MCDONALD v. BOARD OF ELECTION
Legal provision: Equal Protection
Argument of Stanley A. Bass
Chief Justice Earl Warren: Number 68, Sam L. McDonald ET AL, appellants versus Board of Election Commissioners of Chicago ET AL.
Mr. Stanley A. Bass: Mr. Chief Justice, may it please the Court.
This is an appeal from an order of the three-judge Court in Chicago, dismissing a suit for declaratory judgment and injunction.
The suit was filed by two pre-trial detainees from Chicago, Cook County jail, on behalf of themselves and all of the persons similarly situated who are registered qualified voters but who are unable to get to the polls on election date because they are incarcerated, either without bail or because they lack the funds to post to monetary bail.
The suit sought a judgment declaring that the Illinois --
Justice William J. Brennan: In other words these are not people who have been convicted of crime, is that it?
Mr. Stanley A. Bass: That's correct.
Justice William J. Brennan: They're just awaiting trial?
Mr. Stanley A. Bass: Correct.
The suits sought a judgment declaring that the Illinois statutes applicable to absentee voting are unconstitutional and so far as they preclude the granting of absentee ballots to pre-trial detainees confined in the county of their residents.
A timely notice of appeal was filed from the judgement of the District Court.
The jurisdictional statement was filed in February.
In April, this Court grants a leave to proceed in 0139 and postponed the issue of jurisdiction until the hearing on the merits.
So, I will turn first to the issue of jurisdiction.
Under Section 1253 of Title 28, appeals lie directly to the Supreme Court from an order denying an injunction and a civil action which is required to be heard by a three-judge Court.
We therefore turn to Section 2281 of the judicial code which provides the three-judge district Court is required where an injunction is sought to restrain the enforcement, operation, or execution of a state statute by restraining the action of an officer of the state.
So there are three ingredients here.
First, that injunction must be sought, that was true in this case.
Second, that there is a state statute or general state wide application.
That's what we have in this case.
Third, that we have a state officer or pursuant to the decisions of this Court, a local officer functioning pursuant to a state wide policy performing a state function.
Now under Illinois law, as far as absentee ballots are concerned, the Chicago Board of Election Commissioners has the same responsibility as the county clerk in another county or anybody else who was charged with the duty of furnishing absentee ballots.
Indeed, Section 19-2 of the election code which appears on page 15 of our brief states on the ninth line of the provision that the elector make application to the county clerk or were existing to the Board of Election Commissioners or other officer or officers charged with the duty of furnishing ballots for such election in his voting district.
So that the fact that the Board of Election Commissioners here are the defendants is not relevant because their function is a state wide function, they perform the same function with respect to absentee ballots as the officers in the other counties and localities.
Nor is this case moot at this time.
It is true that the two named representative plaintiffs are not in the Cook County jail awaiting trial.
Mr. Byrd was discharged a week after the election at his preliminary hearing and Mr. McDonald went to trial, it was a hang jury and he subsequently pleaded to a reduce charge of manslaughter which is a bailable offense.
However, since this is a class action and was found to be so by the trial court and I referred to page 30 of the record, where the three-judge Court says plaintiffs and the class they represent are.
The fact that this is a class action means that the fact that the named plaintiffs are not members of the class a more is not fatal as this Court indicated a month after the jurisdictional statement was filed to this case and the case was Lee versus Washington which involved the desegregation of the Alabama jails.
This Court --
Justice Thurgood Marshall: Have you made implicate -- have an intervener so you'd have a named party?
Mr. Stanley A. Bass: No effort has made -- was made to name any persons but I presume and I would respectfully ask the Court to respect the judgement of the District Court that this was a class action and that there are in the county jail prior to each election, a certain number of persons for which --
Justice Thurgood Marshall: As I understand it, you say that it was a class action, I'm wondering what is it now?
Mr. Stanley A. Bass: What is it at this moment?
Justice Thurgood Marshall: Yes sir.
Mr. Stanley A. Bass: Well, Mr. Justice Marshall, the problem is that the class really cannot be seen very clearly until right before an election because it's very difficult to predict exactly who will be a pre-trial detainee on the day of election.
One could ascertain with some degree of certainty perhaps that we go to before the election exactly which persons, which named persons would be pre-trial detainees unable to get to the polls on election day and because this class is rather fluid, it's really impossible to identify any names except right before an election but I think the three-judge court below recognized that there surely must be a number of persons who are registered qualified voters in jail on the day of election.
Incidentally, the Cook County jail has about 1800 inmates, 2/3 of which awaiting trial, so that then there must be some number of person although they cannot be identified except right near an election.
Justice Potter Stewart: So, it's going to be someone who has just been put in jail the day or the two in court too before who will not be able to vote under the ordinary --
Mr. Stanley A. Bass: Vague questions because --
Justice Potter Stewart: provision governing all absentee voters.
There must -- there's a minimum time in advance within which you have to --
Mr. Stanley A. Bass: That's correct.
Justice Potter Stewart: -- apply for ballot, is there?
Mr. Stanley A. Bass: And we're not attacking that provision on making application within a certain amount of time as being --
Justice Potter Stewart: Because actually of general applicability to call absentee voters --
Mr. Stanley A. Bass: Yes.
Justice Potter Stewart: -- is that it?
Mr. Stanley A. Bass: Well, it's a reasonable provision.
I don't think that there is anything unreasonable about requiring submissions perhaps to do ballots to be made in a certain time because there are some administers.
Justice Potter Stewart: Well, let say -- I don't quite -- really, we're not here to decide what's reasonable or unreasonable, are we?
Mr. Stanley A. Bass: Well, I'm not assailing the provisions regarding time.
We are assailing the substantive provisions as to who can take the ballot.
Justice Potter Stewart: Not because they're unreasonable, are you?
You're assailing him because you submit that they violate the Equal Protection Clause --
Mr. Stanley A. Bass: That's correct.
Justice Potter Stewart: -- amendment of the United States constitution?
Mr. Stanley A. Bass: I will turn to that.
Justice Byron R. White: But does the class include people who are convicted without sentence?
Mr. Stanley A. Bass: No, they're unconvicted.
We use the word unsentenced a few times but the --
Justice Byron R. White: The court below, did the District Court set any sentence?
Mr. Stanley A. Bass: The --
Justice Byron R. White: They should pass the standard to represent all unsentenced inmates.
I supposed that could be under or will be the same problem, wouldn't they?
Mr. Stanley A. Bass: There was some loose language, we intended and was clear but the time were litigating this, we were dealing with the pre-trial detainees rather than persons who were between that period of conviction and sentence.
Justice John M. Harlan: Do you make any due process argument?
Mr. Stanley A. Bass: Well frankly, I would like to allude to an argument which might be considered a due process one I haven't raised it the brief but we raised it with respect to answering the Board of Election Commissioners argument about the fact that persons who can be deprived of liberty cannot assert privilege.
In other words, if it is a due process argument, it would be that the mere fact the person is detained prior to trial does not mean that he could be deprived the all rights.
I would like to turn to the merits of the case at this time.
This case was originally argued on a rational basis test but recently this Court decided the Williams versus Rhodes which seems to have put the right to vote on a First Amendment basis and it appears to us that Williams versus Rhodes makes clear that the right to -- that there is a relation between voting and political expression which is protected by the First Amendment and secondly, that the state must show a compelling state interest in imposing heavy burdens upon the right to vote.
Now, in this case, it's not very clear, it's not clear at all whether there are any legitimate state interests who are compelling to justify the denial of the right to vote to a person whose awaiting trial.
