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Residency rules, once toothless, are taking on new meaning

Could a losing Republican legislative candidate, who only garnered 5 percent of the primary vote, significantly compound the impacts of this year’s redistricting?

It’s possible.

Heidi Fuller was a candidate against Tom Berryhill in the 2010 state Senate primary.  In this race she came in fourth place with just 5,000 votes. However, before Election Day she filed a lawsuit seeking to remove Berryhill from the ballot because he had not fulfilled the residency requirement under the state constitution.

This constitutional residency requirement states very clearly, “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.”  

But for more than 30 years this part of the state constitution has received from Sacramento the same collective eye-rolling as the constitutional deadline for the state budget.  
Residency requirements nationally had been viewed as unconstitutional and in the 1970s the California Supreme Court in two cases applied an equal protection test to residency requirements and found them unconstitutional.  The language has remained in the state constitution, but it is no longer enforced, and candidates know that the one-year rule is the “fake” requirement.

But things have changed.  After our California courts balked at the one-year standard, the Supreme Court affirmed New Hampshire’s seven-year residency requirement and in another case found that there is no constitutional right to be a candidate.  

In what will likely be the highest profile case regarding residency requirements, the President’s former chief of staff, Rahm Emanuel, is trying to get on ballots in Chicago, and being tripped up by their one-year residency requirement.  And in the dozens of pages of testimony, filings, the decision and dissent, the constitutionality of such limits was not raised once.  Outside of California the constitutionality of residency requirements is not even an open question.

California’s lower courts are locked into our state’s case law which rests on an outmoded interpretation of federal law.  However, that doesn’t mean they agree.  The last judge in the Fuller v. Berryhill case said that if this were a clean slate he would not feel obligated to follow the logic of the prior decisions.  It seems clear that given his druthers he would uphold the one-year residency requirement for legislative candidates just like they are upheld everywhere else in the country.

The case is headed to the state appeals court and on its way to the state Supreme Court.  With more recent federal decisions it is unlikely that the state Supreme Court would have a problem with the constitution’s one-year residency requirement and they would likely overrule the prior decisions which protected lawmakers.

But how does this compound the impact of redistricting?  

If the courts were to act quickly the next class of legislators could be held to the one-year residency standard, meaning that 2012 candidates would have to be living in their district by Nov. 6, 2011.

The commission plan must be finalized by Aug. 1 and approved by Aug. 15.  Then there is a 45-day window for lawsuits, and the process for Department of Justice clearance, likely followed by more lawsuits.  A drawn-out process could keep lines in limbo well past the Nov. 6th residency date.  Congressional candidates would still be able to run for a district they don’t live in, but Assembly and Senate candidates and incumbents would have to run where they stand.  

Will the product of the redistricting commission be upheld, will it be amended by the courts, or could implementation of the new lines be postponed for an election cycle as they were in 1972? Come Nov. 6th 2011, we may not know, and incumbent legislators and candidates who think their political careers only require a quick move would be hamstrung by the lawsuit brought by a losing Republican state Senate candidate nobody’s ever heard of, until now.

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