SB 163: Elections: residence: domicile.

Existing law defines residence for voting purposes as a persons domicile. Existing law describes the domicile of a person as that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. Existing law describes the residence of a person as that place in which the persons habitation is fixed for some period of time, but wherein he or he she does not have the intention of remaining. Existing law provides that a person may have only one domicile at a given time, but may have more than one residence. Existing law also provides that, for purposes of determining the domicile of a Member of the Legislature or a Representative in the Congress of the United States, it shall be conclusively presumed that the residence address indicated on that persons currently filed affidavit of voter registration is conclusively presumed to be that persons domicile.

This bill would provide that a persons domicile or residence may also be the place in which the person has legal tenancy. This bill would define legal tenancy for voting purposes to mean a persons right to possess or hold property, whether by lease or by title. This bill would provide that the conclusive presumption for determining clarify that the domicile of a Member of the Legislatures domicile applies if the person has legal tenancy at the residence address indicated on his or her affidavit of voter registration. Legislature or a Representative in Congress is to be determined solely by the operation of this conclusive presumption and not by the above-described factual criteria otherwise used to determine a persons domicile.

Existing law defines residence for voting purposes as a persons domicile. Existing law describes the domicile of a person as that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. Existing law describes the residence of a person as that place in which the persons habitation is fixed for some period of time, but wherein he or he does not have the intention of remaining. Existing law provides that a person may have only one domicile at a given time, but may have more than one residence. Existing law also provides that, for purposes of determining the domicile of a Member of the Legislature or a Representative in the Congress of the United States, it shall be conclusively presumed that the residence address indicated on that persons currently filed affidavit of voter registration is that persons domicile.

This bill would provide that a persons domicile or residence may also be the place in which the person has legal tenancy. This bill would define legal tenancy for voting purposes to mean a persons right to possess or hold property, whether by lease or by title. This bill would provide that the conclusive presumption for determining a Member of the Legislatures domicile applies if the person has legal tenancy at the residence address indicated on his or her affidavit of voter registration.

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 163 (Author:Bradford)

Version: April 18, 2017

Hearing Date: April 25, 2017

Fiscal: No

Urgency: No

Consultant: TSG

SUBJECT

Elections: residence: domicile

DESCRIPTION

This bill would clarify and emphasize the Legislature’s intent that, in determining the domicile of a Member of the California Legislature or a Representative in the Congress of the United States, a court should apply the conclusive presumption that his or her domicile is the residence address at which the person is registered to vote, rather than engaging in a review of other evidence.

BACKGROUND

For most Californians, where they may vote is determined by where they live predominantly: their “domicile.” This is the place that the person intends to remain. It is the place the person plans to come back to, whenever he or she leaves. (Elec. Code Sec. 349(a).) Any dispute about most Californians’ domicile for voting purposes is thus a factual one. Relevant evidence includes, among other things, how much time the person spends at the place, how often the person stays the night there, whether the person keeps his or her belongings there; where the person receives mail; and what address the person uses when signing up for programs, goods and services.

Members of the Legislature and Representatives in the Congress of the United States have unique official duties that require them to spend considerable amounts of their time in the respective seats of government, Sacramento and Washington, DC. This presents a problem with respect to evidence of “domicile.” (See Comment 2 for a more detailed discussion of this problem.)

Recognizing this fact, in 1983, the Legislature enacted AB 1798 (W. Brown, Ch. 21, Stats. of 1984), which added Section 2026 to the Elections Code. Section 2026 creates a conclusive presumption exclusive to legislators and Congressional representatives. That conclusive presumption is that legislators and Congressional representatives are domiciled at the residential address where they are registered to vote. The idea was to allow legislators and Congressional representatives to go about their duties without concern that the logistical requirements of their job would open them up to allegations that they are not technically domiciled at the place they are registered to vote.

Since the enactment of Elections Code Section 2026, however, at least one court has looked beyond its conclusive presumption and engaged in a weighing of evidentiary factors to determine where a member of the Legislature was domiciled. In The People v. Superior Court (Wright) (2011) 197 Cal.App.4th 511, a state appellate court reviewed allegations that a member of the Legislature was not, in fact, domiciled at the address he gave on his affidavit of voter registration. Applying the conclusive presumption, the trial court had dismissed charges based on the allegation that the legislator was not domiciled where he voted.

