Appellants, who are incarcerated in jail as convicted
misdemeanants or pretrial detainees unable to make bail but who are
under no voting disability under state law, and who requested but
were denied the right to register and vote under mobile
registration, absentee voting, or other procedures, brought this
action challenging the constitutionality of the New York election
laws. The contested statutes allow qualified persons to register
and vote by absentee measures if precluded from personally doing so
because of illness, physical disability, their duties, occupation,
or business, and permit absentee voting (but not registration) if
the voters are vacationing away from their residence on election
day or are confined in a veterans' hospital. The state trial and
intermediate appellate courts initially viewed appellants'
confinement as physical disability and held that they were entitled
to vote by absentee ballot. The New York Court of Appeals reversed
that determination, concluding that the disability imposed by
incarceration did not come within the terms of the statute.
The challenged provisions as thus construed, which raise no
question of disenfranchisement of persons convicted of criminal
conduct and permit incarcerated persons to register and vote by
absentee means if confined in a county where they are not
residents, violate the Equal Protection Clause of the Fourteenth
Amendment, as they arbitrarily discriminate between categories of
qualified voters. Pp. 414 U. S.
31 N.Y.2d 317, 291 N.E.2d 134, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, and POWELL, JJ.,
joined. MARSHALL, J., filed a concurring opinion, in which DOUGLAS
and BRENNAN, JJ., joined, post,
p. 414 U. S. 531
BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST, J.,
p. 414 U. S.
Page 414 U. S. 525
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This is an appeal from the judgment of the Court of Appeals of
New York taken by 72 persons who were, at the time of the trial of
the original action, detained in confinement. Some are simply
detained awaiting trial, others are confined pursuant to
misdemeanor convictions; none is subject to any voting disability
under the laws of New York.
The Court of Appeals of New York, [Footnote 1
] by divided vote, held that failure of the
State to provide appellants with any means of registering and
voting was not a violation of the New York statutes and not a
denial of any federal or state constitutional right.
Before the November, 1972, general elections in New York, the
appellants applied to the authorities of Monroe County, including
the Board of Elections, to establish a mobile voters registration
unit in the county jail in compliance with a mobile registration
procedure which had been employed in some county jails in New York
State. This request was denied, and appellants then requested that
they be either transported to polling places under appropriate
restrictions or, in the alternative, that they be permitted to
register and vote under New York's absentee voting provisions
which, essentially, provide that qualified voters are allowed to
register and vote by absentee measures if they are unable to appear
personally because of illness or physical disability, or because
Page 414 U. S. 526
their "duties, occupation or business." The statutes also allow
absentee voting, but not registration, if the voter is away from
his residence on election day because he is confined in a veterans'
hospital or is away on vacation. [Footnote 2
Page 414 U. S. 527
The election authorities denied the request, taking the position
that they were under no obligation to permit the appellants to
register or to vote in person, and that inmates did not qualify for
absentee voting under the provisions of the New York statutes.
The Supreme Court for Monroe County in New York considered the
claims presented by the appellants and treated them as a proceeding
in the nature of mandamus. The conclusion reached by that court was
that the legislature of New York had provided for absentee
registration and voting by any voter unable to appear personally
because of confinement in an institution (other than a mental
institution). The court concluded that the election laws should be
construed to apply to an inmate confined in jail and not otherwise
disenfranchised, since this constituted a "physical disability" in
the sense that he was physically disabled from leaving his
confinement to go to the polls to vote, and that the statute
therefore entitled such persons to vote by absentee ballot.
However, the court noted that there was no showing that any of the
persons claiming these rights had timely filed all the necessary
forms, but that this could yet be accomplished in time for voting
by absentee ballot in November, 1972. The Appellate Division of the
Fourth Judicial Department of the Supreme Court of New York, on
review, gave a similar construction to the election laws,
"We believe that petitioners, being so confined, are physically
disabled from voting, and should be permitted to do so by casting
40 App.Div.2d 942, 337 N.Y.S.2d 700 (1972).
On appeal to the New York Court of Appeals, however, these
holdings were reversed, that court stating:
"The right to vote does not protect or insure against those
circumstances which render voting impracticable.
