WALTERS v. WEED (1986)

Plaintiffs, a group of citizens and voters of the City of Santa Cruz, appeal from a judgment in an election contest confirming the certification of election issued to respondent Jane Weed, who was among four persons elected to the Santa Cruz City Council in November 1983.   Defendants Weed and Bruce Van Allen cross-appeal from the trial court's refusal to award them costs pursuant to Elections Code section 20112.¹  We conclude that a number of persons who were registered to vote in several University of California at Santa Cruz campus precincts, but who had moved from those precincts with no intention of returning, were ineligible to vote in the election and voted illegally.   Because the number of illegal voters was more than sufficient to have affected the outcome of the election, we must reverse the judgment confirming the election of Weed.

Members of the Santa Cruz City Council are elected at large.   In the November 1983 election, there were eight candidates for four open positions.   The candidates elected were Arnold Levine, Katy Sears Williams, Mike Rotkin, and respondent Jane Weed.

Plaintiffs contested the election results on the ground that over 400 persons who had voted in one of the four consolidated precincts on the campus of the University of California at Santa Cruz voted illegally.   In particular, plaintiffs contested the election of respondent Weed, who received the lowest number of votes among the four declared winners.   Weed received 145 votes more than candidate Bill Fieberling, and plaintiffs sought a declaration that Fieberling was entitled to the office instead of Weed.

A court trial was held, at which 292 of the challenged voters testified, and testimony was taken about two additional persons.   The court found that 193 voters had moved from their university residences with the unequivocally expressed intention not to return there to live, and 28 had moved with the intention to return only as a “last resort.” ²  Nevertheless, it concluded that only 113 had acquired a new domicile as of a month before the election and had voted illegally on campus.   The court divided the challenged voters who testified into several categories and reasoned that they were all still domiciled in the university precincts and voted legally there.

An election contestant must establish not only that illegal votes were cast, but also that illegal votes were cast in such a manner as to determine the result of the election.  (§ 20024;  Canales v. City of Alviso (1970) 3 Cal.3d 118, 126, 89 Cal.Rptr. 601, 474 P.2d 417.)   Instead of questioning any of the voters about how he or she voted, however, the parties stipulated to the use of a formula to determine the number of illegal votes necessary to have affected the election's outcome.

The court's statement of decision explains the formula.   The four precincts in which the challenged individuals voted are coterminous with the university.   The only housing in those precincts is university-owned and may be lawfully occupied only by students, their dependents, and a limited number of faculty.   The court observed that a candidate or issue that “appeals to the left side of the spectrum and prevails or fails narrowly in Santa Cruz as a whole carries the campus by 88 to 96 percent of the votes cast․”  In other words, “the University community marches overwhelmingly to one drum;  and on issues with ideological overtones it is a different drum from that which paces a majority of the rest of the city.”   The city council candidates were divided into two slates of four candidates each, which the court characterized as the “progressives” and the “moderates.”   In light of the campus voting profile in this election ³ and the consistent pattern demonstrated in the past by the university electorate, the court found:  (1) of the votes cast in the four campus precincts, nine were cast for Weed for every one cast for Fieberling;  and (2) the determinative number of illegal votes required to overturn the election was 182.   The parties do not dispute the accuracy of that formula.   Because the trial court concluded that only 113 persons voted illegally, it confirmed the election of Weed.

Discussion

Although stated in various ways, plaintiffs' principal contention is that the trial court erred when it concluded that many of the challenged voters were domiciled for voting purposes in precincts from which they had moved and to which they did not intend to return.

 States have the power to require that citizens must be bona fide residents of a particular subdivision in order to vote.  (Dunn v. Blumstein (1972) 405 U.S. 330, 343–344, 92 S.Ct. 995, 1003–1004, 31 L.Ed.2d 274.)   The California Constitution provides that “[a] United States citizen 18 years of age and resident in this state may vote,” and directs the Legislature to “define residence and provide for registration and free elections.”  (Cal. Const., art. II, §§ 2, 3.)

