Rosenberg Orders Recount Commission To Rehear White Election Contest

If you had read my analysis of yesterday's hearing, you would have known the speculation among legal observers was that Judge Louis Rosenberg would likely punt the election contest brought by the Indiana Democratic Party against the election of Charlie White as Secretary of State back to the Recount Commission, which last December dismissed the Democrats' petition because Indiana law does not require White to live in the district in which he voted in order to be a candidate for the office; rather, it only required he be a registered voter. [Note: The Indiana Constitution imposes no eligibility requirements for secretary of state candidate.] That fact is not contested. To no surprise, Rosenberg did just that today. The Star's Carrie Ritchie reports on his ruling:

The Democrats say a state law that requires candidates for secretary of state to be registered to vote means they must be registered legally. But the Recount Commission said the law doesn't say "legally," and declined to hear the Democrats' challenge


Marion Circuit Court Judge Louis Rosenberg ruled this afternoon that the Recount Commission must allow the Democrats to present their case.

Rosenberg, who ran for the bench as a Democrat, could've allowed the case to proceed in his courtroom, but he said he felt that by sending it back to the Recount Commission, he would be creating "an opportunity for the political system to regain credibility."

Judge Rosenberg could have been in a difficult situation had he heard the case himself. His daughter Erin, a Democratic Party activist, publicly made the case last September in a blog post that White had committed voter fraud and called for the appointment of a special prosecutor to investigate him as this blog exclusively reported yesterday. I would anticipate that White's attorney, James Bopp, will appeal Rosenberg's order. Bopp told me yesterday he is confident the state's Supreme Court would ultimately affirm the Recount Commission's decision to dismiss the case. Bopp believes the exclusive remedy provided by the legislature at this point is the removal from office through a felony conviction as a result of the felony charges that have subsequently been brought against White. Bopp chastised Democrats for gaming the system by waiting until after the election to challenge White's election after he overwhelmingly defeated the Democratic candidate, Vop Osili. If the Democrats were to prevail in their effort to deem White ineligible, Osili would take office as the second-highest vote getter. If White were removed from office as a result of a felony conviction, Gov. Mitch Daniels would appoint his successor.

In remanding the case to the Recount Commission, Rosenberg adopted the interpretation of Indiana law proferred by the Democratic Party's attorneys that a candidate must not only be a registered voter but also legally registered to vote in the precinct in which he resides, thereby constraining the Recount Commission's interpretation of the statute. That intepretation would make sense in the case of former Indianapolis City-County Councilor Patrice Abduallah, who was allowed to serve on the council for nearly four years and run for re-election despite the fact that he never resided in the abandoned home in his council district he claimed as his voting address. Marion Co. Clerk Beth White discovered Abduallah did not live in his district when he filed a statement of candidacy for his re-election race showing an address outside his council district, not the address he had represented as his voting address. Clerk White, nonetheless, allowed Abduallah's name to be placed on the ballot and ultimately nominated in the Democratic primary knowing this. It wasn't until I raised the issue on this blog that Democrats forced Abduallah to resign from the council and drop his bid for re-election. No criminal charges were brought against Abduallah, nor was he required to repay the council salary he had illegally drawn for nearly four years. In Charlie White's case, a fairer reading of the law would instruct that he was only required to be a registered voter somewhere in the state of Indiana, a fact that is not disputed. If he cast a vote illegally because he didn't live in the precint in which he voted, then the remedy would be the criminal charges that have been brought against him in this instance.

UPDATE: Here's Judge Rosenberg's analysis of why White not only had to be registered to vote but also legally registered to vote in the precinct in which he resided:

• "The obligation to register cannot be satisfied if that registration violates applicable laws and/or is fraudulent."

• "The knowing failure to register and/or vote at the correct precinct can result in the registrant not being allowed to vote and even criminal prosecution under Ind. Code 3-14-2-2, 7, 10 and 11."

• Relying on the Pabey v. Patrick decision, Rosenberg said construing the law to allow White to be eligible as a candidate if he voted in a precinct in which he did not live would "undermine" Indiana law "preventing fraud."

• Rosenberg's analysis rejected the interpretation of Burke v. Bennett proffered by White's attorneys that  the violation alleged only served as a disqualifier while White was still a candidate and ceased to be so once he ceased to be a candidate. The decision "clearly refer[s] to a person's past conduct as grounds for disqualification" he said.

Judge Rosenberg further indicated his intention that his court would retain jurisdiction "to insure [sic] a speedier disposition." Assuming White's attorneys appeal Judge Rosenberg's order, as I anticipate they will and should, there will be no speedy disposition. Judge Rosenberg also declined to entertain the petitioners desire to require the Secretary of State's office to release the report it prepared in response to the allegations that White had illegally voted in the wrong precinct because the Commission had made no formal ruling on the request. A.J. Feeney-Ruiz, White's new communications director, had said last month that he would release the report as one of his first orders of business upon assuming his position. He has been silent on the matter since starting his new job.