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Siwek v. Mahoney

39 N.Y.2d 159 Court N.Y. Decision date 1976-04-01 English

Delivered by Fuchsberg, J.

Contents

Majority

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In the Matter of Donald J. Siwek, Respondent, v Edward J. Mahoney et al., as Commissioners of Election in the County of Erie, Appellants, and New York State Board of Elections, Intervenor-Appellant.
Argued March 22, 1976;
decided April 1, 1976
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James L. Magavern, County Attorney (Leonard G. Kriss of counsel), for appellants.
I. The court below erred in adopting an overly rigid construction of article II (§ 5) of the State Constitution. (People v Pagnotta, 25 NY2d 333 ; People v Harms, 308 NY 35 ; People v Epton, 19 NY2d 496 , 1017, 390 US 29 , 976; Matter of Van Berkel v Power, 16 NY2d 37 ;
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People v Finkelstein, 9 NY2d 342 ; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293 ; Union Free School Dist. No. 3 v Town of Rye, 256 App Div 456 , 280 NY 469 ; Association for Protection of Adirondacks v MacDonald, 253 NY 234 ; People v Tremaine, 252 NY 27 .) II. The phrase "personal application”, contained in article II (§ 5) of the New York Constitution, does not require physical presence in order to register. (Matter of Steimes, 150 Misc 279 ; Matter of Meyer, 100 Misc 587 .) III. The interpretation of article II (§ 5) employed by the court below is violative of the equal protection clause of the United States Constitution. (Gray v Sanders, 372 US 368 ; Carrington v Rash, 380 US 89 ; Yick Wo v Hopkins, 118 US 356 ; Reynolds v Sims, 377 US 533 ; O’Brien v Skinner, 414 US 524 ; Dunn v Blumstein, 405 US 330 ; Kramer v Union School Dist., 395 US 621 ; Harman v Forssenius, 380 US 528 ; Matter of Fraser v Brown, 203 NY 136 .)
Louis J. Lefkowitz, Attorney-General (Maryann S. Freedman and Ruth Kessler Toch of counsel), for intervenor-appellant.
I. Article II (§ 5) of the New York State Constitution should be liberally construed in the light of the equal protection clause of article I (§11) of the New York State Constitution so as to effectuate the spirit and purpose of the State Constitution to give all eligible citizens opportunity to register and thus to vote. (People ex rel. Williams Eng. & Contr. Co. v Metz, 193 NY 148 ; People v Carroll, 3 NY2d 686 ; People ex rel. Balcom v Mosher, 163 NY 32 ; People ex rel. McClelland v Roberts, 148 NY 360 ; Matter of Markland, 146 App Div 350 , 203 NY 158 ; Matter of O’Brien v Boyle, 219 NY 195 ; Sawyer v Town of Southport, 6 AD2d 553 ; McGovern v City of New York, 234 NY 377 ; People v Tremaine, 252 NY 27 .) II. A liberal construction of article II (§ 5), as required by the State’s equal protection clause, is not precluded because of its legislative history. (Brown v Board of Educ., 347 US 483 ; Harper v Virginia Bd. of Elections, 383 US 663 ; People v Nebbia, 262 NY 259 ; Johnson v City of New York, 274 NY 411 .) III. Matter of Fraser v Brown does not mandate the narrow construction of article II (§ 5), adopted by the court below. (Matter of Fraser v Brown, 203 NY 136 ; Matter of Ruppert v Rees, 212 NY 514 .) IV. The language of article II (§ 5), i.e., "personal application”, standing alone, permits personal voter registration by mail. The construction by the court below of the words is unnecessarily narrow. (People v Pagnotta, 25 NY2d 333 ; Matter of Van Berkel v Power, 16 NY2d
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37 ; People v Bryon, 17 NY2d 64 ; Garcia v Pan Amer. Airways, 183 Misc 258 , 269 App Div 287 , 295 NY 852 , 329 US 741 ; Fenster v Leary, 20 NY2d 309 ; People v Epton, 19 NY2d 496 , 1017, 390 US 29 , 976; People v Finkelstein, 9 NY2d 342 ; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293 , 966.)
Gregory Stamm for respondent.
Section 153 of the New York State Election Law, which provides for the voter registration by mail, is unconstitutional. (Matter of Fraser v Brown, 203 NY 136 .)
Burt Neuborne, Jack Greenberg, Charles Williams, Oscar Garcia-Rivera, Herbert Teitelbaum, Joseph B. Robison and Stephen Jacoby for The New York Civil Liberties Union and others, amici curiae.
I. Petitioner lacks standing to challenge the constitutionality of section 153 of New York’s Election Law. (Marbury v Madison, 1 Cranch [5 US] 137; United States v Richardson, 418 US 166 ; Baker v Carr, 369 US 186 ; Warth v Selden, 422 US 490 ; Boryszewski v Brydges, 37 NY2d 361 .) II. The requirement of a personally verified registration application delivered by mail, rather than in person, fully satisfies the provisions of article II (§ 5). (Matter of Fraser v Brown, 203 NY 136 ; Matter of Ruppert v Rees, 212 NY 514 ; United States v Lee, 106 US 196 .) III. If article II (§ 5) is construed to bar the adoption of convenient voter registration systems in urban areas while permitting convenient registration systems in rural areas, it is in violation both of the equal protection clause of the United States Constitution and the Voting Rights Act. (Matter of Atkin v Onondaga County Bd. of Elections, 30 NY2d 401 ; Citizens for Community Action at Local Level v Ghezzi, 386 F Supp 1 ; Reynolds v Sims, 377 US 533 ; Gray v Sanders, 372 US 368 ; Baker v Carr, 369 US 186 ; Moore v Ogilvie, 394 US 814 ; Socialist Workers Party v Rockefeller, 314 F Supp 984 , 400 US 806 ; O’Brien v Skinner, 414 US 524 ; Kramer v Union School Dist., 395 US 621 .)

