Oregon Advisory Opinions October 20, 1971: OAG 71-78 (October 20, 1971)
Collection: Oregon Attorney General Opinions
Docket: OAG 71-78
Date: Oct. 20, 1971
Advisory Opinion Text
OAG 71-78.
The 26th Amendment to the United States Constitution emancipates persons between the age of 18 and 21 for voting purposes in the following words:
"The right of citizens of the United States who are eighteen years of age or over, to vote shall not be denied or abridged by the United States or by any state on account of age." (emphasis supplied ) U.S. Const. amend. XXVI, §1.
We are asked, in effect, to construe this provision as it affects the place where college students may vote. It is asserted that persons living in a college town cannot become residents of that town for voting purposes, unless they intend to continue living there after completion of the college course; since otherwise they would be in the college town only for a "temporary purpose," and thus under ORS 250.410(2) and (3) unable to gain a residence there. It is also asserted that persons under 21, unless emancipated, are incapable of acquiring a separate residence apart from their parents.
Both assertions are incorrect, in our opinion. In summary, we conclude that while presence in a college town to attend college does not ipso facto constitute an abandonment of a previous residence, the person involved may if he so intends abandon his previous residence and acquire a new voting residence in the college town. As for persons between the ages of 18 and 21, we conclude that they have been emancipated for all purposes relating to voting by the 26th Amendment, and are thus capable of acquiring a residence for voting purposes independent of their parents' residence.
Article II, Section 4, of the Oregon Constitution, provides:
"For the purpose of voting, no person shall be deemed to have gained, or lost a residence, by reason of his presence, or absence while employed in the service of the United States, or of this State; nor while
engaged in the navigation of the waters of this State, or of
the United States, or of the high seas; nor while a student
of any Seminary of Learning; . . ."
Decisions of the Oregon Supreme Court, while not relating to
students, have held that this provision means that
occupations described therein do not in themselves either
gain or lose eligibility for a person to vote, and that
voting residence can be established by other factors.
Day v. Salem
, 65 Or. 114, 131 P.
1028; (1913)
Wood v. Fitzgerald
, 3
Or. 568 (1870).
ORS 250.410(2) and (3) should, in our opinion, be construed in the same way. They provide:
"(2) A person shall not be considered to have lost his residence [for voting purposes] who has left his home and gone into another state or territory or county of this state for a temporary purpose only.
"(3) A person shall not be considered to have gained a residence in any county or city of this state into which he comes for temporary purposes only, without the intention of making it his home but with the intention of leaving it when he has accomplished the business that brought him there."
Subsection (2) simply means that a person may retain his voting residence if he leaves it, even for an extended period, intending to return and continuing to consider it his home while away. Subsection (3) is the corrolary, and it provides that a new residence does not become the voting residence of a person who moves to it temporarily, " without the intention of making it his home ". The word "temporarily" must be considered in light of the voter's intentions: if he intends to return to his former home a greatly extended stay may be considered "temporary," while if he has abandoned his former residence as
his home, and adopted the new residence as his home, his stay there cannot be considered "temporary." The statute makes the voter's intent determinative. Moving to a new residence without the intention of making it his home does not change voting residence; moving with that intention does change voting residence.
Other portions of ORS 250.410 also place heavy weight upon the intentions of the voter. The statute provides:
"The election board clerks, in determining the residence and qualifications of persons offering to vote, shall be governed by the following rules, so far as they may be applicable:
"(1) His residence shall be the place in which his habitation is fixed and to which, whenever he is absent, he has the intention of returning.
. . . .
"(4) If a person moves to another state, or to any of the territories, with the intention of making it his permanent home, he shall be considered to have lost his residence in this state.
"(5) The place where a married man's family resides shall be considered to be his residence.
"(6) The place where an unmarried man sleeps shall be considered to be his residence." (emphasis supplied )
Subsection (5) in effect states the standard that a family is considered to have a single residence (i.e., domicile). However, the Oregon court has recognized that in some circumstances a wife may be considered to have a domicile separate from that of her husband. Vollmer v. Vollmer , 231 Or. 57, 371 P.2d 70 (1962). We do not consider subsection (5) to eliminate this exception to the single-domicile rule, for voting residence purposes, but rather to state a working rule for the convenience of election officials: a married man's residence is considered to be the place where his family resides, unless he has in fact established a residence separate and apart from them.
