Sykes, 021408 MEAGO, AGO 2008-1

• Case Date: February 14, 2008
• Court: Maine

Honorable Richard M. Sykes AGO 2008-1 No. 2008-01 Maine Attorney General Opinion State of Maine Office of The 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 123^rd 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.^[1]

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, 16 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

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