Jerry H. Goldfeder and Myrna Perez
Jerry H. Goldfeder and Myrna Perez ()

Gov. Andrew M. Cuomo is challenging Fordham Law School Professor Zephyr Teachout’s eligibility to oppose him in the Democratic Party primary election for governor. The ground is that she does not meet the New York state constitutional requirements for the office—specifically, that she has not continuously resided in New York for five years prior to the general election.1 The case is being heard in Kings County Supreme Court by Justice Edgar G. Walker.2

Although somewhat sensational given the parties involved, election trials such as this are fairly common during late July and August. Candidates often seek judicial intervention either to stay on the ballot or try to knock off an opponent. In many parts of the state, either the Democratic Party or the Republican Party generally dominates; thus, winning a primary is often tantamount to election. There is, therefore, a lot at stake.

Election cases are summary proceedings, heard on an expedited basis, and take preference over all other civil and criminal matters.3 Mostly, the cases are preceded by administrative determinations by the local Board of Elections, but the trial is a de novo proceeding. They are highly truncated affairs because of the election timetable. Review by the Appellate Divisions is already scheduled for mid-August, and the Court of Appeals holds a special session at the end of the month to determine whether to grant leave to appeal—which it rarely does.4

Two of the most experienced election litigators are currently facing off in the Cuomo-Teachout residency case.5 The media has reported that Teachout has led a somewhat peripatetic career, but a more complete record will be adduced at trial. No doubt all gaps will be filled in as to every place she has hung her proverbial hat over the last five years. In these cases, documents such as leases, mortgage statements, bank and credit card records, IRS filings and utility bills are usually subpoenaed. Neighbors and friends are often called to testify as well, but the star witness is invariably the candidate whose residency is being challenged—and the candidate’s testimony typically addresses issues such as where she slept, kept her clothing and other personal possessions, did her laundry, shopped for groceries, and the like. No detail is considered too small to raise, argue about, and rely on, either to establish or refute bona fide residence.

Court Decisions

To complicate matters, the election law permits multiple residences. A candidate is permitted to have more than one place she or he calls home. Take the case of Judge ShawnDya Simpson, a 2007 candidate for an open seat as Kings County Surrogate. In that case, Johnson v. Simpson,6 the candidate was required to live in Brooklyn. Simpson’s opponent, Supreme Court Justice Diana Johnson, claimed that Simpson really lived in New Jersey, and presented evidence to show that her husband lived in a South Orange house with their children, who went to school locally.

Simpson testified that she lived in Brooklyn, and produced a lease evidencing a hefty rent of $2,600 a month. To maintain objectivity, the case was assigned to Queens Supreme Court, which ruled that modern 21st century couples sometimes have two homes and that the challenger did not meet her burden to prove that Simpson’s Brooklyn residence was a sham.

Similarly, the Appellate Division, Third Department, has ruled that residents of New York City who have second homes in rural upstate towns may choose weekend/summer abodes as the place from which to vote, as long as it is a legitimate residence.7

Residency challenges are not new. During the last generation, there have been many.8 One striking decision from 1970, Meehan v. Lomenzo,9 an outlier at the time, presciently fits into the flexible approach utilized by modern courts. That year Adam Walinsky, a former aide to the late Senator Robert Kennedy, threw his hat into the ring for the post of New York State Attorney General. Faced with the same requirements that Cuomo and Teachout must satisfy today, the challenger to Walinsky’s candidacy showed that he had moved his family to McLean, Va., had a Virginia driver’s license, purchased two automobiles there, and bought land to build a house. Walinsky had moved from New York to Virginia when he worked at the Department of Justice and then as an aide and speechwriter for Kennedy.

The Supreme Court, Albany County, opined that “these acts show intent to make Virginia his permanent residence.” But, the court continued, “a reasonable man would also ask what other course he had. He had a family and isn’t it a [man's] desire to have his family in close proximity. Should he have left his family in New York and [commuted] weekends? Would this be reasonable. I don’t think so.”

The evidence also showed that Walinsky “continued to maintain an address” in Manhattan, “had personal items of clothing and periodically lived in these premises for eight to ten days at a time….”

