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Residence and Domicile Redux

Charles Kuffner has done a couple of nice articles about a now-completed lawsuit involving Houston Community College trustee Dave Wilson. (see http://offthekuff.com/wp/?p=61703, and see http://offthekuff.com/wp/?p=61692). Mr. Wilson was sued by the community college, which alleged that Mr. Wilson wasn’t a resident of the community college district, and therefore was not eligible to continue as a trustee. The jury disagreed, and so (unless an appeal is forthcoming) Dave Wilson has been conclusively determined to be a resident of the Houston Community College District.

Evidently Mr. Wilson is something of a locally notorious political gadfly in Houston, and has gotten a reputation for claiming residence wherever he needed to in order to run for various public offices. People were suspicious that he didn’t really, really, cross-your-heart-really live inside a warehouse while at the same time claiming a homestead tax exemption for another property where his wife resided.

But, to his credit, Mr. Wilson treated the warehouse like home and had his blood pressure medication mailed to that address, among  other things.

The saga of gaming residence for the sake of running for office – what a tangle of legal precedent it provides. Mr. Kuffner has used the occasion of the Wilson lawsuit to suggest some sort of legal reform to our statutory definition of residence, mindful of the weeds and quicksand. Mr. Kuffner’s suggestion is to treat an out-of-territory homestead exemption as a bar to holding office within a territory (assuming the jurisdiction in question has a residence requirement for holding office).

I. IS DOMICILE THAT IMPORTANT?

I guess another way to ask the question is to ask why a person’s domicile is important to office holding, voting, paying taxes, or what-have-you. The short answer is that domicile isn’t important, except when we want it to be important.

Historically, domicile hasn’t been that important as a criteria for being in power, but has been more important as a criteria for being subject to power. To oversimplify – the sovereign governs a territory by means of might, or divine right, or whatever, regardless of the sovereign’s domicile. Meanwhile, the peons, peasants, or rabble have to live where they’re told to live, and abide by the rule of whoever is in charge of the territory that they are compelled to call home.

Obviously, nobody challenged Genghis Khan on residency grounds – his qualifications for office were amply represented by the piles of skulls he tended to leave lying about. But even in modern postindustrial democratic territories, domicile is often not a primary determiner of one’s qualification to office.

In Great Britain, one may stand for parliamentary election by completing  nominating forms and submitting a fee of £500 to an election official – the relevant application form is available here (at http://www.electoralcommission.org.uk/__data/assets/electoral_commission_pdf_file/0009/83169/UKPGE-Nomination-Forms-Final.pdf) in case you’d like to give it a whirl.

Now, it’s not as though just anybody can run for office in Great Britain. Members of the House of Commons are subject to a number of qualifications, and do have to abide by laws that more-or-less modernize the candidate application and campaign fundraising process.

But candidates for parliament don’t have to live in the districts that they represent. They do appoint agents who are constituents of the district, and if elected, they have certain minimum obligations to their constituency in terms of accessibility and office hours. But the members of the national legislative body do not have to live anywhere in particular, and in fact, they may reside outside of the country altogether, as long as they are still subjects of the British Crown. For details, see the Representation of the People Act 1983, as amended (available at http://www.legislation.gov.uk/ukpga/1983/2). Residency is important, but only for determining the qualifications of the electors – not the candidates.

In the U.S., the drafters of the Constitution were slightly more inclined to require a geographic association for officeholders, but they tended not to extend any sort of domiciliary test to candidates. Members of Congress must be residents of the state from which they are elected, but do not have to be residents of any particular part of the state, and do not have to meet any sort of minimum durational residency test prior to taking office. Article I, Sections 2 and 3, U.S. Constitution. (available from many online sources, including: http://www.law.cornell.edu/constitution/articlei).

I bring all this up as a reminder that there’s no inherent necessity to link residence with office. If we do make a requirement that someone has to consider a district their “home” in order to represent that district, such a policy choice is just that – a choice. Supporters of such requirements would likely argue that members of … say for example … the Houston Community College District Board of Trustees … should be residents of the community college district so that they will be personally invested in the problems and conditions of the district, forced by geographic proximity to share the experience of living in the Houston Community College District. We certainly don’t want those outsiders and strangers who live across the street from the Community College District to come in and impose their seditious ideologies and strange ways, do we?

II. RESIDENCE REQUIREMENTS MIGHT BE A LITTLE ARBITRARY, BUT SO WHAT? GIVEN THAT SUCH REQUIREMENTS DO EXIST FOR MOST LOCAL ELECTIVE OFFICES, HOW DO WE DEFINE THOSE REQUIREMENTS FAIRLY?

Well, what is “fair?” I mean, any definition of domicile will involve some subjective standard for determining the sincerity of a person’s … hearth-cleaving. (Hearth-cleaving is my made-up term for domiciliary intent; it means, “emotional and physical ties to the one place in all the world that is home.”)

Legislatures, disgruntled losing candidates, judges, juries, voters, and angry political rivals have searched high and low for some universally applicable sure-fire objective test or standard for hearth-cleaving that would guarantee the exclusion of the carpetbagging outsider from office. But for every bright line test, there will come some sympathetic officeholder whose exclusion is unfair. Because there is really just one test underlying all these tests of domicile and residence. Is the candidate or officeholder one of us, or is the candidate or officeholder not one of us?

III. SO, TO SUM UP, RESIDENCE REQUIREMENTS ARE ARBITRARY, SUBJECTIVE, AND A SOURCE OF ENDLESS FACTUAL DISPUTE, AND THEY ALWAYS WILL BE, AND THAT’S JUST INHERENT IN THE IDEA OF HOME, COMMUNITY, AND BELONGING OR NOT BELONGING TO A PLACE?

Yup.

 

 

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1 Comment

  1. […] Texas Election Law blog looks at my coverage of the Dave Wilson residency saga and offers his thoughts on the […]

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