The Responsibility to Get the Rules Right

Fallsburg Future presents a 2 part article on the laws and regulations governing Voter Registration and Absentee Ballots.

Dear Friends and Neighbors

New York has a law governing voter residence. It has a process for challenging registrations. It gives election boards specific factors to examine. It even provides criminal penalties for knowingly registering from a false residence. So there is a straightforward question that deserves a straightforward answer: Are those requirements actually being followed in Sullivan County? This is not a question about political parties or whether someone is a seasonal resident, a year-round resident, wealthy or poor, new to the county or here for generations. And it is not a question of whether someone owns property or whether a person is legally qualified to register and vote from the address they have claimed and whether the election authorities responsible for making that determination are actually examining the facts the law requires them to examine. That distinction matters because the right to vote is fundamental. And, so is the integrity of the process that determines who is legally entitled to exercise it.

New York Election Law §1-104(22) defines residence for election purposes as the place where a person maintains a fixed, permanent and principal home and to which that person intends to return. That is a legal standard. It is not simply a mailing address or ownership of a piece of property. A voter cannot say, “This is where I want to vote.” New York law requires a person to be a resident of the state and the applicable county, city or village for at least 30 days before an election, subject to statutory exceptions. But the 30-day requirement should not be confused with the definition of residence. Thirty days does not turn an otherwise questionable address into a permanent home. The law requires both a qualifying residence and the applicable period of residency. That is why the facts matter.

Election Law §5-104 does something particularly important. The Board cannot simply accept a person's stated intention and move on. It states that, in determining whether a person is qualified to register and vote, the Board shall consider the person's expressed intent together with the person's conduct and all attendant surrounding circumstances. The statute specifically identifies factors the Board may consider, including financial independence, business pursuits, employment, sources of income, residence for income-tax purposes, marital status, residence of parents, spouse and children, leaseholds, real and personal property, motor-vehicle registration and other relevant factors. This language is important. The law anticipates that residency can require investigation. It anticipates that what a person says may need to be judged against what that person actually does. It gives the Board authority to look at the surrounding circumstances. So the question is not: Where does the voter say he or she lives? The question is: What facts establish that this is actually the voter's fixed, permanent and principal home? And then: Did the Board actually examine those facts?

This Is Where “Presence” Matters
There is an important distinction between being temporarily absent from a residence and having a place that functions as a person's residence in the first place. Someone can have a legitimate home and be away from it for extended periods. That is not the same thing as claiming a location as a permanent home when the person has little or no ability to actually occupy or maintain that location as a home. 
That raises questions that cannot simply be brushed aside.
• Can the property legally be occupied?
• Can the person actually live there?
• Is there continuing access to it?
• Does the person return there?
• How long has the person maintained it?
• What evidence shows that it is the person's principal home?
• What other residence does the person maintain?
• And how do the person's other records and conduct line up with the claimed voting residence?
These are not questions about someone's identity. They are questions about the legal definition of residence. If a property cannot legally be occupied for a substantial portion of the year, that does not automatically decide the voting question. But it certainly raises a factual question that the law's residency standard makes relevant: Can that location genuinely function as the person's fixed, permanent and principal home? That question deserves an answer based on evidence, not assumption.

Sullivan County Has Been Here Before
This is not some theoretical issue that has never reached a courtroom. Sullivan County has already had a significant residency dispute involving seasonal-property owners. In Matter of Maas v. Gaebel, the Appellate Division, Third Department considered challenges involving voters associated with the Lake Huntington Summer Community in Cochecton. The court did not establish a rule that seasonal-property owners automatically qualify to vote. Instead, it examined the particular facts surrounding the challenged voters. The record included factors such as years of property ownership, recurring physical presence, local taxes and fees, water and sewer charges, maintenance and improvements, community involvement and the voters' stated intent to return. The court also considered the fact that some maintained other residences and did not use their Sullivan County addresses for certain other official purposes. The court ultimately found that the particular voters had legitimate, significant and continuing connections to the community. That case matters for a very specific reason: Residency is fact-specific. The lesson is not that seasonal residents cannot vote or that seasonal residents automatically can vote. The lesson is that the facts have to be examined. That is precisely what New York Election Law §5-104 requires.

What Happens When Someone Challenges a Registration?
Election Law §5-220 establishes a formal process. A person challenging a registration must provide an affidavit identifying the challenged voter and stating the reasons and facts supporting the belief that the voter is not qualified. The affidavit must also distinguish between information based on personal knowledge and information received from someone else. Then: The Board is required to investigate the voter's qualifications. If the Board cannot complete its investigation or make a determination before the next election, the statute provides for the voter to be placed on a challenge list. So what should the public expect to see when a serious residency challenge is made?  There should be an identifiable process.
• Were the relevant property records examined?
• Was the legal occupancy of the property examined when that is relevant?
• Was the voter's actual use of the property examined?
• Were other residences considered?
• Were vehicle registrations considered?
• Were tax-residency records relevant to the inquiry?
• Were employment and business circumstances considered where appropriate?
• Were duplicate registrations checked?
• Were inconsistencies identified and resolved?
• Were comparable cases treated under the same standard?
What evidence does the Board rely upon when it makes its determination? Because if the law requires the Board to consider conduct and surrounding circumstances, then the public has every right to ask whether that examination actually occurred.

There Are Two Very Different Problems
This is where the issue becomes even more important. There is a difference between: A person whose eligibility is genuinely a question of fact and a person who knowingly provides false information in order to register where that person is not legally qualified. Those cannot be treated as the same thing. A person may have complicated residency circumstances and genuinely believe that he or she is entitled to vote from a particular residence. That is a question for the election authorities to evaluate under the law. But New York Election Law §17-104 separately addresses false registration. It makes it a felony to knowingly register or attempt to register when the person knows he or she will not be a qualified voter in that district, to register more than once or in more than one election district for the same election, to register under another name, or to knowingly give a false residence when registering. The law also addresses knowingly assisting or advising another person to commit such an act. That is not a gray area in the statute. The word “knowingly” matters. An honest mistake is not the same thing as deliberate false registration. But deliberate false registration is not merely an administrative technicality, either. The law treats it as a felony. 
 
That raises another question: When evidence goes beyond a disputed residency determination and indicates possible knowing false registration, what happens next? Who investigates? Who refers the matter when appropriate? What evidence is preserved? And what is the enforcement mechanism? Those are legitimate questions about the administration of election law.

Fallsburg's Future is a community network of concerned Fallsburg residents established in January 2016. Its Mission is to help guide the urban development of the town of Fallsburg and its five hamlets, to promote its sustainable economic development, protect the fragile beauty of its natural habitats and enhance the opportunities and quality of life for all its residents and visitors. We hope to curb the suburban sprawl that is threatening to overwhelm the town’s physical infrastructure and destroy the natural beauty that the area depends on for its future development. See us on Facebook and our website Fallsburgsfuture.com.