Subsection (6) provides that an unmarried man is considered to reside where he sleeps. Obviously, this does not mean that every motel room in which he spends a single night becomes his voting residence for the next day. Rather, it is intended to be construed in light of subsections (1) to (4), and particularly subsection (1), i.e., "the place in which his habitation is fixed and to which. . . he has the intention of returning." It is merely meant to be a definition of "habitation," for the benefit of election officials, applicable when a person sleeps in one place but takes his meals and performs other "home" activities elsewhere.(fn1)
It is of course possible for a person to have more than one "residence", i.e., sleeping place, but he cannot have more than one domicile. The Eli Bridge Co. v. Dave Lachman , 124 Or. 592, 593, 265 P. 435 (1928). Similarly, a person may have only one residence for voting purposes, and these statutory provisions are designed to permit the voter (and election officials) to determine which is the true residence for voting
purposes, based primarily on the intent of the voter. Voting residence is defined in a manner almost identical to "domicile," although the element of permanence is more significant to domicile, and a person may retain a fictional domicile even after he has in fact left it permanently, if he has not established a new permanent domicile.
In Reed's will , 48 Or. 500, 87 P. 763 (1906), domicile is defined as follows:
"To constitute domicile there must be both the fact of a fixed habitation or abode in a particular place, and an intention to remain there permanently or indefinitely. . ." 48 Or. at 504.
"Residence in a particular place is a fact obvious to the senses and cannot be easily mistaken, but its value in fixing domicile is unimportant unless accompanied with an intent of remaining permanently or indefinitely, or, as it is sometimes said, with no present intent of removing therefrom." 48 Or. at 509.
It could fairly be said that a person establishing a fixed residence for an extended period of time, intending it to be his home until the happening of some future event, such as termination of a job or graduation from college, has no "present intent of removing therefrom," but merely an expectation , rather than a present intent, of leaving when the event occurs. Such a residence would clearly qualify as a residence for voting purposes, and might well also qualify as a domicile under Reed's Will , supra .
In summary, a person who leaves his former residence intending to abandon it as his home, and establishes a new residence, intending it to be his home for an extended period
of time, has established a new voting residence.(fn2)
Article II, Section 2 of the Oregon Constitution also speaks in terms of "residence" rather than domicile, providing that a person otherwise qualified by age, citizenship and registration may vote if he:
"(b) Has resided in this state during the six months immediately preceeding the election. . ."
Speaking of similar constitutional and statutory provisions, the Florida Attorney General has said:
"It is significant that both the Florida Constitutional and statutory provisions speak only in terms of durational residency requirements as a prerequisite to voter registration. . . .
"The qualification provisions do not mention or set forth any criterion requiring an intent to reside permanently in a given county. Neither do these provisions speak in terms of domicile which is clearly distinguishable from residency as a matter of legal principle." Opinion 071-202, August 3, 1971.
ORS 250.410 adopts the criteria for domicile, except the permanency requirement, as the criteria for voting residence. The statute also prevents dual residency for voting purposes. It requires a fixed (i.e., non-transient) habitation, but not necessarily a permanent habitation, and an intention of returning whenever absent for the duration that the particular habitation is fixed. Thus, whenever a person leaves his previous residence and establishes himself in a new non-transitory habitation, that
new habitation will become his voting residence if his intent is to abandon the previous residence and adopt the new.
These same considerations must be applied to determinations of the residence of a student. Any different treatment of students for voting purposes, than of persons of other occupations or status, must be supported by a compelling state interest. As said by the United States Supreme Court in Kramer v. Union Free School District , 395 U.S. 621 at 627 (1969):
"Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to a compelling interest."
In the very recent case of Wilkins v. Bentley , ------ Mich. ------ 189 N.W.2d 423 at 429 (June 25, 1971) the Court said:
"Plaintiffs need only show that a burden has been placed on this precious right [i.e., to vote] in order to avail themselves of the Equal Protection Clause."
In this case, which dealt with the right of students to vote in their college town, the court found that requiring students to vote at the residence of their parents, either in person or by absentee ballot, constituted an unacceptable burden imposed upon the right to vote.
It has been suggested that if a voting official knows that a registrant is a college student, certain assumptions may be made or presumptions may arise justifying a requirement that the student furnish detailed evidence of his true residence. However, in Wilkins v. Bentley, supra , the court held that this would be an undue burden on the right to vote, violating the Fourteenth Amendment. The court laid down this rule:
"In the future, students must be treated the same as all other registrants. No special questions, forms, identification, etc., may be required of students." 189 N.W.2d at 434 .
