Judge Stephan Schick handed down a split decision in the case of second home voters in the Town of Cochecton who voted in the November election.
The judge ruled from the bench on December 18 that the five voters, who own and, in the warmer months, live in the property on Fred White Road, are eligible to vote, but the 17 summer residents who own and, in the warmer months, live in the co-ops in Lake Huntington Summer Community are not eligible to vote.
One of the owners of the property on Fred White Road described that residence as a mansion with outbuildings that was owned jointly by three separate families. The resident, Tibor Feldman, said the families had owned the place for 42 years and had significant ties to the community in various ways.
One of the residents of a co-op in the Lake Huntington Summer Community, Peter Glick, said he had owned his co-op since 1981 and also had many ties to the community.
The judge was clearly concerned that some of the second-home voters might be “manipulating” the system.
During closing arguments given by Kirk Orseck, who was defending the right of the second homeowners to vote in the town, Schick interrupted. Referring to an appellate level decision, which said that in some cases second-home owners do have a right to decide which location to vote in, Schick said to Orseck, “You may have shown that all the voters are residents of the community, that they intend to return to the community, that they have significant ties to the community, but do they have the right to change where they vote?”
He continued, “Aren’t they possibly manipulating the system, that’s why I talk about the aura of sham. Isn’t that manipulation? I’ll call it an aura of manipulation. I’m concerned that this argument gives them more rights than other citizens have.”
Both men testified that they changed their voting place to Cochecton twice. Feldman testified that he first changed his voter registration to Cochecton when the former town supervisor Sal Indelicato was running for his first term as supervisor and asked Feldman to change his registration to help elect Indelicato to office. Feldman said that he subsequently switched his registration back to New York City until this most recent election when the gas issue and other issues began heating up.
The following information comes from a website called countryvote.org, which is affiliated with New York Democratic Lawyers Council.
The New York Election Law requires that the voter be a “resident” of the state and of the county, city, or village in question for a minimum of 30 days preceding the election in question, and defines “residence” 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.
§§ 5-102 and 1-104(22); see also N.Y.S. Board of Elections.
The federal courts have held this definition to be “constitutionally permissible so long as the word ‘he’ is read to include both men and women and the word ‘permanent’ is not read in its literal sense.” Williams v. Salerno, 792 F.2d 323, 328 (2d Cir 1986).
In determining a voter’s qualification to register and vote, the statute charges the county boards of elections to consider the applicant’s expressed intent, conduct, and “all attendant surrounding circumstances” including the leaseholds or ownership of property, motor vehicle and other personal property registration, residence for income tax purposes, and residence of parents, spouse and children. N.Y. Election Law § 5-104.
Dual Resident Voting Rights
The key case from New York State’s highest court is Ferguson v. McNab, 60 N.Y.2d 598 (N.Y. 1983), which held that a person having two residences “may choose one to which she has legitimate, significant and continuing attachments as her residence for purposes of the Election Law.”
A more recent appellate case, Willkie v. Board of Elections, 55 A.D.3d 1088, 865 N.Y.S.2d 739 (2008) held that this principle protects typical weekender/second homeowners who work in New York City and choose to register and vote from their country homes. See also Fingar v. Martin, 68 A.D.3d 1435, 892 N.Y.S.2d 235 (2009).
Lower courts in New York had previously come out the same way on this question:
Gallagher v. Dinkins, 343 N.Y.S.2d 960 (App. Div. 1973) (holding that where an individual has two residences where he maintains significant and legitimate attachments, it is for him to decide which address he considers as his voting address), aff’d, 299 N.E.2d 681 (N.Y. 1973);
Bressler v. Holt-Harris, 330 N.Y.S.2d 565 (App. Div. 1971) (holding that a candidate established voting residence in an apartment where he had eaten and slept only once in seven years);
Gladwin v. Power, 249 N.Y.S.2d 980 (App. Div. 1964) (holding that candidate established residence in a space she used as an office and “for occasional living”).
Ferguson v. McNab is a binding precedent, and has therefore been followed consistently thereafter:
Geller v. Lasher, 601 N.Y.S.2d 342, 343 (App. Div. 2d Dept. 1993) (upholding residence where candidate and his wife have “intermittently lived at that address”);
Umland v. Board of Elections of City of New York, 532 N.Y.S.2d 30, 31-32 (App. Div. 2d Dept. 1988) (upholding residence where challenged voter testified that “since her marriage, she has lived at the 64th Street address for intermittent periods, as warranted by family needs including health problems, child care and financial pressures.”).
Criminal penalty for using “sham” address as voting address—see People v. O’Hara, 94 N.Y.2d 378 (N.Y. 2001) (affirming conviction where jury found that person took up residence at a location for the sole purpose of voting in that district).