Court overturns Cochecton voter ruling; Co-op owners had right to vote

Posted 9/30/09

ALBANY, NY — The New York State Appellate Court has overturned a Supreme Court order and handed a victory to a group of second homeowners in Lake Huntington, saying that they did have a right to …

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Court overturns Cochecton voter ruling; Co-op owners had right to vote

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ALBANY, NY — The New York State Appellate Court has overturned a Supreme Court order and handed a victory to a group of second homeowners in Lake Huntington, saying that they did have a right to vote in the election in November 2013.

The election resulted in a win for councilperson Ed Grund, who won the ballot by eight votes. Sixteen votes from the second homeowners were unopened because of the earlier ruling. Those votes will likely now be counted, and the result could mean that Dr. Paul Salzburg, who ran against Grund, will become the new councilperson.

In its opinion and order, handed down on May 21, the court wrote that the fact that the homes in the co-op were closed during the winter did not make them ineligible to serve as residences as related to voting. The court wrote, “While the water supply is shut off until the resumption of operations the following year, the homes remain accessible year-round. All of the Lake Huntington voters own or occupy another residence outside of Sullivan County, yet they each return to their Lake Huntington homes every year for extended stays from the spring through the fall.”

Gary Maas, supervisor of the Town of Cochecton, who challenged the voters, said he was disappointed in the opinion, and he specifically questioned how a property without year-round water could be considered a fixed, permanent address.

In explaining why the co-op owners should be allowed to vote, the court further wrote, “Each pays his or her proportionate share of local property and school taxes, as well as water and sewer fees. While none of the Lake Huntington voters has ever obtained employment within the town, enrolled children in the town’s schools or utilized their Lake Huntington address on his or her driver’s license, vehicle registrations or tax returns, and all were previously registered to vote outside of Sullivan County, the evidence presented at the hearing makes clear that ‘their ties to [the town] were not a sham for voting purposes, but genuine, long-term contacts created out of a true desire to become part of the [Lake Huntington] community.’”

In the initial trial in December 2013, Judge Stephan Schick said to the lawyer representing the co-op owners that he was concerned that they were “manipulating the system.” He said, “I’m concerned that this argument gives them more rights than other citizens have.”

In this case, at least one of the voters in question had decided to change his voting residence from his home outside of the area to the co-op in Cochecton because he wanted to vote for the candidate who would oppose hydraulic fracturing.

But the appellate court wrote, “The fact that one’s position on a specific political issue may serve as a motivating factor to register to vote in a place where he or she has established a bona fide residence does not render such residence a ‘sham.’”

Further, the court wrote, “On these facts, and absent an indication in the record that any of the Lake Huntington voters have attempted to ‘create an address solely for the purpose of circumventing residency requirements’… we conclude that their Lake Huntington residences are, in fact, legitimate ones for voting purposes. Accordingly, Supreme Court erred in declaring the Lake Huntington voters’ absentee ballots invalid and directing that their names be stricken from the registry of voters.”

Attorney Gail Rubenfeld, who argued the case for the Cochecton voters, issued a statement that said she was pleased with the opinion and she wrote in part, “Local courts should be guided in the future by the Appellate Division’s restatement of the law that was set forth in 2001 in the Court of Appeals decision in People v. O’Hara: “the inquiry is not which of [the Lake Huntington voters’] dual residences is ‘the more appropriate one’ for voting purposes, but whether the residence held by [them] is a legitimate one.”

The Appellate Court sent the case back to the Supreme Court for further action.

See related editorial.

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