Page 414 U. S. 528
The fact of incarceration imposes many other disabilities, some
private, others public, of which voting is only one. Under the
circumstances, and in view of the Legislature's failure to extend
these absentee provisions to others similarly disadvantaged, 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 impracticalities or contingencies, not
31 N.Y.2d 317, 32321, 291 N.E.2d 134, 13137.
Judge Fuld dissented, being of the view that §§ 117-a and 153-a
of the Election Law of New York should be read in the manner
announced by the Appellate Division. Judge Burke, joining Judge
Fuld, agreed, stating additionally that any construction of the
election law precluding appellants from exercising their right to
register and vote violated the equal protection guarantees of the
It is important to note at the outset that the New York election
laws here in question do not raise any question of
disenfranchisement of a person because of conviction for criminal
conduct. As we noted earlier, these appellants are not disabled
from voting except by reason of not being able physically -- in the
very literal sense -- to go to the polls on election day or to make
the appropriate registration in advance by mail. The New York
statutes are silent concerning registration or voting facilities in
jails and penal institutions, except as they provide for absentee
balloting. If a New York resident eligible to vote is confined in a
county jail in a county in which he does not reside, paradoxically,
he may secure an absentee ballot and vote, and he may also register
by mail, presumably because he is "unavoidably absent from
Page 414 U. S. 529
the county of his residence." N.Y.Election Law § 117(1)(b)
(1964). [Footnote 3
Thus, under the New York statutes, two citizens awaiting trial
-- or even awaiting a decision whether they are to be charged --
sitting side by side in the same cell, may receive different
treatment as to voting rights. As we have noted, if the citizen is
confined in the county of his legal residence, he cannot vote by
absentee ballot, as can his cellmate whose residence is in the
adjoining county. Although neither is under any legal bar to
voting, one of them can vote by absentee ballot and the other
This Court had occasion to examine claims similar to those
presented here in McDonald v. Board of Election Comm'rs,
394 U. S. 802
(1969). There a state statute provided for absentee voting by
persons "medically incapacitated" and for pretrial detainees who
were incarcerated outside their county of residence. Unlike the
present case, however, in McDonald,
"there [was] nothing
in the record to show that appellants [were], in fact, absolutely
prohibited from voting by the State . . . ," id.
394 U. S. 808
n. 7, since there was the possibility that the State might furnish
some other alternative means of voting. Id.
394 U. S. 808
Essentially the Court's disposition of the claims in
rested on failure of proof.
More recently in Goosby v. Osser, 409 U.
(1973), the Court again considered the problem of
inmate voting and concluded that, unlike the voting restrictions in
case, the statute there in question was
Page 414 U. S. 530
absolute bar to voting because of a specific provision that
"persons confined in a penal institution" were not permitted to
vote by absentee ballot. It is clear, therefore, that the
appellants here, like the petitioners in Goosby,
themselves within the precise fact structure that the
New York's election statutes, as construed by its highest court,
discriminate between categories of qualified voters in a way that,
as applied to pretrial detainees and misdemeanants, is wholly
arbitrary. As we have noted, New York extends absentee
privileges to eligible citizens who are
unable to appear personally because of "illness or physical
disability," and to citizens required to be outside their counties
of residence on normal registration days because of their "duties,
occupation or business." In addition, New York extends absentee
privileges to those voters unable to get to the
polls because of illness or physical disability, to those who are
inmates of veterans' bureau hospitals, and to those who are absent
from their home county on election day either because of "duties,
occupation or business" or vacation. Indeed, those held in jail
awaiting trial in a county other than their residence are also
permitted to register by mail and vote by absentee ballot. Yet,
persons confined for the same reason in the county of their
residence are completely denied the ballot. The New York statutes,
as construed, operate as a restriction which is "so severe as
itself to constitute an unconstitutionally onerous burden on the .
