O'BRIEN v. SKINNER

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Argument of William D. Eggers

Chief Justice Warren E. Burger: We will hear arguments next in 72-1058, O'Brien against Skinner.

Mr. Eggers, you may proceed.

Mr. William D. Eggers: Mr. Chief Justice, and may it please the court.

I am William D. Eggers from Rochestor, New York, counsel for appellants.

We are here on an appeal for a final judgment of the New York Court of Appeals.

This today, is a particularly appropriate day to hear this case involving as it, does voting rights.

The question presented is, whether New York may refuse to provide any means of voting, including absentee means for its pretrial detainees and misdemeanants under circumstances when first, such persons are called by voters, not disenfranchised by any State law.

Secondly, absentee voting rights are extended to persons medically unable to appear in person and to whole wrath of persons unable to, unavoidably absent from their county of residence.

New York has advanced no overriding governmental interest, whatsoever in this proceeding at any stage.

The facts are simple.

Appellants are a class of 72 qualified voters.

In the fall of 1972, they were confined to the Mineral County jail as persons convicted of minor crimes, not any felonies, or as pretrial detainees, un-convicted of any crimes, whatsoever, for awaiting trial and unable to post bail.

They are voting at age, they have legal residencies in Mineral County.

I must stress that these persons are qualified to vote.

New York, has by law disenfranchised felons.

It has disenfranchised only felons and those are not members of our class.

Chief Justice Warren E. Burger: What if another institutions for the aged and others, I do not recall at the moment in this record whether the New York statute permits hospitals, shut-ins and others.

Mr. William D. Eggers: Your Honor, it is precisely our point that it does provide a means by which such persons can vote.

Chief Justice Warren E. Burger: What is the range?

Hospitals and what else?

Mr. William D. Eggers: It provides, Your Honor, for persons confined at home, at a hospitals or an institution by reason of illness or medical disability.

Prior to and at the State Court proceedings, appellants have sought every possible means of voting.

Any possibly --

Justice Harry A. Blackmun: Some of these detainees or inmates, lived in the Next County, i.e., have their residence in the Next County.

Would they be entitled to vote?

Mr. William D. Eggers: Your Honor, I believe that they can, under New York law.

I know that the statute has not been construed and this is often raised in any Court proceeding that I am aware of but the statute is quite broad and a class of persons that can vote, that are out of county, it includes people that are out of county by reason of their occupation, their duties, their employment, persons that are out of county by reason of a vacation, a wife of a person who is out of county by reason of his occupation, that wife can vote and the statute is quite broad and I believe that it would cover people in the same session that our people are in, if they happen to be outside the county of their legal residence.

There is also, in New York State, a program of mobile registration which would permit volunteer registrars to setup branch offices for registration in various locations.

In the fall of 1972, this was done at various shopping centers, at schools, in fact the volunteer for registrars were willing to setup facilities in the visiting areas of the Mineral county jail and registrar inmates of the jail in that fashion and the Sheriff denied their request.

Justice William H. Rehnquist: Mr. Eggers, are you talking about initial registration to vote or, when you say registration for a absentee, registration to absentee ballot, was that basically to an application for an absentee ballot?

Mr. William D. Eggers: Your Honor, there are two questions that we have.

One is simply the ballots or some means of voting on election day.

But of course to be able to vote, you have to be registered, so we are also raising the question of whether, inmates of the jail can be registered by absentee means, or by some other means that they can have at the jail.

Justice William H. Rehnquist: So some of your class are not registered voters.

Mr. William D. Eggers: That is right Your Honor.

Some are registered, some are not registered.

Justice Potter Stewart: Is there a provision for registering by absentee means for other kinds of voter?

Mr. William D. Eggers: Yes, there are Your Honor.

They are almost identical to the means, by which people can get absentee ballots.

You can get or you can register by absentee if you are confined in a hospital or an institution or home, by a reason of a medical disability.

You can also register by absentee means, if you are out of county.

Justice Potter Stewart: I asked question because the State with which I – the only stated really if I have any basic familiarity, requires registration personnel, though it has very, very liberal absentee voting provisions.

That's not true in yours?

Mr. William D. Eggers: That is not true, no.

Now Your Honor, the two lower courts construed the absentee registration at balloting statutes in our favor.

They say that, then the key term was physical disability and they found, there are people who are physically disabled in a sense that they physically could not get to the polls.

They thus avoided the constitutional question.

New York, Court of Appeals then reversed.

They dismissed the petition that we have filed and which in we have broadly asked for any sort of relief available under State law and they left us with no possibility of relief whatsoever, under State law.

They rejected all means of voting in person, they construed the statute, and they ruled against our constitutional claims that we had raised in every single stage.

So the question now is quite clear cut.

