Wednesday, November 5, 2008

Wednesday's Weird But True Legal Cases - Vol. XXX

Tonight's weird (but true) case examines a legal challenge to the voter residency rule. This post was inspired by news stories about people who attempted to register to vote in Ohio based on its thirty day residency rule, as well as other stories involving people who attempted (or possibly succeeded) to vote multiple times by registering as students where they went to school as well as in their hometown.

In Wit v. Berman, 306 F.3d 1256 (2d Cir. 2002) individuals who owned homes in New York City and the Hamptons, challenged New York's residency rule, arguing that they should be entitled to vote in local elections in both communities. The plaintiffs maintained homes in NY City for more than forty years, paid income and property taxes to NY City and met the voter registration requirement for NY City. However, the plaintiffs also had homes in the Hamptons and had registered to vote in Suffolk County. Based on these registrations, the plaintiffs were barred from voting in NY City.

In June 2000, the Plaintiffs filed suit challenging the constitutionality of the pertinent provisions of the Election Law and seeking declaratory and injunctive relief permitting them to register to vote in local elections in New York City while maintaining the right to vote in the Hamptons. As noted by the Second Circuit:

The complaint claims that the Election Law, as written and enforced, violates the Equal Protection Clause because it denies appellants the right to register to vote in elections in New York City even though, save for New York defining residency for voting purposes as the location of one's single permanent home-“that place”-they possess the same indicia of residency as those residents of New York City who are deemed qualified to register to vote. The complaint also asserts that the Election Law infringes on appellants' federal constitutional rights to due process of law and intrastate travel as well as their rights under various provisions of the New York Constitution.

Like many (if not all) states, New York has a residency rule for elections. The court explained:

Under New York law, one must be a resident of an electoral district to register as a voter in that district. “Residence” is defined in the Election Law as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” N.Y. Elec. Law § 1-104(22) (emphasis added). Section 17-104 of the Election Law provides that any person who “[r]egisters or attempts to register as an elector in more than one election district for the same election” is guilty of a felony. N.Y. Elec. Law § 17-104(2), (5). Other sections of the Election Law also impose felony penalties on those who knowingly attempt to register “when not qualified” and on those who attempt to vote in an election “more than once.” N.Y. Elec. Law § 17-132(1), (3), (9).

In framing the issue raised by the Plaintiffs, the Second Circuit stated:

An Equal Protection claim must be based on impermissible differential treatment. Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001). The differential treatment alleged here is that, because appellants are otherwise qualified under New York law to register in both New York City and the Hamptons, the provision of the Election Law prohibiting them from registering in two places treats them differently than the qualified voters in the election district in which they are not registered. To put it another way, appellants are not allowed to vote in New York City solely because they are registered in the Hamptons. Were they to give up their registration in the Hamptons, they could register in New York City. Therefore, they argue, they are being treated differently than others qualified to vote in the City.

In affirming the dismissal of the complaint, the Second Circuit explained:

Domicile as a rule may have its philosophical defects, therefore, but it has enormous practical advantages over the alternatives. It almost always insures that a voter has some stake in the electoral outcome in the domiciliary district and almost always does not involve large numbers of disputes over where one may vote. The domicile rule informs would-be voters where they may vote, a vital function that encourages registration and voting. Moreover, it gives voters the notice required for the enforcement of criminal laws against individuals voting in places where they are not eligible. SeeN.Y. Elec. Law § 17-132.

The New York domicile rule also provides substantially workable standards for registrars of voters as to whether would-be voters are or are not entitled to register. The vast majority of voters have a principal residence in which they have lived for thirty days. Were registrars of voters required to apply a more philosophically satisfying rule with multiple individual voting districts based on concepts such as a voter's stake in the outcome or simply the frequent presence of a voter in the district, each election would have the potential for massive disputes over registration and the legitimacy of election results. Legal bright lines will always be under- or over-inclusive, but chaos is hardly preferable.

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