This is not to say that it would be unreasonable to require evidence of true residence to be furnished by all registrants on a county-wide basis, or by an registrant when a question is raised by the statements made on a registration card, or by other facts known to the registrar. ORS 247.141 provides:
"(1) The qualifications of any person who requests to be registered shall be determined in the first instance by the registering official from the evidence before him . . . ." (emphasis supplied)
The principal evidence before the registrar is the information furnished by the registrant under oath or affirmation, i.e., his name, sex, length of residence in the state, date and place of birth, parents' names, political party, and:
"(b) His mailing address, his residence address or any other information definitely locating his residence, or his county of previous registration.
. . . .
"(f) His occupation or profession." ORS 247.121(1).
If the address given is a college dormitory, or the occupation given is student, is the registrar justified in requiring the registrant to furnish proof that the statement of residence is correct, when he would not require such proof of other registrants? In our opinion, this would constitute the different treatment condemned by Wilkins v. Bentley, supra , and would be a violation of 42 U.S.C.A. §1971(a)(2)(A), enacted in 1964, which provides:
"2. No person acting under color of law: (A) shall in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote."
If the registrar has independent knowledge that information on the registration card is or may be incorrect, it would be proper for him to make further inquiry, or to reject the registration subject to an appeal to the county clerk as provided in ORS 247.011(8) and 247.141. The registrar may obtain justification for such further inquiry from statements by the registrant, such as this:
He is not justified in making such inquiry merely because the occupation shown is student, the age under 21, or the address a student address."My home is in Portland, but I thought it would be more convenient to vote here where I'm going to school."
In most cases, no information that the registrar could gain by making further inquiry would be of any value anyway, or would justify refusal to accept the registrant's statement under oath or affirmation of the place he considers to be his residence. Such inquiry, which would be improper in most cases, would also usually be futile. The facts which could ordinarily be developed would not be sufficient to rebut the registrant's statement. However, since some authorities have placed great weight on certain factors which can be determined on investigation, we discuss those factors and point out why they are not valid tests of true residence:
1. Address shown on driver's license . ORS 482.290(2) requires a licensee to notify the Motor Vehicles Division of any change of residence from that shown on the license, within 30 days after the change. Thus an address on a driver's license is some evidence of the registrant's true residence. However, it is not determinative. If the driver's license address differs from that shown on the voter registration card, this may be no more than evidence of a violation of ORS 482.290(2), not relevant to voting qualification.
2. "Home address" shown on college records . Since this address is furnished by the registrant, it is some evidence of his "intention" with respect to his true residence. However, it is by no means determinative, and careful analysis of the registrant's state of mind at the time he furnished the address to the college,(fn3) even if the registration officer were in a position to determine it, could reveal that he merely intended it to show his parents' address, his last address before entering college, or an address to which news or emergency messages could be sent.
3. Support by parents . This may well affect the registrant's intent, since if he is supported by his parents he is more likely to consider his true home to be still with them than if he is financially independent: but it is not inconsistent with his maintenance of an entirely separate residence, any more than receipt of alimony by a divorced wife means that her true residence is with her former husband. Application of a "support" test to
students, and not to other registrants, would be a violation of 42 U.S.C.A. §1971(a)(2)(A)2.
4. Departure from "college" residence on weekends and during summer vacations . As stated in Wilkins v. Bentley , supra , at 426 , "it is unconstitutional to deny the right to vote to students who exercise their right to travel and leave Ann Arbor [the college community] for the summer." (citing Shapiro v. Thompson , 394 U.S. 618 (1969).)
5. Return to parents' home on weekends and during summer vacations . The period of the late teens and early twenties, for students and non-students alike, is often a period of gradually increasing separation from the family. A high school graduate who takes a job in another city is as likely as a college student to return to his parents' home on weekends and during vacations. The definite and unequivocal establishment of a different residence, or a permanent domicile, does not terminate all ties to the former home, or visits to it. It is true that the person who intends to retain his residence with his parents is likely to return from his other "habitation" more often, and stay longer, than the person who intends the beginning of his college career or first full time job to mark the establishment of a new residence and the termination of his former residence; but the mere fact of such visits, even if frequent and protracted, is not inconsistent with the establishment of a new residence.
6. Residence in a college dormitory . This factor is of no relevance; if a student who has the necessary intent to terminate his former residence finds it more convenient or less expensive to live in a dormitory than to rent an off-campus room,
his right to vote while a student should not be abridged for this reason.
7. Maintenance of a room and personal belongings in his family's home . This is a matter of convenience, in most cases, since a person establishing his first residence apart from his family will often return for frequent visits, as discussed above, and may not for several years have facilities adequate to keep all his possessions at his new residence.
