*1 25130. Apr. No. 1988.] [S.F. al., Appellants, A. WALTERS et Plaintiffs
NORMAN al., and Appellants. JANE WEED et Defendants *3 Counsel Zumbrun, Caso, A. H. Anthony
Ronald T. M. John Coupal, Jonathan Timothy Findley, Liberty, J. for Plaintiffs Morgan Morgan & Glidden and Appellants. Cohen, Keker, Brockett,
Gary Page, M. W. &Page John Keker & Mitchell Coben and Robert E. Taren for Defendants and Appellants. General, Ordin, Attorney
John K. Van de Chief Andrea Sheridan Kamp, General, M. Assistant and Manuel Attorney Marian M. Johnston Madeiros, on Deputy Attorneys General as Amici Curiae behalf Defendants and Appellants.
Opinion PANELLI, This case question J. whether voters leave presents their domiciles no right intention to live there lose their returning vote in their former domiciles though yet even have not established new domiciles. light everyone In must have a domicile principle somewhere, we conclude such right individuals retain their to vote of their former precincts domiciles.1
Facts 8, 1983, On November Jane elect- Weed and three other candidates were ed to the Santa City Cruz Council. Ms. Weed received the fewest number votes of the four declared on County winners. Based a Santa Cruz Grand *4 Jury report found in four voting irregularities on-campus the precincts California, at the University Cruz), Santa Cruz Santa a (UC plaintiffs, citizens, group individual They contested Weed’s election. alleged 472 of the persons who in voted the were domi- precincts not on-campus ciled in the in precincts they Plain- illegal which voted and thus cast votes. election, tiffs a filed statement of contest of a candi- seeking declaration that votes, date Bill to Fieberling, by lost rightful Weed declared the winner.
At the time of the in election in question the 472 voters were students at UC Santa Cruz. They had lived to on the registered and university they When campus. returned to autumn school the many However, were or unable not chose to live on the time campus. closed, voter registration all of not these students had off-campus obtained result, where housing they to they intended remain. As a voted in their former campus precincts. question these presented therefore whether students lost their right to vote on the campus during the between period date on they which abandoned their domiciles no intention of campus there live returning they domi- the date on which established new below, ciles. For the reasons set forth we hold that these students did vote illegally. We uphold therefore the election results.
Procedures Below trial, This case a involved which avoid lengthy 292 voters testified. To intrusive, the time-consuming process students to disclose requiring 1Strictly purposes clarity, for opinion person’s physically refer in this we abandoned home as or though pre her “former” even we in this that the former hold case cinct acquired. remains the voting purposes “current” domicile for until new domicile We distinguish tempo do this in an person’s effort to current “former” domicile from rary residence and future domicile. Code, court 1050), approved the trial (Evid. tenor of their votes § court to find use of a formula which permitted to the stipulation parties’ precincts, on-campus found the four every ten votes within illegal The nine-to-one Fieberling. for Weed and one for nine were to be counted of the political notice judicial court’s taking formula was based on trial or issue that appeals candidate of UC Santa Cruz students: profile “[A] narrowly in Santa Cruz the left side of the fails spectrum prevails . . .”2 The of the votes cast. 88 to 96 campus percent whole carries (see, e.g., decisions prior use of this of formula has been type approved 682]) and is Singletary Kelley (1966) Cal.App.2d issue, the trial court By similarly not at not at issue here. computation formula, eighty-two nine-to-one one hundred determined that under the results, as necessary to set aside the election citywide votes were illegal Code,3 Fieberling declare section 20024 of the Elections permitted the winner. reside physically
The court found that 193 voters who testified did ex- and “unequivocally” voted on-campus precincts Of these 193 pressed campus. at trial the intention not return to live on voters, domicile as of the trial court found that 113 had a new acquired 1 month As to the illegally.4 before the election and had therefore voted voters, their votes based remaining the trial court affirmed the legality *5 Code, that one on the codified in section 244 of Government principle, the found cannot lose a domicile The trial court until new one is acquired. 182, only rather than had been cast necessary illegally the votes and confirmed Weed’s election. court, According to trial Mike Rotkin were the two the defendant Weed and candidate candidates, candidates; Levine “progressives” among top winning the Arnold four the other Sears-Williams, Katy were “moderates.” votes, moderate, Fieberling, actually highest number of Candidate Bill the sixth received Allen, Allen progressive. 107 votes behind determined that Van Bruce Van The trial court Fieberling. Judged by though garnered the had “no stake in this case even he more votes than court, many illegal yardstick precisely adopted as the Van Allen received [nine-to-one] votes as did Weed.” aside on ac provides: Section 20024 of the Elections “An election shall not be set Code votes, given illegal illegal has been to the appears count of unless it that a number of votes right having first person as tied for whose to the officeis contested who has been certified which, him, place, legal the num if taken from reduce the number of his votes below would office, given deducting therefrom the ille person
ber of votes to some other for the same after may gal given person.” votes which be shown to have been to that other likely following groups: “1. Persons who are 4The trial court divided the students into the intention not to es campus to return to the to live. 2. Persons who had evinced an ...[]]] post-campus testimony point . . . 3. tablish a domicile and whose on that was credible. [fl] post-campus Persons life their resi whose circumstances showed intention not to consider place . . . roost ex People dence at the relevant time as their 4. who have no domicile. [f] they University. testimony cept People persuade at the . me that . . 5. whose did not [U] who, clearly precinct. People should have as of October voted a different 6. ...[][] had a domicile in a other than the one in voted.” persons category illegally. The trial court voted found that those in the last reversed,
The Court Appeal declaring winner Fieberling place analysis Weed. The Court of its Appeal on section subdivision hinged (b) provides Elections Code which that one’s domicile for fixed, purposes is “that in which his or her place habitation wherein which, has person remaining, the intention of and to whenever he or she absent, Thus, ...” has the person returning. intention court that, law, held as a matter of who from their persons campus moved domiciles without the intention of to live lost the returning right there vote in regardless those whether new domi- precincts, they had established ciles.5The effect of the voters court’s decision was to disenfranchise those abandoned former without established a one. having new We granted petition Weed’s for review to conflict apparent reconcile between the Government Code relied on the trial court and provisions the Elections Code on provisions relied the Court Appeal.
