Tuesday, March 20, 2012

Lugar Sues Marion County Election Board For Right To Vote At Home He Hasn't Resided At In 35 Years

Sen. Richard Lugar has turned a very bad political situation into a complete nightmare for his re-election campaign. Attorneys for Lugar and his wife, Charlene, have filed a lawsuit in Marion County Circuit Court seeking to overturn last week's decision of the Marion County Elections Board that determined the Lugars were illegally registered to vote at the Wayne Township home of Elizabeth Hughes, a home the couple sold 35 years ago after Lugar was elected to the Senate and moved with their family to a new home they purchased in McLean, Virginia where they continue to reside. The Lugars' attorneys contend in the lawsuit that Article 2, Section 4 of the Indiana Constitution permits them to continue voting at the home they no longer own, which 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."

The problem Lugar has with this argument is that he must argue to the court that he has been absent from the state continuously for the past 35 years. It seems doubtful the framers of the Indiana Constitution intended that this provision would apply to members of Indiana's congressional delegation, who were part-time lawmakers at the time of the adoption of the state's constitution in 1851. It is more likely they intended it to apply to members of the military or persons serving in the executive branch as President, Vice-President, cabinet member or ambassador, where their full-time government service jobs necessarily required a person's indefinite absence from the state. The U.S. Constitution requires all U.S. Senators to be inhabitants of the states they represent "when elected." Federal courts have interpreted the inhabitancy requirement to require both a physical presence within the state and an intent to habitate within the state. The Lugars readily admit they have maintained no legal residence in Indiana since they sold their home at 3200 Highwoods Court, Indianapolis home on July 6, 1977. The Marion Co. Election Board determined that the Lugars had abandoned their Indiana residence and failed to re-establish a "true, permanent fixed home or establishment" as required for residency purposes after selling their home in 1977.

The Lugars have relied on the legal opinions of Attorney Generals to claim that the Indiana Constitution permanently froze their legal residence in Indiana at 3200 Highwoods Court upon Lugar's first election to the Senate in 1976 so long as he remains a U.S. Senator from Indiana. Those opinions did not become public until this past year when a Lugar aide told a reporter for Real Clear Politics that Lugar maintained no residence within the state; rather, he stayed in hotels when he visits the state. The current owner of the home, Elizabeth Hughes, had no idea the Lugars were using her home as their registered voting address and does not consent to their use of it for voting purposes. The Lugars' lawyers contend that their fundamental right to vote under the Indiana Constitution is being denied as a result of the board's determination that they cannot legally register to vote at 3200 Highwoods Court, even though the Board advised them they could easily remedy the problem simply by registering using an address to which the couple can prove a nexus.

A copy of the Lugar complaint against the Marion County Elections Board can be viewed here. An emergency hearing has been scheduled for March 30, 2012. Judge Louis Rosenberg is the Marion County Circuit Court judge who will hear the Lugar complaint. Judge Rosenberg, of course, presided over the Charlie White election contest challenging whether he was legally registered to vote at the time of his nomination as the Republican candidate for Secretary of State in 2010. Rosenberg ruled that White was illegally registered to vote and, therefore, ineligible to seek the office; however, the Indiana Supreme Court last week reversed Judge Rosenberg's decision, holding that the Democrats waited too late to bring their challenge to White's candidates until after the November election at which White was elected. As I have previously disclosed, I represented the citizen petitioner, Greg Wright, who challenged the voter registration of the Lugars, before the Marion County Elections Board.


Indy4u2c said...

I'm not an attorney, but I see this as a loser argument for Lugar.

Our state constitution clearly speaks: "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."

In Lugar's case, he didn't lose his residency by his absence on business of the U. S. as the constitution clearly states. Lugar lost his residency be terminating it. He sold the property and moved out. He could make argument if he had a place to live, that he was gone on U. S. business. But by his act of selling it, having no domicile in Indiana, and residing outside the state, he clearly cannot use the constitutional argument. It is clear the constitution was intended to allow him to serve the U. S. and not have his residency questioned (if he had a residency). Once Lugar gave up his residency and had no domicile, that provision of our state constitution no longer applied.

Paul said...

I don't live in Indianapolis, and don't know how cases are transferred to Marion County judges. Can I correctly assume that the assignment to Judge Rosenberg (in both matters) was not by coincidence?

Gary R. Welsh said...

I believe the circuit court is the preferred court of jurisdiction for election-related disputes.