Congressional Candidacy, Incarceration, and the Constitution's Inhabitancy Qualification

Order Code RL31532

Report for Congress

Received through the CRS Web

Congressional Candidacy,

Incarceration, and the Constitution’s

Inhabitancy Qualification

Updated August 12, 2002

name redacted

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Congressional Candidacy, Incarceration, and the

Constitution’s Inhabitancy Qualification

Summary

The issue of whether one is permitted to run for and hold office in the House of

Representatives either after a felony conviction, and/or while incarcerated in prison,

specifically involves a question of the qualifications, or disqualifications, to be a

Representative in Congress. There are three, and only three “positive” qualifications

for Representative in Congress set out in the United States Constitution: (1) age (25

years); (2) citizenship (7 years); and (3) inhabitancy (one must be an “inhabitant”

of the State from which chosen “when elected”).

It is now well-settled that these three qualifications for office in the Constitution

are the exclusive qualifications for Congress (and are not merely “minimum”

qualifications), and that they are fixed and may not be supplemented by Congress nor

by any State unilaterally. Specifically, there is no qualification in the Constitution

that one not be a convicted felon (nor a “disqualification” for offenses other than in

the14th Amendment for certain treasonous conduct by those who have taken an oath

of office). Similarly, there is no qualification in the Constitution that a person, when

elected to Congress, not be in prison. Furthermore, no State could permissibly

implement such additional qualifications for federal office through election laws or

ballot procedures. The Framers of the Constitution intentionally implemented a

representative scheme whereby significant discretion is given and deference

provided to the judgment and choice of the people as to whom they wish to have

represent them in Congress. In this respect, the adage of the French political

philosopher Joseph de Maistre might apply: “Every nation has the government it

deserves.”

The existing constitutional qualifications do require one to be an “inhabitant”

of the State from which chosen “when elected.” Does being placed in a prison

facility outside of the State in which one is a candidate disqualify one from being an

“inhabitant” of that first State? Congressional precedents, as well as the provision’s

enactment history, indicate that “inhabitancy” is not to be interpreted in an overly

strict or legalistic sense, but rather was meant to assure a real connection to the State

from which elected. The development of the concept of “inhabitancy” in House

qualifications cases indicates that the term appears to be somewhat akin to the legal

concept of “domicile,” encompassing not only actions taken which evidence the

establishment of a principal “home” in a State, but also recognizing a person’s intent.

Physical presence in the State at the time of election is, of course, a significant factor

for consideration, but is not necessarily the determining factor. When an individual

had lived in a State previously but then had physically been away from that State,

considerations relevant to determining “inhabitancy” in that first State might include

whether one “had left there any of the insignia of a household establishment”;

whether one retained a business in the first State; the location of one’s family; one’s

intent to establish residency in the new State; one’s intent to return to the first State,

both stated and “deduc[ed] from facts”; as well as physical presence or absence in

the first State at the time of election. When one is out of one’s “home State”

involuntarily at the time of election, that may certainly be a significant consideration

in determining one’s intent with regard to inhabitancy.

Contents

Qualifications for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Exclusivity of Constitutional Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . 1

Conviction of a Crime; Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Inhabitancy in the State From Which Elected . . . . . . . . . . . . . . . . . . . . . . . . 4

Congressional Candidacy, Incarceration and

the Constitution’s Inhabitancy Qualification

In the wake of the recent expulsion of a Member from the House of

Representatives, the conviction and incarceration of that expelled former Member,

and that former Member’s filing and intention to run for Congress in the next general

election in the State of Ohio, questions have arisen as to the permissibility or

possibility of a candidate running for and being elected to Congress while in prison.

This report examines those questions and specifically addresses whether a candidate

for the House of Representatives who at the time of the election is imprisoned in a

penal institution outside of the State from which he is running may still be

considered an “inhabitant” of that first State, as required by the qualifications

provision of the United States Constitution.

Qualifications for Congress

The questions concerning the permissibility of running for Congress while

imprisoned, or after a felony conviction, specifically and necessarily concern the

“qualifications” or possible disqualifications of one to be a Representative in the

United States Congress. The qualifications to hold the federal office of United States

Representative are established in the United States Constitution, are the exclusive

qualifications for office, and are unalterable by the Congress alone, or by any State

unilaterally.1 There are only three “positive” qualifications for Representative in

Congress set out in the United States Constitution, and those three qualifications are

as follows:

! Age — one must be at least 25 years old.

