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December 03, 2016
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Split decision in Cochecton voters case

The judge ruled that Cochecton second-home owner Peter Glick, left, is not entitled to vote in the county and that Tibor Feldman, right, is entitled to vote in the county.

Glick testified that he first changed his registration from Teaneck, NJ, in 2011, when gas drilling and fracking became issues. He said that he then switched his voting registration back to New Jersey after he and other members of the community felt the development was being unfairly targeted by the town code enforcement officer for violations because of their voting registration activities. He then returned his voter registration to Cochecton when he learned that there was a candidate running who would be more likely to share his view about gas drilling.

The River Reporter has not yet received Schick’s written decision, but it’s unclear at this point why the change of one man’s vote might be considered unacceptable manipulation and the other would not. (It’s also unclear if the judge’s charge of “manipulation” extended to other members of either community.)

Addressing the specific issue of targeting by the code enforcement officer, in cross examination attorney Marvin Newburg, representing town supervisor Gary Maas, who brought the legal action, asked if it wasn’t true that there were in fact violations with venting pipes from gas utilities at the development. Glick answered, “I don’t know.”

To be sure, there are several significant differences between the Fred White property and the Lake Huntington co-ops. The Fred White property is winterized, the co-ops are not. The Fred White owners own real property whereas the co-op owners own shares in a corporation and have long-term leases. It’s not yet clear which differences the judge thought were significant.

This story will be updated when The River Reporter receives the judge’s written decision.

Sources close to the challenged voters say it’s not yet clear if they will appeal. In the meantime, it seems that Republican Ed Grund will be sworn into the council seat on the town board that had been to this point undecided. If the 17 votes had been counted, the winner would likely have been Democrat Paul Salzberg.

Voter registration precedent

The following information comes from a website called countryvote.org, which is affiliated with New York Democratic Lawyers Council.

The New York Election Law requires that the voter be a “resident” of the state and of the county, city, or village in question for a minimum of 30 days preceding the election in question, and defines “residence” as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” N.Y.

Election Law

§§ 5-102 and 1-104(22); see also N.Y.S. Board of Elections.
The federal courts have held this definition to be “constitutionally permissible so long as the word ‘he’ is read to include both men and women and the word ‘permanent’ is not read in its literal sense.” Williams v. Salerno, 792 F.2d 323, 328 (2d Cir 1986).

In determining a voter’s qualification to register and vote, the statute charges the county boards of elections to consider the applicant’s expressed intent, conduct, and “all attendant surrounding circumstances” including the leaseholds or ownership of property, motor vehicle and other personal property registration, residence for income tax purposes, and residence of parents, spouse and children. N.Y. Election Law § 5-104.

Dual Resident Voting Rights

The key case from New York State’s highest court is Ferguson v. McNab, 60 N.Y.2d 598 (N.Y. 1983), which held that a person having two residences “may choose one to which she has legitimate, significant and continuing attachments as her residence for purposes of the Election Law.”

A more recent appellate case, Willkie v. Board of Elections, 55 A.D.3d 1088, 865 N.Y.S.2d 739 (2008) held that this principle protects typical weekender/second homeowners who work in New York City and choose to register and vote from their country homes. See also Fingar v. Martin, 68 A.D.3d 1435, 892 N.Y.S.2d 235 (2009).

Lower courts in New York had previously come out the same way on this question:

Gallagher v. Dinkins, 343 N.Y.S.2d 960 (App. Div. 1973) (holding that where an individual has two residences where he maintains significant and legitimate attachments, it is for him to decide which address he considers as his voting address), aff’d, 299 N.E.2d 681 (N.Y. 1973);

Bressler v. Holt-Harris, 330 N.Y.S.2d 565 (App. Div. 1971) (holding that a candidate established voting residence in an apartment where he had eaten and slept only once in seven years);
Gladwin v. Power, 249 N.Y.S.2d 980 (App. Div. 1964) (holding that candidate established residence in a space she used as an office and “for occasional living”).

Ferguson v. McNab is a binding precedent, and has therefore been followed consistently thereafter:
Geller v. Lasher, 601 N.Y.S.2d 342, 343 (App. Div. 2d Dept. 1993) (upholding residence where candidate and his wife have “intermittently lived at that address”);

Umland v. Board of Elections of City of New York, 532 N.Y.S.2d 30, 31-32 (App. Div. 2d Dept. 1988) (upholding residence where challenged voter testified that “since her marriage, she has lived at the 64th Street address for intermittent periods, as warranted by family needs including health problems, child care and financial pressures.”).

Criminal penalty for using “sham” address as voting address—see People v. O’Hara, 94 N.Y.2d 378 (N.Y. 2001) (affirming conviction where jury found that person took up residence at a location for the sole purpose of voting in that district).