It could reasonably be asserted that the registrar is specifically forbidden to request or require information as to the factors listed above by ORS 247.121(2), which was amended in 1971 to read as follows:
The underlined language was added by Oregon Laws 1971, ch. 241 §1. Its effect is to give even greater weight to the registrant's sworn statement, and to ORS 247.171, which provides:"(2) No elector shall supply any information under subsection (1) of this section, knowing to be false. No county clerk or registrar of elections shall request any information unless it is required by subsection (1) of this section ." (emphasis supplied )
"(1) The county clerk or official registrar shall enter the information supplied by the elector under ORS 247.121 on a registration card which shall contain the following warning:
WARNING: Any elector who supplies any information, knowing it to be false, is punishable upon conviction by imprisonment in the penitentiary for not more than two years or by a fine of not more than $5,000, or both .
(2) The elector shall read the warning . . ." (emphasis supplied )
We conclude that the legislature's intent was to make the registrant's statement under oath virtually determinative.
It can be assumed that in the usual case a college student does not intend to return to his family home after completion of his course of study, but to obtain employment and establish a new residence at that time. He may, however, intend that his family home shall remain his residence until that time, notwithstanding his lodging away from home in his college town for extended periods of time. In that case, he should register and vote from the family residence, which is also his residence. His decision to do so in these circumstances would not ordinarily be questioned, and should not be questioned.
If on the other hand he resolves to consider himself emancipated and living apart from his parents, with his own residence, he is capable of doing so. He may abandon his previous residence and adopt new lodgings as his residence at the beginning or at any time during his college years, merely by a resolution to do so coupled with physical presence at that new fixed place of abode; even though other ties to the former residence, and evidence of them, may only gradually disappear. In our opinion, presence at such a fixed place of abode, coupled with an intention to abandon the former home and adopt the new as his residence, for an indefinite or definite but extended period of time, as evidenced by a declaration under oath that he has adopted the new residence, could not successfully be challenged except in the rarest case. It would be sufficient to outweigh all but the most overwhelming accumulation of evidence of ties to the former residence, or evidence that the registrant had made contemporary or very recent
statements of contrary intent. As stated in Chomeau v. Roth , 230 Mo. App. 709, 72 S.W.2d 997, 999 (1934):
"An in this view of the case, not only had the particular students abandoned their former residences upon entering the seminary, as there was evidence to disclose, but they presented themselves as voters at the proper precinct in the City of Clayton, declaring to the election officials there that they regarded the seminary as their place of residence. . . . If. . . residence for voting purposes must have some connection or identification with the community, such connection or identification could not better be evidenced than by a participation in the community's affairs by those who claim no other community as their residence."
We thus conclude that a college student should be permitted to register and vote, in the usual case, either at the location of his family home, if he declares under oath or affirmation on his registration card that he considers that to be his residence, or at his college residence, if he declares that he considers that to be his residence. He may be denied the right to register at the college residence only if there is convincing evidence that he has quite recently acted or expressed an intent inconsistent with his declaration. Registrars and county clerks may not require college students to furnish evidence of residence, as a condition of registration, if they do not require other registrants to furnish equivalent evidence; and there is substantial doubt that they may require evidence beyond the information furnished under oath, from anyone, unless the county clerk has independent evidence giving rise to a doubt as to the truth of that information.
As shown above, a college student is usually in a state of transition between dependence and independence,
loosening ties to his family and former home, without having established a new family and new permanent residence. He may be uncertain when he appears to register which place to declare as his residence. In the circumstances it would be entirely appropriate for a registrar to respond to an inquiry as follows:
"If you consider that you are merely temporarily absent from your parents' home or other home, and that you have not abandoned it or established a residence of your own, you should show your parents' home or other home as your residence. However, if you consider that you have left your parents' home, to return only as a visitor, and have established a residence of your own at the place where you are now staying, you should show that separate residence as your residence. Your statement under oath or affirmation as to the place which you consider to be your residence is determinative, so long as you are in fact residing there for an extended period of time."
We have not, to this point, touched upon the age of a college student as relevant to his residence. It is relevant, of course, in that a person 18 years of age is more likely than a person 38 years of age to reside with his parents. It may be contended that persons under 21 should be conclusively presumed to reside with their parents, in view of Lorenz v. Royer , 194 Or. 355, 241 P.2d 872 (1957), in which the court said:
"An infant, being non sui juris, is incapable of fixing or changing his domicile, unless he has been emancipated by his parents; and even then, according to some authorities, he is unable to make such change. During minority, the domicile of an infant continues to be the same as that of the person from whom he took his domicile of origin and changes only with the domicile of that person." 194 Or. at 368.
