Fifth Circuit Opinion Suggests Lugar Was Ineligible Five Of Six Times He's Been Elected To U.S. Senate

The U.S. Constitution requires that a U.S. Senator "when elected, be an inhabitant of that state for which he shall be chosen," the identical requirement provided for persons elected to the U.S. House of Representatives. The inhabitancy standard set for members of Congress is a much less exacting requirement than the residency requirement imposed on candidates for state and local office. The debate over whether a candidate for a congressional seat or senate seat is eligible has played out many times before. Hillary Clinton faced the carpetbagger argument when she moved to New York from Arkanas to run for an open senate seat as did Al Franken when he moved back home to the state of Minnesota to run for a senate seat. As long as the person has been a U.S. citizen for the minimum number of years, seven for representatives and nine for senators, and meets the minimum age requirement, 25 for representatives and 30 for senators, a person is eligible to run for any house or senate seat anywhere in the United States. No residency requirement is imposed; however, the person must be an inhabitant of the state from which he or she is elected at the time of the election. Under that low standard, Indiana's U.S. Senator Richard Lugar was eligible when he was first elected to the Senate in 1976, but he was not eligible at the time of his re-elections in 1982, 1988, 1994, 2000 and 2006, respectively, because he had ceased to be an inhabitant of the state of Indiana.

A Fifth Circuit Court of Appeals decision in 2006 is instructive on the meaning of the inhabitancy requirement in the U.S. Constitution. On April 3, 2006, U.S. Rep. Tom DeLay announced that he would be resigning his seat in the U.S. House of Representatives after he had won re-nomination by the Republican Party to his congressional seat in the March state primary election. The Chairman of the Texas Republican Party sought to declare DeLay ineligible to run for the House seat so she could remove his name from the Texas general election ballot and replace him with another candidate chosen by the party. DeLay sent the party's chair a letter stating that he had moved to Virginia and was no longer eligible for the office. DeLay sent proof to the party's chair that he had changed his voter registration, driver's license and employment tax withholding form to the state of Virginia as proof of his ineligibility. Based on this information, the Texas Republican Party declared DeLay ineligible to run for the House of Representatives pursuant to state law and announced its intention to replace him with another candidate on the general election ballot. The Texas Democratic Party filed suit seeking a declaratory judgment that DeLay was eligible to run for the office and injunctive relief to prevent the Republican Party from replacing him with another candidate.

The Democratic Party argued that whether DeLay was an eligible inhabitant of the state had to be determined on facts known at the time of his election, not information about where he lived prior to the election. A U.S. federal district court agreed that DeLay was still constitutionally eligible for the Texas ballot and granted a permanent injunction prohibiting his replacement on the general election ballot. The Fifth Circuit Court of Appeals affirmed the district court ruling in Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006). The Fifth Circuit Court, interpreting the qualifications clause, held that "[t]he plain language of the inhabitancy requirement of the Qualifications Clause shows that a candidate for the House of Representatives must only be an inhabitant of the state 'when elected.'" U.S. CONST. art. 1, § 2, cl. 2. The court explained how the question of DeLay's inhabitancy could not be conclusively established until the date of the election:

These documents do not conclusively establish whether DeLay will be an inhabitant of Texas on November 7, 2006. DeLay could be a current resident of Virginia, as the documents above provide, and nonetheless move back to Texas before November 7. Indeed, Benkiser admitted in her testimony that the public records could not prove DeLay's residency on election day and that DeLay could move back to Texas before election day.

Information that was before Benkiser showing DeLay's eligibility supports this conclusion. Benkiser had before her DeLay's original candidacy application, in which he swore that he was eligible for office. In terms of the Qualifications Clause, such a declaration necessarily contained an implicit promise that DeLay would be an inhabitant of Texas on election day. It is also likely that Benkiser knew—because the RPT confirmed his eligibility in prior elections—that DeLay had been an inhabitant of Texas for decades. Under these circumstances, the public records provided by DeLay could not have conclusively established his future residency. Predicting DeLay's future inhabitancy would have required a finding of fact, which the RPT had no authority to make.

In its analysis, the court noted that the framers of our constitution had specifically rejected imposing a minimum residency requirement for house and senate members, having "specifically rejected seven-year, three-year and one-year requirements." The Fifth Circuit cited an 1808 case in which the House of Representatives had declared a representative elected from Maryland, who had only moved to the state "a mere two weeks before his election" constitutionally eligible to hold the office "because he was an inhabitant of that state as of election day." By considering the public records DeLay had sent to the Texas Republican Party chair prior to the election to consider his eligibility, the Texas chair had impermissibly "created a pre-election inhabitancy requirement." Simililarly, the Firth Circiut noted that the Ninth and Tenth Circuits have both declared state laws imposing pre-election residency requirements on congressional candidates unconstitutional. In Schaefer v. Townsend, the Ninth Circuit held that a Nevada resident could not be blocked from filing nominating papers to run for a California House seat because he did not reside in the district at the time he filed to run for the office. The Tenth Circuit in Campbell v. Davidson ruled that the Colorado secretary of state could not keep a candidate off the ballot because he was not a registered voter at the time he filed his nominating papers. The Campbell court cited a 1972 federal court decision, Dillon v. Fiorina, 340 F. Supp. 729 (D.N.M. 1972) striking down a New Mexico statute that had the effect of imposing a two-year residency requirement on candidates for the U.S. Senate.

