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COX v. COMMISSIONERS OF ELECTION OF DELAWARE CTY.

October 1, 1995

CHRISTINE COX and DAVID T. COX, Plaintiffs
v.
COMMISSIONERS OF ELECTION OF DELAWARE COUNTY (New York) and DELAWARE COUNTY BOARD OF ELECTIONS, Defendants.



The opinion of the court was delivered by: MCAVOY

 On September 5, 1995, at Christine and David Cox's request, this Court issued an order to show cause against the Commissioners of Elections of Delaware County and the Delaware County Board of Elections. The order required them to show cause why the Court should not enter a preliminary injunction against them, or, in the alternative, why this Court should deny plaintiffs' motion for summary judgment. Plaintiffs' complaint alleged that defendants had cancelled their voter registrations in violation of the Due Process Clause of the Fourteenth Amendment. Defendants responded to the order to show cause and now move for dismissal of plaintiffs' claim pursuant to Fed. R. Civ. Pro. 12(b)(6) or Fed. R. Civ. Pro. 56.

 I. Background

 On October 13, 1994, defendants notified the Coxes that their voters' registration had been challenged by an affidavit alleging that they did not reside in Delaware County. The letter informed the Coxes that they had fourteen days to supply defendants with reasons why their registrations should not be cancelled, and that they could supply such reasons in an appearance before defendants or in writing.

 Within the prescribed time, the Coxes supplied defendants with written reasons for maintaining their registrations, as well as supporting documents. In a letter to the Coxes dated January 9, 1995, defendants notified them of defendants' decision to cancel their registrations "upon review of a report from the Delaware County Sheriff's Office and a "'discussion'" with a town constable. Ps' Compl. P 9. Plaintiffs allege that they phoned defendants four times, beginning on January 21, to request a meeting with defendants for the purpose of reviewing their residency determination, but that defendants failed to respond. On January 30, defendants sent another letter to the Coxes, informing them that their fourteen days for demanding a reconsideration of defendants' determination had expired. Ps' Ex. 4. Defendants allegedly "refused to supply" the Coxes with copies of any of the reports that formed the basis of their decision. Ps' Compl. P 11.

 Plaintiffs argue that defendants denied them of their procedural due process rights by cancelling their registrations "on the basis of undisclosed hearsay allegations, without affording them an opportunity to respond thereto." Ps' Memo. 7. They challenge only the constitutionality of defendants' procedures, not the constitutionality of the New York Election law pursuant to which defendants are obligated to act.

 Because defendants cancelled the Coxes' voters' registrations, the Coxes were allegedly unable to vote in a Delaware County election. Plaintiffs assert that unless defendants reinstate their voter registrations immediately, they will lose their right to vote on an October 11 school district referendum and in the November 7 local elections.

 II. DISCUSSION

 A. Legal Standard

 Defendants move pursuant to Fed. R. Civ. Pro 12(b)(6) to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted. For purposes of the 12(b)(6) motion, the Court construes the complaint in the light most favorable to plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The Court will only grant the motion "if it appears beyond doubt that [plaintiffs] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 B. School District Referendum

 As defendants correctly point out, their cancellation of plaintiffs' voter registrations has no legal effect on plaintiffs' eligibility to vote in Roxbury Central School District elections. Section 2012 of New York's Education Law furnishes the requirements for voting in school district elections: one must be a citizen of the United States, at least eighteen years old, a resident of the school district for at least thirty days before the election, and "qualified to register for or vote at an election in accordance with the provisions of section 5-106 of the election law."

 Election Law § 5-106 provides six grounds for disqualification, none of which concern residency. Therefore, defendants' determination that plaintiffs are not residents of Delaware County and their subsequent cancellation of plaintiffs' voter registrations has no legal effect on plaintiffs' right to vote on the October 11 school district referendum. If the plaintiffs have a valid complaint against Roxbury School District, they should take it up with that body; they have no cause of action ...


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