opinion: O’BRIEN et al. v. SKINNER, SHERIFF, et al.
  No. 72-1058.
  Argued November 6, 1973
  Decided January 16, 1974
  Burger, C. J., delivered the opinion of the Court, in which Douglas, BrenNan, Stewart, White, Marshall, and Powell, JJ., joined. Marshall, J., filed a concurring opinion, in which Douglas and BreNNAN, JJ., joined, post, p. 531. BlackmuN, J., filed a dissenting opinion, in which RehNQUist, J., joined, post, p. 535.
  William D. Eggers argued the cause for appellants. With him on the brief were David N. Kunkel, Ruth B. Rosenberg, Burt Neuborne, and Melvin L. Wulf.
  Michael K. Consedine argued the cause and filed a brief for appellees.
  Louis J. Lejkowitz, pro se, Attorney General of New York, Ruth Kessler T.och, Solicitor General, and William J. Kogan, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance.
  Mr. Chief Justice
  Burger delivered the opinion of the Court.
  This is an appeal from the judgment of the Court of Appeals of New York taken by 72 persons who were at the time of the trial of the original action, detained in confinement. Some are simply detained awaiting trial, others are confined pursuant to misdemeanor convictions ; none is subject to any voting disability under the laws of New York.
  The Court of Appeals of New York, by divided vote, held that failure of the State to provide appellants with any means of registering and voting was not a violation of the New York statutes and not a denial of any federal or state constitutional right.
  Before the November 1972 general elections in New York, the appellants applied to the authorities of Monroe County, including the Board of Elections, to establish a mobile voters registration unit in the county jail in compliance with a mobile registration procedure which had been employed in some county jails in New York State. This request was denied and appellants then requested that they be either transported to polling places under appropriate restrictions or, in the alternative, that they be permitted to register and vote under New York’s absentee voting provisions which, essentially, provide that qualified voters are allowed to register and vote by absentee measures if they are unable to appear personally because of illness or physical disability, or because of their “duties,- occupation or business.” The statutes also allow absentee voting, but not registration, if the voter is away from his residence on election day because he is confined in a veterans’ hospital or is away on vacation. The election authorities denied the request, taking the position that they were under no obligation to permit the appellants to register or to vote in person and that inmates did not qualify for absentee voting under the provisions of the New York statutes.
  The Supreme Court for Monroe County in New York considered the claims presented by the appellants and treated them as a proceeding in the nature of mandamus. The conclusion reached by that court was that the legislature of New York had provided for absentee registration and voting by any voter unable to appear personally because of confinement in an institution (other than a mental institution). The court concluded that the election laws should be construed to apply to an inmate confined in jail and not otherwise disenfranchised since this constituted a “physical disability” in the sense that he was physically disabled from leaving his confinement to go to the polls to vote, and that the statute therefore entitled such persons to vote by absentee ballot. However, the court noted that there was no showing that any of the persons claiming these rights had timely filed all the necessary forms but that this could yet be accomplished in time for voting by absentee ballot in November 1972. The Appellate Division of the Fourth Judicial Department of the Supreme Court of New York on review gave a similar construction to the election laws, stating:
  “We believe that petitioners, being so confined, are physically disabled from voting and should be permitted to do so by casting absentee ballots.” 40 App. Div. 2d 942, 337 N. Y. S. 2d 700 (1972).
  On appeal to the New York Court of Appeals, however, these holdings were reversed, that court stating:
  “The right to vote does not protect or insure against those circumstances which render voting impracticable. The fact of incarceration imposes many other disabilities, some private, others public, of which voting is only one. Under the circumstances, and in view of the Legislature’s failure to extend these absentee provisions to others similarly disadvantaged, it hardly seems plausible that petitioners’ right to vote has been arbitrarily denied them. It is enough that these handicaps, then, are functions of attendant impracticalities or contingencies, not legal design.” 31 N. Y. 2d 317, 320-321, 291 N. E. 2d 134, 136-137.
  Judge Fuld dissented, being of the view that §§ 117-a and 153-a of the Election Law of New York should be read in the manner announced by the Appellate Division. Judge Burke, joining Judge Fuld, agreed, stating additionally that any construction of the election law precluding appellants from exercising their right to register and vote violated the equal protection guarantees of the Fourteenth Amendment.
  It is important to note at the outset that the New York election laws here in question do not raise any question of disenfranchisement of a person because of conviction for criminal conduct. As we noted earlier, these appellants are not disabled from voting except by reason of not being able physically — in the very literal sense — -to go to the polls on election day or to make the appropriate registration in advance by mail. The New York statutes are silent concerning registration or voting facilities in jails and penal institutions, except as they provide for absentee balloting. If a New York resident eligible to vote is confined in a county jail in a county in which he does not reside, paradoxically, he may secure an absentee ballot and vote and he may also register by mail, presumably because he is “unavoidably absent from the county of his residence.” N. Y. Election Law § 117 (1)(b) (1964).
  Thus, under the New York statutes, two citizens awaiting trial — or even awaiting a decision whether they are to be charged — sitting side by side in the same cell, may receive different treatment as to voting rights. As we have noted, if the citizen is confined in the county of his legal residence he cannot vote by absentee ballot as can his cellmate whose residence is in the adjoining county. Although neither is under any legal bar to voting, one of them can vote by absentee ballot and the other cannot.
