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October 9, 1980

Amy AUERBACH, Barbara Shapiro, Andrea Digregorio, Monica Rossi, Mary Ellen Scarpone, Stephen Schreiber, Sharon Sonner, Carrie Newman, Robert Weber, Louis Esbin, Alan Frutkin, on behalf of themselves and all other persons similarly situated, Plaintiffs,
Raymond J. KINLEY and George Scaringe, Commissioners of the Albany County Board of Elections; Donald Rettaliata and William McKeon, Commissioners of the New York State Board of Elections, individually and in their official capacities, Defendants

The opinion of the court was delivered by: MCCURN


Plaintiffs in this voting rights case are eleven students attending the State University of New York at Albany who seek to register to vote in their college community but who were denied registration by the Albany County Board of Elections. Plaintiffs bring this class action for declaratory and injunctive relief contending that Section 5-104 of the New York Election Law, Article II, § 4 of the New York State Constitution and the questionnaire used by the Albany County Election Commissioners in connection with student registration are unconstitutional on their face and as applied in that they impermissibly discriminate against and unduly burden students' exercise of the franchise in violation of the Fourteenth, Fifteenth and Twenty-Sixth Amendments of the United States Constitution and Sections 1971, 1973 and 1983 of Title 42, United States Code.

 Defendants Kinley and Scaringe are Commissioners of the Albany County Board of Elections (hereinafter "County Commissioners"). Defendants Rettaliata and McKeon are Commissioners of the New York State Board of Elections. The State and County Defendants are sued both individually and in their official capacities.

 Jurisdiction is asserted under 28 U.S.C. §§ 1331 and 1343(3), (4).

 The matter is now before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss. Defendants' motion is made pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for failure to raise a substantial federal question and failure to state a claim against either the State or County defendants. In treating the motion to dismiss, the allegations in the complaint must be deemed true.


 The named plaintiffs are students at the State University of New York at Albany (hereinafter "SUNY at Albany") and citizens of the United States. At the time the complaint was filed, each had lived in Albany County for at least thirty (30) days and was at least eighteen (18) years of age. Earlier this year, plaintiffs applied to register to vote in Albany County by submitting a mail registration form containing the personal information required under § 5-210 of the Election Law. However, plaintiffs' names were not entered immediately on the registration list because registration forms submitted by students are subject to further scrutiny under the provisions of the New York Election Law challenged in this case.

 Section 5-104(1) of the New York Election Law (formerly § 151(a)), which tracks Art. II, § 4 of the New York Constitution, provides as follows:

1. 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 engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any institution of learning; nor while kept at any welfare institution, asylum or other institution wholly or partly supported at public expense or by charity; nor while confined in any public prison.

 An applicant's residence for registration and voting purposes is defined in § 1-104(22) of the Election Law (formerly § 151(b)) as "... that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return." Section 5-104(2) of the Election Law (formerly § 151(c)) provides:

2. In determining a voter's qualification to register and vote, the board to which such application is made shall consider, in addition to the applicant's expressed intent, his conduct and all attendant surrounding circumstances relating thereto. The board taking such registration may consider the applicant's financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse and children, if any, leaseholds, sites of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that it may reasonably deem necessary to determine the qualification of an applicant to vote in an election district within its jurisdiction. The decision of a board to which such application is made shall be presumptive evidence of a person's residence for voting purposes.

 Pursuant to these statutory provisions, the defendant, County Commissioners, require students to complete and sign a questionnaire before their registration applications are considered. This questionnaire, reproduced as Appendix A below, consists of seventeen (17) questions requesting additional and more detailed information concerning the applicant's affairs than does the standard mail registration form. In this case, all plaintiffs completed and returned the questionnaires to the County Board.

 The Albany County Board of Commissioners met on February 20, 1980, and denied plaintiffs' applications to register to vote in Albany County. The notice of rejection that was sent to each plaintiff gave no reasons for the Commissioners' decision apart from the statement that, based on § 5-104, "... the Board has determined that you do not have a valid, permanent and fixed residence in the County of Albany for voting purposes." Complaint, Exhibit Q.

 Following this initial rejection, plaintiffs were granted "in person appeals" before the Albany County Election Commissioners. *fn1" Again, all plaintiffs were denied registration to vote in Albany County. Those plaintiffs who reside on the SUNY at Albany campus allegedly were informed by the Commissioners that registration was denied because they do not consider dormitories to be "legal residences" for voting purposes. Other plaintiffs were told that registration was denied either because they visit or receive financial assistance from their parents, or because they have access to a room in their parents' home.