Discussion A. Code Elections Section 200.
The California Constitution United States provides citizen “[a] years of age in this state vote” and directs the Legislature resident to “define (Cal. resident and provide registration for and free elections.” Const., II, mandate, art. 3.) To this constitutional comply §§ Code, Legislature enacted sections 200-217 of the Elections forth the setting criteria to determine one’s residence for voting purposes.
Section 200 Elections provides: Code “(a) Except provided article, this term ‘residence’ as used in this code voting purposes means a person’s (b) person domicile of a is that [fl] fixed, which his or her habitation is wherein the has the intention *6 which, absent, remaining, and he or she whenever is has person time, of At a returning. given may only have one person intention domicile. article, (c) The residence of a as in person, used in this that place [fl] time, the person’s habitation is fixed for which some but wherein period time, he or she have given does not the intention At a remaining. person more than one (Italics added.) have residence.” 200, definition Plaintiffs contend that the of domicile set forth in section (b) subdivision Appeal demonstrates that Court of was correct 5 Appeal explicitly The Court of did not determine where the students should have vot 193 habitation, they ed: precinct 193 voters voted in a in which no fixed and to had “[T]hose they which had no intention to We return. cannot on this record decide where else each only these or registered individuals could should have to vote. We hold that each had lost or campus precinct voting precinct her illegally domicile and therefore voted in that election at issue.”
7 after on campus votes cast students who voted the 193 invalidating Indeed, to live. no intention to return to having campus relocated with court, point, on only “If section 200 were the statute stated the trial aptly very easy overwhelming this case be to decide. would voters, election, unequivo- overturn the testified necessary far more than clear resolve they had cally moved formed campus], when [off have more Those not to return to the to live. students could campus The trial clearly 200[, (b).” renounced the ambit of section subdivision] however, Code section 200 of the Elections correctly recognized, court 202, and considered; (b) to be sections only is not the statute subdivision Government 205 of Elections Code sections 243 and 244 of the and Code must also be taken into account. 205; (b)
B. Elections Code Sections Subdivision 243 and 244. Government Code Sections “A person
Section subdivision of the Elections (b) Code provides: does not a domicile into or she comes for gain any precinct which he merely, the intention temporary purposes without of making his or Section “The her home.” 205 of the Elections Code mere provides: intention to a new acquire without the fact of removal avails nothing, neither does the fact of Addition removal without the intention.” ally, 244 sections rules for Government Code set forth one’s alter determining “domicile”—a term referred to in those sections nately “legal as one’s residence” or the Govern “residence.” Section has, law, ment “Every Code provides: Section residence.” residence, “In establishes: rules shall determining following residence, . . observed:. There A residence (b) can be one (c) [fl] [ft] cannot be lost until another . . . can be gained. (f) The residence [fl] changed only by the union of recognized act and intent.” We have that these Government Code actu sections use term “residence” “domicile,” ally “legal mean residence” them and we interpreted have v. Smith P.2d accordingly. (Smith (1955) 497]; Cal.2d 239 [288 accord Fenton Board Directors 1113-1114 Cal.App.3d 388].) (b) Sections subdivision of the Elections Code and sections 243 and 244 of the Code rest Government on the well established *7 or, every that a vernac principle person has in law domicile as stated court, ular “everybody the trial To insure that belongs somewhere.” time, everyone has a domicile at the rule a given adopt statutes lost until a princi domicile is not new one is fundamental acquired. These by long are diverse Mitch ples supported authority. (See, e.g., line 350, 584, ell v. 88 (21 588]; U.S. U.S. 353 (1875) Wall) Sampsell L.Ed. [22 8 763,
v. 32 774 (1948) 739]; Court Cal.2d P.2d Smith v. Smith Superior [197 235, 45 Cal.2d 239 P.2d Estate (1955) 497]; (1952) 114 [288 of Glassford 181, 908, 186 1259]; P.2d 34 A.L.R.2d v. Cal.App.2d Chapman Supe- [249 421, rior Court 162 426-427 re (1958) Cal.App.2d 23]; P.2d In [328 Leff 630, Laws, (1972) 25 642 Cal.App.3d Cal.Rptr. 195]; Rest.2d Conf. of [102 Beale, 19; 1 A (1935) 181-182.) Treatise on the Conflict of Laws ch. pp. § The few California decisions that have addressed the specific question what constitutes one’s domicile for have affirmed voting purposes the funda- mental (Huston set forth above. v. Anderson 145 principles (1904) Cal. P. 626]; English 328-329 P. People (1921) 145]; Cal.App. [78 [201 see also Collier v. 110].) Menzel Cal.App.3d
C. Statutory The Scheme. Gap somewhere, everyone
Given the principle must have a domicile a gap hand, appears statutory exist scheme. On the one section domicile, subdivision (b) declares that in order to establish one’s one must habitation, and, absent, have a fixed remain intent to when the intent to hand, return. On the other remaining statutes the scheme comprise legislative mandate everyone be domiciled somewhere and that the act leaving one’s domicile without the act and intention of a new establishing statutes,” one does not extinguish the old. “These the trial court cogently observed, “do not mesh.”
