Legal Corner: Defining Residency for Candidates

Christina Estes-Werther, League General Counsel

The presidential election has dominated the news and ushered in the 2016 election season. While the state will hold four state elections this year, many cities and towns will also hold mayoral and council elections. When considering whether a person is qualified for municipal office, frequent questions arise about how to determine the residency of a candidate.

Arizona Revised Statutes (A.R.S.) § 9-232 guides our residency discussion and requires at the time of the election that the candidate:
  1. Be 18 years old;
  2. A qualified elector (a person registered to vote) who is residing within the city or town; and
  3. Must have resided in the city or town for at least one year before the election. If a candidate has lived in an area annexed to the city or town for less than a year before the election, the candidate must have resided in that annexed area for the one year prior to the election.
The election code specifies that "resident" means an individual who has actual physical presence in this state or city or town and intends to remain. A temporary absence is allowable as long as the person maintains the intent to return following the absence. See A.R.S. § 16-101(B).

"Intent to remain" and "intent to return" can be difficult to decipher during a contested election challenge so case law provides additional tools to consider when determining if a candidate is a resident. The Arizona Supreme Court has stated that evidence is necessary to disprove a person's claim of residency. The court evaluates whether the candidate physically resides at the listed residence address and may seek evidence of where mail is received and review voting history to determine if the person has recently voted in a precinct outside the claimed residence address. See Kauzlarich v. Board of Trustees of Oak Creek School District No. 16, Yavapai County, 78 Ariz. 267, 278 P.2d 888 (1955) (finding that testimony disproved the couples' claim that they resided in the husband's parents' home within the district, and evidence proved that the parents' home could not house the entire family, and no rent was paid to the husband's parents).

Additionally, the Court of Appeals stated that owning a residence in a city but not residing in that home is insufficient to prove residency in the city when it was clear through evidence that the candidate had been living outside the city limits for twelve years. See State v. Macias, 162 Ariz. 316, 783 P.2d 255 (1989).

The courts have noted important policy reasons for the residency requirement including "preventing frivolous and fraudulent candidacy" by a candidate who has no shared understanding of the issues facing the electorate in that district or city at large. See Triano v. Massion, 109 Ariz. 506, 509, 513 P.2d 935, 938 (1973). Without residency requirements, the courts have opined that a candidate lacks an understanding about serious issues facing the city, which results in a failure to adequately represent the area. Further, the court stated that a person who seeks office should carefully evaluate the requirements, including residency, in order to make an informed decision and this reflection should take place well in advance of the election.

The court also referenced the historical significance of residency requirements for candidates in all types of public office and noted that residency requirements apply to the offices of President of the United States, U.S. Senator and U.S. Representative.

Charter cities may establish residency requirements for local officers that are different from the state as decided in Triano v. Massion. The court found that the issue was considered a matter of local concern although it is important for a charter city's residency requirement to be reasonable.

A candidate considering municipal office or a person who may challenge a candidate's claim of residency must be ready to provide evidence to the court. The court evaluates whether the candidate physically resides within the city by examining previous voting history, employment, mail delivery, and other important factors that aid the court in its determination. While state law requires residency for one year in order to hold municipal office, it is important for those living in a charter city to confirm the residency requirements for their city or town.
 

League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ  85007
Phone: 602-258-5786
Fax: 602-253-3874
http://www.azleague.org

If you have ideas for this newsletter or encounter difficulty reading this email,
please contact Samantha Womer at swomer@azleague.org with your concerns.