ON APPEAL FROM THE UNITED DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Higginbotham and Sloviter, Circuit Judges.
Plaintiff, convicted of a third-degree felony under Pennsylvania law, is currently incarcerated in a Pennsylvania institution. He filed this action under 42 U.S.C. § 1983 claiming that the Pennsylvania Election Code violates the Equal Protection Clause of the Fourteenth Amendment by denying incarcerated convicted felons an absentee ballot which, in effect, disenfranchises them.*fn1
Plaintiff concedes that Pennsylvania could constitutionally disenfranchise all convicted felons.*fn2 That concession is compelled by the decision in Richardson v. Ramirez, 418 U.S. 24, 41 L. Ed. 2d 551, 94 S. Ct. 2655 (1974). In Richardson, the Court considered not only the language of the Equal Protection Clause contained in § 1 of the Fourteenth Amendment but also the language of the less familiar § 2 of that amendment which provides for reduced representation "when the right to vote at any election . . . is denied . . . or in any way abridged, except for participation in rebellion, or other crime " (emphasis supplied).*fn3 After reviewing the history relating to the adoption of that section, the Court rested its conclusion that the state may disenfranchise felons on "the demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement." Id. at 55.
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.*fn4 Plaintiff claims that the distinction made between incarcerated and unincarcerated felons violates equal protection. He argues that because the right to vote is fundamental, the classification must withstand strict scrutiny; in the alternative, he argues the classification is not even rationally related to a legitimate state interest.
It has not been seriously contended that Richardson precludes any equal protection analysis when the state legislates regarding the voting rights of felons. In the first place, in Richardson itself the Court acknowledged that unequal enforcement, if proven, could be unconstitutional and remanded so that the California courts could consider the claim "that there was such a total lack of uniformity in county election officials' enforcement of the challenged state laws as to work a separate denial of equal protection. . . ." 418 U.S. at 56. Secondly, while there have been differing views as to whether there is any equal protection scrutiny of the state's selection of disenfranchising offenses, compare the separate opinions in the in banc decision in Allen v. Ellisor, 664 F.2d 391 (4th Cir.), vacated to consider mootness in light of new statute, 454 U.S. 807, 102 S. Ct. 80, 70 L. Ed. 2d 76 (1981), it is generally accepted that the state may not otherwise classify on a wholly arbitrary basis. See Shepherd v. Trevino, 575 F.2d 1110, 1114-15 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 59 L. Ed. 2d 90, 99 S. Ct. 1047 (1979). Disenfranchisement distinctions among prisoners made on the basis of race are precluded by the Fifteenth Amendment, but the Equal Protection Clause in § 1 of the Fourteenth Amendment must be relied on to protect prisoners against invidious distinctions based on sex or other arbitrary classifications. Thus, the Comonwealth conceded at oral argument that the state could not disenfranchise similarly situated blue-eyed felons but not brown-eyed felons. It follows that the Equal Protection Clause remains applicable, even after Richardson, to some voting classifications affecting convicted felons.
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, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972), Bullock v. Carter, 405 U.S. 134, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972), Kramer v. Union Free School District, 395 U.S. 621, 23 L. Ed. 2d 583, 89 S. Ct. 1886 (1969), and Cipriano v. City of Houma, 395 U.S. 701, 23 L. Ed. 2d 647, 89 S. Ct. 1897 (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. 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.*fn5
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 incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlining our penal system." Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 869, 74 L. Ed. 2d 675 (1983) (quoting Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948)). The state could rationally decide that one of the losses, in addition to the basic deprivation of liberty, to which a prisoner who is incarcerated should be subject is that of participation in the democratic process which governs those who are at liberty. At the same time, Pennsylvania could rationally determine that those convicted felons who had served their debt to society and had been released from prison or whose crimes were not serious enough to warrant incarceration in the first instance stand on a different footing from those felons who required incarceration, and should therefore be entitled to participate in the voting process.
For the foregoing reasons, we will affirm the decision of the district court dismissing plaintiff's complaint ...