We are contending simply that the State interests that are asserted in support of these classifications in the statutes, are not the kind of State interest that justify the denial of fundamental right.

It's as simple as that and I think that decisions of this Court make it quite clear that when you have a fundamental right such as voting, then you take a hard --

Justice Potter Stewart: It's a fundamental right, not a constitutional right?

Mr. William D. Eggers: It is both Your Honor, it is a fundamental right that is grounded in the constitution, I think --

Justice Potter Stewart: Well, that might be a constitutional right or something else?

Mr. William D. Eggers: Your Honor, I believe it is a constitutional right and it is so important that it is a fundamental right under decisions of this Court.

Justice William H. Rehnquist: Are some constitutional rights more fundamental than others?

Mr. William D. Eggers: Well, I would not want to create a hierarchy of constitutional rights.

I think, that there is at least one, and that is the right to vote, that is the most fundamental of all rights, because this is preservative of every single right that person might have.

I think that this was recognized in the Rodriguez case in the last term, where the footnote says very clearly, that at least, voting rights are considered fundamental in the sense that they are grounded in the constitution.

So I think that what we are talking about here are rights that are very important and that has never been a question of that.

At least the equal right to voting is a constitutionally grounded right.

It is grounded in the equal protection clause.

You have an equal right to voting, equal with other citizens of the State and this particular right, is a personal right of citizenship.

It really tells a citizen, does he count, especially today.

Does he count as a citizen.

Justice Potter Stewart: There are two sides of this case, one just on those awaiting sentence and those and others who have been sentenced.

Mr. William D. Eggers: Your Honor, that is correct, except that the ones that are awaiting sentence have been or they have been sentenced, or have been sentenced only for misdemeanors.

Justice Potter Stewart: I understand that, but now let us assume that a State had a law that said, the following people disenfranchised, that they may not vote, one; convicted felons, two; convicted misdemeanants.

Mr. William D. Eggers: Your Honor, that would be quite a different case because the state then would have been --

Justice Potter Stewart: Well, in effect, you are just saying the State here, but as a result of it of the interplay of all these provisions, misdemeanants, convicted misdemeanants just may not vote, if they are serving a sentence.

Mr. William D. Eggers: If they are serving a sentence because of course, a convicted misdemeanant who was paroled on a work release program can vote the same as any other citizen.

So I think, we have a question also of due process in that respect, would it be consistent with due process for the State to deny the right to vote in the arbitrary way that it is done here.

Chief Justice Warren E. Burger: Well, it is substantive due process.

Mr. William D. Eggers: Well, I think procedural as well Your Honor because, we have the question of whether the standards, there are any standards, is there a right to hearing this kind of procedural due process would have --

Chief Justice Warren E. Burger: We still have remaining in this case, people who are just detained for trail.

Mr. William D. Eggers: That is correct Your Honor.

I think as the persons that are simply detained, they have, of course, a higher claim because these persons are presumptively innocent under our law.

Now it is a fundamental principle of our law.

I think that there are many decisions at the Lower Courts that recognized that pretrial detention has a very limited legitimate purpose.

Chief Justice Warren E. Burger: We will assume that after lunch counsel.[Noon Recess]

Mr. Eggers, you may resume.

Mr. William D. Eggers: Mr. Chief Justice, and may it please the court.

As I have outlined, this case involves the absolute denial of fundamental rights and if it were not enough that fundamental rights are at stake, the particular class here affected is the only class that is forcibly restrained from attending the polls by State action and with respect to this class, I think we would have to ask whether the State's application of its criminal process is consistent with due process of law, with respect to the deprivations of these particular rights.

And I think you would have to ask whether these deprivations are necessary consequences of employment in Jail.

Chief Justice Warren E. Burger: We had the same sort of restraint by the state of McDonald, don't you?

Mr. William D. Eggers: Your Honor, the restraint in McDonald was the same.

The impact on fundamental rights was different, because in the record in the McDonald case, there was no showing that the state would not provide the alternative means of voting that we have requested, in this case had been denied.

So you had before the court, what the court termed to be an incidental burden, persons for whom voting would by absentee, would be inconvenience, but according to presumptions that the court made in that case, are not the only means left to them.

In our case, this is the only possible means left to them, because we have denied the other rights.

And although the statutes, the discriminatory statutes that we are challenging here are not drawn on their face, on the basis of race or wealth.

They have a very heavy burden on those persons, who are financially unable to post bail.

If this person were charged with the same crime, could post bail of course he could vote just as same as any other citizen could. So we have here a combination of factors, that we submit requires this court to require the very strictest of Equal Protection review.

The highest standard that this court applies in any case, and that standard of course requires that we take a look; a very hard look at the sort of governmental interest that are justified because those governmental interests must be overriding in the sense that they are enough, to justify the absolute denial of voting rights.

