Could a homeless person register to vote in Maryland in the 1980s without a conventional home address?

Plain-English summary

The Administrator of Maryland's State Administrative Board of Election Laws asked under what circumstances a person who did not live in any dwelling could register to vote, anticipating that advocates might press for homeless voter registration as had already happened in Washington, D.C. The opinion concluded that a homeless person could register if they presented satisfactory evidence that they presently maintained a fixed domicile, even an unconventional one such as a regularly occupied spot outside a building, and specified a mailing address. Drawing on Court of Appeals case law, the opinion explained that Maryland's constitutional residency requirement turns on maintaining a "fixed, present domicile," not on occupying a conventional house or apartment, and that the requirement's purposes, deterring fraud and ensuring a real community connection, are equally served by a genuinely fixed outdoor or shelter residence. The opinion also concluded that the Election Code's mailing-address requirement did not have to match the residence address, since many people, including some in conventional housing, pick up mail somewhere other than where they live, and registrars could require additional evidence, such as corroborating affidavits, to guard against fraudulent claims of residency.

Currency note

This opinion was issued in 1984. 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.

Common questions

Could a homeless person register to vote in Maryland in the 1980s without a conventional home address?
According to this 1984 opinion, yes, if the person presented satisfactory evidence that they presently maintained a fixed domicile, even without a conventional dwelling, and specified a regular mailing address.

Did Maryland's Constitution require voters to live in a house or apartment?
The opinion concluded it did not. It explained that residency under Article I, §1 of the Maryland Constitution means having "a place of fixed, present domicile," and that Court of Appeals precedent going back nearly a century recognized that people without dwelling places were not meant to be denied the right to vote.

Did a homeless voter have to provide a mailing address matching their residence?
The opinion concluded that the Election Code did not require the mailing address and residence to be identical, since the mailing-address requirement existed to let election officials communicate with and verify voters, purposes a nonresidential mailing address, such as a shelter where the person regularly picked up mail, could also serve.

Background and statutory framework

Article 7 of the Maryland Declaration of Rights and Article I, §1 of the Maryland Constitution set the qualifications for voting, including residency in the state and election district, while Article I, §2 directs the General Assembly to establish voter registration procedures. The opinion relied on a line of Court of Appeals decisions defining "residence" as a place of fixed, present domicile regardless of its physical form, and on Election Code provisions, Article 33, §§3-6, 3-8(a)(3), 3-9, 3-12(a), 3-13(b), 3-16(c), and 3-24, governing registration procedures, residency verification, and mailing addresses, construing them to avoid imposing an unconstitutional additional voting qualification of conventional housing.

Citations

Statutes:

• Article 7 of the Maryland Declaration of Rights (right of suffrage)
• Article I, §1 of the Maryland Constitution (voter residency qualification)
• Article I, §2 of the Maryland Constitution (directs the General Assembly to provide for voter registration)
• Article 33, §3-4(b)(3) and (4) of the Maryland Code (residency requirement)
• Article 33, §§3-6 and 3-13(b) of the Maryland Code (registrar authority to question voters about qualifications)
• Article 33, §§3-8(a)(3), 3-9, 3-12(a), and 3-16(c) of the Maryland Code (mailing address requirements)
• Article 33, §§3-24(a) and (b) of the Maryland Code ("change of residence cards")
• Article 33, §11-1(d) of the Maryland Code (mail addressed to the residence)
• Article 33, §15-5 of the Maryland Code (residence number requirement)
• Article 33, §3-18(a)(5) of the Maryland Code (assumption that residences are in buildings)
• Article 33, §24-1(c), (d), and (e) of the Maryland Code (penalties for false registration)
• Article 27, §577A(1) of the Maryland Code (criminal offense of refusing to leave public buildings or grounds)
• COMAR 14.02.02.06 (mailing address verification procedure)

Cases:

• Gallagher v. Board of Supervisors of Elections, 219 Md. 192, 207 (1959) (residence means a place of fixed, present domicile)
• Bainum v. Kalen, 272 Md. 490, 497 (1974) (domicile is the place a person intends it to be)
• Shaeffer v. Gilbert, 73 Md. 66, 70-71 (1890) (purposes of the residency requirement: guarding against fraud and ensuring community membership)
• Howard v. Skinner, 87 Md. 556 (1898) (residence must be fixed)
• Langhammer v. Munter, 80 Md. 518, 526 (1895) (people without dwelling places were not meant to be denied the franchise)
• Southerland v. Norris, 74 Md. 326, 328 (1891) (the legislature cannot enlarge or curtail constitutional voting qualifications but may set evidentiary rules)
• Plyler v. Doe, 457 U.S. 202 (1982) (cited on distinguishing illegal presence from other status-based limits)
• Harper v. Virginia Board of Elections, 383 U.S. 663, 666 (1966) (making voter affluence an electoral standard is unconstitutional)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Elections-Registration Requirement-A Homeless Person May Register To Vote If The Person Maintains A Fixed Domicile And Specifies A Mailing Address.

