Saturday, March 12, 2011

If Charlie White Committed Voter Fraud, Then So Did Evan Bayh

When it comes to politics, I've learned over the years that hypocrisy knows no bounds. Perhaps no other case exemplifies this than the indignation and condemnation so many have heaped on Secretary of State Charlie White for residing in a precinct in Hamilton Co. other than the precinct at which he voted in a couple of elections, thereby making him Exhibit A for the true evils of voter fraud that threatens the very existence of our democratic-representative government. His partisan critics succeeded in getting a special prosecutor appointed, who has now not only accused him of committing voter fraud, but also marriage license fraud, mortgage fraud, perjury and theft. Under siege, members of his own party abandoned him and immediately called upon him to resign. White has so far defiantly maintained his innocence. At an impromptu press conference at the Hamilton Co. Judicial Center where he entered his not guilty plea to the 7-count indictment against him, White rejected calls for him to step down. He wondered aloud why the double standard. "There have been others out there accused of committing voter fraud, both famous and not famous, but no one does anything about them. I'm the one person who they go after. . . . This is all a very political situation.''

Whether you sympathize with White's plight or not, the fact is he is absolutely correct in his view that he is being unfairly singled out for a transgression others before him have been accused of doing without criminal charges being leveled against them. The most famous example to which White was no doubt referring was none other than the Indiana Democratic Party's beloved Evan Bayh. Yes, Evan Bayh flagrantly abused Indiana's election law but it didn't stop him from going on to be elected the "state's chief elections officer", an "archaic title" White now says since elections are primarily administered by the county clerks and overseen by the state's election board. Bayh not only won and held the office of Secretary of State, but went on to become a two-term governor and a two-term senator for the Hoosier state. Let's take a trip down memory lane.

Evan Bayh is the son of former U.S. Senator Birch Bayh. Although his parents resided in Terre Haute during his early years, his father was elected to the U.S. Senate in 1962 and moved the family to Washington, D.C., when Evan was 7 years old. Evan grew up in the nation's capital and attended school there. He got a driver's license issued in Washington, D.C. at the age of 16 and owned a car registered there. He renewed his driver's license while living in D.C. in 1976, 1980 and 1984. He returned to Indiana to earn his undergraduate degree at I.U. but returned back east to attend law school at the University of Virginia. He even worked for a D.C. law firm, Hogan & Hartson, after graduating from law school for 15 months. Bayh didn't return to Indiana until late 1984.  He purchased a condo his father owned in downtown Indianapolis, the first home he owned, in June 1985. Evan never bothered to obtain a driver's license in Indiana until the year he ran for Secretary of State in 1986. Yet, Evan had voted at a precinct in Vigo County's Fayette Township in every election from 1974 to 1984 after reaching the age of 18. At no time while Evan was registered to vote in Indiana did he, or his parents for that matter, reside in Vigo County. These facts were established by Gerry LaFollette, a political reporter for the Indianapolis News, in an investigative story published in the sister publication of the Star in September, 1987.

LaFollete said at the time Bayh's absence from the state had "raised a red flag" in his mind because the office of governor that Evan was seeking in 1988 at the time required residence in the state five years prior to the election under the Indiana Constitution. LaFollette knew Evan was living and working in Washington, D.C. until the fall of 1984. LaFollette's investigation learned Evan had changed his voter registration to Marion Co. on December 31, 1985. “Normally, one does not register to vote or perform other civic duties on New Year’s Eve afternoon as they usually are planning that night’s activities,” LaFollette observed. LaFollette asked the Chairman of the Marion Co. Elections Board what constituted a person's residence for voting purposes. A retired judge, Charles Applegate, initially told LaFollette it was determined by where a person paid his taxes but later added “residence is also a matter of intent, supported by physical acts.” The state election board's counsel told him residence was generally "where you live" but becomes "hazy" when you get into "fine questions."