And the tests, I think are three.

The interest asserted has to be of compelling importance.

The means that the state uses have to be closely related to the purposes, and they must not unreasonably burden the exercise of fundamental rights.

And there must be an element of necessity, about the states claim.

Unknown Speaker: On that basis then you would have convicting felons also for --.

Mr. William D. Eggers: Your Honor, we would not.

Convicted felons are specifically disqualified by the state under its election law.

This is a state interest that's related to the qualifications for voting because I think there is a presumption that if a person has a committed a very serious crime, such as felony that he has not showing the respect for law, that a person that is going to vote should have.

Unknown Speaker: And then you draw a distinction between a convicted felon and convicted and incarcerated misdemeanant.

Mr. William D. Eggers: We do Your Honor because the state has done so.

Unknown Speaker: Well, that doesn’t prevent attack on what the state has done, you are not only saying that you would accept that distinction.

Mr. William D. Eggers: Well, Your Honor no member of the class that we represent, none of my clients are convicted felons.

So that we don't raise the question of whether convicted felons may vote by absentee ballots.

Unknown Speaker: And you won't be here tomorrow insisting that the --

Mr. William D. Eggers: Your Honor, I represent the clients that I have.

Unknown Speaker: You might have be representing another felon --

Mr. William D. Eggers: Well I am not saying that, that question is not a proper question.

I am saying it's not raised today.

Chief Justice Warren E. Burger: Your point, as I understand it was that since the misdemeanant if allowed, we can own privileges or something or of that kind might get extension over to and he would be free to vote.

Mr. William D. Eggers: That's correct Your Honor, and as I understand the law if a misdemeanant is confined out of county in New York state, he may vote.

It's certainly clear to me, under the federal voting rights amendment of 1970, that he is unavoidably absent from his county, and entitled to vote in special presidential elections at least.

I think the New York state absentee statute would also permit such a person to vote by absentee, if he is merely confined out of the county of his residence.

So we don't have involved here, a claim by the state that all misdemeanants lose to right to vote.

It's not involved at all.

Unknown Speaker: Your fundamental approach is Equal Protection clause, is it not?

Mr. William D. Eggers: Your Honor, that is our fundamental approach.

We are claiming an equal right to vote.

But we are not -- we are also raising --

Unknown Speaker: In favor of whom is there a discrimination?

Mr. William D. Eggers: The discrimination is in favor of persons that are confined in hospitals, in institutions or at home on medical grounds.

It's in favor of persons who happen to be confined out of the county of their residence.

It's also discrimination, I think in favor of a number other persons that are out of county on vacation or for any other reasons.

Unknown Speaker: And how about misdemeanants who are appealing and are on bail?

Mr. William D. Eggers: Those persons certainly can vote in New York state.

Unknown Speaker: Can felons who are convicted but are on appeal?

Mr. William D. Eggers: No, Your Honor, they may not vote, because by virtue of the conviction itself, a felons loses his right to vote.

So we are dealing in our class of the persons, we have only persons that are qualified to vote under New York state law.

Unknown Speaker: Well, Mr Eggers, you are not arguing, apart from your Equal Protection part.

This is a first amendment right which cannot be denied irrespective of --

Mr. William D. Eggers: Your Honor, I believe that, voting rights are more important than the expression rights there in the first amendment.

I think that they may reasonably be related to First Amendment rights.

But I think we are raising a second point to answer Mr. Justice White's question fully.

We are raising the due process claim that persons can find, especially as pretrial detainees, do not lose all their rights.

Unknown Speaker: I understand that.

I was just talking about the misdemeanantly convicted ones, who are serving sentences.

Mr. William D. Eggers: Well I would say the same as to misdemeanants because prisoners don't lose all their rights, that's how even as to felons, they have the access to the courts --

Unknown Speaker: Then you are arguing the felons case in a way.

Mr. William D. Eggers: Well, Your Honor, we think it's a different case when the state has considered the question as to qualifications for voting, and said the commission of specific crimes, the high crimes disqualify you as a matter of voter qualifications.

But of course the state hasn't said that as to misdemeanants and I think as to minor crimes, it would be very hard for the state to say that alone should justify the denial of voting rights.

Justice Potter Stewart: And even if it had said so with respect to convicted misdemeanants, it would be rather odd to make the right to vote to depend upon the location of the jail, wouldn't it?

Mr. William D. Eggers: I couldn't agree with you more, your honor, I think that's in a purely arbitrary means of denying the right to vote.

Justice Potter Stewart: Except the argument could be made, that prisoners in a local jail would be amenable to pressures form local politicians running for office.

Mr. William D. Eggers: Your Honor, that is a reason that was accepted by this court in McDonald case under the rational basis test.

