Phyllis Griffin v. Elaine Roupas

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3770
P HYLLIS G RIFFIN , et al.,
Plaintiffs-Appellants,
v.
E LAINE R OUPAS , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 5270—Ronald A. Guzmán, Judge.
____________
A RGUED S EPTEMBER 8, 2004—D ECIDED O CTOBER 15, 2004
____________
Before POSNER , R IPPLE , and W OOD , Circuit Judges.
P OSNER , Circuit Judge. The plaintiffs, who appeal from the
grant of a motion by the defendants (the members of the
Illinois State Board of Elections) to dismiss the complaint for
failure to state a claim, are working mothers who contend
that because it is a hardship for them to vote in person on
election day, the U.S. Constitution requires Illinois to allow
them to vote by absentee ballot. Illinois allows voting by
absentee ballot only if the voter either “expects to be absent
[on election day] from the county in which he is a qualified
elector” or is unable to vote in person because of physical

-- 1 of 8 --

2 No. 03-3770
incapacity, religious observance, residing outside his
precinct for attendance at a college or university, or having
to perform specified official duties—election judge in
another precinct, certain other election duties, or serving as
a sequestered juror. 10 ILCS 5/19-1. Failing as they do to
qualify for any of these exceptions, the plaintiffs ask us to
order in the name of the Constitution weekend voting, all-
mail voting, an unlimited right to an absentee ballot, a
general hardship entitlement to such a ballot, or some other
change in Illinois law (Internet voting from home, perhaps?)
that would allow people who find it hard for whatever rea-
son to get to the polling place on election day nevertheless
to vote.
The procedural setting requires us to accept the allegation
in the complaint that the plaintiffs, although they will not be
out of the county in which they are registered to vote on
election day, will be unable to get to the polling place even
though the polls are open in Illinois from 6 a.m. to 7 p.m. on
election day and employers are required to give employees
two hours off work that day if they need the time for voting.
10 ILCS 5/17-1, -15. Many people besides working mothers
might find themselves in the same fix, such as emergency-
room and other medical personnel, persons who work at the
other end of a large county from their precinct, persons who
work at two jobs, and those who are caring for a sick or
disabled family member.
The Constitution does not in so many words confer a right
to vote, though it has been held to do so implicitly. Harper
v. Virginia State Bd. of Elections, 383 U.S. 663, 665-66 (1966);
Reynolds v. Sims, 377 U.S. 533, 554-55 (1964); Tucker v. U.S.
Dept. of Commerce, 958 F.2d 1411, 1414-15 (7th Cir. 1992);
Hall v. Simcox, 766 F.2d 1171, 1172-73 (7th Cir. 1985). Rather,
it confers on the states broad authority to regulate the
conduct of elections, including federal ones. U.S. Const. art.

-- 2 of 8 --

No. 03-3770 3
I, § 4, cl. 1; Storer v. Brown, 415 U.S. 724, 729-30 (1974);
Marston v. Lewis, 410 U.S. 679, 681 (1973) (per curiam);
Krislov v. Rednour, 226 F.3d 851, 859 (7th Cir. 2000); Gelb v.
Board of Elections, 224 F.3d 149, 153-54 (2d Cir. 2000). Be-
cause of this grant of authority and because balancing the
competing interests involved in the regulation of elections
is difficult and an unregulated election system would be
chaos, state legislatures may without transgressing the
Constitution impose extensive restrictions on voting. Any
such restriction is going to exclude, either de jure or de
facto, some people from voting; the constitutional question
is whether the restriction and resulting exclusion are rea-
sonable given the interest the restriction serves. Timmons
v. Twin Cities Area New Party, 520 U.S. 351, 358-59 (1997);
Burdick v. Takushi, 504 U.S. 428, 438-42 (1992); Nader v. Keith,
No. 04-3183, 2004 WL 2102087 (7th Cir. Sept. 22, 2004);
Libertarian Party v. Rednour, 108 F.3d 768, 773 (7th Cir. 1997);
Werme v. Merrill, 84 F.3d 479, 483-84 (1st Cir. 1996). No
greater precision in the articulation of the governing stand-
ard seems possible.
In essence the plaintiffs are claiming a blanket right of
registered voters to vote by absentee ballot. For it is obvious
that a federal court is not going to decree weekend voting,
multi-day voting, all-mail voting, or Internet voting (and
would it then have to buy everyone a laptop, or a Palm Pilot
or Blackberry, and Internet access?). That leaves as the only
alternative that will satisfy the plaintiffs a general hardship
exemption from the requirement of in-person voting; and as
a practical matter that means absentee voting at will. For
“hardship” is a subjective category dependent on personal
circumstances that cannot be codified but must be left to the
judgment of each voter. It is hardly to be supposed that
election officials would require proof of hardship or question
claims of hardship; the necessary inquiry would be unman-
ageable.

