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October 9, 1984

MARTHAANN E. PITTS, et al., Plaintiffs, v ROBERT S. BLACK, et al., etc., Defendants.

The opinion of the court was delivered by: LOWE



 Who are to be the electors . . .? Not the rich more than the poor, not the learned, more than the ignorant, not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States.

 The Federalist No. 57 (J. Madison)

 The plaintiff class seeks a permanent injunction and a declaratory judgment prohibiting the present practice of the New York City Board of Elections ("City Board"), acting with the advice and support of the New York State Board of Elections ("State Board") from applying the New York State Election Law ("Election Law") in such a manner as to completely disenfranchise the plaintiff class.

 Plaintiffs allege that they are "homeless" persons in that they do not have traditional residences. They further allege that they reside in the State of New York and but for the fact that they do not live in traditional residences they meet the statutory requirements for eligibility to register to vote in all other respects.

 Plaintiffs claim that the defendants' application of the Election Law in such a manner as to disenfranchise plaintiffs' class, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. *fn1"

 Federal jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 1983. The issue for determination in this lawsuit is the constitutionally permissible definition of the term "residence" used in Section 1-104(22) of the Election Law. *fn2" The term "residence" is defined in that Section as, "that place where a person maintains a fixed, permanent and principle home and to which he, wherever temporarily located, always intends to return." *fn3"

 Plaintiffs view the term residence as the act of being in one geographical locale, where one performs the usual functions of sleeping, eating and living in accordance with one's life style, and a place to which one, "wherever temporarily located" always intends to return. The named plaintiff, Dyer, testified at trial:

 Q: Mr. Dyer, you said that you live in St. Gabriel [sic] Park, is that correct?

 A: Yes.

 Q: And St. Gabriel [sic] Park is approximately one block square, is that correct?

 A: Yes, it is.

 Q: And you sleep in the park on any one of six benches located around the baseball diamond, is that right?

 A: Yes. *fn4"

 THE COURT: Mr. Dyer, when you spoke, of these places where you have slept, *fn5" . . . for I think you said a couple of nights, I am asking you about your intent now, did you intend that those places that you slept were your home?

 THE WITNESS: No, I've always sort of considered St. Gabriel [sic] Park as my home park or my home base. *fn6"

 Defendants maintain that the term "residence" necessarily implies the occupancy of a fixed premises. Mr. Thomas Wallace, Executive Director of the new York State board of Elections testified, *fn7"

 Q. Mr. Wallace, do you believe that an individual who gives a park bench as his address would be a resident of the State of New York entitled to register to vote?

 A. In my own opinion, I do not believe he could qualify under the statutory provisions defining residency.

 Q. Can you tell us why, please?

 A. The statute requires a fixed, permanent home and whenever temporarily absent, the person intends to return. I see that definition as carrying with it a requirement that the person have a right to the physical location to the property.

 Betty Dolen, Executive Director of the New York City Board of Elections testified, *fn8"

 Q. Mrs. Dolen, one general question.

 Is it the position of the City Board of Elections presently that the homeless who do not live in shelters or welfare hotels may not register to vote?

 A. That is the position the Board has taken.


 Limitations on the exercise of the franchise must be subjected to strict judicial scrutiny and the burden of justification for restrictive measures must be borne by those who would impose such limitations. Dunn v. Blumstein, 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972). Although substantial and compelling interests may be alleged, a state may not choose the way of greater interference when less onerous alternatives are available. "If it acts at all, it must choose less drastic means." Id. at 343.

 Defendants' definition of the term "residence" excludes an entire group of otherwise eligible voters. Defendants assert that such exclusion is necessary in order to protect valid state interests: First, in ensuring that the voter has a verifiable nexus to the community from which he or she votes; Second, protection of the integrity of the ballot by preventing fraudulent voting practices; and Third, administrative feasbility.

 When an equal protection challenge is made to the constitutionality of a statute, as applied to a particular class, it is necessary to define the class so that the Court may review the character of the classification, the individual interests effected by the classification, and the governmental interests asserted in support of the classification.

 A. Who Are the Homeless

 At trial plaintiffs called Mr. Kim Hopper to testify. The court accepted Mr. Hopper as an expert witness on the subject of the homeless in the City of New York. *fn9" Mr. Hopper testified that fifteen years ago it would have been relatively simple to define the homeless population because they were a rather homogeneous group of white males in the mid to late fifties, a third of whom had severe drinking problems and who generally resided on the Bowery "as a sort of cheap, degrading retirement." About a third of this population occasionally worked, the balance subsisted on pensions, handouts and the municipal shelters. *fn10"

 In the late 1960's and early 1970's as a result of the destruction of cheap housing stock *fn11" due to urban renewal projects, the character of the homeless population changed. By the mid-1970's, in New York City, the homeless were primarily black males who were jobless and by the end of the decade, forty percent of those seeking public shelter stated the lack of a job as the primary reason for their impoverishment. Another addition to this group were women and families, ninety percent of whom by 1973, were rehoused in public housing or welfare hotels. In sum, Mr. Hopper testified that a census of the homeless in New York City would show:

 [M]en and women of all ages, they are predominantly minority, many of them have worked. Usually some dislocating event occurred, loss of a job as in Mr. Dyer's instance, *fn12" almost invariably a number of intermediate arrangements are tried, being put up with friends or family is the most common one, but as I think, the City's most recent survey showed, the precipitating event leading to homelessness is eviction, formal or informal in most of the cases. *fn13"

 Mr. Hopper testified that the demand for shelter over the last five years has increased for men almost thirty percent per year and for woman sixty percent per year. He stated that,

 The City projects an increase of twenty-five percent in shelter demand by the peak of this winter, but I have been told the figures are being revised, I expect upwards. *fn14"

 Not only will the City be unable to meet the demand for shelter, but many of the homeless who live on the streets, approximately eighty to eighty-five percent, have had some experience in City shelters, which caused them to choose not to return. Again, Mr. Hopper:

 In our research the reasons usually given included personal threat of injury, particularly amongst the elderly or more disabled, the threat of lice infestation in particular, the threat of robbery, clothes can still be a scarce item on the street, good clothes, and people in the flops that I visited and slept in tended to sleep in their clothes both for reasons of warmth and to make sure they had them when they woke up, and simply for some people they elect to preserve whatever threads of dignity and ...

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