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December 20, 1991


The opinion of the court was delivered by: McCURN, Chief Judge.



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 complaint.


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 [1988] 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 ...

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