Court grants voter legitimacy to Bovina second homeowners
By Matthew J. Perry
Less than two weeks before Election Day 2008, the Appellate Division of the New York State Supreme Court confirmed that eight Bovina homeowners—all whom keep other residences downstate—are within their legal rights to cast their votes as Bovinians.
The “Bovina Eight,” whose right to vote was challenged in 2007 and denied by the county board of elections, sued to retain that right and now have the backing of two state courts. The group, which was represented pro bono by the law firm Willkie, Farr and Gallagher, won their first decision in November 2007, but the board of elections appealed. A second, final appeal is still possible, although Delaware County has made no indication that it intends to try again. The appellate court would have to consent to a hearing, which is unlikely since the October 23 decision was handed down unanimously from a panel of five judges.
Aside from supporters of the plaintiffs, residents and officials of Bovina have withheld comment on the matter. But lawyers have taken interest in the decision, which still allows for debate and further inquiries into the status of residents.
Law didn’t change
“It’s not that the case changed the law. It’s that people didn’t know what the law was,” says Bruce Kraus, an attorney who argued the case. “Delaware County is something of an outlier when it comes to their definition of the election law.”
In essence, the case boiled down to a question of whether citizens may vote only at a primary residence or at any legitimate residence. The board of elections argued that the Bovina residents in question did not, primarily, live in that town. When the county sheriff’s office investigated the matter, certain evidence—such as the address listed on federal income tax returns—was considered positive proof of a person’s primary residence.
The problem with that interpretation is encapsulated by the situation of Hall Willkie and his partner, Tom Craveiro, who both had their voting status challenged. Because Craveiro listed their Bovina residence on his tax returns, he was kept on the town voting rolls. Willkie listed his downstate address, and was removed.
Both men felt vindicated by the court’s decision, which states that 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.” In other words, Willkie, who has owned a farm in Bovina since 1985 and splits his time between that home and a Manhattan apartment, can choose to vote in either community because his residency in both places is a matter of physical fact. Or, as Kraus argued, “home is where the heart is.”
Election law does not require that a resident own property or have lived for any specific amount of time in the community to be considered eligible to vote.
But there are some legitimate criteria for determining eligibility. For instance, Kraus does not think the state would allow a resident to change his or her voting status repeatedly. “I don’t think the law allows you to register one year in Bovina because you want to vote for a councilperson and then the next year, change your registration to New York so you could vote in a mayoral election.”
Willkie adds that he does not believe the law would look favorably on property owners who rarely, if ever, visit the community. “If someone just owned a rental or investment property, for instance, or a quarter share in a hunting cabin they visited for one week a year, I don’t think the law is meant to enfranchise them.”
The board of elections will still investigate any challenge to voter registration. But this most recent court review of the election law, which has attracted statewide attention, will provide ample protection to the vast majority of second homeowners who pay taxes, attend meetings and volunteer in their community.
“There always can be abuses, and there will always be cheaters,” Willkie says. “But you can’t design a law to exclude everyone. When the interpretation is too strict you get what happened to Tom and me, and decisions that don’t make much sense.”