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A duration of stay required by state and local laws that entitles a person to the legal protection and benefits provided by applicable statutes.

States have required state residency for a variety of rights, including the right to vote, the right to run for public office, the ability to practice a profession, and the ability to receive public assistance. The courts have invalidated some residency requirements because they violate the equal protection clause of the Fourteenth Amendment, while allowing others to stand because there is a compelling state interest.

There are two types of residency requirements. A bona fide residency requirement asks a person to establish that she actually lives at a certain location and usually is demonstrated by the address listed on a driver's license, a voter registration card, a lease, an income tax return, property tax bills, or utilities bills. If a person has conducted a substantial amount of business in a state, some states will recognize that person as an actual resident and grant her certain advantages of residency. Courts have recognized the validity of imposing bona fide requirements in order for a person to receive certain rights from the states.

A durational residency requirement obligates a person to show that, in addition to being a bona fide resident of the state or its subdivision (county, city, town, school district), she has resided in the location for an additional period of time. Attempts by states to make certain fundamental rights conditional upon the durational residency of the person applying for such benefits have been challenged in court.

Fundamental Rights

The U.S. Supreme Court has made clear that a state can impose residency requirements as a condition of eligibility for fundamental rights only under certain circumstances. A fundamental right is any right that is guaranteed by the U.S. Constitution. A state must have a compelling State Interest to justify the restriction of basic rights by the imposition of residency requirements. The courts ultimately determine whether the state has a significant interest by examining and Balancing the interests of the state against the rights of the person. Where a residency requirement does not serve compelling state interests, it will be held unconstitutional as a denial of equal protection of the laws guaranteed by the Constitution. The courts have addressed residency requirements involving Welfare and public housing benefits, basic medical care, and voting that are based on fundamental rights.

Welfare In Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), the Supreme Court reviewed two state laws that imposed durational residency requirements on persons applying for welfare. Both states required a person to be a resident for one year before becoming eligible for benefits. The states claimed that this discriminatory treatment of new arrivals within their borders maintained the fiscal integrity of state public assistance programs, provided an objective method of determining residency, and encouraged new residents to seek employment.

The Court rejected these arguments, concluding that the constitutional guarantee of personal liberty gave each citizen the right to travel throughout the United States without unreasonable restrictions. This implied fundamental right of travel was restricted by the residency requirements, which were based on unsubstantiated claims of administrative convenience. Therefore the Court struck down the durational residency requirements as a violation of equal protection of the laws. The Court noted that a case-by-case examination was necessary to determine whether other types of durational requirements promoted compelling state interests or violated the constitutional right of interstate travel.

Public Housing Durational residency requirements were imposed as conditions for admission to low- and moderate-income public housing projects in various cities during the 1960s. The city of New Rochelle, New York, imposed a five-year residency period before a person could apply for public housing. Because the waiting list of applicants was long, a person could wait between eight and 15 years before obtaining public housing. When the law was challenged, a federal appellate court ruled that it was an unconstitutional deprivation of equal protection (King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 [2d Cir. 1971], cert. denied, 404 U.S. 863, 92 S. Ct. 113, 30 L. Ed. 2d 107 [1971]). The appeals court rejected the city's contention that it had a compelling state interest to restrict public housing to longtime residents because each community has a responsibility to take care of its own citizens first. The court disagreed, finding that the city's plan created discriminatory classifications among its citizens without justification.

Medical Services A person who is a bona fide resident cannot be deprived of the right to receive basic medical services merely because he has not fulfilled durational residency requirements. The Supreme Court in Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974), overturned an Arizona law that stated that an indigent person must be a resident of one year in the county before receiving nonemergency hospitalization or medical care at the expense of the county. The Court ruled that medical care is a basic necessity of life to an indigent person, comparable to welfare assistance. As in the Shapiro case, the Court held that the residency requirement restricted the right to travel. The fact that public services would be depleted by allowing new residents the same treatment as other residents did not justify the residency requirement because a state cannot apportion its services among its citizens.