We first note, as previously stated, that domicile is to be distinguished from residence for voting purposes. Even if this were not the case, 18-year olds have been emancipated for voting purposes. Section 1 of the 26th Amendment to the United States Constitution provides:
"The right of citizens of the United States, who are eighteen years of age or over, to vote shall not be denied or abridged by the United States or by any State on account of age." (emphasis supplied )
The California Supreme Court in the very recent case of Jolicouer v. Mihaly , 96 Cal. Rptr. 697, 488 P.2d 1 (1971) held:
The court said that the voting rights of minors:"We conclude that for state officials to treat minor citizens differently from adults for any purpose relating to voting would violate the twenty-sixth Amendment to the United States Constitution." 488 P.2d at 2.
". . .shall not be curtailed on the basis of hoary fictions that these men and women are children tied to residential apron strings. Respondents' refusal to treat petitioners as adults for voting purposes violates the letter and spirit of the Twenty-sixth Amendment." 488 P.2d at 7.
Noting that the 26th Amendment provides that the right of citizens 18 years or older to vote "shall not be denied or abridged " on account of age, the court defined "abridge" as meaning "diminish, curtail, deprive, cutoff, reduce . . ." 488 P.2d at 4.
The court found that requiring minors to vote at their
parents' place of residence would place an undue burden
upon the voting rights of young people:
"Such young people would be isolated from local political activity, with the concomitant reduction in their political influence and information. The burden placed on youth would be different than that placed on other absentee voters. The youth, unlike other absentee voters, claims his current residence as his domicile but would be disqualified solely 'on account of age.'
"Sophisticated legal arguments regarding a minor's presumed residence cannot blind us to the real burden placed on the right to vote and associated rights of political expression by requiring minor voters residing apart from their parents to vote in their parents' district." 488 P.2d at 4.
The court described the irrational result of a rule which would require voters to vote at the residence of their parents:
"The rules announced by respondents not only would deny to some residence the right to vote where they live, but could also serve to give an unmarried minor a series of voting residences which he has never seen. The 18-year-old who lives and works in San Francisco for the three years he is a voting minor might well wind up voting in turn for the Mayor of Seattle, the Governor of Maine, and school bonds in Oshkosh, Wisconsin, only to be disenfranchised completely on the local level when his parents move permanently to Paris." 488 P.2d at 7$ndash;8.
The court further said that allowing minors to vote at "fictional residences" would "compromise the integrity of the political process" which seeks to insure that persons will vote in elections where they are familiar with the candidates and issues.
Holding that a minor must be subject to the same requirements in proving the location of his domicile as is any other voter the court concluded:
"In this case the strong likelihood that substantial numbers of voting minors living apart from their parents are emancipated for residential purposes, coupled with the necessity that minors given the vote be treated as emancipated for all purposes related to voting, persuades us that a minor 18 years of age or older must be treated as an adult for voting purposes, and that the location of his domicile may not be questioned on account of age or occupational status.
"We hold today that both the Twenty-sixth Amendment to the United States Constitution and California law require respondent registrars to treat all citizens 18 years of age or older alike for all purposes relating to voting. [A concurring opinion pointed out that consideration of California law was unnecessary inasmuch as the holding was required by the Twenty-sixth Amendment to the United States Constitution itself.] We do not imply that registrars may not question a citizen of any age as to his true domicile. However, the middle-aged person who obtains a job and moves to San Francisco from San Diego, and the youth who moves from his family home in Grass Valley to Turlock to attend college must be treated equally. . .we hold. . . that registrars may not specially question the validity of an affidavit claim of domicile on account of his age or occupational status." 488 P.2d at 11$ndash;12.
We concur with the reasoning of the above case and conclude that minors must be treated the same as adults for all purposes related to voting. We add that ORS 247.070(2) should be interpreted as allowing persons who have not yet reached the age of 18 to register to vote under the circumstances described therein, as has been allowed for persons who have not yet reached the age of 21.
Footnotes:
1 For obvious reasons, we construe the terms "married man" and "unmarried man" to include married and unmarried women, respectively.
2 However, if the person retains his former residence, maintains it and commutes to it, or if his family remains there, he has retained his original residence for voting purposes, as well as his original domicile. Similarly, a person who owns a beach residence and spends two or three months there each summer does not every summer lose his winter residence, and every winter regain it, since he has never abandoned his original residence.
3 This former state of mind is of course itself not determinative; the relevant intent is that existing at the time of registration to vote.