WORDEN ET AL. v. MERCER CTY. BD. OF ELECTIONS
61 N.J. 325 (1972)
294 A.2d 233
THOMAS WORDEN ET AL., PLAINTIFFS-RESPONDENTS, v. MERCER COUNTY BOARD OF ELECTIONS, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Decided July 14, 1972.
Mr. Stephen Skillman, Assistant Attorney General, argued the cause for defendant-appellant ( Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Robert Wills, Deputy Attorney General, on the brief).
Mr. Gerald R. Stockman argued the cause for plaintiffs-respondents ( Messrs. Dietrich and Stockman, attorneys; Mr. Michael J. Herbert and Mr. Marshall Lichtenstein, for Student Vote, Inc., on the brief).
The opinion of the Court was delivered by JACOBS, J.
The Law Division found that college students who reside at their colleges within Mercer County have been discriminated against by local election officials and it adjudged that such students, with the exception of those who plan to return to the residences they had before entering college, are entitled to be registered as voters in Mercer County. Considering itself aggrieved by the Law Division's judgment, the Mercer County Board of Elections appealed to the Appellate Division and we certified before argument there.
The plaintiff Thomas Worden testified that he resides in Mercer County on the campus at Trenton State College. He was in his first year and intended to continue his residence in Mercer County until he finished his college course. After college he hoped to obtain a "job teaching someplace" and that "could be anywhere." His parents reside in Somerset County and they have "a bed there" for him whenever he returns. They do not pay his "tuition or room and board" at college. He has not sought to register to vote in Somerset County but on September 14, 1971 he sought to register at the Office of the Clerk of Ewing Township in which his college residence is located. He filled out the customary form and was about to sign it when he was told that since he was a college student residing on campus he could not be registered but he could, if he wished, go down to the courthouse where the Mercer County Board of Elections was located. He telephoned the County Board but he did not appear personally and was not registered.
The plaintiff Linda Cooper is a graduate student at Princeton University and resides on campus. She has a fellowship which provides tuition plus a substantial living
The plaintiff Lawrence Crane is a Princeton graduate student who has continuously resided on campus since 1967. He is now twenty-six and, although he has heretofore considered New York to be his home, he now wishes to change his home to Princeton, New Jersey, where he actually resides. He spends the bulk of his time in the Princeton area, most of his clothing is there, he has a New Jersey driver's license, and he plans to remain in Princeton at least until his formal education is completed. Thereafter his plans are uncertain although it is possible that he will remain in Princeton. His interests are largely in the Princeton area rather than in New York and, as he is "more familiar with the events in New Jersey" than with the events in the New York voting district, he wishes to vote in New Jersey. When he attempted to register to vote at the Princeton Borough Hall he was told that since he was a student living on campus he could not register in Mercer County.
Mr. John A. Garzio testified that he has been Clerk of Ewing Township for eleven years; during that period there was no instance, so far as he could recall, where he had
Mr. Robert F. Mooney testified that he was Clerk of the Borough of Princeton and had held that office for twenty-five years. The "basic precept" as he saw it and as he had consistently administered it through his office was that the university student is only a temporary resident and is "therefore not eligible to vote in the State of New Jersey." He stated that through the years he had made rare exceptions as, e.g., when confronted by students who were "orphans" and had "no home to go to." In response to an inquiry as to whether students who seek to register are treated differently than all others who come to his office to register he said "I would say yes, we do treat them differently." As he described it, he and his assistants would register ordinary applicants when they satisfactorily answered the few routine questions but when they dealt with students they would refer back to instructions from the Mercer County Board of Elections and to "an opinion by a Mercer County Counsel dating back to 1927 which in essence says that students here for educational purposes are not bona fide residents of the state." He said that although he would not register students who lived on campus he would register nurses who lived in nurses' quarters adjacent to the Princeton Hospital; and he would also register university instructors without inquiry beyond the routine questions though he recognized that they were "a very mobile section of the community."