! Citizenship — one must be a citizen of the United States for at least 7 years.

! Inhabitancy — one must be an “inhabitant” of the State from which chosen

“when elected.”2

Exclusivity of Constitutional Qualifications

Although there may in our history have been some legitimate debate and

credible minority argument concerning the ability of Congress or the States to set

additional or different qualifications for federal office other than those set out in the

1

Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S.

779 (1995); Cook v. Gralike, 531 U.S. 510 (2001).

2

Article I, Section 2, cl. 2: “No Person shall be a Representative who shall not have attained

to the age of twenty five Years, and been seven Years a Citizen of the United States, and

who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” For

qualifications of United States Senators, see Article I, Section 3, clause 3.

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Constitution, it is now well-settled that the three qualifications established in the

United States Constitution are the exclusive qualifications for congressional office

(and are not merely “minimum” qualifications), and that such qualifications are fixed

and may not be changed, added to, or subtracted from by the United States Congress

nor by the State legislatures, other than by an amendment to the United States

Constitution.3 The Supreme Court of the United States found that it is clear from the

constitutional record that “the Framers intended the Constitution to be the exclusive

source of qualifications for Members of Congress, and that the Framers thereby

‘divested’ States of any power to add qualifications.”4 The history of the adoption

of the qualifications provisions within the Constitution demonstrates a philosophic

commitment of the Framers to minimal qualifications for congressional office, fixed

in the Constitution, so as to empower the electorate and to promote the

“fundamental” democratic principle that in the new republic “the people should

choose whom they please to govern them.”5

In our system of federalism there is a division of authority with respect to

elections to federal office. The States do have a significant role in federal elections,

including the express function of establishing the qualifications to vote in federal

elections (as long as such qualifications are the same as those to vote in State

elections for the most numerous house of the State legislature);6 and the broad

administrative authority over the procedures of federal elections, that is, authority

over the “Times, Places and Manner” of federal elections (unless Congress

3

Powell v. McCormack, supra; U.S. Term Limits, Inc. v. Thornton, supra; Cook v. Gralike,

supra.

4

U.S. Term Limits v. Thornton, supra at 800-801; Cook v. Gralike, supra. Whatever authority

States have over federal officers and elections must be a “delegated” authority from the

Constitution and could not possibly be a “reserved” power of the States (under the 10th

Amendment), since the States could not “reserve” a power relative to something which did

not exist before the Constitution. U.S. Term Limits, Inc., supra at 802-805; Cook v. Gralike,

supra at 522: “Because any state authority to regulate election to ... [federal] offices could

not precede their very creation by the Constitution, such power ‘had to be delegated to,

rather than reserved by, the States.’”

5

Powell v. McCormack, supra at 547, quoting Alexander Hamilton at the New York ratifying

Convention, 2 Eliot's Debates 257. In warning against an “uncontrollable power over the

elections to the federal government” either in the state legislatures or in the Federal

Government itself, Hamilton explained in the Federalist Papers that: “The qualifications of

the persons who may ... be chosen ... are defined and fixed in the Constitution, and are

unalterable by the legislature.” The Federalist Papers, No. 60. Similarly, James Madison

argued at the Constitutional Convention for minimal required qualifications for Congress

that “ought to be fixed by the Constitution,” as a means to prevent infringement on the free

choice of the people, and as a way of preventing “an aristocracy or oligarchy ... by limiting

the number capable of being elected.” 2 Farrand, Records of the Federal Convention of

1787, 249-250. See also Madison, The Federalist Papers, Nos. 52 and 57.

6

United States Constitution, Article I, Section 2, clause 1. The constitutional authority of the

States over voting eligibility in federal elections, but not over the establishment of

qualifications for federal office, leads to the very real possibility of having one who can be

a candidate in a congressional election, but who can not vote for himself in that election.