But I think to address myself to that particular reason, it seems to me very strange to tell somebody that he may not vote because state officials might interfere with his right to vote.

If our rights were that easily lost it would seem to me no rights would remain at all.

Because there are any numbers of means, by which the state could address itself to that particular problem.

It could make it unlawful for a local official to interfere with the right of citizens to vote.

Justice Potter Stewart: Well, it could be a hearing, it could be – don't you – suppose there would be a very serious First Amendment problems if the state purported to tell somebody running for office that he couldn't try to persuade local voters.

Mr. William D. Eggers: Well, I think methods of persuasion are one thing, but if the deputy Sheriffs would have used something more than persuasion, I think that, that might be a very serious problem.

But it is a sort of problem with the state cannot deal with, by restrictive means, means consistent with the exercise of fundamental rights.

Chief Justice Warren E. Burger: Suppose your clients having -- presume they got the right to vote for absentee or however to be accomplish is there corollary First Amendment right along the lines Mr. Chief Justice Stewart was suggesting that, that the candidates all appear before them and make speeches so they could be strong about the issues and make intelligent choices.

Mr. William D. Eggers: Well Your Honor, I think that they already have the means that are necessary to inform themselves.

They can have access to newspapers, they can receive information through the mails.

And I don't think, that there would be a need to adopt such a corollary right at least not in the absolute way.

They could be written statements presented to persons confined in trail and of course somebody could be confined in jail a very short time before an election.

He may be fully informed on the issues of the day, and yet under the construction, and under the denials that we have in this case, that person would be denied to right to vote.

So I think that that is not a substantial reasons that's involved here at the denials.

Unknown Speaker: Mr. Eggers, let me ask another question about, what I regard as a very unusual statute.

It refers to unavoidable absence because he is inmate of veterans' bureau hospital.

Suppose he is down at the county hospital or Columbia hospital New York city, I take it he would be entitled to an absentee ballot and then down later it speaks of unavoidable absence to the business or vacation.

He is outside the county attending the funeral of a relative, he is not eligible.

May be I should ask your opponent.

Mr. William D. Eggers: Your Honor, I think that the Veterans' hospital case, that particular situation is one, that you can be in county confined in veterans' hospital and you can vote and fairly very similar to other persons in county hospitals or in the other hospital within the county, were entitled to vote because they are unable to attend the polls in Now, I think that it is a very strange statue.

It's strange because it denies my clients the right to vote.

Justice William H. Rehnquist: But there are other classes of people who are also denied the right to vote.

Mr. William D. Eggers: Well Your Honor, I am not so sure of that, there are, the New York Court Of Appeals referred to two in particular, they referred to poll watchers and poll watchers can go vote the same as anyone else can.

It's simply a part time job for the day and you may have to take time on your lunch out of book but so does everybody else.

Justice William H. Rehnquist: How about the classes that Justice Blackmun just mentioned?

Mr. William D. Eggers: Well, Your Honor, I think there would be some question with respect to particular classes as to their construction the New York courts would give that class, because if they are going to extend the right to vacationers, it would seem to me and all he have to be is out of county on a vacation.

It would seem to me that that's quite a broad basis for construing almost anybody as being at least on probably on a vacation.

The statute is quite liberal, it seems on its face and allows most people out of county to vote.

Justice William H. Rehnquist: Well, it's liberal in certain directions.

Mr. William D. Eggers: It certainly is liberal in certain directions.

It's not liberal towards a class that I believe is a disfavored class, that class and I am referring to my clients, the class who is in the terms of Judge Burke from the court below.

Unknown Speaker: I may be just as sympathetic to a person that's in the county hospital as distinguished from the veteran's hospital.

Mr. William D. Eggers: Well Your honor, any person can find any hospital.

Unknown Speaker: Much more sympathetic than to a convicted misdemeanant.

Mr. William D. Eggers: Your Honor, any person who is confined in a hospital, any hospital in New York and unable to get to the polls is provided for by the statutes as I read the statues.

And a question...

Unknown Speaker: I guess I don't read them that way and--

Mr. William D. Eggers: There is a statute, there are numbers of statutes that apply to this case and they have not properly been meshed together.

Unknown Speaker: You could draw any distinction between a convicted misdemeanant and a detainee at all or do they stand to fall together?

Mr. William D. Eggers: Your Honor, I think the detainee has a higher claim under the due process clause, because as to him, any unlawful denial of rights is a much prior concern of this court because that it infringes our ideas of the presumption of innocence.

As to those persons, I think there is a very special claim here.

What I am suggesting is that because New York has not made the claim that a misdemeanant is unqualified to vote, in the many respects, he is in the same position as the other members of our class are in the respects that are directly before this court.