There was additional testimony but no purpose would be served by recounting it here. At the close of all of the testimony Judge Kingfield, sitting in the Law Division, rendered his oral conclusions. He pointed out that a person seeking to register to vote in this State "must be a bona fide resident for a specified time prior to registration" but that the residence thereafter need not be for any fixed time but may be "for an indefinite period," and that the resident may come to the community "for a short period of time and then move on" as, e.g., the clergyman who has never "been denied
The plaintiffs have not appealed from that portion of Judge Kingfield's judgment which precluded students in the first category from voting at their college residences; since the judgment in effect granted broad relief to most though not all of the resident students, the plaintiffs apparently were content to let the matter rest. However, the Mercer County Board of Elections has appealed from the whole of the judgment and the Attorney General has filed a brief on its behalf urging that the judgment be reversed. The Attorney General's position is that "there should be no significant departure from existing New Jersey law with respect to the voting residence of students" and he cites the New Jersey precedents including Cadwalader v. Howell
These statements were made in relatively immobile eras when it was generally assumed that the college student would lead a semicloistered life with little or no interest in noncollege community affairs and with the intent of returning, on graduation, to his parents' home and way of living. Such assumption of course has no current validity. See Singer, "Student Power at the Polls," 31 Ohio St. L.J. 703, 714 (1970); Guido, "Student Voting and Residency Qualifications: The Aftermath of the Twenty-Sixth Amendment," 47 N.Y.U.L. Rev. 32, 36 (1972). And so much of pertinence and importance has recently happened elsewhere, constitutionally, legislatively and judicially, that its bearing on the continued vitality of the New Jersey precedents must be dealt with here. See U.S. Const. amend. XXVI; 42 U.S.C.A. § 1973bb (1970); 42 U.S.C.A. § 1971(a) (2) (A) (1970); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Jolicoeur v. Mihaly, 5 Cal.3d 565, 488 P.2d 1, 96 Cal.Rptr. 697 (1971); Wilkins v. Bentley, 385 Mich. 670, 189 N.W.2d
The Civil Rights Act of 1964, as amended, provides that in determining whether any individual is qualified under state law or laws to vote in any election, the officials shall not apply "any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals." 42 U.S.C.A. § 1971(a) (2) (A). Though it has generally been dealt with in racial contexts its sweeping terminology suggests application to discriminations in student and other nonracial contexts. See Guido, supra, 47 N.Y.U.L. Rev. at 53-57. The Voting Rights Act of 1970, which was designed to encourage younger voting participation by lowering the voting age to eighteen in all elections, was limited to federal elections by Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), but was quickly followed by the twenty-sixth amendment which provides that the right of citizens who are eighteen or over to vote shall not be "denied or abridged" by the United States or by any state "on account of age." U.S. Const. amend. XXVI.
The legislative history preceding the adoption of the amendment clearly evidences the purpose not only of extending the voting right to younger voters but also of encouraging their participation by the elimination of all unnecessary burdens and barriers. Thus the Senate Report (S. Rep. No. 26, 92d Cong., 1st Sess. (1971)), specifically noted (at 14) that "forcing young voters to undertake special burdens — obtaining absentee ballots, or traveling to one centralized location in each city, for example — in order to exercise their right to vote might well serve to dissuade them from participating in the election. This result, and the election procedures that create it, are at least inconsistent
The Senate Report's suggestion that denial of the young voters' right to vote at their college residences may run counter to the equal protection clause finds a significant measure of support in the recent Supreme Court cases which indicate that, since the right to vote is a very fundamental one, restrictions thereon may be imposed only to the extent necessary to promote "a compelling state interest." See Dunn v. Blumstein, supra, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). In applying the compelling state interest test the Court has stricken various state efforts which sought to impose restrictions beyond ordinary residence requirements and has done so in full opinions which express broad principles bearing analogously on the basic issue before us.
Thus Carrington dealt with a Texas constitutional provision which prohibited any member of the Armed Forces who moved to Texas during the course of his military duty from voting in any election in Texas so long as he remained a member of the Armed Forces. Texas sought to justify this
In Kramer New York restricted school elections in certain districts to voters who were owners or lessees of taxable real property or parents of children attending school. It sought to justify its restriction by advancing a state interest in confining school elections to members of the community who are "primarily interested in such elections." 395 U.S. at 630-631, 89 S.Ct. at 1891, 23 L.Ed.2d at 591. Without passing on whether such classification would be constitutionally permissible, the Court found that the provisions of New York's law could not stand since they permit "inclusion of many persons who have, at best, a remote and indirect interest, in school affairs and, on the other hand, exclude others who have a distinct and direct interest in the school meeting decisions." 395 U.S. at 632, 89 S.Ct. at 1892, 23 L.Ed.2d at 592-593. In the course of its opinion the Court stressed that, since the right of franchise was involved, the issue was not simply whether there was a rational basis for the legislative judgment; a more exacting standard obtained, namely, was there "a compelling state interest to justify denying the franchise to appellant and members of his class." 395 U.S. at 633, 89 S.Ct. at 1893, 23 L.Ed.2d at 593.
