Certiorari Denied November 7, 1983. See 104 S.Ct. 400.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Plaintiff, convicted of a third-degree felony under Pennsylvania law, is currently incarcerated in a Pennsylvania institution.
Plaintiff concedes that Pennsylvania could constitutionally disenfranchise all convicted felons.
Plaintiff, however, argues that while Pennsylvania could choose to disenfranchise all convicted felons, it has not done so; unincarcerated convicted felons, such as those who have been sentenced to probation or released on parole, may vote.
It has not been seriously contended that Richardson precludes any equal protection analysis when the state legislates regarding
In this case, plaintiff makes no claim of unequal enforcement nor of any discrimination among those felons who are incarcerated. Instead, plaintiff claims that because the right to vote is "fundamental" Pennsylvania cannot abridge or limit it on the basis of incarceration without showing that classification is necessary to promote a compelling state interest.
Plaintiff's argument fails because the right of convicted felons to vote is not "fundamental". That was precisely the argument rejected in Richardson. In that case, plaintiffs relied on decisions invalidating state-imposed restrictions on the franchise as violative of the Equal Protection Clause, such as Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), to support their argument that a state must show a "compelling state interest" to justify exclusion of ex-felons from the franchise. The Court rejected that argument, holding that state laws disenfranchising felons are, because of the express language of § 2 as well as its history, distinguished "from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court." 418 U.S. at 54, 94 S.Ct. at 2671. It follows that the standard of equal protection scrutiny to be applied when the state makes classifications relating to disenfranchisement of felons is the traditional rational basis standard. Accord Williams v. Taylor, 677 F.2d 510, 514 (5th Cir.1982); Shepherd v. Trevino, 575 F.2d at 1114-15. Contra Hobson v. Pow, 434 F.Supp. 362, 366 (N.D.Ala.1977).
In summary, the state can not only disenfranchise all convicted felons but it can also distinguish among them provided that such distinction is rationally related to a legitimate state interest.
It remains only to consider whether Pennsylvania's voting scheme which permits unincarcerated felons to vote but denies that right to incarcerated felons satisfies this level of scrutiny. We are not bound by the state's inexplicable failure to provide in its brief any rationale for such distinction, see Murillo v. Bambrick, 681 F.2d 898, 908 n. 20 (3d Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 378, 74 L.Ed.2d 511 (1982), because we believe the basis is apparent on its face. The Court recently reiterated its earlier statement that "Lawful
For the foregoing reasons, we will affirm the decision of the district court dismissing plaintiff's complaint for failure to state a claim.
25 Pa.Stat. §§ 2602(w)(12), 3146.1. The Pennsylvania Supreme Court has construed the absentee ballot provision as legislative action defining qualified electors. Ray v. Commonwealth, 442 Pa. 606, 609, 276 A.2d 509, 510 (1971). As so interpreted, the Pennsylvania statute differs from the Tennessee statute construed in Tate v. Collins, 496 F.Supp. 205, 208 (W.D.Tenn.1980), on which plaintiff relies, which all parties conceded gave the prisoners at issue the right to vote.