 Thereafter plaintiffs commenced this action under 42 U.S.C. § 1983 on behalf of themselves and "all students residing in Albany County", alleging the deprivation of federal statutory and constitutional rights under color of state law. Specifically, plaintiffs allege that students seeking to register to vote in their college community are denied their rights under the Fourteenth, Fifteenth and Twenty-Sixth Amendments by the imposition of inappropriate and unevenly applied requirements and procedures for establishing residency for voting purposes. They further allege that the disparate treatment accorded students in Albany County is violative of 42 U.S.C. §§ 1971 & 1973. Plaintiffs seek (1) a declaratory judgment that Art. II, § 4 of the New York Constitution, § 5-104 of the Election Law and the questionnaire used by the Albany County defendants are unconstitutional, and (2) to enjoin the defendants from (a) using the questionnaire, (b) treating students in Albany County differently from all other citizens when they apply to register to vote, and (c) denying students the right to register to vote in Albany County.


 Both the State and County defendants move to dismiss the action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction on the ground that the complaint fails to raise a substantial federal question. In support of this motion defendants advance three arguments. First, that the Supreme Court gave at least tacit approval to similar statutory treatment of prospective student voters in Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965). Second, that § 5-104 of the Election Law and the use of a questionnaire to assist County Boards in the determination of students' residency qualifications have withstood similar constitutional challenges in Whittington v. Board of Elections of Onondaga County, 320 F. Supp. 889 (N.D.N.Y.1970); Palla v. Suffolk County Board of Elections, 31 N.Y.2d 36, 334 N.Y.S.2d 860, 286 N.E.2d 247 (1972); Ramey v. Rockefeller, 348 F. Supp. 780 (E.D.N.Y.1972) (three-judge court); and Cesar v. Onondaga County Board of Elections, 54 A.D.2d 1108, 389 N.Y.S.2d 58 (App.Div.1976). Third, defendants urge that to the extent plaintiffs are dissatisfied with the decisions of the Albany County Commissioners, the claim advanced seeks nothing more than a review of state administrative proceedings, and the proper forum for such review is the state courts, pursuant to either § 16-108 of the Election Law or Art. 78 of the N.Y.C.P.L. and Rules.

 A case otherwise within the jurisdiction of the federal courts may nevertheless be dismissed if the claim advanced "is so insubstantial, implausible, foreclosed by prior decisions of (the Supreme) Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 94 S. Ct. 772, 777, 39 L. Ed. 2d 73 (1974). Goosby v. Osser, 409 U.S. 512, 518, 93 S. Ct. 854, 859, 35 L. Ed. 2d 36 (1973), while treating of the former requirements for convening a three-judge court, remains relevant to the present inquiry:

(Claims) are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of (former) 28 U.S.C. § 2281. A claim is insubstantial only if " "its unsoundness so clearly results from the previous decisions of (the Supreme Court) as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.' " Ex Parte Poresky, (290 U.S. 30, 32, 54 S. Ct. 3, 4, 78 L. Ed. 152 (1933)), quoting from Hannis Distilling Co. v. Baltimore, (216 U.S. 285, 288, 30 S. Ct. 326, 327, 54 L. Ed. 482 (1910))....

 This Court is persuaded that neither Carrington nor the other cases relied upon by defendants here satisfy the test set forth in Goosby and that plaintiffs' challenge to the student voter registration scheme raises a substantial federal question. Moreover, a series of student voter registration cases from other jurisdictions, culminating in United States v. State of Texas, 445 F. Supp. 1245 (S.D.Texas 1978) (three-judge court), aff'd mem., 439 U.S. 1105, 99 S. Ct. 1006, 59 L. Ed. 2d 66 (1979), provide strong support for plaintiffs' claim that absent a compelling justification neither a state nor a political subdivision may, consistent with the Equal Protection Clause of the Fourteenth Amendment, require students to go to greater lengths than other citizens to establish residency. In light of the clear trend of recent case law invalidating similar restrictions on the opportunity of students to vote in their college communities, this Court concludes that plaintiffs have stated a proper claim and that the registration practices challenged in this case warrant further judicial scrutiny.