In Dunn the Court recently furthered the principles expressed in the cited decisions and struck Tennessee's one year durational residence requirement as unconstitutional.
This specter of a "takeover" was rejected in Carrington, supra, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, was referred to as "more theoretical than real" in Jolicoeur v. Mihaly, supra, 488 P.2d at 8 n. 7, and as "largely unfounded" in Wilkins v. Bentley, supra, 189 N.W.2d at 433. Many college towns have already adopted the practice of honoring requests for local registration by students who assert bona fide residences at their colleges; all indications point to the absence of any adverse effects or any consequences incompatible with modern democratic principles. See Note, "Restrictions On Student Voting," 4 U. Mich. J.L. Reform 215, 236 (1970): "Even apart from the constitutional question, the possibility of student bloc voting has not been proven where a college community actually facilitated student voting. A recent American Council on Education survey of college freshmen showing that forty-four per cent considered themselves liberal and twenty per cent moderate conservative demonstrates that students would not vote as
In Jolicoeur unmarried minors who had residences at colleges or elsewhere away from their parents' residences sought to register at their own residences but were not permitted to do so. They brought a proceeding which culminated in a California Supreme Court decision in their favor. In the course of his opinion for the court Justice Peters stressed the history antecedent to the passage of the twenty-sixth amendment and its indication that "Congress believed both that minor voters are entitled to be treated as adults for voting purposes and that voting in the youth's actual place of residence is essential to accomplishing a primary congressional goal of channelling youthful idealism through the political process." 488 P.2d at 5. Elsewhere in his opinion he noted that "fears of the way minors may vote or of their impermanency in the community may not be used to justify special presumptions — conclusive or otherwise — that they are not bona fide residents of the community in which they live." 488 P.2d at 4. And finally he pointed out that while any citizen may be questioned as to his "true domicile," the man who gets a new job and
In Wilkins several University of Michigan students sought to register to vote in Ann Arbor but were not permitted to do so. Though they had living quarters in their university town, the lower court held that they had not established bona fide residences in Ann Arbor within the contemplation of Michigan's election laws. 24 Mich.App. 422, 180 N.W.2d 395 (1970). This holding was reversed by the Michigan Supreme Court in an opinion which expressed strong constitutional support for the right of students to vote at their college residences. 385 Mich. 670, 189 N.W.2d 423 (1971). Pointing out that there were no fixed standards and that in some communities, such as Detroit where Wayne State University and other colleges were located, no special questions were asked of student registrants whereas in others, such as Ann Arbor, special questions were asked, the court found that this left too much to the whim or impulse of the individual registrar and violated due process. 189 N.W.2d at 426-427; cf. Louisiana v. United States, 380 U.S. 145, 153, 85 S.Ct. 817, 13 L.Ed.2d 709, 714 (1965). However, since this was an infirmity which could readily be corrected by administrative guidelines, the court turned quickly to the plaintiffs' contention, which it then proceeded to sustain, that Michigan's rebuttable presumption that a student is not resident within his college community violated the equal protection clause of the Constitution.
