Siwek v. Mahoney

• Decision Date: 01 April 1976
• Citation: 383 N.Y.S.2d 238,347 N.E.2d 599,39 N.Y.2d 159
• Parties: , 347 N.E.2d 599 In the Matter of Donald J. SIWEK, Respondent, v. Edward J. MAHONEY et al., as Commissioners of Election in the County of Erie, Appellants, and New York State Board of Elections, Intervenor-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 238

383 N.Y.S.2d 238

39 N.Y.2d 159, 347 N.E.2d 599

In the Matter of Donald J. SIWEK, Respondent, v. Edward J. MAHONEY et al., as Commissioners of Election in the County of Erie, Appellants and New York State Board of Elections, Intervenor-Appellant.

Court of Appeals of New York.

April 1, 1976.

James L. Magavern, County Atty. (Leonard G. Kriss, Buffalo, of counsel), for appellants.

Louis J. Lefkowitz, Atty. Gen. (Maryann S. Freedman, Buffalo, and Ruth Kessler Toch, Albany, of counsel), for intervenor-appellant.

Gregory Stamm, Buffalo, for respondent.

Burt Neuborne, Jack Greenberg, Charles Williams, Oscar Garcia-Rivera, Herbert Teitelbaum, Joseph B. Robison and Stephen Jacoby, New York City, for The New York Civil Liberties Union and others, amici curiae.

FUCHSBERG, Judge.

We hold that New York State's recently enacted uniform mail registration statute (Election Law, § 153) is valid.

Plaintiff, a registered voter in Erie County, challenges the validity of the statute under section 5 of article II of our State Constitution. The Supreme Court, Erie County, found the statute to be in contravention of that section. Pursuant to CPLR 5601 (subd. (b), par. 2), the case is now here on direct appeal from the order and judgment of that court. For the reasons which follow, we reverse its determination.

Section 153 of the Election Law (L.1975, ch. 166) reads in pertinent part:

'Registration and enrollment and transfer of same upon application filed by mail

'1. In addition to central registration as provided in section three hundred fifty-five of this chapter, any qualified person may apply for registration and enrollment or to transfer his registration and enrollment by mail.' ¹

By the enactment of the statute, the Legislature attempted to deal with New York's voting deficiencies, including the fact that not more than half of those eligible to vote have actually been exercising their franchise. ² Indeed, in three counties, voter participation has slipped to such a degree that the State is now subject to the preclearance provisions of the Voting Rights Act of 1965 (U.S.Code, tit. 42, § 1973b, as re-enacted Aug. 6, 1975), which applies whenever voter turnout is substandard within its terms (see, also, New York v. United States, 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134; United Jewish Organizations of Williamsburgh v. Wilson, 2 Cir., 510 F.2d 512, cert. granted 423 U.S. 945, 96 S.Ct. 354, 46 L.Ed.2d 276). The Legislature, therefore, attempted to encourage voting by adding a simple, State-wide form of mail registration to the personal registration procedures already available (cf. Election Law, § 355).

Petitioner challenges this statute as violative of section 5 of article II of our Constitution. However, it is section 6 of article II, and not section 5, by which section 153 must be tested.

Section 5 of article II was adopted in virtually its present form in 1894. ³ It is directed toward the establishment of a system of Annual voter registration, under which each voter may be required to register anew prior to each year's general election. As a precaution against fraud, it requires all voters living in cities and villages with populations over 5,000 to register 'upon personal application only', while it exempts voters living in smaller, more rural areas from the requirement of registering 'in person'. Moreover, it mandates that laws be established for 'the registration of voters; which registration shall be completed at least ten days before Each election' (emphasis added). (See Problems Relating to Home Rule and Local Government: Documents Prepared for Delegates to the Constitutional Convention of 1938, vol. XI, pp. 195--200.)

Section 6 of article II, on the other hand, provides for a system of Permanent voter registration. Adopted at the Constitutional Convention of 1938, it states:

' § 6. (Permanent registration)

'The legislature may provide by law for a system or systems of registration whereby upon personal application a voter may be registered and his registration continued so long as he shall remain qualified to vote from the same address, or for such shorter period as the legislature may prescribe.'

Unlike section 5, section 6 was intended by its drafters to be 'experimental' and 'entirely permissive' (Revised Record, New York State Constitutional Convention of 1938, vol. III, pp. 2404, 2405). The chairwoman of the Convention's Committee on Suffrage, which drafted section 6, and its other proponents successfully defeated attempts to put into section 6 a constitutionally mandatory provision requiring Statewide registration. (At pp. 2410--2411.) They succeeded in securing the adoption of their preference that the Legislature, not the convention, be empowered to make that decision. (At pp. 2397, 2411.) The debates, moreover, are replete with citations to statistics which showed, even in 1938, that registration on an annual basis tended to depress voter participation and show concern as to how voter participation might best be encouraged. (At pp. 2396--2414.)

Indeed, in contrast to what the delegates considered the rigid and restrictive approach embodied in the specific provisions of section 5, the entire tenor of their discussion of section 6 indicates a desire to also leave to the Legislature's later judgment the choice of means by which it might seek to effectuate the expansive purposes of permanent registration. Thus, since section 6 was designed to be permissive in its grant of authority to the Legislature, section 5 was not repealed, but remained operative until rendered dormant by legislative implementation of section 6.

In fact, the Legislature moved slowly with respect to the powers granted it in section 6. It was not until 1954 that it enacted section 350 of the Election Law, by which it put into effect a system of local option for permanent personal registration. Then, in 1965, it amended section 350 (L.1965, ch. 319) to provide a mandatory, State-wide system of permanent registration, under which both urban and rural voters were required to register in person initially and were then permitted to maintain that registration without further effort, so long as they did not change addresses or fail to vote in two successive general elections. In due course, it also repealed the statutory provisions which had governed the annual registration procedures covered by section 5 (Election Law, §§ 156--157--a). The result is that a uniform, permanent personal registration system, in substitution for annual registration, has been in effect throughout the State for nearly 10 years.

In consequence of that exercise by the Legislature of its authority under section 6 of article II of the Constitution to mandate 'a system or systems' of permanent registration, section 6 then became fully operative, section 5 became inoperative and the differentiation of treatment between larger and smaller communities disappeared. Thereafter, the requirement for in-person registration under section 350 remained in effect until the Legislature, in the further exercise of its apparent authority under section 6, enacted present section 153 (L.1975, ch. 166). By that chapter, mail registration replaced in-person registration.

As with section 350 of the Election Law, section 153 of the Election Law has, by its terms, been made applicable throughout the State. In conformity with the scope of section 6, neither of those statutes set up any geographical distinctions. Accordingly, all voters are accorded equal treatment. And, since all citizens are treated in precisely the same manner, there is no substance to the contention that there has been a denial of equal protection under constitutional limitations.

It now remains only to consider...