mind." Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489 (1955).
Incremental progress is evidenced by the fact that in 1969, the Illinois Election Code
failed to allow absentee ballots to those serving on juries within the county of their
residence. McDonald, 394 U.S. at 810.
IV. Due Process and a Right to an Informed Vote

The Court is aware of no case law that sets forth a fundamental right to voting in
a manner described by the Plaintiffs or as a corollary to any rights under the Fourteenth
Amendment. Where there is no fundamental right at issue, a facially neutral statute and
no disproportionate impact, the rational basis test applies. San Antonio Independent Sch.
Dist. v. Rodriguez, 411 U.S. 1, 111, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). In Count
IV, Plaintiffs assert that because they have a fundamental right to vote, they necessarily
have a right to vote in an informed, deliberate, and careful manner. (Amend. Compl. |
86.) Plaintiffs have claimed that by administering and entering the in-person voting
provisions of the Illinois Election Code that the Defendants have acted and will continue
to act under state law to deprive Plaintiffs of a right to vote in such a manner as
guaranteed by the Fourteenth Amendment in violation of 42 U.S.C. § 1983. Arguing that
in attempting to vote, Plaintiffs may find that they need written material which they may
have forgotten but which they cannot return home to get, Plaintiffs cannot complete the
ballot carefully. (/d. § 87.) Because of the conditions of such in-person voting Plaintiffs
maintain that they are deprived of voting in an informed, deliberate, and careful manner
and that only voting by mail or absentee ballot would solve this problem. (Id. § 88.)

Further, as there is no precedent on this issue, the due process considerations of
the Fourteenth Amendment with regard to a challenge to a state’s election laws may also

13


wage earner, she would not be paid during the time she took off to vote. (Id. 449.)
Further, she would not feel comfortable trusting someone she did not know to watch her
daughter at the polling place and thus would be unable to concentrate while voting. (Id.
149)
The Voting Process

In accordance with the provisions of the Election Code, 10 ILCS § 5/17-1 et
seq., Defendants conduct elections by means of in-person voting at polling places and in
precincts as established by the various county election boards of Illinois. (Id. { 11-12.)
10 ILCS § 5/19-1 et seq. provides that voting by absentee ballot is available if a voter
meets the established criteria for one of the eight specified "excuses". (Jd. J 13-14; see
10 ILCS § 5/19-1 et seq.) Plaintiffs do not meet the criteria to vote by absentee ballot.
(Amend. Compl. 13-14.)

The statutory provisions for absentee ballot voting allow a voter who “who
expects to be absent from the county in which he is a qualified elector” to request an
absentee ballot. (Id. | 15; see 10 ILCS § 5/19-1 et seq.) Plaintiffs allege that this
particular excuse is arbitrary as it allows voters with daily commutes shorter than some
of Plaintiffs to vote absentee because of county lines. (Amend. Compl. J 15.) Plaintiffs
further state that the ambiguous standards of what constitutes being absent from the
county for the purposes of obtaining absentee ballots have resulted in thousands or more
voters being in doubt over their eligibility. (Jd 416.) Additionally, Plaintiffs claim that
the Defendants make no systematic effort to enforce 10 ILCS § 5/19-1 et seq., and thus
“honest” voters such as Plaintiffs are penalized, while other voters request an absentee
ballot as a matter of course, regardless of whether they meet the established criteria. (Id.

4


CIO Council v. Pizza, 154 F.3d 307, 325 (6th Cir. 1998) ("Because elections must be
regulated to remain free from fraud and coercion, some latitude is given to regulations
designed to serve these purposes."); Pope v. Williams, 193 U.S. 621, 632, 633, 48 L. Ed.
817, 24 S. Ct. 573 (1904) (residency restriction upheld); Campbell v. Buckley, 203 F.3d.
738, 743 (10th Cir. 2000) (the state’s "title setting" requirement was facially neutral and
reasonably justified); Winters v. il. State Bd. of Elections, 197 F. Supp. 2d 1110, 1113
(N.D. Ill. 2001) (tie-breaking election provision did not violate the Equal Protection
Clause as it failed to create a classification and was rationally related to a legitimate state
interest of redistricting).

