Pennsylvania Advisory Opinions September 09, 1971: AGO 64 (September 09, 1971)

Advisory Opinion Text

Voting—College students—Residence.

1. Subject to certain durational residency citizenship requirements, college students are permitted under State law to register to vote in the locality in which they are attending a college or university.

2. Students have a commitment and an intention to spend an indefinite period of time at the university or college of their choice, and also to establish a number of permanent relationships with various local institutions.

3. Because general elections fall in the first Monday in November in the middle of the first semester, students are unable to return or are seriously hindered in returning to the locality where their parents live to register and vote.

4. It is the spirit and intention of the 26th Amendment to remove any procedures which would substantially hamper or impose special burdens on persons 18 years or older in the exercise of the franchise. The use of an absentee ballot is a special burden.

5. Article VII, Section 1 of the Pennsylvania Constitution, establishes durational residency and citizenship requirements for electors.

6. In the past, State employes have been permitted to choose between one of two residences for voting purposes: residence where they live during the period of their employment or the residence where they lived prior to State employment to which they intend to return upon termination of their employment. Federal law appears to confer the same options on military personnel stationed at or in military installations.

7. There is little distinction, if any, for voting residency purposes between state employes and military personnel on the one hand, and students on the other.

8. To discriminate between students on the one hand and state employes and military personnel on the other by barring students the choice of one or another voting residence would violate the clear intent to the 26th Amendment and recent case law on the subject.

9. Section 2813 of the Election Code, 25 P. S. § 2813 intended to eliminate the factor of "presence" at an institution of learning for purposes of obtaining a residence for voting.

10.The student who takes up a residence in his college town has acquired a habitation, or place where he pursues his vocation and keeps his personal possessions, as he intends to pursue his vocation there for an indefinite period of time. His habitation becomes "permanent" and it is presumed that he intends to return whenever he is absent.

11.The student has the choice, as with state employes and military personnel, of maintaining a voter residence at his last prior residence or where he is attending college.

Hon. C. DeLores Tuckei

Secretary of the Commonwealth

Department of State

308 Main Capitol

Harrisburg, Penna. 17120

Dear Mrs. Tucker:

You have requested an opinion as to whether the laws of the Commonwealth of Pennsylvania permit college students attending colleges and universities in Pennsylvania to register to vote where their university or college is located.

You are advised by this opinion that, subject to certain durational residency citizenship requirements established by the Constitution of the Commonwealth of Pennsylvania, Pa. Const. Article 7, Section 1 hereinafter discussed, that college students are permitted under State law to register to vote in the locality at which they are attending a college or university.

As of 1970 there were some 390,000 students enrolled in public and private, two and four year colleges and universities located within the Commonwealth of Pennsylvania. These figures, of course, do not include those students enrolled in vocational and technical institutions. The 1970 Pennsylvania Statistical Abstract, pages 142-143. From the time the students are first enrolled at their college or university they are engaged in the vocation of pursuing and obtaining an academic degree or some other form of recognition by the academic community. The time the student will reside in the academic community is indefinite in that his period of residency will extend over the time needed by the student to fulfill the requirement for his academic degree and, in that once having obtained a degree, he may seek additional academic credentials at the same institution. In addition to the student's commitment and intention to spend an indefinie period of time at the university or college of his choice, the student also establishes a number of permanent relationships (permanent in the sense that the relationship will last for an indefinite period of time), with various local institutions, businesses and persons. In most instances, students open bank accounts and charge accounts at local banks and retail establishments, enter into leases with local landlords and in many instances pay local taxes and are employed by local businessmen. Students also live in a variety of dwellings in the area of the college or university of their choice. These dwellings range from the typical on-campus dormitory to the private home owned by a married student. To all of these dwellings the students bring their personal possessions for use during the period of their studies. Students may or may not intend to return, upon termination of their studies, to their last residence prior to enrollment.

