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Worden v. Mercer County Board of Elections

Decided: July 14, 1972.

THOMAS WORDEN ET AL., PLAINTIFFS-RESPONDENTS,
v.
MERCER COUNTY BOARD OF ELECTIONS, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Jacobs, J. Weintraub, C.J., concurring. Weintraub, C.J., concurs in result.

Jacobs

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

stipend. She is a candidate for a Ph.D. degree, plans to remain at Princeton for the time required to obtain it, and is uncertain as to her plans thereafter. She testified that she considers her Princeton quarters to be her home and that she intends to reside there indefinitely. Her parents live in the Borough of Ramsey and they have facilities for her to sleep overnight. She visits them "at Christmastime" and whenever else she sees fit. She has never registered to vote in Ramsey but on September 20, 1971 she sought to register at the Princeton Borough Hall. She told the clerk that her "permanent residence was the Graduate College" and that she had an adequate fellowship which she considered the equivalent of earning her own keep. In turn she was told that since she was a student living on campus she had "a home address" with her parents and that she was not eligible to vote in the Borough where her college residence was located.

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

permitted registration by a student whose parents lived outside New Jersey. He normally asks applicants for voting registration only routine questions relating to age, citizenship, duration of residence, etc.; however, if they are students they are subjected to much more extensive inquiry and are generally referred to the County Board of Elections. Indeed, students who sought to register prior to the November 1971 election were given written notices which flatly stated that "Students registering at Trenton State College cannot register to vote in Ewing Township" and that if they had "any questions concerning this" they should call the Mercer County Board of Elections.

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."

Miss Bianchini testified that she is employed in the Office of the Clerk of Lawrence Township where Rider College is now located. Her instructions from the Clerk were that college students were not to be registered but were to be sent to the Mercer County Board of Elections. Mrs. Szabo testified that she has been a member of the defendant Mercer County Board of Elections since 1968 and she indicated that the Board would not permit the registration of any college student who lived on campus unless he could affirmatively establish an independent Mercer County domicil apart from his campus residence. She placed reliance on the 1927 opinion by the Mercer County Counsel and said that she would refuse to register a dormitory student even though he made a convincing showing as to his interest and understanding of local issues and as to his firm purpose of remaining in Mercer County after his dormitory residence was terminated. She stated that, so far as she knew, no student who was a campus resident in Mercer County had ever been permitted to register and that she was "not about to change any policy in the office at this time." She acknowledged that the ordinary applicant for registration would be asked only the few routine questions but that students would be asked many more questions. One of the additional questions addressed to the student would relate to his address on his application for admission to college; as to that she testified that "if the answer in the address is not in Mercer County, this person cannot be registered."

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 right to register to vote" in the community while he remained there. He classified resident students into four groupings, namely, (1) those who plan to return to their previous residences, (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. He ruled that students in the latter three categories should be permitted to vote at their college residences and made the finding that "college students in Mercer County, have as a class been discriminated against in violation of the Equal Protection Clause of the United States Constitution." He enjoined the Mercer County Board of Elections, along with the Clerks of Ewing Township, Princeton Borough and Lawrence Township, from "interfering with or denying to college students the right to register to vote from their college address," provided they otherwise comply with the voting requirements and provided further that "the only test concerning their bona fide residence shall be, what their intent is with regard to their former place of residence (prior to arrival at school)." He directed that students in the first category shall be deemed ineligible to register from their school residences but that students in the latter three categories "shall be registered forthwith."

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

and Moore, 18 N.J.L. 138, 146 (Sup. Ct. 1840); Schweitzer v. Buser, 15 N.J. Misc. 217, 225 (Cir. Ct. 1936); State v. Benny, 20 N.J. 238 (1955); Perri v. Kisselbach, 34 N.J. 84 (1961); Michaud v. Yeomans, 115 N.J. Super. 200 (Law Div. 1971). In Cadwalader, decided in 1840, the court construed the statutory residence requirement in the election law to mean "domicil" which the common law viewed as one's fixed or permanent home to which, whenever temporarily absent, he has the intention of returning. 18 N.J.L. at 144. Commenting on students, the court noted that they "are considered in law, as residing at their original homes, although in point of fact, they may be living for the time being, elsewhere." 18 N.J.L. at 146. In Schweitzer, decided in 1936, the court took the same approach, viewing his parents' home as the student's domicil and stating flatly that "a student does not change his domicile by residence at college." 15 N.J. Misc. at 225; see also In re McCarthy, 18 N.J. Misc. 5, 16 (Cir. Ct. 1939).

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. 2 d 274 (1972); Jolicoeur v. Mihaly, 5 Cal. 3 d 565, 488 P. 2 d 1, 96 Cal. Rptr. 697 (1971); Wilkins v. Bentley, 385 Mich. 670, 189 N.W. 2 d

423 (1971); see also Annot., 44 A.L.R. 3 d 797 (1972); Note, 60 Calif. L. Rev. 806 (1972); Comment, 70 Mich. L. Rev. 920 (1972); Note, 72 Colum. L. Rev. 162 (1972); Recent Developments, 60 Geo. L.J. 1115 (1972); Note, 5 Ind. L.F. 385 (1972); Comment, 6 Suffolk L. Rev. 646 (1972).

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. 2 d 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 ...


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