Gorenberg v. Onondaga County Board of Elections

Cardamone, J. (dissenting).

These appeals present for our determination the effect of respondents Boards of Elections of Onondaga and Oneida Counties’ refusal to register petitioners for voting purposes.

All the petitioners are college students variously attending Syracuse University (Onondaga County) and Utica College, Kirkland College, and Hamilton College (Oneida County); all are citizens of the United States over the age of 18; and all claim residence in the college community in which they live.

The status of petitioners and their challenge to respondents’ actions on each appeal are sufficiently similar for common treatment.

The 1970 Federal Voting Rights Act lowered the minimum voting age for Federal, State, and local elections from 21 to 18 years (U. S. Code, tit. 42, § 1973aa). New York amended section 151 of the Election Law (L. 1971, ch. 1096, eff. July 2, 1971) providing in substance (a) for the purpose of registering and voting, no person shall be deemed to have gained or lost a resi*151dence by reason of his presence or absence, while a student ; (section 4 of Article II of the New York State Constitution contains a similar provision); (b) residence, as used in the article, is deemed to mean the place where a person maintains a fixed, permanent and principal home and to which he intends to return; and (c) in determining a voter’s qualifications the election board in the district shall consider the applicant’s expressed intent and may consider his financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse and children, leaseholds, situs of personal and real property owned by him, motor vehicle and other personal property registration, and such other factors as it may deem necessary to determine the qualification of an applicant to vote.

Section 150 of the Election Law entitled “ Qualification of voters ” defines a voter as a citizen over 18 who shall have been a resident for three months and registered in the election district of his residence. Continued nontransient presence in a district gives rise to a presumption of voter residence under section 150. Subdivision (a) of section 151 refers to the residence of students and the records in both of these appeals in the form of affidavits and the letter of the election commissioner (Oneida County) reveal that its requirements are applied only to students. Consequently, student presence in the district gives rise to a rebuttable presumption of nonresidence which may only be overcome by a strong evidentiary showing. (Matter of Goodman, 146 N. Y. 284, 287, and see Matter of Robbins v. Chamberlain, 297 N. Y. 108, 110.) Thus, the test to qualify all citizens is residence (Election Law, § 150) but for students it is residence “plus” (Election Law, § 151, subd. [a]). Those “plus ” requirements violate the Federal statute which states that “no person acting under color of law shall-— (A) in determining whether any individual is qualified under State law * * * to vote in any election, apply any standard, practice, or procedure different from [those] * * * applied under such law or laws to other individuals within the same county * * * who have been found by -State officials to be qualified to vote ” (U. S. Code, tit. 42, § 1971, subd. [a], par. [2]).

The conclusion that the residence of students of voting age must be determined, as for all others, by the provisions of section 150 of the Election Law is also compelled by the clear language of the Twenty-sixth Amendment which provides that the ‘ ‘ right of citizens of the United States * * * to vote shall not be * * * abridged * * * by any State on account *152of age. ’’ Section 151 ‘abridges ’’1 the voting rights of a substantial portion of citizens between the ages of 18 and 21, the class for whose benefit the Twenty-sixth Amendment was adopted. Section 151 casts an onerous procedural burden on students by forcing them to travel to their parental residence in order to vote or to hazard the procedural difficulty of casting an absentee ballot. Section 151 substantively infringes upon their right to vote insofar as it denies them “ a voice in the election of those who make the laws under which, as good citizens, we must live ” (Wesberry v. Sanders, 376 U. S. 1, 17) because they may only cast votes in a community in which they have little interest and to which they have few ties. Section 151 also tends to vitiate the strength of each student’s vote. Since the census determination of the State’s Congressional apportionment (Evans v. Cornman, 398 U. S. 419, 421) counts them in the district in which they attend college, they are effectively casting supernumerary votes in their parents’ districts. It is precisely this result and this special burden that Congress intended to avoid when it enacted the Voting Bights Act of 1970 (1971 U. S. Code Cong. & Admin. News, pp. 374-375).

Foremost among political rights is the right to vote. It is the essential element in any definition of political equality in a democracy. In Reynolds v. Sims (377 U. S. 533, 561, 562) the Supreme Court characterized the right to vote as one of the basic civil rights of man ’ ’ and went on to state that: ‘ ‘ since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Because section 151 distinguishes between students and other citizens in registering and voting, it thus abridges a fundamental right and the State must demonstrate a compelling State interest in order to justify it (Kramer v. Union School Dist., 395 U. S. 621). It is not necessary for petitioners to prove an absolute denial of their right to vote; they need merely show that a heavy procedural burden is imposed on such right in order to require the State to show a compelling interest (Williams v. Rhodes, 393 U. S. 23, 30-31; Lane v. Wilson, 307 U. S. 268, 275). No such compelling interest has been shown in the record before us on these appeals.

