Requires a person to be a resident of the local subdivision for which such person seeks office at the time of filing, designating or nominating petitions

Summary of provisions

Section 1 of the bill amends subdivision 1 of section 3 of the public officers law, as amended by chapter 44 of the laws of 1982, for the purpose of adding language to make the document gender neutral.

Section 2 of the bill adds a new section 6-170 which requires that a candidate for a local elected office be a resident of the subdivision (district, village, town, etc.) as of the date of filing of the designating or nominating certificate or petition.

Section 3 of the bill adds a new section 6-214 that provides a mechanism for a candidate listing an out of district address on a petition to certify a new in-district address as of the date of filing. This provision does not apply to statewide or state Senate or Assembly candidates.

Section 4 of the bill specifies the effective date.

Justification

Since the residence qualification of the candidate is met if the candidate lives in the district or subdivision as of the date of the election, pre-election court challenges to the eligibility of a candidate for non-residence have been rejected by the courts. (See Weidman v. Starkweather, 80 NY 2d 955 (1992); Keith v. King, 220 AD. 2d 471 (2d Dept. 1995); Clark v. McCoy, 196 AD 2d 607 (2d Dept); Leave to Appeal Denied, 2 NY 2d 653 (1993).)

After an election, there is no effective means to challenge a winning candidate's eligibility for office based on his or her failure to have acquired a residence in the district by the date of the election. The Boards of Election lack jurisdiction to rule on residency issues and the courts' jurisdiction in post-election proceedings is limited to ruling on contested ballots. A quo warranto proceeding could challenge a person's right to hold office, but only the Attorney General can issue such a proceeding. Rarely is such a proceeding brought forth, and when it is, it typically takes months, if not a year or more to resolve these issues.

Serious questions were raised concerning the residency of a winning candidate for City Council in a special election held in February 2007 in New York City. Absent a clear mechanism for resolving the issue, the City Council addressed the matter by requiring the winning candidate to submit a sworn statement as to his residence before being seated. This requirement is of dubious legality because Article

XIII of the State Constitution provides that "no other oath, declaration or test (other than the standard oath of office) shall be required as a qualification for any office of public trust." In the event, the candidate refused to make the sworn statement and a second special election had to be called to resolve the matter, at substantial expense to the taxpayers. Under this legislation, candidates for local offices must meet the residency requirement as of the date their designating or nominating petitions or certificates are filed. A non-resident may circulate petitions listing an out-of-district residence address. However, on the date the petition is filed, the candidate must file a certificate specifying an in-district residence as of that date. Challenges, if any, to the residence of the candidate would then be resolved in the courts, under the usual procedures, before the election.

Candidates for statewide office or member of the legislature are subject to constitutional residence requirements that would not be affected by this legislation.

Legislative history

2009/10: S.5176/A.1058 2011/12: S.1320/A.5896

Fiscal implications

None for the State. Could save significant amounts for localities by enabling them to resolve residency issues without holding second elections.

Effective date

This act shall take effect on the first of January next succeeding the date on which it shall have become a law.