The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiffs, Skidmore College students, commenced this suit
as a class action in October 1988 by order to show cause
seeking a preliminary injunction that would allow them to vote
in the November 1988 election. This court granted the relief
sought. Now, plaintiffs move for summary judgment pursuant to
Fed.R.Civ.P. 56 seeking permanent equitable relief from the
Saratoga County Board of Elections' ("Board") policies and
procedures with regard to students who attempt to register to
vote. In addition, they seek a declaratory judgment that New
York Election Law section 5-104(2) was enacted for a
constitutionally impermissible purpose.
Moreover, plaintiffs seek an order pursuant to Fed.R.Civ.P.
23 modifying the definition of the class of beneficiaries of
the judgment to include "all Skidmore College students who
have applied or will apply to register to vote as residents of
dormitories or other on-campus housing at the college," and an
order that this court will retain jurisdiction for a
reasonable period of time to monitor defendants' compliance
with the equitable relief issued. Finally, plaintiffs seek a
grant of attorney's fees pursuant to 42 U.S.C. § 1988.
Defendants oppose plaintiffs' motion for summary judgment and
in addition cross-move for summary judgment dismissing the
In late September and early October 1988, approximately 113
students living on the Skidmore College campus applied to
register to vote as residents of Saratoga Springs. Each of the
students who attempted to register from an on-campus residence
received a form letter response from the Board. This letter
stated in pertinent part:
We have received your application for
registration by mail, and we do not have your
proper home residence address.
If you will contact our office, either by phone
or mail, we will be happy to forward the
application on to the proper registrar of voters
in your county or state.
See Plaintiffs' Notice of Motion, Exhibit A.
By order to show cause dated October 27, 1988, plaintiffs
moved for preliminary injunctive relief on behalf of the class
of plaintiffs comprised of Skidmore College students that had
applied to register to vote as residents of Saratoga Springs
in the Fall of 1988. On November 2, 1988, this court held a
hearing in connection with this motion. At the conclusion of
this hearing the court certified this action as a class action
and granted plaintiffs the relief requested. See This Court's
Order entered November 3, 1988. One justification for the
court's decision to grant preliminary injunctive relief was the
court's belief that "the obvious implication [of this letter] .
. . is that plaintiff students cannot vote on November 8 
in Saratoga County because they reside in college dormitories."
See Transcript of November 2, 1988, Hearing at 42.
After the court granted this preliminary relief, the parties
commenced discovery that included, inter alia, a set of
depositions taken of the named parties in this action. During
this discovery phase, counsel for the parties informally agreed
that Skidmore College students living in on-campus housing
should be permitted to register to vote as residents of
Saratoga Springs if they chose to do so until this court made a
final determination on the merits of plaintiffs' claims.
In October 1990, plaintiffs moved for summary judgment. In
response, defendants cross-moved for summary judgment.
Defendants argued that their conduct was authorized by New
York Election Law sections 1-104(22) and 5-104(2) which the
Second Circuit had previously upheld as constitutionally
valid. See Auerbach v. Rettaliata, 765 F.2d 350 (2d Cir. 1985).
In part because of defendants' reliance on these statutory
provisions, plaintiffs requested a conference with this court
to discuss whether the court would consider re-examining the
constitutionality of these provisions notwithstanding the
Second Circuit's decision in Auerbach. At a conference held in
December 1990, plaintiffs' counsel argued that Auerbach had not
addressed the claim that section 5-104(2) had been enacted for
the constitutionally impermissible purpose of "fencing out"
students from the franchise for fear of the way they might
vote. Plaintiffs' counsel further argued that the statute
should be invalidated on this ground. Plaintiffs' counsel
requested that both plaintiffs' and defendants' motions for
summary judgment be stayed to permit plaintiffs to move to
amend their complaint to raise the claim that section 5-104(2)
had been enacted for a constitutionally impermissible purpose
and was therefore invalid. This court granted plaintiffs'
request. As a result of this decision, in March 1991 plaintiffs
moved for leave to amend their complaint raising a
constitutional challenge to the validity of the 1971 amendments
to the New York Election Law as they related to the issue of
student voting. This court granted plaintiffs' motion to amend
their complaint in April 1991. Plaintiffs now renew their
motion for summary judgment. Defendants maintain their
opposition to this motion for summary judgment and in addition
renew their cross-motion for summary judgment.
Summary judgment is appropriate when the court is convinced
that there are no genuine issues of material fact and the
movants are entitled to judgment as a matter of law. See Passo
v. United States Postal Serv., 631 F. Supp. 1017, 1022 (S.D.N Y
1986). The mere existence of some alleged factual dispute,
however, will not defeat such a motion. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202, 212 (1986). Rather, Rule 56 of the Federal Rules
of Civil Procedure requires that there be no genuine issue of
material fact. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91
L.Ed.2d at 211 (emphasis in the original). The substantive law
underlying the cause of action will identify which facts are
material; i.e., facts that might affect the outcome of the suit
under the governing law. Id. Nevertheless, it should be
remembered that materiality is only a criterion for
categorizing factual disputes in relation to the legal elements
of the claim and is not a criterion for evaluating the evidence
underlying the disputes. Id.
Moreover, if the dispute about a material fact is genuine,
that is, if the evidence is such that a reasonable jury could
return a verdict for the non-moving parties then summary
judgment is not appropriate. Anderson, 477 U.S. at 248, 106
S.Ct. at 2510, 91 L.Ed.2d at 211-12; see also General Electric
Co. v. New York Dep't of Labor, 936 F.2d 1448, 1452 (2d Cir.
1991). In deciding whether to grant summary judgment, the
court's function is to determine whether there is a genuine
issue for trial not to weigh the evidence and determine the
truth of the matter. Anderson, 477 U.S. at 249, 106 S.Ct. at
2511, 91 L.Ed.2d at 212. Accordingly, the court must leave
credibility determinations, weighing of evidence and drawing of
legitimate inferences from the facts to the jury.
Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at
216. Furthermore, in making its determination, the court must
believe the non-movants' evidence and must draw all justiciable
inferences in their favor. Id. This does not mean, however,
that the non-movants may rest on mere allegations or the
denials of their pleadings. Rather, they must present
affirmative evidence from which a jury might return a verdict
in their favor. Anderson, 477 U.S. at 256, 106 ...