A highly intelligent lawyer friend of mine (a former clerk for a federal appellate court) sends along the following brief analysis of Senator Daschle's residency debacle:
On April 28, 2003, Thomas A. Daschle signed a legal document with the government of Washington, D.C. in which he asserted that he was qualified to claim a “Homestead Exemption” for his home there.In order to be eligible for such an exemption, one must be “domiciled” in the District of Columbia. See D.C. Code Section 47-850 (“For purposes of levying the real property tax during a tax year, the Mayor shall deduct $38,000 from the estimated market value of real property which qualifies as a homestead.”); Section 47-849 (defining “homestead” to mean the principal place of residence of an individual who is “domiciled in the District.”)
The Supreme Court has held that to be “domiciled” in the District of Columbia, one must “live here and have no fixed and definite intent to return and make their homes where they were formerly domiciled.” See D.C. v. Murphy, 314 U.S. 441, 454-55 (1941). This has been consistently cited as the criteria for determining residency/domiciliary status in Washington, D.C. See, e.g., Lane-Burslem v. Commissioner of Internal Revenue, 659 F.2d 209, 211 (D.C. Cir. 1981) (discussing evidence showing whether appellant has “the firm, unconditional intent to return necessary to claim she has not renounced her Louisiana domicile”).
Thus, in order to claim a Homestead Exemption, Thomas A. Daschle legally declared that he had “no fixed and definite intent to return” to South Dakota, his former domicile.
If this statement is false, Thomas A. Daschle committed perjury. According to the form he signed any false statement thereon would subject the signer to fines up to $1000 and imprisonment up to 180 days. See D.C. Code Section 22-2514.
But if it is true, under South Dakota law Thomas A. Daschle is no longer a resident, because to be a resident one must have “the intent of remaining here." See In re Forman, 21 N.W.2d 57 (S.D. 1945); see also Martinez v. Bynum, 461 U.S. 321 (1983) (citing Forman as an example of the “classic” test used nearly everywhere “as a minimum standard in a wide range of contexts time and time again”).
This intent is also a minimum requirement under South Dakota’s Constitution and statutes for the specific determination of residency for voting purposes. See S.D. Const. Art. 7 §2. Simply put, if one does not intend to make South Dakota one’s home, one may not register to vote here. SDCL §12-1-4 (“If a person moves to another state, or to any of the other territories, with the intention of making it his or her permanent home, the person thereby loses residence in this state.)
Importantly, under South Dakota law, as soon as one forms the intention to make another location his or her permanent home, one automatically loses residence in South Dakota. SDCL §12-1-4 (“If a person moves to another state, or to any of the other territories, with the intention of making it his or her permanent home, the person thereby loses residence in this state.)
If indeed Thomas A. Daschle is domiciled in Washington, he therefore is not a legal resident of South Dakota. Whether this means he may serve as an elected official or be nominated for election is unclear. But it is certain that if he is not a legal resident of South Dakota, he is not eligible to register to vote here.
You'd think a story about Daschle's residency problems would be jumped on by the South Dakota press. But if you thought that, you'd be wrong.
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