Posted: Jan. 25, 2016
HOME IS WHERE THE LEGAL OPINION SAYS IT IS
By Celia Cohen
Forget any "birther" controversy. Delaware has a "resider" flap, instead.
It concerns Kathy McGuiness, one of the Democratic candidates for lieutenant governor, and it had election officials puzzling over the meaning of "inhabitant" to figure out if she was one for the six years required by the state constitution to run for the office.
It did not look good, not since McGuiness had gotten a driving license in Utah and popped up on the Utah voter registration rolls while not on them here, and driving and voting and residing generally do go together.
Still, life is nothing if not messy, and McGuiness' candidacy was blessed off by the election commissioner late last week.
"We were always confident that she would be vindicated. She has always considered Delaware her home," said John Paradee, the lawyer who made McGuiness' case to be on the ballot.
It has been a strange candidacy for McGuiness. Before there were "resider" suspicions, there was the "switcher" situation.
McGuiness has switched parties on her voter registration record from Republican to Democrat to Republican to -- what, Utah? -- to the Independent Party of Delaware to Democrat. It is right up there with the dizzying way Sarah Palin can switch subjects.
The "switcher" stuff is apparently what begat the "resider" stuff, because of the funny little gap McGuiness was not registered to vote in Delaware for about 21 months between 2011 and 2013.
It should be said from the outset McGuiness is deeply Delawarean. She was born in Dover on Valentine's Day in 1967. She is a graduate of Cape Henlopen High School. She was elected five times as a Rehoboth Beach commissioner.
No less relevant, McGuiness and her family, especially her children, ages 18, 16 and 13, are skiers, and it is tough to ski in Delaware, where the highest elevation is about 450 feet above sea level. Not exactly ski level.
The family got a condo in Park City, Utah, and when the kids turned out to be skilled enough to make the national ranks in skiing, there were a lot of trips between here and there.
All that traveling led to a comedy of complications in McGuiness' driving and voting records as well as her eligibility to run for lieutenant governor.
Because the lieutenant governor is next in line if something happens to the governor, the state constitution takes the residency of the lieutenant governor seriously.
The residency, not so much the office. This is the reason Delaware has been without a lieutenant governor since Matt Denn, the last one, got himself elected mid-term as the Democratic attorney general in 2014 with no provision in the constitution for replacing him, not until the voters elect a new one in 2016. Never mind.
The constitution says the lieutenant governor must have the same qualifications for office as the governor, and it says the governor has to be a citizen of the United States for 12 years, the last six years of that term an inhabitant of this state.
The confusion over McGuiness' driving license, as her lawyer tells it, can be traced to a trip to Utah in 2011, when McGuiness could not find her Delaware license, which she needed for identification for a flight home. She got a temporary license from Utah, which later sent her one that was valid until 2016. She did not bother to cancel it until she renewed her Delaware license in 2013.
The details about McGuiness' voting record are somewhat murkier. Neither McGuiness nor Paradee, her lawyer, provided a reason she registered in Utah, where she voted in a Park City election in 2011. Then she committed a glaring political sin for a politician by not voting in Utah, Delaware or anywhere in the presidential election in 2012.
"As embarrassing as it is, I missed that election," McGuiness said in a brief interview.
It turns out not to matter all that much where McGuiness was registered to vote. Courts have said voting is an indication of residence, but not definitive.
What is definitive is physical presence and intent, and McGuiness was able to come up with all sorts of records to show she was living here and only visiting elsewhere.
There was the house in Henlopen Acres. There were federal and state tax returns, her pharmacy and real estate licenses, vehicle registration and insurance, and regular utility and trash collection bills along with charges at the Rehoboth Beach Country Club.
State election officials examined McGuiness' records. They checked with Utah. They also did research and found a Delaware precedent for "resider."
The original "resider" was Dave Levinson, a Democrat who wanted to file for governor in 1984. Levinson had once voted in Missouri in the six-year stretch beforehand, but an attorney general's opinion decided it was not enough to keep him off the ballot. In the end, Levinson did not run for governor but for insurance commissioner, and he won.
What it all means is McGuiness can run for lieutenant governor in the Democratic primary along with the other five candidates, namely, Brad Eaby, Greg Fuller, Bethany Hall-Long, Ciro Poppiti III and Sherry Dorsey Walker. The Republicans do not have anyone yet.
"I have determined that you meet the six-year durational residency requirement," Elaine Manlove, the election commissioner, wrote to McGuiness in a letter dated Jan. 21.
Interestingly enough, Delaware once had a candidate with a stranger history than McGuiness with this "switcher" and "resider" stuff.
It was Rita Justice, a Republican who was running for re-election as the New Castle County executive in 1988, when a newspaper reporter reading some back stories about her stumbled upon discrepancies in her biography and investigated.
Justice was saying she was a 52-year-old Delaware native, born in Smyrna in 1936, when she was actually born in Kentucky in 1934.
Oops. Justice was not just a "resider" but a "birther," and on Election Day, she was a "loser," too.