Auerbach v. Kinley

• Decision Date: 10 October 1984
• Docket Number: No. 80-CV-374.,80-CV-374.
• Citation: 594 F. Supp. 1503
• Parties: Amy AUERBACH, Barbara Shapiro, Andrea Digregorio, Monica Rossi, Mary Ellen Scarpone, Stephen Schreiber, Sharon Sonner, Carrie Newman, Robert Weber, Louis Esbin, Alan Frutkin, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. Raymond J. KINLEY and George Scaringe, Commissioners of the Albany County Board of Elections; Donald Rettaliata and William McKeon, Commissioners of the New York State Board of Elections, Individually and in their official capacities, Defendants. Martha C. PEREZ, Maria S. Ramirez and Gloria A. O'Connell, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. John J. HOGAN and Edwin F. Callahan, Commissioners of the Ulster County Board of Elections, Donald Rettaliata and William McKeon, Commissioners of the New York State Board of Elections, Defendants.
• Court: U.S. District Court — Northern District of New York

594 F. Supp. 1503

Amy AUERBACH, Barbara Shapiro, Andrea Digregorio, Monica Rossi, Mary Ellen Scarpone, Stephen Schreiber, Sharon Sonner, Carrie Newman, Robert Weber, Louis Esbin, Alan Frutkin, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. Raymond J. KINLEY and George Scaringe, Commissioners of the Albany County Board of Elections; Donald Rettaliata and William McKeon, Commissioners of the New York State Board of Elections, Individually and in their official capacities, Defendants.

Martha C. PEREZ, Maria S. Ramirez and Gloria A. O'Connell, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. John J. HOGAN and Edwin F. Callahan, Commissioners of the Ulster County Board of Elections, Donald Rettaliata and William McKeon, Commissioners of the New York State Board of Elections, Defendants.

No. 80-CV-374.

United States District Court, N.D. New York.

October 10, 1984.

Lewis B. Oliver, Albany, N.Y., Arthur N. Eisenberg, New York Civil Liberties Union, Jack Lester, New York City, Ronald Sinzheimer, Albany, N.Y., for plaintiffs.

Robert G. Lyman, Albany County Atty., Albany, N.Y., for defendants, Kinley and Scaringe.

Robert Abrams, Atty. Gen. of the State of N.Y., Barbara Shultz, Barbara Rottier, Albany, for defendants, Rettaliata and McKeon.

Francis T. Murray, Ulster County Atty., Kingston, N.Y., for defendants, Hogan and Callahan.

MEMORANDUM-DECISION AND ORDER

McCURN, District Judge.

Plaintiffs, college students from Albany and Ulster Counties, bring this action under 42 U.S.C. § 1983 on behalf of all students residing in Albany and Ulster Counties for declaratory and injunctive relief against the officials of the State and County Boards of Elections who have the responsibility of interpreting, applying, and enforcing New York State's Election Law. This action challenges the constitutionality of § 5-104 of the New York State Election Law and Article 2, section 4 of the New York State Constitution, both facially and as applied to plaintiffs.

All parties have moved for summary judgment. For the reasons set forth below the court finds that both § 5-104 and Article 2, section 4 of the New York State Constitution are unconstitutional and, accordingly, the plaintiffs' motion for summary judgment is granted.

BACKGROUND

The facts of this case as they relate to the Albany County plaintiffs and defendants are fully set forth in this court's earlier opinion in Auerbach v. Kinley, 499 F.Supp. 1329 (N.D.N.Y.1980).¹ Briefly stated, plaintiffs are students who attend college in Albany and Ulster Counties and who attempted to register to vote there. At the time the complaint was filed each of the named plaintiffs had lived in his or her college community for at least thirty days and was at least eighteen years of age.²

Upon receipt of the plaintiffs' mailin voter registration forms the County Election Commissioners required the plaintiffs to complete and sign special questionnaires before considering whether plaintiffs should be registered as voters in their college communities. The only basis for requiring students to complete the questionnaires was their status as students. The Albany County Board of Elections ("Board") denied plaintiffs' applications to register to vote stating that the students were not residents of Albany County for voting purposes.³ The plaintiffs appealed the Board's decision but their appeal was denied and all of the plaintiffs were refused registration in Albany County. The Ulster County plaintiffs were also refused registration.