It would appear that the most that the election board could say would be that there's an administrative convenience in not having to dispense too many absentee ballots, but it seems to me that the mere fact that it's a few more absentee ballots to give out does not justify deprivation of such a fundamental right.
The board of election commission has taken the position in its brief that voting is a privilege or the voting by absentee ballot is a privilege rather than array.
And it seems to me that by calling something a privilege doesn't mean that the state can arbitrarily deny it to you.
Surely, if absentee ballots were dispensed on the basis of race, I don't think this Court would hesitate to say that that would be a denial of equal protection of the law, merely because absentee balloting may be considered a privilege by the state, and the District Court in Brown versus Post which we referred to in our reply brief held that where the Board of -- where the elections people went to the nursing home, the white nursing homes and not the black nursing homes that that was a denial of equal protection of the law and in giving out absentee ballots.
We submit that the mere fact that there is an absentee ballot rather than voting in person does not justify such a distinction.
Now, the Board of Election Commissioners raises the question, “need prisoners be afforded privileges when they can be denied liberty.”
I think this is perhaps the first case that this Court has had an opportunity to determine, whether there are any conditions or consequences of pretrial detention which may be considered constitutionally impermissible.
We must recognize that no matter how much bail reform occurs there is just going to be a number of people are going to be incarcerated prior to trial and it seems to me that we must address ourselves to the consequences of the pretrial detention.
I don't think it's a basic proposition one could say that the mere fact the man is detained prior to trial means you can do anything you want with him.
I think he's entitled to certain minimum standards of decency.
I think that if the state attempts to deny certain basic rights, they must show a compelling interest.
Now, what kind of compelling interest might be shown?
Perhaps institutions have certain rules regarding persons who visit.
Considerations of institutional security of course are parallel.
I think this Court in Lee versus Washington indicated that it's decision in no way suggested that the warden couldn't make allowances for institutional security.
But nowhere in the record of this case or in any case have I ever heard that inmate voting by absentee ballots or some -- have -- going to disrupt the routine of an institution.
There's nothing to suggest that it does.
I think common sense would suggest that perhaps morale would be a lift when somebody votes from behind bars.
Justice Potter Stewart: You have an opportunity to look at the -- at the absentee ballot and laws of any of the other states?
Mr. Stanley A. Bass: Yes I did, I made a state by state canvass.
Justice Potter Stewart: What'd you find out with respect to --
Mr. Stanley A. Bass: Well, I found out that --
Justice Potter Stewart: -- just as right as your clients are.
Mr. Stanley A. Bass: Every state grants absentee ballots to the servicemen who are abroad.
Two states seem to recognize the right of prisoners to vote.
Both of these states I have opinions of the Attorney General but I found no cases.
Most -- excuse me.
Justice Hugo L. Black: Go ahead.
Mr. Stanley A. Bass: Most of the states have varying provisions from physical disability to absence from various localities. For example, once -- the 12 states say that if you'll be absent from the precinct, you can get an absentee ballot.
Six states say if you're absent from the city, you get an absentee ballot.
One state, Louisiana says if you're absent from the parish, 23 states say if you're absent from the county, and five states say if you're absent from the state on Election Day, you can get an absentee ballot.
Justice Potter Stewart: I don't -- some of the state limit the eligibility for absentee of the ballots to those who are going to be absent for specified reasons?
Mr. Stanley A. Bass: Some of them break it down and say absence in the county for business reasons.
Justice Potter Stewart: For business but not -- but not for a vacation, isn't that true?
Mr. Stanley A. Bass: That's for some of them do.
Justice Potter Stewart: So they will require the absence to be on kind of business, others --
Mr. Stanley A. Bass: Some do.
Justice Potter Stewart: -- limit it or to use to at least to military and student?
Mr. Stanley A. Bass: That's right.
Justice Potter Stewart: And others to physical incapacity to be there?
Mr. Stanley A. Bass: That's correct.
Justice Potter Stewart: Is that true?
Mr. Stanley A. Bass: Now, we're not --
Justice Potter Stewart: But there are sorts of -- aren't there all sorts of classifications --
Mr. Stanley A. Bass: That's correct.
Justice Potter Stewart: -- made by each one of the states or at least by the typical state.
Mr. Stanley A. Bass: That's right, Illinois has an interesting classification.
Justice Potter Stewart: There's no state is there that -- that just says, if you're not going to be here for any reason.
Mr. Stanley A. Bass: I think Maine says that.
Justice Potter Stewart: Maine does say that.
Mr. Stanley A. Bass: I think that's the only state that does it.
Now, we're not suggesting that everybody who wants an absentee ballot can have one.
There are certain limitations which we recognize as constitutionally.
For example, the mere fact that a mother who has children or a breadwinner who has a job with long hours can't get to the polls, may find it inconvenient, we feel that we're not submitting that that's a denial of the constitution but what we have is something more than that.
We have the state putting the man into disability.
They have the state judge putting the man in jail on Election Day.
And we have another state agency which refuses the ballot and together that's joint state action which effectively deprives a man of the rights to vote.
So it seems to me that the situation of the prisoners can't be distinguished and any decision in their favor would not necessarily have to require that everybody in the world get an absentee ballot.
Justice Abe Fortas: Do you have that state by state analysis to which you just referred in your brief?
Mr. Stanley A. Bass: We did not include it on the brief Your Honor, Justice Fortas.
I would be glad to submit that by way of a supplemental brief if I think I believe to do so.
Justice Abe Fortas: It would be helpful if you do that.
Mr. Stanley A. Bass: I will.
Justice Abe Fortas: It's alright.
Mr. Stanley A. Bass: In terms of legitimate state interest, perhaps it might be urged that the takeover theory that all of the inmates voting together might outweigh a community.
But in the first place, the inmates would vote in the count -- in the precinct in which they lived prior to becoming member of the jail population so that they would not vote in the precinct where the jail was located but they would be in disperse from the various precincts in which they come.
In any event, I think that the takeover theory was rejected by this Court in the Carrington case.
Now, we would submit that the -- that this case can be decided on a number of theories. One theory would be that the granting of the absentee ballot to a person who is jailed in another county or denial of an absentee ballot of a person jailed in the county of his residence is absolutely irrational.
Justice Abe Fortas: Doesn't the proposition that you're advancing here lead us to invalidate an awful lot of these state laws to which you've referred.
That is to say why is it -- you make the distinction that here the prisoner is being kept away from the polls by a state action, is that right?
Mr. Stanley A. Bass: That's correct, that's my second theory.
Justice Abe Fortas: Huh?
Mr. Stanley A. Bass: That's my second theory that this case goes off on the fact that the state granted him unable to get to the polls.
Justice Abe Fortas: Well, I suppose when you're talking about what is -- what is primary cause (Inaudible) and so on, what is your first reason?
Mr. Stanley A. Bass: Well, the first one is that the classifications that the state of Illinois has employed are not rational or based upon compelling state interest.
That is that the Board of Election Commissioners or the state has failed to show in what respect is a legitimate state interest that requires the denial of absentee ballots to this --
Justice Abe Fortas: Well, that's the one that would require -- that would lead at least by the treacherous path of strict logic to the conclusion that we have to examine everyone of these state laws and say that it's not rational or reasonable for a state to say that you can get an absentee ballot if you're out of town on business but not if you're out of -- not up here -- out of the state or some other reason.
Mr. Stanley A. Bass: Well, I would say yes except using the compelling state interest theory that the state would probably be able to show in a large number of those situations involving their inconvenience rather than impossibility that there is a legitimate -- that there is a compelling state interest, whereas in this case, I don't think that they can show that.
Justice Potter Stewart: How about the -- under the laws that exist, how about the man who is physically incapacitated, the man or woman who was physically incapacitated for medical reason?