The court in Wilkins pursued the compelling state interest test which it found in Kramer, supra, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, Evans, supra, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 and other Supreme Court cases. It recognized the state's interest in protecting
In reversing the lower court's refusal to register the plaintiffs in Wilkins, the court held that "in the future, students must be treated the same as all other registrants. No special questions, forms, identification, etc., may be required of students." 189 N.W.2d at 434. Similar holdings may be found in Anderson v. Brown, supra, 332 F.Supp. 1195 and Bright v. Baesler, supra, 336 F.Supp. 527. In Anderson the court held that Ohio could not, in applying its voting tests, constitutionally differentiate between students
A student with an indefinite intention or an intent to leave after graduation may have a strong sense of community involvement while attending school, but one that is clearly limited in duration. These students may consider their school community a residence, may be affected by the outcomes of local elections, and may be concerned about and aware of community issues, values, and personalities. If the citizen were not a student, but a clergyman, businessman, or worker with equally limited intentions, registration would be permitted. All may possess common intentions, and none may have foreseeable connections with another community after completing their current program of work. For students with indefinite intentions or vague desires to move after graduating, a denial of registration may be a denial of equal protection of the laws. Registration tests that make it more difficult for non-native students to qualify than for other students or citizens with similar intentions should be prohibited.
These views were implemented in the recent holding by the United States District Court for the District of New
In Newburger the state did not suggest any danger of fraud or the overwhelming of the college community; its expressed reliance was on its interest in promoting "a more intelligent vote, especially in small communities, by insuring that voters have a commitment to the community and a stake in the outcome of local elections." 344 F. Supp. at 562. But as the court pointed out, if New Hampshire were actually to apply its requirement without improper discrimination it would exclude "a newly-arrived executive with a firm intention to retire to his Florida cottage at age 65, a hospital intern or resident with a career plan that gives him two or three years in New Hampshire, a construction worker on a long but time-limited job, an industrial or government trainee working up a precise career ladder, a
Unlike the plaintiff in Newburger, most students resident at college have no fixed plans as to their future residences and, when challenged on application for registration, will so state. As Singer, supra, has pointed out, if a student asserts that his plans as to future residence are uncertain but that he considers the college town his home for the present and has no intention of returning to his parents' home, he will "be allowed by the courts in most states to vote in his college town." 31 Ohio St. L.J. at 714; Annot., 98 A.L.R.2d 488, 497-498 (1964); Annot., supra, 44 A.L.R.3d at 826-29. Although this action is taken without abandonment of the domicil requirement it may have pertinence to the growing recognition that domicil is not a unitary concept and that its application may vary in different contexts. See Reese, "Does Domicil Bear a Single Meaning?," 55 Colum. L. Rev. 589 (1955); Weintraub, "An Inquiry Into the Utility of `Domicile' as a Concept in Conflicts Analysis," 63 Mich. L. Rev. 961, 983-86 (1965); Restatement (Second) Conflict of Laws § 11, comment o at 47-50 (1971); cf. Gladwin v. Power, 21 A.D.2d 665, 249 N.Y.S.2d 980, 982 (1st Dept. 1964); In re Jones' Estate, 192 Iowa 78, 182 N.W. 227, 229 (1921).
In his discussion of domicil, Professor Weintraub has noted that, while articulating the same technical definition of domicil, courts may vary its meaning "by shifting the emphasis to one or another element of the definition or by drawing different reasonable inferences from essentially the same fact pattern." 63 Mich. L. Rev. at 984. Earlier, Professor
At this juncture we may appropriately return to the New Jersey precedents and their current bearing in the voting field. The 1844 Constitution contained a provision in Article II for voting by residents but said nothing about domicil or student voting; indeed during the course of the convention which preceded its adoption, there was a proposal that "students who had taken up a transient residence for the purpose of education" be expressly excluded from those declared eligible to vote but it was roundly attacked and was
On May 4, 1971 New Jersey approved the twenty-sixth amendment and it did so with full awareness of its history and its implications. Political activism on college campuses had become commonplace, youthful independence had become even more commonplace, and the ancient concept of college as simply the interlude till the customary return home had become no longer viable. The goal was not merely to empower voting by our youths but was affirmatively to encourage their voting, through the elimination of unnecessary burdens and barriers, so that their vigor and idealism could be brought within rather than remain outside lawfully constituted institutions. They were emancipated in fact by the new mobilities and freedoms and they were emancipated in law when the Legislature recently enacted that, effective January 1, 1973, they shall have "the basic civil and contractual rights and obligations heretofore applicable only to
When Cadwalader, supra, 18 N.J.L. 138, and the cases which followed it were decided, the compelling state interest test was of course unheard of, as was the current judicial approach which recognizes the right to vote as very precious and fundamental and carefully and meticulously scrutinizes efforts to restrict it. See Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 12 L.Ed.2d 506, 527 (1964); cf. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24, 31 (1968); Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 11-12 (1960). Since it is so patently sound and so just in its consequences, we adopt the compelling state interest test in its broadest aspects, not only for compliance with the Federal Constitution but also for purposes of our own State Constitution and legislation; under the test a restriction against college students registering and voting in their college residence communities and not elsewhere during the extended time they actually reside there, must be stricken unless a compelling state interest to justify the restriction is shown. See Dunn v. Blumstein, supra, 405 U.S. at 342, 92 S.Ct. at 1003, 31 L.Ed.2d at 284 et seq.; Wilkins v. Bentley, supra, 189 N.W.2d at 425 et seq.; but cf. Palla v. Suffolk County Board of Elections, 31 N.Y.2d 36, 286 N.E.2d 247, 334 N.Y.S.2d 860 (1972).