The trial court posed simple hypothetical illustrate gap statutory scheme: “What of a who has person departed residence with the unequivocally intention expressed not to return but who views his new as abode a temporary stopping place does not intend it to be his domicile?” Under section subdivision (b), the left arguably without a no longer entitled to vote in the of the aban- doned residence. Under sections subdivision (b) and of the Elec- tions Code, Code and sections and 244 of the Government the person retains abandoned residence as his or her domicile for voting purposes until such time as a new one is acquired. hypothetical is not idle one rather, court, but according to the trial applies to the situation particular by “many, described if not most” of the witnesses in this case. D. Reconciliation. other,
Confronted with statutes that appear be at odds with each illustrated the hypothetical, the trial court endeavored to reconcile the statutes from them gleaning rule: “Even if a voter left following has it, his residence with the intention not to return to remains that residence
9 one.” The trial court’s new acquired as he long his domicile as has merits rule, view, statutes and our relevant in our harmonizes the properly adoption. conflict, guided we are
In to examining appear statutes of these rules fundamental statutory rules The most settled of construction. so as to Legislature the intent of is that the court should ascertain 37 (1984) Court Cal. 3d v. (Brown Superior effectuate the law. purpose 477, 724, that are 272].) apparently 484 691 P.2d Statutes Cal.Rptr. [208 should, (Associated Home if be reconciled reasonably conflict possible, etc., 582, City v. Livermore Cal.3d (1976) Builders Inc. [135 473, the court 1038]), P.2d even when 92 A.L.R.3d Cal.Rptr. Material & Construction (Building in different codes interprets provisions 41 Cal.3d Teamsters’ Union Farrell
Sections 200-217 the Elections Code represent to fraud in the local elections held response allegations numerous election Elec. (Bolinger, in San Francisco and San in 1975. Cal. Law Bernardino Centralization, and 28C During Sixties and Seventies: Liberalization 55, 83-86.) West’s Ann. Elec. Codes were (1977 ed.) pp. allegations many based on residents areas with reports city outlying had moved suburbs, the intent to remain in the but in their former had returned city precincts. migrated who had to the suburbs were num Among those city enough ber of San Francisco “believed to more than employees elections, determine outcome of many including involving measures pensions city (Id. p. 84.) employees.” after these were Senate Bill No. was allegations published,
Shortly introduced, ultimately chaptered of the four-bill part package was sections 200-217 No. (Sen. (1975-1976 Reg. Elections Code. Bill In Sess.).) Senate on and Reap- before the Committee Elections testifying as to the bill’s author portionment of Senate Bill No. purpose “I’m more you stated: sure the fact that a can have than person recognize one but a have than one domicile and so residence cannot more Bill . . . No. arrive at bill point. seeks to that particular [Senate 1653] [The statutory ... some of the attempts] set forth form for the first time . . . court decisions on the of domicile and residence question [so] . . Bill Clerks and the voters where should vote. . will know people [Senate residence; a question No. also meant defines what’s 1653] . . .” of Hg. of act and intent a domicile. required (Transcript to establish Elec, Voter Residency on before Sen. Com. on Registration Reap- (Mar. 6-13.) portionment 1976) pp.
10 200-217 of intent sections argue legislative underlying
Plaintiffs that the in the pre- voters from ballots prevent casting the Elections Code was It is domiciles. Plaintiffs are correct. partially cincts of their abandoned 200-217, circumstances of sections surrounding adoption clear from the bill, by Legislature made the author of the that the and from the statements had in fact new domiciles from acquired sought prevent people of their abandoned domiciles. voting the precincts rely a marked on statements
Although judicial there is reticence of the expression made individual members of the as an Legislature body intent of the entire Mammoth v. Board (Friends Supervisors 247, 761, 1049]), 8 Cal.3d 258 502 P.2d the Senate (1972) Cal.Rptr. [104 testimony, committee the author’s com hearing transcript, incorporating First, have in past accepted mands for two reasons. we respect individual statement as an aid to a statute’s under legislator’s ascertaining argu when the statement has some indication of the lying purpose given Legisla ments made to the and was Legislature subsequently printed College ture. v. Dist. (California Diego Community Teachers Assn. San 817, Second, 28 700 621 (1981) 856].) Cal.3d P.2d Cal.Rptr. [170 reveals the transcript discussion and events at the which we hearing, aspects (In re may properly Marriage (1976) consider. Cal.3d Bouquet 427, 546 P.2d Rich v. Board 1371]; Optometry State [128 discussion, (1965) That Cal.App.2d Cal.Rptr. 512].) [45 day’s testimony, a full indicates that other and wit comprised legislators of, for, nesses shared the author’s views on both the need and the purpose Bill No. 1653. Senate We have illuminate recognized variety may that wide of factors “ context, view, ‘such as the evils to be legislative design, object remedied, history subject, time and of the same legislation upon ” re Bou (In Marriage construction.’ public policy contemporaneous 583, 587, 16 Cal.3d v. Pierno
quet, supra,
(1972)
quoting Alford
682, 688
The election fraud al
Cal.App.3d
Cal.Rptr. 110].)
elections,
leged
connection with the 1975
and the references to that fraud
the consideration of
Bill
intent
during
suggest
legislative
Senate
No.
clarify
residency
voter
vague
requirements,
goal
preventing
voters who had established new domiciles from
precincts
Thus,
their abandoned domiciles.
sections 200-217 of the Elections Code
were not drafted to address the
raised
this case which
specific problem
left their domiciles
people
but did not
new ones.
acquire
Additionally,
we
that the
was aware of
presume
Legislature
prior
(Buckley
judicial
residency requirements.
decisions
examined voter
12].)
