November 3, 2008

A New York appeals court holds that New Yorkers who have more than one home have the right to make their country home their voting address, even if it's not their primary residence.

As reported widely in the press, including the November 2 edition of The New York Times and the front page of the October 30 New York Law Journal, a New York appeals court has held that New Yorkers who have more than one home have the right to make their country home their voting address, even if it's not their primary residence.

At issue were the voting rights of eight politically-active long-time residents of the small upstate town of Bovina, all of whom currently or formerly also lived and worked in New York City. A local political opponent had challenged their Bovina voter registrations based on nothing more than the admitted fact that they were not full-time Bovina residents.

When the Delaware County Board of Elections cancelled their registrations, the eight voters contacted the New York Democratic Lawyers Council, which referred them to Willkie, and the firm agreed to take the case on a pro bono basis because of the importance of the issues involved. After a lower court ordered the voters reinstated last year, the Board appealed.

The Appellate Division, Third Department has now affirmed the lower court's decision on the merits, and on October 23 issued a factually-rich opinion that provides real clarity and comfort to New York dual residents who wish to participate in their upstate political communities. The Court's finding that the voters' addresses were legitimate did not rest solely on fragments of evidence like the address on their driver's licenses, but focused on the totality of the voters' ties and long-term contacts with Bovina, which demonstrated "their true desire to become part of the Bovina community," and negated any claim that their addresses were a sham.

Even though the voters used their Bovina homes mostly on weekends and vacations, they had the right to vote in Bovina because they had renounced the right to vote elsewhere, manifested an intent to reside long-term in Bovina, and maintained a legitimate and significant physical presence there. The decision clarifies the muddied case law that evidently led the elections commissioners astray, and will likely smooth the way forward for other second homeowners who make the same choice about where their vote counts most.

The matter was handled by partners Bruce Kraus and Richard Mancino, and associate Daniel Burstein. Mr. Kraus told The New York Times that in its decision the Court essentially said, "your home is where your heart is." The New York Law Journal, which also published the decision in full, wrote that Mr. Kraus explained that "while case law in this area has been fairly well-settled, he discovered that many dual property owners - including some attorneys - thought they were limited to voting where their ‘principal’ residence is, and did not know they could register and vote instead in communities where they have second homes." The case has also been the subject of news stories and editorials in several upstate New York periodicals.


Click here for a link to November 2 New York Times article.

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