The importance and significance of your vote increases as the size of the voting population decreases. Your vote in a local election, e.g., a Town Meeting, will influence the result more than in a statewide election. For those with a single residence in Massachusetts, where to register to vote is not an issue. However, what about Massachusetts residents who have two homes in different municipalities in Massachusetts – – not a primary home and a second vacation home used only for a few weeks, but two homes where residents spend large and significant amounts of time each year. Where may such an individual register to vote? This writer suggests that, so long as a voter can prove facts sufficient to warrant the conclusion that he or she has sufficient attachments to each municipality to meet the actual presence and intent requirements to establish domicile for voting purposes, the voter should be able to choose where he or she registers to vote. Such a result strikes the proper balance between the voters’ “certain amount of freedom to choose their domicil [for voting purposes],” Lay v. City of Lowell, 101 Mass.App.Ct. 15, 25 (2022), and the Board’s statutory obligation to strike from the voter register persons who are not qualified voters. See Dane v. Board of Registrars of Voters of Concord, 374 Mass. 152 (1978); Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570 (1974); and Coulombre v. Board of Registrars of Voters of Worcester, 3 Mass. App. Ct. 206 (1975).
Review of a decision of a local board of registrars of voters is by an action in the nature of certiorari pursuant to G.L. c. 249, § 4 or by an action for declaratory relief pursuant to G.L. c. 231A. In Hershkoff, supra, 366 Mass. 570, the Supreme Judicial Court affirmed the Superior Court’s judgment reversing the decisions of the local board denying voter registration to three Worcester college students who lived in a dormitory or apartment in Worcester on the students’ petitions for writ of certiorari. In Coulombre, supra, 3 Mass.App.Ct. 206, the Appeals Court entered judgment for the plaintiff, a patient at Worcester State Hospital, on his petition for declaratory relief pursuant to G.L. c. 231A, reversing the trial judge’s ruling that the board had correctly denied voter registration to the patient.
G.L. c. 51, § 1 provides, in pertinent part, as follows:
Every citizen eighteen years of age or older, … who is a resident in the city or town where he claims the right to vote at the time he registers, … may have his name entered on the list of voters in such city or town, and may vote therein in any such election, or … in any meeting held for the transaction of town affairs.
Nothing in that section admits of the interpretation that wher a citizen is a resident of two municipalities, the citizen is not free to select either municipality as his residence, his domicil, for voting purposes so long as the voter has sufficient attachments to the municipality the voter selects. Indeed, that the citizen can “claim” the city or town where he or she seeks to vote suggests the right to vote in a chosen municipality so long as he or she has a residence there, as the term residence has been interpreted in the context of voter registration. No other section of Chapter 51 discusses where a citizen may vote if he resides in multiple homes in the Commonwealth.
The right to vote is a fundamental element of our democracy. A voter’s freedom to choose his or her domicil for voting purposes is well recognized in the Commonwealth. “The right to vote is a precious personal prerogative to be sedulously guarded.” Swift v Board of Registrars of Quincy, 281 Mass. 271, 276 (1932). See also O’Brien v. Board of Registrars of Voters of Revere, 257 Mass. 332, 338 (1926) (The “right to vote is a sacred privilege. Every rational intendment is to be made in favor of its rightful exercise.”). “Voters have a certain amount of freedom to choose their domicil, … and our courts recognize a ‘strong tradition of resolving voting disputes, where at all possible, in favor of the voter…’”. Lay, supra 101 Mass.App.Ct. at 25, quoting Santana, supra, 384 Mass. at 491. (emphasis supplied) See also Hershkoff, supra, 366 Mass. at 577, where, in discussing college students’ rights to register to vote, the Supreme Judicial Court said: “It seems to us, as it seemed to the Attorney General, that it is a corollary of eighteen-year old voting that the young voter is to be independent for voting purposes and therefore must have capacity to choose his domicil for voting purposes, regardless of his emancipation for other purposes. (emphasis supplied) Accord Dane, supra, 374 Mass. at 165-166 (“We think the capacity of prisoners thus to change their domicil for voting purposes is ‘implicit in [their] eligibility to vote.’”) (emphasis supplied). Accord Coulombre, supra, 3 Mass.App.Ct. at 209 (Patient not precluded “from choosing a new domicil for voting purposes.”)