Chadwick
45 Cal.2d
P.2d
Where the
193 [288
construed,
“the presumption
already
uses
judicially
terms
Legislature
*10
technical sense which
almost irresistible that it used them the precise
Long Beach
(City
by the courts.
placed upon
had been
them
[Citations.]”
609,
This
362].)
pre
P.2d
(1938)
v. Marshall
11 Cal.2d
[82
commit
the
statements at the
strengthened
further
author’s
sumption
statutory
the unclear
bring
that the
of the bill was to
hearing
tee
purpose
had defined
into
the
decisions that
conformity with
court
requirements
those deci
for
The guidance provided
voting purposes.
Anderson,
English,
v.
People
With this we facts of the principle present return to the case. It is when the at issue undisputed that students whose votes are 1983, they to vote registered on autumn of campus, sometime before the (b). satisfied the three Their habita section subdivision requirements fixed, and, they tion move present was lacked the intention to elsewhere absent, they the campus place when viewed accommodations as their these they which It is dispute intended return. also when without students returned to school in the and resided temporarily autumn of 1983 friends, in remote off-campus parked or in cars apartments homes redwoods, lots, they campus parking campus or tents the pitched under no satisfied because longer requirements, the section (b) subdivision and, fixed, habitation was when they their to move elsewhere intended absent, they did necessarily view accommodations temporary their they which intended to mind the Bearing principle return. is, can never we that one be without a must resolve question “ these re Where were students domiciled when voting purposes their sided at locations the autumn 1983?” temporary during 1) answer the have To we before us three alternatives: question, establish, i.e., “future eventually would their domiciles the students domiciles”; their 2) (i.e., residences temporary location of students’ 3) on the of voter the location of day registration); residences last one, students’ abandoned domiciles.6 Alternative number fu- students’ domiciles, ture unlike their inappropriate; whose votes the counterparts invalidated, trial court yet the students whose votes are at issue had not Thus, established new many domiciles. if not all of these students were obviously domiciles, identify unable to the location of their future and the two, law does not demand such prescience. Alternative number the stu- residences, dents’ temporary is also Use of such residences inappropriate. for would purposes ignore section subdivision (b) require- habitation, ments of a fixed lack of a intention to move else- present where, intention, absent, and the return when to the accom- temporary *11 Moreover, modations. allowing who abandon their domiciles to vote people precincts system their current residences would create a temporary chose, in which could vote people anywhere they of their ties to regardless community. Voters who abandon their stay domiciles could temporarily in precincts where their votes would have greatest We decline to impact. allow such precinct shopping.7 three,
Alternative the former presents logical choice. It is location where the student had satisfied the of section requirements (b). subdivision It is also consistent with the statutory principle one’s domicile is unaffected one’s relocation where that relocation is accomplished without the intent to make the new residence one’s domicile. Code, (Elec. 205.) Finally, it ensures the integrity legisla- continued § tive mandate codified Government Code section 244 that no can one without a domicile.
We agree the dissent that the main concern here is forum (or pre- cinct) shopping and that the legislative goal of the statutes in question was alternative, England, here, In a dispositive fourth presented of the issue exists. Under the rule, English person’s origin (i.e., domicile of birth) during period domicile at is revived traveling when the from (See an abandoned domicile to a new domicile of choice. Laws, notes, b, Conf. reporter’s Rest.2d pp. 78-79.) com. The doctrine of revival has § adopted (Ibid.) been in the United States. preference 7The dissent’s primarily interpreta alternative two is based on an erroneous Mihaly tion of Jolicoeur v. 5 Cal. 565 3d In P.2d Jolicoeur we 1]. newly held that ages enfranchised voters between the of 18 had to be treated the same purposes, preventing adults for precincts thus requiring young local from voters to register parents’ at their Although domiciles. interprets the dissent further hold Jolicoeur as ing that a voter must be regardless allowed to vote in the of his or her residence whether permanent temporary, that residence is reading or a close of Jolicoeur shows that the young voters in away that case claimed a parents. expressly domicile from their We stated youth . . . disqualified claims his current residence as his domicile but would be “[t]he ” solely, age’ ‘on account subject and that unmarried minor must be to the same re “[a]n quirements proving (Id. 571.) p. the location of his domicile as is Al other voter.” at students, though in potential temporary voting-aged Jolicoeur we discussed the status of we Rather, temporary did not hold ignored. that such status simply should be we affirmed the legislative young person’s right mandate that a to vote at his her should current residence abridged solely 576-577, 582.) not be person’s (Id. pp. because of the “student status.” at is best However, this concern we believe fraud. the deterrence of election today. adopt the rule we served met best legislative objective move an incentive would have voter the dissent’s approach, Under given for a to establish domicile into to attempt an area temporarily fraud; one to control no standards limiting The provides election. dissent one a new not established left domicile had who claimed have a prior time be at the happened he or she would be allowed to vote wherever after voter eye an on each such registration Only by keeping closed. ap- Our if claim had been fraudulent. could be determined election it it carpetbagging; such prevent standards to necessary offers the proach a new domicile unless and until leaves a voter where he or she was made cannot be to move established under standard decision principles. can be faulted Our approach at the last minute for alone. voting purposes location to a former returning most for a voter from possibly deterring new elsewhere. to vote to have established a falsely claiming not than But fraud to detect such would be more noticeable and thus easier that the fraudulent claim had abandoned such old domicile been *12 new, locale. individual to in a albeit temporary, should be allowed vote voting Our for backward” in time to one’s domicile “looking “past” the has 217 of purposes legislative precedent. both and Section judicial Code, 200, Elections subdivision enacted with section contemporaneously re- who (b), duly any entitles voter in in California registered voter’s moves therefrom an vote the days prior within 28 to election to is abandoned The that the voter precinct. of the statute is to assure purpose 1010, 1017 (Kagan Kearney (1978) disenfranchised. v. 85 Cal.App.3d sur- Cal.Rptr. 867].) As our discussion of the circumstances previous [149 however, the the rounding enactment of sections 200 through explains, new underlying acquired is voter has premise these enactments that the Hence, 217 does not domicile. the rule Code section 28-day of Elections here, no domicile has directly address the new presented situation where Nevertheless, underly- fact statutory been established. the scheme adopt we 202, 217, Elections sec- ing Code and Government Code sections tions 243 and until that the voters retain their “current” domiciles domiciles. acquire—through the union of act and intent—new domi- Policy use students’ abandoned considerations also support avoids ciles for of the trial court’s rule purposes. Our voting adoption Court of Appeal, disenfranchisement. to adopt holding Were we anyone yet established another from domicile and had not moved one any- to left be unable would be domicile and thus would without be University especially would during where of travel. students period hit, hard it for beginning is not uncommon them to relocate summer’s end, precisely when voter In registration periods close. communities with rates, student vacancy and low
large
populations
student’s search for
Thus,
new
can be particularly exasperating—and
consuming.