The State has of course an interest in preventing fraudulent voting but there has been no suggestion that the registration and criminal laws are not adequate in this connection or that there is any real danger of dual or improper
So far as the attachment to their college communities is concerned it must be borne in mind that we are dealing only with those resident students who have a sufficient subjective attachment to choose the college communities as their sole places for voting and a sufficient objective attachment through their physical residences in the college communities. Whether they live on or off campus they are subject to and concerned with not only the state laws and regulations but with the local laws and regulations as well. It is there that they pay their sales and gasoline taxes along with any other applicable charges, it is there that they deal with the local courts and local governmental bodies, and it is there that they are classified as residents by the Census Bureau. They are no more mobile than the general population, which has admittedly become
In the light of all of the foregoing there remains little room for doubt that the individual plaintiffs who were bona fide campus residents in Mercer County, and others similarly situated, were improperly discriminated against by the Mercer County election officials and were improperly denied the right to register to vote in the communities where their college residences were located. They were subjected as a class to questioning beyond all other applicants, including applicants who were freely registered though their situations indicated that they were comparably short-term residents of their communities; and their applications for registration were rejected though they established that they actually lived at their campus residences, were interested in and concerned with the communities in which their campus residences were located, and asserted in good faith their purpose of voting there and no place else. All this was in violation of the legal principles approvingly expressed in this opinion and clearly called for broad judicial relief. Indeed, under those principles the relief granted below to most resident students should have been granted to all, including (1) those who plan to return to their previous residences, as well as (2) those who plan to remain permanently in their college communities, (3) those who plan to obtain employment away from their previous residences, and (4) those who are uncertain as to their future plans. The judgment below should be expanded to that end and early administrative steps should be taken to insure that all election officials throughout the
WEINTRAUB, C.J., concurring.
I agree with the result but I would rest it on a broader base. I believe that residence in fact for the prescribed period is all that may be required, no matter what may be the individual's attachments elsewhere, past, present, or prospective.
The concept of domicil is not constant. It is designed to assure fairness to the individual or the State or both in a given setting. Its ingredients therefore will vary, depending upon what is just and useful in a given context.
Here the subject is voting. Basic is the thought that a citizen is entitled to vote to further his political interests as he sees them. Everyone has a political interest everywhere he resides. It is the protection of that interest which the concept of domicil must reflect if it is to be other than arbitrary.
A man who resides in more than one place has more than one set of such interests. The right to vote being his, he, and he alone, can decide which interests are more important to him, and that decision should be final unless the State can demonstrate some public need to say some interests of his shall predominate over others. I do not know how the State could make that evaluation in our complex society. Nor can I find a need to impose a State-made decision upon any voter or group of voters. The State does have a proper concern to prevent multiple voting, for no voter is entitled to be counted twice in any election. To that end the State may require the individual to choose between or among his residences and make it an offense to vote at more than one place.
For this reason, a student, and a nonstudent as well, who satisfies the durational residence requirement, may vote where he resides, without regard to the duration of his anticipated stay or the existence of another residence elsewhere. It is for him alone to say whether his voting interests at the residence he selects exceed his voting interests elsewhere.
WEINTRAUB, C.J., concurs in result.
For affirmance — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and MOUNTAIN. — 7.
For reversal — None.
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