Corning v. Board of Elections of Albany County

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SWEENEY; PER CURIAM
• Citation: Corning v. Board of Elections of Albany County, 454 N.Y.S.2d 164, 88 A.D.2d 411 (N.Y. App. Div. 1982)
• Decision Date: 02 September 1982
• Parties: Erastus CORNING et al., Appellants-Respondents, v. BOARD OF ELECTIONS OF ALBANY COUNTY et al., Respondents; Attorney-General of the State of New York et al., Respondents-Appellants, and Board of Elections of the City of New York et al., Intervenors-Appellants.

Page 164

454 N.Y.S.2d 164

88 A.D.2d 411

Erastus CORNING et al., Appellants-Respondents, v. BOARD OF ELECTIONS OF ALBANY COUNTY et al., Respondents Attorney-General of the State of New York et al. Respondents-Appellants and Board of Elections of the City of New York et al Intervenors-Appellants.

Supreme Court, Appellate Division, Third Department.

Sept. 2, 1982.

Fabian G. Palomino, Brooklyn, for appellants-respondents.

Robert Abrams, Atty. Gen., Albany (Richard Rifkin, Deputy First Asst. Atty. Gen., and Michael S. Buskus, Asst. Atty. Gen., Albany, of counsel), for respondents-appellants.

John D. Doyle, County Atty., Rochester (Joseph C. Pilato, Deputy County Atty., Rochester, of counsel), for Board of Elections of Monroe County.

Frederick A. O. Schwarz, Jr., Corp. Counsel, New York City (Leonard Koerner and Ronald E. Sternberg, Asst. Corp. Counsels, New York City, of counsel), for intervenors-appellants.

Lipsig, Sullivan & Liapakis, New York City, for Thomas A. Holman and Sylvia M. Friedman, amici curiae.

Before SWEENEY, J. P., and KANE, MAIN, MIKOLL and YESAWICH, JJ.

PER CURIAM.

Subdivision 2 of section 8-100 of the Election Law provides that polls shall be open for voting in a primary election from 12:00 P.M. (noon) until 9:00 P.M., except in the City of New York and the counties of Nassau, Suffolk, Westchester, Rockland and Erie where they are to be open from 6:00 A.M. to 9:00 P.M. The predecessor of section 8-100, former section 191 of the Election Law, provided for primary voting hours of 12:00 P.M. (noon) until 9:00 P.M., except in the City of New York where the hours were 3:00 P.M. to 10:00 P.M. An amendment in 1973 extended the hours in the City of New York from 6:00 A.M. to 9:00 P.M. (L. 1973, ch. 389). Following recodification of the Election Law in 1976 which resulted in the addition of the present section 8-100 (L. 1976, ch. 233), another amendment extended primary voting hours in Nassau County from 6:00 A.M. to 9:00 P.M. (L. 1977, ch. 458). Subsequently, in a series of related measures occurring in 1981, the Legislature further amended subdivision 2 of section 8-100 to also extend primary voting hours in the counties of Suffolk (L. 1981, ch. 524), Westchester (L. 1981, ch. 557), and Rockland (L. 1981, ch. 628). Most recently, Erie County was added to the list of counties with extended primary voting hours (L. 1982, ch. 97).

Petitioners, who are residents of Albany, Monroe and Onondaga Counties and enrolled members of the Democratic Party qualified to vote in the September 23, 1982 primary election, and Mario Cuomo, a Democratic gubernatorial primary candidate, commenced the instant proceeding seeking a judgment declaring subdivision 2 of section 8-100 of the Election Law invalid because it purportedly denies equal protection of the laws to primary voters in the counties of Albany, Monroe and Onondaga wherein polls are not permitted to open until 12:00 P.M. (noon). Petitioners further sought to have the court direct the respondent boards of elections to keep the polls open in these counties from 6:00 A.M. to 9:00 P.M.

Concluding that the statutory provision in question impacted upon a fundamental right, Special Term held that the burden was upon the State to demonstrate that the geographical distinctions made in the law served a compelling State interest. Moreover, although determining that a heightened level of scrutiny was appropriate in deciding whether the statute passed constitutional muster, the court found that there was not even a rational basis to justify the different polling hours. Petitioners, however, were not granted the remedy they requested. Instead, Special Term saw as its only alternative the excision of the offending exceptions in the statute with the result that in the upcoming primary election all polling places throughout the State would be open for a uniform period, i.e., 12:00 P.M. (noon) to 9:00 P.M. Respondents Attorney-General of the State of New York and the State Board of Elections have appealed. Petitioners also appealed, contending that although the finding of unconstitutionality was properly made the remedy ordered was erroneous. ^*

Initially, we reject Special Term's categorization of this case as one involving petitioners' fundamental right to vote so as to require a heightened level of scrutiny of the distinctions involved. Petitioners are not denied the right to exercise their voting franchise (see, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274), nor does the statute in question limit the field of candidates from which they must choose (see, e.g., Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92) or quantitatively dilute their votes through an apportionment scheme (see, e.g., Reynolds v. Sims, 377 U.S 533, 84 S.Ct. 1362, 12 L.Ed.2d 506). To the contrary, the statute merely dictates the hours during which the primary polling places shall be open, certainly a matter which may be the subject of valid State regulation (see Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714). In addition, even if the statute could somehow be considered a limitation on petitioners' right to vote, "not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review" (McDonald v. Bd. of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739). Not only have petitioners failed to establish the existence of that "substantial burden" on the franchise needed to trigger heightened...