If he is in the county, does -- he can vote absentee again.
Mr. Stanley A. Bass: Physically incapacitated I believe the -- about perhaps half of the states.
Justice Potter Stewart: I'm not talking about Chicago, about Illinois.
Mr. Stanley A. Bass: Well, if a man who is physically incapacitated and he can produce a certificate of a physician which the Illinois statute requires and if he is inside the county, he can get an absentee ballot.
These provision -- and also, if he can show that because of religious groups, he can get -- there was also a way --
Justice Potter Stewart: And those are the only -- those are the only two classifications of people who are in the county on election day is those who are physically incapacitated that is medically incapacitated or those who are observing a religious holiday who may get an absentee ballots, is that correct?
That's the way I read the --
Mr. Stanley A. Bass: There was one classification that was added by the legislature at the last minute which escape the attorney's and the three-judge court in this case and that was a judge of election who is working on election day --
Justice Potter Stewart: On a different precinct, yeah.
Mr. Stanley A. Bass: -- on a precinct other than his own but those are the classes.
Chief Justice Earl Warren: In addition to that, I suppose your veterans can vote, can't they?
Mr. Stanley A. Bass: The veterans?
Chief Justice Earl Warren: Who are out of the state?
Mr. Stanley A. Bass: Well, members of the Armed Forces.
Chief Justice Earl Warren: That's what I mean.
Mr. Stanley A. Bass: Correct.
Chief Justice Earl Warren: That's what I mean.
Mr. Stanley A. Bass: And many other people who are out of the state?
Mr. Stanley A. Bass: That's right.
There use to be a special provision for servicemen which was article 20 but since the provision was added, anybody out of the county, that automatically swallowed up that group.
Chief Justice Earl Warren: How about if they're in a camp in the state?
Mr. Stanley A. Bass: As long as they're out of the county that's all at least are required.
The Board of Election Commissioners will give them an absentee ballot.
And even if a man is in jail if he's in the county other than the county of his residence, presumably, he'll get an absentee ballot too.
So it seems to me that it's difficult to say that this refusal to give absentee ballots to these class of persons is justified by considerations of institutional security, because of that would show, the legislature would have said I hope that we make a finding that because of the routine of the jail, it would be so disruptive that no absentee ballot should go to prisons.
Justice Potter Stewart: Well, you don't have a case in which the state has explicitly said, we are going to deny the right of an absentee ballot to people who are in jail.
You have rather than that -- you have a case in which the state has said, we are going to grant right of absentee ballots to people who are even though they're going to be in this county on Election Day to the following two groups into these two groups, three groups into these three groups only.
Those who are medically incapacitated, those who are celebrating their religious holiday, and those who because they're judges or poll watches or something, or going to be at another pre-voting place.
Mr. Stanley A. Bass: And those who'll be out of the county.
Justice Potter Stewart: And those are the only three groups to whom we're going to grant the right of absentee voting even though they are in the county on Election Day.
You do no not have a case where the state at least any as explicit are considered kind of a way has said that we're going to deny the right of absentee ballots even though we grant it to everybody else, we're going to deny it for those who are in jail.
Mr. Stanley A. Bass: That's correct Mr. Justice Stewart.
Justice Potter Stewart: You don't have a case to that kind of discrimination at all.
Mr. Stanley A. Bass: It's a denial by implication rather than expressed denial but I think that that makes this case stronger because had the legis --
Justice Hugo L. Black: uppose a business -- medically incapacitated, wouldn't he be allowed to vote?
Mr. Stanley A. Bass: Judge Lynch said that he could.
Justice Hugo L. Black: What?
Mr. Stanley A. Bass: Judge Lynch in the first McDonald case said.
Justice Hugo L. Black: I mean, wouldn't that be a reasonable interpretation of the statute?
It doesn't say that a medically incapacitated man who's in prison will not to be granted the right to vote.
Mr. Stanley A. Bass: I would say as to that to --
Justice Hugo L. Black: I would think that your prisoners would be as medically incapacitated like the class A created would come under that statute and be entitled to have an absentee ballot.
Mr. Stanley A. Bass: He might be able to but that does get into that causation question as to whether the cause has in ability is the fact that he is sick or the fact that he is incarcerated.
Justice Hugo L. Black: Well, that might some -- there's someone that might be then medically incapacitated.
Mr. Stanley A. Bass: I think if he had his physician certificate under those circumstances that the Board of Election Commissioners would probably give him the ballot.
Justice Hugo L. Black: Yeah, that's what I thought.
Mr. Stanley A. Bass: I think so.
Justice Hugo L. Black: So that that involves his business?
Mr. Stanley A. Bass: No, it just bars those that are well, that are not religious that are unconsecrated in the county of their own residence and it seems to me that that type of classification doesn't make any sense and is certainly is not justified by any compelling state interest.
I tried to figure out, if there were any, I looked at the brief of the Board of Election Commissioner as unable to find any.
It seems to me what the State of Illinois is done here and it gives this Court a unique opportunity to get into the area of absentee ballots is --
Justice William J. Brennan: You need that.
Mr. Stanley A. Bass: Well, I think that it's an important one because absentee ballots have been with us since the civil war and they've become a very convenient means of voting.
It's not like in the old day where it was considered such a new process that this Court, state Courts was tracking them down.
Justice Byron R. White: What's -- what happen -- what does an Illinois election official say if somebody shows up to the polling place and not with his certificate of a physician but certificate of the ward which states people did, what does a -- what do the election official say?
Mr. Stanley A. Bass: Well, they said --
Justice Byron R. White: It's not of the polling place for that's the absentee ballots they might think.
Mr. Stanley A. Bass: Well, they said in this case that you don't have the right certificate.
Justice Byron R. White: But would it be a violation of the Illinois law and say didn't, send them, give them out absentee ballot?
Mr. Stanley A. Bass: Well, as I understand Illinois law, it's true that the provisions of absentee ballots are permissive but it seems to me that --
Justice Byron R. White: But didn't this man say that I refuse to do this, I refuse to issue these ballots because that would be subject to criminal penalties if I did?
Mr. Stanley A. Bass: He said he would be.
I don't know if there's any express provision that says if you give an absentee ballots to other persons that'll be a violation of the law.
I think the Election Board probably assumes that if he gives ballots to persons other than those named expressly that this would be a violation of Illinois law.
But as I read the statutes, there is nothing that says, don't give it to these people, it just doesn't say, give it to these people.
Justice Abe Fortas: Well, how can a person who is in jail know that he won't be out in time to vote if he is jail and hadn't been convicted?
Mr. Stanley A. Bass: It's his next continued Court date.
Justice Abe Fortas: Sir?
Mr. Stanley A. Bass: It's his next continued Court date if that continued Court date.
Justice Abe Fortas: Maybe a bit bail or maybe you represent him and get him on his own recognizance.
Mr. Stanley A. Bass: Well --
Justice Abe Fortas: And --
Mr. Stanley A. Bass: It's -- that's the same situation as a person who thinks he's going out of town on business.
Justice Abe Fortas: Now, how about a fellow who will know not quite because he's not being held and released by somebody else.
He's theoretically master his destiny.
How about a person who's been convicted of a misdemeanor and is in jail, now, you're not, are you disqualified under Illinois law if you have been convicted of misdemeanor?
Mr. Stanley A. Bass: No you're not.
It's only --
Justice Abe Fortas: And suppose the Court has been convicted of a misdemeanor --
Mr. Stanley A. Bass: He'd be similarly situated.
Justice Abe Fortas: -- and he's in jail, the same principle would apply to him, would it?
