ND-SEN: Schultz Can Run
On MSNBC today, talk show host Ed Schultz apparently suggested that he would be unable to run for the U.S. Senate to replace retiring Sen. Byron Dorgan because of the Peace Garden State’s five-year residency requirement for officeholders.
Schultz was mistaken.
As a primary matter, the constitutional provision on its face only applies to state officers:
Art. V, sec 4:
To be eligible to hold an elective office established by this article, a person must be a qualified elector of this state, must be at least twenty-five years of age on the day of the election, and must have been a resident of this state for the five years preceding election to office. To be eligible to hold the office of governor or lieutenant governor, a person must be at least thirty years old on the day of the election. The attorney general must be licensed to practice law in this state.
(The officers established by Article V are the North Dakota governor, lieutenant governor, agriculture commissioner, attorney general, auditor, insurance commissioner, three public service commissioners, secretary of state, superintendent of public instruction, tax commissioner, and treasurer.)
More to the point, even if this provision in the North Dakota Constitution purported to apply to the U.S. Senate, it would be blatantly, unmistakably unconstitutional. The only requirements for serving in the U.S. Senate are those in Article I, sec. 3, cl. 3 of the U.S. Constitution:
No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.
“When elected.” In other words, that day in November, and not a day before counts constitutionally. (As to why it’s “inhabitant” and not “resident,” see Madison’s notes on the Constitutional Convention from August 8, 1787.)
In the 1995 case of U.S. Term Limits, Inc. v. Thornton, the Supreme Court struck down an Arkansas Constitution provision attempting to place term limits on the state’s federal legislators, with Justice Stevens writing for the majority:
Such a state imposed restriction is contrary to the “fundamental principle of our representative democracy,” embodied in the Constitution, that “the people should choose whom they please to govern them.” Powell v. McCormack, 395 U.S. 486, 547 (1969) (internal quotation marks omitted). Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.
The Congress of the United States … is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. As Chief Justice John Marshall observed: “The government of the union, then, . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” McCulloch v. Maryland, 4 Wheat., at 404-405. [n.31] Ours is a “government of the people, by the people, for the people.” A. Lincoln, Gettysburg Address (1863).
The Framers deemed this principle critical when they discussed qualifications. For example, during the debates on residency requirements, Morris noted that in the House, “the people at large, not the States, are represented.” 2 Farrand 217 (emphasis in original) (footnote omitted). Similarly, George Read noted that the Framers “were forming a Nati[ona]l Gov[ernmen]t and such a regulation would correspond little with the idea that we were one people.” Ibid. (Emphasis in original.) James Wilson “enforced the same consideration.” Ibid.
Consistent with these views, the constitutional structure provides for a uniform salary to be paid from the national treasury, allows the States but a limited role in federal elections, and maintains strict checks on state interference with the federal election process. The Constitution also provides that the qualifications of the representatives of each State will be judged by the representatives of the entire Nation. The Constitution thus creates a uniform national body representing the interests of a single people.
Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure.
Bottom line: if Ed Schultz wants to run for the U.S. Senate, he can.