The term “residence” has been described as an elusive and indefinite term (Smith v. Smith (1955) 45 Cal.2d 235, 240, 288 P.2d 497), and its meaning depends upon the purpose of the act in which it appears.  (Ibid.;  see Nadler v. California Veterans Board (1984) 152 Cal.App.3d 707, 715, fn. 5, 199 Cal.Rptr. 546.)   According to the Elections Code, an “elector” is a person who is “18 years of age or older and a resident of an election precinct at least 29 days prior to an election.”  (§ 17.)   A “voter” is an elector who is registered to vote pursuant to the provisions of that code.  (§ 18.)

Sections 200 through 217 set forth criteria to determine “residence” for voting purposes.   Section 200 provides:  “(a) Except as provided in this article, the term ‘residence’ as used in this code 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, as used in this article, 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.”  (Emphasis added.)   The statutory predecessor of section 200, former section 14282, has been described by our Supreme Court as providing “the general standard for determining an individual's domicile for voting purposes.”  (Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 578, 96 Cal.Rptr. 697, 488 P.2d 1.) ⁴

Whether a person who moves from one place to another has acquired a new domicile for voting purposes or retains his or her old one is also governed by the Elections Code.  (See Jolicoeur v. Mihaly, supra, 5 Cal.3d at p. 582, 96 Cal.Rptr. 697, 488 P.2d 1 [involving former sections 14280 through 14292].)  Section 202 provides:  “(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.”  (See former §§ 14287, Stats.1961, ch. 23, § 3, p. 766.)   Section 205 provides:  “The mere intention to acquire a new domicile, without the fact of removal avails nothing, neither does the fact of removal without the intention.”  (See former § 14291, Stats.1961, ch. 23, § 3, p. 767.)

The Government Code also sets forth rules for determining “residence.”   Government Code section 243 provides:  “Every person has, in law, a residence.”   In pertinent part, Government Code section 244 proves:  “In determining the place of residence the following rules shall be observed:  ․ [¶] (b) There can only be one residence.  [¶] (c) A residence cannot be lost until another is gained․  [¶] (f) The residence can be changed only by the union of act and intent․”  It should be noted, however, that the term “residence” as used in those Government Code sections means “domicile,” and the sections give the basic rules generally regarded as applicable to determining domicile.  (Smith v. Smith, supra, 45 Cal.2d at p. 239, 288 P.2d 497;  Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1113–1114, 203 Cal.Rptr. 388.)

The rules set forth in sections 200, 202, and 205, and in Government Code section 244, subdivisions (c) and (f), are consistent with the rules by which the question of domicile for voting purposes has long been analyzed in this state.  (See, e.g., Huston v. Anderson (1904) 145 Cal. 320, 328–329, 78 P. 626;  People v. English (1921) 54 Cal.App. 90, 92–97, 201 P. 145.)   Principles similar to those codified in the Elections Code and the Government Code appear repeatedly in cases involving issues of domicile as well as in various secondary sources.   In Estate of Glassford (1952) 114 Cal.App.2d 181, 249 P.2d 908, for example, the court explained that a change of domicile requires both actual physical removal to a new place of residence and an intention to remain, either permanently or indefinitely in that new place, without any fixed or certain purpose to return to the former place of abode.   Stated another way, “the judicial concept of domicile is essentially equivalent to the lay idea of home.”  (Id., at p. 186, 249 P.2d 908;  see also In re Marriage of Leff (1972) 25 Cal.App.3d 630, 641–642, 102 Cal.Rptr. 195;  25 Am.Jur.2d, Elections, §§ 67–69, pp. 760–762.)   According to section 18 of the Restatement Second of Conflicts, “[t]o acquire a domicil [e] of choice in a place, a person must intend to make that place his home for the time at least.”  (Emphasis added.)

