Judge Rosenberg is faced with several choices. He could remand the case back to the Commission with instructions to reconsider the Democratic Party's petition based upon his interpretation of the statute in question. He can hear the case de novo to determine himself whether he believes White is eligible to hold his office. Finally, he could just turn aside the petitioners' case without offering any relief. In the worst case scenario, if White is deemed ineligible to hold the office, he would be forced to vacate it and the second highest vote-getter, Democrat Vop Osili, would assume the office. A separate criminal action brought in Hamilton County by a special prosecutor against White could also result in his removal from office if he is found guilty of any one of the felony charges he faces, in which case Gov. Mitch Daniels would get to choose White's successor.
Karen Celestino-Horsemen and Bill Groth represented the Democratic Party petitioners. The petitioners' attorneys concede the Indiana Constitution provides no qualifications to hold the office of Secretary of State. An Indiana statute, however, requires a candidate for the office to be a registered voter in the state of Indiana, which essentially means a person must be a U.S. citizen at least 18 years of age, a resident of the state of Indiana and be a registered voter within the state. The crux of the debate is whether the statute in question should be interpreted to mean "legally registered voter" at the time of the person's candidacy as opposed to merely being registered as a voter in the state. Because White had voted in a precinct in which he no longer resided, Democrats insist White was, in effect, illegally registered, and should not have been eligible to run for office. The petitioners' attorneys objected strenuously to an argument proffered by White's attorneys that the case should be remanded for further proceedings if Judge Rosenberg determines the Commission dismissed their original petition in error. Horseman said the Commission was highly partisan and demonstrated its partisanship in the manner in which it forced the petitioners to wait for hours to have their case heard in a remote area of the state only after it had finished work in a separate state legislative recount case. The Democratic Party's attorneys suggested it would be an absurdity for Indiana law to say a person could not vote in a precinct in which they did not live but allow the state election's officer to be elected after violating that very law, a point which seemed to resonate with Judge Rosenberg.
Nationally-recognized elections law attorney James Bopp of Terre Haute is representing White in the proceeding. Bopp contends Judge Rosenberg has only a very narrow legal issue to consider: whether the elections contest statute provides the relief sought by the Democratic Party. Bopp insists the petitioners are trying to add a requirement to the voter registration requirement that is simply not available under the plain reading of the statue. Bopp further chastised the petitioners for failing to timely bring an action challenging White's eligibility, noting the issue had first been raised publicly in September, but the Democratic Party waited until after White won the election by an overwhelming margin before contesting his eligibility to hold the office.
Not surprisingly, Bopp relied heavily on the recent Indiana Supreme Court decision, Burke v. Bennett, in which an election contest in the Terre Haute mayor's race was brought by the losing Democratic incumbent mayor after he lost the election. In that case, the issue was whether the Little Hatch Act disqualified Republican Duke Bennett from being a candidate for a partisan office. While the Supreme Court agreed Bennett was ineligible to be a candidate for the office, the disqualification ended upon his election because he was no longer a candidate at that point. The Supreme Court noted the incumbent mayor knew of Bennett's Little Hatch Act problem many months before the election but waited to spring it on him in an elections contest only after he lost the race. Bopp insisted the circumstances in White's case are "materially identical." The Democratic Party should not be allowed to profit from its delay in bringing an issue it knew about well before the election he maintained. Bopp contends the remedy at this point, by choice of the legislature, lies with the criminal justice system. Criminal charges have been brought against White and, if he is found guilty of committing a felony, he will be forced to vacate the office. Attorneys for the Democratic Party countered that White could cop a plea agreement with the special prosecutor for a misdemeanor offense and avoid the sanction of removal from office. Horseman argued that White had waived the Burke v. Bennett defense because his attorneys failed to raise that defense in the Commission proceedings in December when petitioners argued its inapplicability without reply from White's attorneys.
Judge Rosenberg seemed to be struggling with reconciling the Burke v. Bennett case with another election contest decision decided by the Supreme Court, Pabey v. Pastrick, both of which decisions where authored by Justice Brent Dickson. In Pabey, the Court considered a post-election contest where the incumbent mayor had won a narrow Democratic primary victory over the second-place finisher who contended the incumbent mayor had engaged in "pervasive fraud, illegal conduct, and violations of elections law" to secure the most votes and that a simple recount would not determine a clear winner; rather the losing candidate sought to declare the winner ineligible to win the race by virtue of the "deliberate" election law violations in which he engaged. The Court agreed that the trial court evidence had established "that a deliberate series of actions occurred making it impossible to determine the candidate who received the highest number of legal votes cast in the election and that the trial court erred in denying Pabey's request for a special election." Dickson added, "While this remedy will be appropriate only rarely and under the most egregious circumstances, it is compelled by the facts of this case."