Plaintiffs contend that it is not the right to vote by absentee ballot that they assert
is being violated, but the right to vote itself. (Pl. Mem. Law Opp. Defs.’ Mot. Dismiss at
9.) In particular, Plaintiffs complain there is no provision for absentee voting for the
individuals who will be in their home countries on election day and are too busy to go to
the polls. To support this claim, Plaintiffs rely upon O’Brien v. Skinner, 414 U.S. 524
(1974), where the Supreme Court held that legislation that denied the right to an absentee
ballot to an otherwise qualified group of voters operated as a restriction which was "so
severe as itself to constitute an unconstitutionally onerous burden on the .. . exercise of
the franchise." O’Brien, 414 U.S. at 530, quoting Rosario v. Rockefeller, 410 U.S. 752,
760 (1973). Plaintiffs in O’Brien were pre-trial detainees and others being held within
their respective counties, and who possessed no legal disability otherwise impeding their
right to vote. Id. at 525. However, in O’Brien, the State of New York denied the right to
vote by absentee ballot only to those persons being held within their respective counties,

and similarly situated persons being held outside their registered counties could make use

9


A plaintiff who seeks relief under § 1983 must establish that (1) the alleged
conduct was committed by a person acting under color of state law; and (2) that this
conduct deprived the plaintiff of rights, privileges, or immunities secured by the
Constitution or laws of the United States. Yasak v. Retirement Bd. of the Policemen’s
Annuity & Benefit Fund of Chicago, No. 02 C 251, 2003 U.S. Dist. LEXIS 3080, at *7-8,
2003 WL 742188, at *3 (N.D. Ill. Mar. 4, 2003) (citing Adickes v. SH. Kress & Co., 398
US. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)).

I. Equal Protection and the Fundamental Right to Vote

It has been established beyond question that there is a fundamental right to vote.

Dunn v. Blumstein, 405 U.S. 330, 336, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972); Burdick v.
Takushi, 504 U.S. 428, 433, 119 L. Ed. 2d 245, 112 S. Ct. 2059 (1992). “[V]Joting is of
the most fundamental significance under our constitutional structure {/linois State Bd. Of
Elections y. Socialist Workers Party, 440 U.S, 173, 184; 99 S. Ct. 983; 59 L. Ed. 2d 230.
Thus, the United States Supreme Court has held that when such vital individual rights are
at stake, such as voting, a State must establish that its classification is necessary to serve
a compelling interest. Jd. at 185. Before the burden passes to the State, however, in
order to sustain an equal protection claim, Plaintiffs must establish that there is either a
classification system or when considering a facially neutral law, that there is a
discriminatory purpose, as well as a disproportionate impact imposed upon by the
Election Code. Id. at 185; Washington v. Davis, 426 U.S. 229, 242, 48 L. Ed. 2d 597, 96
S. Ct. 2040 (1976). Illinois law permits absentee voting, but Plaintiffs’ claim is that those
laws are too narrow, because these Plaintiffs are not eligible to vote by absentee ballot
for the reasons they assert as hardships. Plaintiffs ask this Court to find that the Illinois

6


417.) Therefore, Plaintiffs contend that the Election Code, as administered by
Defendants, gives thousands of Illinois registered voters like Plaintiffs no significant
opportunity to vote at the polls, or places an unreasonable burden on their right to vote, in
that Plaintiffs have difficulty getting to the polls to vote in person. (Id. { 18.)
DISCUSSION

Pursuant to Rule 12(b)(1) and Rule 12(b)(6), Defendants seek to dismiss Count I
(Section 1983 and Equal Protection: Denial of Equal Opportunity to Vote); Count If
(Section 1983 and the Fourteenth and Nineteenth Amendments: Abridgement of Right to
Vote on the Basis of Sex); Count ITI (Section 1983 and Fourteenth Amendment: Equal
Protection to Vote for Hourly Workers); Count IV (Section 1983 and Due Process: Right
to an Informed Vote); and Count V (Right to Safeguards of the Integrity of the Ballot) of
Plaintiffs Amended Complaint.

I. Motion to Dismiss and § 1983
In considering a motion to dismiss for lack of subject matter jurisdiction under

Rule 12(b)(1), or for failure to state a claim under Rule 12(b)(6), the court must accept
Plaintiffs’ well-pled factual allegations as true and draw reasonable inferences therefrom
in the plaintiffs favor. Afsharzadehyadzi v. Perryman, 214 F. Supp. 2d 884, 886 (N.D.
I. 2002) (citing Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001)).
A court may dismiss a complaint for failure to state a claim only if “it appears beyond
doubt that a plaintiff can prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 US. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957);

Hondo, Inc. v. Sterling, 21 F.34.775, 777 (7th Cir. 1994).