Mr. Stanley A. Bass: Yes it would and it would apply also to persons who are convicted of civil crimes, non support or contempt.
It seems to me that if it's anything other than conviction of a felony and if -- or from this crime, you're not disenfranchised explicitly but you do run into the problems since you can't get to the polls.
Are you entitled to that mechanism which the State of Illinois has setup?
Justice Abe Fortas: Well, if they're going to vote, I suppose they don't have a right to have to listen to political arrange appeals to their better nature and judgment.
Mr. Stanley A. Bass: I would say it to the extent to which the state can show a compelling interest in limiting that the number of persons that can come in campaign, subject to the certain restrictions which are atoned to the institutional framework that the state can refuse certain rights of the persons who want to campaign but it seems to me as a basic preposition is to whether or not there are any restraints at all.
It seems to me that the state must show that compelling state interest in the case where they seek to restrict a vote.
Chief Justice Earl Warren: Some of the Western States, there are counties that are larger than some of the eastern states and suppose a man went from one end of the county where he lives to another end of that county to live in a -- say in a hotel and he would be there over Election Day, would you say that it was -- it was unconstitutional not to send him a ballot under the law that you have in?
Mr. Stanley A. Bass: Well, I would say to the extent to which he's really the -- really has control over his situation that that would mean, not like the fact in this situation.
I recognize that there are problems of judgment in determining when the state has satisfied its burden of showing a compelling state interest.
But it seems to me that where we have persons like persons in the army or persons in jail.
That person is precluded by an official act from getting to the polls and he would have to break the law.
He would actually have to escape jail or go AWOL in order to try to cast his vote.
And we submit that under those certain circumstances, the state must show a very compelling interest in order to justify giving him the ballot which can be easily be voted by mail.
I wanted to add one last matter and that is that we have a presumption of innocence under the law.
However, in reality, this presumption can be willed away by a lot of circumstances.
For example, we're beginning to discover that conditions of pretrial detention in very many institutions across the country are a lot lower standard than we would consider human decency it requires.
And it seems to me that unless this Court is willing to say that there are some limitations, there are some rights that you just can't take away from the man merely because he's awaiting trial.
He's presumed to be innocent.
In order to give full filthy the presumption of innocence, the Court has got to say that it was a very important right the state must show a compelling state interest in order to deprive the man of that right.
I'd like to receive a few moments of time to --
Chief Justice Earl Warren: You may resume.
Argument of Stanley T. Kusper, Jr.
Mr. Stanley T. Kusper, Jr.: Mr. Chief Justice Warren, may it please the Court.
Mr. Beemsterboer, Mr. Bass.
Counsel for petitioners, excuse me, has consistently stated this case in the negative, both at the trial level and before this Court.
His constant statement has been, the state must show a compelling state interest in depriving this small group of persons of a supposed constitutional right to an absentee ballot.
I would care to phrase it in another way for the Court.
The state has extended to large ascertainable groups of people the privilege of absentee balloting, the privilege of the ballot, excuse me, the right of the ballot has been constitutionally guaranteed but the privilege of casting it under conditions imposed by the state which are reasonable by an absentee ballot, I think its just that, a privilege and so the state of Illinois has extended to large discernable ascertainable groups of people the right of voting by absentee ballot.
Large numbers of people leave the community on business or for whatever other reason and leave the county.
In 1968, some 15000 applications were received from persons at the Board of Election Commissioners.
Justice Hugo L. Black: And necessary for one who's on your side?
Mr. Stanley T. Kusper, Jr.: Pardon?
Justice Hugo L. Black: Is it necessary for one who wants to be on your side, try to put it on the basis on the difference between the privilege and a right.
Mr. Stanley T. Kusper, Jr.: I don't think so Mr. Justice --
Justice Hugo L. Black: I would think it makes up
Mr. Stanley T. Kusper, Jr.: I don't think so at all but rather than confused right with privilege, let's talk about what it really is.
Justice Hugo L. Black: -- take care of one evil have to take care of every possible evil that anyone can conceive off?
Mr. Stanley T. Kusper, Jr.: No, certainly not.
I think a state legislature in attacking any kind of a problem or any kind of an evil may take it that the entire evil at one time may take it step by step.
It may progress from one phase of the problem to another phase of the problem and make corrections as it has seen fit.
And in fact, in Illinois as the trial court below has pointed out, absentee balloting was instituted in 1917, at 3208 and it was modified again in 1944, expanded in 1955 and just in the 1967 session of the legislature, short time subsequent to the trial of this case, it extended absentee balloting to those persons who are judges of election who would serve outside the precinct.
Justice Thurgood Marshall: Why were these people excluded?
Mr. Stanley T. Kusper, Jr.: Why were they excluded?
Justice Thurgood Marshall: Yes sir.
Mr. Stanley T. Kusper, Jr.: Mr. Justice Marshall, I don't know why they were excluded.
Justice Thurgood Marshall: Well, don't you think the state should have some reason?
Mr. Stanley T. Kusper, Jr.: I think the state has a reason for enacting a piece of legislation in --
Justice Thurgood Marshall: Now, do you think --
Mr. Stanley T. Kusper, Jr.: -- the nature of absentee balloting.
Justice Thurgood Marshall: Do you think the states obliged to tell somebody the reason you distinguish between prisoners awaiting trial outside the county and those inside the county.
Mr. Stanley T. Kusper, Jr.: Prisoners awaiting trial outside the county Mr. Justice Marshall are outside of the county and fall into that class of persons granted the absentee ballot privilege --
Justice Thurgood Marshall: Aren't these --
Mr. Stanley T. Kusper, Jr.: Because they're out of the county.
Justice Thurgood Marshall: Well, they're different because they're outside of the county?
Mr. Stanley T. Kusper, Jr.: That's correct.
Justice Thurgood Marshall: But they're still awaiting trial by the state of Illinois?
Mr. Stanley T. Kusper, Jr.: That is correct.
Justice Thurgood Marshall: So that much they are like but why draw the line there?
Mr. Stanley T. Kusper, Jr.: Because the state has taken affirmative action in granting the absentee ballots to groups of people.
It has by inadvertence or otherwise, I don't know if they had a reason for it, I certainly wouldn't know if they ever considered the problem.
It maybe that they never even thought of the problem.
Justice Thurgood Marshall: Can you think of a reason?
Mr. Stanley T. Kusper, Jr.: Can I think of a reason?
Justice Thurgood Marshall: Yes sir.
Mr. Stanley T. Kusper, Jr.: Why they should not be granted an absentee ballot?
Justice Thurgood Marshall: No, why the state made a difference a man in jail waiting for trial outside the county and a man waiting for trial inside the county.
When you finish that, I want to know the different between a man out on bail and a man who is incarcerated for not having the money for bail.
Mr. Stanley T. Kusper, Jr.: Its my firm belief that the legislature in enacting absentee ballot legislation never considered the problem of persons present inside the county in a jail awaiting trial and persons outside of a county awaiting trial.
Justice Thurgood Marshall: You mean he didn't know that?
Mr. Stanley T. Kusper, Jr.: I don't know sir whether or not they knew about it.
There are 177 members of the Illinois House, there are 59 members of the Illinois Senate, I would not presume to know what they thought about it.
There is no history on the legislation available which would indicate to use whether or not they even considered the problem.
Justice Thurgood Marshall: But that in mind as we've looked at this, can we say that we see no valid reason for distinguishing two man are charged with a crime, one has bail money, the other man has no bail money, they both committed the same crime, one can vote and the other one cannot.
Now, what reason is there for that distinction?
