126 Misc. 2d 458 | N.Y. Sup. Ct. | 1984
OPINION OF THE COURT
While sitting in a Special Term for Election Matters,
In spite of the unprecedented campaign by both parties and numerous politicians (e.g., Jackson, Cuomo) to register more people than ever before, in the hope that this would induce eligible voters to participate in the presidential election, a smaller percentage voted on November 6, 1984 than in 1980 (50.6% versus 51.4%). When 49.4% of the electorate fail to participate in the electoral process, it is incumbent on a Judge sitting on Election Day to review carefully every petition for a court order requesting permission to vote after the voter was
Olivia Haub, a resident of Queens County who was over 18 years of age, became a naturalized citizen on October 30, 1984, and was eager to exercise her right to vote on Election Day, November 6, 1984. However, she had been unable to register to vote because she was not a citizen on the final day for local registration of voters, October 13, 1984, and when she tried to register after her naturalization, she was informed it was too late. Nevertheless, on Election Day, she appeared at the polls in her election district and demanded the right to vote. When she was refused, she enlisted the services of an attorney who prepared a verified petition in support of a proposed court order, directing the inspectors of election in her election district to permit her to register and vote.
Is the court empowered to issue an order permitting a person to vote who became a naturalized citizen after the final day for registration?
At one time, in order to vote a naturalized citizen had to be naturalized “at least ninety days prior to the day of election.”
In the years that followed, most of the other limitations placed on the exercise of the right to vote in the State of New York have either been removed by the Legislature or struck down by the courts. (See, e.g., Matter of Atkin v Onondaga County. Bd. of Elections, 30 NY2d 401; Manhattan State Citizens’ Group v Bass, 524 F Supp 1270; Bishop v Lomenzo, 350 F Supp 576.) Under present New York law, a person is qualified to register for and vote at a presidential election if he or she “is a citizen of the United States and is or will be, on the day of such election, eighteen years of age or over”. (Election Law, § 5-102, subd 1.) Therefore, Olivia Haub had the necessary qualifications and would have been entitled to vote in the presidential election on November 6, 1984, if she were registered.
The'Election Law of this State provides a mechanism whereby a qualified voter who is not registered can be permitted to vote. Section 5-100 of the Election Law states that: “A person shall not be .entitled to vote in any election held pursuant to this chapter unless he shall be registered, and if required, enrolled * * * unless he shall present a court order directing that he be permitted to vote at such election” (emphasis added). One would believe, at first blush, that this discretion given to the court
However, section 8-302 of the Election Law provides that a voter for whom no registration poll record can be found on Election Day shall be permitted to vote provided he presents a court order and subdivision 3 of section 16-108 of the Election Law authorizes a Supreme Court Justice to issue an order directing the inspectors to allow a person to vote and, where necessary, directing the board of elections to complete the voter’s registration and enrollment records. A liberal interpretation (and anything less would not do justice to the spirit embodied in this fundamental right of citizenship) of these coordinate sections belies the strict limitation of the use of this judicial authority to situations where the voter claims to satisfy the basic requirements of age, citizenship and registration.
The Appellate Division, Second Department, in 1918 concluded that “Registration does not qualify the voter. It ascertains the place where the vote may be cast and the right of the person to cast it in such place.” (Matter of Curtin v Denton, 183 App Div 312, 314-315.) In 1890, the Court of Appeals, in a unanimous decision, described registration as follows: “Registration is the method of proof prescribed for ascertaining the electors who are qualified to cast votes and the registers are the lists of such electors. It is a part of the machinery of elections and is a reasonable regulation, which conduces to their orderly conduct and fairness. It is one safeguard against frauds; for it is a means for furnishing all the electors of the district with the knowledge of what persons will claim the right of voting, a sufficient time in advance of the election for them to act upon it, if necessary.” (People ex rel. Stapleton v Bell, 119 NY 175, 181-182.) Earlier in that decision, the court observed that “[t]he right of suffrage is one of the most valuable and sacred rights which the Constitution has conferred upon the citizen of the state” (p 178) and “it would be a far greater menace to the security of this constitutional right, if the law regulating its exercise might prevent the vote of a citizen, duly qualified to cast it, from being received and counted, than that some fraud might be practiced by a false personation” (p 179).
Many naturalized citizens adopt this country as their own because of the political freedom it affords them and “foremost among all political rights [is] the. right to vote.” (Matter of Palla v Suffolk County Bd. of Elections, 31 NY2d 36, 50.) Every effort should be made to insure that such a citizen is not deprived of this right, especially in a presidential election. It is this sense of obligation to our newly naturalized citizens that impelled this court to sign the order permitting Olivia Haub to vote on November 6, 1984.
. In the Eleventh Judicial District (Queens County) four Justices were assigned to sit at the central board of elections on West Street in Long Island City from 7:00 a.m. to 9:00 p.m. (one hour after polls open until the polls close).
. The usual complaint is that the lever “jumped back” before the voter had a chance to vote or the voter is honest enough to admit that he (or she) neglected to take their hand off the lever. As a result, once the lever is returned to its original position, the machine locks and can only be released again by an inspector who stands outside the voting booth. In all these instances, the inspectors refuse to let the voter cast a “fresh ballot” without a court order.
. Election Law of 1949, § 150, as added by L 1949, ch 100; NY Const, art II, § 1, before 1966 amd.
. Election Law of 1949, § 150, as amd by L 1967, ch 809, § 2; NY Const, art II, § 1, as amd 1966.