*153The present three months’ residency requirement and the 30-day mandatory interval between close of registration and the election provide sufficient safeguards to prevent fraud. The State could constitutionally require an affidavit of an intent to reside within the district and a sworn statement of nonregistration elsewhere. A rational basis exists for the imposition of this type of burden which is so slight as not to offend due process guarantees (Carrington v. Rash, 380 U. S. 89). Students may not be ‘ ‘ fenced out ’ ’ on the grounds that the State has a compelling interest in promoting a concerned and interested electorate (Kramer v. Union School Dist., supra, p. 632; Evans v. Cornman, 398 U. S. 419, 424, supra). Students have as many ties within the community as those found by-the Supreme Court in Phoenix v. Kolodziejski (399 U. S. 204, 210). They are included in the census determination of the State’s Congressional apportionment (Evans v. Cornman, supra, p. 421). The United States Bureau of the Census enumeration of college students as residents of their college communities augments the communities ’ share of State and Federal financial aid since the allocation is on a per capita basis. Students pay State and local taxes. The right to vote must mean the right to have ‘ ‘ a voice in the election of those who make the laws under which, as good citizens, we must live.’’ (Wesberry v. Sanders, 376 U. S. 1, quoted in Williams v. Rhodes, 393 U. S. 23, 31). It seems singularly inappropriate for the State to benefit from the residency of the students for some purposes, impose substantial obligations of citizenship upon them, and then deny them the correlative right to have a voice in defining the nature and extent of such obligations (Cornman v. Dawson, 295 F. Supp. 654, 659, affd. sub nom. Evans v. Cornman, 398 U. S. 419).

Further, a statute which purports to regulate a fundamental right violates due process guarantees if it is unduly vague or gives local officials unfettered discretion (Kunz v. New York, 340 U. S. 290). Subdivision (a) of section 151 of the Election Law sets forth numerous criteria which may be considered and vests the election board with such broad and unfettered discretion as to which, if any, it will consider in determining an applicant’s right to register and vote as to make impossible the fair and equal administration of its provisions. It should be stricken as violative of the Fourteenth and Twenty-sixth Amendments to the United States Constitution.

Other courts have reached similar conclusions: Wilkins v. Bentley (385 Mich. 670); Jolicoeur v. Mihaly (5 Cal. 3d 565); Johnson v. Darrall (337 F. Supp. 138 [S. D. Ind., decided Oct. *15427, 1971]); Anderson v. Brown (332 F. Supp. 1195 [3-Judge court, S. D. Ohio, decided Oct. 15, 1971]); Ownby v. Dies (337 F. Supp. 38 [E. D. Texas, decided Sept. 28, 1971]); Fair v. Osser (E. D. Pa., decided Sept. 27, 1971); Kennedy v. Meskill (D. Conn., decided Sept. 13, 1971).2

Federal constitutional and statutory provisions mandate that students be treated no differently from other citizens. Special requirements, forms and proof should not be required. A citizen’s right to vote may not be obliterated by laws, like section 151 of the Election Law, which leave this cherished right to the whim of the individual election official (Louisiana v. United States, 380 U. S. 145).

The determinations at Special Term should be reversed, section 151 of the Election Law declared unconstitutional, and respondents directed to register petitioners to vote.

Marsh, J. P., Wither and Mottle, JJ., concur with Gtabrielli, J.; Card amone, J., dissents and votes to reverse the orders and grant the petitions in accordance with his dissenting opinion.

Orders affirmed, without costs.

. Abridges is defined as diminishes, curtails, reduces, in Webster’s New International Dictionary (3d ed. 1961).

. The Attorneys General of the following States have also taken the constitutional position presented in this dissenting opinion: Florida (Opn. No. 071-202, Aug. 3, 1971); Georgia (Aug. 20, 1971); Illinois (File No. S-335, Sept. 29, 1971); Kansas (Oct. 13, 1971); Louisiana (Aug. 2, 1971); Massachusetts (Opn. 71/72-3, July 21, 1971); Nevada (Opn. No. 48, Oct. 20, 1971); Oregon (Opn. No. 6870, Oct. 20,1971); Pennsylvania (Sept. 9, 1971).