tights of voters, "the State's important regulatory interests are generally sufficient to
justify” the restrictions. Anderson, 460 U.S. at 788.
a. Absentee Voting

Despite the established principle that the right to vote is a fundamental one, there
is no corresponding fundamental right to vote by absentee ballot. McDonald y. Bd. of
Election Comm'rs, 394 U.S. 802, 807; 22 L. Ed. 2d 79, 89 S. Ct. 1404 (1969). The
Supreme Court has recognized that "[iJ]t does not follow, however, that the right to vote
in any manner ... [is] absolute." Burdick, 504 U.S. at 433; see also Dunn, 405 U.S. at
336 (emphasis added). The Constitution provides that States may prescribe "the Times,
Places and Manner of holding Elections for Senators and Representatives," Art. I, § 4, cl.
1, and the Supreme Court therefore has recognized that States retain the power to
regulate their own elections. U.S. CONST. art. I, § 4, cl. 1; Burdick, 504 U.S. 428; 112
S. Ct. 2059; 119 L, Ed. 2d 245. It has long been held that the states’ powers to determine
the conditions under which the right of suffrage may be exercised broadly, so long as
they do not do so in a discriminatory manner. McDonald, 394 U.S. at 807. The courts
have held that the Constitution does not prohibit the States from enacting laws which
incidentally burden election laws in order to ensure their integrity. Burdick, 504 U.S. at
433.

"Common sense, as well as constitutional law, compels the conclusion that

government must play an active role in structuring elections; as a practical matter,

there must be a substantial regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to accompany the democratic

process.”
fd. (quoting Storer v. Brown, 415 U.S. 724, 730, 39 L. Ed. 2d 714, 94S. Ct. 1274
(1974)); see Krislov v. Rednour, 226 F.3d 851, 859 (7th Cir. Ill. 2000); Toledo Area AFL-

8


Minute Order Fe 2).
inte Order Form (08)

op

United States District Court, Northern District of Illinois

-
Name of Assigned Judge
or Magistrate Judge

Ronald A. Guzman

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C 5270 DATE 9/19/2003
CASE Phyllis Griffin, et al vs. Elaine Roupas, et al
TITLE
{In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY:
ql) Qo Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due__ . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] {set for/re-set for] on set for at :
(7) Oo Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) Oi Local Rule 41.1 CIFRCP41(a)(1) CO FRCP41(a)(2).

qo) % [Other docket entry) _ ENTER MEMORANDUM OPINION AND ORDER: the Court grants

Defendants’ Rule 12(b)(1) and Rule 12(b)(6) motions to dismiss as to all counts. This case is hereby

terminated,
(il) {For further detail see order attached to the original minute order.]

No notices required.

Notices mailed by judge’s staff,

Notified counsel by telephone.

VY | Docketing to mail notices.

¥_ | Mail A0.450 form.

No notices required, advised in open court,

99
Copy to judge/magistrate judge ee 89 "5
courtroom ab
TBK deputy's
initials

porgsia Sf]

number of notices

SEP 2.2 2003

date docketed,

docketing deputy initials

mailing deputy initials



if substantially related to an important governmental objective. Jd. However, in this
case, the absentee ballot provisions of the Election Code are facially neutral. See 10
ILCS § 5/19-1 et seq. Thus, Plaintiffs must show a discriminatory purpose, as well as
disproportionate impact in order to trigger a raised level of analysis. Washington, 426
US. at 242. Although for purposes of Defendants’ motion to dismiss, allegations in the
complaint are accepted in a light most favorable to the plaintiff, the fact that Plaintiffs
admit that Plaintiff Knutstrum’s husband has equal difficulty in scheduling time to vote
raises serious doubts about the disproportionate impact upon working mothers that the
Election Code has. (Amend. Compl. 427.) Plaintiffs have further failed to cite any
discriminatory purpose of the Election Code to support an equal protection claim on the
basis of gender (Count II).

With regard to Counts J and III, discrimination against those who have long
commutes yet do not travel outside their respective counties and against hourly workers,
the rational basis test applies. “The distinctions drawn by a challenged statute must bear
some rational relationship to a legitimate state end and will be set aside as violative of the
Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that
goal.” McDonald, 394 U.S. at 809. The rational basis test is satisfied only if no grounds
can be conceived to justify the statutory classifications at issue. Jd. The Court can easily
conceive of numerous reasons why the Illinois legislature chose to permit voting by
absentee ballot to persons who expect to be absent from their respective counties and not
others. Those within their respective counties are logically most likely to be nearer their
polling station than others or because there must be some distinction between those
eligible on the basis of geographic location, etc.

