Candidate Residency Challenges Remain a Hot Issue in New York State Election Litigation
By: Joseph T. Burns
Two years ago, independent presidential candidate Robert F. Kennedy, Jr. had his independent nominating petition invalidated by a trial Court in Albany County. At issue was not the number of signatures on his petition. Instead, the objectors to the petition raised the issue of Kennedy’s residence. Specifically, they argued that the residence on Kennedy’s petition (which was also the address from which he was registered to vote) was illegitimate and not, in fact, his actual residence or one at which he had any significant ties. Because a candidate is required to state their actual residence on their petition, Kennedy’s petition, the objectors argued, was invalid. The trial court agreed and Kennedy was off the ballot for president. This decision was later affirmed by the Appellate Division, Third Department.
Two years after Kennedy lost his spot on the ballot due to a residency issue, candidates are still having their residency called into question. But recent court decisions have shown that candidates can successfully defend their candidacy from challenges related to their residency.
In a proceeding commenced in Albany County, objectors sought the invalidation of Republican and Conservative designating petitions for a candidate for Congress in New York’s 18th Congressional District. The objectors argued that the residential address placed on the candidate’s petitions was not in fact his residence. They argued that the address on his petition (which is also where he registered to vote) was that of his friend and nothing more than a sham that was being used solely for political purposes.
After denying the candidate’s motion to dismiss, the Court conducted a hearing. Testimony was given by, among others, the candidate and his spouse.
The Court rejected the arguments of the objectors, found that the objectors had not proven “by clear and convincing evidence” that the candidate’s registration was fraudulent, and determined that the candidate had “significant and continuing attachment” to the residence listed on his petition. To reach this conclusion, the Court relied on a number of factors.
First, the Court found that the candidate regularly stayed at the residence in question. Second, the Court found that because of the shared religion and cultural background of the candidate and homeowner, it was not unusual that the candidate paid no rent or living expenses to the homeowner. Third, the Court found that the candidate had a long history of talking about moving to the area in which the residence was located. Finally, the Court noted that no signer of the candidate’s petition or voter in the 18th Congressional District has stated that he or she was misled or confused about the candidate’s residence.
The candidate running in the 18th Congressional District isn’t the only one seeking office this year to survive a petition challenge based on his residency. In Queens County, a candidate for New York State Senate District 15 challenged the petitions of his opponent, an incumbent Democratic State Senator; the challenger argued that the incumbent did not reside at the address stated on his petitions or even in the State Senate district. These arguments were rejected by the trial Court, and that decision was affirmed by the Appellate Division, Second Department.
In this proceeding, the Petitioner-candidate argued that his opponent was not a resident of the State Senate district in which he was seeking reelection, making him constitutionally ineligible to run for or hold that office. Except for redistricting years, the New York State Constitution requires that candidates for the New York State Legislature must reside in the district they seek to represent for twelve months prior to their election.
As with the case over the residency of the 18th Congressional District candidate, the trial Court found that the Petitioner had not established by “clear and convincing evidence” that his opponent did not reside at the address stated on his petition and within the 15th State Senate District. The Court found that the incumbent’s ties to the address within the State Senate District are sufficient for him to claim it as his residence. The home was his childhood home. The interior contains many of his personal items, and he receives mail at that address. Finally, the trial Court reaffirmed that a person can have multiple residences – as the incumbent in this matter has – and can choose one for electoral purposes. The trial Court’s decision was unanimously affirmed by the Second Department.
Both of these candidates defended their residency and the validity of their designating petitions. Facts matter in challenges to a candidate’s residency, and challengers have a high standard to meet in these cases. A candidate without facts to support his choice of residence can easily find himself off the ballot. As these matters can become highly technical, candidates whose residency is being challenged as well as those challenging an opponent’s residency should seek advice from attorneys with experience in this field.
