John Williams, Neal Rosenstein, Ursula Abrams, Marianne Morris, Dominick Pesola, Paul Sedita, Noah Kaufman, Margaret O'hanlon, Jennifer Williams, Carla Rice, Sabrina Marshal, Dinah Fieske, Jill Nagle, Lauren Supraner, Jeff Hettinger, on Behalf of Themselves and Other Persons Similarly Situated v. 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, Antonia D'apice, Marion Oldi

Citations: 792 F.2d 323; 1986 U.S. App. LEXIS 26067Docket: 822

Court: Court of Appeals for the Second Circuit; June 10, 1986; Federal Appellate Court

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Two commissioners of the Westchester County Board of Elections, Marion Oldi (Democrat) and Antonia D'Apice (Republican), faced a significant influx of approximately 450 voter registration applications from students at the State University of New York at Purchase in September 1983. Most applicants intended to register as Democrats. In response, both commissioners initially agreed to send a denial letter to the applicants, citing a lack of residential qualifications under New York Election Law, which defines residence as a fixed, permanent home. They argued that college dorms do not meet this definition, suggesting that students should register and vote from their home communities, a position supported by a prior case.

However, after signing around 100 denial letters, Commissioner Oldi reconsidered her stance over the weekend, influenced by personal reflection rather than discussions with Democratic officials. She did consult her attorney, Arthur H. Goodman, who later ran as the Democratic candidate for Westchester County Executive. This change in position led to a legal intervention by the federal judiciary, resulting in an injunction from the District Court for the Southern District of New York just before the 1985 general election, prompting Commissioner D'Apice to appeal the decision.

Commissioner Oldi ceased signing copies of a September 28 letter, stating her belief that students should be allowed to register. In response, Commissioner D'Apice continued to distribute the letter, but no students were registered. A group of SUNY-Purchase students filed a lawsuit in the Northern District of New York, claiming their exclusion from registration violated the U.S. Constitution and New York election law. They sought a preliminary injunction, which Judge McCurn initially deemed improperly filed and transferred to the Southern District. Judge Carter subsequently granted the injunction, preventing the Westchester Board of Elections from denying student registration based on residence grounds.

Litigation halted while awaiting the decision in Auerbach v. Rettaliata, which upheld the constitutionality of section 5-104 of New York Election Law but suggested that improper administration could lead to unconstitutional practices. Following this ruling, on September 16, 1985, Commissioner D'Apice sought to vacate the injunction, arguing that Auerbach's conclusion undermined its basis. A temporary restraining order request was denied, and a hearing on the motion to vacate took place on October 17, 1985, by which time over 1,000 students were registered.

On October 28, 1985, Judge Carter denied the motion to vacate the injunction and issued an order that: (1) prohibited the Board from denying student registration based on dormitory residency; (2) affirmed that students applying in a timely manner were entitled to register and vote in their college community for the upcoming general election; and (3) mandated that no inquiries regarding student residency for registration could be conducted unless agreed upon by both commissioners. Commissioner D'Apice is appealing this order.

The standard for issuing a preliminary injunction in this circuit requires demonstrating (a) irreparable harm and (b) either (1) a likelihood of success on the merits or (2) a sufficiently serious question regarding the merits that justifies litigation, with a balance of hardships favoring the party seeking the relief. The review centers on whether the district court abused its discretion in applying this standard. Irreparable harm to the registration applicants, if their voting rights are restricted, was uncontested by Commissioner D'Apice, indicating that the injunction was appropriately issued if the second part of the standard was met.

The injunction prohibits the Board from rejecting student voter registration applications solely based on the argument that a campus dormitory does not qualify as a fixed residence. New York law permits residency requirements for voting, defining "residence" as the place where a person maintains a principal home and intends to return. This definition is constitutionally valid when interpreted inclusively and not literally. The New York Court of Appeals aligns the definition of "residence" with traditional domicile criteria, indicating that "permanent" necessitates only physical presence and intent to remain temporarily.

Moreover, if the state can enforce residency among voters, it is justified in setting criteria to verify the residency of registration applicants. New York Election Law Section 5-104 outlines that individuals do not lose or gain residency during certain absences, including those related to military service, navigation, student status, welfare institutions, or confinement in public prisons.

In assessing a voter's qualifications for registration, the relevant board must consider the applicant's expressed intent alongside their conduct and surrounding circumstances. Factors for evaluation include financial independence, employment, income sources, residence for tax purposes, age, marital status, and property ownership, among others. The board's decision serves as presumptive evidence of a person's voting residence. Section 5-104 of New York Election Law is constitutionally valid for determining residency but does not inherently discriminate against student applicants; rather, it allows for additional inquiry to establish residency without imposing a different standard than for other registrants. However, the law must be applied in accordance with constitutional protections, and local boards cannot impose discriminatory practices.

In this context, a letter from the Westchester County Board of Elections denying voter registration to student applicants on the grounds that a college dorm is not a fixed residence violates both New York law and the equal protection clause. The letter incorrectly imposed a new residency requirement that contradicts existing legal standards. Establishing a per se rule against dormitory residency misinterprets the statutory definition of residence, which requires a physical presence and intent to remain. Thus, the board's actions could lead to judicial intervention to prevent discriminatory practices in voter registration.

Students residing in dormitories can abandon their former residence with the intent to establish residency in the community where they attend school, which is relevant for voting purposes. The term "permanent" in Sec. 1-104(22) should not be interpreted so strictly as to exclude student residency. An irrebuttable presumption against student residency, as suggested in a Board letter stating that college dorms cannot be deemed a fixed home, would disenfranchise students who seek to become domiciles in New York. The Board cannot create such a presumption. While the Board can inquire into a student's true residence, it must apply the same substantive standards to student applicants as it does to other applicants. The district court did not abuse its discretion in ordering the Board to comply with relevant case law and constitutional requirements regarding student residency. Additionally, any student who submits a timely and complete registration application must be allowed to register unless there is a unanimous decision by the Board's two commissioners against it. The court found no established policy for rejecting student applications, and even if one existed, it would be unconstitutional. Therefore, the Board is mandated to accept all substantially complete applications unless both commissioners concur otherwise.

The injunction prohibits the use of any additional questionnaires or inquiries not authorized by both Commissioners Oldi and D'Apice. While New York law permits election boards to conduct further inquiries regarding specific demographics, it does not mandate them to do so. Such additional inquiries require a majority vote from the board. Judge Carter determined that there is no established policy for additional inquiries regarding student applicants, which is supported by evidence. Therefore, no additional inquiry can be implemented without mutual agreement from both commissioners. Testimony indicated that Commissioner D'Apice is in favor of a supplemental inquiry for dormitory residents at SUNY-Purchase, while Commissioner Oldi opposes any inquiries beyond the standard application. The injunction prevents the automatic rejection of student applicants but highlights the inability to compel public officials to administer their duties equitably. It is criticized that the two commissioners have reached an impasse instead of collaborating to ensure election integrity. The plaintiffs demonstrated a likelihood of irreparable harm without preliminary relief and a strong chance of success on the merits, leading to the affirmation of the district court's order.