It has also been stated that “ ‘[o]ne cannot have his only home in one place ․ and a domicile elsewhere.   A place which is a man's home must be his domicil[e] (except where he has in fact more than one home).   The intention requisite to acquire a domicil[e] is the intention to have a home, and that is the only legally relevant intention;  the domicil[e] follows as a legal consequence, without regard to whether the consequence is desired or not․’ ”  (Aldabe v. Aldabe (1962) 209 Cal.App.2d 453, 466, 26 Cal.Rptr. 208, quoting from 1 Beale, Conflict of Laws, pp. 149–150.)  “Home” has been defined as “the place where a person dwells and which is the center of his domestic, social and civil life.”  (Rest.2d Conf. of Law, § 12.)

With these principles in mind, we consider plaintiffs' election challenge.   One who contests the validity of an election must prove the defect by clear and convincing evidence.  (Wilks v. Mouton (1986) 42 Cal.3d 400, 404, 229 Cal.Rptr. 1, 722 P.2d 187.)   Ordinarily the question of residence or domicile is a mixed question of law and fact, and the determination of the trial court will be upheld if supported by substantial evidence.  (Fenton v. Board of Directors, supra, 156 Cal.App.3d at p. 1117, 203 Cal.Rptr. 388;  Chapman v. Superior Court (1958) 162 Cal.App.2d 421, 426–427, 328 P.2d 23;  People v. English, supra, 54 Cal.App. at p. 97, 201 P. 145;  see also Wilks v. Mouton, supra, 42 Cal.3d at p. 404, 229 Cal.Rptr. 1, 722 P.2d 187.)   In this case, because the record consists only of an appendix, the sufficiency of the evidence is not open to review.  (See Wheelright v. County of Marin (1970) 2 Cal.3d 448, 454, 85 Cal.Rptr. 809, 467 P.2d 537.)   We have concluded that the question here, however, is not whether the evidence supports the findings.   Instead, the issue is whether the trial court evaluated that evidence against an erroneous legal standard.   To answer that question, we may examine the court's statement of decision.  (See Canepa v. Sun Pacific, Inc. (1954) 126 Cal.App.2d 706, 714, 272 P.2d 860;  Bailey v. Fosca Oil Co. (1960) 180 Cal.App.2d 289, 294–295, 4 Cal.Rptr. 474;  People v. Van Gorden (1964) 226 Cal.App.2d 634, 638–640, 38 Cal.Rptr. 265.)

 We turn now to the trial court's findings in the instant case and consider the categories of voters whom the court found retained a voting domicile on campus.   One category consisted of voters “likely to return to the campus to live.”   But this group apparently included an unspecified number of persons who had never lived on campus.   The court explained that the category encompassed persons who came to Santa Cruz intending to live in university housing, who registered to vote on campus, but who were occupying temporary lodging downtown while on the waiting list.   The court's conclusion that these persons were domiciled on campus is inconsistent with the requirements of section 200, as they had never had any habitation on campus, let alone a fixed habitation.

 Another category included persons with “no place to roost except at the University,” who lived on campus either in the woods or in parking lots.   Of those persons, although less than half voted in the campus precinct in which they lived or “roosted,” the court found that the entire group voted legally.   The court correctly concluded that a person need not live in an actual building in order to establish domicile for voting purposes.  (See Collier v. Menzel (1985) 176 Cal.App.3d 24, 30–37, 221 Cal.Rptr. 110.)   But whether a student residing in a parking lot in one campus precinct can lawfully vote in a different campus precinct is a different question.  (See id., at pp. 35–36, 221 Cal.Rptr. 110.)

The court also found domiciled on campus a category of voters “whose life circumstances showed an intention not to consider their post-campus residence at the relevant time as a domicile.”   Among this group the court included an unspecified number of individuals who moved from the campus and into apartments in 1982, initially intending to remain there at least until graduation two years hence, but who then moved into other temporary places of lodging in the fall of 1983, intending “to look for something better.”

 The court's finding that such persons were still domiciled on campus is inconsistent with the requirements of sections 200, 202, and 205.   Once they moved from campus with the intention never to return and moved into apartments with the intention to make those places home, the campus was no longer their voting domicile, whether or not they subsequently moved from their first post-campus residence to still another off-campus location.

