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MCDONALD v. BOARD OF ELECTION COMMR'S. OF CHICAGO

February 27, 1967

SAM L. MCDONALD
v.
BOARD OF ELECTION COMMISSIONERS OF CHICAGO, SIDNEY T. HOLZMAN, CHAIRMAN, MARIE H. SUTHERS, COMMISSIONER, AND FRANCIS P. CANARY, COMMISSIONER.



The opinion of the court was delivered by: Lynch, District Judge.

Memorandum of Decision

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 meticulously scrutinized."

In Reynolds v. Sims, the Supreme Court was considering charges that voters in certain parts of the state had greater representation per person in the State legislature than voters in other parts of the state. The Court concluded:

  "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
  races."

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, ...


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