Opinion 16-52

May 5, 2016

Digest:         The Committee cannot comment on any legal questions. However, if controlling law permits voter registration forms to be made available at court facilities, it is ethically permissible to do so in a strictly neutral, non-partisan and informational manner, subject to any applicable legal requirements.

Rules:          52 USCA §§ 10303(f)(4); 10503(c); Election Law §§ 5-211; 5-212; Judiciary Law § 212(2)(l); Public Service Law § 44; Tax Law § 691; 28 CFR § 55.19; 9 NYCRR pt 6213; 22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(ii); 101.1; Opinions 16-63; 14-35; 12-22; 05-101.

Opinion: 

         A town or village justice has asked whether the court may make voter registration forms available in the courtroom or court office. The forms would be placed in a box simply labeled “Voter Registration Forms for Local, State and Federal Elections. Please Take One.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). Nonetheless, a judge may vote (see 22 NYCRR 100.5[A][1][ii]) and may lecture or teach on the Bill of Rights (see Opinion 14-35) or help organize a not-for-profit entity that will educate students about “their rights and responsibilities under the U.S. Constitution” (Opinion 12-22). In addition, a part-time judge may publicly display a non-partisan banner on his/her office building that conveys “nothing more than an encouragement or reminder to the citizenry of their right to vote” (Opinion 16-63). Accordingly, this judge’s proposal to make voter registration forms available at the courthouse in a strictly neutral, non-partisan and informational manner does not, in the Committee’s view, raise any ethics issues under Section 100.5, provided the judge and court staff refrain from any impermissible commentary or conduct (see e.g. Opinion 05-101 [emphasizing the need to avoid “a public perception of entanglement of the judiciary itself in the political process” as well as any “impression that the courthouse is being used for political purposes”]).

         This does not end the analysis, however, because a judge also must “respect and comply with the law” (22 NYCRR 100.2[A]). Although the Committee cannot comment on any potential legal prohibitions or other restrictions (if any) on making voter registration forms available in court facilities (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1), the state legislature has enacted a program for distributing voter registration forms through designated state agencies, subject to detailed rules and regulations adopted by the state board of elections (see Election Law § 5-211; 9 NYCRR pt 6213). The legislature has also authorized and/or directed certain other state agencies and public utilities to distribute voter registration forms (see Election Law § 5-212; Tax Law § 691; Public Service Law § 44). These statutory schemes do not appear to include the judiciary.

         Moreover, the Committee cannot comment on the applicability (if any) of minority language requirements under the Voting Rights Act (see e.g. 52 USCA §§ 10303[f][4]; 10503[c]; 28 CFR § 55.19) or other possible legal requirements for state agencies that distribute voter registration forms (see e.g. 9 NYCRR pt 6213 [requiring certain agencies to undertake activities such as assisting registrants, distributing and retaining specified materials and records, and conducting studies on the program’s effectiveness]).

         Thus, this judge’s inquiry presents primarily legal questions on which the Committee cannot comment. However, if controlling law permits voter registration forms to be made available at court facilities, it is ethically permissible for the judge to do so in a strictly neutral, non-partisan and informational manner, subject to any applicable legal requirements.