Number 3 July 21, 1971

Number 3 July 21, 1971 Honorable John F. X. Davoren Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Mr. Secretary: You have requested my opinion on certain questions propounded by representatives of the city and town clerks of the Commonwealth. The questions relate to persons between the ages of 18 and 21, both students and non-students, who seek to register to vote in Massachusetts cities and towns where they presently live. The hypothetical situations which have been presented to me include the following: (1) students residing in dormitory residences who are supported by their parents; (2) students residing in dormitory residences who are self-supporting; (3) students re- siding in apartments or other non-college residence facilities, both de- pendent upon their parents and self-supporting; and (4) non-students who have left their parents' homes and are either dependent upon their parents or self-supporting. First, it is assumed in all cases that the student or non-student, as the case may be, seeks to register to vote in a community other than where his or her parents reside. Secondly, the cases which have been pre- sented to me include persons whose parents reside within the Common- wealth and cases where parents reside in another state. For the purposes of the discussion which follows, it is immaterial whether the parents re- side within Massachusetts or elsewhere. Finally, it is also assumed that the student or non-student, as the case may be, is a citizen of the United States either by birth or naturalization. While I would ordinarily decline to answer questions propounded by municipal officials, even though presented by the head of a state agency or a constitutional officer (Compare Op. Atty. Gen'I 1969-1970, No. 37, June 30, 1970), the questions posed appear to be of general applicability P.D. 12 41 and are recurring. In addition, there are presently pending in the United States District Court for the District of Massachusetts three suits raising questions analogous to those presented by your request {Garrett v. Larkin, et al., Civil Action No. 71-651-W, Vance et al. v. Board of Election Commissioners, Civil Action No. 71-1229-F and Monroe v. Board of Election Commissioners of Cambridge, Civil Action No. 71-1442-F). Since I am required to defend in those cases, inasmuch as you, in your official capacity, are a defendant in the cases, and because diversity of answers to your questions would create "a problem of state-wide importance" (see 1968 Op. Atty. Gen'l 129, 130), I proceed to answer the questions presented in the "hope that these views will bring about consistent application [of the principles applying to voter registration] throughout the Commonwealth." (Id.) The answers to these questions require examination of federal and state constitutional provisions, as well as of a number of court decisions and advisory opinions. I. MINOR VOTERS IN GENERAL The Twenty-sixth Amendment to the Constitution of the United States, recently ratified by three-fourths of the states, provides in sec- tion 1 that "The right of citizens of the United States, who are eighteen 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." The states, however, "have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised." Lassiter v. Northampton Election Bd., 360 U.S. 45, 50; Evans v. Cornman, 398 U.S. 419, 422. Included among them is the "power to impose reasonable residence restrictions on the availability of the ballot." Carrington v. Rash, 380 U.S. 89, 91. Under the Constitution of Massachusetts, "Every citizen of nineteen 1 years of age and upwards . . . who shall have resided within the town or district in which he may claim a right to vote, six calendar months next preceding any election . . . shall have a right to vote in such election . . . and no other person shall be entitled to vote in such election." The requirement that the applicant "shall have resided" in the town for six months has traditionally been construed as requiring that the applicant have established his "domicil" in the town. Opinion of the Justices, 5 Met. 587, 588. The concept of "domicil" is utilized for many purposes, including property tax liability and probate jurisdiction of wills 2 and the custody of children. Some of the stricter re- quirements of "domicil" pertaining to those areas have not always been applied when the question concerns "domicil" for voting purposes. See Putnam v. Johnson, 10 Mass. 487, 501. In general, "domicil" means ac- tual residence in the town, coupled with an intention to remain indefi- nitely. See Putnam v. Johnson, supra, at 500-501; Opinion of the Jus- 1 Since ratification of the Twenty-sixth Amendment the number "eighteen" should be read in place of "nineteen." 2 See. e.g., Texas v. Florida, 306 U.S. 398, 413-428. 42 P.D. 12 tices, supra, at 590. See also Carrington v. Rash, supra, at 94. The in- tention to remain indefinitely does not mean an intention to stay forever, but merely that there is no present intention of leaving. Putnam v. Johnson, supra. The recent extension of the franchise to citizens between eighteen and twenty-one years of age presents some difficulty in establishing whether an applicant of that age is entitled to register. Although some disabilities of minors have recently been removed from those over eighteen, see St. 1971, c. 253 (lowering the age at which a person may make a campaign contribution in excess of twenty-five dollars to eighteen years); St. 1971, c. 255 (males may marry without parental consent at age eighteen); and St. 1971, c. 291 (person may make a will at age eighteen), they remain minors until they are twenty-one or otherwise emancipated. It is the general rule that "[OJrdinarily, 'the domicil of a legitimate minor child is that of the father.' Glass v. Glass, 260 Mass. 562, 564. Restatement: Conflict of Laws, § 30." Green v. Green, 351 Mass. 466, 467-468. It ap- pears, however, that an unemancipated minor may establish his own domicil with the assent, express or implied, of his parents or guardian. See Kirkland v. Whately, 4 Allen 462. An emancipated minor of course has the power to establish his own domicil. Restatement: Conflict of Laws, § 31. If these principles were applied to voter registration, an un- emancipated minor over eighteen would be restricted to his father's vot- ing residence unless his father gave his assent to a change of residence. As noted above, however, the rules pertaining to domicil for tax or probate purposes may not always prevail where domicil for voting pur- poses is concerned. Putnam v. Johnson, 10 Mass. 487, 501. The pur- poses of the domicil requirement are to afford the registrars of voters the opportunity to ascertain the qualifications of the voter, and to prevent the possibility of fraud through multiple voting. Id. at 502. To restrict the ability of an unemancipated minor, over the age of eighteen, to choose his domicil for voting purposes would serve neither of these pur- poses. Moreover, to restrict the eighteen year old's right to choose his residence for voting