The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
Plaintiffs, college students from Albany and Ulster Counties, bring this action under 42 U.S.C. § 1983 on behalf of all students residing in Albany and Ulster Counties for declaratory and injunctive relief against the officials of the State and County Boards of Elections who have the responsibility of interpreting, applying, and enforcing New York State's Election Law. This action challenges the constitutionality of § 5-104 of the New York State Election Law and Article 2, section 4 of the New York State Constitution, both facially and as applied to plaintiffs.
All parties have moved for summary judgment. For the reasons set forth below the court finds that both § 5-104 and Article 2, section 4 of the New York State Constitution are unconstitutional and, accordingly, the plaintiffs' motion for summary judgment is granted.
The facts of this case as they relate to the Albany County plaintiffs and defendants are fully set forth in this court's earlier opinion in Auerbach v. Kinley, 499 F. Supp. 1329 (N.D.N.Y. 1980).
Briefly stated, plaintiffs are students who attend college in Albany and Ulster Counties and who attempted to register to vote there. At the time the complaint was filed each of the named plaintiffs had lived in his or her college community for at least thirty days and was at least eighteen years of age.
Upon receipt of the plaintiffs' mail-in voter registration forms the County Election Commissioners required the plaintiffs to complete and sign special questionnaires before considering whether plaintiffs should be registered as voters in their college communities. The only basis for requiring students to complete the questionnaires was their status as students. The Albany County Board of Elections ("Board") denied plaintiffs' applications to register to vote stating that the students were not residents of Albany County for voting purposes.
The plaintiffs appealed the Board's decision but their appeal was denied and all of the plaintiffs were refused registration in Albany County. The Ulster County plaintiffs were also refused registration.
The plaintiffs then commenced this action under 42 U.S.C. § 1983 on behalf of themselves and all students residing in Albany and Ulster Counties. The complaint asserted, inter alia, that in refusing to permit students to register and vote in their college communities the defendants unconstitutionally abridged plaintiffs' right to vote in violation of the Fourteenth and Twenty-Sixth Amendments to the United States Constitution.
Plaintiffs sought, inter alia, declaratory and injunctive relief holding that the New York statutory and constitutional provisions, pursuant to which their franchise had been abridged, violated the federal constitution.
On October 9, 1980, this court rendered a preliminary decision in this case. Auerbach v. Kinley, 499 F. Supp. 1329 (N.D.N.Y. 1980). In that decision the court denied the defendants' motion to dismiss, certified the action as a class action pursuant to Rule 23(b)(2) of the Fed. R. Civ. P., and granted a preliminary injunction enjoining the defendants "from adopting or pursuing any registration policy or practice . . . that directly or indirectly discriminates against students or that requires students to do anything more than is required of other applicants." Id. at 1343.
Perhaps the most fundamental of all our constitutional liberties is the right to vote. As the Supreme Court stated in Wesberry v. Sanders,
No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our constitution leaves no room for classification of people in a way that unnecessarily abridges this right.
Wesberry v. Sanders, 376 U.S. 1, 17-18, 11 L. Ed. 2d 481, 84 S. Ct. 526 (1964).
Equally, fundamental, however, is the right of a state to limit the right to vote to bona fide residents. At issue here is a conflict between these two competing constitutional rights. In balancing these rights New York State's efforts to restrict the ballot to bona fide residents must not violate the equal protection clause of the federal constitution by unfairly burdening the plaintiffs' right to vote.
The Supreme Court in Dunn v. Blumstein recognized the tension between these competing constitutional rights and concluded that restrictions on the right to vote, including the imposition of residency requirements, must meet "close constitutional scrutiny":
In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e.g., Evans v. Cornman, 398 U.S. 419, 421-22, 426, 26 L. Ed. 2d 370, 90 S. Ct. 1752 (1970); Kramer v. Union Free School District, 395 U.S. 621, 626-28, 23 L. Ed. 2d 583, 89 S. Ct. 1886 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706, 23 L. Ed. 2d 647, 89 S. Ct. 1897 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 667, 16 L. Ed. 2d 169, 86 S. Ct. 1079 (1966); Carrington v. Rash, 380 U.S. 89, 93-94, 13 L. Ed. 2d 675, 85 S. Ct. 775 (1965); Reynolds v. Sims, supra. This "equal right to vote," Evans v. Cornman, supra, at 426, is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. See, e.g., Carrington v. Rash, supra, at 91, Oregon v. Mitchell, 400 U.S. 112, 144, 27 L. Ed. 2d 272, 91 S. Ct. 260 (opinion of Douglas, J.), 241 (separate opinion of Brennan, White, and Marshall, JJ.), 294 (opinion of Stewart, J., concurring and dissenting, with whom Burger, C.J., and Blackmun, ...