Monday, March 14, 2011

Is Lugar Constitutionally Eligible To Serve In The U.S. Senate If He Has No Indiana Residence?

While Hoosier political observers knew Sen. Richard Lugar owned a home in McLean, Virginia at which he resides most of the year as he tends to his Senate duties in Washington, D.C., most assumed he still maintained a residence in Indianapolis where he has voted in every election since he turned 18. He still owns a family farm in southern Marion County which has a farmhouse. Political observers were taken aback when Lugar's press spokesperson Mark Helmke told reporters he stayed in a hotel, noting the old farmhouse was a bit too rustic. Fellow blogger Paul Ogden researched Lugar's registered voting address and learned he and his wife Charlene were registered to vote at a home on the city's northwestside where he formally lived before his election to the Senate in 1976. Lugar later sold the home but continued to use it as his voting address. In light of the recent criminal charges brought against Secretary of State Charlie White for casting a ballot at a precinct in which he no longer resided, Ogden speculated that Lugar had similarly committed voter fraud by casting his ballot at an address he hasn't maintained a residence in decades.

Lugar's campaign responded to Ogden's vote fraud allegation against Lugar by citing the Indiana Constitution and an Attorney General opinion as supporting his contention he did not lose his residence in Indiana upon his election to the Senate. Lugar's campaign cited these two provisions in Article 2 of the Indiana Constitution:

Section 2. (a) A citizen of the United States who is at least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct at the election. (b) A citizen may not be disenfranchised under subsection (a), if the citizen is entitled to vote in a precinct under subsection (c) or federal law. (c) The General Assembly may provide that a citizen who ceases to be a resident of a precinct before an election may vote in a precinct where the citizen previously resided if, on the date of the election, the citizen's name appears on the registration rolls for the precinct.

Section 4. No person shall be deemed to have lost his residence in the State, by reason of his absence, either on business of this State or of the United States.
As I've previously pointed out, Section 2 only permits a person one last chance to vote in his former precinct at an election following his move out of that precinct if he is a registered voter in that precinct. Accordingly, Sen. Lugar must rely on Section 4's protection from loss of residence for those whose absence from the state occurs while "on business of this State or the United States." A 1982 Attorney General opinion by Linley Pearson further offered this view of Section 4's meaning as applied to a member of Congress: “If such a person was entitled to vote in this state prior to departing for service in Congress, whatever residence that person possessed for voting purposes prior to such departure remains his or her residence. There is no requirement that such a person maintain a house, apartment, or any fixed physical location.” Thus, under this interpretation, as long as a member of Congress resided in the state prior to his election to Congress, he no longer has to maintain a residence in the state following his election.
Looking to the Indiana Constitution for guidance on this issue, however, is misplaced. The qualifications for serving in the Senate and the House of Representatives is determined by the U.S. Constitution, not the Indiana Constitution. The states are not free to modify the qualifications for members of Congress. Article I, Section 3 of the U.S. Constitution provides the following qualifications for Senators:
No person shall be a senator, who shall not have attained the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state, for which he shall be chosen."

It's important to note the U.S. Constitution does not use the term "resident" with respect to a person's qualification to serve in either the U.S. Senate or the House of Representatives. A person need only be an "inhabitant" of the state when he is elected. According to the Senate website's explanation of the requirement, the framers chose the less exacting term "inhabitant" over "resident" out of concern a person's absence from the state might be used to disqualify them from serving.

Although England repealed Parliament’s residency law in 1774, no delegates spoke against a residency requirement for members of Congress. The qualification first came under consideration on August 6 when the Committee of Detail reported its draft of the Constitution. Article 5, section 3 stated, “Every member of the Senate shall be . . . at the time of his election, a resident of the state from which he shall be chosen.”

On August 8, Roger Sherman moved to strike the word “resident” from the House version of the clause, and insert in its place “inhabitant,” a term he considered to be “less liable to misconstruction.” Madison seconded the motion, noting that “resident” might exclude people occasionally absent on public or private business. Delegates agreed to the term, “inhabitant,” and voted against adding a time period to the requirement. The following day, they amended the Senate qualification to include the word, “inhabitant,” prior to passing the clause by unanimous consent.

Joseph Story's Commentaries on the Constitution of the United States (1833), an authoritative resource for ascertaining original constitutional intent, notes a shortcoming of the qualifications clause for its lack of provision for a senator "ceasing to represent the state in the senate, as soon as he should cease to be an inhabitant." He added, "There does not seem to have been any debate in the convention on the propriety of inserting the clause, as it now stands." As to the meaning of the term "inhabitant", Story said, "This scarcely requires any comment; for it is manifestly proper, that a state should be represented by one, who, besides an intimate knowledge of all its wants and wishes, and local pursuits, should have a personal and immediate interest in all measures touching its sovereignty, its rights, or its influence."

Story seemed to believe a person could cease to live in his state after his election to the Senate without losing his qualification to serve. Indeed, Story noted the problem of House members moving out of their states after their election in discussing the same inhabitancy requirement upon their election for members of the House of Representatives. "The omission to provide, that a subsequent non-residence shall be a vacation of the seat, may in some measure defeat the policy of the original limitation," Story wrote. He added, "For it has happened, in more than one instance, that a member, after his election, has removed to another state, and thus ceased to have that intimate intercourse with, and dependence upon his constituents, upon which so much value has been placed in all his discussions on this subject."

So it's clear that the framers chose a less exacting requirement than a residence in determining a person's eligibility to serve in Congress, and it even seems a member of Congress can abandon his inhabitancy in the state of his election without forfeiting his office. Those are clearly strong arguments in favor of Lugar's belief he need not maintain a residence in Indiana in order to continue to serve in the U.S. Senate. A person could contend, however, that the "inhabitant" requirement must be met each time he stands for election, even if he gave up his residence during a six-year term to which he was elected. I've not found any cases on that point, although court decisions are very clear that a state cannot require a person be a registered voter of his state in order to be a candidate for Congress because that imposes an eligibility requirement beyond that imposed by the Constitution. Politically, the legal argument for Lugar is a real loser though when you consider the challenge he faces in putting down the perception he has become too detached from his home state after 36 years in the Senate. Moreover, even if the U.S Constitution does not require him to maintain a residence in Indiana, he still may be running afoul of Indiana election law requirement that you reside in the precinct in which you vote, notwithstanding the Attorney General's opinion to the contrary.

1 comment:

Pete Boggs said...

When a friend posed this question to an "insider" this evening, the answer came back "supreme court cover" by way of the senior senator's qualifying inquiry of that institution. Don't know if that's valid or not.