 Yet another category consisted of voters who had “evinced an intention not to establish a post-campus domicile and whose testimony on that point was credible.”   As an example of those in this category the court mentioned the senior who moved from the campus to an off-campus dwelling in September 1983 and signed a nine-month lease, but who intended to leave Santa Cruz for good after graduation in 1984.   The court apparently based its conclusion about that senior and others similarly situated on the premise that if one has specific plans to move from one's off-campus home at some future date, one cannot have a voting domicile there.   That premise was erroneous.   If it were correct, no student who planned to move from his or her college community upon graduation could ever establish a voting domicile in that community during his or her college career.

On this issue Lloyd v. Babb (1976) 296 N.C. 416, 251 S.E.2d 843 is instructive.   In that case the court rejected an argument that a student must intend to remain in the college community beyond graduation in order to establish domicile there.   The court reasoned that the intent to acquire domicile requires the intent to abandon one's prior domicile and the intent to remain indefinitely at the new domicile, and that the intent to stay indefinitely is satisfied when there is simply not an intention to leave presently.  (Id., 251 S.E.2d at pp. 861–864.)

The court commented, “We are convinced this latter definition is routinely applied to persons other than students who seek to register to vote.   Ours is an increasingly mobile society․  If searching inquiry were made and if the proper questions were posed, prospective voters in other walks would respond that they planned to stay until they were promoted, until they got a new or different job, until they retired, until a contract was finished, until a term of office was over, until an election was won or lost, and so on ․ [b]ut questions are not asked and people who would admit to plans to leave are routinely registered to vote․”  (Id., at pp. 861–862.)

The Lloyd court's reasoning is persuasive.   If the trial court here had been confronted with determining which of multiple residences was each person's domicile, the intention to leave one of those residences at the specific future date might well have been dispositive.  (See § 200, subds. (b), (c).)   In the context of this case, however, by insisting that it be established that an intent to remain indefinitely in a new precinct was necessary to acquire a new voting domicile there, the trial court measured the evidence against too stringent a standard.

If the court's legal theories were erroneous, what was the proper standard which should have been applied to the evidence in this case?   In section 200, subdivision (b), the Legislature has unambiguously declared the requirements of a voting domicile:  (1) a fixed habitation;  and (2) an intention of remaining at that place and of returning to it after temporary absences.  (Collier v. Menzel, supra, 176 Cal.App.3d at p. 31, 221 Cal.Rptr. 110.)   A person who has moved from his or her voting domicile and who has no intention ever to return there to live does not satisfy those requirements.   We conclude as a matter of law that such a person is no longer domiciled for voting purposes in the place from which he or she has moved, and necessarily intends to acquire a new domicile elsewhere, regardless of his or her subjective expressions of intent with respect to that acquisition.

 Because the trial court's legal theories were erroneous, its findings with respect to the number of voters who were domiciled on campus for voting purposes are necessarily flawed.   Ordinarily if a trial court has applied an erroneous legal standard to the evidence, the matter should be retried.  (See, e.g., Canepa v. Sun Pacific, Inc., supra, 126 Cal.App.2d 706, 713–714, 272 P.2d 860.)   In this case, however, the trial court anticipated that a reviewing court might disagree with its analysis.   Hoping to avoid the need for a retrial should that occur, the court also expressly found that 193 of the voters who had moved from the campus expressed “a clear resolve not to return to campus to live” and 28 others viewed return to campus as a “last-resort option.”   In other words, those 193 voters voted in a precinct in which they had no fixed habitation, and to which they had no intention to return.   We cannot on this record decide where else each of these individuals could or should have registered to vote.   We hold only that each had lost his or her campus precinct voting domicile and therefore voted illegally in that precinct in the election at issue.   Under the trial court's formula, which is not disputed by the parties, those illegal votes were in excess of the 182 required to affect the outcome of the election.

Defendants have urged this court to uphold the results of the election on “general equitable grounds.”   They emphasize the trial court's finding that if all the challenged voters had voted where they were physically residing, Jane Weed would still have won.