September 4, 1984

Mr. Willard A. Morris, Administrator
State Administrative Board of Election Laws

You have requested our opinion regarding "voter registration by the homeless". Specifically, you ask about the circumstances, if any, under which a person who does not reside in any dwelling may register to vote.

For the reasons stated below, we conclude that a homeless person may register to vote if (i) the person presents satisfactory evidence that he or she presently maintains a fixed domicile, albeit not necessarily in a house or other dwelling; and (ii) the person specifies his or her regular mailing address.

I
Background

An unknown number of Maryland citizens do not live in houses, apartments, or other conventional dwelling places. Of these, some occupy shelters provided by religious and other charitable groups.1 Others, though, live in some fashion "on the street".

In Washington, D.C., advocates on behalf of the "street people" there successfully pressed the D.C. Board of Elections and Ethics to allow the registration of certain of the homeless.2 You anticipate that a similar effort may be made on behalf of Maryland's homeless.

II
Residency Requirement

Article 7 of the Maryland Declaration of Rights provides that "every citizen having the qualifications prescribed by the Constitution, ought to have the right of suffrage". The "qualifications prescribed by the Constitution" are contained in Article I, §1 as follows:

"Every citizen of the United States, of the age of 18 years or upwards, who is a resident of the State as of the time for the closing of registration next preceding the election, shall be entitled to vote in the ward or election district in which he resides at all elections to be held in this State. A person once entitled to vote in any election district, shall be entitled to vote there until he shall have acquired a residence in another election district or ward in this State."

See also Article 33, §3-4(b)(3) and (4) of the Maryland Code.

Although the meaning of "resident" and "residence", for purposes of this provision and of analogous residency requirements, has been the subject of much litigation and several Opinions of the Attorney General, the essence is clear: residence means "a place of fixed, present domicile". Gallagher v. Board of Supervisors of Elections, 219 Md. 192, 207 (1959). "One's domicile, generally, is that place where he intends it to be." Bainum v. Kalen, 272 Md. 490, 497 (1974). See generally 69 Opinions of the Attorney General 238 (1984); 56 Opinions of the Attorney General 189 (1971).

The constitutional residency requirement serves two purposes: to "identif[y] the voter ... as a protection against fraud"; and to assure that the voter "should become in fact a member of the community, and as such have a common interest in all matters pertaining to its government". Shaeffer v. Gilbert, 73 Md. 66, 70-71 (1890).

III
"Homeless" Domicile

Questions of residency usually involve a controversy over which of two conventional places of abode was really a person's true, legal residence. See, e.g., Bainum v. Kalen (whether a candidate had abandoned his Maryland residence for residence in Michigan during a particular time period); Gallagher v. Board of Supervisors of Elections (whether a candidate for mayor had abandoned his Baltimore City residence for residence in Anne Arundel County during the period of his governorship); Shaeffer v. Gilbert (whether a student from Harford County had acquired a domicile in Baltimore City while attending college there); 69 Opinions of the Attorney General 238 (whether the Mayor of Berlin, Worcester County, was a resident of that town or of Salisbury, where his wife resided). Cf. Howard v. Skinner, 87 Md. 556 (1898) (whether a seaman from St. Mary's County acquired a domicile in Baltimore City as a consequence of his sleeping on board a ship that docked frequently in the City). Not surprisingly, then, many of the factors bearing on domicile are couched in terms of property ownership and other financial aspects of residency in a dwelling. See generally 69 Opinions of the Attorney General 238.

But there is no intrinsic reason why a person may not maintain a "fixed, present domicile" in a place without a conventional dwelling. To take but one example: if a man actually lived in the shell of an abandoned car on a vacant lot, kept his personal belongings there, and regularly returned there at night, that car is his residence.

Indeed, such a residence, however unconventional it may be, satisfies the purposes of the constitutional residency requirement, as explained by the Court of Appeals. It deters fraud by linking the person to a particular locale, and a person who really does maintain a fixed domicile in an out-of-doors location is as much "a member of the community" as the citizens of the community who are fortunate enough to have housing.3

Nearly 90 years ago, the Court of Appeals ascribed to the drafters of Article I, §1 the knowledge "that number of citizens, through misfortune or otherwise, were without dwelling places, but there is no evidence to be found in any part of the Constitution that these were to be denied the privilege of the elective franchise". Langhammer v. Munter, 80 Md. 518, 526 (1895). So it is today.4

IV
Registration Requirements

The constitutional qualifications for voting discussed above "can neither be enlarged nor curtailed by the General Assembly". Southerland v. Norris, 74 Md. 326, 328 (1891). However:

"[T]here is no provision of the Constitution, as there is no principle of constitutional law, that denies to the Legislature the power to enact rules of evidence by which the facts establishing the right to vote may be proved. The Constitution itself merely designates the qualifications, and then leaves the Legislature free to declare by what evidence those qualifications must be shown to exist." Id.

Indeed, the General Assembly is instructed by the Constitution to "provide by law for a uniform Registration of the names of all the voters in this State, which ... shall be conclusive evidence ... of the right of every person, thus registered, to vote at any election". Article I, §2. Thus, even an otherwise qualified voter who fails to follow the registration procedures set out in the Election Code is not entitled to vote.