The plaintiffs then commenced this action under 42 U.S.C. § 1983 on behalf of themselves and all students residing in Albany and Ulster Counties. The complaint asserted, inter alia, that in refusing to permit students to register and vote in their college communities the defendants unconstitutionally abridged plaintiffs' right to vote in violation of the Fourteenth and Twenty-Sixth Amendments to the United States Constitution.⁴ Plaintiffs sought, inter alia, declaratory and injunctive relief holding that the New York statutory and constitutional provisions, pursuant to which their franchise had been abridged, violated the federal constitution.

On October 9, 1980, this court rendered a preliminary decision in this case. Auerbach v. Kinley, 499 F.Supp. 1329 (N.D.N.Y. 1980). In that decision the court denied the defendants' motion to dismiss, certified the action as a class action pursuant to Rule 23(b)(2) of the Fed.R.Civ.P., and granted a preliminary injunction enjoining the defendants "from adopting or pursuing any registration policy or practice ... that directly or indirectly discriminates against students or that requires students to do anything more than is required of other applicants." Id. at 1343.

DISCUSSION

Perhaps the most fundamental of all our constitutional liberties is the right to vote. As the Supreme Court stated in Wesberry v. Sanders,

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our constitution leaves no room for classification of people in a way that unnecessarily abridges this right.

Wesberry v. Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964). Equally fundamental, however, is the right of a state to limit the right to vote to bona fide residents. At issue here is a conflict between these two competing constitutional rights. In balancing these rights New York State's efforts to restrict the ballot to bona fide residents must not violate the equal protection clause of the federal constitution by unfairly burdening the plaintiffs' right to vote.

The Supreme Court in Dunn v. Blumstein recognized the tension between these competing constitutional rights and concluded that restrictions on the right to vote, including the imposition of residency requirements, must meet "close constitutional scrutiny":

In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e.g., Evans v. Cornman, 398 U.S. 419, 421-22, 426 90 S.Ct. 1752, 1754-1755, 26 L.Ed.2d 370 (1970); Kramer v. Union Free School District, 395 U.S. 621, 626-28 89 S.Ct. 1886, 1889-1890, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 667 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 93-94 85 S.Ct. 775, 778-779, 13 L.Ed.2d 675 (1965); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), supra. This `equal right to vote,' Evans v. Cornman, supra 398 U.S. at 426 90 S.Ct. at 1756 is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. See, e.g., Carrington v. Rash, supra 380 U.S. at 91 85 S.Ct. at 777, Oregon v. Mitchell, 400 U.S. 112, 144 91 S.Ct. 260, 274, 27 L.Ed.2d 272 (opinion of Douglas, J.), 241 91 S.Ct. 323 (separate opinion of Brennan, White, and Marshall, JJ.), 294 91 S.Ct. 349 (opinion of Stewart, J., concurring and dissenting, with whom Burger, C.J., and Blackmun, J., joined). But, as a general matter, `before that right to vote can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.' Evans v. Cornman, supra 398 U.S. at 422 90 S.Ct. at 1754 (1970); see Bullock v. Carter 405 U.S. 134 at 143 92 S.Ct. 849 at 855-856, 31 L.Ed.2d 92 (1972).

Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972).

The statute at issue here is section 5-104 of the New York State Election Law.⁵ Section 5-104 reads as follows:

1. 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 employed in the service of the United States, nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any institution of learning; nor while kept at any welfare institution, asylum or other institution wholly or partly supported at public expense or by charity; nor while confined in any public prison.

2. In determining a voter's qualification to register and vote, the board to which such application is made shall consider, in addition to the applicant's expressed intent, his conduct and all attendant surrounding circumstances relating thereto. The board taking such registration may consider the applicant's financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse and children, if any, leaseholds, sites of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that it may reasonably deem necessary to determine the qualification of an applicant to vote in an election district within its jurisdiction. The decision of a board to which such application is made shall be presumptive evidence of a person's residence for voting purposes.

Plaintiffs contend that the statute is unconstitutional on its face and as applied. Defendants contend that the statute is a proper exercise of the State's power to determine the bona fide residency of prospective voters.

I. Constitutionality of New York State Election Law § 5-104

The Equal Protection Clause of the Fourteenth Amendment guarantees that individuals similarly situated will be dealt with in a similar manner by government.⁶ This, of course, does not mean that government cannot classify groups of individuals, but rather, that when government does classify individuals it cannot do so in an...