If someone is involuntarily committed to a mental health facility in another Idaho county, can they register to vote in that new county?

Plain-English summary

Lewis County Prosecuting Attorney Zachary Pall asked whether patients who are involuntarily committed to an Idaho Department of Health and Welfare facility could register to vote in the county where the facility sits, after they had been there 30 days. Attorney General Lawrence Wasden concluded the answer was no.

The reasoning rested on three layers. First, Article VI, section 5 of the Idaho Constitution says no person gains or loses a residence "by reason of his presence or absence ... while kept at any alms house or other asylum at the public expense." Wasden read the modern term "facility" in Idaho Code § 66-317 as falling within the 19th-century word "asylum." Second, Idaho Code § 34-107 defines voting residence as the principal home to which a person intends to return, with factors like job, family, leases, and tax address pointing away from a commitment facility being that home. Third, Idaho Code § 66-325 settles the matter directly: "None of the time spent in any facility shall be regarded as contributing toward, or acquiring, residence for any purpose."

The opinion noted one narrow caveat. If circumstances unrelated to the commitment (a family relocates, a person's spouse and children move with them, jobs and homes follow), an involuntarily committed person might "piggy back" on those independent ties and acquire county residency. But the commitment itself, alone, never does it.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The opinion sits at the intersection of two strands of Idaho law that rarely meet. The first is voter qualification under Article VI, which requires residence in the state and the county for whatever period the legislature prescribes. The second is the mental health commitment chapter at Title 66, Chapter 3, which transports patients across county lines for treatment based on bed availability, medical need, and court orders, not based on where the patient wants to live.

The opinion distinguished an older case, Hawkins v. Winstead, 65 Idaho 12, 138 P. 972 (1943), which held a soldier living off-base near Boise could establish residency for divorce purposes. Hawkins overruled Powell v. Spackman, 7 Idaho 692, 65 P. 503 (1901), which had treated a veterans' home as an "alms house." But Wasden read Hawkins narrowly: it concerned a divorce statute, not voting, and a voluntary off-base resident, not an involuntarily committed patient. So Hawkins did not displace Article VI, section 5's residency rule for asylums.

Common questions

Q: Could a committed patient still vote in their pre-commitment county?
A: The opinion implies yes. The patient retains their pre-commitment residency and could vote there by absentee ballot, subject to the regular registration rules.

Q: What if the patient genuinely moved their life to the new county before being committed?
A: The opinion left room for this. If the patient had already established residence in the facility's county on independent grounds (a job, family there, a permanent home), the commitment doesn't strip that residence. The rule in § 66-325 prevents the facility time from creating residence; it doesn't undo residence already established.

Q: Did this opinion apply to voluntary patients?
A: The question presented was about involuntary commitment under § 66-317 et seq., and § 66-325 expressly speaks to time in any "facility" under that chapter. A voluntary patient analysis would still need to apply the § 34-107 residency factors, but the historical reasoning here turned on the involuntary nature of the placement.

Q: How did this affect facility administrators?
A: At the time of this opinion, it confirmed they did not need to set up voter registration drives for committed patients in the host county. Patients wishing to vote would do so by absentee ballot in their home county.

Citations and references

Statutes:
- Idaho Constitution, Article VI, sections 2, 4, and 5
- Idaho Code § 34-104 (qualified elector)
- Idaho Code § 34-107 (residence defined)
- Idaho Code §§ 66-317 et seq. (involuntary commitment)
- Idaho Code § 66-325 (residence not affected by place of treatment)

Cases:
- Hawkins v. Winstead, 65 Idaho 12, 138 P. 972 (1943) (Idaho Supreme Court)
- Powell v. Spackman, 7 Idaho 692, 65 P. 503 (1901) (Idaho Supreme Court)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion14-1.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

ATTORNEY GENERAL OPINION 14-1
To:

Zachary Pall
Lewis County Prosecuting Attorney
510 Oak Street, Suite #2
Nez Perce, ID 83543
Per Request for Attorney General's Opinion

QUESTION PRESENTED
Are individuals under commitment to the Depaitment of Health and Welfare pursuant to
Idaho Code §§ 66-317, et seq., entitled to register as voters in the counties where they have been
dispositioned, assuming they have remained in the county for at least thirty days?

CONCLUSION
Individuals who have been committed as involuntary patients pursuant to Idaho Code §§ 66317, et seq. , to a facility located in a county other than their county of residence before commitment
do not become eligible to register to vote in the county of their commitment solely on the basis of
their commitment to such a facility in the county.

