Recount Commission Must Rule In Favor Of White Under Bayh Standard

Evan Bayh's residency challenge that made its way to the Indiana Supreme Court when he ran for governor established the standard for determining residency for voting registration purposes. The legislature liked the court's ruling so well it codified it in the Indiana Election Code. Some may complain that it adopts a too lenient standard, but it's the law. Based on the oral and documentary evidence presented at today's Recount Commission hearing the Indiana Democratic Party's complaint against Charlie White's eligibility to hold office, the Commission has no choice but to accept the intent established by that evidence that clearly supports White's contention that he was registered to vote at the proper precinct at all relevant times.

Attorneys for the Indiana Democratic Party tried to paint a picture of White changing voting addresses like he was changing shirts, but the evidence simply did not draw that picture. Instead, the Commission heard compelling evidence from not only White, but both his current and ex-wife that supported his declared intent with respect to his residence at the relevant times based on unique family circumstances. More importantly, White's lawyers presented ample documentary evidence into record that supported his declared intent as corroborated by White's witnesses.

To the visible dismay of attorneys for the Democratic Party, White and his witnesses carefully fit together the missing pieces of the puzzle that explained his changing voting registration address. The testimony made clear White at all times lived and voted in but one county--Hamilton County. The first change of voting address occurred several years ago when White and his first wife, Nicole Mills, were divorced and White moved into an apartment near the home he and his wife had lived together with their son. Although White's wife got possession of the marital residence located on Broad Leaf Drive in the divorce settlement, both she and Charlie's names remained on the mortgage for the home.

According to the testimony of White and his current wife, Michelle, the two became engaged to be married in 2009. White also gave up his apartment on Pin Tail Drive in 2009 as he began searching for a new home to purchase. Understandably, the purchase of a new home was complicated by the fact that White's name was still on his ex-wife's home, making it impossible to get financing. Purchasing a home with his soon-to-be second wife was no easy task either. She had a bad credit rating as a result of a foreclosure on a home she had previously purchased during her prior marriage, making it impossible to include her name on a new mortgage. Michelle and her two children had been living with her parents in Fishers when the couple became engaged and started making plans for their marriage. While it may seem difficult for some people to accept, White's ex-wife, Nicole, was very understanding of Charlie's predicament. She says she allowed Charlie to sleep at her house in a basement bedroom of her 2-story home and essentially come and go as he pleased. She described her continuing close relationship and interaction with Charlie's family in compelling terms long after their divorce.

White initially rented the condominium on Overview Drive (which was located outside his council district) in November, 2009, which he would later purchase in the early part of 2010 after sorting out the problem of removing his name from his wife's mortgage and obtaining financing for himself. Both White and Michelle explained how she and her two children from her previous marriage moved into the rented condominium and stayed there with the intent of making it their permanent home once Charlie completed the purchase and the couple were married. At Michelle's insistence, she and Charlie did not cohabitate in the condominium until the couple were married. Michelle said she still considered her parent's home her residence until the time she and Charlie were married and lived together in the residence as husband and wife. When Charlie stayed over, typically while exercising parenting time with his son, he slept on a couch in the home both testified to. This was also at the same time Charlie was spending a lot of time travelling throughout the state in his campaign pursuit to become the state's secretary of state.

Nicole confirmed that Charlie received mail at the address and would not be surprised to learn he considered it his residence until he and Michelle got married Memorial Day weekend in May, 2010. White also affected changes in the address listed on his driver's license that reflected his change in voter registration address. Interestingly, the marriage application on which White has been charged by the special prosecutor with fraud for making false statements as to his residence, specifically states the couple's intention to reside at the Overview Drive condominium as their permanent address. White listed Broad Leaf as his residence at the time of the application, while Michelle listed her parent's address.

Democratic Party attorneys believe White committed voter fraud by changing his voting registration to his ex-wife's address in 2009 after moving out of his apartment and waiting until September, 2010 to change his registered voting address to the Overview Drive condominium. They believe his application for a mortgage for the Overview Drive condominium, which was eventually closed on in February, 2010, reflected what should have been his actual residence for voting purposes, and that he avoided registering at that address to avoid losing his seat on the Fishers Town council because it was located outside the boundaries of his district. White stated his belief that he had to establish residency within a district at the time of his election but because all councilors in Fishers are elected at large, he could still maintain a seat on the council if he moved out of the district after being elected. He testified that this had occurred in the past with other councilors.