-- 3 of 8 --

4 No. 03-3770
So at bottom the plaintiffs are arguing that the Constitution
requires all states to allow unlimited absentee voting, and
the argument ignores a host of serious objections to judi-
cially legislating so radical a reform in the name of the
Constitution. Voting fraud is a serious problem in U.S.
elections generally and one with a particularly gamey history
in Illinois (as we noted in Nader v. Keith, supra), and it is
facilitated by absentee voting. John C. Fortier & Norman J.
Ornstein, “Symposium: The Absentee Ballot and the Secret
Ballot: Challenges for Election Reform,” 36 U. Mich. J.L. &
Reform 483 (2003); William T. McCauley, “Florida Absentee
Voter Fraud: Fashioning an Appropriate Judicial Remedy,”
54 U. Miami L. Rev. 625, 631-32 (2000); Michael Moss,
“Absentee Votes Worry Officials as Nov. 2 Nears,” New York
Times (late ed.), Sept. 13, 2004, p. A1. In this respect absentee
voting is to voting in person as a take-home exam is to a
proctored one. Absentee voters also are more prone to cast
invalid ballots than voters who, being present at the polling
place, may be able to get assistance from the election judges
if they have a problem with the ballot. And because absentee
voters vote before election day, often weeks before, e.g.,
Nader v. Keith, supra, at *6, they are deprived of any informa-
tion pertinent to their vote that surfaces in the late stages of
the election campaign. The major parties are reported to be
encouraging their core supporters to vote by absentee ballot
so that, having as it were put them in the bag, the parties
can redirect their efforts and pitch to the waverers. R.W.
Apple Jr., “Kerry Pins Hopes in Iowa on Big Vote From
Absentees,” N.Y. Times (nat’l ed.), Sept. 28, 2004, p. A18;
John Harwood, “Early Voting Begins in Presidential
Battlegrounds: In Iowa, ‘Ballot Chasers’ Seek Decisions and
an Edge Weeks Before Election Day,” Wall St. J., Sept. 27,
2004, p. A1; Moss, supra; Ron Lieber, “Cast a Ballot From the
Couch: Absentee Voting Gets Easier,” Wall St. J., Sept. 2,
2004, p. D1.

-- 4 of 8 --

No. 03-3770 5
These and other problems created by absentee voting (see,
e.g., Michael Moss, “Hurdles Remain for U.S. Voters Living
Overseas,” N.Y. Times (nat’l ed.), Sept. 29, 2004, p. A1) may
be outweighed by the harm to voters who being unable to
vote in person will lose their vote if they can’t vote by absentee
ballot. But the striking of the balance between discouraging
fraud and other abuses and encouraging turnout is quint-
essentially a legislative judgment with which we judges
should not interfere unless strongly convinced that the legi-
slative judgment is grossly awry. Some states have decided,
as the plaintiffs urge us to decide, that the drawbacks of
absentee voting are so far outweighed by the interest in
increasing voter turnout that every registered voter should
be allowed to vote by absentee ballot. E.g., Cal. Election Code
§ 3003; Colo. Rev. Stat. § 1-8-102; Fla. Stat. Ann. § 101.662;
Wash. Rev. Code Ann. § 29A.40.010. Oregon has gone the
farthest in this direction by making all voting by mail. O.R.S.
§ 254.465. In Oregon, all ballots are absentee. (On whether
the Oregon system is consistent with congressional legisla-
tion regulating federal elections, see Voting Integrity Project,
Inc. v. Keisling, 259 F.3d 1169, 1174-76 (9th Cir. 2001).) Other
states, including Illinois, have struck a compromise between
concern with fraud and concern with turnout by allowing
only certain classes of voter to cast an absentee ballot. E.g.,
Ala. Code 1975 §§ 17-10-3(a), (b); Ark. Code Ann. § 7-5-402;
Md. Code Ann., Election Law § 9-304; Minn. St. § 203B.02;
N.J. Stat. Ann. § 19:57-3; N.Y. Elec. Law § 8-400; Tex.
Election Code Ann. § 82.001(a). The plaintiffs say this is not
good enough; that the Constitution requires Illinois to go
farther. But the states that have more liberal provisions for
absentee voting may well have different political cultures
from Illinois, cultures less hospitable to electoral fraud. One
size need not fit all. The unfortunate experience with the
“butterfly ballot” used in Palm Beach County, Florida in the
2000 Presidential election, which we recounted in Nader v.

