California’s Constitution, ever since 1879, has said, “A person is ineligible to be a member of the Legislature unless the person is an elector and has been a resident of the legislative district for one year, and a citizen of the United States and a resident of California for three years, immediately preceding the election.” Article 4, section 2.
Ever since the 1970’s, California elections officials have not enforced that provision of the Constitution. The Secretary of State at the time ruled that the California Constitutional provision violates the U.S. Constitution.
However, the California Secretary of State’s old ruling is probably erroneous. In 1982 the U.S. Supreme Court ruled in Clements v Fashing that there is no U.S. Constitutional right to be a candidate for public office. Also, on March 3, 1975, the U.S. Supreme Court summarily affirmed a U.S. District Court 3-judge decision that upheld a New Hampshire Constitutional requirement, that no one could run for State Senate in New Hampshire who had not been a resident of the state for 7 years. Sununu v Stark, 383 F.Supp. 1287 (1974), affirmed, 420 U.S. 958.
The California Supreme Court had ruled on October 27, 1975, in Johnson v Hamilton, that the U.S. Constitution prohibits duration of residency requirements for candidates, but that decision is probably no longer good law. Federal courts since then have almost unanimously upheld duration of residency requirements for candidates.
In any event, the California Supreme Court decision Johnson v Hamilton didn’t deal with residency requirements for legislative candidates. Instead it struck down a Long Beach charter provision that candidates for city council must have lived in the city for one year, and in the district for six months, before filing for office. There are no reported decisions in California on residency requirements for state legislative candidates in non-redistricting years.
On February 2, a Republican candidate for State Senate in California’s 14th district filed a lawsuit, asking that the Secretary of State be compelled to enforce the California Constitution’s residency requirement. The case was filed by Heidi Fuller, who wants a decision that one of her Republican opponents, Assemblyman Tom Berryhill, is not eligible to run. Berryhill moved into the district late last year, less than one year before the November 2010 election. The lawsuit is now pending in the State Court of Appeals. It is called Fuller v Bowen, C064080. Here is the brief.
The California court in Johnson v Hamilton was aware of the New Hampshire case, and another in South Carolina. They characterized the US Supreme Court’s action as “declined to strike down” rather than “summarily affirmed”.
They went on to say that, in the cases regarding legislative residency requirements in other states, didn’t matter because they were dealing strictly with the Long Beach charter (and by inference, not a provision of the California Constitution).
Since, under the Constitution, the legislature has exclusive authority to judge the qualifications of its members, can they delegate to the executive or judicial branch a preliminary determination that someone is not qualified for the office?
The 1973 case of Legislature v Reinecke was the California Supreme Court’s implementation of congressional and legislative redistricting after the legislature failed to do so following the 1970 census. Since the institution of new districts was ordered less than a year before the election, the court ordered that candidates who lived in the districts by the filing date in January 1974 would be eligible. They did not order the Secretary of State to enforce the new deadline, but simply adjusted the residency duration in the Constitution to be compatible with the new district boundaries. The alternatives would have been to delay the election; use the old malapportioned districts for yet another election (as had been done in 1972); or to require residency within an area whose boundaries had not been definitively delineated for the entire 12 month period.
The 1951 case, in re McGee, was about the judicial branches authority over legislative elections, as well as durational residency requirements. A Republican and a Democratic candidate had cross-filed in both primaries in 1950, and the Republican was nominated in both primaries.
The Democrat contested the primary election results on grounds that the Republican had not lived in California for 3 years nor the district for one year. The lower courts ruled in the Republican’s favor. The Democrat appealed, claiming that the Republican had not proved that he had lived in California for 3 years immediately prior to his election, while the Republican claimed he did have proof.
The Republican further claimed that the courts did not have jurisdiction over legislative qualifications, since the Constitution gives the legislature exclusive jurisdiction over the qualifications of its members. In 1879, when the current constitution was instituted, there were no primaries or government-printed ballots. Voters would write-in the name of their favored candidate, or use a party-printed ballot which had the party nominees already “written-in”. There was no place for the judicial or executive branches to interfere with elections.
By 1950, primaries had been added, and California law provided that primary election results (for all offices) may be contested in the courts. Legislative general elections are specifically excluded from being contested.
The Democratic candidate contested the primaries on the basis that the Republican candidate was unqualified to be an assemblyman. The lower courts ruled in favor of the Republican based on the merits of qualification. By the time the appeal reached the California Supreme Court, the general election had been held and the Republican elected.
The Fuller brief claims that the court said it would have been “futile” for it to rule on the merits of qualification at that point, since the legislature had jurisdiction by that time. But I think that the court was saying it would be “futile” for it to make any ruling on whether the Republican was qualified to serve, since the legislature alone can make that decision. In particular, they said that the district court should never have even considered the issue.
If a qualification is just a restating of qualification to serve, I think the courts will defer to the legislature. One of the qualifications to be a candidate for nomination for senator, is to be qualified to be senator; one of the qualifications for publication of information in the voter’s pamphlet is that it be truthful, and inclusion implies qualification of the candidate to be senator, which is not truthful if he is not. But in either case, a decision by the Secretary of State would have the effect of preventing Berryhill from being elected, and thus preventing the legislature from making that determination.
On the other hand, the Secretary of State may pass judgment on issues that are strictly related to qualifications to be nominated, such as party membership of the candidate, sufficiency of petitions, and timely filing.
So the courts simply won’t ever consider whether the residency requirement is constitutional. Fuller will be left to running commercials stressing the issue and claiming that the people can “enforce” the qualification standard by voting for her.
Berryhill may have an advantage here since his assembly district appears to be mostly contained in the senate district he is running for, so it isn’t quite like he is a total outsider.
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In 1973 when the first AG’s opinion was issued (by a Republican AG, when Ronald Reagan was governor), Jerry Brown was the Secretary of State.
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Term-limited senator Jeff Denham had considered running for Lieutenant Governor. He is now planning on running for the Assembly in Tom Berryhill’s current district. To do so, he will have to move his residence.
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A guide to the California Legislature on its website
http://www.leginfo.ca.gov/pdf/Ch_07_CaLegi06.pdf
Claims on page 90 that
“Although the state Constitution imposes residency requirements on legislative candidates, these provisions conflict with federal court decisions and are therefore unenforceable.43” Footnote 43 is a reference to a letter from the Secretary of State in 1989.
This is wrong. They might not be enforceable by the Secretary of State.
I am intrigued by the lawsuit filed by Tom Berryhill’s opponent. What will happen next? Will Tom Berryhill be allowed to have his name on the ballot? If his name is on the ballot could still be ineligible to be seated. Thanks, Jim Hogan
This blog was… how do you say it? Relevant!!
Finally I have found something which helped me. Kudos!