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HARDY v. LOMENZO

October 2, 1972

Jack G. HARDY and Ralph S. Von Kohorn on behalf of each and on behalf of all others similarly situated, Plaintiffs,
v.
John P. LOMENZO, Secretary of State of the State of New York, et al., Defendants


Cannella, District Judge.


The opinion of the court was delivered by: CANNELLA

CANNELLA, District Judge.

This matter came originally before the Court on motion of plaintiffs for an order, pursuant to Title 28 U.S.Code Sections 2281 and 2284, convening a statutory three judge court to hear and determine this action or in the alternative for appropriate relief declaring plaintiffs' rights and the defendants' responsibilities herein. On the hearing plaintiffs withdrew the request for a three judge court, and submitted the case to this court with the stipulation that declaratory as opposed to injunctive relief is sought.

 The plaintiffs' claims are that defendants' refusal, under color of Sections 150 and 151(b) of the New York Election Law, McKinney's Consol.Laws, c. 100, to permit plaintiffs to participate in the November 7, 1972 Presidental election is violative of plaintiffs' rights under the First and Fourteenth Amendments to the Constitution of the United States; and that defendants' refusal, under color of Section 151(b) of the New York Election Law to permit plaintiffs to participate in the Presidential election abridges their right to participate in the electoral process in violation of the Voting Rights Act of 1970 (42 U.S.C. § 1973aa-1).

 Defendants Rockefeller and Lomenzo and the New York Attorney General, on their part, move for an order pursuant to Rules 12(b) (1) and (6) of the Federal Rules of Civil Procedure, dismissing the complaint upon the grounds that the court lacks jurisdiction, and further that the complaint fails to state a claim upon which relief may be granted and that the complaint is banned by laches. The motion addressed to the court's jurisdiction is without substantiation and is denied. The motion based on laches although of some merit also is denied. That part of the defendants' motion which is addressed to the sufficiency of the complaint is granted for reasons hereafter discussed.

 The facts as taken from the submitted papers are as follows: Plaintiff, Von Kohorn resided in Westchester County, New York, from 1938 to 1963 when he moved from Westchester County to New Zealand where apparently he has since remained, except for a visit to the Westchester County Board of Elections on or about April 11, 1972 where he submitted an application for absentee registration which was on the same day rejected. He abides in New Zealand and his future domiciliary plans are uncertain but he does wish to vote in the 1972 Presidential election.

 Plaintiff, Hardy, resided in Scarsdale, Westchester County, New York, until December 1964 when he moved to Brazil because of business obligations. He intends to return to Westchester County upon completion of his business obligations but has no nexus with New York or the county except that he maintains a telephone listing at his mother's home in Westchester. His request for absentee registration to vote in the 1972 Presidential election was rejected by the Westchester County Board of Elections early in 1972.

 The claim of Von Kohorn may be disposed of summarily. After a temporary residence in Westchester County, New York, he moved to Wellington, New Zealand. The reason for his move is not assigned and he evinces no intention ever to return to New York, or, indeed, to the United States. His expressed desire to vote in the 1972 Presidential election gives him no grievance against the defendants or any of them. He is for the purposes of the present record a resident of Wellington and so far as known intends so to remain.

 Hardy's claim requires an examination of the statutes here involved. New York Election Law Section 151(b) provides as to residence for the purpose of registering and voting:

 
"(b) As used in this article, the word 'residence' shall be deemed to mean that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return."

 The question first to be considered is whether or not the Voting Rights Act of 1970, 42 U.S.C. § 1973aa-1, is preemptive of that definition. The avowed purpose of the Voting Rights Act is to abolish durational residency requirements as a precondition to voting for the offices of President and Vice President and to prescribe uniform opportunities for absentee registration and absentee balloting in presidential elections. 42 U.S.C. § 1973aa-1(a),(b); Oregon v. Mitchell, 400 U.S. 112, 134, 236, 286, 287, 27 L. Ed. 2d 272, 91 S. Ct. 260 (1970). The rationale is that the imposition of parochial durational residency requirements unreasonably burdens the privilege of taking up residence in another state. It seems clear, however, that the Voting Rights Act did not intend to abrogate the power of the several states to define residence so as to insure that voting be limited to bona fide residents. The sole exception is found in 42 U.S.C. § 1973aa-1, Subd. (e) which permits persons moving within 30 days prior to election to vote in the State of prior residence.

 Thus, with particular reference to the present case the Voting Rights Act, 42 U.S.C. § 1973aa-1(c), provides:

 
". . . nor shall any citizen of the United States be denied the right to vote for electors for President and Vice President, or for President and Vice President, in such election because of the failure of such citizen to be physically present in such State or political subdivision at the time of such election, if such citizen shall have complied with the requirements prescribed by the law of such State or political subdivision providing for the casting of absentee ballots in such election. (Emphasis supplied).

 Similarly, subdivision (d) provides:

 
"For the purposes of this section, each State shall provide by law for the registration or other means of qualification of all duly qualified residents of such State. . .; and each State shall provide by law for the casting of absentee ballots . . . by all duly qualified ...

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