I have seen repeated concerns in Virginia political blogs about the residency requirements for candidates for political office. The practical effect of allegedly failing to meet residency requirements appears to be minimal. This post is specifically designed to explain the law behind the residency requirements for candidates for Virginia public office, and the potential consequences of failing to meet those requirements.
How does one become qualified to hold a public office?
“In order to hold any [elected] office . . .the candidate must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office.” Va. Code § 24.2-500. Keep in mind this is simply to hold an office. This is not the requirement to run for the office, or to be voted in to office. This is the requirement to be sworn in.
How does a candidate become qualified to be a candidate for a particular public office?
“In order to qualify as a candidate for any office . . . a person must be qualified to vote for and hold that office.” Va. Code § 24.2-500. A similar provision applies to candidates in primaries under Va. Code § 24.2-519. It is not actually possible to tell at the time that one qualifies as a candidate if that person will actually be a resident up until the actual election. Presumably, the legislature means that to qualify you must be a resident for the year preceding the date one qualifies as a candidate. The alternative is that this portion of the statute is potentially unenforceable as vague.
How does one become “qualified to vote?”
Both the previous situations - holding an office, or qualifying as a candidate for an office - require that the candidate or officer be qualified to vote for the office in question. “‘Qualified voter’ means a person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) 18 years of age on or before the day of the election…, (ii) a resident of … the precinct in which he offers to vote, and (iii) registered to vote.” Va. Code § 24.2-101. Items i and iii are factual and self explanatory. Item ii and the definition of “resident” is less clear. "Residence" or "resident," for all purposes of qualification to register and vote, means and requires both domicile and a place of abode. To establish domicile, a person must live in a particular locality with the intention to remain. A place of abode is the physical place where a person dwells.” Va. Code § 24.2-101. The definition of abode is fairly self explanatory. Domicile is a legal term of art that can generally be proven by showing that one intends to remain by changing mail delivery, drivers’ licenses, car registrations, and tax filing addresses to the new home. It requires a very fact intensive analysis.
What does it take to get on the ballot?
Here is where the threat of criminal sanctions can arise in egregious situations. A statement of qualification for candidacy must be filed by the candidate pursuant to Va. Code § 24.2-503. In 2011 the dates for filing are different under HB 1507 due to redistricting. There are different dates for filing the statement depending on if there is a primary, or if there is no primary. The terms of the statement required are detailed in Va. Code § 24.2-501, which states in part “a person must file a written statement under oath, . . . that he is qualified to vote for and hold the office for which he is a candidate.”
A statement made under oath, particularly to an agency of the Commonwealth of Virginia or its subparts is subject to potential criminal sanction under Va. Code § 18.2-434, which states in part “any person to whom an oath is lawfully administered on any occasion . . . willfully subscribes as true any material matter which he does not believe is true, he is guilty of perjury, punishable as a Class 5 felony.” Under Va. Code § 18.2-10, class five felonies are punishable with “a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.”
So what are the remedies for a candidate or voter negatively affected by the candidacy of a person not capable of holding or being a candidate for a particular office?
A. Criminal Sanctions
The reader must understand that prosecution of criminal matters is at the discretion of the local Commonwealth’s Attorney. Anyone with knowledge of a crime can swear out the warrant for someone’s arrest. But, a magistrate does not have to issue the warrant, and the prosecutor can drop the case. The only actual crime potentially arising out of a situation with a non-legally qualified candidate is perjury under Va. Code § 18.2-434 for the action of submitting the false statement of qualification under oath. Not only do criminal matters need to be proven beyond a reasonable doubt, but perjury requires that the person making the sworn statement “know” that the statement they are making is not true. This last element must be proven by a prosecutor, whereas any candidate can easily claim they made an innocent mistake.
Functionally prosecution is nearly impossible. Any Commonwealth's Attorney that pursues this route will likely lose in a high profile, politically charged case.
B. Civil administrative remedies by the SBE or local registrar
These folks are performing administrative duties. It is not their job to research the histories and backgrounds of potential candidates. There is nothing improper about them accepting a statement of qualification of candidacy at face value. In fact, if after receiving a statement of qualification containing all the required elements, and requisite petition signatures, a registrar refused to place a candidate on the ballot due to the registrar's own belief that the candidate is not legally qualified, then the registrar should expect to be subject to a writ of mandamus an unusual legal proceeding designed to force a public official to perform a ministerial act.
This is not the place to seek a remedy.
C. Civil enforcement between private parties
The proper and effective route to challenge a legally unqualified candidate is to bring a civil action against the candidate as early as legally possible. This lawsuit must be brought on behalf of someone directly affected by the improper candidacy (opposing candidate, voter, local political committee), and must be brought against the legally unqualified candidate, and the local registrar and SBE depending on the type of office. The party bringing the lawsuit should immediately seek a preliminary injunction against placement of the legally unqualified candidate on the ballot. The preliminary injunction against placement on the ballot, although difficult to obtain, will likely be the only potential remedy. The court has the power to reject an injunction after an election on the grounds that it is not in the public interest to upset the results of an election.
If the goal is simply to make a statement about how a candidate was never legally qualified, a lawsuit after the election is possible.
These remedies require payment of substantial attorneys' fees and the posting of a bond if successful at the preliminary injunction stage. Between the difficulties in obtaining an injunction, and the costs involved no one seems willing to pursue this route.
There is only one legal remedy (civil enforcement) for someone affected by a candidate they feel is not legally qualified. Otherwise affected parties can attempt to persuade voters of the illegal nature of a persons candidacy in the court of public opinion. The problem with this latter route is that voters never seem to notice - or if they do notice they do not care.
Previous shorter versions of parts of this explanation can be found in my comments at: