The interpretation of voting law by the courts in New York State has lead to some interesting situations. There have been several cases involving different towns, for instance, where a board member has not lived in the town, but has owned a house or building in the town, and has therefore been allowed to serve as an elected official.

If a person owns a home in the Town of Liberty, and also owns a store with an apartment above it in the Town of Callicoon, that person could run for office either in the Town of Callicoon or the Town of Liberty, and as the Appellate Court has once again affirmed, could choose to vote in either town, depending on the circumstances.

In overturning the Sullivan County Supreme Court’s decision about a group of 17 challenged voters in the Town of Cochecton, the Appellate Court Third Department quoted many previous cases in its opinion. The Appellate Court wrote, “The Election Law defines ‘residence’ as ‘that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return.’”

It further wrote, “As the courts of this state have repeatedly explained, the Election Law ‘does not preclude a person from having two residences and choosing one for election purposes provided he or she has “legitimate, significant and continuing attachments” to that residence.’… The crucial [factor in the] determination [of] whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence ‘without any aura of sham.’”

With that background, it is difficult to see how the Appellate Court could have ruled any differently. The residents of Lake Huntington Summer Community clearly did not create the community with the intent of fooling anyone about where they live, and therefore they have a right to vote in the town in which the summer community is located.

Still, Judge Stephan Schick had a point when he said in the initial trial in 2013 that allowing the challenged Cochecton co-op owners to vote was bestowing on them “more rights than other citizens have.”

Under the precedents handed down over the years, it seems the only people who have the right to move their voting registrations from one place to another are those wealthy enough to be able to afford and maintain two or more homes.

It is not clear whether residents who rent, rather than own such a cabin on a lake for 20 years would also be allowed to change their vote to the town in which the cabin is located, but that may depend on whether or not they have long-term rental agreements.

In the case of the challenged Cochecton voters, at least some of them changed their voter registration to Cochecton so they could vote for a candidate for the town board that opposed fracking. While this newspaper has often questioned the wisdom of fracking, we’re not sure the state’s election law is as fair as it might be to people who can’t afford second homes. While the second homeowners can switch their registrations and have an impact on local politics, single homeowners in the town cannot switch their registrations to have an impact on politics in New York City or New Jersey or wherever the second homeowners live.

The state legislature and the governor could amend the law if they so chose, but it seems that if Albany lawmakers had any interest in eliminating second homeowner voting, they would have done so long before now.

Nationally, second home voting, or “nonresident voting,” as it is called by the National Conference of State Legislatures (NCFL), is an issue cropping up in a number of states. In an article published on the NCFL website in 2008, the author said, “Nonresident voting has continued to attract election law interest as the seasonal homeowner population grows… At least 10 states have laws in place to respond to these changing dynamics. Rather than directly giving nonresident property owners the right to vote, these states essentially delegate that authority to municipalities.

The article further states, “In most states, residency is a cornerstone of the right to vote… However, in a growing number of states, local governments are free to enact ordinances permitting nonresidents to vote in some elections such as bond and tax elections.”

The Cochecton opinion once again underscores the point that New York State goes further than most other states in this area. It is now well-established law that second homeowners, even seasonal second homeowners, have a right to vote in either of their homes as long as the second homes are not part of a sham.