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NYCLU Writes Board Of Elections About Student Voting Eligibility Questionnaires

November 12, 2003 Commissioners New York City Board of Elections Dear Commissioners: It has come to the attention of the undersigned organizations that the Board of Elections has raised the prospect of requiring student registrants to complete a special questionnaire to determine whether they are eligible to register in the district in which they seek to vote. See enclosed copy of proposed questionnaire. For the reasons outlined below, we believe that this requirement raises serious constitutional concerns and, if implemented as planned, will unlawfully deprive these students of their right to vote. We urge you to avoid the use of this questionnaire, particularly in its present form, and caution you that its use would likely result in litigation to protect these registrants. As you know, it is well settled that election officials cannot deny individuals the right to vote as residents of a college community merely because the individuals are students or because they live in dormitories or other forms of student housing. Williams v. Salerno, 792 F.2d 323, 328 (2nd Cir. 1986). No presumption against student claims of residency can be erected by election officials, moreover, and the same substantive standard for determining voting residency must be applied to students and non-students alike. Auerbach v. Rettaliata, 765 F.2d 350 (2nd Cir. 1985). Indeed, the “only constitutionally permissible test” for voting residence “is one which focuses on the individual’s present intention and does not require [the person seeking to vote] to pledge allegiance for an indefinite future. The objective is to determine the place which is the center of the individual’s life now, the locus of primary concern.” Ramey v. Rockefeller, 348 F. Supp. 780, 788 (E.D.N.Y. 1972) (emphasis added). In other words, students have the right to register in the place where their lives are centered at the time they apply to register. If the proper legal standard for determining voting residence were fairly applied by election officials, therefore, most college students seeking to vote as residents of their college communities would be permitted to do so. This conclusion rests upon the fact that most students live principally in their college communities and their lives are centered in those communities. They eat, sleep and carry out the daily activities of their lives in those communities; they are often deeply involved in part-time employment, vocational pursuits and community activities within the college community; and they are far more affected by the acts and omissions of local officials in their college community than they are by the acts of local officials in some distant parental community in which they are no longer living on a full-time basis. In short, the student’s college community is, by any reasonable measure, “the center of the individual’s life now, the locus of primary concern.” Unfortunately, the proposed questionnaire seeks information that is only tangentially related to where a student’s present place of primary concern is and, in fact, appears designed to produce a basis – though an unlawful and improper one – to reject a student’s application. To begin, nowhere does the questionnaire state the proper standard (i.e., that enunciated in Ramey v. Rockefeller) or provide the student an opportunity to address the core question: Is the center of your life and daily activities currently the community in which you seek to vote? The answer to this question, if asked, would in most cases be both affirmative and dispositive. Instead of asking this dispositive question, however, the questionnaire asks a series of questions that will likely produce answers that point to the student’s original, parental community rather than her current college community despite the fact that such answers may be largely irrelevant to the proper standard. For example:

  • The questionnaire asks where the student resides during the summer – only one fourth of the student’s year – which many students will answer with a community outside their college community. It is beyond cavil that a three-month absence from a place of residence does not in any way undermine a voter’s right to vote where they live three-fourths of the year.
  • The questionnaire asks where the student’s “principal residence” is, a question that for a student is likely to be ambiguous. If she interprets it to mean the home in which she has grown up and where her nuclear family resides, then she may feel that she should answer with her original, parental community even though it is her college community that is, presently and without question, her “locus of primary concern” and the “center” of her life.
  • The questionnaire asks the address where the student’s spouse resides and the address that is used on the student’s tax returns and driver’s license. All three of these questions are likely to elicit answers that may include the student’s parental or other community rather than the college community that remains, despite these answers, indisputably “the center of the [student’s] life now” and “locus of primary concern.” Summer employment, spouses traveling abroad or in school in another community temporarily, or an old driver’s license that still lists the student’s parental home all may point to communities other than the student’s present college address. Still, they would not be as relevant to determining the center of that student’s life as would the response to other, more properly targeted questions.

In short, five out of the six questions on the proposed questionnaire are likely to lead elections officials to conclude erroneously that a student is ineligible to register as residents of their college communities. Indeed, the questionnaire fails to inquire about several factors that are listed in the relevant election law provision and, if answered, would likely point toward the student’s eligibility to register in his or her college community. See N.Y. Elec. L. § 5-104(2) (noting that the board of elections may consider a student’s employment, income sources, age, among other factors). For this reason, even if it were appropriate to use a questionnaire of some kind, the proposed questionnaire is patently misleading and, in our view, an unconstitutional burden upon students’ right to vote. While we acknowledge that the Second Circuit has approved the use of student questionnaires in certain circumstances, we urge you to forego their use altogether for several reasons beyond simply the obvious constitutional flaws of the proposed document discussed already. First, college students, like all individuals, are presumptively entitled to register and vote in New York City unless election officials have a reason to believe that such individuals are not bona fide residents. The key question for elections officials – whether this is “the center of the [student’s] life now” – is, in the end, answered sufficiently by the student’s signature on the registration form, under oath and express threat of criminal penalties, affirming that she “meet[s] all the requirements to register to vote in New York State” and “will have lived in the county, city, or village for at least 30 days before the election.” Moreover, such questionnaires serve as vehicles of disenfranchisement in several ways. Any additional step in the registration process inevitably results in the loss of some potential voters simply because of a failure, by some significant number, to jump through additional procedural hoops. In addition, in the hands of local officials who may be hostile to claims of student residency, these questionnaires have proved in some communities to facilitate and mask mischief in that they have been misused to disenfranchise students. Further, without clear and proper standards and extensive education for elections officials on those standards, the answers to such questionnaires inevitably mislead officials who seek, in good faith, to determine the appropriate residence for the student. For all these reasons, the practice of administering a questionnaire is likely to impose an impermissible burden on the right to vote under present circumstances. We also remind you that any use of a questionnaire would require pre-clearance by the U.S. Department of Justice pursuant to the Voting Rights Act. Accordingly, we strongly urge the Board to avoid approval of any requirement that students complete a special questionnaire as a condition of residence and registration. We remain hopeful of resolving this issue without litigation. To that end, we would be happy to meet with you or your counsel to discuss the issues raised here. Sincerely, Arthur Eisenberg New York Civil Liberties Union Jeremy Creelan and Kele Williams Brennan Center for Justice at NYU School of Law Chris Meyer and Joel Kelsey New York Public Interest Research Group Margaret Fung Asian-American Legal Defense and Education Fund

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