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Landmark Election Case Changes Voter Registration
By: Joseph J. Savino and Daniel S. Szalkiewicz 

On August 18, 2010, the Appellate Division, Second Department handed down a landmark 5-0 decision, redefining the Election Law in New York State[1].  The decision allows voters to register and enroll with a new party upon moving to a new county. The case involved Debra Ortutay, a candidate for the New York Independence Party State Committee, and whether she was required to wait until after the November general election in order to register to vote and enroll in a new party. 

The Supreme Court, relying on precedent, held when a voter relocates from one county to another, a change in party enrollment will not take effect until after the next general election.  Faga Savino, LLP, on behalf of Ms. Ortutay appealed the Supreme Court decision to the Appellate Division, setting the grounds for a judgment that would drastically change party enrollment procedures.

• Historical Background 

To avoid the practice known as “party raiding”, the New York State Legislature enacted delay provisions for those enrolling with a new party. These sections provide that upon moving from one address in a county to another within the same county, the voter must wait until after the general election for his change of enrollment to take effect. Another provision requires that a voter be a resident of a county for at least thirty days before they are able to register to vote. 

Prior to 1992, a voter had the right to transfer his registration from one county to another. The law defined the term “move” as a physical relocation of the voter’s residence, regardless of whether the relocation was done inter- or intra-county. In the often cited case of Leemhuis v. Scranton[2], the petitioner moved from Schenectady County to Saratoga County, and immediately applied to change his voter registration. The Board of Elections approved the change of enrollment, but required that the delay provision apply, thereby making the change effective only after the November 1988 election. The Supreme Court agreed with the Board of Elections. 

In 1996, as a response to the implementation of the federal National Voter Registration Act (NVRA), New York State made sweeping reforms to its Election Law.  The NVRA contemplated the treatment of counties within a state as separate units of registrar jurisdiction. When New York incorporated the NVRA in the Election Law, one of the keystone changes was the elimination of transfer of registration between counties. As such, the election law now defines transfer of enrollment and registration as only occurring “in the city or county” of the registered voter. Section 5-400(1) was further amended to mandate that a voter’s registration is cancelled if he or she “moved his residence outside the county in which he is registered.”

Under the Election Law, a registered voter has the ability to “change his enrollment” from one party to a different party or from a “blank” to a party. However, the change will be effective only after the next general election. 

B.   Coopersmith v. Ortutay and the non-existent transfer of registration between  counties. 

In 1993, Debra Ortutay, under her maiden name “Threet,” registered to vote in Kings County as a “blank.” She voted in several elections, the latest being the November 2009 election. In February 2010, Ms. Ortutay and her husband, Michael Ortutay, moved to Rockland County, and in June 2010, Ms. Ortutay registered to vote with the Rockland County Board of Elections. At the time she filled out the New York State Voter Registration Card, she used her legal name, Debra Ortutay, her new Rockland County address, and included her date of birth and the last four digits of her Social Security Number. She did not include the last year she voted, her previous address, county, and that she was previously registered under the name Debra Threet. Because of this omission, the New York City Board of Elections was not notified of Ms. Ortutay’s change in voter registration and, therefore, her Kings County registration remained in an active status. 

Ms. Ortutay proceeded to enroll with the Independence Party, and circulated designating petitions for herself and her husband to be the Male and Female member of the Independence Party State Committee from the 94^th Assembly District. She also witnessed the petitions for her husband, a job that can only be done by an enrolled member of the Independence Party. 

Marsha Coopersmith and Cesar Perez brought a Petition in New York State Supreme Court, under the Election Law, seeking to invalidate the Ortutays’ designating petitions.  Coopersmith contended that, pursuant to the Election Law, Ms. Ortutay’s registration as a member of the Independence Party constituted a change of party enrollment and therefore was not in effect until after the next General Election. 

