MORE ON WHERE TO VOTE – December 2007

By Judy Garrison

As a follow-up to the November article in which we explored the issue of where second homeowners can register to vote, I want to report on the October 30, 2007 ruling  in the case of the Bovina voters.

To summarize the background, The Delaware County Board of Election commissioners removed 8 people from the Bovina rolls earlier this year after an investigation by the county Sheriff’s Department.  The 8 subsequently brought suit, seeking to be re-enrolled as voters in Bovina.

In the five-page decision, New York Supreme Court Justice Kevin M. Dowd asserted that it was clear that all 8 voters expressed an intent to vote in Bovina, had renounced their right to vote elsewhere, and that they all have “legitimate, significant and continuing attachments to their voting residence of choice.”  Dowd also directed the Delaware County Board of Elections to apply the same standard in future determinations of voting residence for dual residents in connection with registration applications and any challenges to registration.  It is so far unclear whether the County Commissioners are contemplating an appeal.

How did the Board of Elections personnel reach their decision to expunge the Bovina voters from the rolls?  To quote Justice Dowd in his written decision:  “It appears that the Delaware County Board of Elections relied on certain wording found in a pamphlet put out by the State Board of Elections.    This wording was utilized by them in their decision striking petitioners from the voting rolls.  Their decision was wrong.  New York’s Election Law requires that a voter be a resident of New York and of the county, city or village for a minimum of thirty days preceding such election.  Under the Election law, residence is defined as ‘that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.’”   In addition, Dowd states, “Once the determination is made that the address given is a real one and not merely a phony address put forth to facilitate improper voting then the voter’s choice will control.”  He goes on to cite case law, notably Ferguson v. McNab, in which the Court of Appeals allowed a person to vote out of her residence in Huntington on Long Island even though she only used the Huntington residence twice per week.  The Court found that the petitioner’s attachment was legitimate.  The Court held that a person having two residences “may choose one to which she has a legitimate, significant and continuing attachment as her residence for voting purposes.”~