Did Maine's Constitution require the Legislature to pass LD 203, which would have barred college students living in college-owned housing from establishing voting residency in Maine?

Subject

Whether Article II, Section 1 of the Maine Constitution required the Legislature to enact L.D. 203, which would have prohibited college students living in college- or university-owned housing from claiming Maine as their voting residence if they did not reside in the municipality before attending the school.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

Representative Sykes asked the AG whether legislators who voted against L.D. 203 had violated their oath to support the Constitution, given that L.D. 203 was framed as implementing the student-voting clause of Article II, Section 1 of the Maine Constitution. AG G. Steven Rowe focused on the underlying legal question: did the Constitution actually require what L.D. 203 proposed? His answer was no, and he went further to suggest that L.D. 203, if enacted, would have raised serious Equal Protection problems.

Article II, Section 1 says that "the residence of a student at any seminary of learning" does not "entitle the student to the right of suffrage" in the town where the school is located. The AG read that clause as Maine's Supreme Judicial Court had read it in 1884 in Sanders v. Getchell: being a student is a neutral factor. A student gets no automatic voting residence by virtue of being a student, but neither does being a student disqualify someone from establishing voting residency by the same rules that apply to anyone else. Under Maine law, voting residence equals domicile: bodily presence plus intent to make the place a home, judged on the totality of facts.

L.D. 203 would have flipped that into a categorical bar. Anyone living in college-owned housing who had not lived in the municipality before attending the school could not establish voting residency. The AG observed that federal courts have repeatedly struck down statutes and registration practices that single out students for stricter residency tests than other citizens. The U.S. Supreme Court summarily affirmed that conclusion in Symm v. United States. The Second Circuit struck down an irrebuttable presumption that dormitory residence cannot be voter residence in Williams v. Salerno. The pattern across federal courts is consistent: states can require all voters to prove bona fide residency, but they cannot single out students for a higher burden, and they cannot bar dormitory residents categorically from establishing residency.

The AG also clarified that the existence of different "residency" definitions in Maine for different purposes (in-state tuition, hunting and fishing licenses) does not constrain voter-residency rules. Different state interests can support different residency definitions in different contexts.

Common questions

Q: Did Maine's Constitution actually say students could not vote where they go to school?

No. Article II, Section 1 said that the fact of attending school in a town did not by itself entitle a student to vote there. It did not say a student could not become a voter there if the student established residency the way any other citizen would. The Maine Supreme Judicial Court read it that way in 1884 (Sanders v. Getchell), and Maine has applied that reading ever since.

Q: What is "voting residency" under Maine law?

Voting residency means domicile: the place where the person has established a fixed and principal home and to which the person, when temporarily absent, intends to return. 21-A M.R.S.A. § 112 lists factors a registrar can weigh: where the person is currently living, where any motor vehicle is registered, the address on tax returns, where mail is received, the address on hunting or fishing licenses, the address on a driver's license, and any other objective facts. The registrar weighs them along with the person's stated intent.

Q: Why would barring on-campus students from voting violate Equal Protection?

The right to vote is a fundamental right. State limitations on voting must be supported by a compelling interest and narrowly tailored. Singling out one group of citizens (on-campus college students) and applying a stricter residency rule to them than to everyone else is the kind of group-targeted restriction federal courts have repeatedly struck down. The Second Circuit's Williams v. Salerno decision, the Fifth Circuit's Whatley v. Clark, and several federal district court decisions all rejected such rules.

Q: Could a Maine registrar still ask hard questions about a student's intent?

Yes. The Constitution requires equal treatment, not a free pass. A registrar can ask any registration applicant, including a student, the same questions and weigh the same factors under 21-A M.R.S.A. § 112. What the registrar cannot do is impose a different standard or a categorical bar.

Background and statutory framework

Maine has had a clause about student voting in its Constitution since the 19th century. Article II, Section 1 says, in relevant part: "nor shall the residence of a student at any seminary of learning entitle the student to the right of suffrage in the city, town or plantation where such seminary is established."

The Maine Supreme Judicial Court interpreted that clause in Sanders v. Getchell, 76 Me. 158 (1884), reading "entitle" to mean "automatically confer." Under Sanders, being a student is a neutral factor: no boost, no penalty. The voter has to establish domicile the same way anyone else does.

In 1972, in connection with the Conti v. Board of Registration litigation, AG James Elwin issued a formal opinion to the Secretary of State applying Sanders, and the Secretary distributed it to all registrars. That distribution led to dismissal of the lawsuit and to the Secretary of State's "Guidelines for Voter Registration," which says students should be treated the same as any other applicants. The 2008 opinion treated this 1972 guidance as continuing law.

Federal Equal Protection precedent against student-targeted voter residency rules is dense. Symm v. United States, 439 U.S. 1105 (1979), summarily affirmed a three-judge district court decision striking down a Texas county's special student questionnaire. Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986), struck down an irrebuttable presumption that dormitories cannot be voter residences. Several other federal district court decisions reached similar results. The 2008 AG opinion read all of these together as a settled federal-law backdrop.