time
under the Court of Appeal’s holding, many
subject
students would be
to
is,
itself, intolerable;
disenfranchisement. Such a result
it also conflicts
our
with
no
an
holding
indulged
that
construction of
law
election
should
that would
any
disenfranchise
if
reasonably susceptible
voter
the law is
other
(Otsuka v.
meaning
Hite
64 Cal.2d
603-604 [51
Cal.Rptr.
414 P.2d
it
412]),
ignores
our
holding
students
years of age or older must
be treated
same as other California residents
(Jolicoeur
for voter registration
purposes
Mihaly (1971) Cal.3d
The result of the Court of is that the students Appeal’s presumption domiciles, cannot vote in them; former they their because have abandoned they residences, cannot vote in the precincts they their current because do not have the intentions to their remain and hence cannot resi- qualify domiciles, domicile; dence their they and cannot in their future vote they because yet do not reside there. Such a disenfranchisement cannot be sustained.
Our holding this case is narrow in its We when a hold that scope. it, leaves his or her and domicile with intention to abandon when that person resides in currently in which he or she does intend to not remain, that person may vote in precinct of his or her domicile former until a new domicile has acquired. been
Conclusion affirm directions to Court of is reversed judgment Appeal The Parties Jane Weed. the election of court confirming the trial judgment their to bear own costs. J.,
Mosk, J., Broussard, J., and concurred. Arguelles, in which EAGLESON, those unusual cases This is one of I dissent. J. reasons stated “I dissent for the justice say dissenting appropriately: can construed my properly In the Court majority opinion.” Appeal view voter governing this case the statutes applied and the circumstances of domicile and registration. be. should
The in this case is The solution problem simple. He that A concedes voting voter moves from his residence domicile. residence, residing he and is temporarily does intend to return that residence, may or not be may elsewhere. He find a intends to new one indefinite, domicile, future, time. of his former at some but precinct majority The former residence conclude that of this voter’s precinct voting indefinitely until voting domicile will continue to be his mind only he not but makes his create a domicile elsewhere up voting actually does he intends to remain by moving so to a residence at new moves, for the he long foreseeable future. No often he how matter how remains out of cast former he his his precinct until he decides his current “temporary.” residence that, assertion al- majority reason that of the voter’s acceptance he has though abandoned his former residence domicile without voting residence, intent to return to that present temporary, residence him and therefore will precinct, to vote in the former permitting continue exist, claim, avoid A voting. greater danger fraudulent of fraud would if we domicile. The voting conclude that the voter has established new voters suggest that fraudulent would be easier because *14 move to in a at could a in to influence an election location precinct order remain, to prior did not intend to and then move back their domicile. The the majority notwithstanding objective make this suggestion voting evidence and that h'e left his former concession the voter has of his domicile—evidence that he has moved himself and his out possessions days. more than 28 former residence and has lived in a new for precinct Somehow, if easily perpetrated of the fraud is majority, the view more voter, and expense we a has to the trouble permit actually gone who moved, to moving, vote in the location to which he has than if we permit him to claim for an indefinite that he period does not intend to remain that location and therefore remains domiciled for in a voting purposes precinct in which he says does not live and to which he he to has no intent untenable, return. only Not is the to this logic leading result but the result cannot be reconciled with the clear legislative intent that voters who have domicile, i.e., abandoned their those who have intent moved without return, may not continue to vote of that domicile for more precinct than 28 days. The strained of the logic necessary to achieve the goal of avoiding possible disenfranchisement of members of our increas- and, demonstrates, ingly peripatetic citizenry, as the election at issue result affords an incentive to in a engage of fraud the type Legislature sought eliminate. The may be minimal in impact an election like that involved, here one for seats at-large city city on council. In a which elects district, however, council members or on measures or candidates who appear domicile, on the ballot for the voters’ former result may well be that who no persons longer (or city, reside the precinct county) or and have no intention ever doing so will again control outcome of the election.
The majority accept and apply everyone untenable Because syllogism: “domicile,” must have a voting who has abandoned a domicile thereto, with no intent to return but yet has not at established a residence which he future, intends to remain for indefinite continues to be domi- ciled the location to which he intends not to return.
