Palla v. Suffolk County Bd. of Elections

• Decision Date: 07 June 1972
• Citation: 31 N.Y.2d 36,334 N.Y.S.2d 860,286 N.E.2d 247
• Parties: , 286 N.E.2d 247 In the Matter of James PALLA et al., Appellants, v. SUFFOLK COUNTY BOARD OF ELECTIONS et al., Respondents. In the Matter of Susan J. BELL et al., Appellants, v. Ida M. ROSSI, as Republican Commissioner of Elections for the County of Oneida, et al., Respondents. In the Matter of Steven GORENBERG et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v. ONONDAGA COUNTY BOARD OF ELECTIONS et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 860

334 N.Y.S.2d 860

31 N.Y.2d 36, 286 N.E.2d 247

In the Matter of James PALLA et al., Appellants, v. SUFFOLK COUNTY BOARD OF ELECTIONS et al., Respondents.

In the Matter of Susan J. BELL et al., Appellants, v. Ida M. ROSSI, as Republican Commissioner of Elections for

the County of Oneida, et al., Respondents.

In the Matter of Steven GORENBERG et al., on Behalf of

Themselves and All Others Similarly Situated, Appellants, v. ONONDAGA COUNTY BOARD OF ELECTIONS et al., Respondents.

Court of Appeals of New York.

June 7, 1972.

Burt Neuborne, Bruce J. Ennis and Arthur Eisenberg, New York City, for appellants James Palla and others and Susan Bell and others.

George W. Percy, Jr., County Atty. (Melvyn Tanenbaum, Huntington, of counsel), for respondents Suffolk County Bd. of Elections and others.

Raymond M. Durr, County Atty. (James P. O'Rourke, Utica, of counsel), for respondents Ida M. Rossi and others.

Richard Brickwedde, Syracuse, for appellants Steven Gorenberg and others.

Eli Gingold, County Atty. (Ronald J. Crowley, of counsel), for respondents Onondaga County Bd. of Elections and others.

Louis J. Lefkowitz, Atty. Gen. (William J. Kogan and Ruth Kessler Toch, Albany, of counsel), in his statutory capacity under section 71 of the Executive Law, Consol.Laws, c. 18.

SCILEPPI, Judge.

These three companion cases under section 331 of the Election Law, Consol.Laws, c. 17, arise out of and challenge the recent amendments to section 151 of the Election Law.

In Palla v. Suffolk County Bd. of Elections, the petitioners, 64 students at the State University at Stony Brook, were denied registration by the Suffolk County Board of Elections on the ground that residence in a university dormitory did not qualify them to vote under sections 150 and 151 of the Election Law. Special Term, on the basis of questionnaires in a form directed in a prior proceeding (Blumenthal v. Suffolk County Bd. of Elections, (memorandum, Ritchie, J.)), found that these petitioners were subjected to a special, more extensive line of inquiry than would normally be the case with nonstudent applicants for registration, and that residency was established by the petitioners, other than those who indicated recent registration in other districts. The Appellate Division reversed and held that the issue of the bona fide change in residence could not be determined on the basis of the propounded questionnaires but required a determination only after the court 'has heard proof which contemplates the swearing of witnesses and recording of their testimony' (38 A.D.2d 84, 88, 327 N.Y.S.2d 739, 744). Accordingly, the matter was remanded for proceedings in accordance with the opinion.

In Bell, five of the nine named petitioners were registered to vote between May and October, 1971 by the Oneida County Board of Elections; the remaining four, also students at colleges in Oneida County, were refused the right to register by local election officials. Those who had previously been registered were notified by mail by the respective Commissioners of Elections that their right to vote would be challenged on Election Day or that their registrations would be voided because of their residence at college dormitories. The proceeding under section 331 of the Election Law, seeking to enjoin those challenges and, in the case of those who were denied registration, to annul that determination and compel registration, followed.

The proceedings in Bell were consolidated with a class action on behalf of students at Syracuse University, also pursuant to section 331, seeking declaratory relief and an order compelling respondents, the Onondaga County Board of Elections, to register the petitioners and those similarly situated (Gorenberg v. Onondaga County Bd. of Elections). Special Term, upon consolidation, treated both actions as class actions to test the constitutionality of amended section 151 of the Election Law, held the statute constitutional and dismissed the petition. On appeal, the Appellate Division, Fourth Department, affirmed, one Justice dissenting (38 A.D.2d 145, 328 N.Y.S.2d 198).

