State Representative
Legislative Hall
Dover, DE 19901
Re: Durational Residency Requirement for New Castle County Council
Dear Representative Miro:
On your behalf, House Attorney Ronald D. Smith has asked for an opinion regarding the constitutionality of House Bill 67. House Bill 67 would clarify 9 Del. C. §1142 by requiring that a candidate for New Castle County Council have resided in the councilmanic district to which he/she seeks election for one year prior to such election. In the event of redistricting, it would require that the candidate have resided in the new redistricted councilmanic district for one year prior to the election. The issue is whether this one year durational residency requirement withstands constitutional scrutiny. For the reasons set forth below, we conclude that it does.
The United States Supreme Court has never issued an opinion on the constitutionality of durational residency requirements for candidates for elective office. However, in two summary affirmances during the early 1970's, it upheld two seven year durational residency requirements for statewide offices contained in the Constitution of New Hampshire. Chimento v. Stark, 353 F. Supp. 1211 (D.N.H. 1973), aff'd 414 U.S. 802 (1973); Sununu v. Stark, 383 F. Supp. 1287 (D.N.H. 1974), aff'd 420 U.S. 958 (1975). Because they were issued summarily, these decisions cannot be read as approval of the New Hampshire District Court's reasoning, but they do constitute an endorsement of the decisions. Hicks v. Miranda, 422 U.S. 332 (1974). The affirmances contain findings on issues necessarily decided by the affirmances. Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981). A finding that some durational residency requirements are constitutional was essential to these affirmances. The office at issue here is a local office, and the durational residency requirement at issue would be contained in a Delaware statute, not the Delaware Constitution. Nonetheless, we believe that these United States Supreme Court affirmances suggest that House Bill 67 passes constitutional muster. No case law from Delaware dictates otherwise.
Two Delaware cases address the constitutionality of durational residency requirements. Walker v.Yucht, 352 F. Supp. 85 (D. Del. 1972) upheld a three year residency requirement for a candidate for state representative, a requirement contained in the Delaware Constitution. The District Court employed a rational basis test to analyze the residency requirement. That is, the District Court ruled that the durational residency requirement was rationally related to legitimate government goals. Id. at 98. One year later, the Court of Appeals for the Third Circuit in Wellford v. Battaglia, 343 F. Supp. 143 (D.Del. 1972), aff'd 485 F.2d 1151 (3d Cir. 1973) (per curiam) struck down a five year durational residency requirement for the Mayor of the City of Wilmington using the strict scrutiny standard of review. The Court ruled that the State of Delaware could advance no compelling state interest to justify a five year residency requirement for a city mayoral candidate. Id. at 1152. The Court of Appeals for the Third Circuit distinguished Wellford from Walker v.Yucht based on the length of the residency requirement and the smaller territorial limits of the City of Wilmington. House Bill 67 imposes an even shorter durational residency requirement for election to a territorial unit that is larger than the City of Wilmington but smaller than the state House of Representatives. The facts of Walker v. Yucht more closely parallel the situation created by House Bill 67 than those of Wellford. Moreover, while Wellford has never been overruled, the United States Supreme Court affirmances cited above may undermine the reasoning and holding of the Wellford decision. Therefore, we have reviewed court decisions from other states that address the constitutionality of one year durational residency requirements. Our research shows that courts of other states resolving challenges to durational residency requirements of one year may differ as to analysis, but agree as to result, which is to reject the challenge.
The analyses by courts addressing the constitutionality of durational residency requirements are varied. Most often, perhaps, courts engage in an equal protection analysis. Some courts analyze the issue as a constitutionally protected right to travel issue. Others view the issue as implicating the right to vote. Finally, some courts perform a First Amendment analysis, based on the freedom to associate. See 65 ALR 3d 1048. The majority of courts appear to apply a strict scrutiny test, but there are courts that scrutinize for a rational basis or an important governmental interest instead. Akron v. Beil, 660 F.2d 166 (6th Cir. 1981) (important governmental interest); Hankins v. Hawaii, 639 F. Supp. 1552 (D.Ha. 1986) (rational basis). Regardless of the specific analysis, however, most courts rule in favor of the constitutionality of one year durational residency requirements, whether the public office at issue is state or local, or the requirement is contained in a statute or a constitution. See 65 ALR 3d 1048 (collecting cases). The majority of courts rule that a government's interest in limiting the ballot to candidates familiar with the constituency of the governmental unit is adequate justification to support a one year durational residency requirement. We believe that a Delaware court ruling on a challenge to House Bill 67 would reach a like result.
Please do not hesitate to contact us if you would like additional assistance with this issue.
Very truly yours,
Malcolm S. Cobin
Assistant State Solicitor
A. Ann Woolfolk
Deputy Attorney General
APPROVED:
Michael J. Rich
State Solicitor
cc: John H. Cordrey, Esq.
Richard T. Dillard, Esq.