Residency Sweet Residency: A History of Challenges…
Next week the State Ballot Commission is expected to take up ballot challenges ahead of the Fall races. Among the things on its plate is the objection to Eric Lesser’s eligibility for the 1st Hampden & Hampshire Senate seat. One of Lesser’s opponents, Springfield City Councilor Tim Allen filed the objection.
Allen challenged Lesser’s eligibility based on the state constitution’s mandate that a senator live in the commonwealth for five years prior to election. Lesser lived in Washington from early 2009 to the summer of 2011 while working for David Axelrod, then one of President Barack Obama’s top advisers, and later the Council of Economic Advisers. Lesser returned to the state to attend Harvard Law School. His residency at that point is not contested. While causing a racket initially and as the hearing drew near, the objection has neither deterred nor mixed up the race to replace outgoing senator Gale Candaras.
In recent media reports, including a profile of Lesser in The Valley Advocate, there has been a back and forth between Lesser and Allen. “Massachusetts has always been my home,” Lesser told The Advocate’s Maureen Turner while calling the challenge “frivolous” and accusing Allen of “politics as usual.” In a release on the challenge, Lesser had called his DC service “an inherently temporary position.”
Allen, disagreed, focusing on the constitution’s “immediately preceding” phrase. Allen told The Advocate that “This isn’t politics, this is about the rules” and claimed Lesser is the one bringing Allen’s objection up. He also noted that the GOP would surely challenge Lesser in September were he the nominee.
The challenge to Lesser’s eligibility should probably surprise few. Over the last twenty-five years, challenges based on residency were uncommon, but frequent enough in the commonwealth to build a body of noteworthy examples. The universe expands even further with local offices and the 2011 Mayoral contest in Chicago, the victor in which, served in the White House with Lesser.
Still, the threshold to remove someone seems incredibly high. In a number of cases, some with seemingly sketchier proof of residency than Lesser, the challenge ended with the candidate on the ballot.
The Ballot Commission’s decisions on where a person’s domicile is (the source of eligibility) emphasize that no one thing is determinative. The Commission considers many factors and will find a person’s home to be “where a person dwells and which is the center of his domestic, social and civil life.” When candidates have moved, the inquiry also focuses on intent.
The burden is on the challengers to prove a candidate broke that chain of residency or never had it in the first place. In none of the major cases of the past twenty-five years was a total lack of residency an issue. Rather, as with Lesser, the candidates returned after doing being somewhere else for a time.
By far the most comprehensive decision on the matter was a 2002 challenge to Romeny’s candidacy for governor. Romney’s came under scrutiny as, not long before launching his bid, he had been in charge of the Winter Olympics held in Salt Lake City that year. Three nondescript residents challenged Romeny although state Dems likely had a hand in this given the resources the challengers were able to muster.
The Romney decision is long (40 pages), laying out the sizable pre-decision litigation, his employment history and his movements as the head of the Salt Lake Organizing Committee. Aside from being physically present in Utah, indications of Utah and not Massachusetts residency were Romney’s tax returns, which listed Utah as his residence and his opening of checking account there. Romney rented while there, but owned a vacation home in Utah, which was at one point listed as a primary residence.
However, a key refrain of the Commission’s decisions, also appearing in Romney’s case, set the tone. “Mere temporary absence does not change [domicil], and personal presence in a place, even for a protracted period, does not of necessity fix the domicil [sic] in that place.”
The Commission did not doubt, and no one disputed, that his Bay State residency before 1999. From there, the Commission was unimpressed by the evidence against his residency. Romney’s family continued to live in Belmont. His bank accounts and voter registration remained in the commonwealth. It found Utah’s tax definition of residency broad enough to encompass non-residents. The primary residence label on his Utah property was affixed in error, something the objectors eventually conceded.
After the Commission ruled for him, Romney went on to become governor and shortly thereafter began his near ten year endeavor to become president.
The Stebbins decision, which is cited several times in Romney’s case, put the former Springfield City Councilor on a special election ballot despite less evidence than Romney had. Stebbins grew up in East Longmeadow and lived there before moving to Springfield later in life and serving as a Councilor. Stebbins, now a member of the Massachusetts Gaming Commission, declined comment for this story.
Twenty year’s ago, Stebbins’s path preceded Lesser’s almost perfectly. After graduating from college in 1987, Stebbins joined the elder Bush’s presidential campaign in New Hampshire. When Bush won in 1988, Stebbins worked at the US Department of Transportation and then as an assistant White House political director. He returned to East Longmeadow in 1991.