The petitioners in each case have been summarily denied the right to register for the November, 1971 general election because they were residenced at their respective colleges or universities; or, where they had been afforded that right (five of the named petitioners in Bell) prior to the passage of the new amendments to section 151 of the Election Law (L.1971, ch. 1096), were notified that their right to vote would be voided or challenged on Election Day. Contesting that action, and challenging the validity of its purported source, these proceedings, as well as related class actions in Federal courts (Gutwill v. Rockefeller, EDNY No. 71 Civ. 964; Ramey v. Rockefeller, EDNY No. 71 Civ. 1282) ¹ seeking declaratory judgments and alternative relief were commenced.

In Palla, a sequel to an earlier proceeding against the Suffolk County Board of Elections (Blumenthal v. Suffolk County Bd. of Elections, (memorandum, Ritchie, J.)), the petitioners have again been denied registration, but now on the basis of sworn affidavits and seek relief by way of a supplemental proceeding challenging that determination and contesting the constitutional validity of section 151 of the Election Law. Despite the broad allegations of constitutional invalidity and discrimination, the Appellate Division refused to reach the broader question posed, ruling only that the propriety of the board's action in denying registration should be determined after a hearing and not on the basis of a questionnaire, whatever its source (38 A.D.2d 84, 327 N.Y.S.2d 739).

Residence is a necessary prerequisite to voting and the procedures for challenging a prospective registrant on the basis of residence are carefully prescribed by section 171 of the Election Law. These procedures contemplate the use of sworn affidavits, set forth as challenge affidavits in section 171, are calculated to provide details generally necessary to informed board deliberations and are to be followed. Where the sworn answers satisfy a majority of the board of the applicant's right to be registered, they shall register the name as a voter; if not, they are required to point out to the applicant the qualifications which he lacks as a voter. In either event, provisions for a form of expedited judicial review of board determinations are set forth in section 331 of the Election Law.

Undeniably, the challenge affidavit may be augmented by the use of any reliable device, calculated to further informed board deliberations. And, in view of the criterion included in the amended version of section 151, a line of inquiry such as that initiated by the questionnaires adopted in Palla was authorized. Nevertheless, the function of such questionnaires would properly be confined to augmenting the challenge affidavit, not usurping its role. Though even technical deviations from the statutory procedure are not to be casually brushed aside, it is apparent that questions propounded in the questionnaire constituted substantial compliance with the statutory procedures, and no rights have been prejudiced by the use of the substituted questionnaire. Since the fact of residence is properly a subject of detailed inquiry (see Infra), the issues of fact raised by the affidavits, as well as the inferences to be drawn, should be determined only after the court has heard proof (Election Law, § 335) which contemplates 'the swearing of witnesses and the recording of their testimony' (Matter of Neal v. Inspectors of Election, 286 App.Div. 1114, 1115, 145 N.Y.S.2d 551). We, therefore, affirm the order appealed from in Palla v. Suffolk County Bd. of Elections.

In Bell and Gorenberg, on the other hand, the courts below, despite a clear challenge to the summary action of the respective boards in refusing to register petitioners, elected to treat the proceedings as applications for declaratory relief and, as an incident of their action in upholding the statutory scheme dismissed the petitions. All named petitioners, however, have alleged summary rejection and by these proceedings have sought relief under section 331 of the Election Law. True, the named petitioners in Gorenberg also purport to represent the interests of all similarly situated, and certain of the petitioners in Bell have sought only to enjoin threatened election day challenges ². Yet, even proceeding as they have, the appearing petitioners should not be deemed to have forsaken the particularized inquiry contemplated by the Election Law. Their petition in both instances includes a demand for judicial review of an administrative act as well as a prayer for declaratory relief; and on that basis alone the board's determination should have been annulled and the petitioners afforded an opportunity to establish residence. Hence, the matter should be remanded to the Boards of Elections of Oneida and Onondaga Counties for proceedings De novo in conformance with the procedures prescribed by the Election Law.

The gist of these proceedings, however, resides in the varied challenges leveled against section 151 of the Election Law. Reduced to its simplest form, petitioners argue that the statutory scheme, on its face and in its application is violative of the due process and equal protection clauses of the Fourteenth Amendment, violates the Voting Rights Act (U.S.Code, tit. 42, § 1971) and, contrary to the Twenty-Sixth Amendment, abridges the 18-year-old vote. Examined in the context of the arguments advanced, the statutory scheme does not run afoul of recited constitutional strictures, but represents, at most, merely a permissible effort to insure that all applicants for the vote actually fulfill the traditional requirements of bona fide residence.

Petitioners do not contest, nor do they purport to contest this State's power to restrict the franchise to bona fide residents of relevant political subdivisions (Election...