So I think then we come to what governmental interests are being asserted here and in fact, they haven't identified any, the New York Court Of Appeals and the appellees in this case, don't even claim that there is a compelling interest and when they say that something is at all reasonable, it seems to me if you take a hard look at any sort of the interest that they are claiming, it's not even reasonable.

It's a problem of the fact of confinement or didn't know different in their confinement that people were confined at hospitals.

They can vote both by mail, register by mail, they could if the means were provided.

Unknown Speaker: Well, if the New York didn't give any or the if the state didn't give any absentee ballots at all?

Would you still be here?

Mr. William D. Eggers: Your Honor, I would be, but I might point out that fact that there are absentee ballots means that there is a quite an easy means.

It's no problem at all for the state.

If there were none, I think that they would still have to defend against our claim that registration and jail facilities, voting facilities could be set up in the jail.

I call the court's attention to the case of Love against Hughes in which Federal District Court sitting in Ohio faced exactly, a case almost exactly the same as this case, a challenge to the absentee statutes and a request for any other means, simply directed the sheriff in the Board of elections to establish election facilities in jail by paper ballots and ballot boxes.

I see no reason why this is unworkable.

Justice William H. Rehnquist: Well, if there were no absentee ballots under Justice White's hypothesis you say that you would still be arguing, they should set up registration facilities in jail which I suppose then they would have to set up under court order registration facilities in hospitals and other places too, so that your clients would have no better claim to vote than other people physically disabled.

Mr. William D. Eggers: Well Your Honor, I'd have to say frankly that I think they do have a better claim.

They are the only class of citizens that are restrained by the state.

They are the only class for which you have to ask, is the state confinement consistent with the due process clause, and I think it is consistent with the due process clause only if the rights that are lost are justified either by law or as necessary consequences of confinement.

Chief Justice Warren E. Burger: What would you say about the State Mental Institution?

Justice William H. Rehnquist: Well Your Honor, I believe that that relates to the qualifications of the person to vote.

A person that is confined in a mental hospital and can't get to the polls because he is confined, the state may legitimately say, I think that such person may not be a qualified voter and may want to avoid having a test of sanity in each case, i think that there are great state interests involved in that case.

Unknown Speaker: Even though he is there voluntarily relevant by commitment.

Mr. William D. Eggers: Well, to be in the same position that our people are in, he would have to be confined and unable to get to the polls.

Now, that's simply voluntary, so we could voluntarily attain his own release.

Unknown Speaker: Well, not always.

Mr. William D. Eggers: He is not barred.

Unknown Speaker: Between 20 to 30 days and be confined.

Mr. William D. Eggers: If such a person were in fact fully confined, it still seems to me the state has good reasons to question whether that person is an eligible voter.

That case, however is not before the court because we are simply concerned about the discriminatory treatment between our clients and other persons such as medically confined person who can vote.

Unknown Speaker: Yet some are there because of their own fault.

Mr. William D. Eggers: Well, certainly Your Honor, as to pretrial detainees, we can't make such a presumption.

Unknown Speaker: Well, but I am thinking the other group.

That's why I asked you before whether you do a distinction between them.

Mr. William D. Eggers: Well as I said, I think that there is a higher claim for pretrial detainees as the misdemeanants, Your Honor, they haven't committed this sort of crime that the state says, disqualify them from voting and I think this court still has a special concern with whether state imposed confinement has consequences that are unnecessary.

For example, a prisoner doesn’t lose his right to practice his religion in jail.

He doesn’t lose his access to the courts or access to the mail and I think that there numbers of rights that a person has even though he has committed, even a felony and we don't have that case here.

Your Honor, I believe if we take a hard look at the sort of governmental interests that are asserted here, we simply don't find any that can stand up against the right to vote and they have to come up with a governmental interest that's overriding in the sense that it can justify the absolute denial.

I think they haven't done that.

I ask this court to reverse the New York Court Of Appeals.

Mr. Chief Justice, may I reserve the remainder of my time?

Chief Justice Warren E. Burger: Very well, Mr. Eggers.

Mr. Consedine.

Argument of Michael K. Consedine

Mr. Michael K. Consedine: Mr. Chief Justice, may it please the Court.

County of Monroe contends your honor that these statues are remedial statutes established to expand the franchise in the state of New York.

They are not statutes aimed at any particular class in question today.

They were not aimed at misdemeanants in the serving time in a jail after the time for registering and voting has expired, nor were they aimed at persons being held and detained, pending disposition of a case again after the time for registering and voting, but absentee ballot has expired.

Further, we feel that there is not really a class here that would come in the ambit of the protection of the Fourteenth Amendment because you really don't have a legal class as such.

You have certain persons who can't make bail, who really in the state of New York are incarcerated after 7 days before election.