I suggest that both thoughtful reflection and adherence to the clear legis- lative intent our underlying election support laws the well-reasoned decision the Court of Appeal. Once a voter has abandoned his his of residence at the close of registration is his such time voting domicile until as he actually moves on to a permanent domicile. This is true whether the voter is a student living “in the woods behind Crown in a van College” on parked the University of California Santa Cruz “east remote parking lot”;1 a student who has left the dormitory and is until staying with friends he locates an apartment own; city or San employee Francisco has moved from City and County of San Francisco but harbors an expressed 1The trial registrar court computer that the concern of voters’ had refused the registration address, applications of the student voters who had no other and on that basis proper concluded that it was campus though them to use another address even that ad dress precinct. was in a Permitting different an elector to vote at a fictitious address is not the solution to an unlawful register although clearly refusal to registrations voter such were least for the students. appropriate registrar onerous Mandamus is compel accept registration affidavit of (See, Mihaly for an e.g., (1971) elector’s actual domicile. v. Jolicoeur 1]; Cal.3d 488 P.2d Cal.App.3d Collier Menzel [96 *15 Cal.Rptr. 110].) claims thus residence and city make the his permanent “intent” to return to coincidence, is able to he (where, in his former precinct to vote right to entitled is legally these voters benefits). None of influence his civil service election that any in formerly domiciled he in which was recognizable He has no days he has moved. more than 28 after takes his former relates to any matter that interest in a vote on casting to dilute residence, not be permitted his vote should but not his and present in, by, an election directly affected and those domiciled persons presently concerning former domicile. perspective the historical majority acknowledge,
As the properly Code,2 voter governing those the Elections which the 1976 amendments to the intent into insights valuable residence and were enacted offers recognition Legislature’s of the The amendments reflect the Legislature. of the amendments by the time in voter that had changes demographics and youthful a more accessible to need to make the franchise created a both made possible the franchise mobile to the abuse of and population prevent the election law very mobility. accommodating problem the consultant Bolinger, these Bruce has been described phenomena his article Assembly and Reapportionment, Committee on Elections Liberalization and Seventies: During California Election Law the Sixties 55) (hereafter (1977 ed.) p. Ann. Elec. Code (28C Centralization West’s impor- but whose majority acknowledge a document which the Bolinger), notes, had al- the courts Bolinger tance is not considered. As adequately to accom- ready (1961) provisions construed and code existing applied to the code changes, modate these of the amendments purpose do, decisions, not, to over- would was to as the incorporate these rule them. Cruz in the Santa
The first is reflected that which demographic change, of the lowering controversy, election that is the followed subject this in 1971 years. adoption to 18 With that voting age change, product Constitution,3 thou- Twenty-sixth to the United States Amendment were per- electors sands of students had not theretofore been college as to whether immediately register Controversy erupted mitted to to vote. than location other these students should be permitted register domicile of their parents. In Jolicoeur by this court
That
was
resolved
controversy
promptly
Construing
488 P.2d
Mihaly
applying newly the 1961 these provisions 18-year-old we held that citizens had to be treated as minors emancipated for We students voting purposes. recognized possibility registered that if in their communities even college they might though control a local election they did intend not to remain in that location after We also graduation. however, recognized, that exclu- prohibited had Legislature expressly sion of a college student from a election if had abandoned local the student his former domicile. Former section enacted as of the 1961 part code, solely by then “A not residence provided: gain does or lose reason of a . his or absence from . . a student of presence place while . . learning. institution of . shall to a prevent This section not be construed student at an institution from learning as elector qualifying locality where he resides while when fact the attending institution student has abandoned his residence.” ch. (Stats. former § p. 766.) code, therefore,
Under had left the college student who home return, i.e., of his without parents intent to who had abandoned his former domicile, could properly community vote in within register legally which he even resided residence because the though temporary was student at all times intended move This true upon graduation. was whether move to the college community occurred matriculation or upon a month graduation. before fact that the voter had dispositive was abandoned his former residence. Whether he to make his college intended residence a time permanent domicile was irrelevant. Until such voter domicile, who had abandoned a former domicile actually established new his for voting purposes was current of residence—not the domicile he had abandoned. Jolicoeur,
We recognized in if Cal.3d former section supra, were construed newly this manner to the enfran- applied voters, chised 18- 20-year-old these then be forced or persons would permitted to cast their ballots in elections at their elections former in which had no they stake in outcome should not be and which permitted to influence. “The major second evil allowing accomplished forcing voters vote not their voters of other districts own is that districts have inflicted a voter upon them with no stake or interest outcome of the election. The extent the evil is that residents of California be would asked to decide issues in or Hawaii. Small Arizona rule, towns in California would be affected since the especially by such young number of people from the town who have left other areas substantial in comparison the town’s total unmar- population. Allowing ried minors who reside turn a small may effectively elsewhere to town over to the control century of unconcerned ago outsiders. Over we *17 jurisdiction: of the voters to be residents the wisdom of recognized requiring box the ballot through questions . . . deal with public should not ‘[CJitizens the public to learn they until benefit of an opportunity at least the [have] them, wants, the best calculated to provide of measures concerting effect; (Bourland . . .’ into carry of men those measures selecting proper Hildreth, vote at fictional minors to 179.) Allowing 26 Cal. supra, (5 process.” of the integrity political residences would the compromise course, create a special did not 577.) Cal.3d at Former section p. they, to ensure registration status for students. Its was college purpose voters, at the place like all other to establish a domicile would be free this never that their actual intent the voter was though residence even the residence would be his home. permanent now does not majority
Where the errs is in that the code assuming here, provide challenged for these same those whose ballots were persons, and other their former and whose voters who have abandoned domiciles intend at residence at the time of an is because “temporary” election future, fact, indefinite, some In same but time to move on. the possibly Jolicoeur, provisions supra, that were in at the time our decision in effect 5 Cal.3d govern the instant case.