Voting Rights A state has the right to require bona fide residency as a prerequisite to the exercise of the right to vote in its elections. The courts have also upheld durational residency requirements for voting. Beginning in the mid-1970s, however, many states began to abandon durational requirements, making it possible for a new resident to register to vote when he applied for a state driver's license. This "motorvoter" statute was first enacted in Minnesota (Minn. Stat. Ann. § 201.161 [West 1992]), and by 1992 some 27 states had some form of motorvoter law. Congress eliminated durational residency requirements for voting with the passage of the National Voter Registration Act of 1993 (42 U.S.C.A. § 1973gg et seq.). The act allows anyone over the age of 18 to register to vote while obtaining a driver's license.

Other Rights

Courts have upheld residency requirements involving rights that are not fundamental rights under the Constitution. These requirements govern the right to run for public office, the right to start a lawsuit in a state court, the right to attend particular public schools, the right to practice a profession, and the right to work for a government agency. The state needs to provide a rational basis for the residency requirement, which is a lesser standard of constitutional review. Generally, most statutes can be upheld on a rational basis standard because it requires the state only to offer a reasonable justification for the law.

Candidate for Public Office The right to become a candidate for public office is not a fundamental right. A state has the right to impose certain requirements on persons who decide to run for public office within its borders. A bona fide resident of the state or local government subdivision may run for state or local public office. A durational requirement specifying more than a short period of time will likely be struck down as a violation of equal protection.Jurisdiction When a person's legal rights have been violated, he is entitled to bring a lawsuit in the courts of his state against those who have committed the violation. A state or its subdivision will not allow a person to resort to its courts unless that person can establish that he has some relationship with it that justifies the exercise of jurisdiction of the court. States typically impose residency requirements as a prerequisite to bringing a Divorce action. The Supreme Court, in Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975), upheld an Iowa durational residency requirement that prohibited the filing of a divorce action until a person had resided for one year in the state. The Court concluded that the one-year residency requirement merely delayed obtaining judicial relief and was not a permanent barrier. In addition, the state had a compelling interest to justify the one-year requirement. The Court noted that a divorce case affects both spouses, the children of the marriage, and various property rights. Iowa had a compelling interest in making sure that it, rather than another state, was the appropriate place for the lawsuit.

Schools Depending upon state law, the residency of a child and her parents or guardians in a particular school district determines which public elementary and secondary schools that child will attend. States can also validly establish residency requirements to help determine which students are entitled to lower tuition costs at state-operated Colleges and Universities. Federal courts have upheld the right of a state to impose more stringent admission standards and higher tuition costs on out-of-state residents seeking to attend its institutions of higher learning. There is a reasonable basis for this residency requirement because a state university is created for the citizens of the state and is substantially supported by state taxes.

Professional Requirements A state has the right to establish qualifications that must be satisfied by persons seeking to practice their professions within its borders. Doctors, lawyers, optometrists, dentists, and architects must comply with state regulations that are designed to protect the public from the work of unqualified individuals. Various courts have upheld the requirement that a professional be a resident in the state in which she is seeking to practice, on the basis that the applicant's residency prior to, or during, the time she is seeking a license gives the state examining body a sufficient opportunity to investigate her character and fitness. A residency requirement, however, must accomplish this purpose or it is invalid.

Employment Residency requirements have been consistently upheld as valid prerequisites to municipal or civil service employment. Because there is no constitutional right to be employed by a public agency, any residency requirements must be examined to determine if they have some rational basis. Public bodies base residency requirements for their workers on a number of state interests, including the promotion of ethnic and racial balance in the community, the reduction of high unemployment rates of inner-city minority groups, the ready availability of workers in emergency situations, and the general economic benefits ensuing from local expenditures of employees' salaries. As long as a municipal employee residency requirement is rationally related to one or more of these legitimate government purposes, it does not violate the equal protection of the laws.

Commercial Licenses A state can require that applicants for various types of commercial licenses, such as barbers, bar owners, restaurant owners, or taxi drivers, meet certain residency requirements. This exercise of the state Police Power to protect the public health and safety is valid as long as the residency requirements constitute a reasonable way of enabling the state to accomplish its legitimate goals.

Further readings

Foster, Charles C. 1998. "The Long Road to Legal Residency." New Jersey Law Journal (Feburary 2).

Moffett, Toby. 1973. Nobody's Business: The Political Intruder's Guide to Everyone's State Legislature. Old Greenwich, Conn.: Chatham.

Ross, Donald K. 1973. A Public Citizen's Action Manual. New York: Grossman.


Rational Basis Test; Schools and School Districts; Voting.

See: abode, domicile, inhabitation, residence, tenancy
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