Anyone who is released up to seven days before election, may register and vote under our statutes.

The Court Of Appeals in the state of New York has held that the statute which expanded the franchise, considerably in the state of New York over period of time, does not fall within the equal protection clause because these persons have this disability posed upon them by impracticalities and contingencies.

There are of course, reasons under the rational impracticalities.

Justice Thurgood Marshall: (Inaudible)

Mr. Michael K. Consedine: Well, if Your Honor please, I am not entirely sure of what was in the Court of Appeals mind. Into my mind, I think they were touching on a rational basis tests.

You can concede --

Justice Thurgood Marshall: Is there any reason that the man in jail solely because he can not produce bail from the man who can produce bail other than money?

Mr. Michael K. Consedine: Well, that would relate only to detainees.

Justice Thurgood Marshall: It's all written in that?

Mr. Michael K. Consedine: Yeah and Your Honor, you must consider the fact--

Justice Thurgood Marshall: In fact detainees has contrasted with the misdemeanants, convicted misdemeanants.

Mr. Michael K. Consedine: Convicted misdemeanants.

Alright so these detainees consider this fact Your Honor, these detainees between the time they registered to vote and the time they can vote, may turn into felons -- .

Justice Thurgood Marshall: Wouldn't that apply to any other person who registers?

Mr. Michael K. Consedine: Your Honor, well that's true.

Justice Thurgood Marshall: Wasn’t it?

Mr. Michael K. Consedine: Yeah, that's true.

That could apply to almost to anybody, that registers, but there is a likelihood, a greater likelihood that this particular type of person that may fall in that kind of category.

Justice Thurgood Marshall: I don't agree with that either, that man is innocent, he is absolutely innocent and the Constitution says he is innocent.

Mr. Michael K. Consedine: I agree with you Your Honor, at that point.

I think the issue here is whether this particular type of person is a class, is a suspect class as this court has declared race and wealth to be.

Your Honor feels that the fact that a man may not make bail, may bring this in to the area of wealth, we disagree with that Your Honor.

Justice Thurgood Marshall: Do you have anybody in New York, lives in jail because he is just didn't want to pull up the money?

Mr. Michael K. Consedine: No.

Justice Thurgood Marshall: Or he likes jail.

Mr. Michael K. Consedine: But Your Honor, there are cases where bails are very high and even a person of moderate wealth cannot make that.

Justice Thurgood Marshall: Well, it's still --

Mr. Michael K. Consedine: The reason for bail is to ensure the person's attendance at court.

Justice Thurgood Marshall: I understand the reason why this man can't vote?

It's because he didn’t have money enough for bail.

Is there any other reason?

Mr. Michael K. Consedine: That maybe a reason, however.

Justice Thurgood Marshall: Well, what are the reasons?

Mr. Michael K. Consedine: Your Honor, I am saying that the reason he cannot vote because he doesn’t have enough money to bail, doesn’t bring this within the suspect classification based on wealth because there are cases where bails are very high, in serious cases, $100,000, $50,000, that doesn’t...

Unknown Speaker: Do you know of any misdemeanant cases like that?

Mr. Michael K. Consedine: Well, we were just referring.

No, I don't Your Honor.

We were just referring to that class, that would be detained prior to the trial for felony.

Unknown Speaker: Do you mean, there are number of detainees who are under charges of felonies and the bail is set very high, that maybe homicides, armed robberies, rape, so forth.

Mr. Michael K. Consedine: That's right and my contention is that would take this out of that area of classification.

Unknown Speaker: That's what I say, aren't these detainees some of them like of that time?

Mr. Michael K. Consedine: There are detainees that are there because bail is extremely high.

Unknown Speaker: No, not.

Now these detainees are not only or are they merely detainees?

Mr. Michael K. Consedine: No, there maybe detainees waiting for a case, a homicide case, they are indicted with a felony being detained because they can be bailed.

Unknown Speaker: No, that's not, I just don't know, we were talking about them in the jail.

Mr. Michael K. Consedine: Yes, Your Honor.

Unknown Speaker: I am not sure that there are lot of detainees --

Mr. Michael K. Consedine: Misdemeanants, pre-trial detainees I believe is the class referred to in this case.

Justice Thurgood Marshall: Or at the time of this case, how many were they charged with serious felonies?

Mr. Michael K. Consedine: Well, I don't know, Your Honor, which of these 72 men were charged with felonies, I don't know whether any of them are present time incarcerated.

Justice William H. Rehnquist: Well, then this is basically just the people who are being held in a Monroe County jail.

Mr. Michael K. Consedine: That's right.

Justice William H. Rehnquist: For one reason or another.

Mr. Michael K. Consedine: For one reason or the other.