Sections 201 to 217 full the con- grown legislative did not from spring sciousness in 1976. They are no more than renumbered versions Jolicoeur, statutes in 3 (§§ effect at the as article time of then appearing 14280-14291) of the 1961 code. to define and substitute Although modified “residence,” where current con- appropriate “domicile” for and to reflect references, cerns are a regarding “sexist” use of these gender provisions which, continuation of the 1961 statutes as construed to their reenact- prior ment in do of the chal- establish the means which the domicile lenged voters is to of this be established and the govern proper disposition this, rule, case. which conflicts Overlooking majority create a new one with the judicial the legisla- construction statutes and with given prior tive intent to do so notwith- that construction. The incorporate intended to standing absence of indication that the Legislature change the that the result law this and in the face of evidence respect reached here is one which the intended to avoid.4 Legislature (Stats.
For ease of I set forth the relevant 1961 comparison, provisions 23, 3, ch. pp. 766-767) counterparts changes and their current § majority suggest 4The for permitting vote in the of their unsettled voters to necessary shopping, mer domicile danger shopping.” avoid the Forum of “forum course, just challenged Assuming what conduct is voters in this case did. that such prevalent, Legislature voting precinct in retaining in a has determined that longer greater which the voter no lives intend to return is the and to he does not possible two evils.
indicated, first noting that subdivision (a) present section (“Except article, provided in this term ‘residence*as used in this code for means purposes a person’s domicile,”) had no 1961 counterpart. — 1961: Section 14280 “The term of residence is computed including day on which the person’s residence commenced and excluding day of the election.” *18 —
1976: Section 201 “The term of domicile is computed including day on which the person’s domicile day commenced and excluding the election.” —
1961: Section 14282 “The residence of a is that in which his person place which, absent, habitation is fixed and to whenever he is has the intention he of returning.” —
1976: Section subdivision “The domicile (b) of a is that person in place fixed, which his or her habitation is wherein the has the person which, intention remaining, absent, and to whenever he or she is time, person has the intention of At a returning. given have person only one domicile.” —
1961: Section 14283 “A person gain solely by does not or lose residence reason of his presence at or absence from a place while in the employed State, service of the United States or of this nor while in engaged navigation, nor while a student of any institution in learning, nor while an kept almshouse, asylum or prison. This section shall riot be construed to prevent a student at an institution of from learning as an elector in the qualifying locality where institution, he resides while that in attending when fact the student has abandoned his former residence.” —
1976: Section 206 “A person does gain solely by not or lose a domicile reason of his or her presence or absence from a while in the place employed service of state, the United States or of this nor while in engaged navigation, nor while a student of any institution of in an nor while learning, kept almshouse, asylum or This prison. section shall not be construed to prevent a student at an institution of learning from as an qualifying elector locality institution, where he or she domiciles while attending when fact the student has abandoned his or her former domicile.” — 1961: Section 14284 “A person who leaves his home to into another go state or precinct in this State for merely, temporary purposes with the intention of returning, does not lose his residence.” —
1976: Section subdivision (a) “A his or her person leaves home to go into another state or precinct this State for temporary purposes merely, with the intention of her returning, does not lose his or domicile.” — any precinct gain “A residence
1961: Section 14285 does person the intention merely, he without temporary into which comes for purposes home.” making precinct — “A domicile gain does (b) person 1976: Section subdivision merely, purposes temporary into which he or she comes precinct home.” her his or intention of making without — state with “If a removes to another 1961: Section 14286 person in this residence, State.” loses his residence intention of it his he making — state with Section 203 “If a moves another 1976: person her his or it his or her the voter loses making intention state.” in this — as a state
1961: Section 14287 “If a removes another residence, there for indefinite remaining intention permanent time, *19 State, he in entertains notwithstanding he loses his residence this intention at returning period.” an some future — as a 1976: Section 204 “If a moves to state person place another residence, for an with the intention of there indefinite permanent remaining time, state, or she he notwithstanding he loses his or her in this domicile intends or she to return at some future time.” — family Section 14288 “The a resides is his
1961: where man’s place family for his or place residence unless it is a for establishment temporary any objects. public camp for transient Residence in a trailer or vehicle or at ground may if the camping voting purposes or constitute a residence for with the registrant other of this article.” complies requirements — 1976: Section 207 “The is place family where a domiciled person’s his or her domicile unless it his for establishment for or temporary or family her for transient objects. any
“Residence a trailer or camp camping vehicle or public may constitute a if the ground voting registrant purposes complies the other of this requirements article.” — residence, 1961: Section 14291 “The to a new mere intention acquire without the fact removal fact of avails neither does the removal nothing, without the intention.” — 1976: Section 205 “The to a new acquire mere intention fact of without the fact of removal neither does the removal nothing, avails without intention.” dispel any
A doubt comparison provisions of these and 1976 should to intent in the 1976 the code. legislative enacting as to the amendments residence for Legislature distinguish intended concept term, from other uses of that and to that end term purposes adopted “domicile,” but to continue the provisions. substance of
In so doing Legislature also continued a limitation on the legislative of time a period lawfully voter could vote in former precinct limitation, having domicile after abandoned that domicile. That first enact- ined 1973 as 203.5 section ch. became section (Stats. p. 41), § 217. It “A provides: duly now registered as voter in precinct shall, California removes therefrom days prior within election election, for the of such from purpose precinct entitled to vote the person so removed until the close of the of such polls on date others, therefore, election.” These persons, and no are vote in a entitled to in which they are no precinct longer domiciled.