That year Iris Holland vacated her seat, prompting a special election for the 2nd Hampden House district. Stebbins, Ronald Hastie and Mary Rogeness ran in the Republican primary.
Based on Stebbins’s time in Washington, Hastie objected to the former’s residency. The rules for State Rep are more specific than State Senate, which, like the governor, only require residency within the state for a specific period of time. A House candidate must be resident within the district for one year.
Among factors weighing against Stebbins were his vehicle registration in Northern Virginia, where Stebbins lived. He filed taxes in Virginia and obtained a driver’s license from the Old Dominion. The commission dismissed his vehicle registration and license as an understandable effort to avoid parking tickets and largely glossed over the taxes. It focused on intent, voting habits and personal ties to the area. In the Commission’s eyes, Stebbins residency in East Longmeadow was continuous.
Stebbins told The Boston Globe’s Stephanie Ebbert in 2002 that in the end the challenge’s only impact was taking him off the trail for a week. He appeared on the 1991 special Republican primary ballot and came in second behind Rogeness, who went on to win the special general that year.
Similar issues have arisen in other states. Rahm Emanuel, who was White House Chief of Staff for part of Lesser’s tenure, came much closer to ballot exile. After joining the February 2011 Chicago mayoral race, an intermediate appellate court turfed Emanuel from the ballot. He had been a congressman from the city for six years prior to going to the White House in 2009, but once he became Obama’s top aide, his job was no longer divided between DC and his Chicago district. He then moved his family to Washington.
On those grounds, the Illinois Appellate Court reversed a ruling from a lower court and the city’s election board, both of which found him eligible to run. That court ruled that a physical presence is required, something Emanuel could not even do initially as his home was occupied by a renter. A prompt ruling from the Illinois Supreme Court reversed the Appellate court and Emanuel was back in the race, which he won handily. The state Supreme Court all, but called out the Appellate Court for ignoring established precedence in this area that allowed for temporary absences.
Residency challenges are not merely the preserve of state offices and those of national interest. In local settings the issue has also flared up. Ludlow School Committee member Jake Oliveira found his residency challenged after first winning his seat in 2009. Media reports then attributed the objection to a vote Oliveira took early in his tenure. Still, the Board of Registrar had to hold a formal hearing.
Like most offices, including those above, voter eligibility is a key component of establishing residency. Oliveira’s was questioned, at the time, because he often commuted to Boston for his job and sometimes stayed with friends in Framingham. However, the objector provided no evidence he had established residency somewhere other than Ludlow. The Board ruled unanimously in Oliveira’s favor.
Oliveira, speaking to WMassP&I, remembered thinking at the time, “If I am not eligible [to vote] here,” were the objection valid, “then I am not eligible anywhere.”
The issue arose in Springfield too. When Ward 6 City Councilor Keith Wright resigned in 2010, it activated a kink in the city’s succession law. Amaad Rivera, Wright’s opponent in the acrimonious 2009 contest for Ward 6, was able to fill the seat. But between losing the race and Wright’s resignation, Rivera had begun attending classes near Boston. The bitterness of the race reemerged, prompting an outcry and, at times, salacious attacks on Rivera (of which this blog somtimes lamentably indulged).
If any pattern exists among these examples it is a great reluctance on the part of various ballot authorities around and beyond Massachusetts to remove an individual from the ballot.
Lesser, in a statement in May ostensibly geared to dissuade Allen from going through with the objection, laid out his evidence in defense of his residency. He noted that he had resided in Massachusetts from the age of 7 when his family moved here. He said he maintained his Massachusetts license, kept his bank accounts here and regularly returned for family and religious functions. Lesser says he voted in Longmeadow except for a brief registration in Cambridge for the 2013 election.
Another pattern, though not particularly instructive, is worth mention. Whatever Allen claims and despite Lesser’s criticism of the objection as a waste of resources, the objection is within the ambit of politics—if of the bare-knuckled variety—and so not wholly indefensible. But there are risks. In all of the above cases, the objection fails, and the politics boomeranged to a point. Hastie came in behind Stebbins. Romney won the election. Contemporary press accounts say residents rallied behind Oliveira. Of course, other factors were at play, but these political outcomes did not happen in a vacuum either.
Despite the precedent, it is a fool’s errand to predict how the Ballot Commission will rule. But if he believes in this challenge, it would behoove Allen to present more than just news clippings of Lesser’s service in Washington to have him removed from the ballot.