The petitioners' attorneys pointed out that even the Burke v. Bennett decision excepted past acts, for example a felony conviction that had not been known at the time a person became a candidate or before his election. In White's case, however, he is presumed innocent until found guilty. The question would become whether a past act that would constitute a felony but is not adjudged such before the election could be deemed to serve as a bar to a person being eligible for the office at the time of his election. Unlike the provision for a special election allowed in the Pabey case, the Indiana statute relied upon by the Democrat Party's petition provides that the candidate receiving the second-highest number of votes is declared the winner if the winning candidate is deemed ineligible because of a past act that made the candidate ineligible.
Some observers think Rosenberg is likely to punt it back to the Recount Commission with an interpretation of the laws in question that constrain their ultimate actions in the case. Regardless of what Judge Rosenberg decides, Bopp is confident the position he has staked out for his client would be upheld by the Indiana Supreme Court based on his reading of their prior precedents. Bopp has not asked Rosenberg to recuse himself in the matter despite the outspoken position his daughter, Erin Rosenberg, also an attorney, took in this matter when the issue first arose last September. In a blog post entitled, "Charlie White's Whitewash Effort Defies Logic" published last September on Chris Worden's IPOPA blog, Erin, a Democratic Party activist and former staffer for U.S. Rep. Andre Carson, made a legal case for why White had violated Indiana law and should be criminally prosecuted. In calling on White to suspend his campaign for the office and calling for the appointment of a special prosecutor to investigate allegations White committed vote fraud, Erin wrote:
Here it is in a nutshell: First, I remind everyone that by White's own admission, he did not reside at the Broad Leaf house when he voted in the May Primary, and that, by its definition is voter fraud. White says he “forgot” and made a “mistake”, but was still entitled to use the Fail Safe voting provision even though he didn’t follow the law in using it. This is completely wrong. White knew perfectly well how to use the Fail Safe provision to vote in his old precinct and the 2009 voter poll book proves it. Mr. White cannot claim he did not know the proper procedures for using the Fail Safe voting procedure in May 2010 because he JUST USED it in November 2009.Erin Rosenberg was adamant in her position that Leerkamp, a Republican who is not related to White, needed to appoint a special prosecutor to investigate White because he was the Hamilton Co. Republican chairman. "I do not want to imply that Ms. Leerkamp is not capable of doing a fair and impartial investigation," Erin wrote. "I have no reason to doubt her on this. However, given the perception issues, I believe an impartial prosecutor should be brought in to investigate." Judge Rosenberg, like his daughter, is a Democrat. Bopp told me after today's hearing that he has never asked a judge to recuse himself in his many years of practicing law and he doesn't believe a judge should be required to do so because of the views of his spouse or child. Democratic activists and at least 74 Democratic members of Congress have called upon Justice Clarence Thomas to recuse himself from any cases challenging Obama's health care reform legislation because of the role his wife has played in efforts to oppose the law. I have no way of knowing whether Judge Rosenberg knows his daughter has been publicly outspoken on this matter, but as she said in her own words, there are potentially "perception issues" if he makes any decision favoring the petitioners.
In addition, absent the required Fail Safe provision affirmation in May 2010 for voting one time at a former precinct, White appears to have been set to vote for a second time illegally at the same former polling site in the 2010 November election. And, he could have done it precisely because there was no affirmation in the Primary election.
White’s actions show that he knows the laws and how to abide by them, but chose not to when they suited his ambitions and personal desires. Mr. White must suspend his campaign and a special prosecutor must be appointed to conduct a real investigation of these allegations . . .
As to why White would want to his registered address to be at his ex-wife’s home until November 2010, I will simply say that White could only continue receiving his town council pay and legally serve on the council up until he moved out of his council district. This part of the analysis, the why, has been thoroughly examined elsewhere, but I think it is pretty obvious to anyone looking at White’s situation.
Why he was doing it, however, doesn’t change the fact that by not doing the required affirmation, White appears to have tried to hide the fact that he had already used the one time only Fail Safe provision in May and could not use it for a second time in November . . .
Greg Purvis has asked for a special prosecutor to be appointed to investigate these facts. White is the Hamilton County Republican Chairman and the Hamilton County Prosecutor, Sonia Leerkamp, is also a Republican. I do not want to imply that Ms. Leerkamp is not capable of doing a fair and impartial investigation. I have no reason to doubt her on this. However, given the perception issues, I believe an impartial prosecutor should be brought in to investigate.
Demand a special prosecutor be appointed. Demand White suspend his campaign and address these charges.