When LaFollette's story broke, Evan held a press conference to defend the challenge to his residency. He insisted his residence was established by his birth in the state and had remained the same at all times despite his temporary absences from the state. “I have paid taxes every year in Indiana. I have voted ever since I was 18 years old in Indiana. I registered with the Selective Service in Indiana. I went to college in Indiana. I am living here with my family. Unquestionably, I have always been a resident of the state of Indiana.” Indiana GOP Chairman Gordon Durnil was not amused. He not only contended Bayh had failed to maintain a residence in Indiana at least 5 years prior to the 1988 election, he further contended Bayh had committed voter fraud by admitting he had voted in both elections in 1984 in Vigo County while he lived in Washington and later Indianapolis. “The guy thinks he’s above the law and now the Constitution,” Durnil said. “The question is, … can Evan Bayh rely on an illegal act (voting in Vigo County, but not living there) to prove residence? The answer is no…. Every person who has sought the office of Governor and Lt. Governor since 1851 has had to meet the requirements of that constitution. What kind of arrogance does it take for Evan Bayh to claim that he is not subject to the Indiana Constitution?” Hmm. Sound familiar? Even the man who would later run as his running mate, Frank O'Bannon, would concede the legitimacy of the issue being raised. Of course, O'Bannon was contemplating a challenge to Bayh in the 1988 gubernatorial primary at the time.

What was remarkable was the Star's reaction to LaFollette's investigative story in the News and the voter fraud allegations Durnil made against Bayh because he voted in Vigo County even at times he admitted he didn't reside there. The Star reported, “Indiana Republican Chairman Gordon K. Durnil thinks it’s perfectly okay that Governor Robert D. Orr lives in Marion County but votes elsewhere. But Durnil would like to see Democratic Secretary of State Evan Bayh prosecuted for the same thing.” Republicans quickly pointed out a key difference. While Orr hailed from Evansville where he voted, the Indiana Constitution required him to reside at the state's capital in Indianapolis. Republicans noted Orr voted in Evansville as a statewide constitutional officer while Bayh voted in Vigo County as a private citizen while residing in Indianapolis. That led to the discussion of other statewide officers who resided outside Marion Co. and commuted to work here despite the state constitutional requirement that they reside at the seat of state government. By dissembling, the real issue of Bayh illegally casting his vote in Vigo County got lost in the public pissing match that ensued.

It's notable that the allegations against Evan Bayh were raised many months before the filing deadline and primary election for governor in 1988, unlike the case of Charlie White where Democrats waited until just weeks before the election to challenge his eligibility to run for the office of Secretary of State. Also, bear in mind that it cannot be said that White was not legally entitled to vote in Hamilton County where he resided at all times or not constitutionally eligible to serve. The Indiana Constitution does not even impose a residency requirement on candidates for secretary of state and other statewide offices as it does for the Governor and Lt. Governor. The Indiana Code requires a candidate for secretary of state to be registered to vote in the state, however, which White clearly was at all relevant times. The only question was whether he broke the law by voting in a precinct in which he was not eligible to vote, which the state election's commission properly ruled was not a requirement for determining his eligibility to run for the office.

Evan Bayh left Indiana (figuratively, since he hadn't really lived in the state since he was 7 save for the brief period he attended IU in Bloomington) and started his professional career in Washington upon completing his education. As Durnil explained, “Evan Bayh’s fifteen (15) month absence from the State of Indiana was not due to either of the enumerated constitutional reasons: business of the State of Indiana or business of the United States. Evan Bayh’s absence from the State of Indiana occurred because he was pursuing a private career as an attorney in Washington, D.C.” The tax returns Bayh filed in 1983 and 1984 self-declared himself as a "part-year" resident of the state. Bayh took a tax deduction for his move to D.C. in 1983, which he could not have claimed if the move was only intended to be temporary, and he mailed his tax returns to the IRS office in Philadelphia instead of the office Indiana residents mail their tax returns. Bayh admitted he had rented various apartments in the D.C. area as an adult over a several year period before acquiring his residence in Indianapolis.

The trial court that heard evidence in Bayh's eligibility case received letters in which Bayh had communicated his desire for a "lengthy and mutually beneficial relationship" with Hogan & Harton in connection with his employment there. Bayh was not admitted to practice law in Indiana until 1983, although he graduated from law school in 1981. Bayh instead chose to sit for the bar examination in D.C. He did not sit for the Indiana bar until 1983. Bayh notably applied to take the Indiana bar examination as a "non-resident" in November, 1982 because he asked that it be sent to an address in Indianapolis instead of the residence he claimed in Vigo County for voting purposes. He was not sworn in with the class who supposedly passed the bar at the same time as him. Instead, he was privately sworn in by Judge Robert Staton of the Indiana Court of Appeals. Bayh never registered an automobile or a driver's license in Indiana until he decided to run for secretary of state.