Citations

Statutes:
- 21-A M.R.S.A. § 112 (Maine voting residence and factors)
- 12 M.R.S.A. § 10001(53) (resident hunting and fishing license)

Constitutional provisions:
- Maine Constitution, Article II, Section 1 (qualifications of electors; student-voting clause)
- U.S. Constitution, Fourteenth Amendment (Equal Protection)
- Maine Constitution, Article I, Section 6-A (Equal Protection)

Cases:
- Sanders v. Getchell, 76 Me. 158 (1884), being a student is a neutral factor
- Symm v. United States, 439 U.S. 1105 (1979), summary affirmance against special student questionnaire
- Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986), irrebuttable presumption against dormitory residency unconstitutional
- Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), striking down statutory presumption of student non-residency
- Dunn v. Blumstein, 405 U.S. 330 (1972), durational residency requirement struck down
- Carrington v. Rash, 380 U.S. 89 (1965), military-personnel residency restriction struck down
- Poirier v. City of Saco, 529 A.2d 329 (Me. 1987): voting residence equals domicile

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2008/ag_20080214.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

G. STEVEN ROWE
ATTORNEY GENERAL

February 14, 2008

Honorable Richard M. Sykes
House of Representatives
2 State House Station
Augusta, Maine 04333-0002

RE: Student Voting

Dear Representative Sykes:

You have requested a legal opinion of this office regarding a bill (L.D. 203), rejected by the First Regular Session of the 123rd Legislature, that would have prohibited college students from claiming residency in Maine for voting purposes if the students were living in housing owned by the college or university and did not reside in that municipality prior to attending the college or university. In particular, you have suggested that L.D. 203 was designed to implement Article II, section 1 of the Maine Constitution and that voting against it would seem to violate a legislator's oath to support the Constitution. Based on the court cases discussed below, it is our opinion that the provisions of L.D. 203 are not required by Article II, section 1 of the Maine Constitution. Moreover, L.D. 203, if enacted, might very well be found by a court to violate the Equal Protection Clauses in Article I, section 6-A of the Maine Constitution and the Fourteenth Amendment of the United States Constitution.

Article II, section 1 of Maine's Constitution provides in relevant part (emphasis added):

Section 1. Qualifications of electors; written ballot; military servicemen; students. Every citizen of the United States of the age of 18 years and upwards, … having his or her residence established in this State, shall be an elector for Governor, Senators and Representatives, in the city, town or plantation where his or her residence has been established, if he or she continues to reside in this State; … But persons in the military, naval or marine service of the United States, or this State, shall not be considered as having obtained such established residence by being stationed in any garrison, barrack or military place, in any city, town or plantation; nor shall the residence of a student at any seminary of learning entitle the student to the right of suffrage in the city, town or plantation where such seminary is established. No person, however, shall be deemed to have lost residence by reason of the person's absence from the state in the military service of the United States, or of this State.

This provision does not say that no student may establish a voting residence in the municipality where they attend an educational institution. The word "entitle" in this context simply means that residing in a municipality to attend college or university does not automatically establish that location as the student's voting residence.

Maine's highest court articulated this interpretation of Article II, section 1 in Sanders v. Getchell, 76 Me. 158, 165 (1884), stating in pertinent part:

It is clear enough that residing in a place merely as a student does not confer the franchise. Still a student may obtain a voting residence, if other conditions exist sufficient to create it. Bodily presence in a place coupled with an intention to make such a place a home will establish a domicil or residence. But the intention to remain only so long as a student, or only because a student, is not sufficient … He [the student] gets no residence because a student, but being a student does not prevent his getting a residence otherwise …

Each case must depend largely upon its peculiar facts.

In 1972, in response to a lawsuit contesting the Town of Gorham Board of Registration's refusal to allow students at the University of Maine's Gorham campus to register to vote, Attorney General James Elwin issued an opinion concluding:

In essence, the Court in the Sanders case has said that the fact of being a student is a neutral factor; that a student gains nothing nor loses anything with respect to his voting residence from the fact of being a student. Consequently, under Maine law, local Registrars and Boards of Registration should not place students in any better nor in any worse position than non-students when making a determination as to whether a voting residence has been established.

This opinion was provided to Secretary of State Joseph T. Edgar, who was a named defendant in the lawsuit that had been filed in the United States District Court. Conti v. Board of Registration of the Town of Gorham, Civil Docket No. 12-167. It was issued pursuant to the terms of a stipulation, entered into by the parties and approved by the court, which also called for Secretary Edgar to distribute the Attorney General's opinion to all registrars in the State. On the basis of the stipulation and upon distribution of this opinion, the lawsuit was dismissed. We are not aware of any other judicial decisions in Maine interpreting the provisions on student voting in Article II, section 1.

