A very well-briefed staff analysis, which you can access by clicking here, by election's board attorney, Andrew J. Mallon, made the following recommendations to the Board based upon its investigation of Wright's complaint against the Lugars:
1. Absent additional or different facts or circumstances than those currently before the Board, that the Marion County Election Board rule that Senator Richard and Charlene Lugar are no longer lawful residents of 29-007 in Marion County for purposes of voting in that precinct by operation of Ind. Code 3-5-5-4; and, without more, the Lugars' continued registration and voting in 29-007 would constitute a violation of Ind. Code 3-7-13-8 and Ind. Code 3-14-2-11.
2. Since there are legitimate questions as to the sufficiency of the evidence supporting the requisite mens rea under Ind. Code 3-14-2-11, that the Board discuss whether there is sufficient cause to refer the matter to the Marion County Prosecutor for alleged violations of Ind. Code 3-14-2-11 with respect to the Lugars' past votes in Precinct 29-007.
3. That the Board direct the Staff to include these and any other findings of fact or conclusions of law determined at the March 15, 2012 meeting in the official minutes and record of the Board so as to provide notice to the Lugars that they do not reside at 3200 Highwoods Court under Indiana law for purposes of voting and thus are not legal voters in Precinct 29-007 from the 3200 Highwoods Court address.
The Board accepted Mallon's recommendation that the Lugars were illegally registered at their former home because the evidence led them to the conclude that the Lugars' act of selling their home in 1977 and re-establishing no other physical place to which they could return within the state amounted to an abandonment of their residence under Indiana law. The Board found that the Lugars lacked the mens rea required to "knowingly" violate the voter registration laws given that they had obtained and relied upon advice provided to them by their personal attorney, two former Board of Registration members and two Attorney General advisory opinions, holding that they did not lose residence within the state because their absence occurred while in service as a United States Senator. Mallon's analysis interpreted the state constitutional protection from losing one's residence while in service of the United States as a relief from the requirement that a person must spend a "minimum amount of time . . . physically within a precinct in order to maintain their status as a "resident of" the precinct, so long as the absence is the result of their service on behalf of the state or federal government." The constitutional and statutory provisions, according to Mallon, protect Sen. Lugar (but not necessarily his wife) "from losing residency in a precinct "by reason of their absence" from the precinct." State law "would not protect the loss of one's residency in a precinct due to some other reason or "circumstance in determining residency," Mallon added.
Both the board chairman, Mark Sullivan, and Marion County Clerk Beth White, indicated that they did not arrive at their conclusion lightly and both deeply admired and respected Sen. Lugar's contributions to the state and city of Indianapolis. Nonetheless, they were bound constitutionally to consider the same voter registration laws to which all Indiana residents are subject. The Republican board member, Patrick Dietrick, strongly disagreed with the board's recommendation. He first offered a motion to dismiss Wright's petition against the Lugars, which died for lack of a second. He then attempted to offer an amendment to refer the matter to the Attorney General's office for further review, which similarly died for lack of a second. Dietrick felt strongly that the Lugars' declared intent to continue residing within their former precinct was sufficient to establish residency within the meaning of Indiana's voter registration law.
In the interest of disclosure, I represented the Petitioner, Greg Wright, in today's proceeding. I want to applaud Greg for the many hours of time he volunteered in gathering evidence in support of today's hearing over the last several months. As Greg told the Board, his actions were not being made on behalf of any campaign or political party. He brought his complaint against the Lugars as a private citizen who believes the Lugars should be held to the same standard as other Indiana residents when exercising their voting privileges under our state's laws. It is important to remind people that today's action by the Board in declaring the Lugars illegally registered to vote at their current precinct does not affect in any way his eligibility to be a candidate for re-election to the Senate. The Qualifications Clause within the U.S. Constitution for Senators and Representatives imposes no requirement that a person be a registered voter of their respective state in order to be eligible to serve in the U.S. Congress. It does, however, require that Sen. Lugar and all other candidates for the Senate or House be able to establish that they are inhabitants of their state "when elected." It is debatable whether Lugar satisfies that requirement presently, though, given his lack of physical presence within the state for the past 35 years.
Some people may be tempted to jump to the conclusion that today's decision by the Marion County Election Board was based on partisan motives. Both Wright and I are life-long Republicans. There is nothing more that either of us want than to elect a Republican senator to represent this state in the U.S. Senate. Nonetheless, the law should be applied equally to all residents. If the Board had excused the Lugars from the voting residency laws applicable to other voters, it would have a difficult time enforcing the laws against other election law violators. The Lugars can easily remedy this problem. They own a farm with a residence on it. They have family members who reside within the community. If they want to register to vote in Marion County, they need to establish a "true, fixed permanent home or establishment" to which they can return to Indiana while the Senate is not in session. The rest of Indiana's congressional delegation is meeting that minimum requirement. The Lugars should be treated no differently.
The reaction of Sen. Lugars' campaign is not surprising. It's all just partisan politics by a "Democratic-controlled" board:
"Today, the Democrat-controlled Marion County Election Board ignored the Indiana Constitution, the express direction given to Senator Lugar by the Marion County Voter Registration Board, and the opinions of three Indiana Attorneys General - the officials ultimately responsible for enforcing state election law - to reach a conclusion that Senator and Mrs. Lugar have incorrectly voted in their precinct since he became a U.S. Senator.You can read my background piece on today's hearing here.
"Since Senator Lugar took office, he and Mrs. Lugar have scrupulously complied with Indiana law, which preserves the residency of Hoosiers serving their state and country outside of Indiana. The Lugars have also sought and followed the express direction of every legitimate government authority to have addressed the question," Lugar spokesman Andy Fisher said.
"It is an outrage that Indiana Democrats and Treasurer Mourdock's camp are happy to waste taxpayer money in tying up the courts. They apparently don't see any path to victory at the ballot box, so they keep maneuvering in hopes they can avoid competing head-on with Senator Lugar.
"Unfortunately, the Democrats on the County Election Board and Treasurer Mourdock's supporters are attempting to tarnish Senator Lugar and his family, and deprive them their fundamental right to vote. This personal attack comes on the heels of the Indiana Election Commission's bipartisan, unanimous decision denying a similar challenge to Senator Lugar's ability to stand for re-election.
"Hoosiers everywhere have made it clear that they won't stand for these continued, calculated efforts to unfairly tarnish an Indiana statesman and his family. They agree with Senator Lugar that we should be discussing the real issues in this election: job growth, balancing the budget, national security and building a better future for Indiana and our country."
Citing Indiana code and Constitution, the Indiana Attorney General opinion last month concluded that:
"If a person has established residency for voting purposes in an Indiana precinct prior to his or her service in Congress, that residence remains the Congressperson's residence as long as he or she remains on the business of the state or the United States. A continual physical presence is not required in order to maintain his or her residency status."
This reinforced past opinions sought by Lugar from previous Indiana Attorneys General.
UPDATE: Here's the reaction of Lugar's Republican primary opponent, State Treasurer Richard Mourdock, to today's decision:
The fact that Senator Lugar hired a team of high-priced lawyers to fight for his right to use a legal technicality so that he doesn’t have to live among Hoosiers just proves our point about how out of touch he is," said spokesman Christopher Conner. ““Our position on this issue has always been clear: regardless of how he is registered to vote, the U.S. Constitution requires Senator Lugar to be an 'inhabitant' of the state to be elected. Currently, he is not."