. . exercise of the franchise." Rosario v. Rockefeller,
410 U. S. 752
410 U. S. 760
(1973). Appellants and others similarly situated are, as we have
noted, under no legal disability impeding their legal right to
register or to vote; they are simply not allowed to use the
absentee ballot, and are denied any alternative means of casting
their vote although they are legally qualified to vote.
Page 414 U. S. 531
The construction given the New York statutes by its trial court
and the Appellate Division may well have been a reasonable
interpretation of New York law, but the highest court of the State
has concluded otherwise, and it is not our function to construe a
state statute contrary to the construction given it by the highest
court of a State. We have no choice, therefore, but to hold that,
as construed, the New York statutes deny appellants the equal
protection of the laws guaranteed by the Fourteenth Amendment.
Reversed and remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
31 N.Y.2d 317, 291 N.E.2d 134 (1972).
At the time this permit was sought, N.Y.Election Law § 15a
(Supp. 1971-1972) provided, in pertinent part:
"1. A voter residing in an election district in which the
registration is required to be personal or in an election district
in a county or city in which permanent personal registration is in
effect, and who is unable to appear personally for registration
because he is confined at home or in a hospital or institution,
other than a mental institution because of illness or physical
disability or because his duties, occupation or business require
him to be outside the county of residence, or if a resident of the
city of New York, outside said city, on such days, may be
registered in the manner provided by this section. A voter residing
in an election district in which personal registration is not
required may file an application for absentee registration in
accordance with the provisions of this section and also may be
registered in the manner otherwise provided by law."
Effective January 1, 1973, § 153-a was repealed, and replaced by
N.Y.Election Law § 153 (Supp. 1972-1973), which contains
substantially identical provisions.
N.Y.Election Law § 117-a (1964) provides, in pertinent part:
"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 disability, may also vote as an absentee
voter under this chapter. . . ."
N.Y.Election Law § 117 (1964) provides, in pertinent part:
"1. A qualified voter, who, on the occurrence of any general
election, may be -- "
"a. unavoidably absent from his residence because 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"
"c. 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."
At oral argument, counsel for the appellees conceded that Monroe
County election officials have interpreted the portions of New York
Election Laws §§ 117 and 153-a that extend absentee voting and
registration privileges to those whose "duties, occupation or
business" requires absence from their home counties as including
convicted misdemeanants and pretrial detainees incarcerated outside
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
(1989), was misplaced. Although we rejected in McDonald
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
fact that there was no evidence that the State made it impossible
for the appellants to exercise their right to vote. As the Court
"[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
Page 414 U. S. 532
some inmates to get to the polls on their own."
at 394 U. S. 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.
394 U. S. 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
based are absent. See Goosby v. Osser, 409 U.
, 409 U. S.
-522 (1973). The New York court "reject[ed] out of
hand" any alternative which would permit appellants to vote without
using absentee ballots. [Footnote
] 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
Page 414 U. S. 533
of 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
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
405 U. S. 337
(1972), quoting Kramer v. Union Free School District,
395 U. S. 621
395 U. S. 627
(1969); see also Cipriano v. City of Houma, 395 U.
, 395 U. S. 704
(1969); City of Phoenix v. Kolodziejski, 399 U.
