In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3770

PHYLLIS GRIFFIN, et al.,

Plaintiffs-Appellants,

v.

ELAINE ROUPAS, 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.

____________

ARGUED SEPTEMBER 8, 2004—DECIDED OCTOBER 15, 2004

____________

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

POSNER, 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
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, allmail 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 reason 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 emergencyroom 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.
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). Because 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 reasonable 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 standard 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 unmanageable.
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 judicially 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 information 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.
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 quintessentially a legislative judgment with which we judges

should not interfere unless strongly convinced that the legislative 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 legislation 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.
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 discriminatory 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 questions 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 inequality 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
No. 03-3770 7

takes to cover 30 miles depends on road and traffic conditions 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,
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 polling 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-bycounty 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.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-15-04