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designates otherwise).7 The States’ authority over voting qualifications and over the

procedures of federal elections, however, does not include the authority to establish

new or additional qualifications of candidates for (and thus one who may hold)

congressional office. State laws which have attempted to place requirements on a

candidacy to Congress that have been deemed to constitute additional qualifications

for election to federal office, such as, for example, State requirements of residency

in a congressional district, disqualification of convicted felons, or disqualification for

certain long-term incumbents (term limits), have all been found to be

unconstitutional when challenged.8

Conviction of a Crime; Imprisonment

Since the United States Constitution sets out the only three qualifications for

congressional office (age, citizenship and inhabitancy), the conviction of a crime

which constitutes a felony, can not constitutionally “disqualify” one from being a

Member of Congress (unless that conviction is for certain treasonous conduct after

having taken an oath of office).9 Furthermore, since a State does not have the

authority to add qualifications for federal offices, the fact of conviction, even for a

felony offense, could not be used to keep a candidate off of the ballot under State law

either as a direct disqualification of convicted felons from holding or being a

candidate for office, or as a disqualification of one who is no longer a “qualified

elector” in the State.10 Once a person meets the three constitutional qualifications of

age, citizenship and inhabitancy in the State when elected, that person, if duly

elected, is constitutionally “qualified” to serve in Congress, even if a convicted felon.

Similar to the fact of a felony conviction, the fact that an individual is in prison,

in and of itself, is also not necessarily a constitutional bar to or an automatic

disqualification from running for and being elected to Congress.11 In fact, as early

7

Article I, Section 4, clause 1.

8

District residency requirements: Hellmann v. Collier, 141 A.2d 908, 911 (Md. 1958); Dillon

v. Fiorina, 340 F. Supp. 729, 731 (N.M. 1972); Exon v. Tiemann, 279 F. Supp. 609, 613

(Neb. 1968); State ex rel. Chavez v. Evans, 446 P.2d 445, 448 (N.M. 1968); restrictions on

convicted felons: Application of Ferguson, 294 N.Y.S.2d 174, 176 (Super. Ct. 1968);

Danielson v. Fitzsimmons, 44 N.W. 2d 484, 486 (Minn. 1950); State ex rel. Eaton v.

Schmahl, 167 N.W. 481 (Minn. 1918); disqualification of incumbents (term limits): U.S.

Term Limits, Inc. v. Thornton., supra; Cook v. Gralike, supra; Thorsted v. Gregoire, 841 F.

Supp. 1068, 1081 (WD Wash. 1994); Stumpf v. Lau, 839 P.2d 120, 123 (Nev. 1992).

Impermissible “additional qualifications” to office may not be masqueraded by a State as

merely permissible, administrative “ballot access” provisions. Term Limits, Inc. supra at

832-835, distinguishing Storer v. Brown, 415 U.S. 724 (1974).

9

The Fourteenth Amendment to the Constitution, Section 3, provides a disqualification for

one who, having taken an oath of office to support the Constitution, “engages in insurrection

or rebellion against,”or aids or abets the enemies of, the United States. Note exclusion cases

of Victor Berger, discussed also in Powell v. McCormack, supra at 545, n.83.

10

Application of Ferguson, supra; Danielson v. Fitzsimmons, supra; State ex rel. Eaton v.

Schmahl, supra.

11

This report does not discuss the action which the House may or may not take if a Member(continued...)

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as 1798 a Member of the House was re-elected to Congress while imprisoned within

his home State. Representative Matthew Lyon, an outspoken Republican critic of

the Federalists, and particularly of President John Adams, was convicted and

imprisoned on October 9, 1798, under the so-called “Sedition Act” for “libeling”

President Adams.12 While still in prison in Vergennes, Vermont, Lyon won reelection to Congress in a December 1798 run-off election. Upon Lyon’s eventual

arrival in Congress in Philadelphia after four months imprisonment, a Federalist

Member of the House offered a resolution of expulsion of Lyon, which failed of the

required two-thirds vote.13

Inhabitancy in the State From Which Elected

While imprisonment at the time of election, in itself, does not constitutionally

disqualify one from being a Member of Congress if one is duly elected by his or her

constituents, the question still remains whether, under constitutional qualifications

for congressional office, a person who is incarcerated at the time of the election in

a State other than the one from which he is a candidate still qualifies as being, “when

elected,” an “Inhabitant of that State in which he shall be chosen.”

