Does a councilmember of a given city or town actually live inside that city or town? The question often arises in municipal politics.
Both the eligibility to vote and the right to run for and hold office have residency requirements. The question of whether councilmembers meet these requirements can sometimes be difficult to answer.
Standards for residency
The South Carolina Constitution establishes the needed qualifications in Article VI, Section 1 and Article XVII, Section 1. Those who are elected to an office or who are appointed to an office need the "qualifications of an elector," or in other words, they must be eligible to vote for the office they propose to hold.
SC Code Section 5-15-20 applies these eligibility rules to service on city council:
"Mayors and councilmen shall be qualified electors of the municipality and, if they are elected subject to residential or ward requirements as provided in this section, they shall be qualified electors of the ward prescribed for their election qualification."
The qualifications to vote in a municipal election appear in SC Code Section 7-5-610. Among other requirements, the person must have resided within municipal limits for at least 30 days prior to an election. This requirement would be applicable also for serving as a councilmember. If the council seat represents a specific ward, then the person must have lived within that ward specifically.
The rules for determining residency then come from SC Code Section 7-1-25. It defines a person's residence as the single place the person intends to return to after an absence. It also states that for voting purposes, a person changes a "domicile" by abandoning the previous home and establishing a new one where the person has "no present intention to leave that place."
This section of law also offers a list of factors to consider in determining a person's residence, including the person's income tax returns, declared residence for property tax purposes, driver's license, automobile registration and other objective indicators.
Although these factors can help to determine a person's residence, the truth of the residency, from a legal standpoint, requires the person's intent to reside there.
Responsibility of council
The residency requirement for office applies to the duration of the councilmember's tenure. Under SC Code Section 5-7-200(a), mayors or councilmembers will forfeit their offices should they lack any qualification of the office — which includes residency — "at any time."
According to state law under SC Code Section 5-7-210, enforcing qualification requirements is primarily the responsibility of the council itself. Council may formally investigate a sitting member of council to determine the member's residency. If its investigation warrants, council may remove a councilmember from office.
It is possible for individual residents to challenge the residency of a sitting councilmember by bringing an action in court. A declaratory judgment action has the advantage of determining a residency issue conclusively, but court actions are often lengthy, time-consuming, and expensive.
Residency of candidates
Residency questions also arise for candidates who are not yet elected. If the question goes undetermined until after the election, the council might be forced to not only conduct its own investigation of someone elected with questionable residency, but also to call a special election to fill any vacancy caused by a determination that the councilmember was not a resident.
Because eligibility to hold an office is based on eligibility to vote for that office, it would seem that a successful challenge to a candidate's voter registration would also mean that the candidate was ineligible to hold office. When an eligible person challenges someone's voter registration, the county election board has only 10 days to hold a hearing, accept evidence and rule.
The State Election Commission, however, generally requires a court determination of residency before it will remove a candidate's name from the ballot. A county election commission's residency determination, standing alone, will not suffice to prevent a candidate from running for office.
State law provides no simple answer for resolving residency challenges. In most cases, a court action will be required to determine residency. A council itself might remove a sitting councilmember based on residency, but even in that case a court action would most likely be less controversial and difficult.