ANALYSIS
This formal opinion addresses the county in which a person committed to a facility for
treatment of the mentally ill may register to vote and/or vote while committed to such a facility.
The terms "facility," "mentally ill" and "involuntary patient" are defined in Idaho Code section 66317 and take their meaning from that section. This analysis assumes that the Question Presented
addresses individuals:
(1)
(2)
(3)

who (a) were or have become qualified electors registered to vote, or (b) were or
have become eligible to become qualified electors registered to vote,
in the county in which they were resident at the time that they were committed to
another county to a facility defined in Idaho Code section 66-317 and
there was or is no intervening. event that prevents them from (a) continuing to be
qualified electors registered to vote in Idaho, or (b) from becoming qualified electors
registered to vote in Idaho,

P.O. Box 83720, Boise, Idaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 210

(4)

since they are committed to such a facility.

In other words, this analysis assumes that the individual at issue was eligible to vote or
eligible to register to vote somewhere in Idaho, but not in the county in which the facility is located.
The starting point in this analysis is the Idaho Constitution.
•

•

•

Art. VI, sec. 2, provides that every citizen of the United States who is 18 years old
"who has resided in this state and in the county where he or she offers to vote for the
period of time provided by law, if registered as provided by law, is a qualified
elector."
Art. VI, sec. 5, provides that, "For the purpose of voting, no person shall be deemed
to have gained or lost a residence by reason of his presence or absence ... while kept
at any alms house or other asylum 1 at the public expense."
Art. VI, sec. 4, provides that the legislature "may prescribe qualifications,
limitations, and conditions for the right of suffrage, additional to those prescribe[d]
in this article, but shall never annul any of the provisions in this article contained."

Taking these three sections together, sec. 2 establishes that a citizen's residence in the state
and a county create a right to register to vote in that county and to vote if registered; sec. 5 provides
that a person is not deemed to gain or lose residence while kept in an asylum at public expense; and
sec. 4 allows the legislature to prescribe additional qualifications, limitations and conditions for
voting that do not annul these provisions. The plain language of these sections of Art. VI of the
Idaho Constitution leads to the conclusion that commitment to mental health facilities does not by
itself change one's residence to the county in which the facility is located.
Statutes reinforce these constitutional provisions. Idaho Code § 34-104 provides a general
rule that defines a "qualified elector" as a citizen 18 years or more of age "who has resided in this
state and in the county at least thirty (30) days next preceding the election at which he desires to
vote, and who is registered as required by law." Idaho Code § 34-107 defines "residence" for
voting purposes as the principal or primary home or abode to which even an absent person intends
to return:
34-107. "Residence" defined. - (1) "Residence," for voting purposes, shall
be the principal or primary home or place of abode of a person. Principal or primary
home or place of abode is that home or place in which his habitation is fixed and to
which a person, whenever he is absent, has the present intention of returning after a
departure or absence therefrom, regardless of the duration of absence.
(2) In determining what is a principal or primary place of abode of a person
the following circumstances relating to such person may be taken into account:
business pursuits, employment, income sources, residence for income or other tax
pursuits, residence of parents, spouse, and children, if any, leaseholds, situs of
1

As used in the Constitution of 1889, asylum probably had a meaning that dictionary.reference.dot now describes as
dated: "obsolete an institution for the shelter, treatment, or confinement of individuals, esp. a mental hospital (formerly
termed lunatic asylum)." See http://dictionary.reference.com/browse/asylum?s=t. See also Webster's Ninth New Collegiate
Dictionary, "4: an institution for the relief or care of the destitute or afflicted and esp. the insane," p. 111 (1983). The facilities
defined in Idaho Code § 66-317 would thus be included in what art. VI, sec. 5 calls an asylum.

personal and real property, situs of residence for which the exemption in section 63602G, Idaho Code, is filed, and motor vehicle registration.
(3) A qualified elector who has left his home and gone into another state or
territory or county of this state for a temporary purpose only shall not be considered
to have lost his residence.
(4) A qualified elector shall not be considered to have gained a residence in
any county or city of this state into which he comes for temporary purposes only,
without the intention of making it his home but with the intention of leaving it when
he has accomplished the purpose that brought him there.
(5) If a qualified elector moves to another state, or to any of the other territories, with the intention of making it his permanent home, he shall be considered
to have lost his residence in this state.
Subsections (1), (2) and (4) strongly suggest that a person involuntarily committed to a
facility does not meet the criteria for residency in the facility's county.
•

•

Under subsection (1 ), it is doubtful that a place of involuntary commitment will
become "the principal or primary home or place of abode . . . to which [an
involuntarily committed] person . . . has the present intention of returning after a
departure or absence" by reason of the commitment.
Under subsection (2), it is doubtful that an involuntarily committed person has
changed his or her "business pursuits, employment, income sources, residence for
income or other tax pursuits, residence of parents, spouse, and children, if any,
leaseholds, situs of personal and real property, situs of residence for which [a
homestead exemption] is filed, and motor vehicle registration" by reason of the
commitment. 2