Mr. Stanley T. Kusper, Jr.: I don't know of any reason at all Mr. Justice Marshall, I could not --
Justice Thurgood Marshall: Aren't you obliged -- aren't you obliged to give us a -- something close to a reason?
Mr. Stanley T. Kusper, Jr.: No I believe my burden sir under the language of the cases of this Court is first of all, to demonstrate that, Mr. Bass on behalf of petitioners has not carried his burden to show that there is unreasonable basis so that there is invidious discrimination, whether there is arbitrariness or capriciousness in the action of the legislature in enacting this particular legislation, and secondly, if the burden does shift to me to rational or justify the decision then its my burden to go forward with it and you asked me for a reason sir and I cannot give you a reason why a legislation beginning back in 1917 prior to the time of my birth sir, why that legislation did not contain some provision for these persons.
It is my sincere belief as I stated before that the legislature just not ever considered the problem.
Either A because it wasn't cognizant of it or B, nobody just took the time to bring it up.
Justice Thurgood Marshall: But the legislature did consider the problem as to whether or not people in jail awaiting trial should or should not have an absentee ballot.
The legislature did consider that, didn't he?
Mr. Stanley T. Kusper, Jr.: No sir, there is nothing in this record that would indicate that and there is nothing in the history of the legislation that would indicate it.
The physical incapacity that is discussed in -- is covered in the statute relates itself solely to the question of physical incapacity because of physical illness that properly attested to by the affidavit of the physician or of a Christian Science practitioner and there is nothing in the statute nor anything in the legislative history which would indicate that the legislature ever considered this and deliberately drew distinction between the two classes of persons.
All the considered was in the county and who's out.
Justice Thurgood Marshall: Who did draw the distinction?
Mr. Stanley T. Kusper, Jr.: Mr. Bass is apparently drawn the distinction Your Honor.
Justice Thurgood Marshall: No, these people tried to file their absentee ballots and election commissioner said that they were not physically handicapped, isn't that what happened?
Mr. Stanley T. Kusper, Jr.: The election commissioners and I was present at all times when this petitions for absentee ballot were presented.
The election commissioners being statutory creature is bound by statutory requirements in state of Illinois.
They have the ability to grant absentee ballots in those specified cases enumerated in the statute allowing the privilege of absentee voting.
When Mr. Bass came to our office with an affidavit and an application for a ballot with the affidavit of an assistant warden I believe it was in each case.
He did not comply with any of the permissive applications that were provided in the statute and therefore, the Board of Election Commissioners --
Justice Thurgood Marshall: Well, what is there -- what is there in the statute that this did not comply with?
Didn't he say they were physically for them to get that?
Mr. Stanley T. Kusper, Jr.: They said sir that it was physically impossible for them to be in attendance at the polls and then they attached an affidavit of an assistant warden which says they couldn't leave the premises but they did not attach the affidavit of a doctor or a Christian Science practitioner which was what was required under the statute of Illinois, and therefore the board of election commissioners being purely ministerial at this point could not accept that application or that affidavit and could not within the meaning of the statute grant an absentee ballot to do so, would have been a violation of Illinois law under the Article 29 (a).
Justice Thurgood Marshall: But there's no question that this was state action?
Mr. Stanley T. Kusper, Jr.: I don't think --
Justice Thurgood Marshall: The action of the commissioners, no question about that.
Mr. Stanley T. Kusper, Jr.: The commissioners acted in pursuant to Illinois statute.
There is no question about the fact that they acted under Illinois law in their capacity as officers created by a statute in Illinois.
Justice Byron R. White: Were you advising them?
Mr. Stanley T. Kusper, Jr.: Yes I was sir.
Justice Byron R. White: And that -- would you help me to draw his affidavit?
Mr. Stanley T. Kusper, Jr.: Was I advising whom, excuse me.
Justice Byron R. White: The election commissioners.
Mr. Stanley T. Kusper, Jr.: I was advising the election commissioners --
Justice Byron R. White: Would you help draw his affidavit?
Mr. Stanley T. Kusper, Jr.: Did I help draw the affidavit for the physically incapacitated people, no I did not sir, that is --
Justice Byron R. White: No, for the election commissioner.
Mr. Stanley T. Kusper, Jr.: No, I did not, that is --
Justice Byron R. White: What is on page 26, as you named it, the end of it, 26 and 27 of the record?
And it says that I -- you say that I refused to authorize issuance of absentee ballots to the named plaintiffs rather than violate my statutory duty and you say that I will grant and that you will grant future applications only if forced to do so by compulsory process and --
Mr. Stanley T. Kusper, Jr.: That is the end of the --
Justice Byron R. White: -- if they did it and you say if they did it, you'd be subject to fine and imprisonment.
Mr. Stanley T. Kusper, Jr.: That is correct.
I drew the affidavit for the Board of Election Commissioners that is correct.
Justice Byron R. White: So there is a law --
Mr. Stanley T. Kusper, Jr.: In the pleadings.
Justice Byron R. White: So there is a law in Illinois that if the election commissioner had issued this ballots, they'd had been put in jail, or fined.
Mr. Stanley T. Kusper, Jr.: There is a general provision Mr. Justice White.
Justice Byron R. White: You mean -- so therefore -- you're saying there is no state action that secludes these people getting --
Mr. Stanley T. Kusper, Jr.: Well, there is a state statute that precludes it but they acted in denial of the petition for an absentee ballot pursuant to an otherwise state statute.
They just couldn't grant it because the state statute didn't let them grant it and it would subject to them to penalties if they had.
Justice William J. Brennan: Am I right Mr. Kusper of the fact that this affidavit says is that it has to be denied just specific or affirmatively written on the election law of Illinois that absentee ballot shall be not given to the pre-trial detained.
Mr. Stanley T. Kusper, Jr.: It's not exactly what it says, Mr. Justice Brennan --
Justice William J. Brennan: I know what it said but doesn't this affidavit have other fact?
Mr. Stanley T. Kusper, Jr.: What it says is I can't do anything other than which is permitted to me to do under the laws of Illinois and there is no provision in the Absentee Balloting Act of Illinois which allows the Commissioner to grant application for an absentee ballot on a basis of these warden's affidavit.
Justice William J. Brennan: What did Mr. Boseman mean when he said I will grant future application only when compelled to do so by composing possibly accordance to incumbent jurisdiction as I'm am done on three previous occasions?
Mr. Stanley T. Kusper, Jr.: Because we were ordered on three previous occasions by the Federal Court, Judge Lynch in both cases presiding and it was not a State Court it was a Federal Court which ordered us to do it and in pursuance to that kind of an order I think we have to act, it put us between the devil and the deep blue sea.
Justice William J. Brennan: He ordered you to do, why?
Mr. Stanley T. Kusper, Jr.: You ordered us to give an absentee ballot to a particular prisoner on three different occasions, Norman Bonds and also McDonald on two occasions.
Justice William J. Brennan: Your point is that if somebody come down with an affidavit saying I'm going to be in the county on election day but I'm going to be awfully busy because I'm going to taken care of my sister's sick child and can't get to the poll.
Then the Election Board could not under the law have granted that person an absentee ballot and if they've done so they would have been subjected to criminal penalty simply because there's no provision for that kind of a person voting absentees, isn't that right?
Mr. Stanley T. Kusper, Jr.: Absolutely correct, sir.
They can't give --
Justice Abe Fortas: Your submission as I see it is something like this that the state provide -- the state accords the right to vote to everybody with certain exclusions.
These petitioner's -- these appellants presumably have a right to vote.
The state however provides a special procedure in certain limited classes that is to say absentee voting.
It does not provide a special procedure with respect to people who are endurance by awaiting trial or otherwise and your point is the state has no duty to do that.