purposes, a right possessed by voters over twenty- one years of age, would be to "abridge" his right to vote "on account of age," in contravention of the Twenty-sixth Amendment. Consequently, it must be concluded that, for purposes of registering to vote, a minor either emancipated or unemancipated over the age of eighteen years has the right to establish his own domicil with or without the consent of his parents or guardian. II. MINOR VOTERS WHO ARE STUDENTS The determination whether a student from another city or state, who has taken up residence at or near the college or university he attends, has made his new residence his domicil for voting purposes is, as in all cases of recently moved registrants, a question of fact, to be determined by all the cirumstances of the case. Opinion of the Justices, 5 Met. 587. As noted above, the basic elements of domicil are the actual establish- P.D. 12 43 ment of residence in the city or town, and an intent to remain there in- definitely. Once a student living at or near a college or university has shown that he has resided in the city or town "in which he may claim a right to vote, six calendar months next preceding any election of gover- nor, lieutenant governor, senators, or representatives," 3 and has de- clared his intention to stay in the city or town for an indefinite period, he has shown himself eligible to register as a voter. (Am. Art. Ill, Mass. Const.) As in the case of any other applicant for registration, of course, the circumstances may be such as to show that the student applicant in fact lacks the necessary intent to establish his domicil in the town. However, the fact that he is a student, residing in the town for the purpose of pur- suing a course of studies for a number of years, should place on him no greater burden of proving his domiciliary intent. Whether he prefers or is required to reside in a college dormitory rather than in privately pur- chased or leased premises is of no real utility in determining his intent, see Putnam v. Johnson, supra, at 490; and while in 1843 great weight was placed in the Opinion of the Justices, supra, upon whether the student's father was supporting him while at college, this factor is of lit- tle relevance today. It is common for parents to contribute to the sup- port of their children attending college. Yet it is also common today that students upon graduation do not return to their home towns. Many de- cide to stay in the communities where their colleges are located; many others move to different cities and different parts of the country, accord- ing to the opportunities for employment or post-graduate studies. It may have been the general habit for students in 1843 to return home after graduation; if their families paid for their education, there may have been even more reason for assuming an intention to return. However, in view of the mobility of persons and families in today's society, and of the indefinite nature of the plans of college undergraduates generally, the same cannot be said today. Perhaps most college students do return home at graduation, but an intention on the part of a college student to return to his former home cannot be presumed on the basis of his family's financial support. There may exist fear that some small communities with a large per- centage of students in the population may be "taken over" by student voters, who may then implement "radical" programs. The possibility of such a "take-over", however, would depend largely upon how many students were willing to give up their right to vote in their communities of origin. Moreover, the fear that student-voters would tend to take rad- ical measures may be groundless. See Legislative History on Twenty- sixth Amendment U.S. Code Cong. & Ad. News, 92d Cong. 1st Sess., 364 (Adv. Sh. No. 3, April 25, 1971). At any rate, students over the age of eighteen years, if they have the intention of making the college town their home indefinitely, "have a right to an equal opportunity for politi- 3 or any other state, city or town election. See G. L. c. 51 , § I. 44 P.D. 12 cal representation . . . 'Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally imper- missible." Carrington v. Rash, 380 U.S. 89, 94; Evans v. Cornman, 398 U.S. 419,423. III. SUMMARY In summary, no definitive answer can be given to the question whether the persons described in the above hypothetical situations are entitled to register to vote in the cities or towns where they presently reside. The resolution of each case will depend upon the particular facts of that case. While I have been urged to provide the various Boards of Registrars of Voters and Election Commissioners with general guidelines to aid them in resolving questions in this area, I deem it inap- propriate to do so. Each case will, of course, be different, and the vary- ing factual situations cannot be identified with any degree of certainty. Any attempt to treat exhaustively the different situations which may arise, will, of necessity, fail because some situations will be omitted or overlooked. Moreover, I deem it unwise to commit myself in advance to the resolution of factual problems which may never occur, and I con- sider it the better course to leave myself free to resolve situations and cases which are presented to me at such time as resolution is required. There can be stated, however, certain general principles which may be of aid in resolving particular cases as they arise. First, the fact that a minor over eighteen years of age is not emancipated, financially or otherwise, from his parents has no bearing on his right to choose his own domicil for voting purposes. The fact that such a minor, whether or not a student, may be supported in whole or in part by his parents is in itself insufficient reason to refuse to register an otherwise qualified ap- plicant. Second, the fact that a minor voter who is a student resides in a dormitory, fraternity house or other college residence is of no relevance. The basic question to be answered is whether he intends to return to his former home as soon as his course of studies is completed. The fact that he may find residence in a dormitory or fraternity house more conven- ient or less expensive than renting an off-campus apartment does not answer that question. In conclusion, the decision whether a minor voter in one of the above hypothetical situations is entitled to register to vote should be reached in the same manner as a like decision regarding an applicant for registration who is over twenty-one years of age and has recently moved into the city or town. And, although the 1843 Opinion of the Justices, to which I have referred, does state that "stronger facts and circumstances must concur to establish the proof of change of domicil in the . . . case [of a student residing at an educational institution]" {Opinion of the Justices, supra, 5 Met. 587, 590), that statement cannot be considered valid today in the light of the Twenty-sixth Amendment to the Federal Constitution. Very truly yours, ROBERT H. QUINN Attorney General P D 12