Wednesday, February 29, 2012

Vop Osili Shouldn't Be Measuring The Drapes Just Yet

After watching the live streaming over the Internet of the oral arguments in the Charlie White eligibility case before the Indiana Supreme Court this morning, I think it might be a bit premature for Democrat Vop Osili to start measuring the drapes for his new office in the State House. Despite winning only 38% of the vote, Osili, with the help of Democratic Marion Co. Circuit Court Judge Louis Rosenberg, is trying to hijack the will of Indiana voters and hand the Secretary of State's office to Osili based on the specious claim that White was ineligible to run for the office because he wasn't "legally" registered to vote.

Every Supreme Court justice who questioned attorneys for both sides in this case seemed to be really struggling with the idea that White, who has always been a resident of the state and registered to vote in Hamilton County, could somehow be deemed ineligible to run for the office because he allegedly wasn't registered to vote in the proper precinct. Justice Dickson even asked the question I alone have raised since neither of the parties discussed this issue in their briefs. The Indiana Constitution imposes no residency requirement on secretary of state candidates like it imposes on the governor, let alone a requirement that a candidate be registered to vote. How can the legislature add a qualification that is not required by the state's constitution? Osili's attorney did her best to argue that the additional requirements imposed by the legislature were reasonable, but Justice Sullivan wondered about other requirements, such as being a licensed attorney. As a general rule of constitutional interpretation, when specific eligibility requirements are provided for in the constitution, the legislature is not free to impose additional eligibility requirements not specifically required by the constitution.

Justice David, the newest member of the court, seemed bothered that the interpretation of the law by Judge Rosenberg and defended by the Democrats would result in the disenfranchisement of many otherwise eligible voters. Justice David referred to the problem of a "residence of nowhere." White's attorney, David Brooks, very effectively argued to the justices that Judge Rosenberg's interpretation of the law essentially left White without a residence at which he could legally be registered to vote. Brooks pointed to Indiana case law that makes it perfectly clear that a person's future intent to have a residence different than their current residence, as White so intended, does not make a person's current intended residence invalid. None of the justices seem to buy the Democrats' argument that the law could be interpreted to mean more than requiring a candidate for the office of secretary of state to be registered. Whether the person was registered at the time in the correct precinct seemed an irrelevant question to be asking if I was reading the justices' minds correctly.

Justice Dickson also seemed concerned that a state statute providing that a person who received the second most votes in a general election would assume the office once a vacancy is created as completely at odds with a provision of the state's constitution allowing the governor to fill a vacancy in a state office until a successor is elected and qualified. Osili's attorney, Karen Celestino-Horseman, argued that the Constitution only allowed the governor to fill the vacancy temporarily; however, clearly Osili was never elected, even if White is deemed to not be qualified. Attorneys for neither side were prepared to discuss the question first raised about the statute allowing the second highest vote-getter to take office at the opening of today's hearing by Justice Sullivan, but I think the constitutional provision can only be read to mean that the governor appoints White's successor, since White had already been deemed the winner of the election and sworn into office.

That leads to the next question with which the justices wrestled: Did the Elections Commission even have authority to hear the challenge to White's election since it was not raised in a timely fashion? The Election Commission generally only has authority to hear disputes raised and decided more than 60 days before the election because of the need to print ballots and begin absentee voting for the election. The Democrats conceded that their challenge could not be brought before the election because they didn't raise the issue by the statutory deadline. Yet the Democrats believe they should be allowed to overturn the election post-election based on an eligibility challenge it should have raised prior to the election. The attorney for the Attorney General, Steven Creason, made a very strong argument that the Commission lacked authority to hear the post-election challenge. He pointed out that all of the relevant evidence the Democrats used to challenge White was known at the time he was nominated for the office in June, 2010, long before the deadline for filing a challenge with the Commission. That argument seemed to resonate with the justices.

Horseman, not surprisingly, repeatedly raised the issue of White's criminal convictions in Hamilton County on the very vote fraud issues at issue in the eligibility appeal before the court. She argued that the court should take judicial notice of those convictions and use the evidence of that guilty verdict against White in this case. Justice Sullivan was quick to point out to her that the criminal case was likely to be heard by the Supreme Court, which "may or may not" agree to uphold those convictions. It would be preposterous for the court to rely on the ruling of that criminal case, which as I've pointed out was chocked full of errors, and that a good appellate lawyer should be able to get most, if not, all of those convictions overturned on appeal.