It should be noted initially that the United States Constitution expressly

provides that each House of Congress is to be the judge of the qualifications for

office of its own Members: “Each House shall be the Judge of the Elections, Returns,

and Qualifications of its own Members ....”14 The Supreme Court of the United

States has explained that each House of Congress has the “sole authority under the

Constitution to judge of the elections, returns and qualifications of its members ...”

and “to render a judgment which is beyond the authority of any other tribunal to

review.”15 The congressional precedents interpreting the constitutional qualification

11

(...continued)

elect is imprisoned and unable to appear to take the oath of office and be seated at the

convening of the new Congress.

12

Lyon had written that in President Adams he saw “every consideration of the public

welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous

pomp, foolish adulation, and selfish avarice ....” McLaughlin, Matthew Lyon, the Hampden

of Congress, a Biography (New York 1900), at 344.

13

Annals of the Congress of the United States 2959 - 2974, 5th Congress, February 22, 1799.

Many years later, in 1840, after years of debate over the constitutionality and appropriateness

of passing the Sedition Act, Congress passed a private bill reimbursing Lyon’s heirs the fine

and court costs associated with his conviction. H.R. 80, 26th Cong., 1st Sess., Journal of the

House of Representatives 994 - 998, 26th Cong., May 23, 1840, and Journal of Senate 447,

26th Cong., Tuesday, June 24, 1840.

14

Article I, Section 5, clause 1. Questions of a Member-elect’s qualifications for office may

be raised by any other Member-elect prior to taking the oath of office. Deschler’s

Precedents of the House of Representatives, Chapter 2 § 6, and Chapter 12, § 14, p. 181;

Brown, House Practice, “Oaths,” § 3, , pp. 611-612 (1996).

15

Barry v. Cunningham, 279 U.S. 587, 613, 619 (1929). See also Seville v. Elizalde,112 F.2d

29, 38 (D.C. Cir. 1940): “We are cited no cases, and we find none, in which the Federal

courts have ever been asked to determine the qualifications of a member of Congress.

(continued...)

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of “inhabitancy,” when questions of seating a Member-elect have arisen, provide,

therefore, the relevant precedential guidelines for examining the constitutional

provision.

There is, it should be emphasized, no precise constitutional definition of the

term “inhabitant.” The word “inhabitant” was substituted for the term “resident” at

the Constitutional Convention, an amendment supported, and seconded, by James

Madison who believed that although both words were “vague,” the term “inhabitant”

might protect one’s right to be chosen from a State even though that person may have

temporarily not resided in the State because of an occasional absence, even for a

“considerable” period of time, on public or private business.16 Some delegates

objected to any inhabitancy or residency requirement, believing that people would

“rarely chuse a nonresident,” and noting that there were great disputes in some State

colonial legislatures over technical and legal definitions of the term “which were

decided by the arbitrary will of the majority,”17 or as noted by Madison, “determined

more according to the affection or dislike to the man, than any fixt interpretation of

the word.”18 George Mason, however, argued for some requirement of inhabitancy

or residency, to preserve a knowledge and understanding of the State and to prevent

wealthy interlopers from neighboring States:

If residence be not required, Rich men of neighbouring States, may employ with

success means of corruption in some particular district and thereby get into the

public Councils after having failed in their own State. This is the practice in the

boroughs of England.19

The apparent constitutional concern of the Framers who debated this provision

was thus to craft a term that was not so overly technical that it could be applied in a

strict, capricious fashion by a political majority to their advantage, but rather to

express a requirement of an actual connection to the State as one’s home. The mere

absence of physical presence from the State for a particular duration, or presence for

any period of continual duration, was obviously not to be the definitive or conclusive

concept, since “so strict an expression might be construed to exclude the members

15

(...continued)

Apparently, it has been fully recognized that that power is lodged exclusively in the

legislative branch”; see also Reed v. County Commissioners, 277 U.S. 376, 388 (1928);

Keogh v. Horner, 8 F. Supp. 933, 935 (S.D. Ill. 1934).

