President Donald Trump has long railed against voter fraud. Shortly after the 2016 election, he tweeted that he “won the popular vote if you deduct the millions of people who voted illegally.” Trump created an entire commission, dissolved less than a year later, to justify the claim. And now, as the country gears up for the 2020 election in the midst of a pandemic, Trump claims mail-in voting is riddled with fraud.
On October 31, 2019, President Trump, a lifelong resident of New York, took to Twitter to tell us that he was making Palm Beach, Fla., his and his family’s permanent residence. A month before, he signed a Declaration of Domicile. In this document, Trump declared that his place of abode and permanent home was his private club Mar-a-Lago in Palm Beach and that he intended to continue permanent residency there. He described his condo in Trump Tower, New York City, as his former residence. The president had the declaration notarized and filed it in our county’s official records.
According to HuffPost, the president has made twenty-eight visits to what he calls “the Winter White House” since becoming president. Mar-a-Lago’s website advertises that, following his purchase of the estate in 1985, “the Trump family has spent many weekends and holidays at their home away from home.” The website also says that, when Trump “founded the club in 1995, he kept private quarters” there. Media have reported that the Trump family still does.
A few weeks after filing the Declaration of Domicile, Trump registered as a voter in Palm Beach County. He listed Mar-a-Lago as his legal residence. This year, the president voted by absentee ballot in Florida’s Republican presidential primary.
But is Mar-a-Lago really the president’s legal residence? The facts available to us, including those unearthed in a recent article in the Washington Post, raise questions about that—and the legality of the president’s voter registration.
Legal Background
Article VI, section 2, of the Florida Constitution says: “Every citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state, if registered as provided by law, shall be an elector of the county where registered.”
The Supreme Court of Florida discussed the meaning of permanent, or legal, residence in Bloomfield v. City of Petersburg Beach (1955). Quoting another case, the court said that a legal residence “means a residence at a particular place, accompanied with positive or presumptive proof with an intention to remain there for an unlimited time.” The court addressed the rules for establishing legal residence:
We recognize the rule announced in the landmark case of Smith v. Croom [1857], 7 Fla. 81, where it was stated: “The mere intention to acquire a new domicil without the fact of an actual removal avails nothing; neither does the fact of removal without the intention.” Applying the rule in converse, however, we have consistently held that where a good faith intention is coupled with an actual removal evidenced by positive overt acts, then the change of residence is accomplished and becomes effective. This is so because legal residence consists of the concurrence of both fact and intention. The bona fides of the intention is a highly significant factor.
Later in the opinion, the court wrote, “We also hold that establishment of one’s residence will usually depend on a variety of acts or declarations all of which must be weighed in the particular case as evidence would be weighed upon any other subject.” This is a “totality of the circumstances” approach.
The Fourth District Court of Appeal has a more recent discussion of legal residence in Miller v. Gross (2000), which the Supreme Court later overruled but on a different ground.
Intention
The president announced his intention to make Palm Beach County his permanent residence. Trump implied in his October 31, 2019, tweet that the switch was over taxes. A source confirmed that to the New York Times. Given that and the fact the president clearly likes being in Palm Beach, his intent to make Mar-a-Lago his permanent residence sounds bona fide.
Fact
What about “actual removal”? Is there a concurrence of both fact and intention?
There is a dearth of case law on this point. The best opinions are nonbinding ones from the Florida Department of State, Division of Elections, and the Attorney General of Florida. (The Post interviewed a Florida election lawyer who summarized residency law but did not offer an opinion on Trump’s registration.)
In a 1978 DOE opinion, it said the facts supporting intent “may be voter registration, drivers license, tax receipts, receipt of mail, carrying on of activities normally indicative of home life, etc.” The division cited an AG opinion that described such activities as “sleeping, eating, etc.” And the division cited another AG opinion which says that a “Declaration of Domicile form … may not be used as positive proof of residence.”
So Trump’s Declaration of Domicile is evidence, but it’s not dispositive. It seems illogical that Trump should be able to use his voter registration to establish legal residence. The last driver’s license we saw was issued by New York State; it expires next month. We don’t know whether the president applied for a Florida driver’s license using Mar-a-Lago’s address. Nor do we know if the president has registered a vehicle there. The president doesn’t pay property tax on Mar-a-Lago, which he doesn’t personally own. Instead, the estate is owned by Mar-a-Lago Club Inc. He appears to be listed as the owner of a small vacant lot next to the estate. Mar-a-Lago is the mailing address for tax purposes. The president maintains private quarters at the estate; he sleeps and eats at Mar-a-Lago when he is there.
Considering this, the evidence of Trump’s actual residence at Mar-a-Lago is mixed at best. But the facts reported in the recent Washington Post article could tip the scales against the president.
The Post reported on an agreement, “Declaration of Use Agreement,” that Trump entered into with the Town of Palm Beach in 1993 when it allowed him to convert Mar-a-Lago from a private residence into a club. Trump signed the agreement in his personal capacity and as president of the club. It provided no one would permanently live at Mar-a-Lago by placing restrictions on how much time members could use the guest rooms (see Article II). At the time, Trump’s lawyer also told the town that Trump would not live at the club. In a reference guide, the Division of Elections explains that a business address cannot be a legal residence, but it cited a trial court decision and said: “[A]lthough not the rule, if the person is able to prove residence there despite the zoning ordinance, a fact-finding body could determine that the business address is the person’s legal residential address.” Yet here, Trump explicitly said no one—not even he—would permanently live at Mar-a-Lago.
What about the fact that Trump is the president? He must live in Washington, D.C., to do that job. It’s true a voter doesn’t lose his legal residence in Florida when service in public office requires him to live elsewhere temporarily, as the Florida Supreme Court held in 1879. In that case, however, the voter’s legal residence already was in Florida. The Supreme Court made a relevant observation in Bloomfield: “We hold further that if a man actually becomes a bona fide resident of this state and intends to remain permanently a citizen of the state, mere absence with the specific clear-cut bona fide intention of returning will not destroy the residence actually theretofore established.” (Emphasis added.)
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Under Florida Statutes § 98.075(7), if the Palm Beach County Supervisor of Elections “receives notice or information” that Trump is an ineligible voter, she “shall” mail him a notification of potential ineligibility within seven days. The president would then have thirty days to respond. If he denied the accuracy of the information, he would have a right to request a hearing—which he would be required to attend—or to waive a hearing. Either way the supervisor would determine eligibility “based on a preponderance of the evidence” before her. If she found Trump ineligible, he could appeal the finding to a judge under another statute.
Looking at the available facts, and acknowledging the law here is unclear, it doesn’t seem like the president has changed his legal residence to Mar-a-Lago. He has a good-faith intent, but the evidence of “actual removal evidenced by positive overt acts” is thin. While he maintains private quarters at Mar-a-Lago, a person can have more than one residence. And the president explicitly agreed no one would ever permanently live at the estate. Still, it’s unlikely President Trump’s voter registration would be found unlawful. The authorities probably would defer to Trump’s subjective intent to make Mar-a-Lago his permanent residence. But given his belief in widespread voter fraud, perhaps the president should welcome scrutiny of his voter registration.