I would not be surprised if the Supreme Court hands down a preliminary ruling with a full opinion to follow as early as late today given the gravity in settling for now who holds the right to serve as secretary of state. If the court rules affirms Judge Rosenberg's ruling, it could allow Osili to take office. If it reverses Rosenberg's ruling and affirms the Recount Commission's decision in favor of White's eligibility, then Gov. Daniels will be able to appoint a permanent replacement. White, for now, has forfeited the office by virtue of the Hamilton County felony convictions. The justices wondered how Gov. Daniels had authority to name Jerry Bonnet only as an interim secretary of state. The Attorney General's attorney, Creasor, suggested the decision was made by agreement between Bonnet and Gov. Daniels that he would hold the office only temporarily until the case before the court today is decided. He could not cite a specific law giving Gov. Daniels authority to name a temporary replacement.


RhondaLeeBaby69 said...

I think it's pretty clear what the succession of events should be in order for the 2nd highest vote receiver to become the officeholder (vs. having the Governor appoint a replacement). It's all a question of timing of course.

The question that needs to be answered is "Was Charlie White ever the Secretary of State?" If the answer is NO (due to his being ineligible to hold office at all) then Osili is the SOS and Daniels has no right to appoint a replacement (unless Osili steps down/is removed in the future). If the answer is YES (he was eligible to hold office) then it was Daniels' right to appoint a replacement.

As it stands now (in light of the Marion County ruling), Osili is the rightful SOS (pending all appeals of course).

Ben said...

The SOS is who ever Mitch wants it to be. This dog and Pony show is nuts. Mitch, send the message down to the Justices and its over.

Do you really think that Vop was ever going to get in?

The Republicans wil never allow that to happen. Its not a better of right or wrong, its what Mitch wants.

Todays exercise was for the media only, this decision was made weeks ago

Gary R. Welsh said...

This has nothing to do with what Mitch Daniels wants. This has everything to do with the rule of law. If the rule of law means anything, then this court will reverse Judge Rosenberg's ruling and affirm the decision of the Recount Commission upholding White's eligibility to hold office. It's not even a tough issue to decide. It's so elementary a second grader would understand it.

Cato said...

By law, Osili should be the next SoS.

This being Indiana, where the courts start from their desired outcome and manufacture the reasoning, look for the following:

1. Osili will not become SoS.

2. Mitch will have the ability to appoint a new SoS for almost an entire term.

3. There will not be a special election.

4. The GOP will not lose major party status on the ballot, as would happen if Osili were installed as SoS.

5. Mitch's hand-picked appointee will ensure that the IPALCO investigation stays good and buried in the SoS.

In Indiana, there is no law, only rulers.

Cato said...

Gary, the Recount Commission's ruling was rudely set aside by the Hamilton County jury.

White cannot both be a felon in running for that office and eligible to have run for that office. Given that the Recount Commission is inferior to a court of record, the ruling of the higher court supersedes the administrative agency.

If the jury would have convicted prior to the Recount Commission sitting, the RC would have simply cited the jury finding as dispositive and dismissed their proceeding as res judicata.

Downtown Indy said...

The election board reviewed the voting results and certified White to be sworn into office, which he then was.

White didn't simply attain office due to the sheer number of votes vs his opponent, which by the way was considerable.

Paul K. Ogden said...

Cato said:

"4. The GOP will not lose major party status on the ballot, as would happen if Osili were installed as SoS."

The law was changed last year so this wouldn't happen.

I don't agree that the criminal convictions could have been used in the Election Commission case or that the EC judgment could have applied in the criminal case. Civil and criminal cases are distinctive with different burdens of proof, different rules on the admission of evidence, etc. The criminal case involved voter fraud/perjury and the Election Commission case involved eligibility to serve in office. Those are two separate things, even though many of the facts involved were shared between the two.

Gary R. Welsh said...

Paul, I disagree, the Recount Commission case was based on the argument that White was not eligible to run for the office because he was illegally registered to vote at his ex-wife's address, which served as the basis for five of White's six felony convictions. If the Supreme Court decides White was not illegally registered to vote, then those convictions must be overturned. Those indictments and jury instructions were fatally flawed, assuming the law heretofore as announced in numerous Indiana court decisions is reaffirmed by the Supreme Court.