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October 28, 1985

GEORGE D. SALERNO, R. WELLS STOUT, DONALD RETTALIATA, and WILLIAM H. McKEON, as Commissioners of the New York State Board of Elections, NEW YORK STATE BOARD OF ELECTIONS, ANTONIA D'APICE, and MARION OLDI, as Commissioners of the Westchester County Board of Elections, THE WESTCHESTER COUNTY BOARD OF ELECTIONS, Defendants

The opinion of the court was delivered by: CARTER

CARTER, District Judge

History of the Case

 In September and October, 1983, approximately 450 students enrolled at the State University of New York at Purchase, New York ("SUNY-Purchase") sought to qualify to vote as residents of Purchase. Their applications were rejected: the first 101 by the joint decision of both Commissioners of the Westchester County Board of Elections, Commissioners Marion Oldi and Antonia D'Apice; the remainder, by Commissioner D'Apice unilaterally. A form letter of rejection was sent to all applications, but was signed by both Commissioners in only 101 of the 450 rejections sent. The letter quoted § 1-404-22 of the New York Election Law, and stated that "[a] college dorm cannot be considered as fixed, permanent or principal home" and suggested that the student "register and vote from your home community." Letter dated Sept. 28, 1983, Plaintiffs' Exhibit 1.

 Although Commissioner Oldi initially took the view of the law reflected in the September 28, 1983 letter, she changed her position and refused to sign any letter after the first 101 rejections. Commissioner D'Apice, in the belief that the letter relected the proper interpretation of the law, sent letters of rejection to the remaining applicants over her signature alone.

 By memorandum dated October 6, 1983, the Senior Assistant County Attorney advised Commissioners Oldi and D'Apice "[a]s an addition to my previous memo on the same topic, the Board of Elections may not prevent people from registering to vote merely because they are students." Memorandum of the Office of County Attorney, Defendant Oldi's Exhibit B. Thomas Zolezzi, counsel to the New York State Board of Election, advised that the 350 students who had been rejected by Commissioner D'Apice should be registered on the theory that New York Election Law required such action by the Board of Elections which could act only by majority vote.

 None of the students was registered, and this litigation was commenced in the Northern District of New York as a class action seeking declaratory judgment and injunctive relief to enable students enrolled at SUNY-Purchase to vote as residents of the college community. The case was transferred to this court, and a preliminary injunction was entered on November 4, 1983. The injunction enjoined refusal to allow student to register to vote. It was held that denying college students the right to register to vote on the grounds that "because they were residents of a college campus" and therefore, "could not under any circumstances be permanent residents within the meaning of The [New York] [E]lection [L]aw" was constitutionally invalid. In addition, the denial was held a violation of state law since the law required the joint action of the two Commissioners to reject an application. Transcript Nov. 4, 1953 hearing at 41.

 In January, 1984, pursuant to conference with the court, it was agreed that active litigation in this case would not proceed pending the disposition of Auerbach v. Kinley then pending in the Northern District of New York. On October 10, 1984, Judge McCurn decided that the case holding § 5-104 of the New York Election Law unconstitutional on its face and as applied. See Auerbach v. Kinley, 594 F. Supp. 1503, 1507-10 (N.D.N.Y. 1984). That portion of Judge McCurn's opinion holding § 5-104 to be facially unconstitutional was taken to the Second Circuit. On June 11, 1985, the Second Circuit reversed Judge McCurn holding the statute constitutional on its face. See Auerbach v. Rettaliata, 765 F.2d 350, 355 (2d Cir. 1985).

 That determination generated activity in this case. On September 16, 1985, Commissioner D'Apice moved by order to show cause to vacate the preliminary injunction entered in this case on November 4, 1983, and pending hearing sought a temporary restraining order modifying the 1983 decree. After a hearing on September 18, 1983, the application for a temporary restraining order was denied, and the motion to vacate the injunction was set down for hearing on october 3. At a conference on October 3, the matter was set down for an evidentiary hearing on October 17 and 18.

 At that hearing both Commissioner Oldi and Commissioner D'Apice testified, and a deposition was taken of Thomas Zolezzi, counsel to the New York State Board of Elections, pursuant to agreement among counsel that Mr. Zolezzi's deposition was to be treated as testimonial evidence and as though the witness had testified at the October 17-18 hearing.

 At the time of the events in September and October 1983, which precipitated this litigation, Commissioner D'Apice had been Commissioner for about a year, and had been affiliated with the Westchester County Board of Elections for about 14 years. Commissioner Oldi had held her position since 1982 and had been on the Board as Deputy Commissioner since 1974.

 The September 28, 1983 letter rejecting the applications was, according to Commissioner D'Apice, sent out as Board policy. She did not know how long the policy had been in effect and was not a party to the creation of this policy, nor could she recall having a conversation with any former commissioner advising her that such was Board policy. She had never seen a written memorandum memorializing the views expressed in the September 28, 1983 letter as Board policy. She stated that in her view under the state election law a dormitory cannot be a permanent address. She rejected student applicants who gave a campus building or a post office box number as an address. In September/October, 1983, when Commissioner Oldi refused to sign any rejection letters after the first 101 rejections, Commissioner D'Apice rejected student applications over her signature alone. It is her contention that New York Election Laws § 1-104-22 which provides that "'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: requires her to reject the registration of college students who give campus dormitories as their evidence. She testified that she believed she had the authority to administer a questionnaire (Plaintiffs' Exhibit. 2) unilaterally.

 Commissioner Oldi, after signing the form letter rejecting the first 101 applicants, had a change of mind over the weekend. She took the view that students should not be rejected because they gave a campus address, and she continues to differ from her colleague in that regard. Her predecessor, Commissioner McNamara, permitted a student to register from a college address; she was not aware of any Board policy regarding student enrollment being in effect prior to the events of September/October, 1983 or of any Board policy on this issue at any time. She interprets the law as barring the use of a post office box as a residence for registration for voting purposes.

 Apparently because of the injunction issued in this case, the number of students registered to vote on the SUNY-Purchase campus has grown so large that the campus has now been divided into two elections districts.

 Thomas P. Zolezzi testified that his interpretation of the New York Election Law which he communicated to the various boards of elections was that "it would take the consent of both Commissioners to reject the registration" of an applicant when the application form is received (Zolezzi at 4-5). he relies on § 3-212(2) of the New York Election Law which requires "any action by a board must be by a majority of that board." Zolezzi at 5. He also relies on § 5-210(6)(8) for that view. He further testified that if both Commissioners agreed to send out a particular questionnaire to ...

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