One question GOP candidate for Missouri auditor faces: Is she even eligible to run?

Saundra McDowell won a four-way primary for the Republican nomination for state auditor.
Saundra McDowell won a four-way primary for the Republican nomination for state auditor. Campaign photo

Saundra McDowell pulled off a surprise victory last week in the four-way Republican primary for state auditor, besting opponents with more money and years in elected office.

She’s set to take on Auditor Nicole Galloway, a Democrat, in the Nov. 6 general election.

But now McDowell faces questions about whether she’s even eligible to run. She’s also the subject of behind-the-scenes grumblings by Republicans, who worry that red flags in her past weren’t vetted during the primary and could undercut the party’s chances of ousting Galloway this fall.

A native of Oklahoma, McDowell didn’t move to Missouri until 2010. According to Missouri’s Constitution, the auditor must have been a resident of the state for 10 years at the time of the election.

McDowell, an attorney who lives in Jefferson City, didn’t respond to requests for comments by The Star, either before or after last Tuesday’s primary.

But she discussed the issue of her residency in February with the Columbia Tribune, telling the newspaper that she intended to be a Missouri resident before Nov. 6, 2008.

She met her husband, a St. Louis native, while they were attending Regent University Law School in Virginia. She says they decided before they were married that they would move to Missouri after graduation. They married in February 2009 and moved to Missouri the next year.

“The intent requirement is very important,” McDowell told The Tribune. “While I was in law school I was in temporary status.”

She released a statement through the state Republican Party last week saying that she and her husband “established intent for residency more than 10 years ago, and any attempts to mischaracterize that as inadequate are ridiculous.”

Legal scholars differ on whether her interpretation is correct.

McDowell’s argument hinges on a 1972 Missouri Supreme Court case over whether Kit Bond could run for governor after living outside the state for nearly a decade.

Bond grew up in Mexico, Mo., and maintained his Missouri voter registration while he lived out of state. The court ultimately deemed him qualified to run.

Michael Wolff, a retired judge of the Missouri Supreme Court and former dean of St. Louis University Law School, said that in the Bond case the court equated the concept of residency with domicile, “which is a legal term that includes an intent that the state be one’s permanent home.”

Thus, Wolff said, McDowell has “at least a plausible case that she meets the residency requirement.”

“Though factually different,” he said, “the Bond case shows that courts will stretch to not exclude a candidate who has a clear connection to the state.”

Frank Bowman, a professor at the University of Missouri School of Law, disagrees. Someone can’t be a resident of a place where they’ve never actually lived, he said.

“An intention to go live there may make someone a prospective resident, but not an actual one,” Bowman said. “Otherwise, I could declare myself a resident of Hawaii simply based on my as yet unrealized hope that I will someday retire amongst the palms.”

The constitutional provision in question, Bowman said, is plainly aimed at ensuring that a candidate has a 10-year period of physical connection to and association with Missouri.

“McDowell didn’t have physical presence in Missouri until 2010,” he said. “I think she doesn’t qualify.”

If nothing else, Wolff said, the court may be inclined to side with McDowell to avoid having to address whether the residency requirement violates the U.S. Constitution’s equal protection clause.

A 1978 decision by the 8th U.S. Circuit Court of Appeals found the residency requirement for state auditor unconstitutional.

That precedent hasn’t been overturned, Wolff said, but he isn’t sure whether it would be binding.

Thirteen years later the U.S. Supreme Court upheld a provision requiring Missouri judges retire at age 70, ruling that the state’s sovereign interest in its judiciary, expressed in the Missouri constitution, trumps federal age discrimination law.

“The question here is whether Missouri’s interest as a sovereign in its 10-year durational requirement for governor and auditor, expressed in the state constitution, should be subject to the same analysis,” Wolff said.

David Roland, director of litigation with the Freedom Center of Missouri, said the 1978 ruling is definitely binding and the residency requirement is therefore unconstitutional as applied to the office of state auditor.

Someone could argue the decision should be reversed, Roland said, but he he doesn’t believe they would succeed.

“No power exercised by a state or its people is valid if it contravenes the Equal Protection Clause of the Fourteenth Amendment,” he said.

Another candidate for auditor on the fall ballot would have to challenge McDowell’s residency within five days of the election being officially certified on Aug. 28. Any changes to the ballot must be finalized six weeks before the election, which is Sept. 25.

Another candidate on the November ballot would have to file a legal challenge to McDowell’s residency.

Behind the scenes, Republican insiders are concerned that the residency issue might not be the only thing that could cause problems for McDowell.

She raised only $17,000 for her campaign, while taking on more than $20,000 in debt. She currently reports having $3,100 cash on hand, compared to $1.1 million for Galloway.

And just days after McDowell’s victory, Galloway unleashed a blistering attack targeting a series of legal judgments against McDowell related to unpaid debt. McDowell has dismissed Galloway’s criticisms, saying the race “should be about the issues, not personal attacks.”

The race for auditor typically doesn’t draw a lot of attention. In 2014, Democrats didn’t even field a candidate.

But the stakes of this year’s campaign were raised when the Clean Missouri initiative petition collected enough signatures to appear on the November ballot.

In addition to banning lobbyist gifts to lawmakers and making legislative records subject to the state’s Sunshine Law, the measure also would change the process of legislative redistricting.

The proposal would amend the state Constitution to create a new position of state demographer to draw the new legislative districts.

The auditor would choose three candidates to serve as the demographer, and the legislature would make the final decision about which of the three gets the job.

McDowell served eight years in the Air Force before working as an assistant attorney general under former Democratic Attorney General Chris Koster. More recently, she worked in the securities division for Republican Secretary of State Jay Ashcroft.

Galloway was elected Boone County treasurer in 2011 and served until 2014, when she was appointed auditor by former Gov. Jay Nixon after the death of Tom Schweich. She is a certified public accountant who previously worked as a corporate auditor at Shelter Insurance in Columbia.

Also running for state auditor are Libertarian Party candidate Sean O’Toole, Green Party candidate Don Fitz and Constitution Party candidate Jacob Luetkemeyer.