Voting Residence

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 thirty 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.”)  

Willkie v. Board of Elections, a case applying this principle to the case of eight Delaware County dual residents, is currently pending in state Supreme Court.

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 candidate established voting residence in 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”)

Iaboni v. Sunderland, 573 N.Y.S.2d 625, 625 (App. Div. 2d Dept. 1991)

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.”)

Voter has the benefit of the doubt—see N.Y. Election Law § 3-212(2); Williams v. Salerno, 792 F.2d 323, 329 (2d Cir. 1986) (determination by board of elections to reject a voter application requires a majority vote of the commissioners; where there are only two commissioners, a majority must be a unanimous vote). As a result, if one Commissioner agrees with the voter, the voter wins. (Since the New York State Constitution requires one election commissioner from each of the two major political parties, the voter may be able to find that one Commissioner is a natural ally.)

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).

For contact information for your county Board of Elections, click here.

To change your voter registration, you need to fill out a voter registration form, which is also available at your county Board of Elections. Like college students and the homeless, dual residents pose an administrative question for election officials, but as the Second Circuit Court of Appeals observed in Wit v. Berman, 306 F.3d 1256, 1262-1263 (2d Cir. 2002), a case involving dual residents of New York City and the Hamptons:

“New York has responded to this administrative difficulty in a pragmatic way. New York courts have held that, rather than compel persons in appellants’ circumstances to establish to the satisfaction of a registrar of voters or a court that one home or the other is their principal, permanent residence, they can choose between them. [citation to Ferguson and O’Hara, supra, omitted] This pragmatic approach lessens the burdens on registrars, who in most cases need only verify an address, and on people like appellants, who otherwise might be turned down at both places and have to go to court in order to be able to vote anywhere.”

Absentee Voting Rights

Grounds for absentee voting—N.Y. Election Law § 8-400; see also Sheils v. Flynn, 299 N.Y.S. 64 (Sup. Ct. Albany County 1937), aff’d 275 N.Y. 446.

“Unavoidable” absence to be determined by voter—Sheils v. Flynn, 299 N.Y.S. 64 (Sup. Ct. Albany County 1937), aff’d 275 N.Y. 446.

Benefit of the doubt goes to the voter— Sheils v. Flynn, 299 N.Y.S. 64, 77 (Sup. Ct. Albany County 1937), aff’d 275 N.Y. 446 (“The statement made by the voter ought to be construed liberally and in the voter's favor.”).

N.Y.S. Board of Elections site on absentee voting.

Find the address for your County Board of Elections here.


Residence for Tax Purposes

Different legal residences for different purposes—see Wit v. Berman, 306 F.3d 1256, 1260 (2d Cir. 2002).

Principal residence for tax purposes—see See N.Y. Tax Law § 605(b) for New YorkState and NYC Administrative Code § 11-1705(b)(1) for New York City; see also NYCRR 105.20(d) (definition of “domicile”).

Agreement among Northeastern states—North Eastern States Tax Officials Association, Cooperative Agreement on Determination of Domicile, Oct. 1, 1996 (recognizing that dual residents can easily change voting residence and therefore giving that factor little weight in determining residence for tax purposes).


Jury Duty

Residence—See Uniform Rules for the Jury System §128.4 (“Among the factors that may be considered in determining the principal home [for purposes of jury service] is relative proportion of time in the year that the person customarily resides in the county or municipality.”).

Frequency of Service—See Uniform Rules for the Jury System § 128.9 (typically providing for a six-year reprieve from jury service); see also NYS Court System’s website, jury FAQ #11 by clicking here: Jurors’ Handbook

The advice on the website comes from conversations with the New York County Clerk and the Dutchess County Commissioner of Jurors. Please let us know if you have additional knowledge or experience with how this works out in practice.


Motor Vehicle and Insurance

Different legal residences for different purposes—see Wit v. Berman, 306 F.3d 1256, 1260 (2d Cir. 2002).


Rent Control/Stabilization

For discussion of nonprimary residence as grounds for eviction, see AndrewScherer, Residential Landlord-Tenant Law in New York §§ 4:45, 8:211 (2007).


New Jersey and Connecticut

The election law in New Jersey has a statute that permits dual residents to pick one or the other and formally declare that address to be his or her electoral residence, and Connecticut caselaw similarly supports the dual resident voters’ right to choose. These rules apply equally to people with two residences in those states and, for example, to voters with an apartment in New York City and another home in NJ or CT.

The leading New Jersey case is Worden v. Mercer County Board of Elections, 61 N.J. 325, 348 (N.J. 1967), which Connecticut followed in Farley v. Louziotis, case # 41032, Superior Court, New London County, October 4, 1972.

The Worden court held that anyone “who satisfies the durational residence requirement, may vote where he resides, without regard to the duration of his anticipated stay or the existence of another residence elsewhere” and that “[i]t is for him alone to say whether his voting interests at the residence he selects exceed his voting interests elsewhere,” 61 N.J. 325, 350 (N.J. 1967). The court found that the fact that the students “actually lived at their campus residences, were interested in and concerned with the communities in which their campus residences were located, and asserted in good faith their purpose of voting there and no place else” qualified them to vote.

In Borden v. Lafferty, 233 N.J.Super. 634, 642 (N.J.Super.Ct. Law Div. 1989) a candidate for office did not have her automobile license or registration in her new town and did not yet send her children to school there or go to church there and used the second home on the weekends. The court held that “Economically, emotionally, and rationally” they had nonetheless become domiciled in the new town, noting that “[p]hysically, the Laffertys were in Pennington but the parts of them that count, their hearts and their heads, were in Bordentown.”