Significantly, the fail to how the rule is to be explain adopt who, applied to those while persons only that their residence is professing temporary, many fact fail over months a new domicile. Under acquire rule, majority’s necessary all that is to retain the right of one’s abandoned domicile is bona fide belief that one’s present extent, living arrangements are to a temporary, large subjective easily determination not can refuted. How this construction the statute be reconciled with the effort legislative to avoid voter abuse and fraud of the type encountered in San Francisco and San shortly Bernardino before the 1976 amendments? Bolinger, supra, the relevance of this explained problem *20 the to amendments: “Until in revised and renumbered the Elections Code defined the in residence of a voter as ‘that his place which habitation is which, absent, fixed and to he whenever he is has the intention of returning.’ Determining voter’s is difficult at best ‘intention’ and the of migration voters to suburbia seems to have aggravated problem the as became evident in San Bernardino San In during Francisco 1976. San Bernar- dino it was the in migration part younger generation of the of Mexican- out Americans of the barrio in the First to city’s Ward other areas including cities, Redlands, surrounding such as Colton and while or subse- retaining in quently resuming registration their the First Ward.... In San Francisco it was the of migration literally city thousands of from the towns persons to in Area surrounding Bay counties while to vote in continuing register and Francisco, San major controversy which as the heart of a over what consti- which, turn, tuted residence and changes state law on prompted . . . residence.
“. . .It wasn’t until the San Francisco the situation dramatized problem legislation clarify that was to introduced the of residence. meaning [The change] sought clarify to by the voter residence meaning substituting ‘residence,’ ‘domicile’ for now being the domicile the which the place absent, which, fixed, he or she is is and to ‘whenever individual’s habitation ” 83-86.) supra, pp. returning.’ (Bolinger, has the intention right the retention This be reconciled with domicile cannot concept to “residence” just approach to in an abandoned It was that domicile. to clarification sought under the former law which the 1976 amendments however, so to per- change The majority, eliminate. would construe numbers overcome—large very mit evil the Legislature sought in elections voters to cast their votes returning precincts to abandoned factual history and the which stake. The blinks at majority have no giving legislation. context rise to the confirms history
While acknowledging legislative deci- judicial some changes incorporate that were made in 1976 sought 10, the (maj. opn. p. sions on the of domicile and residence concept Jolicoeur, supra, As fail to of those decisions. majority grasp significance ac- demonstrates, his domicile abandoned Cal.3d a voter who has even if he does a new one at his residence quires place “temporary” intend that to be his residence. It is the abandonment place permanent is He domiciliation may suspended crucial. not elect to remain in a state of he time subjective at some future expedient harboring hope yet will find another to live.
The majority there suggest that under construction of the statutes our left no standard have ability which to limit the of a voter who claims to fraudulently his former location of domicile to to vote register temporary residence. This much incentive greater concern overlooks the fraud under How voter reading long the statutes. of his residing in his domicile continue to vote in the precinct claimed former residence? How does his actual residence remain long temporary other, because simply subjective permanent he claims a intent find more fraud- to avoid housing? suggestion majority’s that the serves approach *21 ulent registration objective is To the extent that simply untenable. exists, evidence of the lies in his actual physical domicile of a voter it removal from former his residence elsewhere. taking up residence and greater The who has removed person incentive for fraud far exists if the himself and his to another location from his possessions need move only yet again. declare that he intends to case, necessity subjective the lengthy ascertaining
The trial this the of the they intent voters in which claimed longer precincts no resident vote, case the right to in the individual impossibility ascertaining and residence at which an not to remain in the voter’s actual point “intent” must than underscore recognized nothing be more all “hope,” invites majority wisdom of the The rule legislative choice. proposed fraud, but also contest repeated challenges costly and proceedings when persons long gone return of their former precinct domiciles claiming that their residence is and thus present “temporary” yet a “domicile.”
The majority they also fail to the rule perceive acknowledge that create is inconsistent with the express provision section excludes from the persons ballot the state who leave to remain at their new intending residence for an indefinite if they time even intend at all times to return to state; this that in and section who permits 207 which live persons temporar- ily in public camps or camping grounds to establish domicile at that location even though residence at such locations cannot to be presumed permanent.
The fear that some voters be disenfranchised upon expiration of the 28-day reregistration they yet period because have not established a new domicile fail is unwarranted. during Persons period remain, find accommodations which are plan to domiciled at the location their current habitation. The so held Appeal Court when considering circumstances the homeless “residents” of Santa Menzel, Barbara’s Tree Park in Fig Collier 24. supra, Cal.App.3d The result there county consistent that which I The regis- propose. trar had refused to accept the affidavits of submitted registration homeless, claiming that the was The address insufficient. voters were ad- vised that they were legally entitled to vote at former until their they had established new Appeal disagreed residences. Court of ordered that the voters be on registered the address their affidavits. given
Construing 200 to the applying section situation the homeless who residence, claimed Tree Park Fig as their court concluded the park citizens, awas place or dwelling of habitation for these and that place their signature on an affidavit the address of as their giving park residence was sufficient to to remain there. The present establish intent court noted the Legislature has sanctioned domicile in a expressly public camping ground, and like a reasoned that was “a camping ground park physical area where can use as a sleep otherwise dwelling place.” (176 Cal.App.3d at None would that these p. 31.) argue citizens home, intended to make the their but like the park permanent college here, students they had their abandoned former and for the *22 indefinite future intended to the park temporary to return after absences. was, The park their voting purposes, just as domicile of the here challenged voters was the at which resided at the location time of the election. unrealistic is both adopted completely
The construction of the Court contrary intent. I affirm the legislative judgment would of Appeal.
Lucas, Kaufman, J., J., C. concurred. June denied for a was petition plaintiffs appellants rehearing
23, 1988.