When White learned Democrats were making an issue of his residence in late September, 2010, he resigned his seat on the council and repaid the $1,000 a month salary he had drawn during the period of time he said he had resided at Overview Drive starting in June, 2010 after his marriage on Memorial Day weekend. Doug Church, the town's counsel, opined that White was under no obligation to return the money because he had attended all meeting and performed the duties of his office prior to his resignation. Contrary to media reports, White insisted he drew no health care benefits while serving on the town council. White said the money he returned to Fishers has been treated as a gift as he still had to pay taxes on the salary he returned. Incredibly, the special prosecutor charged White with theft of town funds for drawing a salary while living outside his council district.

White's attorney hangs his hat on both the stated intentions of White as to his voting address and the substantial documentary evidence he tendered in support of his stated intentions. White was registered at the marital residence on Broad Leaf until he and his wife were divorced several years ago, at which point he registered to vote at an apartment he leased on Pin Tail Drive. In 2009, he declared his ex-wife's home as his registered voting address. His ex-wife supported his declared intent. His address, based on their testimony and documentary evidence, suggests he did not begin residing at the Overview Drive condominium he purchased until after their marriage in May, 2010. White had no legal obligation to change his registered voting address until the next election. As his attorney noted, Indiana law has a less demanding requirement to change a person's registered address when moving to another location within the same county. "A voter may change the residence address on the voter's registration to an address within the same county at ANY TIME (emphasis added) during the registration period," the statute provides. The Bayh standard codified in statute says White's residence changes when he "has intent to abandon [his] residence" and his residence is presumed to be "the place where a person's immediate family resides." White clearly established with evidence that he maintained a voting residence within the requirements of Indiana statutory law at all relevant times.

The one undeniable mistake White made was in not in resigning his seat on the council after moving into the Overview Drive condominium in June, 2010. He instead waited three months to do so, but he returned the salary he earned during that period despite performing his town council duties. That mistake, however, would not make him ineligible to be a candidate for secretary of state, even if you accept Circuit Court Judge Louis Rosenberg's interpretation of the eligibility requirement to run for secretary of state as requiring White to be legally registered to vote in the correct precinct. The evidence indicates White did not vote in the wrong precinct in any election taking place in 2009 or 2010. White, in fact, timely changed his registered voting address at least as promptly as required under Indiana law when you consider his intent, which is adequately supported by both oral and documentary testimony. Based on the evidence in record, the Recount Commission can make only one final finding--affirming White's eligibility to hold the office to which he was overwhelmingly chosen by Indiana voters in the 2010 general election.

I would be remiss if I didn't note that both White and his wife Michelle waived their constiutional protection against self-incrimination under the Fifth Amendment by agreeing to testify at today's Recount Commission hearing. White has been charged with multiple felony violations--perhaps the most specious criminal charges I've ever witnessed any prosecutor, federal or state, bringing against a public official. The special prosecutor has also threatened to bring charges against White's wife for testimony she furnished to the grand jury investigating the charges leveled by Democrats against him in the heat of a political campaign. Special prosecutor Dan Sigler told the media he was "shocked" that White was speaking publicly about the charges against him. Some of us are equally shocked that an officer of the court could have brought such bogus criminal charges against any citizen of this country.

UPDATE: Flipping through the radio dial this morning I caught this take on yesterday's hearing from the lowest radio talk show host in the Indianapolis market, Abdul Hakim Shabazz:

"I didn't get the chance to attend yesterday's hearing, but I was able to follow the tweets from my colleagues in the media who covered it. White clearly voted in the wrong precinct, but the question is whether the petitioner's attorney proved intent to commit voter fraud."

At the same time Shabazz was concluding White voted in the wrong precinct based on the tweets of his colleagues in the media, he was lamenting the mass layoffs at the Indianapolis Star yesterday. Let me add that Shabazz arguably has been committing multiple forms of fraud for years by claiming a residence in Illinois while living and working in Indianapolis, even after getting married and moving into his wife's home. I'm just wondering how many times he will sign a piece of paper swearing he resides in Illinois before his conscience will appear. Shabazz drives a car with an Illinois license plate and says he still votes in Illinois where he hasn't resided since he took a job with WXNT more than five years ago. Nothing like the pot calling the kettle black, eh?