11


of the absentee ballot. Jd. Thus, the Court held that the classification was so arbitrary as
to constitute infringement upon the right to vote itself. Jd. at 530. In this case, a different
interpretation of the statute at issue could arguably make it easier for the Plaintiffs to
exercise their right to vote. However, the current interpretation does not otherwise deny
them the opportunity to exercise it completely. Thus, as there is no interpretation of the
law at issue that otherwise denies Plaintiffs the right to vote, the issue properly framed is
whether Plaintiffs have a right to vote by absentee ballot that is presently infringed under
the Equal Protection and Due Process clauses of the Fourteenth Amendment, the
Nineteenth Amendment, and Plaintiffs’ right to safeguard the integrity of the ballot.

IIL. Requirements of a Fourteenth Amendment Equal Protection Claim

In determining whether Illinois Election Code, as administered by Defendants,
violates the Equal Protection clause of the Fourteenth Amendment, the court must
examine the character of the classification in question, the importance of the individual
interests at stake, and the state interests asserted in support of the classification Illinois
State Bd. of Elections y. Socialist Workers Party, 440 U.S. 173, 182; 99 S. Ct. 983; 59 L.
Ed. 2d 230. Because it is the right to vote by absentee ballot that is at issue in this case,
which is not a fundamental right, strict scrutiny does not automatically apply.
McDonald, 394 U.S. at 807. Of the three classification systems alleged by Plaintiffs-
between those who expect to be absent from their respective counties (Count I), gender
(Count I), and as hourly workers (Count IJl)-only discrimination on the basis of gender
(working mothers with child-care responsibilities) requires an intermediate level of
scrutiny rather than merely a rational relationship. Craig v. Boren, 429 U.S. 190, 50 L.
Ed. 2d 397, 97 S. Ct. 451 (1976). Classifications on the basis of gender are constitutional

10


election law on in-person voting and absentee voting violate the Constitution and to
require Ulinois, by way of mandatory injunction, to develop and submit to the Court a
plan for different voting rules~such as a “no excuse absentee ballot” or the “ali-mail”
ballot similar to that used by the State of Oregon. In this case, Plaintiffs are unable to
demonstrate a classification system that violates the Fourteenth Amendment, nor can
they show a discriminatory purpose or disproportionate impact sufficient to sustain their
claims.
In particular, with regard to the fundamental right to vote, the Supreme Court has
more recently endorsed a “flexible standard” over strict scrutiny. Burdick, 504 U.S. 428,
434, 119 L, Ed. 2d 245, 112 S. Ct. 2059 (1992). Drawing upon its holding in Anderson v.
Celebreeze, 460 U.S. 780, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983), the Court held that:
A court considering a challenge to a state election law must weigh “the character
and magnitude of the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate" against “the precise
interests put forward by the State as justifications for the burden imposed by its
rule, taking into consideration “the extent to which those interests make it
necessary to burden the plaintiff's rights.”
Id. In Burdick, the Supreme Court held that Hawaii's complete prohibition of write-in
voting did not unreasonably infringe on the First and Fourteenth Amendments. Jd. at
441. The rigorousness of a court’s scrutiny depends upon the extent to which a
challenged regulation burdens Fourteenth Amendment rights. Jd. Thus, when such
tights are subjected to "severe" restrictions, the regulation must be “narrowly drawn to
advance a state interest of compelling importance." Norman v. Reed, 502 U.S. 279, 289,
116 L. Ed, 24711, 112 S. Ct. 698 (1992). However, when a state election law provision
imposes only "reasonable, nondiscriminatory restrictions" upon Fourteenth Amendment

7


Plaintiff Knutstrum is a working mother with child care responsibilities for her
three young children. (Jd. ] 7,926.) She is married and shares her child-care
responsibilities with her husband who also works up to fourteen hours a day as a
podiatrist. (Id. | 27.) To vote on election day, she must reduce her schedule and number
of patients, as must her husband. (Jd. | 28.) During the last election, she felt stressed and
tense during the elections because she had to finish voting in time to take care of her
children. (Id. { 29.)

Plaintiff Fort is a working mother with two children. (Id. { 8, § 33.) She shares
her child-care responsibilities with her husband but handles the majority of the child-care
responsibility. (Jd. 434.) Plaintiff Fort works from about 1:00 p.m. to 10:30 p.m, and
uses the morning to spend time with her children and do errands. (Jd. 35-36.) In order
to vote on election day, she would have to forego morning time with her children or an
errand. (Id. § 37.)

