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Residency and Democracy: Durational Residency Requirements from the Framers to the Present

68 Pages Posted: 11 Apr 2016 Last revised: 10 Aug 2016

Eugene D. Mazo

Rutgers Law School; University of Baltimore School of Law; University of Maryland Francis King Carey School of Law

Date Written: April 10, 2016

Abstract

Geographical residency is part of democracy. Politicians are elected from geographical districts, and they represent the people of those districts in office. A United States Senator is elected to represent the people of his state. A Congressman represents the people of a particular district in that state. In turn, a citizen from a geographically bounded state votes for a Senator who will represent that state, just as a resident of a geographically bounded district votes for that district’s Congressman. No one would seriously expect or advocate the residents of a different state or district to vote for these government officials. What is less appreciated is that a new resident of the state or district who wishes to vote for his preferred candidate may often not be able to do so until he first meets a durational residency requirement. This means that a citizen not only has to reside in a certain geographical district to vote for its representatives, but he must also demonstrate his legal residence there for a certain period of time.

Durational residency requirements exist for candidates as well. Just as voters have to satisfy certain durational residency requirements before they can cast a ballot in a given district, so too do politicians have to meet durational residency qualifications in most states and municipalities before they can run for office. The durational residency hurdles that political candidates face, however, often look very different from those that voters encounter. The durational residency requirements for politicians are typically much longer in length, and they have not been subject to the same kinds of constitutional challenges as those for voters, other than in rare circumstances.

As a society, we take durational residency requirements for granted. Only a few scholars have ever examined these requirements in any serious or systematic way, and when they have, most scholars have argued against them. Preventing citizens from voting because they might live in the right district but have not lived there long enough is seen as being anti-democratic, while preventing candidates who do not meet a durational residency qualification from running for office is viewed as little more than a naked attempt to prevent carpet-bagging. This, at least, is what the literature on durational residency requirements argues. Yet states and municipalities have not always viewed things this way. Instead, they have advanced many reasons for preserving durational residency requirements. When one scratches the surface, durational residency requirements turn out to be more complicated than they appear. They also have a long history in American jurisprudence, a history that dates back to the colonies.

This Article seeks to examine America’s durational residency requirements in historical and comparative terms. In doing so, it aims to make the case that these requirements are not anti-democratic and that in some circumstances they are both necessary and essential for democracy. The few scholars who have examined durational residency requirements in the past have tried to argue against them without appreciating their place in our history. This Article seeks to blend history and modern law in a way that no one has attempted to do before. The Article argues that residency requirements have their place in democratic politics. Its purpose is to explain the origins of our durational residency requirements, to chronicle their current status, and probe the contours of when they may be justified in American democracy.

Keywords: election law, durational residency requirements, voting rights, voters, candidates, founding fathers

Suggested Citation

Mazo, Eugene D., Residency and Democracy: Durational Residency Requirements from the Framers to the Present (April 10, 2016). Florida State University Law Review, Vol. 43, pp. 611-78, 2016, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2762015

Eugene D. Mazo (Contact Author)

Rutgers Law School ( email )

123 Washington Street
Newark, NJ 07102
United States
(973) 353-5332 (Phone)

University of Baltimore School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21201
United States
(410) 837-4509 (Phone)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
21201, MD 21201
United States
(410) &06-3932 (Phone)

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