Of crucial significance also is the fact that the general elections fall on the Tuesday next following the first Monday in November, a date which comes in the middle of the first semester of the school year. Because of their studies and because no recesses or vacations are scheduled at that time students are unable to return or seriously hindered in returning, to the locality where their parents live to register and to vote. Therefore, should students be compelled to vote in the localities where their parents live, they will be forced to utilize the cumbersome procedure of the absentee ballot. The experience of electors utilizing this procedure where they are compelled to do so (e.g. servicemen stationed overseas) demonstrates that only a small percentage of the persons compelled to vote by absentee ballot exercise their franchise by this means.

The 26th Amendment to the Constitution of the United States provides:

"The right of citizens of the United States, who are 18 years of age or older, to vote shall not be denied or abridged by the United States or by any state on account of age."

As the report of the United States Senate regarding the 26th Amendment clearly indicates, it is the spirit and intention of this Amendment to remove any procedures which would substantially hamper or impose special burdens on persons 18 years and older in the exercise of the franchise guaranteed by this Amendment.

"Moreover, forcing young voters to undertake special burdens—obtaining absentee ballots or travelling to one centralized location in each city for example—in order to exercise their right to vote might well serve to dissuade them from participating in the election. This result and the election procedures that create it, are at least inconsistent with the purpose of the Voting Rights Act, which sought to encourage greater political participation on the part of the young; such segregation might even amount to a denial of their 14th Amendment right to equal protection of the laws in the exercise of the franchise." Senate Judiciary Committee, Senate Report No. 92-96, 92nd Congress, First Session (emphasis supplied).

It is obviously a violation of the spirit of the Amendment to compel students to utilize the cumbersome, absentee ballot procedure. Secondly, it is a clear violation of the provisions of the Amendment to impose greater burdens on young people seeking to exercise their franchise than are otherwise imposed on older citizens seeking to exercise their franchise. In two cases arising in other states, Wilkins v. Bentley, 385 Mich. 670, 184 N. W. 2d 423 (1971) and Tabilio v. Mihaly, 96 Cal. Rptr. 697, 488 P. 2d 1 (1971) courts in California and Michigan declared certain statutes imposing special burdens on young people in their exercise of their franchise unconstitutional. In the Michigan case a statute creating the presumption that a student is not a resident of the campus town where the college of his choice was located was declared unconstitutional and in the California case an Attorney General's opinion barring unmarried persons under the age of 21 from establishing a residence for voting purposes different from their parents was held violative of California law and the United States Constitution. Attorney General's opinions which have been issued from the States of Massachusetts, Florida, Idaho, Georgia, Louisiana and Washington hold that no special barriers can be erected to the exercise of the franchise by younger citizens.

Article 7, Section 1 of the Pennsylvania Constitution establishes among other requirements, durational residency and citizenship requirements for electors. These requirements are that the elector shall have been a citizen of the United States at least one month, he shall have resided in the State 90 days immediately preceding the election and he shall have resided in the election district for at least 60 days immediately preceding the election.

The Election Code, 25 P. S. § 2813 and § 2814, establishes rules for determining residency in the Commonwealth and the election district for voting purposes.

Section 2813 of Title 25 in part provides:

"For the purpose of registration and voting no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence, while employed in the service, either civil or military, of this State or of the United States ... nor while a student of any institution of learning . . ."

Section 2814 of Title 25 further provides:

"In determining the residence of a person desiring to register or vote the following rules shall be followed so far as they may be applicable:

(a) That place shall be considered the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.

(b) A person shall not be considered to have lost his residence who leaves his home and goes into another state or another election district of this State for temporary purposes only, with the intention of returning.

(c) A person shall not be considered to have gained a residence in any election district of this State into which he comes for temporary purposes only, without the intention of making such election district his permanent place of abode.

(d) The place where the family of a married man or woman resides shall be considered and held to be his or her place of residence, except where the husband and wife have actually separated and live apart, in which case the place where he or she has resided for two months or more shall be considered and held to be his or her place of residence."