The right to choose between municipalities for the purpose of voting is not unconstrained. Each voter must still establish that he or she is an inhabitant of the selected municipality. The meaning of the word “inhabitant” in the voting context is provided in Opinion of the Justices, 365 Mass. 661, 663 (1974):
Article 2 of Part II, c. 1, Section 2, of the Constitution of the Commonwealth, to which reference is made in the question asked, states in part: “And to remove all doubts concerning the meaning of the word `inhabitant’ in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within this state, in that town, district or plantation, where he dwelleth, or hath his home.” That constitutional definition has long been interpreted to mean that a person shall be considered an “inhabitant” of the place where he is domiciled (citations omitted)… In turn “[d]omicil has been said `to be the place of one’s actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.'” Rummel v. Peters, 314 Mass. 504, 512 (1943), citing Tuells v. Flint, 283 Mass. 106, 109 (1933). The elements of actual residence and intent must both exist. White v. Stowell, 229 Mass. 594, 598 (1918). Katz v. Katz, 274 Mass. 77, 80-81 (1931). Commonwealth v. Davis, 284 Mass. 41 , 50 (1933).
The Hershkoff Court explained the concept of “residence” as appearing in G.L. c. 51, § 1:
The words “resided” and “inhabitant” in constitutional and statutory provisions relating to voting have long been construed to require that the voter have his “domicil” in the appropriate city or town (Citations omitted)…”Both terms indicate the place of one’s home or dwelling place, which depends on the common law doctrine of domicil.” Blanchard v. Stearns, 5 Met. 298, 304 (1842).
Every person must have a domicil, and he can have only one domicil at a time, at least for the same purpose. See Abington v. North Bridgewater, 23 Pick. 170, 177 (1839); Opinion of the Justices, 5 Met. 587, 589 (1843); Restatement 2d: Conflict of Laws, Section 11 (1971). “A person’s domicil is usually the place where he has his home.” Id. at comment a. “Home is the place where a person dwells and which is the center of his domestic, social and civil life.” Id. at Section 12. See Mellon Natl. Bank & Trust Co. v. Commissioner of Corps. & Taxn. 327 Mass. 631, 638 (1951). A change of domicil takes place when a person with capacity to change his domicil is physically present in a place and intends to make that place his home for the time at least; “the fact and intent must concur.” Opinion of the Justices, 5 Met. 587, 589 (1843). Restatement 2d: Conflict of Laws, Sections 15-18 (1971).
Hershkoff, supra, 366 Mass. at 576-577.
The rationale for a citizen’s voting where he or she resides is to assure a serious, interested voter whose well-considered electoral choices will have important consequences for the voter and his or her fellow citizens. To insulate yourself from a successful challenge to your voting in the municipality of your choice, be prepared to show the importance to you of your home in that municipality and how it is the center of your domestic, social, and civic life: where you eat, sleep, cook, clean, entertain, gather with family and friends, shop, attend parades and social and cultural events, volunteer, garden, belong to clubs and civic associations, subscribe to the local newspaper, visit local attractions, golf, boat, and hike. Ancestral roots in the municipality can also be an important factor in establishing domicil for voting purposes.
All of the well-established principles discussed above: the sacrosanct right to vote; the freedom, within reason, of a citizen to choose his or her domicil for voting purposes; the resolution of voting disputes in favor of the voter; and the preservation of the opportunity for a citizen to express his or her preferences at Town Meeting in the town where that expression impacts very significantly his or her family, home, and life, support the argument for voter choice for those individuals with two Massachusetts residences.