 In Carrington v. Rash, supra, the Supreme Court held unconstitutional a provision of the Texas Constitution prohibiting members of the armed forces who had moved to Texas during their military service from ever acquiring a voting residence in the State so long as they remained in military service. Emphasizing that the right to vote lies "close to the core of our constitutional system," the Court held only that Texas' absolute denial of the vote to servicemen constituted "an invidious discrimination in violation of the Fourteenth Amendment." Id., 380 U.S. at 96, 85 S. Ct. at 780. In reaching its decision the Court did observe that the conclusive presumption of nonresidency applied only to members of the military services, whereas other groups-such as students, civilian employees of the federal government and inmates of various public institutions-which presented "specialized problems in determining residency" were provided "at least an opportunity to show the election officials that they are bona fide residents." Id. at 95, 85 S. Ct. at 780 (citing a provision of the Texas Code and similar statutes from other States). Having invalidated the constitutional provision at issue in that case, the Court went on to state that "Texas is free to take reasonable and adequate steps, as have other States, to see that all applicants for the vote actually fulfill the requirements of bona fide residence." Id. at 96, 85 S. Ct. at 780.

 Since both the Twenty-Sixth Amendment and the current provisions of the New York Election Law were adopted six years after Carrington was decided, the Supreme Court's reference in Carrington to "reasonable and adequate steps" taken by "other States" cannot be taken as an express approval of New York's current treatment of prospective student voters. *fn2" More importantly, the Carrington Court's reference to other statutes prescribing separate treatment of student voters was by way of dictum. The holding in Carrington does not foreclose or render frivolous plaintiffs' Fourteenth Amendment claim that the New York statutory scheme, as construed by the state courts and as applied by the County Commissioners, subjects students to unduly rigorous, inappropriate and unevenly applied procedures and requirements for establishing voting residency. Cf. Dunn v. Blumstein, 405 U.S. 330, 343-44, 92 S. Ct. 995, 1004, 31 L. Ed. 2d 274 (1972) ("An appropriately defined and uniformly applied requirement of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny"). See also, Whatley v. Clark, 482 F.2d 1230, 1234 (5th Cir. 1973), cert. denied sub nom., White v. Whatley, 415 U.S. 934, 94 S. Ct. 1449, 39 L. Ed. 2d 492 (1974) (Carrington's reference to the opportunity given to students and other groups to prove their claims of residency "should be seen only in contrast to the total disenfranchisement of servicemen, not as tacit approval of a rebuttable presumption of nonresidency as applied to students").

 The Twenty-Sixth Amendment was adopted in 1971. The difficulties encountered by recently enfranchised students seeking to register to vote in their college communities have prompted extensive litigation in state and federal courts across the country. Palla v. Suffolk County Board of Elections, supra, involved three companion cases challenging the constitutionality of former § 151 as amended by the New York State Legislature in response to the Twenty-Sixth Amendment. Laws of New York 1971, c. 1096. *fn3" The petitioners in each case were summarily denied the right to register to vote in the general election because they lived in college dormitories; or, where they had been registered prior to the passage of the 1971 amendments to § 151 of the Election Law, they were notified that their right to vote would be voided or challenged on Election Day. Id. 334 N.Y.S.2d at 863-64, 286 N.E.2d at 249-50. The New York Court of Appeals ruled broadly that § 151 is not violative of the Fourteenth or Twenty-Sixth Amendments or 42 U.S.C. § 1971, and concluded that the statutory scheme "represents, at most, merely a permissible effort to insure that all applicants for the vote actually fulfill the traditional requirements of bona fide residence." Id. at 866, 286 N.E.2d at 251. The Court acknowledged that "(under) ordinary circumstances, and at common law, the fact of physical presence within a particular election district may be deemed consistent with the claimed change in permanent residence;" but characterized as "entirely neutral" its construction of § 151(a) that a student's physical presence "is deemed evidence merely of an intention to reside temporarily in a particular district for purposes consistent with preparation for a particular calling." Id. at 867, 286 N.E.2d at 252. Drawing on prior case law, the Court also construed § 151 to require that when a student seeks to change residency for voting purposes, the requisite intention to change must be demonstrated by facts and conduct "wholly independent" of the student's presence at the college for educational purposes. Id. at 868, 286 N.E.2d at 252.