We hold that New York State’s recently enacted uniform mail registration statute (Election Law, § 153) is valid.

Plaintiff, a registered voter in Erie County, challenges the validity of the statute under section 5 of article II of our State Constitution. The Supreme Court, Erie County, found the statute to be in contravention of that section. Pursuant to CPLR 5601 (subd [b], par 2), the case is now here on direct

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appeal from the order and judgment of that court. For the reasons which follow, we reverse its determination.

Section 153 of the Election Law (L 1975, ch 166) reads in pertinent part:

"Registration and enrollment and transfer of same upon application filed by mail
"1. In addition to central registration as provided in section three hundred fifty-five of this chapter, any qualified person may apply for registration and enrollment or to transfer his registration and enrollment by mail.”[1]

By the enactment of the statute, the Legislature attempted to deal with New York’s voting deficiencies, including the fact that not more than half of those eligible to vote have actually been exercising their franchise.[2] Indeed, in three counties, voter participation has slipped to such a degree that the State is now subject to the preclearance provisions of the Voting Rights Act of 1965 (US Code, tit 42, § 1973b, as re-enacted Aug. 6, 1975), which applies whenever voter turnout is substandard within its terms (see, also, New York v United States, 419 US 888 ; United Jewish Organizations of Williams-burgh v Wilson, 510 F2d 512 , cert granted 423 US 1025 ). The Legislature, therefore, attempted to encourage voting by adding a simple, State-wide form of mail registration to the personal registration procedures already available (cf. Election Law, § 355).

Petitioner challenges this statute as violative of section 5 of article II of our Constitution. However, it is section 6 of article II, and not section 5, by which section 153 must be tested.

Section 5 of article II was adopted in virtually its present form in 1894.[3] It is directed toward the establishment of a system of annual voter registration, under which each voter may be required to register anew prior to each year’s general election. As a precaution against fraud, it requires all voters living in cities and villages with populations over 5,000 to

1 The statute goes on to detail procedures governing its administration, including guidelines intended to guard against its abuse.

2 (See Kelley, Ayres and Bowen, Registration and Voting; Putting First Things First, 6 American Pol Sci Rev 359.) Data culled from public records is, of course, a proper subject of judicial notice (Trustees of Union Coll, v City of New York, 65 App Div 553 , affd 173 NY 38 ; Richardson, Evidence [10th ed], § 50, p 29).

3 Portions of section 5 of article II which were adopted after 1894, also list specific categories, not relevant here, of absentee voters who are granted exemptions from the requirement for personal registration.

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register "upon personal application only”, while it exempts voters living in smaller, more rural areas from the requirement of registering "in person”. Moreover, it mandates that laws be established for "the registration of voters; which registration shall be completed at least ten days before each election” (emphasis added). (See Problems Relating to Home Rule and Local Government: Documents Prepared for Delegates to the Constitutional Convention of 1938, vol XI, pp 195-200.)

Section 6 of article II, on the other hand, provides for a system of permanent voter registration. Adopted at the Constitutional Convention of 1938, it states:

"§ 6. [Permanent registration]
"The legislature may provide by law for a system or systems of registration whereby upon personal application a voter may be registered and his registration continued so long as he shall remain qualified to vote from the same address, or for such shorter period as the legislature may prescribe.”