Two questions are raised by the foregoing statutory provisions. Firstly, do these statutory provisions by operation and court interpretation establish special categories of electors who may have the option of choosing between one or two residences for voting purposes. Secondly, do students who reside in their campus towns obtain a residence under the rules established by these provisions. The answer to the first question is critical in that if it has been established that certain electors have the choice of maintaining a residence for voting purposes at one of at least two locations, then Pennsylvania law has established a special category of electors for purposes of facilitating the exercise of their franchise. If such a category of voters is established under present law, serious constitutional questions are presented, if by operation of the same law, students, who occupy a similar situation are not permitted to make such a choice. The answer to the first question, in light of the constitutional questions raised, of course, bears directly on the answer to the second question.

In the case of Newport Township Election Contest, 384 Pa. 474, 121 A. 2d 141 (1956) votes in a municipal election of State employes who lived in state owned housing facilities and who, under state law, were required to move from these facilities, upon termination of State employment were challenged. The Supreme Court of Pennsylvania, in denying the challenges held:

"A person employed by the Commonwealth may, if he sees fit, establish his domicil and gain residence at his place of employment by taking the proper and appropriate steps to do so—as these voters did". Id. at 478, 121 A. 2d at 143 (emphasis supplied.)

In so ruling, the Court permitted State employes to choose between one of two residences for voting purposes, i.e., the residence where he lives during the period of his employment or the residence where he lived prior to State employment and to which he intends to return upon termination of his employment. Permitting this choice has been the practice in this State. In an Attorney General's opinion by Attorney General Margiotti, Op. Atty. Gen. No. 225 (1937), the predecessor provision of 25 P. S. § 951-18 (g) which provides that "state employes shall be registered as of the district wherein he or she shall have resided immediately prior to entering such service" was construed to be directory and not mandatory on State employes. Such a construction meant that State employes, if they chose to register at their prior residence, were to be registered but, just as explicitly, meant that they could register at their place of employment if such was their choice.

In addition to State employes, who are permitted by operation of Pennsylvania law a choice of voter residence, Federal law appears to confer the same options on military personnel stationed at or in military installations. In Carrington v. Rash, 380 U. S. 89 (1965), the Supreme Court invalidated a provision of the Texas Constitution which barred servicemen from voting at their residence on or near a military installation and required them to vote at their last residence prior to entering the service. In so holding the Court stated:

"We deal here with matters close to the core of our constitutional system. 'The right to choose,' . . . that this Court has been so zealous to protect, means, at the least, that States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State. ... By forbidding a soldier ever to controvert the pre- sumption of nonresidence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment. '[T]here is no indication in the Constitution that . . . occupation affords a permissible basis for distinguishing between qualified voters within the State.' . . ." Id. at 96 (citations omitted).

There is also a provision of Federal Law, 50 U. S. C. 1453, which recommends that states permit military personnel to vote in the state where his or her military installation is located. The obvious result of the above cited Federal law, as with the instance of State employees, is to permit, military personnel the choice of registering to vote at the place where they are serving the tour of duty or at their last residence prior to military service to which residence they intend to return after their tour of duty.

There is little distinction, if any, for voting residency purposes between State employes and military personnel on the one hand and students on the other. Each class moves to a place away from a place where he or she has customarily maintained a home. Each moves for the purpose of pursuing a vocation be it state employment, military service or studies. Each intends to remain for an indefinite period of time or, in a legal sense, "permanently";—in the case of a State employe until he or she resigns, is removed from office or there is a change of administration, in the case of military personnel until his or her tour of duty is completed, cessation of hostilities or discharge from the service, and in the case of a student until his degree requirements are fulfilled, he is terminated from enrollment or withdraws voluntarily. With regard to either the State employe, the serviceman or student, he or she may intend to return to the last residence prior to employment, military service or pursuing studies at a college or university.

As pointed out previously to discriminate between students on the one hand and State employees and military personnel on the other by barring students the choice of one or another voting residence would violate the clear intent of the 26th Amendment and recent case law on the subject. It follows from well established tenets of statutory construction that the question of whether students meet the standards of residing set forth in Section 2813 and 2814 of the Election Code must be decided in light of these constitutional considerations.