Justice Potter Stewart: People who are being held in that jail who live in Monroe County, otherwise according to your brother, they could vote if --

Mr. Michael K. Consedine: If they live at another county there are reasons to believe that they may vote.

And I also -- it exclude persons who have applied for absentee ballot before their incarceration that naturally received this that the mail would be forwarded to them.

They could vote by absentee ballot.

Justice William H. Rehnquist: Well, it would require a high degree of prescient wouldn't it, applied for an absentee ballot before you are incarcerated?

Unknown Speaker: Or they might have thought they were going to be out of town on vacation.

Mr. Michael K. Consedine: A person may have other reasons that you think he needs it and between the time he registers for an absentee ballot is incarcerated, that could be considerably happen.

We are relying heavily on this court's determination in the McDonald case.

Unknown Speaker: I want to be clear about this.

Under your statute, even if they are held for homicide, rape, armed robbery and the other felony, and they live outside the county, they may vote as detainees.

Mr. Michael K. Consedine: The statute as I understand, it refers very complicated but these statutes refer to those persons who live in the county, who are unable to attend the poll there due to the various reasons given here, for instance, business duties, we also have statutes relating to military service.

Unknown Speaker: Am I right in my assumption that --

Mr. Michael K. Consedine: I only think so.

I have come to that conclusion and Board of Elections in Monroe County has come to that conclusion, they act under that assumption also.

So that's not an issue here.

I think the issue is basically the Fourteenth Amendment issue and we set up an legal classification here.

There -- should you oppose a very stringent standard test here.

We feel that the court has clearly stated in McDonald that and Mr. Justice Brennan has stated in McDonald and subsequently in Osser that absent, the creation of a suspect class.

Here therefore relating primarily to race and wealth.

Such stringent standards should not be applied.

We feel that on the record, there's no showing that any attempts were made to promote legislation in New York state legislature to expand this.

Justice Thurgood Marshall: Am I correct that the person is unorganized?

Mr. Michael K. Consedine: Well, I don't understand your question, Your Honor.

Mr. Michael K. Consedine: Well, the prisoners couldn't promote legislation?

Mr. Michael K. Consedine: Well, the prisoners, I represented here by six attornies, their name appear on the brief, they could certainly promote legislation, if they feel it's worthy.

I am saying that there are so many--

Justice Thurgood Marshall: Well, do you know of any group of obviously non-voters being able to persuade any legislates and to pass anything?

Mr. Michael K. Consedine: Your Honor, these prisoners are protected by a number of groups, there are franchises, you notice named New York Civil Liberties Union is upon here.

And my brother here, represent this attorney in one of the most of the prestigious law firms in the upstate New York.

They have many people who would press their cause in New York state legislature.

I am saying that there are conceivable --

Justice Thurgood Marshall: Do I hear you correctly that the fact, the legislature hasn't been persuaded to pass this legislation which would correct the evil which the other side contends is a ground for making it constitutional?

Mr. Michael K. Consedine: I am saying Your Honor, first that it is not an non-constitutional evil,if in fact it is an evil.

I am stating that it is not within the ambit protected by the Fourteenth Amendment because the state legislature by no legal design has established a class to as being denied the right to vote by absentee ballot or to register by absentee means.

I think, we are arguing here just that right to vote and register by absentee means.

We feel the fact that they have expanded this privilege to various classes but have not expanded the same to New York state to prisoners that who are misdemeanants or lesser.

Justice Thurgood Marshall: And who live in.

Mr. Michael K. Consedine: Or who live in a county and who are detainees for some reason, prior to conviction are not felons but for some reason detained without convictions.

In fact, if this class has not been included in the statute, it does not bring that class under the protection of the Fourteenth Amendment because frankly, unlike all the other cases this Court has decided, there is no showing that the State legislature singled them out for some disability.

They were not saying black people may not vote or they were not refusing -- they were not refusing -- by the refusal to action -- by the refusal to act disenfranchising suburban counties where they – as you handle the one man one vote decisions.

This is a case where the state of New York legislature has expanded over the years this privilege.

They may do so further.

There may indeed be other classes who don't have this privilege.

I am saying there are many complications involved here.

The argument I was going to raise has been has been already raised by the member of this Court, such persons might be subject to manipulation either by the jailers or the political machines that controls the jail, or by certain prisoners within the jail.

Unknown Speaker: Why do they permit voting by those who are incarcerated or detained outside?

Mr. Michael K. Consedine: Well, the legislature no doubt is satisfied that there are not -- that you know that, well I do not know what goes on the mind of the legislature.

I am saying--

Unknown Speaker: You said that you did.

Mr. Michael K. Consedine: No, I am saying, Your honor, that there are many, many question.

Unknown Speaker: You just gave your justifications.