Unlike section 5, section 6 was intended by its drafters to be "experimental” and "entirely permissive” (Revised Record, New York State Constitutional Convention of 1938, vol III, pp 2404, 2405). The chairwoman of the Convention’s Committee on Suffrage, which drafted section 6, and its other proponents successfully defeated attempts to put into section 6 a constitutionally mandatory provision requiring State-wide registration. (At pp 2410-2411.) They succeeded in securing the adoption of their preference that the Legislature, not the convention, be empowered to make that decision. (At pp 2397, 2411.) The debates, moreover, are replete with citations to statistics which showed, even in 1938, that registration on an annual basis tended to depress voter participation and show concern as to how voter participation might best be encouraged. (At pp 2396-2414.)

Indeed, in contrast to what the delegates considered the rigid and restrictive approach embodied in the specific provisions of section 5, the entire tenor of their discussion of section 6 indicates a desire to also leave to the Legislature’s later judgment the choice of means by which it might seek to effectuate the expansive purposes of permanent registration. Thus, since section 6 was designed to be permissive in its grant of authority to the Legislature, section 5 was not repealed, but remained operative until rendered dormant by legislative implementation of section 6.

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In fact, the Legislature moved slowly with respect to the powers granted it in section 6. It was not until 1954 that it enacted section 350 of the Election Law, by which it put into effect a system of local option for permanent personal registration. Then, in 1965, it amended section 350 (L 1965, ch 319) to provide a mandatory, State-wide system of permanent registration, under which both urban and rural voters were required to register in person initially and were then permitted to maintain that registration without further effort, so long as they did not change addresses or fail to vote in two successive general elections. In due course, it also repealed the statutory provisions which had governed the annual registration procedures covered by section 5 (Election Law, §§ 156-157-a). The result is that a uniform, permanent personal registration system, in substitution for annual registration, has been in effect throughout the State for nearly 10 years.

In consequence of that exercise by the Legislature of its authority under section 6 of article II of the Constitution to mandate "a system or systems” of permanent registration, section 6 then became fully operative, section 5 became inoperative and the differentiation of treatment between larger and smaller communities disappeared. Thereafter, the requirement for in-person registration under section 350 remained in effect until the Legislature, in the further exercise of its apparent authority under section 6, enacted present section 153 (L 1975, ch 166). By that chapter, mail registration replaced in-person registration.

As with section 350 of the Election Law, section 153 of the Election Law has, by its terms, been made applicable throughout the State. In conformity with the scope of section 6, neither of those statutes set up any geographical distinctions. Accordingly, all voters are accorded equal treatment. And, since all citizens are treated in precisely the same manner, there is no substance to the contention that there has been a denial of equal protection under constitutional limitations.

It now remains only to consider whether that mail registration system is interdicted by the words "personal application” in section 6. We conclude that it is not.

Absent other and countervailing indicia of intent, the words "personal application” in a statute or constitutional provision need not be taken to mean "by physical appearance”. A broader and at least equally tenable interpretation of "personal application” is that the voter must himself perform the

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steps necessary to complete and effect the application. Unlike section 5, where the words "personal application” appear in juxtaposition to the far more compelling phrases "apply in person” and "appear personally” and thus permit no other interpretation than personal, physical presence (cf. Matter of Fraser v Brown, 203 NY 136 , 141), the words "personal application” stand alone in section 6.

In sum, whatever, "personal application” may have meant in section 5, and notwithstanding the fact that sections 5 and 6 were considered together at the Constitutional Convention of 1938, we are not constrained to ascribe to the use of "personal application” in section 6 the inescapable interpretation that applies to section 5. The very language in which the advantages of the then proposed new section 6 of article II were listed at the 1938 Convention included "(2) Avoidance of loss of vote by a voter unable to register in person, and convenience in saving voters an additional trip to the polls” (Revised Record, New York State Constitutional Convention of 1938, vol III, p 2397). Interestingly, the Legislature, in the enactment of section 153 of the Election Law in order to encourage voting by facilitating registration, sought to achieve that very purpose.

The provisions of section 153 of the Election Law require a voter to complete an application and sign it personally, giving information about himself as an individual before mailing it to the appropriate registration office. That is a "personal application”. Section 153 of the Election Law, therefore, is a valid exercise of the authority conferred upon the Legislature by section 6 of article II of the New York State Constitution.

Accordingly, the judgment of the Supreme Court should be reversed and a judgment should be entered below containing a declaration in accordance with the views expressed herein and denying petitioner’s prayers for relief.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Judgment reversed, without costs, and matter remitted to Supreme Court, Erie County, for the entry of judgment in accordance with the opinion herein.

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