Given what we know about Richard Lugar, it cannot be doubted that he was an inhabitant of the state of Indiana when he first ran for the U.S. Senate in 1976, including the date on which he was elected. It is undisputed that he resided at 3200 Highwoods Court in Indianapolis. It is also undisputed that he sold his Indianapolis home on July 6, 1977 and thereafter maintained only a single home in McLean, Virginia where he and his wife have since resided. One of his own advisers conceded that the Lugars stay in hotels when they return to Indiana. Yet, Lugar and his wife have used the 3200 Highwoods Court property in which they gave up an ownership interest in 1977 as the address for their voter registration, obtaining an Indiana driver's licenses and registering their motor vehicles for the past 35 years. Based on this evidence, certified fraud examiner Greg Wright has filed a complaint with the Indiana Elections Division charging that the Lugars have repeatedly committed vote fraud by casting votes using an address at which neither has lived for 35 years. Lugar relies on a 1982 Attorney General Opinion prepared for him by former Attorney General Linley Pierson claiming that Lugar was no longer required to maintain any residence in Indiana following his election to the Senate. The opinion reads, in part:

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.

Pierson relied on a state constitutional provision that protects a person from losing their residency in the state by virtue of their absence from the state while conducting business of the state or federal government. Article 2, Section 4 of the Indiana Constitution reads: "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." A state residency law, however, can only be applied to candidates for state or local office. As the Fifth Circuit and many other federal court decisions have held, the U.S. Constitution alone determines the eligibility requirements for members of Congress. According to Benkiser, Tom DeLay could have been deemed ineligible to be elected as a member of the House of Representatives from Texas if he was no longer an inhabitant of the state of Texas on November 7, 2006 despite the fact that he had been deemed an inhabitant of the state since his first election to Congress in 1984. DeLay presented proof that he had changed his residence to the state of Virginia as of May, 2006, but the Benkiser court determined that the determination of his inhabitancy had to be based on conclusive evidence establishing where he resided on November 7, 2006, the date of the election. Because Lugar had no residence in Indiana at any of the five elections at which he was elected subsequent to his initial 1976 election, it is arguable that Lugar was ineligible to serve Indiana in the Senate because he was not an inhabitant of the state. If someone challenged his eligibility this year, Lugar could remedy the problem by simply renting a home within the state by the date of this year's general election, which is November 6, 2012.

As to Wright's contention that the Lugars have committed vote fraud by not maintaining an Indiana residence since 1977, Pierson's 1982 opinion also must be questioned. The state constitutional provision arguably is simply an acknowledgment of the fact that persons elected to represent Indiana in Congress are required to spend the majority of their time living and working in Washington, D.C. in order to perform their constitutional duties. Indiana's constitution protects members of Indiana's congressional delegation from having their residency challenged because they primarily reside in Washington; it should not be read to exempt them from having any place of residence within the state to where they can return for the election held once every two years for members of the House of Representatives and every six years for members of the Senate. Members of a state's congressional district have traditionally maintained some form of residence within their states, even if their primary residence is in the nation's capital for no other reason than to have a place where they can receive mail, file their taxes, register their motor vehicles, obtain driver's licenses and register to vote. Otherwise, a person potentially runs afoul of numerous other laws by claiming a residence where none exists. In recognition of this reality of having to maintain at least two residences, Congress has enacted a special tax law that permits members of Congress to take a deduction for their living expenses in Washington, a tax break not afforded to ordinary taxpayers.

It is interesting to note that Terre Haute elections lawyer, Jim Bopp, represented the Texas Republican Party in the Fifth Circuit Court of Appeals decision concerning Tom DeLay's eligibility to run for Congress from Texas. Bopp also successfully represented Secretary of State Charlie White in the Recount Commission case brought by the Indiana Democratic Party contesting his eligibility to be elected to the office based on the argument that he wasn't "legally" registered to vote at the time of his nomination for the office. Even the Democratic Party concedes that White was a legally registered voter at the time of his election at the November, 2010 election. Democrats waited until after the election to contest his eligibility based on his registered voting address at the time of his nomination by the Indiana Republican Party at its state convention in June, 2010. Based on the Bennett v. Burke decision decided by the Indiana Supreme Court, the Democrats should lose their challenge against White because he was not ineligible at the time of his election. Nonetheless, Marion Co. Circuit Court Judge Louis Rosenberg, a Democrat, has ruled that he is ineligible to hold the office because Rosenberg deemed that he was not legally registered to vote at his "permanent residence" at the time of his nomination. Believe it or not, Indiana's constitution does not even expressly impose any residency requirement for a person to be secretary of state, let alone be a registered voter of the state. The General Assembly, by law, has imposed that additional requirement. One could argue that the General Assembly is without authority to impose qualifications on candidates for statewide office beyond those expressly required by the state's constitution.