Through her lawyer, Joseph J. Savino, a partner in the law firm Faga Savino, LLP, Ms. Ortutay argued that, pursuant to Section 5-400(1) of the Election Law, a voter’s registration is cancelled when she moves her residence outside the county in which she is registered. By virtue of her move to Rockland County, Ms. Ortutay’s Kings County registration should have been cancelled by operation of law, allowing her to register anew in Rockland, and then immediately become a member of the Independence Party with all the rights and privileges of an enrolled member. 

Relying on Leemhuis, the Lower Court agreed with Coopersmith and invalidated the Ortutays’ designating petitions. The Court held when a voter who is already registered to vote seeks to change his or her enrollment from one party to another, either by deleting his or her enrollment in a party or by enrolling in a party when previously not enrolled, the change does not become effective until the first Tuesday following the next general election. Also relying on Espada v. New York City Board of Elections[3], the lower court held that the cancellation of a voter’s enrollment was not automatic. The Lower Court found that the Election Law set forth the procedure for cancellation of a voter’s registration and specifically that no such cancelation may occur until the voter is notified by the Board of Elections of its intention to cancel and given an opportunity to be heard. 

• The Second Department’s Decision 

Attorney Savino brought an emergency appeal before the Second Department, in an effort to remedy the errors of the Supreme Court. On appeal, Mr. Savino argued that the court’s reliance on Leemhuis was misplaced, because the Election Law no longer allows a voter to transfer her registration from one county to another. Mr. Savino further posited that the ruling would deny Ms. Ortutay her constitutionally guaranteed right to vote. If she were to return to Kings County to vote in the election, she would be committing a felony because she was no longer a resident. Alternatively, she was unable to vote in Rockland County because the lower court ruled that she was not and cannot become a registered voter until after the November 2010 election. 

In their landmark decision, the Second Department agreed with Mr. Savino. The Second Department held that when Ms. Ortutay changed her residence from Kings County to Rockland County and registered to vote, she moved outside the county in which she was registered, and was no longer eligible to vote in Kings County. Thus, Ms. Ortutay’s registration in Rockland County must be deemed a new registration or re-registration, rather than a transfer of registration and enrollment, and therefore not subject to the waiting period imposed for change of enrollment. 

• Effect of the Second Department Decision and Changes to the Current Election Law. 

The ruling in Coopersmith v. Ortutay has a widespread effect on the Election Law throughout New York State. 

First, the holding negates twenty two years of precedent by definitively overruling Leemhuis, and stating that a voter is no longer able to transfer his registration between counties. 

Second, the court held that a voter is only required to fill in the pertinent sections of the voter registration card in order to be considered a register voter. Although Ms. Ortutay voted in the 2009 general election under a different name and different address, this omission from the card did not deny her to right to register in Rockland County. As long as she provided the Board of Elections with all required information, and two identifiers (her date of birth and last four digits of her Social Security Number), there is no bad faith on her behalf and she will still be considered an enrolled voter. 

Third, the decision stands for the principle that a delay in administrative procedures cannot deny a person the right to vote. Although Ms. Ortutay was still in the poll records as being a registered voter in Kings County, this did not prevent Rockland County from likewise including her name on their poll records, and allowing her to vote in her new county. 

Finally, notice that a previous voter registration has been cancelled need not be given to the voter before they are able to enroll in a new party. Ms. Ortutay did not receive a notice from the New York City Board of Elections that her Kings County registration was cancelled when she changed her residence. Solely by operation of law, a voter’s registration is immediately and automatically cancelled when they permanently change their residence from one county to another. 

Joseph J. Savino, Esq. and Daniel S. Szalkiewicz, Esq. represented Debra and Michael Ortutay, the Appellants in Coopersmith v. Ortutay and are associated with the law firm Faga Savino, LLP., where Mr. Savino is a partner and Mr. Szalkiewicz is of counsel. Faga Savino, LLP is a full service law firm that represents clients in many different practice disciplines, throughout the Federal, State and local justice systems in New York State.