Indeed, the state has no duty to extend the absentee voting alternative method across the board as to anybody, is that right?
Mr. Stanley T. Kusper, Jr.: Well, there can be a situation in which there is no absentee voting.
It isn't constitutionally provided for I agree.
Justice Abe Fortas: That's what I'm saying that the state has no obligation to provide that the absentee voting alternative procedure --
Mr. Stanley T. Kusper, Jr.: That's right.
Justice Abe Fortas: -- to anybody although the state might have to extend the right to vote to -- for example, resident servicemen, Franklin against Ryche.
Mr. Stanley T. Kusper, Jr.: I agree.
That is correct.
Justice John M. Harlan: Would this man had been entitled to vote to get the absentee ballot at all or this man has been otherwise qualified to vote if he hadn't been in prison?
Mr. Stanley T. Kusper, Jr.: Well, he was duly registered and still prior to his incarceration a resident at the address from which he registered.
He was qualified to vote, yes.
Justice John M. Harlan: And he could have voted although not entitled to an absentee ballot.
He could have voted but for the fact that he was in jail before the bail?
Mr. Stanley T. Kusper, Jr.: Correct.
Had he appeared at his precinct polling place designated for his residency.
Justice John M. Harlan: -- due process to get that ballot, to get equal protection, do you think there's any due process question regarding that state?
I think he is deprived of the right that he otherwise he would have had under state law to vote but for simply by the fact that states put him on jail before the bail or otherwise wouldn't entitled to vote?
Mr. Stanley T. Kusper, Jr.: But they put him in jail via due process route.
He was incarcerated by judicial action.
If he comes up with the bail money, he can get out.
Justice John M. Harlan: Alright, and if he is poverty stricken, he can't get out, what -- do you think that gives rise to any equal protection question on that has basis?
Mr. Stanley T. Kusper, Jr.: I don't think so under the pasture of the law as we have it, sir.
I think that the privilege having --
Justice John M. Harlan: I'm not talking about absentee ballots at all.
I'm assuming that even though he had absentee ballot at all, cannot to get us to have wanted to eliminate, well, that's to bad regarding this case, do you think there's any due process question about the circumstances?
Mr. Stanley T. Kusper, Jr.: I would say not at this time.
No, sir, I do not believe so.
Justice John M. Harlan: What if the state's act about voting is otherwise qualified, directly qualified to vote under state law?
Mr. Stanley T. Kusper, Jr.: Absent in -- an absentee voting statute absent that the state has a right not to have him walking around free without putting put the necessary bail.
Item which they require of everyone who is incarcerated and he was subject to bail so that they have a right for the security of the public and the public welfare to keep him in prison until such time as he makes -- in such time as he makes the necessary bail and satisfies due process in the Courts and under state law that he is untitled to walk about as a free man until his trial day.
So that I think that we're weighing two interests now.
One his right to vote and two, the interest in the right of the other people in the community and also the right to justice to have that man incarcerated until such time as he satisfies the due process requirements and the requirements of the Court to get back out on the street again.
Justice Abe Fortas: I supposed another way of looking at it might be to put the question, is this a permissible consequence or an otherwise appropriate deprivation of liberty by the state that is in so state put somebody in jail is deprive of a lot of rights.
He is deprived by the right to work, is deprived of the right to go down to the nearby public park and make a speech because he is there endurance by all and I supposed whether one way of looking at this is whether the additional consequence namely that he doesn't have access to naps and tea, he doesn't have the physical possibility of voting regardless of his theoretical right, whether that is a permissible consequence of his otherwise lawful arrest by the state.
Mr. Stanley T. Kusper, Jr.: Mr. Justice Fortas I wished I had said yes, and I hurriedly concur.
I believe that it is a permissible consequence here and I don't think that without complaining about the unavailability of bail or anything else or any other privileges, the only one single privilege about which we have a complaint here is the unavailability of an absentee ballot which in hierarchy I think of the constitutionally protected rights may or may not depending upon who views it be the most important right or privilege that a person may have and so I think it depends upon the viewpoint of the person looking at the situation.
You may say sir that it is not a permissive consequence.
I might say that it is.
The other justices may disagree.
I think it's a justifiable conclusion that it is permissible in this situation we have.
Justice Thurgood Marshall: It depended now down to the man with bail money has a right to vote, the man without money is denied the right to vote?
Mr. Stanley T. Kusper, Jr.: By absentee ballot?
Justice Thurgood Marshall: No, the right to vote.
Mr. Stanley T. Kusper, Jr.: Well, yes.
I think that the point is it can be quite seriously made that if a person has got money he can get out of jail and therefore go vote.
Justice Thurgood Marshall: And the man who does not have money cannot vote.
Mr. Stanley T. Kusper, Jr.: Apparently that is true under the statute that we have.
Justice Thurgood Marshall: Do you think that's a valid distinction between same people?
Mr. Stanley T. Kusper, Jr.: I think it's a valid distinction when the interests of the society are considered as a whole rather than just looking at it in isolation, sir.
Justice Thurgood Marshall: I have been unable to at this point that this question to find any interest says than one man has money and the other one does not.
Mr. Stanley T. Kusper, Jr.: I wished that I could simplify to that point but I think it's a little more complex than that.
Justice Thurgood Marshall: Well, what else is there in that?
Mr. Stanley T. Kusper, Jr.: I think that first of all what interest did the state have in extending the absentee ballot privilege.
If we're going to have to --
Justice Thurgood Marshall: Well, you insist on the absentee ballot and that is on the right to vote because the man with money can vote, he don't need not to worry about that state law.
Mr. Stanley T. Kusper, Jr.: Well, not necessarily that.
Justice Thurgood Marshall: But the man who doesn't have money can't vote.
Mr. Stanley T. Kusper, Jr.: I think there is another way.
A man without money quite possibly under a special habeas corpus can be taken from the jail if necessary to his polling place and therefore be allowed to vote in the polling place.
He doesn't need bail money, doesn't need an absentee ballot either.
Justice Thurgood Marshall: Well, doesn't he have put up the money for the habeas corpus.
Mr. Stanley T. Kusper, Jr.: I have no idea.
They can let a proper petition be filed and quite possibly the Court might take jurisdiction over something like the cognizance of the problem and order a remedy.
Justice Thurgood Marshall: Leaving that aside, what do you have other than money?
Mr. Stanley T. Kusper, Jr.: In this case?
Absolutely nothing, sir.
The only distinction apparently about the person being able to get out of the jail to go vote if that becomes a paramount interest is the fact that he's got some money to get out but I would like to raise the question also what about the chap who's got money and who doesn't want to put up to bail and he wants to stay in jail.
Now, should he be allowed to have absentee ballots?
Justice Thurgood Marshall: He's just like the chap who could -- who has the money and doesn't want to vote, --
Justice Byron R. White: Do you know how many of them?
Mr. Stanley T. Kusper, Jr.: Mr. Justice White, unfortunately I think that alimony role is their call over a county jail and Cook County has loaded with people who got some money, who just don't want to pay it up so therefore they can't get out of jail and there I think as a matter of fact, there're great number of people.
Justice Hugo L. Black: Well, would you deny of equal protection if you didn't fix it up so this alimony people could both vote and cheat their wife out of there alimony.
Mr. Stanley T. Kusper, Jr.: Aptly put.
I don't know whether that would be a denial of equal protection.
I certainly don't think that given the option to put up bail to go vote, they're making the choice themselves as to whether or not they should have the franchise in person at polling place and having been giving that option and having exercise it in the negative that would be a denial.
Justice Hugo L. Black: But some state proceeds in such an improbable eventuality as liable to occur.
