O'Brien v. Skinner

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan join, concurring.

While I join the opinion of the Court, my analysis of the issues presented here requires further elaboration.

I fully agree with the Court’s holding that the Court of Appeals’ reliance on our decision in McDonald v. Board of Election Comm’rs, 394 U. S. 802 (1969), was misplaced. Although we rejected in McDonald a claim similar to that presented by appellants here, the crux of our decision was our conclusion that the rational-basis test was the proper standard-to apply in evaluating the prisoners’ equal protection claims. We relied heavily in McDonald on the fact that there was no evidence that the State made it impossible for the appellants to exercise their right to vote. As the Court noted,

“[T]he record is barren of any indication that the State might not; for instance, possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow *532some inmates to get to the polls on their own.” Id., at 808 n. 6.

The Court therefore characterized the appellants’ claim by saying “[i]t is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots.” Id., at 807. Because of the relatively trivial inconvenience encountered by a voter unable to vote by absentee ballot when other means of exercising the right to vote are available, the Court properly rejected appellants’ contention that strict scrutiny of the statutory classifications was required.

In this case, however, the New York Court of Appeals has made clear that the fundamental premises on which McDonald was based are absent. See Goosby v. Osser, 409 U. S. 512, 518-522 (1973). The New York court “reject[ed] out of hand” any alternative which would permit appellants to vote without using absentee ballots.1 In this posture, it can no longer be contended that this case involves “merely a claimed right to absentee ballots” and “not the right to vote,” or that the challenged statutes “have no direct impact on [appellants’] right to vote,” as the Court of Appeals, relying on McDonald, argued, 31 N. Y. 2d 317, 320, 291 N. E. 2d 134, 136; such statements, in the context of this case, fly in the face of reality. Nor can it be contended that denial of absentee ballots to appellants does not deprive them *533of their right to vote any more than it deprives others who may “similarly” find it “impracticable” to get to the polls on election day, see id., at 320-321, 291 N. E. 2d, at 136-137; here, it is the State which is both physically preventing appellants from going to the polls and denying them alternative means of casting their ballots. Denial of absentee registration and absentee ballots is effectively an absolute denial of the franchise to these appellants.

It is well settled that “if a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.'” Dunn v. Blumstein, 405 U. S. 330, 337 (1972), quoting Kramer v. Union Free School District, 395 U. S. 621, 627 (1969); see also Cipriano v. City of Houma, 395 U. S. 701, 704 (1969); City of Phoenix v. Kolodziejski, 399 U. S. 204, 205, 209 (1970). It is this standard of review which must be employed here.

New York law provides for absentee registration and voting by numerous categories of voters who may be unable to appear in person at the polls. New York permits absentee registration and voting by, inter alia, those who are unable to appear personally because of illness or physical disability, or those whose duties, occupation, or business takes them out of their county of residence. Absentee ballots are even available to those who are on vacation outside the county on election day. Significantly, it is also conceded that pretrial detainees and convicted misdemeanants residing in Monroe County but confined outside the county may register and vote by mail.2

*534In light of these extensive provisions for participation in the electoral process through the mail by others, New York’s exclusion of pretrial detainees and convicted mis-demeanants confined in the county of their residence cannot withstand analysis. The only basis even suggested for this discrimination is the possibility recognized by the Court in McDonald “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.” 394 U. S., at 810. Though protection of the integrity of the ballot box is surely a legitimate state concern, I frankly find something a bit disturbing about this approach to the problem. It is hard to conceive how the State can possibly justify denying any person his right to vote on the ground that his vote might afford a state official the opportunity to abuse his position of authority. If New York truly has so little confidence in the integrity of its state officers, the time has come for the State to adopt stringent measures to prevent official misconduct, not to further penalize its citizens by depriving them of their right to vote. There are surely less burdensome means to protect inmate voters against attempts to influence their votes — the alternatives suggested by the Court in McDonald, for example.

I thus have little difficulty in concluding that the asserted state interest is insufficient to justify the statutes’ discrimination against pretrial detainees and convicted misdemeanants under the compelling-state-interest test. I think it is clear that the State’s denial of all opportunity for appellants to register and vote deprives them of the *535right to vote on an equal basis with other citizens guaranteed under the Equal Protection Clause.

The Court of Appeals stated:

“We reject out of hand any scheme which would commit respondents to a policy of transporting such detainees to public polling places; would assign them the responsibility of providing special voting facilities under such conditions [or] would threaten like hazards embraced by such schema.” 31 N. Y. 2d 317, 319, 291 N. E. 2d 134, 135 (1972).

Presumably this includes a flat rejection of the possibility of temporary reductions in bail to allow detainees to vote suggested by the Court in McDonald.

As the Court emphasizes, New York law does not disenfranchise either convicted misdemeanants or persons being held for trial on criminal charges. Indeed, it appears that the New York Constitution does not permit such disenfranchisement. Article II, § 1, of the *534Constitution provides that “[e]very citizen shall be entitled to vote” and Art. II, § 3, excludes only those “convicted of bribery or of any infamous crime.” We therefore need not confront in this case the very substantial constitutional problems presented if a State did seek to exclude these classes from the franchise.