2
The Idaho Secretary of State's office has many publications that provide useful information for assessing residency
or domicile for purposes of voter registration. Although these publications do not have the force and effect of law, they
provide practical guidance on determining voting residency. The publication, "Students and Voting" poses many questions
that are also relevant for persons committed to a facility:
Some of the factors which may be relevant in determining whether domicile has been established for voting
purposes by a student, as well as any other applicant, are as follows:
(1) Has the applicant registered to vote elsewhere?
(2) If married, where does his or her spouse reside?
(3) Where does the applicant keep his personal property?
(4) Does the applicant have any community ties to the locale he claims as his domicile-membership in
church, social or service clubs, etc?
(5) Where does the applicant maintain his checking and saving accounts, if any?
(6) Where does the applicant pay taxes, and what address did he list as his residence on his last income tax
return?
(7) What is the residence listed on the applicant's driver's license?
(8) If the applicant owns an automobile, where is it registered?
(9) If the applicant is employed, where is his job located?
(10) Does the applicant live year round at his claimed domicile, or does he divide it elsewhere? If it is
divided, how much time is spent elsewhere and for what reason?
( 11) What residence does the applicant list on his selective service registration, hunting or fishing licenses,
insurance policies, or other official papers and documents which required a statement of residence or
address?
http://www.idahovotes.govNoterReg/Students Voting%20Residency.htm (visited Feb. 24, 2014). Except in very unusual
cases, the answers to these questions would not point to establishment of residency for voting purposes in the county of the
facility.

•

Under subsection (4), it is also likely that a committed person has gone to a facility "for
temporary purposes only, without the intention of making it his home but with the intention
of leaving it when he has accomplished the purpose that brought him there."

If these subsections were not sufficient to show that involuntary commitment is unlikely to
lead to a change in residency for voting, section 66-325 of the title and chapter of the Idaho Code on
hospitalization of the mentally ill lays the issue to rest:

66-325. Residence not affected by place of treatment. - For purposes of
this chapter, the terms "residence," "residing," or "resides" shall refer to the place
where the mentally ill person lives. None of the time spent in any facility shall be
regarded as contributing toward, or acquiring, residence for any purpose.
From these statutes, I conclude that involuntarily committed residents of facilities described
in Idaho Code section 66-317 do not acquire the right to register to vote in the county in which the
facility is located simply by spending 30 days at the facility.
That does not mean there could never be circumstances unrelated to the involuntary
commitment that might give such a person the right to vote in the county of the facility. For
example, using the criteria of Idaho Code § 34-107(2), if an involuntarily committed person was
living with a family and intended to return to that family and the family moved to the county of the
facility, found jobs in that county, bought a home in that county, and changed the site of their motor
carrier registration to that county, it is likely that the involuntarily committed person's family had
established sufficient ties to the community that the involuntarily committed person could "piggy
back" upon the family's relocation and register as a voter in the county. But that ability to change
the county of voter registration would be not based upon a period of commitment to a facility within
the county, but upon other factors unrelated to the commitment.
Lastly, this opinion addresses the case of Hawkins v. Winstead, 65 Idaho 12, 138 P. 972
(1943), which construed art. VI, sec. 5, in particular the following portions of that section: "For the
purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his
presence or absence while employed in the service ... of the United States ... ". Hawkins was not
a voting rights case; it presented the question of whether a person serving in the armed forces and
assigned to a base near Boise could acquire residence in Ada County for purposes of filing for
divorce. The Idaho Supreme Court observed that this constitutional provision for voting residence
did not control residency for purposes of divorce. 65 Idaho at 15, 138 P. at 973. Hawkins then held
that the soldier, who had received permission to live off-base in Boise and who in fact lived offbase, had established residency for purposes of the divorce statutes.
Although Hawkins was a divorce case, nevertheless, it overruled Powell v. Spackman, 7
Idaho 692, 65 P. 503 (1901), which held that a veteran's home was an alms house for purposes of
voting residence under art. VI, sec. 5: "[Powell] was wrong in that it placed veterans living at the
Soldiers' Home on a level with paupers living in an alms house. Such veterans were not, and the
veterans now living at the Soldiers' Home, are not, paupers, and we refuse to brand them as such."
65 Idaho at 18, 138 P. at 974.

Whatever else can be said about Hawkins, it is not case law that a person can become a
resident of a county simply by being involuntarily committed to a mental health facility in the
county. Hawkins did not address the effect of involuntary commitment to an asylum on voting
residence; it addressed whether a soldier's home was an alms house. Hawkins is not authority that
art. VI, sec. 5, does not continue to apply for those committed to "asylums" (using art. VI's nineteenth century language) or "facilities" (using Idaho Code § 66-317' s twenty-first century
language).
For all of these reasons, I conclude that individuals who have been committed as involuntary
patients pursuant to Idaho Code §§ 66-317, et seq., to a facility located in a county other than their
county of residence before commitment do not become eligible to register to vote in the county of
their commitment solely on the basis of being in the county during their term of commitment.

Dated this

a.I day of March, 2014. '

Attorney General
Analysis by:
MICHAEL S. GILMORE
Deputy Attorney General