Mr. Stanley T. Kusper, Jr.: No.
Justice Hugo L. Black: And take care of it to strike down the whole law?
Mr. Stanley T. Kusper, Jr.: No, and I very firmly say no because I think that's what gets to the point of this entire case.
Will a statute which does substantial good and substantial justice which does a statute would reaches great numbers of people to facilitate their casting their ballot, to exercise of their franchise.
That's the statute because it reduces itself to two persons out of a possible 2000 or 1800.
Out of a possible eight million registered in the State of Illinois.
Does the statute have to stricken down as unconstitutional as violative of equal protection of the laws because two people can't get out to vote and two people can't make an application for absentee ballot under the law of Illinois?
I don't think so because if it is that to me the role --
Justice Hugo L. Black: But shouldn't your legislature thought of those two person out of 8 millions.
Mr. Stanley T. Kusper, Jr.: Having viewed some of the legislations coming out of his spring field, I would think that the legislative should have thought about a lot of things sir.
We usually have a phrase in Illinois, the legislature in its wisdom.
They have my thought of a lot of things.
Justice Hugo L. Black: Is in a trouble arrangement with the problem voting absentee ballot?
Does it requires considerable study to prevent evasion of that law so as to bring about fraud in election and is that a constants source of fraud in election?
Mr. Stanley T. Kusper, Jr.: Absentee balloting?
Justice Hugo L. Black: Yes.
Mr. Stanley T. Kusper, Jr.: I would think that absentee balloting in a penal institution might as well be subject to a great instance of fraud.
Our institutions are there, are controlled by political party candidates or elected to public office, share of Cook County.
Justice Hugo L. Black: But it's a state interest isn't if it's going to do that to try to get the law where the least complications possible.
Mr. Stanley T. Kusper, Jr.: I would agree with the too and I think that's part and partial of my argument that a statute can never comprehend its applicability to all conceivable and imagined cases.
Justice Hugo L. Black: -- to have a microscope to carry around to see the infinite decimal point that which one or two person out of 8 million might not be allowed to vote?
Mr. Stanley T. Kusper, Jr.: I don't think a legislature can be require to do that because if it is required to do so I don't think --
Justice Hugo L. Black: Maybe they don't have a microscope
Mr. Stanley T. Kusper, Jr.: Maybe they don't have a microscope, maybe they don't have the wisdom to see it, maybe they don't have the time under the pressure of work to see but I don't think a legislature can be required to see even the most miniscule problems.
Justice John M. Harlan: I'd like to ask you this question Mr. Kusper, does this record so that this man made any attemptable, any effort to question the person -- officials other than to apply for an absence of ballot?
Mr. Stanley T. Kusper, Jr.: There is nothing in the record to indicate that at all, all we have was the fact that he was a duly qualified registered voter before he went in to prison.
Chief Justice Earl Warren: What could he have done other than this?
Mr. Stanley T. Kusper, Jr.: What could he have done?
Chief Justice Earl Warren: What could he have done other than to apply for an absentee ballot if he is in jail?
Mr. Stanley T. Kusper, Jr.: Well, statute doesn't say he could have done anything because there is no provision for absentee ballot.
Justice Hugo L. Black: You have habeas corpus in the state, do you know?
Mr. Stanley T. Kusper, Jr.: Yes we do, he may have tried that and I mention that I think I alluded to it in the previous statement and possibly he could have gotten someone to go on habeas corpus for.
Mr. Bass was representing him, has grant this counsel under grant I believe there is a legal aid service.
He was representing them on many matters.
He could have possibly gone before the Court on habeas corpus that was not tried and all we had was this application that came in on the last possible day for application prior to the election itself.
Justice John M. Harlan: Is that on three?
Mr. Stanley T. Kusper, Jr.: In three instances I believe that what happened.
In going back to a subject that was raised and discussed by Mr. Justice Fortas that relative to the varying provisions for absentee ballot in the various states of this union in speaking with the solicitor general and the break just after he argued his case.
His wife received an absentee ballot in the State of Massachusetts as a physically disabled person only because she was in a community twice removed from the community in which she lived.
In other word, if she was in the town adjacent to the city or town in which she lived and was physically disable, under Massachusetts law she could not have receive and absentee ballot, she had to get one town in between and move to a third town outside to be able to get an absentee ballot.
Now, if absentee balloting is going to be looked at with a very caustic eye to see whether or not it denies equal protection of the laws then maybe that kind of statute too should be scrutinized and I would venture to say that in almost every instance having studied election laws at the various states being a member of Illinois election laws commission staff counsel working on recatication.
I can see that if this case where to decide, this Court were to decide that Illinois statute was unconstitutional that the great bulk of the statutes concerning absentee balloting would then immediately be suspect and subject to challenge on the same ground because there are some provisions which I think or even more unfair on other states than they are at Illinois.
If this be unfair at all assuming argue and that it could unfair but I think what we have here is unintentional omission of the legislature, no intention, no malice, no purpose fullness at all, no discrimination, they're just a classification made by the legislature and a valid attempt to extend the privilege of absentee balloting to large ascertainable groups of persons that has just simply missed in its application, one small and I might even add miniscule group of persons, two persons is all we've had notwithstanding the fact --
Justice Thurgood Marshall: Isn't this a class action?
Mr. Stanley T. Kusper, Jr.: It is a class action.
Justice Thurgood Marshall: Then why do you keep saying two people?
Mr. Stanley T. Kusper, Jr.: Oh I say two people because I think I've been very close to this case and I know how these cases came about.
And after the Norman Bans case, if moral on the county jail of Cook County was so much uplifted because of this decision then we quite possibly could have assume there would have been an outpouring of applications for absentee ballot again, but then we only got McDonald in McDonald one to make an application and then only McDonald and another person again.
Justice Thurgood Marshall: Hasn't the record in this case show that this case is a class action case and the state has never contested it, you recognize it as a class action case, am I correct?
Mr. Stanley T. Kusper, Jr.: The case?
Justice Thurgood Marshall: And so you -- in that class are all of the prisoners in the State of Illinois awaiting trial, that's the class?
Mr. Stanley T. Kusper, Jr.: Who are registered voters --
Justice Thurgood Marshall: Right.
Mr. Stanley T. Kusper, Jr.: -- and qualified to vote at the time of an election.
Justice Thurgood Marshall: Right.
Mr. Stanley T. Kusper, Jr.: -- and there may not be any such person at all.
There is no way to determine the existence of that on the state wide basis.
Justice Thurgood Marshall: Well, I for one if there were two, I would assume there might be a half or one more.
Mr. Stanley T. Kusper, Jr.: Well, I might assume that to sir but there is no -- what I'm saying Mr. Justice Marshall is there's no demonstrable way that I can show to the Court that that class exist that this moment or any other moment because you couldn't do a survey to determine it.
Justice Thurgood Marshall: Contest that was at the trial Court, you admitted it was a class action, am I right?
Mr. Stanley T. Kusper, Jr.: At the time that it was filed yes, no question.
Justice Thurgood Marshall: You admitted now as a class action.
Mr. Stanley T. Kusper, Jr.: As it was brought then yes.
Justice William J. Brennan: Mr. Kusper am I wrong, I thought the class was even narrower than that, it was of those pre-trial detainees detained in a prison in the county where they were register, am I wrong?
Mr. Stanley T. Kusper, Jr.: I would assume that, yes Mr. Justice Brennan.
Justice William J. Brennan: Well, I thought that was we were told?
Mr. Stanley T. Kusper, Jr.: Yes, definite sir.
Justice William J. Brennan: So it doesn't -- this doesn't reach for example detainees and some prison outside the county of the residence state?