-- 5 of 8 --

6 No. 03-3770
Keith, supra, at *2, illustrates the danger of unanticipated
consequences from seemingly innocent alterations in
election rules.
The plaintiffs contend alternatively that Illinois law is dis-
criminatory and therefore denies them the equal protection
of the laws because it bears more heavily on working
mothers than on other classes in the community. The claim
is belied by the complaint and briefs, where the hardships
that prevent voting in person are illustrated with examples
of people who are not working mothers—we mentioned
some of those examples earlier. “Working mother” does not
define a class that the election law singles out for adverse
treatment.
The plaintiffs point out, also in an equal protection vein,
that depending on where one lives in a county one might
have farther to travel to the polling place than a person who
plans to be just across the county line on election day, yet
that person is allowed to vote by absentee ballot, no ques-
tions asked. But this turns out not to be true. To be entitled
to vote by absentee ballot it’s not enough that you’re going to
be out of the county on election day; you must certify that
you are unable to vote in person. 10 ILCS 5/19-3.
Anyway, unavoidable inequalities in treatment, even if
intended in the sense of being known to follow ineluctably
from a deliberate policy, do not violate equal protection.
Apache Bend Apartments, Ltd. v. U.S. Through I.R.S., 964 F.2d
1556, 1569 (5th Cir. 1992); cf. Smith v. Boyle, 144 F.3d 1060,
1064 (7th Cir. 1998); Bell v. Duperrault, 367 F.3d 703, 712 (7th
Cir. 2004) (concurring opinion). And while the specific in-
equality of which the plaintiffs complain could be eliminated
if instead of drawing the line at the county boundary the
law said that anyone who lives more than, say, 30 miles from
his polling place can get an absentee ballot, this would be as
coarse a rule as the county-line rule. The length of time it

-- 6 of 8 --

No. 03-3770 7
takes to cover 30 miles depends on road and traffic condi-
tions that vary dramatically across the state. Moreover— and
demonstrating the ubiquity of “discrimination” whenever
lines have to be drawn—there is no relevant difference from
the standpoint of hardship between a person who lives 29.9
miles from the polling place and a person who lives 30.1
miles from it. And how many people even know how many
miles their home is from their polling place?
The plaintiffs point out that anyone who wants to vote by
absentee ballot has only to apply and check the box for
being unable to vote in person because he is going to be out
of the county on election day; no one is going to check up on
whether he’s telling the truth. Of course, that anyone might
include the plaintiffs, but they say they’re honest and won’t
lie on the application form though others will. This is
ultimately a vote-dilution claim, and it will not fly, because
it would amount to saying that any state election law that is
enforced laxly, or perhaps is difficult to enforce at all, denies
equal protection by hurting honest people.
The plaintiffs’ final grievance concerns the length of the
Illinois ballot. In 2000, the ballot for Cook County (the
county that includes Chicago) “was twenty-one pages long,
included the names of four hundred candidates and, for the
first time in a presidential election year, had no simple
mechanism to enable voters to cast a straight party-line
vote. A combination of outdated technology and lengthy,
confusing ballots undoubtedly led many voters to spoil their
ballots and lose the right to have their vote counted.” Paul
S. Herrnson, “Improving Technology and Administration:
Toward a Larger Federal Role in Elections,” 13 Stan. L. &
Policy Rev. 147, 151 (2002); see also John Mintz & Dan
Keating, “A Racial Gap in Voided Votes: Precinct Analysis
Finds Stark Inequity in Polling Problems,” Wash. Post, Dec.
27, 2000, p. A1. The longer and more confusing the ballot,

-- 7 of 8 --

8 No. 03-3770
the stronger the argument for allowing people to vote by
mail, since then they can take their time trying to figure out
the ballot, while when voting in person in a crowded poll-
ing place people are likely to feel rushed and as a result
make more mistakes. But this argument has nothing to do
with the problems faced by working mothers and other people
who find it burdensome to vote in person. It applies to
everyone. Its logic is that, Oregon-fashion, everyone should
vote at home, at least in counties in which the ballot is long.
If the plaintiffs got their way, Illinois would be forced to
choose between shortening the ballot (and on a county-by-
county basis?), which would mean reducing the number of
offices filled by election, and allowing everyone to vote at
home. The Constitution does not force such a choice on the
states.
The suit was correctly dismissed.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-15-04

-- 8 of 8 --