Gorenberg v. Onondaga County Bd. of Elections

• Decision Date: 12 October 1971
• Citation: 67 Misc.2d 766,325 N.Y.S.2d 262
• Parties: Steven GORENBERG et al., Petitioners, v. ONONDAGA COUNTY BOARD OF ELECTIONS and Louis J. Lefkowitz, Attorney General ofthe State of New York, Respondents. Application of Susan Jane BELL et al., Petitioners, v. Ida M. ROSSI, the Republican Commissioner of Elections for the County ofOneida, et al., Respondents. . Supreme Court, Oneida County
• Court: New York Supreme Court

Page 262

325 N.Y.S.2d 262

67 Misc.2d 766

Steven GORENBERG et al., Petitioners, v. ONONDAGA COUNTY BOARD OF ELECTIONS and Louis J. Lefkowitz, Attorney General ofthe State of New York, Respondents.

Application of Susan Jane BELL et al., Petitioners, v. Ida M. ROSSI, the Republican Commissioner of Elections for

the County ofOneida, et al., Respondents.

Supreme Court, Onondaga County.

Supreme Court, Oneida County.

Oct. 12, 1971.

Love, Balducci & Scaccia, Syracuse, for petitioners in Onondaga County action; Richard J. Brickwedde, Syracuse, of counsel.

New York Civil Liberties Union, Syracuse, by David Cumming and Charlie Donaldson, Syracuse, amici curiae.

Legal Aid Society of Oneida County, Inc., Utica, Michael E. Getnick, Utica, of counsel, for petitioners in Oneida County action.

Eli Gingold, County Atty., Syracuse, Ronald Crowley, Asst. County Atty., of counsel, for Onondaga County Board of Elections.

Richard A. Frye, County Atty., Utica, William Halpin, Asst. County Atty., of counsel, for Oneida County Board of Elections and Inspectors of Eldctions; Louis J. Lefkowitz, Atty. Gen. of the State of New York, Albany, William J. Kogan, Albany, of counsel.

MEMORANDUM

JAMES P. O'DONNELL, Justice:

The Petitioners in the Onondaga County action are students at Syracuse University. Some of the Petitioners are new prospective voters between the ages of Eighteen (18) and Twenty-one (21) and were given the right to vote by adoption of the 26th Amendment. They now seek to register and vote in the Election Districts in Onondaga County upon the grounds they have taken up residence in the County. In most instances, they are dormitory residents.

In the second action, one brought in Oneida County, they are students at Hamilton College, Kirkland College and Utica College. They likewise seek to register and vote in Election Districts in Oneida County. All of the Petitioners were refused registration upon the grounds that they did not comply with Section 151 of the Election Law dealing with students living away from home. The actions are in the nature of a class action seeking to test the constitutionality of Section 151 of the Election Law. The Petitioners allege that Section 42 U.S.Code Annotated 1971(a)(2)(A) pre-empts Section 151 of the Election Law and renders the law unconstitutional. Section 151 of the Election Law was amended by the 1971 Legislature and became a law July 2, 1971. It reads as follows: 'Gaining or losing a residence. (a) 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 a student of any institution of learning.'

(c) 'In determining a voter's qualification to vote in a particular election district, the board to which such application is made shall consider' certain criteria of residents. The law goes into the dependency of the individual, the fact of marriage status, age, property, etc. Just as in 42 U.S.C.A. § 1971 prefacing the law as follows: 'No person acting under Color of law shall-- (A) in determining whether any individual is qualified under State law or laws to vote in any election,' (italics supplied) etc.; so too the petitioners shall not use 'color of intent' to qualify to register and vote. The State Law directs the Inspectors of Election to use...