Public corruption
Penal Code 165 bribery of local elected officials
Every person who gives or offers a bribe to any member of any common council, board of supervisors, or board of trustees of any county, city and county, city, or public corporation, with intent to corruptly influence such member in his action on any matter or subject pending before, or which is afterward to be considered by, the body of which he is a member, and every member of any of the bodies mentioned in this section who receives, or offers or agrees to receive any bribe upon any understanding that his official vote, opinion, judgment, or action shall be influenced thereby, or shall be given in any particular manner or upon any particular side of any question or matter, upon which he may be required to act in his official capacity, is punishable by imprisonment in the state prison for two, three or four years, and upon conviction thereof shall, in addition to said punishment, forfeit his office, and forever be disfranchised and disqualified from holding any public office or trust.
Gov Code 9054 Bribery of legislator
Every person who obtains, or seeks to obtain, money or other thing of value from another person upon a pretense, claim, or representation that he can or will improperly influence in any manner the action of any member of a legislative body in regard to any vote or legislative matter, is guilty of a felony. Upon the trial no person otherwise competent as a witness may be excused from testifying concerning the offense charged on the grounds that the testimony may criminate himself, or subject him to public infamy. The testimony shall not afterwards be used against him in any judicial proceeding except for perjury in giving the testimony.
Eligibility for public officer
Relevant Statutes: Educ. Code § 35107 Elec. Code §§ 2000, 2150, 18100, 18203, 18501, 15860 Gov. Code § 36502 Penal Code §§ 118, 127 Water Code § 71501
Quo Warranto
Although residency within the political district is required by the statutes mentioned, the statutes are not criminal and a failure to comply cannot be prosecuted criminally. An elected official who did not reside within the district at the time of election, or who moved out of the district during his term of office, vacates that office. Remaining in office subjects the office holder to a civil action in quo warranto removing him or her from the illegally held position.
The procedures for prosecuting a quo warranto action are found in California Code of Civil Procedure §§ 803-811 (actions for usurpation of an office). Additional quo warranto procedural information is found in the California Code of Regulations, Title 11. Actions in quo warranto are brought by the Attorney General's Office on its own or upon the complaint of a private party. Quo warranto actions brought by private parties or district attorney's offices cannot proceed without the permission and oversight of the Attorney General's Office.
California Code of Civil Procedure § 809 states: "When a defendant, against whom such action has been brought, is adjudged guilty of usurping or intruding into, or unlawfully holding any office, franchise, or privilege, judgment must be rendered that such defendant be excluded from the office, franchise, or privilege, and that he pay the costs of the action." Thus, the result of a successful quo warranto action is the removal of the offending official from office. Quo warranto actions are more commonly brought in "incompatible office" type cases than in residency disputes.
Although violations of the residency requirements for holding specific offices are not criminal, non-resident candidates commit other crimes in order to run for the office.
False candidacy papers: Candidates for most public offices are required to file some type of document with the city clerk when they declare their candidacy. These documents usually (but not always) require the candidate to state their residence. Knowingly filing a false candidacy paper violates Elections Code § 18203, which is a criminal statute. Section 18203 is a wobbler.
Perjury: The false candidacy papers filed with the city clerk may require the candidate to sign under penalty of perjury. Additionally, the city clerk may place the candidate under oath and have them state that the information contained in the document is true and correct. In such situations, the prosecutor should consider prosecution pursuant to Penal Code § 118, Perjury. Perjury is a felony punishable by two, three or four years in state prison.
In order to be consistent in his or her false claim of residency, the candidate may also sign other documents under penalty of perjury providing the false address, including voter registration forms, DMV documents, school records for school aged children or home loan documents in which the candidate states that the home will be his/her primary residency.
The most common issue arising in a perjury prosecution is the materiality of the false statement. To violate P.C. § 118, the declarant must willfully state as true a "material matter" that he knows to be false. In a perjury prosecution arising out of a residency matter, the domicile of the defendant will always be material. In some residency cases, the candidate will ask others to sign documents under penalty of perjury to bolster his or her false claim of residency. In those situations consider California Penal Code § 127, subornation of perjury.
Voter fraud:
In addition to the residency requirements for holding office, there are residency requirements for voting in public elections. California Elections Code § 2000 lists the requirements for voting in public elections held within the state and allows qualified voters to vote in any election held within the territory within which the voter resides.