In construing Section 2813 of Title 15, the intent of that provision is to eliminate the factor of "presence" at an institution of learning for purposes of obtaining a residence for voting. The case of Newport Township Election Contest, supra, decided this point directly. There the Pennsylvania Supreme Court stated:

"To give these provisions [Section 2813] the construction and application to facts contended for by contestants [those parties claiming that the votes of the State employes were valid] would be to lead to an absurd and unreasonable result. They were not intended to, nor do they, preclude establishment of a domicil where the State employe works. They mean only what they state,—that their residence cannot be changed merely by reason of their employment. As stated in 29 C. J. S., Elections, § 24, page 48: 'The fact, however, that a person does not gain or lose residence merely by reason of his presence or absence while in the service of the government does not preclude him from otherwise gaining a residence at the place so employed.' . . ." 384 Pa. at 478, 121 A. 2d at 143.

Having eliminated the factor of presence for purpose of a voting residence the rules for determining residence established in Section 2814 becomes critical. The operative language of Section 2814 is contained in clauses (a) and (b). As quoted at page 5 of this opinion, clause (a) defines voter residence as a fixed habitation to which the person intends to return whenever he is absent. The student who takes up a residence in his college town has acquired a habitation, i.e., a place where he pursues his vocation and keeps his personal possessions. See Lesker Case, 377 Pa. 411, 418, 105 A. 2d 376 (1954). In view of the fact that he intends to pursue his vocation for an indefinite period of time, his habitation becomes "fixed" or "permanent" and hence by being "permanent" it is presumed that he intends to return whenever he is absent. See Lower Oxford Contested Election, 1 Chester Co. 253 (1875) in which the Court defined permanency as not meaning "absolute permanency" and Parrish v. Hainlon, 124 Col. 229, 236 P. 2d 115 (1951) where the Colorado Supreme Court denned "permanency" in terms of an indefinite period of time necessary to pursue a vocation or an objective.

Clause (b) of Section 2814, on its face may properly be applied to the situation where a student takes up residence at a college or university and intends to return to his last prior residence upon completion of his studies. This clause, preserves to the student, as is the case with State employes and military personnel, the option of maintaining a voter residence at his last prior residence.

By construing the Sections 2813 and 2814 in the foregoing manner the constitutional problems previously described are obviated. By this interpretation, a student will have the same choice of voter residence as the State employe and serviceman.

It is necessary at this point to call your attention to a very early Pennsylvania Supreme Court case, Fry's Election Case, 71 Pa. 302 (1872). That case involved an election contest which challenged the validity of votes cast by college students at their college residence. At the time that that decision was rendered, the provisions of Section 2813 and Section 2814 of Title 25 had not been enacted. However, there was a provision of the Constitution of 1838 applicable to that case which was similar to the present Section 2813. As noted above, Section 2813 and, of course, the analogous earlier constitutional provision, merely state that presence in a campus town is not a factor to be considered for determining residency. At the time that the Fry's Election Case was decided there were, however, no rules, similar to those contained in present Section 2814, which established criteria for determining residence for voting purposes. In the absence of such rules, the Court in Fry's Election Case was compelled to resort to the restrictive concept of "domicil" to determine whether the college students in that case obtained a residence for voting purposes. With constitutional changes, including ratification of the 26th Amendment, and the enactment of the statutory provision, Section 2814, since the decision in the Fry's Election Case, it is clear that the rules for determining residence for voting purposes are not based on the restrictive "domicil" test. Rather these rules as discussed above, are based on practical considerations of alternative means to exercise the franchise and the intention of the elector and his ties to the community in which he seeks to exercise the franchise. For the foregoing reasons we find that the decision in Fry's Election Case is distinguishable and does not govern present conditions.

Very truly yours.

J. Shane Creamer, Attorney General.

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Notes:

In addition to the durational residency requirements of Article 7, Section 1 requires that every citizen be 21 years of age in order to vote. As a result of ratification of the 26th Amendment to the United States Constitution this provision is no longer valid. However, invalidation of the 21 year old age requirement of Section 1, on the basis of well accepted rules of statutory construction, does not render the durational residency requirements of that Section invalid. Moreover, Act 29, 71 Session, recently enacted into law and repealing in part § 2811 of the Election Code, 25 P. S. § 2811, extends the franchise to persons 18 years old or older subject to the same durational citizenship and residency requirements of Article 7, Section 1.

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