  This Court had occasion to examine claims similar to those presented here in McDonald v. Board of Election Comm’rs, 394 U. S. 802 (1969). There a state statute provided for absentee voting by persons “medically incapacitated” and for pretrial detainees who were incarcerated outside their county of residence. Unlike the present case, however, in McDonald “there [was] nothing in the record to show that appellants [were] in fact absolutely prohibited from voting by the State . . . ,” id., at 808 n. 7, since there was the possibility that the State might furnish some other alternative means of voting. Id., at 808. Essentially the Court’s disposition of the claims in McDonald rested on failure of proof.
  More recently in Goosby v. Osser, 409 U. S. 512 (1973), the Court again considered the problem of inmate voting and concluded that, unlike the voting restrictions in the McDonald case, the statute there in question was an absolute bar to voting because of a specific provision that “persons confined in a penal institution” were not permitted to vote by absentee ballot. It is clear, therefore, that the appellants here, like the petitioners in Ooosby, bring themselves within the precise fact structure that the McDonald holding foreshadowed.
  New York’s election statutes, as construed by its highest court, discriminate between categories of qualified voters in a way that, as applied to pretrial detainees and misdemeanants, is wholly arbitrary. As we have noted, New York extends absentee registration privileges to eligible citizens who are unable to appear personally because of “illness or physical disability,” and to citizens required to be outside their counties of residence on normal registration days because of their “duties, occupation or business.” In addition, New York extends absentee voting privileges to those voters unable to get to the polls because of illness or physical disability, to those who are inmates of veterans’ bureau hospitals, and to those who are absent from their home county on election day either because of “duties, occupation or business” or vacation. Indeed, those held in jail awaiting trial in a county other than their residence are also permitted to register by mail and vote by absentee ballot. Yet, persons confined for the same reason in the county of their residence are completely denied the ballot. The New York statutes, as construed, operate as a restriction which is “so severe as itself to constitute an unconstitutionally onerous burden on the . . . exercise of the franchise.” Rosario v. Rockefeller, 410 U. S. 752, 760 (1973). Appellants and others similarly situated are, as we have notéd, under no legal disability impeding their legal right to register or to vote; they are simply not allowed to use the absentee ballot and are denied any alternative means of casting their vote although they are legally qualified to vote.
  The construction given the New York, statutes by its trial court and the Appellate Division may well have been a reasonable interpretation of New York law, but the highest court of the State has concluded otherwise and it is not our function to construe a state statute contrary to the construction given it by the highest court of a State. We have no choice, therefore, but to hold that, as construed, the New York statutes deny appellants the equal protection of the laws guaranteed by the Fourteenth Amendment.
  Reversed and remanded for further proceedings not inconsistent with this opinion.
  It is so ordered.
  31 N. Y. 2d 317, 291 N. E. 2d 134 (1972).
  At the time this permit was sought, N. Y. Election Law § 153-a (Supp. 1971-1972) provided, in pertinent part:
  “1. A voter residing in an election district in which the registration is required to be personal or in an election district in a county or city in which permanent personal registration is in effect, and who is unable to appear personally for registration because he is confined at home or in a hospital or institution, other than a mental institution because of illness or physical disability or because his duties, occupation or business require him to be outside the county of residence, or if a resident of the city of New York, outside said city, on such days, may be registered in the manner provided by this section. A voter residing in an election district in which personal registration is not required may file an application for absentee registration in accordance with the provisions of this section and also may be registered in the manner otherwise provided by law.”
  Effective January 1, 1973, § 153-a was repealed, and replaced by N. Y. Election Law §153 (Supp. 1972-1973), which contains substantially identical provisions.
  N. Y. Election Law § 117-a (1964) provides, in pertinent part:
  “1. A qualified voter, who, on the occurrence of any general election, may be unable to appear personally at the polling place of the election district in which he is a qualified voter because of illness or physical disability, may also vote as an absentee voter under this chapter . . . .”
  N. Y. Election Law § 117 (1964) provides, in pertinent part:
  “1. A qualified voter, who, on the occurrence of any general election, may be—
  “a. unavoidably absent from his residence because he is an inmate of a veterans’ bureau hospital, or
  “b. unavoidably absent from the county of his residence, or, if a resident of the city of New York from said city, because his duties, occupation or business require him to be elsewhere on the day of election, or
  “c. absent from the county of his residence, or, if a resident of the city of New York from said city, because he is on vacation elsewhere on the day of election,
  “may vote as an absentee voter under this chapter.”
  At oral argument, counsel for the appellees conceded that Monroe County election officials have interpreted the portions of New York Election Laws §§ 117 and 153-a that extend absentee voting and registration privileges to those whose “duties, occupation or business” requires absence from their home counties as including convicted misdemeanants and pretrial detainees incarcerated outside Monroe County.
choices: case did not arise on cert or cert not granted federal court conflict federal court conflict and to resolve important or significant question putative conflict conflict between federal court and state court state court conflict federal court confusion or uncertainty state court confusion or uncertainty federal court and state court confusion or uncertainty to resolve important or significant question to resolve question presented no reason given other reason