Prior to voting in an election, each voter must register to vote and fill out an affidavit of registration described in California Elections Code § 2150. In addition to other personal information, the voter must state on the affidavit their place of residence. The actual words on the affidavit of registration state: "The place where you live." Just so there is no confusion, there is a place for the voter to include his mailing address, if different from his residence address. The voter certifies under penalty of perjury that the content of the affidavit is true and correct
Elections Code § 18100 prohibits the registration of a voter who is not qualified. (A wobbler subject to a maximum penalty of 16 months in state prison.) If the candidate actually votes in the election, they are subject to Elections Code § 18560, which prohibits casting a fraudulent ballot. (A straight felony subject to a maximum penalty of 16 months in state prison.) If the candidate is an incumbent who commits voter fraud the officeholder can be prosecuted for a violation of Elections Code § 18501, which prohibits a public official from knowingly allowing fraud in connection with a vote. Section 18501 is also a straight felony with a maximum sentence of 16 months state prison and a lifetime bar on holding office in California.
Since the affidavit of registration is signed under penalty of perjury, consider P.C. § 118 charges as well. If residency within the voting precinct is a requirement for registration, then voter's residence is demonstrably material.
Residence versus Domicile The Government Code sections requiring school board and water board members to reside within the districts they represent do not define the term "residence." Government Code § 36502, pertaining to city officials, requires the city official to be a registered voter of the city. For purposes of voting, the Elections Code contains several statutes defining residence. Elections Code § 349 defines residence, for voting purposes, to mean a person's domicile. A persons' domicile is defined as "that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time, a person may have only one domicile." Section 349(c) defines a person's residence as "that place in which the person's habitation is fixed for some period of time, but wherein he or she does not have the intention of remaining. At a given time, a person may have more than one residence."
Additional Elections Code sections further define residence and domicile: Elections Code § 2021 (a) A person who leaves his or her home to go into another state or precinct in this state for temporary purposes merely, with the intention of returning, does not lose his or her domicile. (b) A person does not gain a domicile in any precinct into which he or she comes for temporary purposes merely, without the intention of making that precinct his or her home.
Elections Code § 2024 The mere intention to acquire a new domicile, without the fact of removal, avails nothing; neither does the fact of removal without the intention. Elections Code § 2027 The place where a person's family is domiciled is his or her domicile unless it is a place for temporary establishment for his or her family or for transient objects. Residence in a trailer or vehicle or at any public camp or camping ground may constitute a domicile for voting purposes if the registrant complies with the other requirements of this article.
Based upon a reading of these statutes, it is clear that a person can only have one domicile. Acquiring a new, legal domicile requires action plus the intent to making the new location the permanent, sole domicile. Temporarily changing where one lives does not result in a change of domicile because a legal change of domicile requires permanency.
Certain public offices require the office holder to reside within the district served. These include city council members, city clerks, city treasurers, school board members and water board members.
Government Code § 36502
(a) A person is not eligible to hold office as council member, city clerk, or city treasurer unless he or she is at the time of assuming the office an elector of the city, and was a registered voter of the city at the time nomination papers are issued to the candidate as provided for in Section 10227 of the Elections Code. If, during his or her term of office, he or she moves his or her place of residence outside of the city limits or ceases to be an elector of the city, his or her office shall immediately become vacant.
Therefore, in order to be eligible to hold office as an elected city official, there are two requirements: the council member elect must be an elector of the city at the time of assuming office (in other words he must be a United States citizen, 18 years or older, and a resident of an election precinct at least 29 days prior to an election), and he must be a registered voter of the city at the time the nomination papers are issued.
Education Code 35107
California Education Code § 35107 requires school board members to be 18 years of age or older, a citizen of the state, a resident of the school district and a registered voter.
Water Code 71501
California Water Code § 71501 requires each director of a water board to be a resident of the division he represents.
Irrigation district
Water Code 21100, subdivision (c), as amended by SB1939 in 2000 says:
(c) In a district providing retail electricity for residents of the district, each director, except as otherwise provided in this division, shall be a voter of the district and a resident of the division that he or she represents at the time of his or her nomination or appointment and during his or her entire term, . . . . .
Election Code 349:
(a) “Residence” for voting purposes means a person’s domicile.
(b) The domicile of a person is that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time, a person may have only one domicile.
(c) The residence of a person is that place in which the person’s habitation is fixed for some period of time, but wherein he or she does not have the intention of remaining. At a given time, a person may have more than one residence.
Government Code section 244 says:
In determining the place of residence the following rules shall be observed:
(a) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he or she returns in seasons of repose.
(b) There can only be one residence.
(c) A residence cannot be lost until another is gained.
(d) The residence of the parent with whom an unmarried minor child maintains his or her place of abode is the residence of such unmarried minor child.
(e) The residence of an unmarried minor who has a parent living cannot be changed by his or her own act.
(f) The residence can be changed only by the union of act and intent.
(g) A married person shall have the right to retain his or her legal residence in the State of California notwithstanding the legal residence or domicile of his or her spouse.
Residence and domicile for purposes of elections are essentially the same. (Walters v. Weed (1988) 45 Cal.3d 1, 7.) A change in domicile requires an intent to live there. (DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260, 1268.) As in, “whether there is an intent to return or an intent to make a new home.” (Ibid.)