Thus, consistent with the courts' interpretation of the Maine Constitution, a student attending college or university in Maine may establish a voting residence in Maine by the same means as any other citizen of the United States, who is age eighteen or older. By statute, a voting residence is defined as "that place where the person has established a fixed and principal home to which the person, whenever temporarily absent, intends to return." 21-A M.R.S.A. § 112(1) (Supp. 2007). This definition of voting residence has been held to be equivalent to domicile, which means living in a locality with the intent to make it a fixed and principal home. Poirier v. City of Saco, 529 A.2d 329, 330, n.2 (Me. 1987) (citations omitted). Determining whether a particular individual, including a student, has established a voting residence in a particular municipality requires the registrar to evaluate a number of factors listed in statute, including the individual's statement of intent. As the Secretary of State made clear in guidance issued in 1974, a voter registration applicant is not required to declare an intention to "remain forever" as a permanent resident of the community in order to be eligible. "All that is required is the applicant's residency within the community plus the present intention to claim that community as the applicant's sole residence." Office of the Secretary of State, Guidelines for Voter Registration.

We believe this guidance is consistent with Article II, section 1 of the Maine Constitution. It is also consistent with the holdings of most courts that have addressed issues of student residency for voting purposes. It is not permissible for registrars to subject student applicants to a different substantive standard than is generally applied to other categories of voter registration applicants. See Williams v. Salerno, 792 F.2d 323, 328 (2d Cir. 1986). Determining residency for voting purposes requires examining the facts and circumstances and intentions of each voter, and such determinations cannot be based entirely on presumptions. Thus, in Symm v. United States, the United States Supreme Court summarily affirmed the judgment of a three-judge panel of the District Court which held that a county voting registrar's practice of using a special questionnaire for students and refusing to register college dormitory residents unless they established their intention to remain in the community after graduation violated the federal Constitution. 439 U.S. 1105 (1979), aff'g by a divided court, United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978). Indeed, courts generally have rejected states' attempts to require proof of intent to remain permanently in the municipality where the student wants to register.

There exist in Maine currently, as you point out in your letter, different definitions of residency for different purposes, such as to qualify for in-state tuition in the University of Maine System, or to obtain a resident hunting or fishing license. There is no constitutional requirement that definitions of residency be the same for all purposes, however. The state's interests may be different in different contexts. The University's guidelines provide that if the student is enrolled full-time in an academic program as defined by the University, "it will be presumed that the student is in Maine for educational purposes and that the student is not in Maine to establish a domicile." These presumptions may be overcome, but the guidelines place the burden on the student to "prove that he or she has established a Maine domicile for other than educational purposes." Under the guidelines, "[a]n individual who has lived in the State of Maine, for other than educational purposes, one year prior to registration or application to the University is considered an in-state student."

The statutory definition of "resident" for purposes of determining eligibility for a resident hunting or fishing license provides that an individual must have "been domiciled in this State continuously during the 3 months" prior to applying for the licenses. 12 M.R.S.A. § 10001(53) (2005). A person who is a full-time student at a college or university in the state and who has resided in the state continuously for three months may qualify, provided they have: a) if registered, registered to vote in Maine; b) if licensed to drive a motor vehicle, made application for a Maine driver license; c) if owning a motor vehicle, registered such vehicle in Maine; and d) complied with State income tax laws. A full-time student who has satisfied these requirements "is rebuttably presumed to have been domiciled in the State during that period." Id. These statutory requirements include many of the same factors to be considered in determining residency for voting purposes. The chief difference is that while all four requirements of 12 M.R.S.A. § 10001(53) must be met to qualify for a fishing or hunting license, the corresponding elements in Title 21-A M.R.S.A. § 112(1) are simply factors to be considered by the registrar in evaluating whether an individual has established a residence for voting purposes. The registrar need not find all of them to be present in order to conclude that the individual qualifies to register to vote in that municipality.

Where a fundamental right, such as the right to vote, is at issue, the state has to meet a higher burden in order to justify any limitations on that right. Restrictions on the right to vote must be justified by a compelling state interest and must be narrowly tailored to serve that interest. See Dunn v. Blumstein, 405 U.S. 330, 336-37 (1972) (striking down durational residency requirement for registering to vote in Tennessee). The conditions under which the right to vote may be exercised must be applied in a non-discriminatory manner. See Carrington v. Rash, 380 U.S. 89 (1965) (striking down statute prohibiting members of military from establishing a voting residence in Texas while in military service). States are free to "take reasonable and adequate steps … to see that all applicants for the vote actually fulfill the requirements of bona fide residence," 380 U.S. at 96-97, but they may not single out a group of citizens and preclude them from proving a bona fide residence.

Thus, local registrars in Maine may inquire into all the factors that are relevant to determining domicile or voting residency, as defined in 21-A M.R.S.A. § 112, when considering whether a student is a bona fide resident and, therefore, qualified to register to vote. However, a state law that prohibited students living in college dormitories from having the opportunity to prove a bona fide residence for voting purposes in the municipality where they attend college would likely be struck down as unconstitutional.

I hope this is helpful. If you need further clarification, please let me know.

Sincerely,

G. STEVEN ROWE
ATTORNEY GENERAL