Mr. Michael K. Consedine: Well I am relating to the rational basis, of the argument.

There are a lot of reasons that--

Unknown Speaker: What rational basis is there for permitting voting by those detained outside the county?

Certainly not the one you were just giving.

Mr. Michael K. Consedine: No, no, I do not think that the legislation, I am saying the legislature never considered to take the class of persons to drew up this legislation.

Unknown Speaker: On the rational basis test --

Mr. Michael K. Consedine: I am saying the legislature should consider this.

Unknown Speaker: But meanwhile what do we do? Is it not constitutional?

Mr. Michael K. Consedine: Well if you find that is within that suspect classification, I am sure you will find that unconstitutional.

Unknown Speaker: You haven't suggested to me a rational basis yet for saying that those confined inside the county may not vote but those who find outside may.

Justice William H. Rehnquist: Well, I suppose somebody confined in Monroe county who lives in Onondaga County, is not the Monroe County Sheriff is not going to have any particular interest in the outcome of the Onondaga County race and therefore whatever manipulation, he might apply to a local man who would be voting in the Monroe County race would not carry over to a guy who is just going to vote in another county?

Mr. Michael K. Consedine: Yes, Your Honor, that would be a rational argument I think.

Justice Thurgood Marshall: I think also it would be rational if it go along to the Sheriff's association, he might?

Mr. Michael K. Consedine: I beg your pardon.

Justice Thurgood Marshall: If both Sheriffs belong to the same Sheriff's Association, you might.

I mean if -- you can go anywhere you want to.

Mr. Michael K. Consedine: Well, Your Honor, again I am not familiar with the operations to Sheriff's Association either the State of New York though.

Chief Justice Warren E. Burger: What if we go back to McGowan against Maryland, of course we do not need to look for articulated reasons, if there is any conceivable basis.

Mr. Michael K. Consedine: Any conceivable basis, I think is the thrust of McGowan case, Your Honor.

Chief Justice Warren E. Burger: Think of any other conceivable basis then they should be attached?

Unknown Speaker: This kind of a case where the statute is grown like Topsy, so to speak and --

Mr. Michael K. Consedine: Yes, Your Honor.

Unknown Speaker: All of a sudden you have some – the opposition feels there are some inequities here.

As you said little while ago, I am sure the legislature hasn't thought of all these things completely through --

Mr. Michael K. Consedine: Yes.

Basically, my argument is this that the legislature -- that the classification here is not a suspect classification and therefore there is a reasonable rational basis for this legislation, and if there are any inequities, certainly, the state legislature would be at this time the proper body to remedy them.

I was impressed by the Court of Appeals decision in that they pointed out that this particular 72 gentlemen are denied their right to vote by absentee means, not by any legal design of the legislature.

The most important cases of all bore upon actions of the legislature that discriminate against the suspect class or has consistently refused to promote a class's right to vote.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Consodine.

Mr. Eggers, you have a few more minutes.

Rebuttal of William D. Eggers

Mr. William D. Eggers: Mr. Chief Justice, may it please the court.

These are not the sort of rights that can be left for legislative action.

It can't be told that this is reformed legislation therefore we have to go the legislature.

It does not make sense when we are talking about constitutionally protected rights.

Chief Justice Warren E. Burger: Well, if we start with that premise of course, then the whole problem becomes easy.

Mr. William D. Eggers: Well I think that is right, Your Honor.

This is a fundamental right, it is not the sort of right where we can be asked to depend on the legislative whim because if there were that sort of right, we would not be before this Court.

This is an important fundamental right, and we have a problem here of a denial of equal treatment in voting rights.

It is not just any economic or social regulation where reformed legislation --

Chief Justice Warren E. Burger: In one of the cited just this morning, it was referred to Justice Clarke in an opinion, you may remember the names, it is said that classification made by a legislature need not be perfect, it may be over-inclusive or under-inclusive but that that alone does not make it unconstitutional.

Mr. William D. Eggers: Well, Your honor, I think it depends on the sort of rights that are involved, the sort of class that is affected, and when we have fundamental rights.

Chief Justice Warren E. Burger: We have at, this issue that rarely comes up except in a constitutional context.

Mr. William D. Eggers: Well, in a constitutional context, Your Honor, but there are many cases that might involve rights less important than these, and there it might be appropriate to refer to the legislature and say, well, this is reformed legislation and in this particular area, we are going to consider this one, when we are considering whether the statute is reasonable, but not when we are going to apply the strict standard of judicial scrutiny that's required in this case.

Thank you, Mr Chief Justice, and I now submit the case on behalf of my client.

Chief Justice Warren E. Burger: Thank You Mr. Eggers.

Thank you Mr. Consodine.

The case is submitted.