Plaintiff Alejandre is a working mother with one child. (Id. (9, 41.) Before
she was married, she was a single mother of a three year old, as well as a college student
who worked part-time. (/d. ]41.) Trying to vote at the polls with her son with her, she
found the polls were not child-friendly and felt rushed, nervous, and stressed trying to
watch over her child and vote at the same time. (/d. 142.) According to her, the
experience led her not to vote in subsequent elections and primaries. (Id. J 42.)

Plaintiff Williams is a single mother with the sole child-care responsibility for
her one child while attending college. (Id. 410, 946.) While now unemployed, she nb
worked previously as an hourly wage earner from 9:00 a.m. to 5:30 p.m. or from 1:30
p.m. to 10:30 p.m.. (Id. 4 47.) If she took time off work to vote when she was an hourly

3


be considered under the “flexible standard” test. Burdick, 504 U.S, at 433. For similar
reasons, the Court rejects the notion that Plaintiffs have a severe burden placed upon
them by the current Illinois election laws and finds that the Illinois legislature's decision
to restrict absentee voting is a reasonable exercise of their power to regulate elections.
Plaintiffs should be lobbying Illinois’ legislature for the reform they seek.
Vv. Standing and Count V (Right to Safeguards of the Integrity of the Ballot)
Plaintiffs lack proper standing to bring a cause of action such as Count V due to
their failure to allege an actual harm threatened or suffered. In Count V, Plaintiffs have
claimed a right under the Fourteenth Amendment to an “undiluted and equal right to
vote, and as a corollary right that the Defendants provide effective safeguards for the
integrity of the ballot.” (Amend, Compl. 4/91.) Plaintififs assert that Defendants have a
reciprocal duty under the Fourteenth Amendment to take certain measures, at a
minimum, to prevent fraud, when Defendants know or should know that fraud is
occurring. (Id. 4 92.)

To have standing, a plaintiff must allege a personal injury rather than a generalized
grievance. Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984).
In order to satisfy the Article III standing requirements, the plaintiff must show that he
personally has "suffered some actual or threatened injury as a result of the putatively
illegal conduct of the defendant." Valley Forge Christian College v. Americans United
Jor Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct.
752 (1982) (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L.
Ed. 2d 66, 99 S. Ct. 1601 (1979)). In other words, a plaintiff must allege (1) an injury in
fact; (2) that is fairly traceable to the defendant's challenged conduct; and (3) that is

14


claimed denial of an equal opportunity to vote under § 1983 and the Equal Protection
Clause (Count J); abridgement of the right to vote on the basis of sex under § 1983 and
the Fourteenth and Nineteenth Amendments (Count If); equal protection to vote for
hourly workers under § 1983 and the Fourteenth Amendment (Count III); the right to an
informed vote under § 1983 and the Due Process Clause (Count IV); and the right to
safeguards of the integrity of the ballot (Count V). Plaintiffs are also seeking preliminary
and permanent injunctive relief requiring that the Defendants develop and submit to this
Court a plan for a system that would, ensure a meaningful opportunity to vote for
Plaintiffs, remedying various violations of the right to vote, and to do so in a way that
does not have a discriminatory impact based on race or gender. Plaintiffs claim
jurisdiction by 28 U.S.C. § 1331 for purposes of injunctive relief, and 28 U.S.C. § 2201
for purposes of declaratory relief.

Defendants have moved to dismiss Plaintiffs’ claims pursuant to Fed. R. Civ. P.
("Rule") 12(b)(1) and 12(b)(6). For the following reasons, the Court grants the motion to
dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) as to Counts 1-V.

FACTS

Plaintiffs are five women who are Illinois residents and registered voters in their
respective counties. (Amend. Compl. 6-10.) Plaintiff Griffin is an African-American,
working, single mother with sole child care responsibility for her two children, including
a disabled son with special medical needs. (Id. 6, 4 19-20.) She has a very full day that
normally lasts from around 8:30 a.m. until 7:00 p.m. or 10:00 p.m. at the latest. (Id. § 21-
22.) To vote at the polls on election day, she would have to take time away from work or
her children and other responsibilities. (a. ¥ 23.)

