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WHITTINGTON v. BOARD OF ELECTIONS FOR ONONDAGA CTY

December 8, 1970

Dianne WHITTINGTON, Gerald S. Doyle, Jr., Linda L. Moore, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
BOARD OF ELECTIONS for ONONDAGA COUNTY and the State of New York, et al., Defendants


Port, Judge.


The opinion of the court was delivered by: PORT

MEMORANDUM-DECISION and ORDER

PORT, Judge.

 Plaintiffs in the above-entitled action have applied for injunctive relief and for the convention of a three judge court pursuant to 28 U.S.C. §§ 2281 and 2284. On behalf of themselves and all other persons similarly situated, plaintiffs attack the constitutionality of the New York Constitution, Article 2, Section 4 *fn1" and the New York Election Law, § 151. *fn2" Defendants have moved to dismiss the complaint.

 After a hearing at a motion term on October 26, 1970, I denied plaintiffs' application for a temporary restraining order enjoining defendants from enforcing the aforementioned provisions of the Constitution and Election Law. At that time, I reserved decision on whether or not to call for the convention of a three judge court and the motions to dismiss the complaint.

 FACTUAL AND STATUTORY BACKGROUND

 The named plaintiffs herein are each at least twenty-one years of age and are presently students at Syracuse University. Each claims a current residence in the City of Syracuse, a present intention of remaining a resident of Syracuse, and a lack of intention to move from his present residence in Syracuse.

 At various times in October, 1970, the plaintiffs attempted to register to vote in Syracuse for the November, 1970 elections. Each was asked a series of questions by election officials relating to his student, occupational, and marital status. On the basis of plaintiffs' responses to those questions, the election officers decided that plaintiffs were not residents of Onondaga County within the purview of the New York Election Law, § 150 *fn3" and informed them that they would not be permitted to register. This denial, they claim, results from the application of the constitutional and statutory provisions under attack.

 Article 2, Section 4 and Section 151 are similar in their import. They provide, in substance, that for registration and voting purposes, a person is not deemed to have gained or lost a residence by reason of his presence in or absence from a community while he is a student in an institution of learning.

 Plaintiffs assert that these provisions, on their face and as construed and applied by the courts of New York, constitute a de facto "[deliberate] and selective disenfranchisement" *fn4" of students in violation of plaintiffs' right to equal protection of the laws, due process of the law, freedom of movement and travel, privileges and immunities granted to the citizens of each state, and freedom from poll taxes. Specifically, plaintiffs seek declarations that the provisions are unconstitutional insofar as they permit or require the constructions that:

 
(1) Plaintiffs and other students similarly situated cannot change their voting residences to New York as long as they are students;
 
(2) Plaintiffs and other students similarly situated are not qualified to vote in New York solely by operation of the provisions; and
 
(3) Plaintiffs and other students similarly situated, by virtue of being in an enumerated category, are held to a more rigorous burden of proving their qualifications than other persons seeking to vote in New York.

 THREE JUDGE COURT

 Since at least part of the relief sought by plaintiffs is an injunction against the "enforcement operation or execution" *fn5" of a law of state wide application, plaintiffs properly applied for the convention of a three judge court. But in such an instance, "the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action." Utica Mutual ...


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