The appellate court overturned the trial court’s decision. It ruled that, for the conclusive presumption of domicile to apply, the address at which a legislator or Congressional representative is registered to vote has to be one of the legislator’s or Congressional representative’s “residences,” meaning a place that the legislator or Congressional representative inhabits at least sometimes, even if the legislator or Congressional representative does not intend to remain there. (Wright, supra, 197 Cal.App.4th at 516.) To decide that, the appellate court concluded, it is appropriate for a court to review evidence regarding things like how often the legislator or Congressional representative visits the place, how long he or she stays, what belongings are kept, etc. – in short, much of the same evidentiary analysis by which domicile is determined. (Ibid.)

The California Supreme Court declined to review the Wright decision (People v. S.C. (Wright), (2011) Cal. LEXIS 10783 (Cal., Oct. 19, 2011)) and no subsequent cases have addressed the issue. As a result, according to the proponents of this bill, the legislators and Congressional representatives of California are left without clarity as to when, how, and if the conclusive presumption will be applied. The proponents point out the importance of providing this clarity in light of what they assert is uneven and inconsistent enforcement of the law around domicile and voter registration when it comes to elected officials.

This bill would clarify and emphasize the Legislature’s intent that the conclusive presumption contained in Elections Code 2026 is supposed to be just that: conclusive of the issue without any need for further evidentiary review.

CHANGES TO EXISTING LAW

Existing law assigns to the Legislature the responsibility of defining residence for voting purposes. (Cal. Const., art. II, Sec. 3.)

Existing law defines “residence” for voting purposes to mean a person’s “domicile:” that place in which the person’s habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention to return. A person may only have one domicile at any given time. (Elec. Code Sec 349(a).)

Existing law defines “residence” as that place in which a person’s habitation is fixed for some period of time, but wherein he or she does not have the intention of remaining. A person can have more than one residence at any given time. (Elec. Code Sec. 349 (c).)

Existing law provides that, unless otherwise specifically provided, no person is eligible to be elected or appointed to an elective office unless that person is a registered voter and otherwise qualified to vote for that office at the time that nomination papers are issued to the person or at the time of the person’s appointment. (Elec. Code Sec. 201.)

Existing law provides that candidates for Representative in the Congress of the United States are eligible for that office so long as they inhabit the state “when elected.” (U.S. Const. art. I, Sec. 2, par. 2; Schaefer v. Townsend (9th Cir. 2000) 215 F.3d 1031.)

Existing law makes the conclusive presumption that the domicile of a Member of the Legislature or a Representative in Congress of the United States is the residence address indicated on the person’s currently filed affidavit of voter registration. (Elec. Code Sec. 2606.)

This bill would clarify and emphasize the Legislature’s intent that, in determining the domicile of a Member of the Legislature or a Representative in the Congress of the United States, it is conclusively presumed that his or her domicile is the residence address at which the person is registered to vote and no other evidence need be considered.

COMMENT

1. Stated need for the bill

According to the author:

[…][SB 163] will restore the conclusive presumption in [the Elections Code][…] State and federal legislators have unique concerns as they relate to domicile and [Elections Code Section] 2026 sought to address this problem. These issues have been recognized by the courts and previous statutes. Enforcement varies from county to county because of the ambiguity in the law[…] There are conflicting opinions from Legislative Counsel, different appellant courts, and various district attorneys[…] This also allows for selective and arbitrary prosecutions[...] There are numerous media accounts of legislators having to a relocate to be eligible to seek office. Most of these are anecdotal, as are the challenges of candidates that occur during campaigns. While legal actions are not the norm, they do occur. SB 163 should eliminate some future criminal cases which are based solely on circumstantial evidence… For something so important this level of uncertainty is inexcusable. SB 163 will provide a clear factual test for domicile and residence that does not currently exist in the law…

2. Domicile and residency requirements to run for U.S. Congress or the California Legislature

In order to run for the office of Representative in the U.S. Congress, a person only needs to reside in California “when elected.” (U.S. Const. art. I, Sec. 2, par. 2; Schaefer v. Townsend (9th Cir. 2000) 215 F.3d 1031.) Thus, Congressional representatives from California must live in California, but there is no requirement that they live or register to vote in the district that they represent.

In contrast, Members of the California Legislator are not eligible to be elected to represent a particular district unless they are eligible to vote for that office. (Elec. Code Sec. 201.) In other words, at the time they present nomination papers to run for a seat in the California Senate or Assembly, California legislators must be registered to vote in the district that they will represent if elected.

