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Another perspective on residency requirements

The Texas Election Law blog looks at my coverage of the Dave Wilson residency saga and offers his thoughts on the matter.

Dave Wilson

Dave Wilson

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.

[...]

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.

Fair enough. As I’ve said, at least we now have a standard for our residency requirements, and clearly that standard is pretty loose. It’s loose enough that one could certainly make a reasonable case that they have no meaning and we ought to get rid of them. I’ve already expressed my preference for having some kind of meaningful requirement, and as the TELB notes you know what I would like to see done about it. Your mileage may vary on that, and while I can see the appeal of leaving this as a campaign issue rather than a legal issue, that’s not my first choice. This is why we have elections, I suppose.

I’ll stipulate that I was driven in part by animus for Dave Wilson, a man who has richly earned the animus of many, many people. It’s also about my dislike of people who are not residents of Houston but are nonetheless hellbent on meddling in its political affairs. I get the argument that some people have made that they work here, they own businesses here, and so forth. I get it, I’m just not persuaded by it. Some arguments can be settled by existing laws, empirical data, analogous examples, or cold hard logic. This isn’t one of those arguments. This is how I see it, and I make no apologies for that. If you don’t see it the same way, that’s fine. I’m not claiming that I’m right and you’re wrong, I’m just stating my preference, with which you’re welcome to disagree. I’m okay with that, and I hope you are, too.

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6 Comments

  1. Yvonne Larsen says:

    “It’s also about my dislike of people who are not residents of Houston but are nonetheless hellbent on meddling in its political affairs.”

    Hmm- I think I will make a non-resident of Houston contribution to Mr. Wilson’s campaign account. I so enjoy meddling in Houston political affairs through First Amendment speech.

  2. Although I was pretty flippant in writing about residence, I don’t want to leave the impression that I’m unsympathetic, or that I approve of Mr. Wilson’s gaming the system. Over the years, I’ve run across a fair number of professional troublemakers who deliberately misrepresent themselves in order to run for office, and I know only too well how frustrating they can be. I don’t know much about Houston politics, but I’m willing to believe that Dave Wilson may be an enormous pain in the posterior.

    It’s tricky, trying to figure out how to protect ourselves from jerks who successfully run for office. On the one hand, we’d like to believe that obnoxious bullies will naturally be weeded out by the political process – that the act of running for office, seeking endorsements, answering questions, and soliciting votes will cause voters to see all too clearly who the jerks are. Why would anyone vote for a time-wasting weirdo desperate enough to pretend to live in a warehouse?

    And yet, the voters sometimes elect time-wasting weirdos who pretend to live in warehouses – the outcome is probably more common in local races with low turnout and limited public awareness, such as in elections for water districts, community college districts, and so on. What’s even more frustrating is that sometimes (despite ample warnings) the voters will re-elect weirdos who pretend to live in warehouses. I don’t really know what the solution is, except to suggest that right now, it sounds like there’s a seat on the Houston Community College District Board of Trustees that should beckon like a shining low-hanging fruit to any truly serious and committed candidate who might want to pluck it up in the next election.

  3. Joseph – No worries. You made good points. As for Wilson’s seat on the HCC Board, I agree that it will be a ripe target for someone. Unfortunately, HCC Board terms are six years, so we’ll have to wait till 2019 for the chance.

    Yvonne – Knock yourself out. I don’t care about who contributes to whom, as long as proper disclosures are made.

  4. Yvonne Larsen says:

    Mr Kulhavy…are you the former Texas Secretary of State law attorney who spoke with Adrian Heath ?

  5. Ross says:

    The main difference between Wilson and The Woodlands bunch is that Wilson plays the game better by using a piece of property he owns as a fake residential address rather than a hotel. The law ought to be that a homestead on a property you or your spouse own is prima facie evidence of where you live with a high level to rebut. Absent property ownership, I am sure the smart folks in the Legislature can come up with some test that is rational.

  6. Manuel Barrera says:

    Q. Why would anyone vote for a time-wasting weirdo desperate enough to pretend to live in a warehouse?

    A. Not as weird as the person he beat? By the way the jury believed that he lived there. It could be because the investigator that the county hired to tail him caught him red handed living there. It could be because he actually does stay there most of the time.

    Why weren’t the Democrats as concerned when the late State Senator Mario Gallegos used his mom house to run from and his wife maintained a homestead outside the district?

    As one commenter posted it could be because of the animus (hostility) that some people have.

    As to jerks in office that is the rule not the exception.

    Old saying, everyone loves the smell of their own fart.

    “While most people will find the above phrase “crude” they will also secretly acknowledge it as a statement of profound cosmic truth!

    The phrase is on my list of great and wise sayings.

    Not only because the phrase is true, but also because it represents profound spiritual truth (if we elevate our minds)!

    We all have a “stinky” or flawed side to us. But ironically, we are much more repulsed by the flaws of others over our own.” Source;

    http://thegodguy.wordpress.com/2013/06/22/everyone-loves-the-smell-of-their-own-farts/

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