Mr. Stanley T. Kusper, Jr.: No, because they fall under the general class of persons who are outside the county and therefore they are entitled to absentee ballot under the provision of our statute.
Justice William J. Brennan: That did you ever get any applications from such prisoners outside the county?
Mr. Stanley T. Kusper, Jr.: No sir, not to my knowledge, anyway that been with the four or seven years ago.
Justice John M. Harlan: Do you know the names of your (Inaudible)
Mr. Stanley T. Kusper, Jr.: No sir, I have heard of none in the state and I think that I'm probably would have because I'm in constant communication with the other election officials of the state.
Justice John M. Harlan: All right, were there such a procedure had been tried?
Mr. Stanley T. Kusper, Jr.: None to my knowledge whatsoever.
The only time this question is even started to come up was in Norman Bans and then McDonald one and on McDonald two in which Mr. Bass participated on all three cases, so that --
Justice Hugo L. Black: Speaking the fact medically on the sense of a common sense statement, do you think its common that in a very large percentage of the people who are in jail without bond is registered voters?
Mr. Stanley T. Kusper, Jr.: I would have no way of knowing that, I wish I could --
Justice Hugo L. Black: Do you think it's likely that there be a 100%?
Mr. Stanley T. Kusper, Jr.: If the justice is asking me for a quest I don't think that the percentage is going to be very high because we might have seen more of it in this case than just the two plaintiffs that we have here.
And then conclusion that its time misleading.
Justice John M. Harlan: I thought you to tell me this fellow was -- this man was registered and qualified to vote?
Mr. Stanley T. Kusper, Jr.: Pardon me sir.
Justice John M. Harlan: I thought you said this man was otherwise qualified?
Mr. Stanley T. Kusper, Jr.: He was otherwise qualified to vote, yes sir he was a duly registered person qualified to vote had he appeared in his polling place on election day. Yes, both of them Byrd and McDonald both.
Justice William J. Brennan: Is the voting age 21 and --
Mr. Stanley T. Kusper, Jr.: Yes.
Justice William J. Brennan: So I expect to the extent some of these detainees were under 21?
Mr. Stanley T. Kusper, Jr.: Well, I think the class gets down to a point where it becomes a very, very small class because not all persons who are in the county jail are going to be 21, not all of are going to registered voters.
As a matter of fact --
Justice William J. Brennan: Or even residence of the county.
Mr. Stanley T. Kusper, Jr.: Or even residence of the county because you going to detained in our county jail for commission of a crime there and the accusation of it without being a residence the county.
So I think we have --
Justice Hugo L. Black: As a matter of curiosity, what was suppose to having to do with the case, does the record show what their ordeal for, these two?
Mr. Stanley T. Kusper, Jr.: One was in on a charge of murder and I forget what the other one was that Mr. Bass would know that I think the record discloses it and I think its someone on the bridge, I think its on our brief --
Justice Hugo L. Black: You don't know what the other one, is it rubbery?
Mr. Stanley T. Kusper, Jr.: Rubbery, right.
One was release on preliminary hearing and one that was tried, got a hang jury, eventually was retried and pleaded guilty to manslaughter.
We think --
Chief Justice Earl Warren: Mr. Bass you have a moment or so.
Rebuttal of Stanley A. Bass
Mr. Stanley A. Bass: I've a short comment Your Honor.
First is to the question about a writ of habeas corpus, I'm responsible for that phrase writ of habeas corpus at both tandem, I thought it was theoretically possible but I -- in discussions and this is off the record but I represent to the Court in discussions with the chief judge of the criminal division that whether persons could be taken over is sort of laugh the idea and didn't think it was feasible at all to have reach Supreme people over -- have deputy sheriffs to accompany them to the polls.
With reference to the legitimate state interest to prevent fraud, I would say that if there where state provision that said no absentee ballot for anybody in the jail that would be one thing.
But presumably these ballots can be given the persons in jail in another county and the likelihood of fraud is just as great and --
Justice Potter Stewart: No, no because they are not voting for sheriffs over there not on the county.
The sheriff of Cook County is that custodian and he's the man who was a candidate so there isn't the same interest.
Mr. Stanley A. Bass: Well, we're talking about the person who lives in Chicago --
Justice Potter Stewart: Yes.
Mr. Stanley A. Bass: -- who's caught out in Wheaton --
Justice Potter Stewart: Yes, but he is not then in custody of the Cook County Sheriff?
Mr. Stanley A. Bass: That's true but I would indicate that the absentee ballot procedure is that one has to cast the ballot in the presence of a notary rebook outside the state so that there is a check against fraud and finally I would --
Justice Hugo L. Black: Have these people were so great they understood, did a thought occur to you to make a motion before the judge who has charge of the custody correctly of those thing and who could have grant a motion on your part to let them vote?
Mr. Stanley A. Bass: Well, as I indicated Mr. --
Justice Hugo L. Black: Is that thought occurred to you?
Mr. Stanley A. Bass: It occurred to me and when I took that up with chief judge of the criminal division he indicated that it was not a very feasible --
Justice Hugo L. Black: Yes he indicated but did you try, did you file the proceeding?
Mr. Stanley A. Bass: No, we do not.
Justice Hugo L. Black: You just attack the constitutionality, whole of it?
Mr. Stanley A. Bass: We took the position -- realistic position that the only way a person in jail could vote is by mail that it would be extremely and in positions on the state to require armed deputy sheriffs to takes somebody to the polls and we talk about --
Justice Hugo L. Black: Why would it be if its added part of term maybe that -- well, the deputy sheriff would have been glad to do it?
Mr. Stanley A. Bass: Well, it seems on me that --
Justice Hugo L. Black: But you have to go and attack the constitutionality of the law, everybody has attacked constitutionality of the law.
Mr. Stanley A. Bass: Well, we would submit that in terms of the consequences of pretrial detention that this is an impermissible one and this is -- absentee balloting is the only way we can meaningfully talk about a person in jail voting.
Justice William J. Brennan: I suppose you had to (Inaudible) to the voting place, (Inaudible)
Mr. Stanley A. Bass: Well, I suppose deputy sheriff would have to go in there and that would be rather inconsistent --
Justice William J. Brennan: Would that violate another provision going on?
Mr. Stanley A. Bass: That would certainly violate secrecy which would not be violated if an absentee ballot were cast in jail with the present of a notary.
Justice Hugo L. Black: But why would they have to go in there with you into the booth?
Justice William J. Brennan: It might not be there --
Justice Potter Stewart: Your taking to be witnesses and trials all the time I would say and nobody has to go into witness --
Justice Hugo L. Black: He is a small --
Mr. Stanley A. Bass: Well, I would say this that I made the value judgment and I'm responsible for that that after discussing this thing with the chief judge of the criminal division, I felt that his position was reasonable and that the only way to talk meaningfully about voting is voting by mail rather than in person.
And if the right to vote by absentee ballot cannot obtain -- be obtained from this Court, I suppose we'll have to try to exhaust the other possibility legally and see if we could --
Justice Potter Stewart: That is the Illinois legislature?
Mr. Stanley A. Bass: No, that is filing of petitions for writ habeas corpus at both tandem to see if we can show that the state is foreclosing all avenues of voting back pre-trial detainees.
Justice Potter Stewart: It occurred to you this might be a legislative matter.
Justice Hugo L. Black: Do you think you could find enough prisoners with that much interest in voting?
Mr. Stanley A. Bass: Well, I don't know that's one of the activities about legal aid project is to try to get people interested in their citizenship rights because at present they seems to be more interested in taking there grievances to the street than to the ballot box.
Thank you your honor.