In Bayh's case, his lawyers succeeded in subverting the process of first allowing the state's election board to determine his eligibility to run for governor; instead, winning the right to direct determination through a declaratory judgment action by a court of law. Despite the overwhelming evidence of Bayh's residence outside of Indiana, the trial court concluded Bayh's intent had always been to maintain his domicile in Indiana even during his lengthy absences from the state. Physical presence in a place the court said was "only one circumstance in determining domicile." Because Bayh had not intended to abandon his Indiana residency and establish a permanent residence elsewhere, he did not lose his Indiana domicile despite his absence from the state. The Indiana Supreme Court affirmed the trial court's decision. Bayh was never prosecuted for voting illegally in Vigo County despite clear evidence he was not a resident there and not eligible to cast votes in elections there. Charlie White wasn't as lucky.

This is how I see it. There are two sets of laws. There are the written laws that us average folks are suppose to abide by and have clobbered over our heads whenever we step out of line. The rule of law we're told must be upheld. But then there are these other unwritten laws that spring into existence either through the exercise of prosecutorial prerogative not to prosecute the protected class, or even worse, by judicial fiat of opinions carefully crafted to save the favored ones from the negative consequences of not abiding by the so-called rule of law.

It happens every day, and it's the reason so many people have lost faith in their government. My City-County Councilor can claim an abandoned, uninhabitable home as his voting address so he can be elected and pull down a salary as a councilor in a district in which he does not reside for nearly four years until I raise the issue. We later learn the county's chief elections officer knew of these facts but nonetheless allowed him to run as a candidate and continue to serve illegally because she said she had no legal duty to stop him. He quietly resigns and no criminal charges are brought against him. Our esteemed U.S. Senator Richard Lugar can sell the home at which he was registered to vote decades ago and yet legally continue to vote at that same address year after year without raising an eyebrow or inspiring a straight-forward investigation of the facts by the news media, even after his own spokesman admits he lives in a hotel when he visits the state. It's why a township official can borrow $500 to pay his rent and be charged by the prosecutor with theft, forced to plead guilty to a crime and resign from office, while a mayor of a city allows his political cronies to walk off with a city-owned utility and millions of dollars in cash in clear violation of the law without facing prosecution.

Yes, Charlie, it is all about politics. If I were you, I would launch an unprecedented and long overdue investigation using your powers as the state's securities commissioner to investigate all of the insiders who are getting rich illegally trading on insider stock information and other securities shenanigans without consequences. It's the rule of law, after all.

See this 2007 master's thesis written by U.S. Attorney Joe Hogsett, a close Bayh confidante, to confirm many of the factual and procedural  circumstances surrounding Evan Bayh's contested eligibility issue.


Paul K. Ogden said...

That law protecting a Senator from losing his residency because of service shouldn't have applied to Evan Bayh. It was his father who was in D.C. serving in the Senate, not Evan. I didn't recall he bought a condo downtown. I don't know how he was voting in Vigo County, but unlike Lugar the Bayhs continued owning the property.

There are a lot of examples of the law being violated. Charlie White is exactly right that he's being singled out.

Advance Indiana said...

He can piggyback on his dad while he's growing up, Paul, but once he became an adult and was living out on his own as he readily admitted was the case, he should not have been allowed to continue using the farmhouse in Shirkieville as his voting address. He actually was driving a BMW with out-of-state license plates and an out-of-state driver's license when he started campaigning for secretary of state. I think White is well within his rights to stay in office and fight the charges if he believes he's innocent. I think the way Evan and Susan made their millions of dollars by trading on his public service is a far greater crime against the public than what White is accused of doing.

TMLutas said...

If you really want to toss the cat in among the canaries, ask when the Democrats hiding out in Urbana lose their residency.

Cato said...

Never, TM. Those Democrats have never formed an indefinite intent to remain in Illinois.

TMLutas said...

Cato - That's not quite the standard, is it? IC 3-5-5-9 is what you're mangling and it puts things the other way around. "If a person moves to another state with the intention of remaining in the other state for an indefinite time as a place of residence, the person loses residency in Indiana, even if the person intends to return at some time."

I wouldn't be surprised to see statements to the press that they're going to stay in Illinois for as long as it takes or other such indications that their time in Illinois is of an indefinite nature, contingent on events happening a certain way in Indianapolis. If they haven't, the Republicans really ought to be prompting them on the record for a definite time for their return.

Now the problem isn't that they would lose their seats. So far as I can tell they would serve out their terms. The problem is the residency challenges that would be issued if they attempt to run again.

My personal preference is that there's some sort of clock. It's ticking. The Democrats in Urbana are informed of it and they come back home before they run out of time. But taking a 2 year time out from the GA while they requalify for holding office would be a not-so-bad plan B that would discourage this sort of behavior in future.