Gorenberg v. Onondaga County Board of Elections

Gabrielli, J.

The proceedings which are the subject of these appeals challenge the constitutionality of section 151 of the Election Law, as amended by chapter 1096 -of the Laws of 1971, upon the stated grounds that it is violative of the due process guarantee of the Fourteenth Amendment, the equal protection clauses of the State and Federal Constitutions, as well as the Federal statute prohibiting different standards to be applied to various classes of voters (U. S. Code, tit. 42, § 1971, subd. [a], par. [2], subpar. [A]).

Petitioners are students attending colleges and universities in Onondaga and Oneida Counties, who claim their right to be registered and to be permitted to vote, following the enactment of the Voting Rights Act of 1970 (U. S. Code, tit. 42, § 1973aa) which enfranchised 18-year-olds for Federal, State and local elections. There is no dispute that they would otherwise qualify provided they could satisfy the proper residency requirements of the Election Law. Basic to a solution of the issues presented is whether the statute (Election Law, § 151) is constitutionally invalid as to these petitioners and others similarly situated. We agree with Special Term that the provisions of this section were validly enacted and do not contravene petitioners’ rights nor, in fact, those others similarly situated.

A voter’s qualification is spelled out by section 150 of the Election Law which, in general, provides that a person may vote if he “ shall have been a resident of this state, and of the county, city, or village for three months next preceding an election and has been duly registeredfin the election district of his residence.” (Italics added.) Petitioners have no quarrel with nor do they challenge this provision. The statute under attack (Election Law, i§ 151) merely and unequivocally provides that for “the purpose of registering and voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence * * * while a student of any institution of learning * * * Any person applying for registration who claims to [be a student] shall file with the board * * * a written statement showing where he actually resides and where he claims to be legally domiciled ”. Subdivision (c) contains a recitation of matters which the board of elections may consider in determining an applicant’s residence for voting purposes. The consideration of the criteria set forth in this section applies only to an assessment of the person’s status as a resident and his qualification to vote, which is the expressed subject of section 150, and it follows that the items mentioned in section 151 are nothing more than an elaboration of the criteria to be considered in assessing the qualification to vote envisioned in the preceding section, items which have always been matters properly considered in making a determination of one’s “ residence ”. No additional qualifications are set forth or mandated.

We wish to make it clear that if a person is over 18 and qualifies as a resident of the district in which he wishes to vote, his failure to have a business pursuit, or to own real property, or to own personal property, or, in fact, to have a source of income cannot be grounds for a denial of his right of franchise. The statute under review does not hold to the contrary and, if it appears that any board of election incorrectly interprets or incorrectly applies this provision it may be required to rectify any illegal application of the statute. We hold that a student voter is entitled, under the statute, to the same treatment and test as any other voter and a determination of his residency is to be made on grounds no more stringent or restrictive than any other voter.

As long ago as 1887, the main provisions of the present section 151 have been considered neutral. It appeared then, as it should now, that section 4 of article II of the State Constitution and section 151 of the Election Law say that, for the purposes of registering and voting, no person shall be deemed to have gained or lost a residence ‘‘ by reason of his presence or absence * * * while a student ” of any institution of learning. Those enactments have been construed by the courts, and have been held to mean at least this: that a student on the campus of an educational institution does not, without more, accomplish a change of voting residence (Matter of Garvey, 147 N. Y. 117; Matter of Barry, 164 N. Y. 18; Matter of Blankford, 241 N. Y. 180; Matter of Watermeyer v. Mitchell, 275 N. Y. 73; Palla v. Suffolk County Bd. of Elections, 38 A D 2d 84). The quoted constitutional and statutory enactment ‘ ‘ disqualifies no one; confers no right upon any one ” (Silvey v. Lindsay, 107 N. Y. 55, 61). It means only that such presence at a seat of learning is not “ a test of a right to vote ”, and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere, just as any other voter. If a student seeks to register in his educational community, he should be required — just as everyone else — to present evidence of a bona fide residence. None of the new enactments mentioned was intended to grant a preference to students over any other citizen.