In the context of determining a person's residence for the purpose of registering to vote, or running for certain elected positions, residence means domicile, a place in which a person's habitation is fixed, wherein she has the intention of remaining, and to which, whenever she is absent, she has the intention of returning. At any given time, a person may have only one domicile, and a person does not lose their domicile, or gain a new one, by going to another place for a temporary purpose. However, residence does not always mean domicile. Residence can also mean a place in which a person's habitation is fixed for some shorter period, but wherein she does not have the intention of remaining indefinitely. At any given time, a person may have more than one residence for various purposes other than voting or running for office.
False nomination paperwork would be prosecuted under Elections Code 18203.
Perjury is Penal Code 118.
Voter registration history
The nomination paperwork
DMV records, including both license and vehicle registration
Property records
USPS records about change-of-address
FPPC filings
Firearm purchase records
Social media
CLEAR / Lexis
License Plate Readers
Business filing with Secretary of State
Witness interviews
Surveillance
Lease agreements
Call records
Cell phone location data
With some qualifications, a person must generally be a resident of the state in order to qualify as an elector,1 and an "elector" is a resident of an election precinct in California on or before the day of an election.2 "Residence" for voting purposes means a person's domicile.3 The domicile of a person is that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time, a person may have only one domicile.4 The residence of a person is that place in which the person's habitation is fixed for some period of time but wherein he or she does not have the intention of remaining. At a given time, a person may have more than one residence.5 One purpose of the requirement of residence is to afford some assurance that the voter has become a member of the community.6 It preserves the basic conception of a political community, and therefore can withstand even close scrutiny on a claim under the First Amendment.7 Caution: California requires that candidates register to vote before filing nomination papers.8 Registering to vote, in turn, requires candidates to complete a registration form and, as stated above, to reside in the state. California's requirement that candidates for membership in the United States House of Representatives reside in California when filing nomination papers violates the United States Constitution's Qualifications Clause9 inasmuch as it handicaps a class of nonresident candidates who otherwise would satisfy the Qualifications Clause.10 The Elections Code provides specifically for the determination of residence and domicile.11 Residence in a trailer or vehicle or at any public camp or camping ground may constitute a domicile for voting purposes if the registrant complies with the other statutory requirements.12 For voting purposes, the term of domicile is computed by including the day on which a person's domicile commenced and by excluding the day of the election.13 The domicile of a member of the legislature or a representative in the Congress of the United States is conclusively presumed to be at the residence address indicated on that person's currently filed affidavit of registration, as long as the address is a residence as defined in the Elections Code,14 and notwithstanding that the member or representative may have another residence at which certain conditions apply.15 This presumption applies only if the address indicated on the member's currently filed affidavit of voter registration is one of the member's legal residences.16 A person domiciled in a house or apartment lying in more than one precinct will be registered as domiciled in the precinct designated by the county elections official on the basis of the street address or other precinct that the county elections official considers appropriate unless the person requests, either by letter or in person at the office of the county elections official, that he or she wishes to be domiciled for registration purposes in another precinct in which his or her house or apartment lies. In order to fulfill the requirements of this statute, the letter of request must include the name, signature, and residence address of the requester.17 A new resident, which means a person who meets all requirements of an elector of the State of California except that his or her residency was established subsequent to the 15th day prior to the election, is eligible to vote for President and Vice President and for no other office.18 A rational basis test applies to a determination of whether the equal protection clause prevents a city from using a residency requirement to determine who can vote on the city's imposition of a tax when nonresident landowners are the largest source of revenue under the tax, where the election is not one of special interest, and the expenditure of funds to be raised by the tax is to provide benefits that are not limited to special interests.19
1 § 37.
2 § 37.
3 Elec. Code, § 349, subd. (a).
4 Elec. Code, § 349, subd. (b).
5 Elec. Code, § 349, subd. (c).
6 Bryan v. Regents of University of Cal., 188 Cal. 559, 205 P. 1071 (1922).
7 Chula Vista Citizens for Jobs and Fair Competition v. Norris, 782 F.3d 520 (9th Cir. 2015).
8 Elec. Code, § 201.
9 U.S. Const. Art. I, § 2, cl. 2.
10 Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000). As to registration, see §§ 58 to 83.
11 Elec. Code, §§ 2020 to 2035.
12 Elec. Code, § 2027.
13 Elec. Code, § 2020.
14 Elec. Code, § 349, subd. (c).
15 Elec. Code, § 2026.
16 People v. Superior Court (Wright), 197 Cal. App. 4th 511, 128 Cal. Rptr. 3d 362 (2d Dist. 2011).
17 Elec. Code, § 2034.
18 Elec. Code, § 332.
19 Neilson v. City of California City, 133 Cal. App. 4th 1296, 35 Cal. Rptr. 3d 453 (5th Dist. 2005).