Monday, April 18, 2011

Senate Republicans Make Preemptive Move To Defeat White Election Contest

Under an amendment offered by Sen. Mike Young (R-Indianapolis) to an elections bill (HB 1242) on the Senate floor today, Gov. Mitch Daniels would be permitted to appoint Charlie White's successor as secretary of state in the event Democrats prevailed in their effort to declare him ineligible to serve because he allegedly cast his vote illegally in a precinct in which he did not reside immediately before becoming a candidate for the office. The Senate adopted the amendment, which would take effect upon its adoption, on a party-line vote (only one Republican, Sue Glick, voted against the amendment). The language reads, in part:

Whenever the commission makes a final determination under section 18(b) of this chapter that the candidate who is subject to a contest proceeding is not eligible to serve in the office to which the candidate is elected the following apply:

The office is considered vacant, and the governor shall fill the vacancy by appointment as provided in IC 3-13-4-3.
Of foremost concern to Republicans is the impact the disqualification of White's election would have on the determination of the party's placement on the ballot and appointment of election board officials across the state upon which the secretary of state election results are determinative under Indiana's election law. Such a result would throw the next election into chaos. Moreover, if Democrats were to prevail, the Democratic candidate who received far fewer votes than White would be entitled to assume the office.

I continue to believe the Indiana Supreme Court would ultimately rule that Democrats waited too late to contest this issue for purposes of an election contest as it did when Terre Haute Mayor Kevin Burke waited until after he was upset by Duke Bennett in the 2007 election to raise a Little Hatch Act violation by Bennett prior to his election. As was the case with Bennett, Democrats knew of the alleged violation by White before the election but did not seek a legal remedy until after he won the election overwhelmingly over Democrat Vop Osili. It seems the criminal remedy being pursued by a special prosecutor is the appropriate remedy for any criminal violation by White. If he is found guilty, he will be forced to resign the office, at which time Gov. Daniels would appoint his replacement.

What is a bit unusual about today's legislative action by the Senate is how it impacts a matter that is the subject of ongoing litigation. Under the leadership of long-time Senate President Pro Tem Robert Garton, a senator was not permitted to offer an amendment to the law that would impact the outcome of a matter that was currently being litigated. Sen. Young's amendment would most certainly defeat any political gain the Democrats would have in pursuing an election contest to remove White from office. One could argue their continued pursuit of their election contest would be doing a favor to Republicans if this amendment becomes law. Many Republicans have called on White to resign, or at least step down from his official duties until the matter is resolved.


Cato said...

This is shameful unalloyed monarchism by the Republicans.

As the law was passed ex post facto and in an outright attack on statutory legitimacy, I hope the court strikes down the applicability of the law to this case.

Paul K. Ogden said...

Cato, why that might be the case, I don't know the basis by which the court could strike the law down as inapplicable to the instant case. The legislature has every right to pass retroactive statutes as long as it's not punitive toward past behavior. (ex post facto laws.) The issue comes up sometimes whether the legislature INTENDED retroactive applciability but if it's clear they intended a statute to apply retroactively, then they can do that.