Appeal from a judgment of the District Court for the Nothern (Northern) District of New York (Neal P. McCurn, Judge), declaring voter residence provisions of New York statute and constitution unconstitutional on their face and as applied to students seeking to register, and granting injunctive relief. State officials appeal ruling of facial unconstitutionality. Reversed in part and remanded.
Before: MANSFIELD, NEWMAN, and KEARSE, Circuit Judges.
JON O. NEWMAN, Circuit Judge :
This appeal concerns a voting rights suit brought on behalf of a class of all students residing in, and desiring to register and vote in general elections in, Albany and Ulster Counties, New York. The class representatives were refused registration after completing a special questionnaire required by county officials to determine the residence of students for voting purposes. They brought this suit against the commissioners of the state and county boards of elections, challenging the constitutionality of section 5-104 of the New York Election Law and Article II, section 4, of the New York State Constitution both facially and as applied. The District Court for the Northern District of New York (Neal P. McCurn, Judge) granted a preliminary injunction ordering registration of the class representatives and prohibiting discrimination against students seeking to register to vote, Auerbach v. Kinley, 499 F. Supp. 1329, 1343 (N.D.N.Y. 1980), and, on cross-motions for summary judgment, declared these provisions unconstitutional on their face and as applied and issued a permanent injunction prohibiting discrimination against students seeking to register, Auerbach v. Kinley, 594 F. Supp. 1503 (N.D.N.Y. 1984).
Donald Rettaliata and William McKeon, commissioners of the New York State Board of Elections, appeal from the final judgment of the District Court. Their appeal challenges only the declaration that the state law provisions at issue are unconstitutional on their face and thereby implicates the grant of injunctive relief against them. The holding of unconstitutionality as applied is unchallenged, since review is not sought by the state defendants and the county defendants took no appeal. We reverse that part of the District Court's judgment declaring the state law provisions unconstitutional on their face and remand for modification of the injunction.
By statute New York defines "residence" for voting purposes as "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return." N.Y. Elec. Law § 1-104(22) (McKinney 1978). The District Court correctly noted that, as a matter of state law, this definition-particularly the requirement that the home be "permanent"-should not be read literally but rather "is intended to approximate the test for domicile, i.e., physical presence and an intention to remain for the time at least." Auerbach v. Kinley, supra, 594 F. Supp. at 1507 n.5 (citing Ramey v. Rockefeller, 348 F. Supp. 780 (E.D.N.Y. 1972) (three-judge court, Friendly, J.)); see Palla v. Suffolk County Board of Educations, 31 N.Y.2d 36, 47, 334 N.Y.S.2d 860, 866, 286 N.E.2d 247 (1972) (" Palla "). "Presence" and "intention to remain" are explicited by the election law provisions challenged by this lawsuit. The statute at issue reads:
Qualifications of voters; residence, gaining or losing
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 engaged in the service of the United States, nor while engaged in the navigation of the water 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.
2. In determining of 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, site 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.
N.Y. Elec. Law § 5-104 (McKinney 1978). The challenged provision of the New York State Constitution, Article II, section 4, is nearly identical to section 5-104(1) of the New York Election Law. Our discussion and analysis of section 5-104(1) is equally applicable to Article II, section 4, unless otherwise indicated.
The District Court reviewed the construction the New York Court of Appeals has given to section 5-104 and concluded that the statute could not survive "strict scrutiny" equal protection analysis because, Judge McCurn concluded, the provision creates a rebuttable presumption that students are not residents of their college communities and because the burden of proof of residency thus imposed on students is not necessary to the advancement of any compelling state interest. For the reasons that follow, we reverse.
"'In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered.'" Kolender v. Lawson, 461 U.S. 352, 355, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983) (quoting Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982)). The interpretation of a state statute or constitutional provision made by that state's highest court is binding on a federal court. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981). The New York Court of Appeals definitively construed section 5-104 of the New York Election Law in Palla, supra, a case remarkably similar to this one.
In Palla, students denied voter registration in their college communities challenged on equal protection grounds the constitutionality of the predecessor to section 5-104, section 151 of the New York Election Law of 1949, quoted in full in Ramsey v. Rockefeller, supra, 348 F. Supp. at 783-84 n.1. The prior version included virtually the same language that now constitutes section 5-104.*fn1 The Court of Appeals 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." 31 N.Y.2d at 46, 334 N.Y.S.2d at 866. As construed by the courts of New York, these requirements of bona fide residence include "not only an intention to reside at a fixed place, but also personal presence in that place coupled with conduct which bespeaks of such an intent." Id. at 47, 334 N.Y.S.2d at 867 (emphasis added). Section 5-104(2) lists, "with some particularity," various "criteria which the board of elections ...