2


DOCKETED
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS SEP 2 2 2003
EASTERN DIVISION

PHYLLIS GRIFFIN, LORE KNUTSTRUM,
JULIET ALEJANDRE, KAREN FORT, and
VERONICA WILLIAMS,

Plaintiffs,

v. Judge Ronald A. Guzman
ELAINE ROUPAS, Chair, WANDA L.
REDNOUR, Vice Chair, DAVID E. MURRAY,
JOHN KEITH, PHILIP R. O'CONNOR,
WILLIAM M. MCGUFFAGE, JESSE SMART,
and ALBERT PORTER, in their official
Capacities as members of the Illinois State
Board of Elections,

)
)
)
)
)
)
)
)
)
)
) 02 C 5270
)
)
)
)
)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Phyllis Green, Lore Knutstrum, Juliet Alejandre, Karen Fort, and
Veronica Williams ("Plaintiffs") have sued the Defendants Elaine Roupas, Chair, Wanda
L. Rednour, Vice Chair, David E. Murray, John Keith, Philip R. O'Connor, William M.
McGuffage, Jesse Smart, and Albert Porter, in their official capacities as members of the
Illinois State Board of Elections ("Defendants” or "Board members"). Plaintiffs are
seeking a declaratory judgment that the Illinois Election Code, 10 ILCS 5/17-1 et seq.
(the “Election Code”), is currently in violation of the fundamental right to vote under the
Fourteenth and Nineteenth Amendments pursuant to 42 U.S.C. § 1983 ("§ 1983") due to
its failure to allow for absentee voting for persons in Plaintiffs’ circumstances or all

person. See U.S. CONST. amend. XIV; U.S. CONST. amend XIX. Plaintiffs have


With regard to discrimination against hourly workers, because the statute is
facially neutral on this point, Plaintiffs must show a discriminatory purpose, as well as
disproportionate impact in order to trigger a raised level of analysis. Washington, 426
USS. at 242. Plaintiffs, on this issue, again have difficulty demonstrating a
disproportionate impact on any one group, as Plaintiffs as a group come from all income
levels and allege equal difficulty in making it to the polls on election day. Plaintiff
Knutstrum’s circumstances directly counter-balance Plaintiff Williams’, because as a
self-employed physician, Knutstrum schedules her own hours as a manager or other
salaried worker might have the luxury of doing. As alleged in the complaint, Knutstrum
(and her husband) find it exceptionally difficult to vote on election day and would have
to sacrifice by scaling back their practice to do so on election day. (Amend. Compl. f
28.) Thus, Plaintiffs have failed to state an equal protection claim upon which relief can
be granted for Counts I and III.

Even if the right to an absentee ballot is considered under the umbrella of the
fundamental right to vote, the “flexible standard” test is satisfied. A State's important
regulatory interests are generally sufficient to justify a restriction if a state election law
provision imposes only "reasonable, nondiscriminatory restrictions" upon the Fourteenth
Amendment rights of voters. Burdick, 504 U.S. at 434. As discussed above, Plaintiffs
experience extraordinary difficulty in demonstrating Fourteenth Amendment violations
under traditional equal protection analyses, as the Election Code and its absentee
provisions are facially neutral and thus easily satisfies the rational basis test. Further, a
state legislature has traditionally been allowed to enact reforms "one step at a time,
addressing itself to the phase of the problem which seems most acute to the legislative

12


likely to be redressed by a favorable decision. Lewis v. Continental Bank, 494 U.S. 472,
477 (1990); Plotkin v. Ryan, 239 F.3d 882, 884 (7" Cir. 2001). Being simply a voter and
a citizen does not satisfy the standing requirement. U.S. v. Hays, 515 U.S. 737, 743, 132
L. Ed. 2d 635, 115 S, Ct. 2431 (1995).

Plaintiffs appear to be alleging that some voters obtain absentee ballots when they
are not eligible to do so. However, Plaintiffs have not provided any specifics for these
vague and speculative allegations. The complaint is void of any facts to support their
general theory of voters lying to get ballots. Plaintiffs allege nothing in Count V that
raises any valid Constitutional issues as to their right to vote. Because Plaintiffs have not
asserted any cognizable injury such as a diluted vote they lack standing sufficient to
bring Count V.

CONCLUSION
For the foregoing reasons, the Court grants Defendants' Rule 12(b)(1) and Rule

12(b)(6) motions to dismiss as to all counts. This case is hereby terminated.

SO ORDERED enterep: 9//9/o 3

Bhat

Ronald A. Guzman
United States Judge

15