 With respect to the claim that § 151(c) denies students equal protection of the laws by authorizing a unique and more extensive line of inquiry than that put to nonstudent applicants, the Palla Court reasoned that § 151 imposes no voter qualifications but deals instead "with the indicia of residence, and this State's incidental efforts at ferreting out those whose claimed residence is not bona fide." Id. at 869, 286 N.E.2d at 253. These criteria, the Court stated, are applicable to all prospective registrants, and "classifications incidental to (the determination of bona fide residency) need only be reasonable in light of the scheme's purposes in order to be sustained." Id., citing inter alia, Carrington and Dunn. The statutory requirement that students, along with other transients, support their declarations of changed domicile with facts wholly independent of their residence at an institution was found to satisfy the rational basis standard because the classification "is consonant with the natural inference that their stay is for limited purposes only." The Court concluded that where students are in fact residents and intend New York "for a permanent home", they have a right to equal political representation whatever their views. Id. at 869-70, 286 N.E.2d at 253-54.

 In Ramey v. Rockefeller, supra, a three-judge district court reviewed the decision in Palla for the purpose of resolving a contemporaneous challenge to § 151 brought by students living in dormitories at the State University of New York at Stony Brook. The Court began its analysis by rejecting the contention that singling out students and certain other groups in § 151(a) is an unconstitutional discrimination. In reaching this result the Court stated that in its view the "gained or lost" language means only that the presence of a former non-domiciliary as a student within the State is not alone sufficient to supply the required mental element for establishing a domicile of choice. Id. 348 F. Supp. at 786. While it is true that this view is plausible and fits comfortably within the construction of § 151 adopted in Palla, the two readings are not coextensive; in Palla the New York Court of Appeals went further and read § 151 as requiring that students demonstrate the required mental element based on facts and conduct that are "wholly independent" of presence as a student. Thus, an initial question that remains unanswered after Palla and Ramey is whether a residency statute which deems irrelevant any facts or conduct which are not wholly independent of a prospective voter's presence as a student is "necessary to preserve the basic conception of a political community." Dunn, supra, 405 U.S. at 344, 92 S. Ct. at 1004.

 The second difficulty with defendants' reliance on Ramey lies in that Court's conclusion that statutes which subject students to what amounts to a rebuttable presumption of nonresidency are constitutional. Addressing the plaintiffs' equal protection claim in that case, the Ramey Court reasoned that § 151 is functionally equivalent to the Texas statute dealing with student registration that was implicitly approved in Carrington and expressly found constitutional in Wilson v. Symm, 341 F. Supp. 8 (S.D.Tex.1972). Since students are given the opportunity to demonstrate bona fide residency under both schemes, the Court found it immaterial that other groups of citizens possessing similar elements of transiency are not subject to a similar burden. Id. at 786.

 Subsequent to the decision in Ramey, however, the Texas statute upheld in Wilson was struck down on equal protection grounds in Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), cert. denied sub nom., White v. Whatley, 415 U.S. 934, 94 S. Ct. 1449, 39 L. Ed. 2d 492 (1974). In Whatley, the Fifth Circuit rejected the argument that disparate treatment of students is constitutionally permissible so long as the same substantive standard of bona fide residency is applied to all prospective voters:

By its terms (the statute) creates a presumption that students are not domiciliaries of the places they live while attending school. Of course, the presumption is rebuttable; but unless a student carries the burden of persuading the voting registrar that he is in fact a domiciliary of the place where he resides for the better part of each year, he is not permitted to vote there and is consequently denied an opportunity to participate in elections which may have considerably more impact on his life than do those in the area where he resided before becoming a student. Other prospective voters, on the other hand, are not subject to this presumption of nonresidency or to the attendant burden of overcoming it.

 Id. at 1233 (footnote describing a questionnaire similar to that used in Albany County, omitted). The Court concluded that because the disparate treatment of prospective student voters was not necessary to promote the state's interest in preserving the purity of the ballot, the statute was violative of the Fourteenth Amendment. Id. at 1234. Since the equal protection analysis in Ramey was premised at least in part on the authority of Wilson, which subsequently was overruled by Whatley, Ramey's precedential weight is now limited.

 While the equal protection analysis in Ramey is subject to further review, that Court's treatment of the sustantive definition of voting residence lends support to the claim advanced by the plaintiffs here. With respect to the substantive standard for determining voting residence set forth in former § 151(b) and now codified as § 1-104(22), the Ramey Court reasoned that because "(t)he objective is to determine the place which is the center of the individual's life now, the locus of his primary concern," "we think that the only constitutionally permissible test is one which focuses on the individual's present intention and does not require him to pledge allegiance for an indefinite future." 348 F. Supp. at 788. The Court recognized the tension which exists between this standard and the construction of § 151 adopted by the Court of Appeals in Palla, but concluded that "it is too ...

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