Cesar v. Onondaga County Bd. of Elections, 1

• Decision Date: 05 November 1976
• Docket Number: No. 1,1
• Citation: 54 A.D.2d 1108,389 N.Y.S.2d 58
• Parties: Application of Richard CESAR, Respondent-Appellant, v. ONONDAGA COUNTY BOARD OF ELECTIONS, Appellant-Respondent, Louis J. Lefkowitz, Attorney General of the State of New York. Appeal
• Court: New York Supreme Court — Appellate Division

Page 58

389 N.Y.S.2d 58

54 A.D.2d 1108

Application of Richard CESAR, Respondent-Appellant, v. ONONDAGA COUNTY BOARD OF ELECTIONS, Appellant-Respondent Louis J. Lefkowitz, Attorney General of the State of New York.

Appeal No. 1.

Supreme Court, Appellate Division, Fourth Department.

Nov. 5, 1976.

Ralph I. Greenhouse, Onondaga Co. Atty., John Voninski, Syracuse, for appellant-respondent.

Richard J. Brickwedde, Syracuse, Louis J. Lefkowitz, Atty. Gen., Sidney L. Grossman, Syracuse, for respondent-appellant.

Before MARSH, P.J., and CARDAMONE, MAHONEY, DILLON and GOLDMAN, JJ.

MEMORANDUM:

These four companion cases are appeals by appellant Onondaga County Board of Elections from orders of Special Term, Supreme Court, Onondaga County, directing that the respondents, college students living in Syracuse, New York, be registered to vote in the election district in which they reside. The respondents attempted to register by mail in their respective election districts as authorized by section 153 of the Election Law. Since they were students, the respondents were required (Election Law, § 151) to complete and sign questionnaires eliciting information necessary for a determination by the Board of whether the respondents were 'residents' within the meaning of sections 150 and 151 of the Election Law. The Board denied each respondent registration, giving no reasons for the denial except for the terse conclusory statement, 'Pursuant to Section 151 of the Election Law, you are not a resident of this county.' The respondents petitioned pursuant to section 331 of the Election Law to review the determination by the Board of Elections and to consider the constitutionality of section 151 of the Election Law. After conducting a hearing on the matter, Special Term ordered that the respondents be registered. The court declined to consider the constitutional question. We affirm the orders of Special Term.

Section 171 of the Election Law requires that when the qualifications of an applicant for registration are challenged by the Board of Elections, challenge affidavits prescribed in section 172 shall be administered to the applicant. The purpose of the challenge affidavit is to enable the Board to make an informed judgment of the applicant's qualifications. Although the Board in this case did not administer challenge affidavits, the affidavits that were administered by the Board pursuant to section 151 were sufficiently broad in their scope so as to constitute substantial compliance with statutory procedure (Palla v. Suffolk Co. Board of Elections, 31 N.Y.2d 36, 334 N.Y.S.2d 860, 286 N.E.2d 247).

The Board, however, has failed to provide respondents with reasons for the denial of registration as statutorily required (Election Law, § 153(8) and (11)). Witho reasons, an applicant is unable to determine why he has been deprived of his fundamental right to vote and what steps he must take to qualify. Furthermore, the failure of the Board to state its reasons frustrates intelligent judicial review and operates to deprive the Board's decision of the presumption of validity normally accorded to it by statute (Election Law, §§ 151(c) and 153(8) and (11)).

Since the presumption of validity is not applicable, we conclude upon an examination of the record that respondents were 'residents' within the meaning of sections 150 and 151. The twin requirements for establishing residency for voting purposes are an intent to reside at a fixed place and personal presence at that place coupled with conduct which manifests such an intent (...