decided as amended november 11 1971.: October 26, 1971.
Aldisert, Gibbons and Rosenn, Circuit Judges. On Rehearing: Seitz, Chief Judge, and Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Rosen, and Hunter, Circuit Judges. Adams, Circuit Judge (dissenting).
This appeal from the district court's order of October 6, 1971 requires us to decide whether the court erred in dismissing plaintiffs' complaint. We are persuaded that there was no error and will affirm.
We have concluded that the substantive constitutional challenge to the two Pennsylvania statutes was wholly insubstantial and that the convening of a statutory court was not required under 28 U.S.C.A. § 2281. Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962).
Plaintiffs, untried detainees in Philadelphia prisons, have alleged that the First Class County (Philadelphia) Permanent Registration Act of March 30, 1937, P.L. 115, as amended by the Act of August 14, 1963, P.L. 900, 25 Purd.Stat.Anno. § 623-1 et seq., and Pennsylvania Election Code, Act of 1937, P.L. 1333, Art. I, Sec. 102, as amended by the Act of August 13, 1963, P.L. 707, 25 Purd.Stat.Anno. § 2602(w) (12), offend the equal protection clause and are therefore unconstitutional. The former statute regulates voting registration; the latter defines qualified absentee elector.
Thus, at the threshold, we emphasize that the attacked statutes do not control the right to vote. The distinction between the mechanics of controlling the exercise of the franchise, and its selective distribution, is made clear in McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969). Compare Stephens v. Yeomans, 327 F. Supp. 1182 (D.N.J.1970). Regulations setting forth the mechanics of controlling the exercise of the franchise are measured by the test that "statutory classifications will be set aside only if no grounds can be conceived to justify them." McDonald, supra, 394 U.S. at 809, 89 S. Ct. at 1408.
Measured by this test, the Pennsylvania legislative schema requiring that places of registration be open to the public, Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969), and that absentee ballots not be made available to those "confined in a penal institution or a mental institution," 25 Purd.Stat.Anno. § 2602(w) (12), clearly may not be set aside. Ray v. Commonwealth of Pennsylvania, 442 Pa. 606, 276 A.2d 509 (1971).
We have carefully considered each of the contentions raised by the appellants and find them to be without merit. Under ordinary circumstances, we would be inclined to present an extended discussion of the controlling issues. Since the emergency nature of this appeal suggests an immediate adjudication we have limited our opinion to this brief statement.
The judgment of the district court dismissing the complaint will be affirmed.
ON PETITION FOR REHEARING BEFORE THE COURT EN BANC
Upon consideration of the petition for rehearing, the prayer of the petition is denied. Judges Van Dusen, Adams and Rosenn would grant the petition for rehearing.
ADAMS, Circuit Judge (dissenting).
Only in the most unusual circumstance do I believe that a judge of this court should dissent with opinion from an order of the court denying rehearing en banc. However, in my ...