There being no doctrine of “multiple residencies” at the time, the court found that Walinsky, though he worked in Washington and lived in Virginia, “remained a constructive resident of the State of New York” during the relevant time. The challenge was dismissed, and the trial court’s ruling was affirmed by the Appellate Division and the Court of Appeals.

Residency cases are also not confined to New York. In 2010, Rahm Emanuel faced a challenge after he left his post as White House Chief of Staff to run for Mayor of Chicago. Despite voting from the house he owned, he had rented it out and had no real living space in the city. He was ruled off the ballot by the court, finding that he had not “actually resided” in the city. Nevertheless, the Illinois Supreme Court reversed.10 The record showed that Emanuel maintained “treasured possessions” in the basement of the house, such as “his wife’s wedding dress, [and] the clothes his three children wore home form the hospital after they were born.”11 The court found that Emanuel had a continuing intent to remain a Chicagoan, and he was elected mayor the following month.

In the State of Texas, the residency issue recently played out with an unusual twist. The year was 2006, and Rep. Tom DeLay, under indictment at the time, wanted to get off the ballot to allow a fellow Republican to retain his House seat. His claim was that he had moved to Virginia and did not intend to return to the Lone Star State. The court saw it differently. In that the only eligibility requirement to serve in the House was that DeLay resided in the state on the day of the election12 and theoretically could move back, he was not ineligible to run.13

All told, then, whether in New York, Illinois or Texas, the law pertaining to residency requirements has no bright lines, and facts are dispositive.

Policy Question

Although not relevant to the Cuomo-Teachout legal challenge, one underlying question remains: Why does the New York State constitution require a five-year residency requirement? After all, to be elected to the U.S. Congress, one must only be a resident of the state on the day of the election, and the same is true for many public offices, including the Mayor of New York City. For now, however, the five-year residency requirement to run for governor is constitutionally mandated. We will save the policy question for another day.

Endnotes:

1. NY CONST., art. IV, §2 (“No person shall be eligible to the office of governor or lieutenant-governor, except a citizen of the United States, of the age of not less than thirty years, and who shall have been five years next preceding the election a resident of this state.”); NY Elec. L. §6-122 (“A person shall not be designated or nominated for a public office…who…is ineligible to be elected to such office…”).

2. Weiss v. Teachout (Sup. Ct. Kings Co., Index No. 700014/14).

3. N.Y. Elec. L. §16-116 (“The proceeding shall have preference over all other causes in all courts.”)

4. On the August 2013 election calendar, for example, seven would-be appellants sought leave; only one application was granted.

5. Martin E. Connor, a solo practitioner, represents the objectors. Lawrence A. Mandelker, of Kantor Davidoff Mandelker Twomey Gallanty & Olenick, represents Teachout.

6. 43 A.D.3d 478 (2d Dept. 2007).

7. See, e.g., Willkie v. Delaware County Board of Elections, 55 A.D.3d 1088 (3d Dept. 2008).

8. See GOLDFEDER’S MODERN ELECTION LAW (New York Publishing Corp. 3d ed. , 2012), Ch. 2. http://www.stroock.com/SiteFiles/Pub1508.pdf.

9. 63 Misc.2d 490 (Sup. Ct. Albany Co.) aff’d 34 A.D.2d 1024 (3d Dept.) aff’d 27 N.Y.2d 600 (1970).

10. Maksym v. Board of Election Commissioners of the City of Chicago, 242 Ill.2d 303 (2011).

11. Lynn Sweet, “Rahm Emanuel Testifies in Chicago Mayor Residency Challenge,” POLITICSDAILY (Dec. 14, 2010), at http://www.politicsdaily.com/2010/12/14/rahm-emanuel-testifies-in-chicago-mayor-residency-challenge/.

12. U.S. CONST., art. I, §2, cl.2 (“No Person shall be a Representative who shall not…when elected, be an Inhabitant of that State in which he shall be chosen.”)

13. Texas Democratic Party v. Benkiser, 2006 WL 1851295 (W.D. Texas), aff’d 459 F.3d 582 (5th Cir. 2006).