Saturday, February 25, 2012

Lugar's Pyrrhic Victory

Sen. Richard Lugar's campaign, not surprisingly, overcame a legal challenge to his Senate candidacy before the Indiana Election Commission, paving the way for the 80-year-old to seek an unprecedented seventh term representing Indiana voters in Washington. The legal challenge is at best a pyrrhic victory for Lugar. The light shined on his Indiana residency status, or the lack thereof, is an issue that won't go away. The recitation in today's Star is hardly the talking points the Lugar campaign wants to see:
Lugar is under fire from his Republican opponent, state Treasurer Richard Mourdock, and Democrats over his address. Lugar -- though he owns a Marion County farm -- lives in McLean, Va., and sold his Indianapolis home in 1977 after winning his first election to the Senate.
He has continued to use that Indianapolis address as his voting address and on his driver's license.
His campaign has distributed advisory opinions and letters from three attorneys general of Indiana, including current Attorney General Greg Zoeller, stating that Lugar acted within the law.
I wasn't able to attend the hearing but was able to watch it after the Commission obtained permission at the last minute to stream the hearing being held in the Indiana House chambers live over the Internet. The ignorance of the commission members and the attorneys who appeared before the Commission as to the issue before it was on display. It's amazing how Attorney Generals can write opinions that have absolutely nothing to do with the matter at hand and yet it is relied upon as the law. The Attorney General opinions cited at the hearing only offered the opinion that Indiana law, not federal law, permitted Lugar to maintain his voting residence at a home he sold 35 years ago. The opinion is specious, but it had nothing to do with the challenge, which was based on whether Lugar was an inhabitant of the state of Indiana.

Federal court decisions make clear that a person must have both a physical presence and an intent that a state be his place of habitation. See Jones v. Bush explaining why Dick Cheney was an inhabitant of Wyoming and not Texas. Lugar, by his own admission, has no physical presence in Indiana. Owning a farm here with no occupied residence is not sufficient to establish physical presence. Lugar's attempt to prove his habitation within the state is based on a driver's license that he obtains using the address of the home he sold 35 years ago. Even his mailing address for his family farm is listed on Secretary of State records as being his home in McClain, Virginia, the only home he owns. Commission members were hanging their hat on a legal opinion that only opined that Lugar did not lose his ability to vote in Indiana despite having no residence here because his 35-year absence was attributable to his service in the Senate.

The 5th Circuit Court of Appeals decision, which Lugar's attorneys omitted in their brief filed with the Commission, concerned former U.S. Rep. Tom DeLay's eligibility to stand for re-election due to lack of inhabitancy in the state of Texas. The decision made clear that a representative or a senator must be able to establish that he is an inhabitant at the time of the election. The U.S. Constitution's inhabitant requirement for senators and representatives does not say they only have to be an inhabitant at the time of their first election, and that they can then cease to be an inhabitant of their state altogether because it's permanently locked in as long as they continue to be re-elected.
Riordan and Long said they were troubled by the fact that Lugar was voting in a precinct in which he does not live, using an ID that lists a home that is someone else's residence.
Still, Long said, the issue wasn't whether Lugar is eligible to vote, only whether he is considered an "inhabitant."
"If I'm going to make a mistake, I'm going to err on the side of letting someone be on the ballot," he said.
"The fact is Richard Lugar has served this state well, and no one's ever raised this before," Long added. "It was clear he tried to do it correctly. He went to the attorney general and got opinions that this was OK."
The Commission members relied on the Attorney General's opinion for the basis of determining Lugar in an inhabitant for purposes of the U.S. Constitution despite the fact that the opinion clearly limits its reach to Lugar's voting status within the state. The Democratic members seemed more concerned about whether Lugar was legally voting at his former address, but that was the only thing the Attorney General's opinion deemed permissible. I believe the Attorney General has totally conflated the original intent of the provision contained in Indiana's Constitution that protects a person from losing their residence within the state during absences in service to the federal government. When that provision was added to the state's constitution, Congress did not even meet year-round as it does today. Our country was still a predominantly agrarian nation, and many members of Congress were farmers. Congress met no more than six months a year prior to the Great Depression. The framers of Indiana's Constitution could not have imagined that the provision would allow a senator or representative to give up his home in Indiana and move permanently to Washington upon his election, which is exactly what Lugar did.

The Democrats are savoring the opportunity to run against Sen. Lugar this fall on this issue. A press release from the Democratis Senatorial Campaign Committee says it all:
The ballooning controversy surrounding Dick Lugar’s Virginia residency just won’t go away. This weekend, Lugar finally answered for having moved out of Indiana in 1977 and just like his campaign spokesman, he proceeded to stick his foot in his mouth twice. First, Lugar admitted that his lack of an Indiana residence has been an issue for the whole time he has served in the Senate. But even worse, he told an Indianapolis T.V. station that he didn’t know what address was listed on his Indiana-issued driver’s license.
"Talk about out of touch. Who on earth doesn’t know what address is listed on their driver’s license?” asked Shripal Shah, spokesman for Democratic Senatorial Campaign Committee. “After moving out of Indiana more than three decades ago, Lugar has shown time and again he has simply lost touch with Hoosier voters. Whether he’s voting to bloat the federal debt by trillions or explaining how he hasn’t lived in Indiana since 1977, Dick Lugar is proving everyday why he’s part of the problem in Washington.”
When asked this weekend why he left Indiana permanently for the D.C. suburbs in 1977, Indiana Senator Dick Lugar didn’t do himself any favors, telling an Indianapolis TV station, "We've had the issue for the whole time I've served in the Senate.” That’s true – Lugar hasn’t lived in Indiana since 1977. But Lugar’s response to questions about the address on his Indiana-issued driver’s license was even worse, with Lugar telling RTV6 that“he isn't sure what address is on his Indiana driver's license but presumes it was from the house he” sold in 1977. The comments come after his campaign previously.
The reaction of Lugar's Republican primary opponent's campaign was spot on.  "If Senator Lugar wants to continue to cling to a legal technicality in order to avoid living in Indiana, he apparently will be allowed to. But it only proves our point of how out of touch he has become with Hoosiers," Mourdock spokesman Chris Connor said. Mourdock's campaign is touting a straw poll taken in Muncie at a gathering of precinct committeepersons from Henry and Delaware Counties. Mourdock captured 88% of the vote compared to Lugar's 12% showing. That doesn't say much about Lugar's support among rank and file Republicans after six terms in the Senate.


Paul K. Ogden said...

I was only present for the first part of the Lugar presentation. ACommission member asked the Lugar challenger's attorney why he thnks Lugar's inhabitancy is a problem when thrree AG opinons (still not sure who that third AG is or where the opinion is) say otherwise. The attorney said he disagreed with the opinon.

NO!!!! The 1982 Pearson and 2012Zoeller opinon never addresses whether Lugar is an inhabitant of the State of Indiana as required by Article I of the United States Constitution. In fact, the U.S. Constitution is never even mentioned in either opinion. Both opinions rely solely on state law and never offer an opinion as to whether Lugar satisfies the constitutional requirement for Lugar to serve as U.S. Senator.

Gary R. Welsh said...

Yeah, I hope someone didn't pay Bohnet to argue for the challengers. He didn't act like his head or heart was in it.