The opinion of the court was delivered by: Lynch, District Judge.
Sam L. McDonald, plaintiff, brings this action against the
Chicago Board of Election Commissioners under the 14th Amendment
to the United States Constitution for such equitable relief as
will enable him to vote in the primary and aldermanic election in
the City of Chicago on February 28, 1967.
The petitioner is incarcerated in Cook County Jail, unable to
afford bail and awaiting a preliminary hearing on an alleged
offense. His next scheduled court appearance is set several weeks
after the election.
The Board of Election Commissioners admits that the petitioner
is a duly qualified and registered voter.
The Illinois election laws provide for the furnishing of
ballots to duly qualified and registered voters unable to be
present at the polls because of absence from the county, physical
incapacity, or observance of a religious holiday. Chapter 46,
Section 19-1 of the Illinois Revised Statutes.
The petitioner is a resident of Cook County and the provisions
regarding physical incapacity are the basis for the petitioner's
contention that he is entitled to an absentee ballot. The
Illinois statutes provide that persons unable to be present at
the polls because of physical incapacity shall submit the
certificate of an attending physician or Christian Science
practitioner. The petitioner has not done this, presumably
because he is in good health, and the Board of Election
Commissioners has thus refused to provide him with an absentee
ballot. He is however, obviously physically incapable of being
present at the polls and has submitted the affidavit of the
Warden of the Cook County Jail. The Board of Election
Commissioners, in effect, has taken the position that organic
illness is the only type of physical incapacity encompassed by
the statute, and contends that the certificate of the physician
or Christian Science practitioner, attesting to the applicant's
illness, is a precondition to the right to an absentee ballot.
It is the opinion of the Court that the Illinois statutes as
interpreted by the Board of Election Commissioners in this
particular instance, deprive the petitioner of his right to Equal
Protection of Law under the 14th Amendment.
It is, of course, the right of the State of Illinois to impose
reasonable restrictions on the availability of the ballot. The
absence of statutory provisions to accommodate persons unable to
be present at the polls on election day perhaps would pose no
constitutional problem. But once the right to vote by absentee
ballot has been provided, there must be no arbitrary or
discriminatory denial. For example, in view of the recent United
States Supreme Court decisions pertaining to voting rights, no
one would seriously contend that a state could constitutionally
deny a person an absentee ballot solely on the grounds of his
race or his religion or his economic status.
In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.
220, the Supreme Court referred to the franchise of voting as "a
fundamental political right, because preservative of all rights."
And in Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362,
1381, 12 L.Ed.2d 506, the Supreme Court said, "Undoubtedly, the
right of suffrage is a fundamental matter in a free and
democratic society. Especially since the right to exercise the
franchise in a free and unimpaired manner is preservative of
other basic civil and political rights, any alleged infringement
of the right of citizens to vote must be carefully and
"A citizen, a qualified voter, is no more nor no less
so because he lives in the city or on the farm. This
is the clear and strong command of our Constitution's
Equal Protection Clause. This is an essential part of
the concept of a government of laws and not men. This
is at the heart of Lincoln's vision of `government of
the people, by the people, and for the people.' The
Equal Protection Clause demands no less than
substantially equal state legislative representation
for all citizens, of all places as well as of all
It seems to this Court that petitioner McDonald, a citizen, a
qualified voter, is no more nor no less so whether his physical
incapacity to be present at the polls stems from organic illness
or from physical confinement on charges of which he is presumed
innocent until proven otherwise.
In Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d
675, the Supreme Court considered the constitutionality of a
provision of the Texas constitution which prohibited servicemen
who moved to Texas during the course of their military duty from
ever voting in any election in the state so long as they were
members of the Armed Forces. The Court held that the petitioner,
a sergeant in the U.S. Army, ...