3. Reasons for treating domicile differently for Members of the Legislature and Representatives in the Congress of the United States

In most instances, determining a person’s domicile for voting purposes is a relatively simple factual determination. Most people only have one residence. Among those people who have multiple residences, most often one of those homes is clearly the primary one. Typically, it is not hard to marshal the evidence to prove it: the person spends most of their time at that residence, stays most nights there, keeps most of their things there, receives mail there, registers for services there, and generally does things that make it clear that they consider that residence “home.”

The situation becomes more complicated for people who have their home in one place, but must, for employment reasons, spend a majority their time staying at another location. That is the situation that Members of the Legislature and Representatives in the Congress of the United States confront. Their homes may be located in far-flung locations throughout the state, but to carry out their duties of office, they must be in the seat of government, Sacramento or Washington, DC, respectively, for an enormous part of their time. Logistically, this often requires establishing what amounts to a second home in the seat of government. Legislators or Congressional representatives may buy or rent property, move many of their personal belongings to that place, and sign up to receive goods and services there. If legislators or Congressional representatives have family, they may bring that family along. Spouses may obtain employment in the seat of government. The children may attend the local schools.

The problem is that all of these things are evidentiary hallmarks of domicile. As a result, if the traditional evidence for determining domicile is applied, legislators or Congressional representatives might have a very hard time proving that they are domiciled where they are registered to vote.

In order to resolve this problem and allow legislators and Congressional representatives to focus on the duties assigned to them by the voters, in 1983, the Legislature enacted AB 1798, which added Section 2026 to the Elections Code. At the time, Assembly Speaker Willie Brown wrote that the bill was meant to apply to “[l]egislators who, of necessity, spend a great amount of time away from their true domicile, often going so far as to purchase homes and move their families to the location of their Legislature in service of their constituents.” (Assembly Speaker Willie Brown, Letter to Governor George Deukmejian, Mar. 1, 1984).

While not stated in the form of a conclusive evidentiary presumption, similar provisions exist to enable students, those employed by the State of California or the U.S. government, and those engaged in navigation, to retain their domicile in one place even while the logistical demands of their studies, navigation, or public service may require them to live in another location for much of their time. (Elec. Code Sec. 2025.)

4. Concerns with the bill as introduced

As introduced, this bill would have permitted California residents to register to choose to register to vote at any place where the voter rented or owned property instead. While such a provision would have provided a way to avoid evidentiary disputes about whether or not someone truly lives at the place where they are registered to vote, it opened up other problems in the process. A system allowing voters to register wherever they lease or own property would have permitted people to buy or rent property – even something very small – in order to be able to cast a ballot in that jurisdiction.

The bill as introduced would also have allowed anyone to represent a district so long as that person owned or rented property in the district. While also helping to avoid some evidentiary disputes over domicile, this provision shared the flaw that it would have, in effect, permitted prospective candidates to cherry-pick districts by renting or purchasing property there.

In recognition of the concerns with the bill as introduced, it has been amended. The amendments are intended to better achieve the bill’s ultimate purpose of clarifying what evidence is relevant to the determination of domicile for a Member of the California Legislature or a Representative in the Congress of the United States. Such clarity should provide better guidance for courts and California elected officials alike.

Support: None known

Opposition: None known

HISTORY

Source: California NAACP

Related Pending Legislation: None known

Prior Legislation:

AB 31 (Garcia, 2015) would have clarified that the conclusive presumption regarding the domicile of a California legislator or Congressional Representative applies only if the address indicated on that person’s currently filed affidavit of voter registration is a place in which the person’s habitation is fixed for some period of time. AB 31 died in the Assembly Committee on Elections, Redistricting, and Constitutional Amendments.

AB 892 (Dymally, 2003) would have extended the conclusive presumption to all candidates for state or local elections since 1985, and would have extended it to all proceedings and for all purposes and retroactively. AB 892 would have expressed the Legislature’s intent that the proposed change is consistent with equal protection guarantees. AB 892 died in the Assembly Committee on Elections, Redistricting, and Constitutional Amendments.

AB 1798 (W. Brown, Chapter 21, Statutes of 1984) enacted what would eventually become Elections Code Section 2026, which provides that Members of the Legislature and Representatives in the Congress of the United States are conclusively presumed to be domiciled at the residential address where they are registered to vote.

**************