Nor do we interpret the statute’s requirement of an affidavit as unconstitutionally discriminatory. In recognizing the right of States to deal with categories of the electorate, the Supreme Court has spoken with force and has, for instance, held that the State of Texas was ‘ ‘ free to take reasonable and adequate steps, as have other States, to see that all applicants for the vote actually fulfill the requirements of bona fide residence ” (Carrington v. Rash, 380 U. S. 89, 96) and that a State may always enact laws which reasonably regulate the electoral process (Williams v. Rhodes, 393 U. S. 23, 29) and further that “ the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution.” (Williams v. Rhodes, supra, pp. 29, 30). We recently had occasion to construe the constitutionality of section 150 of the Election Law and we observed that “ (b) cards of election should have the necessary opportunity to investigate the qualifications of those seeking to exercise their franchise. We take judicial notice that in some counties in this state, the number of potential new registrations may run into thousands ’ ’ (Matter of Rabin v. Onondaga County Bd. of Elections, 37 A D 2d 471). See, also, Palla v. Suffolk County Bd. of Elections (supra), involving the right of students at Stony Brook to register and vote, where the court held it necessary that an inquiry be made into the particular facts tending to establish residence beyond physical presence in a particular election district. In that case, the constitutionality of section 151 was presented and the court unequivocally applied an obviously valid statute when it directed that the eligibility of the petitioners therein be determined by the election officials based upon “ the relevant factors set forth in section 151 ”.

We are unable to subscribe to the dissenter’s theory that mere presence in a district creates a presumption of voter residence under either section 150 or 151 of the Election Law. By this interpretation, he would impose upon all boards of election the burden of disproving residence in all such cases, a result never intended by the framers of the statute and certainly not dictated by reason. Such a presumption was rejected in Palla (supra, p. 88), where the court further held that the basic test was one of bona fides and that “ the declarations of applicants concerning their intent to reside in the state and in a particular county and election district are not conclusive; the election officials may look to actual facts and circumstances (Whittington v. Board of Elections for Onondaga County, 320 F. Supp. 889, 893) ”; and, as stated in Palla, supra, these facts and circumstances must indicate such an intent to reside in the State, county and election district as well as the abandonment of one’s old permanent residence, all based on the criteria mentioned in section 151.

Neither can we embrace the argument that section 151 leaves the right to vote “ to the whim of the individual election official ”. Not only was such a result not intended, but as we have already spelled out, a student’s right to vote is entitled to be tested by the same criteria as any other prospective voter. If he is a resident, he should have the right to vote, but his status as a student entitles him to no greater right than that possessed by any other person. If the dissent’s complaint against the alleged power reposed in election officials is pointed to an illegal application of the statute by local officials, this cannot afford a basis for declaring the statute unconstitutional. Bemedies have always been available to correct an illegal or unconstitutional application of any law. We have previously affirmed a determination sustaining a student’s right to vote, based upon the same considerations and criteria employed in nonstudents ’ applications (Matter of Reiner v. Board of Elections of Onondaga County, 28 A D 2d 1095 [affg. 54 Misc 2d 1030], affd. 20 N Y 2d 865); and, of course the courts are prepared to similarly protect the rights of the newly enfranchised voters. We can perceive of no reason why students should be treated differently — and there are none dictated by the statute.

Our attention has been called to determinations made by several foreign courts and it is urged that these decisions held unconstitutional, statutes similar to section 151 of the Election Law. We do not so interpret these cases. Wilkins v. Bentley (189 N. W. 2d 423 [Sup. Ct. Mich., 1971]) properly overruled and held invalid the lower court’s construction of a similar statute which had determined that a student must overcome a rebuttable presumption that he is not a resident in the locale of the institution of learning. There is no such presumption, actual or intended here. Jolicoeur v. Mihaly (5 Cal. 3d 565) merely disapproved of an opinion of the California Attorney General who had ruled that for voting purposes the residence of an unmarried minor will normally be his parent’s home. Interestingly, this case held, as we do, that student status is a neutral fact in determining residence for voting purposes. Kennedy v. Meskill (U. S. Dist. Ct., Conn., Sept. 13, 1971) did not involve a constitutional attack upon a somewhat similar statute, but dealt with an administrative failure or refusal to cómply with the local statute. Other such cases have been cited as have several opinions of Attorneys General in other jurisdictions, in all of which we find distinguishing features.

The broadening of the right of franchise has been a wise and necessary step. Legislative bodies having thus spoken in this direction, we deem it proper to inform local boards of election to interpret the Election Law so that every eligible person be given the right to exercise his vote in order that this fundamental right is not abridged.

The orders dismissing the petitions should be affirmed.