, 399 U. S. 205
399 U. S. 209
(1970). It is this standard of review which must be employed
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,
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
may register and vote by mail. [Footnote 2/2
Page 414 U. S. 534
In 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 misdemeanants 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 394 U. S. 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
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
Page 414 U. S. 535
right 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 o
criminal charges. Indeed, it appears that the New York Constitution
does not permit such disenfranchisement. Article II, § 1, of the
Constitution 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.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins,
Once again we are confronted with a claim, fashionable of late,
that a state statute which, because of its positive provisions,
Rosario v. Rockefeller, 410 U. S. 752
(1973); Kusper v. Pontikes, ante,
p. 414 U. S. 51
see Goosby v. Osser, 409 U. S. 512
(1973), or because of its failure to provide particular persons
particular relief, as here, is an unconstitutional deprivation of
the right to vote. And once again the Court strikes down the state
Because I think the Court is unnecessarily and unwisely
elevating and projecting constitutional pronouncement into an area
-- and into distant and obscure corners of that area -- that, for
me, should be a domain reserved for the State's own housekeeping, I
I join, and with some emphasis, the Court's observations and
those of MR. JUSTICE MARSHALL in his concurring opinion, to the
effect that the much-amended New York statutes here under challenge
cut unevenly. Surely no one would claim that they are now a model
of the draftsman's art. The absentee voting privilege appears to be
available for the voter who is an inmate of a veterans' bureau
hospital, N.Y.Election Law § 117 (1964), but not, seemingly, due to
the statute's silence (unless he can otherwise qualify "because of
illness or physical disability," id.
§ 117-a), for the
voter who is just as nonambulatory, and just as confined, in some
municipal or denominational institution. It is available, under §
117, for the voter, "unavoidably absent" on business, and even for
the voter "absent" on vacation, but not, seemingly, for the voter
who is absent attending a wedding or visiting a seriously
Page 414 U. S. 536
ill relative in the next State. And it is concededly available
for the occupant of the county jail who resides in another New York
county, but not for the occupant who resides in the local
These are irritating and less-than-thoughtful sub
distinctions, and the temptation to eliminate them by
striking down the statutes is strong and appealing. I am not
convinced, however, that we should be so ready to interfere. New
York's present statutory structure has developed by successive
remedial amendments, each designed to correct a then-apparent gap.
The State, after all, as a matter of constitutional requirement,
need not have provided for any absentee registration or absentee
"a legislature traditionally has been allowed to take reform
'one step at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind,' Williamson v.
Lee optical of Oklahoma, Inc., 348 U. S.
, 348 U. S. 489
(1955); and a
legislature need not run the risk of losing an entire remedial
scheme simply because it failed, through inadvertence or otherwise,
to cover every evil that might conceivably have been attacked. . .
McDonald v. Board of Election Comm'rs, 394 U.
, 394 U. S. 809
(1969). See also Jefferson v. Hackney, 406 U.
, 406 U. S. 546
Furthermore, this fallout from the New York statutes is minor
and collateral, and not of great, let alone constitutional, import.
There is bound to be a dividing line somewhere, intended or
unintended (as I suspect this was). If that dividing line operates
to deprive a person of what he feels is his right to vote, his
reaction will be critical. Whether he has a constitutional claim,
however, is something else again. Line drawing is necessary, as the
Court conceded in Dunn v.
Page 414 U. S. 537
330, 405 U. S. 348
(1972), and by the very process of line drawing someone will be
left out or treated differently.
I feel, therefore, that any unequal effect of the New York
statutes is largely incidental, and wholly a function of the
State's failure to extend its remedial provisions a little further.
These appellants are affected, to be sure, but they are affected
because it was their misfortune to be detainees or convicted
misdemeanants serving their sentences in the county jail on the
critical day. The misdemeanants were in jail through their own
doing, just as the petitioners in Rosario v. Rockefeller,
found themselves unable to vote because of their
failure to meet an enrollment deadline. The plight of detainees
elicits concern, of course, for a detainee may not be guilty of the
offense with which he is charged. Yet the statutes' effect upon
him, although unfortunate, produces a situation no more critical
than the situation of the voter, just as unfortunate, who on
election day is away attending the funeral of a loved one in a
distant State. These are inequalities, but they are the incidental
inequalities of life, and I do not regard them as
I would refrain from continued tampering and interference with
the details of state election laws. If details are deserving of
cure, the State's legislature, not this Court, ought to be the