Attorney General Opinion Re: Qualifications of Members of the Legislature

article top

”’This is an opinion published in Section 6, Article III of the Hawaii State Constitution, in regards to the Qualifications of Members of the Legislature. It was issued by the state of Hawaii Department of the Attorney General on March 21, 1986.”’

This is in response to your request for an opinion regarding the qualifications of members of the House of Representatives of the Hawaii State Legislature as prescribed by section 6 of article III of the Hawaii State Constitution. More specifically, you asked whether a representative who moves out of the district he represents because he is remodeling his home can continue to serve as a state representative from that district and seek re-election from that district. We answer the question in the affirmative.


We understand the facts to be as follows. A member of the State House of Representatives has purchased property in the district in which he presently lives and which he was elected to represent. Plans call for the existing dwelling to be demolished and a new structure erected. Until the new structure is completed, the representative and his family will be living outside the district.

Section 6 of article III of the Hawaii State Constitution provides in part as follows:

No person shall be eligible to serve as a member of the house of representatives unless the person shall have been a resident of the State for not less than three years, have attained the age of majority and be a qualified voter of the representative district from which the person seeks to be elected. [Emphases added.]
The prerequisite pertinent to this inquiry is that an individual who wishes to serve as a representative qualify as a voter from the district from which election is sought.

Pursuant to section 11-12, Hawaii Revised Statutes, to qualify to vote in a particular representative district, a person must be a resident of a precinct within the district. Section 11-12 provides in pertinent part: “[n]o person shall register or vote in any other precinct than that in which he resides except as provided in section 11-21.”

Section 11-13, Hawaii Revised Statutes, prescribes the various tests for determining a person’s residency for election purposes:

11-13 Rules for determining residency. For the purpose of this title, there can be only one residence for an individual, but in determining residency, a person may treat himself separate from his spouse. The following rules shall determine residency for election purposes only:

*(1) 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 to return;

*(2) A person does not gain residence in any precinct into which he comes without the present intention of establishing his permanent dwelling place within such precinct;

*(3) If a person resides with his family in one place, and does business in another, the former is his place of residence; but any person having a family, who establishes his dwelling place other than with his family, with the intention of remaining there shall be considered a resident where he has established such dwelling place;

*(4) The mere intention to acquire a new residence without physical presence at such place, does not establish residency, neither does mere physical presence without the concurrent present intention to establish such place as his residence;

*(5) A person does not gain or lose a residence solely by reason of his presence or absence while employed in the service of the United States or of this State, or while a student of an institution of learning, or while kept in an institution or asylum, or while confined in a prison;

*(6) No member of the armed forces of the United States, his spouse or his dependent is a resident of this State solely by reason or being stationed in the State;

*(7) A person loses his residence in this State if he votes in an election held in another state by absentee ballot or in person.

In case of question, final determination of residence shall be made by the clerk, subject to appeal to the board of registration under part III of this chapter. [Emphases added.]

Paragraphs (1), (2) and (4) are particularly instructive for resolving the question posed. Each points out that physical presence or absence from the particular places which one regards as his residence is not material. What must be ascertained instead is where “his habitation is fixed,” where he always intends to return, and where his present “permanent dwelling place” is. Under section 11-13, one’s state of mind determines one’s place of residence. The legislative history is not particularly illuminating.

Senate Standing Committee Report No. 830 and House Standing Committee Report No. 752 do note, however, that the enumerated rules were enacted to replace prior law which suggested that one could be a resident of two precincts and opt to vote in one or the other precinct, and to make the residency requirements for elections clearer. Hawaii S.J. 1375 (1970); Hawaii H.J. 852 (1969).

“Residence” when used in defining electoral rights has been said to be essentially synonymous with “domicile,” which denotes a permanent, as distinguished from a temporary, dwelling place. It means “the place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights.” In re Appeal of Irving, 13 Hawaii 22, 24 (1900), quoting from Chase v. Miller, 41 Pa. 420. A “house of stone or brick or even of wood is not essential to enable one to become a resident of a precinct and a qualified voter therein . . . there must be some definite and permanent place designated and occupied . . . .” Id . at 25.

To relinquish one’s domicile or residence there must be an intent to remain permanently at the new place where one is physically present and to simultaneously abandon the previously permanent place of abode. Acquisition of the new domicile must have been completed and the animus to remain in the new location fixed, before the former domicile can be considered lost. See Akata v. Brownell, 125 F. Supp. 6 (D. Hawaii 1954); Powell v. Powell, 40 Hawaii 625 (1954); Anderson v. Anderson, 38 Hawaii 261 (1948); Zumwalt v. Zumwalt, 23 Hawaii 376 (1916). Residence is not lost by a temporary absence nor by maintenance of a temporary home elsewhere. Hurley v. Knudsen, 30 Hawaii 887 (1929).

*3 Since the facts indicate that the representative’s move to another voting district is only temporary and will last only until his new home is built, we do not believe the representative’s temporary living quarters can be deemed his permanent, fixed residence or domicile. Section 11-13(1) permits a person who must be absent from the place he regards as his residence to maintain his resident status during his absence. Therefore, we conclude that he can continue to serve as a state representative from the district which elected him and run for re-election from that district.

However, we point out that section 11-13 also provides that “[i]n the case of question, final determination of residence shall be made by the clerk subject to appeal to the board of registration under part III of this chapter.” Anyone may challenge a person’s voter registration or nomination papers at the proper time under sections 11-25 and 12-8, Hawaii Revised Statutes, as amended, respectively.

”’Lawrence L. Hines is the Deputy Attorney General for the state of Hawaii.”’