U.S. Court Tosses Out State Law on Residency

TIMES LEGAL AFFAIRS WRITER

The U.S. 9th Circuit Court of Appeals has struck down a California residency rule for congressional candidates, deciding that a state cannot add requirements for federal office to those already set down in the U.S. Constitution.

Under the ruling, candidates for California's seats in Congress and the U.S. Senate ma live out of state until the day they are elected.

Election law experts said Tuesday's decision by a three-judge panel was on solid legal ground and probably would survive an appeal by the state. But its impact, they added, will be limited by the difficulty of winning an election while living out of state.

"It's an important constitutional principle," said Joseph Remcho, a constitutional and public policy lawyer. He noted that living in California will remain a political necessity, even if no longer a legal one, for a successful candidate.

"I can confidently predict that there is no district in California that is going to elect a congressperson who doesn't show enough interest in the state to register to vote 83 days before the election," he said.

California has required congressional candidates to be registered to vote in the state before filing nomination papers. Weeks or months may pass between the filing and the election.

"Such a requirement hampers nonresident candidates with homes, families and jobs in another state," Judge Diarmuid F. O'Scannlain wrote for the 9th Circuit panel. "The burdens of residency may very well deter candidates from running for Congress."

Secretary of State Bill Jones said Wednesday that California might prevail in an appeal because there is legal precedent for giving states latitude to manage elections.

Although courts have frowned on some residency requirements, "This is the first time I have seen this taken to the extreme that you don't have to have any residency at all in the state," Jones said.

Some legal scholars said they were surprised by the decision only until they had read it. The court cited a clause of the U.S. Constitution that establishes requirements for election to the House of Representatives.

The Qualifications Clause says a candidate for Congress must have been a U.S. citizen for at least seven years, must be at least 25 years old and must be an "inhabitant" of the state "when elected."

The Constitutional Convention in 1787 discussed requiring longer residency but voted down such proposals. Among the objections was that newly formed states in the West would not be represented if residency requirements were lengthy.

"California law imposes the very requirement that the framers purposely excluded from the Constitution," O'Scannlain wrote for the court.

The court also cited a 1995 U.S. Supreme Court decision that struck down Arkansas term limits for members of Congress. The high court said the Arkansas law violated the Constitution.

Until that ruling, scholars had debated whether the requirements established by the Constitution were a floor that states could add to or a ceiling that could not be changed.

Many states have residency requirements, but like lots of laws on the books, these rules may never before have been challenged in court. The 9th Circuit ruling will affect the nine Western states in the circuit.

California's law actually requires congressional candidates to live in the district where they are running, but that rule is not enforced, according to a spokesman for the secretary of state.

USC law professor Erwin Chemerinsky, a constitutional scholar, said the 9th Circuit decision was "on really solid ground" and likely to withstand challenges.

Loyola law professor Richard L. Hasen, an election law expert, agreed. "The important thing to remember is that it is likely to have no impact on political outcomes," he said.

He noted that New York Senate hopeful Hillary Rodham Clinton, the first lady, has been accused of carpetbagging even though she moved to New York and bought a home there.

The case that led to the residency ruling was brought by Michael Schaefer, a Nevada resident who was prevented from filing to run as a candidate in the congressional district left vacant when Sonny Bono died.

Although Schaefer cannot now contest that election, the ruling will be in effect unless it is overturned on appeal. Schaefer reportedly has run for at least 14 elected offices in three states over the past four decades.

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