Under the Code, officers of registration are entitled to pose to a voter appropriate questions about his or her qualifications, including residence. Article 33, §§3-6 and 3-13(b). So, if a person claims residence in some location without a dwelling, the registrars would have the authority to obtain from that person concrete evidence of such residence. For example, the homeless who were accepted for registration in the District of Columbia submitted not only their own affidavits but also that of a regular visitor to their unconventional domiciles. Evidence of this kind is an important safeguard against potential fraud.

In addition, the Election Code requires that a voter supply a mailing address. Article 33, §§3-8(a)(3), 3-9, 3-12(a), and 3-16(c). Several other provisions reflect the assumption that the mailing address and the place of residence are identical, as, indeed, they are for the vast majority of voters. See Article 33, §§3-24(a) and (b) ("change of residence cards"), 11-1(d) ("addressed to the residence"), and 15-5 ("number of his residence").5

But we find no requirement in the Code that they be identical. Voters must provide mailing addresses so that the local board can use the mails to communicate and to verify continued residence. See COMAR 14.02.02.06. These purposes are substantially served by a nonresidential address as well.6 Indeed, even currently registered voters who maintain perfectly conventional domiciles might not enjoy residential mail delivery; it is inconceivable that, because a town's qualified voters are obliged to pick up their mail at the post office, they could be denied the right to vote. The Code requirement that a mailing address be provided cannot reasonably be applied in so draconian a fashion, whether to voters in this example, to the homeless, or to anyone else.

Moreover, one must construe the Code whenever possible to avoid constitutional problems. If the Code required a residential address, it would effectively be imposing an additional qualification for voting: occupancy of a dwelling with mail service. But, as explained in Part III above, the Constitution does not require that particular form of residence; and the General Assembly may not "enlarg[e]" upon constitutional qualifications. Southerland v. Norris, 74 Md. at 328. Rather:

"[I]t [is] for the Legislature to devise and enact... provisions to accomplish the most desirable object of securing absolutely pure elections. But whatever may be done, no restrictions can be imposed that will reguire other or different qualifications for voting, than those prescribed by the first Article of the Constitution of the State." Langhammer v. Munter, 80 Md. at 527.

We conclude that a homeless citizen must provide a mailing address as a prerequisite to registration. However, the address of an institution at which the voter regularly picks up mail would suffice.7

V
Conclusion

For the reasons stated above, it is our opinion that a person who is otherwise qualified to vote is entitled to register, notwithstanding the fact that the person is homeless, if (i) the person presents satisfactory evidence that he or she presently maintains a fixed domicile, and (ii) the person specifies his or her mailing address.8

Stephen H. Sachs, Attorney General

Jack Schwartz
Assistant Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because of the significance of the issue, it is published here in a slightly revised format.

1 There is no question that a person who in fact resides in a shelter may cite that shelter as his or her residence and mailing address for voter registration purposes. As we understand it, local boards have long permitted such registration.

2 The D.C. Board's decision is substantially similar to our conclusion about Maryland law.

3 We do not address the situation in which a person claims residence in a place where continued occupancy is a criminal offense. See, e.g., Article 27 §577A(1) (refusing to leave public buildings or grounds after closing). At a minimum, purported occupancy of a place in violation of State law or a local ordinance raises the issue of whether a true domicile exists. Moreover, there is some question whether an illegal residence can ever give rise to a legal right like voting. Cf. Plyler v. Doe, 457 U.S. 202 (1982) (distinguishing between "those whose very presence within the United States is the product of their own illegal conduct" and the children of illegal aliens, for purposes of access to public education). This problem is best considered only if and when a specific registration application raises it.

4 Langhammer held that even a person who wandered from place to place within a particular election district, "declin[ing] to fix himself upon some particular spot", was properly registrable as a resident of that district. We read later cases, however, as requiring that a residence be "fixed". See, e.g., Gallagher v. Board of Supervisors of Elections, 219 Md. 192 (1959); Howard v. Skinner, 87 Md. 556 (1898).

5 The Code also reflects the common experience that most people maintain their residences in buildings. See Article 33, §3-18(a)(5).

6 We recognize that the separation of mailing address from residence reduces the value of a mailing as a verification tool. That is, if a local board sends nonforwardable mail to a residential address and the mail is returned by the post office as undeliverable, the board learns that the voter has changed residences. But a voter who has a nonresidential mailing address can change residence and yet still pick up mail at the same location.

However, given other verification methods (e.g., Article 33, §3-24(b)) and given the severe penalty for false registration (Article 33, §24-1(c), (d), and (e)), we do not believe that the General Assembly intended to disenfranchise all voters whose mailing address is at a place other than their residences.

7 A mailing address outside the ward or election district of the purported residence would be a factor warranting special inquiry into the bona fides of the residence.

8 Given this result, we need not consider whether a contrary construction of the Maryland Constitution or Election Code would violate the U.S. Constitution. See generally Harper v. Virginia Board of Elections, 383 U.S. 663, 666 (1966) ("mak[ing] the affluence of the voter ... an electoral standard" is unconstitutional).