We recognize that it is the duty of a reviewing court to validate an election if possible.  “ ‘The election must be held valid unless it is plainly illegal.’ ”  (Wilks v. Mouton, supra, 42 Cal.3d at p. 404, 229 Cal.Rptr. 1, 722 P.2d 187.)   However, the policy in favor of upholding an election is applied in conjunction with the rule that technical errors or irregularities in carrying out directory provisions of election laws, which have not affected the result, will not invalidate an election.  (Canales v. City of Alviso, supra, 3 Cal.3d 118, 127, 89 Cal.Rptr. 601, 474 P.2d 417.)   Neither the policy nor the rule is invoked to uphold an election in the face of illegalities which did affect the outcome.  (Ibid.)

This is not a case involving mere technical error or irregularities, and the two cases cited by defendants do not support the upholding of the election by this court.  Assembly v. Deukmejian (1982) 30 Cal.3d 638, 180 Cal.Rptr. 297, 639 P.2d 939 does not involve an election contest at all;  rather, at issue was a pre-election attack on alleged defects in referendum petitions.  (Id., at pp. 646–654, 180 Cal.Rptr. 297, 639 P.2d 939.)  Simpson v. City of Los Angeles (1953) 40 Cal.2d 271, 253 P.2d 464 involves a minor irregularity at worst, not illegal votes.   Plaintiffs in Simpson unsuccessfully urged that an election should be set aside because the leaflets submitted by proponents of a ballot measure for mailing with the sample ballots were improperly printed on better quality paper than leaflets of the opponents.  (Id., at pp. 276–277, 253 P.2d 464.)   In sharp contrast, this case involves illegal votes which affected the results of the election of one candidate.   We cannot validate her election.

The judgment confirming the election of Jane Weed and directing each party to bear its own costs is reversed.   The trial court is directed to enter judgment declaring Bill Fieberling elected (§ 20087) and awarding costs to plaintiffs, including their costs on appeal (§ 20112).

FOOTNOTES

1.   Plaintiffs have not provided a reporter's transcript, and have elected to proceed with an appendix in lieu of a clerk's transcript.  (See Cal.Rules of Court, rules 5(f), 5.1.)   Our statement of the case is drawn from the trial court's statement of decision and its addendum to that statement, which are contained in the appendix, and from the parties' briefs.Unless otherwise indicated, statutory references are to the Elections Code.

2.   We have computed the number of voters in each of these two categories from the lists of names in the court's addendum to its statement of decision.

3.   The results of the election indicate that voters in the four college precincts voted overwhelmingly for Mike Rotkin, respondent Weed, defendant Bruce Van Allen, and Ed Porter, presumably all “progressives.”   Of the four, only Rotkin and Weed were elected.Defendant Van Allen was fifth in the number of votes received and Fieberling was sixth.   The court concluded that although Van Allen received more votes than did Fieberling, Van Allen had “no stake” in the case because, according to the formula, he received as many illegal votes as did Weed.   Neither party disputes this conclusion.

4.   Sections 200 through 217 were added to the Elections Code in 1976.  (Stats.1976, ch. 1172, § 4, p. 5266.)   Prior to their enactment, that code imprecisely used the term “residence” instead of “domicile.”   For example, former section 14282 provided:  “The residence of a person is that place in which his habitation is fixed and to which, whenever he is absent, he has the intention of returning.”  (Stats.1961, ch. 23, § 3, p. 766.)   With the enactment of sections 200 through 217, the Legislature clarified that a person may have multiple residences but only one domicile for voting purposes.   It also established various rebuttable presumptions for determining the domicile of a person with more than one residence.   (See §§ 211, 212, 214.)   In addition, to avoid disenfranchising a registered voter who moves from one precinct to another after the time has passed for reregistering in the new precinct, the Legislature added section 217 (person registered in a precinct who moves within 28 days prior to an election still entitled to vote in that election in former precinct).   (See Kagan v. Kearney (1978) 85 Cal.App.3d 1010, 1017, 149 Cal.Rptr. 867.)

SCOTT, Associate Justice.

WHITE, P.J., and MERRILL, J., concur.