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.