constitutionality of Illinois' failure to include them with those who are entitled to vote absentee is the primary issue in this direct appeal from a three-judge court.

 [****4]  The  [**1406]  specific provisions attacked here, Ill. Rev. Stat., c. 46, §§ 19-1 to 19-3, ] have made absentee balloting available to four classes of persons: (1) those who are absent from the county of their residence for any reason whatever; (2) those who are "physically incapacitated," so long as they present an affidavit to that effect from a licensed physician; (3) those whose observance of a religious holiday precludes attendance at the polls; and (4) those who are serving as poll watchers in precincts  [*804]  other than their own on election day. 2 The availability of the absentee ballot in Illinois has been extended  [***743]  to its present coverage by various amendments over the last 50 years. Prior to 1917, Illinois had no provision for absentee voting, requiring personal attendance at the polls, and in that year the legislature made absentee voting available to those who would be absent from the county on business or other duties. In 1944 absentee voting was made available to all those absent from the county for any reason. The provisions for those remaining in the county [****5]  but unable to appear at the polls because of physical incapacity, religious holidays, or election duties were added in 1955, 1961, and 1967, respectively.

 [****6]  On March 29, 1967, appellants made timely 3 application for absentee ballots for the April 4 primary because of their physical inability to appear at the polls on that election day. The applications were accompanied by an affidavit from the warden of the Cook County jail attesting to that inability. These applications were refused by  [*805]  the appellee Board of Election Commissioners on the ground that appellants were not "physically incapacitated" within the meaning of §§ 19-1 and 19-2 of the Illinois Election Code. On the same day appellants filed a complaint, alleging that they were unconstitutionally excluded from the coverage of the absentee provisions. They requested that a three-judge court be convened to rule the provisions violative of equal protection insofar as the provisions required denial of an absentee ballot to one judicially incapacitated while making it available at the same time to one medically incapacitated; and they sought an injunction to restrain appellee Board "from refusing to grant [appellants'] timely applications for absentee ballots." The District Court granted appellants' request for temporary relief on March 30, before the three-judge [****7]  court was convened, and ordered the Board to issue ballots to qualified Illinois electors awaiting trial in the Cook County jail. 4 [****8]  Both parties then filed motions for summary judgment, the Board asserting that  [**1407]  to honor the applications would subject its members to criminal liability under Illinois law. 5

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394 U.S. 802 *; 89 S. Ct. 1404 **; 22 L. Ed. 2d 739 ***; 1969 U.S. LEXIS 1771 ****



Disposition:  277 F.Supp. 14, affirmed.


provisions, absentee ballot, appellants', absentee, absentee voting, incapacitated, polls, election, classifications, voting

Governments, State & Territorial Governments, Elections, Business & Corporate Law, Distributorships & Franchises, Causes of Action, General Overview, Constitutional Law, Equal Protection, Poverty, Local Governments, Administrative Boards, Nature & Scope of Protection, Case or Controversy, Constitutionality of Legislation, Judicial Review, Standards of Review, Civil Rights Law, Protection of Rights, Voting Rights, Absentee Ballots, Prisoner Rights, Voting