16

2 Farrand, Records of the Federal Convention of 1787, at 217. Madison noted specifically

as to the terms “resident” and “inhabitant” that “both were vague, but the latter least so in

common acceptation, and would not exclude persons absent occasionally for a considerable

time on public or private business.”

17

Id. at 217, Governor Wilson.

18

Id. at 217.

19

Id. at 218, Mason. The delegates expressly rejected any period of a “durational” residency

requirement, however, rejecting various durations of previous residence of one year, three

years or seven years, apparently agreeing with Mr. Williamson who stated that “new

residents if elected will be most zealous to Conform to the will of their constituents, as their

conduct will be watched with a more jealous eye.” 2 Farrand, supra at 218.

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of the Legislature, who could not be said to be actual residents in their States whilst

at the Seat of Genl. Government.”20

Early congressional decisions on inhabitancy might have appeared, at first

glance, to have borne out to some extent some of the Framers’ concerns about overly

technical definitions, but upon examination show a more reasoned conclusion. In the

case of John Bailey in the 18th Congress, for example, the House of Representatives

found a Member-elect from Massachusetts not to be an “inhabitant” of that State,

when he had left the State to work for the Federal Government and reside in the

District of Columbia for a number of years. Even in this seemingly strict

interpretation, however, the Committee and the House noted that it was a voluntary

action on the part of Bailey to “abandon” his domicile and establish residency in the

District of Columbia, that he had lived “exclusively” in the District for a period of

over 6 years, that he had in the District “married a wife and established a family of

his own, thereby leaving his natural or original domicile in his father’s house,” and

that, significantly, “Mr. Bailey had no domestic establishment or estate in

Massachusetts.”21 Noting that one “may acquire inhabitancy in the District of

Columbia in the same way as in any of the States,” the House and Committee on

Elections, as reported in Hinds’ Precedents, specifically concluded:

If the residence of Mr. Bailey here [the District of Columbia] had been transient

and not uniform; had he left a dwelling house in Massachusetts in which his

family resided a part of the year; had he left there any of the insignia of a

household establishment; there would be indication that his domicile in

Massachusetts had not been abandoned. It had been urged that the expressed

intention to return to Massachusetts should govern. But the law ascertained

intention in such a case by deducing from facts. ... The committee did not contend

that a Member must be actually residing in a State at the time of his election.22

The concept of “inhabitancy” that evolved in congressional decision making

and has traditionally been employed in congressional consideration, alluded to in the

1824 case of John Bailey, appears to be somewhat akin to the understanding of the

legal term “domicile,” and thus would encompass not only actions taken which

evidence the establishment of a physical and principal “home” in a State, such as the

purchase or maintenance of a primary personal residence, but also intent, that is, the

intent that a place be one’s permanent home, the place where one intends to return

after an absence, as such intent is “deduc[ed] from the facts.”23 Citing as support of

the “inhabitancy” of a Member-elect, the Committee of Elections of the House in the

case of Bayley v. Barbour, Forty-seventh Congress, for example, noted that:

Mr. Barbour testifies that he was a native of the State of Virginia; had always

been a citizen of said State; never claimed to have lived elsewhere in a permanent

sense or to have exercised citizenship in any other State or Territory ... and that

20

Id. at 218.

21

I Hinds’ Precedents of the House of Representatives, § 434, pp. 419-421.

22

Id. at 421.

23

Id. at 421; see Black's Law Dictionary, at p. 501 (7th ed.), defining the term “domicile” to

include “... a person’s true, fixed, principal, and permanent home, to which that person

intends to return and remain even though currently residing elsewhere.”

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while he had a temporary winter residence in the city of Washington, he had

taken a house in Alexandria with his family, in September 1880, [before the

November 1880 election]”24

The majority of the House Committee on Elections in 1926, in ruling on

whether a Member-elect of the House elected from Pennsylvania was an “inhabitant”

of that State when elected, provided a very cogent explanation of the concepts and

factors to be considered in determining “inhabitancy”:

To be an inhabitant within the Constitution, it seems clear that one must

have, first, a place of abode, and, second, that this place of abode be intended by

him as his headquarters; the place where his civic duties and responsibilities

center; the place from which he will exercise his civic rights. We think that a fair

reading of the debate on this paragraph of the Constitution discloses that it was

not intended that the word “inhabitant” should be regarded in a captious,

technical sense. ... We think that a fair interpretation of the letter and spirit of this

paragraph with respect to the word “inhabitant” is that the framers intended that

for a person to bring himself within the scope of its meaning he must have and

occupy a place of abode within the particular State in which he claims

inhabitancy, and that he must have openly and avowedly by act and word

subjected himself to the duties and responsibilities of a member of the body

politic of the particular State.25

In judging whether one was an “Inhabitant of that State for which he shall be

chosen,” the House of Representatives has thus employed several and varied

considerations, depending on the facts and question before it. When an individual

had lived in a State previously but then had physically been away from that State, for

example, considerations relevant to the question of whether one was an “inhabitant”

of that first State might include whether one “had left there any of the insignia of a

household establishment,” whether a home was owned or occupied in the first or the

new State, and what type of home, i.e., a permanent home or merely a vacation

home; where one’s wife and family were located; whether one retained a license in

the first State to practice a profession; whether one continued to exercise the

responsibilities of citizenship in the first State, such as voting and paying taxes; one’s

intention to return to the first State, both stated and “deduc[ed] from facts”; as well

as one’s physical presence or absence in the first State at the time of election.26

Cases in the Senate demonstrate a similar application of something akin to a

“domicile” concept of “inhabitancy.” In the 1899 Senate case of Nathan B. Scott,

the challenge to Mr. Scott’s qualifications as a Senator from West Virginia was

referred to the Committee on Privileges and Elections. The challenge was based in

part on the fact that Mr. Scott was actually residing in the District of Columbia at the

time of his election to the Senate, and not in West Virginia, and therefore, it was

24

Hinds’ Precedents, supra at § 435, pp. 423-424.

25

VI Cannon's Precedents of the House of Representatives, § 174, at pp. 339-340.

26

Bailey, I Hinds' Precedents, supra at §434, pp. 419-422; Philip B. Key of Maryland, Id.,

at §432, pp.417-419; John Forsyth, Id., at §433, p. 419. At least as far as the reliance on

State law in determining constitutional “qualifications” for federal office, the precedents

prior to the Supreme Court's clarifications in 1969 in Powell v. McCormack, and again in

1995 in U.S. Term Limits, Inc.,would now appear to be of marginal relevance and reliability.

CRS-8

argued, was an inhabitant of the District of Columbia and not West Virginia. The

Committee found, however, that Mr. Scott moved to the District of Columbia after

his appointment by the President as Commissioner of the Internal Revenue, that he

had resided since a young man in West Virginia, and came to Washington “with the

intent to retain his residence, citizenship, inhabitancy, and domicile in Wheeling, W.

Va.” and that “he claims to be an inhabitant of Wheeling, W. Va., and that he

remained in Washington in the discharge of his official functions with intent to return

to his home in Wheeling when his duties of office here ended.” The Committee

stated that the term “inhabitant” is “a legal equivalent of the term ‘resident’,” and

noting that Mr. Scott also voted in West Virginia, unanimously found that despite his

temporary physical absence from the state, he was entitled to his seat.27

As demonstrated by the congressional cases, if a candidate were to be

physically absent from the State at the time of election to congressional office, that

fact would certainly be one consideration in the House’s review of the issue of

“inhabitancy” of a Member-elect. However, absence from the State – particularly

involuntary absence, such as if one had been injured and hospitalized out of State,

or had been involuntarily removed from the State to another State, would not appear,

in itself, to be the only consideration or even the determinant factor in judging

“inhabitancy” in that State from which elected. The involuntary nature of the

relocation to another State would, in fact, significantly militate against a finding that

such person intended to abandon his inhabitancy and residency in the first State.

Generally, the House has looked to the totality of the circumstances to determine

what might be characterized as one’s true “home,” including whether one has kept

the indicia of residence in that first State, such as one’s principal personal residence,

where one’s immediate family resides, as well as considering the intent of the

individual to return to and to make a particular State his “home,” evidenced and

deduced by statements and facts.

27

I Hinds' Precedents, supra at § 439, p. 429. See also United States Senate Election,

Expulsion, and Censure Cases, 1793-1990, supra at 258-260 (Case 87).

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