This is a guest post by Ed Zelinsky:

The office of Oregon’s Secretary of State has concluded that Nicholas Kristoff fails the three year residency requirement of Oregon’s Constitution to run for the governorship of Oregon. Ore. Const. Art. V, § 2. The Secretary of State’s opinion focuses, inter alia, on the fact that Kristoff voted in New York for twenty years through November of 2020.

The Oregon Secretary of State’s opinion does not discuss New York election law. The relevant statute of the Empire State  reinforces the conclusion that Kristoff was not an Oregon resident in 2020 when he voted in New York. New York election law explicitly defines residence for voting purposes in terms of domicile. An individual can only have one place of domicile. By voting in New York in 2020, Mr. Kristoff declared that New York (not Oregon) was then his domicile.

New York law defines residence of voting purposes as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” NY CLS Elec § 1-104(22). This is a classic statement of residence as domicile.

Another classic principle of law is that an individual at any given time has only one place of domicile. In re Noyes’ Estate, 182 Ore. 1, 16-17 (1947) (“a man is assumed by law to have a domicile somewhere and one only”).

Thus, if residence for purposes of Oregon election law means domicile, Mr. Kristoff’s voting in New York in 2020 was a statement under New York law that the Empire State, not Oregon, was his one place of domicile.

In some contexts, residence is defined as something less than domicile. This happens most commonly in tax settings. Both New York and Oregon declare that an individual who is not domiciled in-state is nevertheless a resident of the state for tax purposes if she “maintains a permanent place of abode” in the state and if, during the year in question, she spends more than 183 days in the state (in the case of New York) or spends more than 200 days in the state (in the case of Oregon).  NY CLS Tax § 605(b)(1)(B); ORS § 316.027(1)(B).

For two reasons, such “statutory residence” tests (as they are often called) appear problematic for Mr. Kristoff as well. First, the Oregon statute explicitly applies only for personal income tax purposes. It is at best unclear whether the tax definition of a statutory resident should be imported into Oregon’s election law. Second, as a factual matter, the statutory test of residence requires Mr. Kristoff to have spent 200 days in Oregon in each of the three prior years. Mr. Kristoff’s submission to the Secretary of State makes no such claim.            

One can conclude that, as a matter of policy, it is wrong to keep Mr. Kristoff from running for governor of Oregon. I’m inclined to think that it is. But Mr. Kristoff’s voting in New York through 2020 was an affirmation by him of New York domicile under New York law. Since an individual can only have one place of domicile, Mr. Kristoff’s New York voter registration as his domicile conflicts with the claim that Oregon was his domicile for the last three years.