Wednesday, March 28, 2012

Preview Of Lugar Voter Registration Lawsuit

Marion County Circuit Judge Louis Rosenberg will conduct a hearing Friday morning to consider whether Sen. Richard Lugar and his wife, Charlene, are entitled to a preliminary injunction that will accord them an unfettered right to vote at a precinct in which they stopped residing in 1977 in the upcoming May 8 primary election. The Lugars filed suit against the Marion County Election Board after it adopted a motion on a 2-1 party-line vote at a March 15th hearing on a petition filed by citizen Greg Wright and several dozen other registered voters challenging the validity of the Lugars' voter registration that found that the Lugars were illegally registered to vote at the 3200 Highwoods Court home the couple once owned and occupied when Sen. Lugar was first elected to the Senate in 1976. The Lugars contend that the Indiana Constitution and Indiana Election Code permit both of them to vote at a residence they admit they abandoned 35 years ago because their absence from the state has been due to Sen. Lugar's service in the Senate.

In the months prior to the hearing of Wright's complaint against the Lugars before the election board, the Indiana news media has accepted without any skepticism the validity of friendly Attorney General advisory opinions over the years furnished for the personal benefit of the Lugars that they were not required to maintain any physical presence in Indianapolis in order to vote at the home they abandoned after acquiring a new home in McLean, Virginia where the Lugars moved their entire family and have lived continuously since 1977. In other words, the view is that the Indiana Constitution allows a person elected to Congress from Indiana to give up their Indiana residence and move lock, stock and barrel to Washington, D.C. and never look back so long as they continue living in the nation's capital as an elected member of Congress from Indiana. By operation of the Indiana Constitution, a fictional residence springs into existence for the benefit of the elected member of Congress based on the residence the person occupied when first elected to office according to this legal interpretation.

Since the adoption of the Indiana Constitution in 1851 not a single member of Indiana's congressional delegation, past or present, claimed they were exempt from meeting the residency requirement contained in the Indiana Constitution for all registered voters in this state until Lugar asserted this right. The advisory opinions prepared in the past for Lugar in 1978 and 1982 were made without the knowledge of the general public. Likewise, a Marion County Board of Regisration Affirmation of Registration issued to the Lugars and their oldest son, Mark, in 1978, also had not been generally known to the public. It wasn't until Sen. Lugar's long-time aide, Mark Helmke, told a reporter last year that the Lugars stayed in hotels when they returned to the state that the public began asking questions about where the Lugars were registered to vote. The issue of Lugar's residency took on added importance given the fact that when that disclosure was made, Secretary of State Charlie White faced both a civil action to remove him from office and a criminal case charging him with vote fraud because he had registered to vote at one election and at the time of his nomination as the Republican candidate for Secretary of State at the home of his ex-wife where the Indiana Democratic Party and a special prosecutor claimed White had actually not resided.

In the absence of any state or local election official willing to address the issue of Lugar's residency on their own, separate citizen challenges were launched against the Lugars' voter registration status in Marion County and Sen. Lugar's eligibility to run for the U.S. Senate. The Indiana Election Commission last month dismissed a challenge to Sen. Lugar's candidacy based on the question of whether he was an inhabitant of the state, one of the three eligibility requirements under the U.S. Senate for service in that body. Attorney General Greg Zoeller weighed in to that dispute with another advisory opinion favorable to the Lugars when the dispute went before the Election Commission. Zoeller has endorsed Lugar's re-election and allowed Lugar to film a television ad with him in his State House office despite the obvious impropriety of using state resources for political purposes. Like the previous opinions, this latest opinion was confined to the issue of whether the Lugars could vote at a precinct in which they no longer resided; it had nothing to do with Lugar's eligibility under the U.S. Constitution. That case is being appealed in the Marion Superior Court before Judge Michael Keele, who will conduct a hearing in that case the first week of April.

The election board had a much different standard of law to apply in determining whether the Lugars were legally registered to vote within a particular precinct as opposed to whether he was deemed an inhabitant of the state eligible to run for office, although both standards impose a minimum physical presence requirement, notwithstanding the Attorney General advisory opinions suggesting otherwise. The Attorney General advisory opinions rely almost exclusively on the fail safe provision of the state constitution as protecting Sen. Lugar from losing residency because his absence from the state is the result of his service to the United States. None of those opinions addressed the inhabitancy requirement Lugar must meet under the U.S. Constitution. Further, none of those opinions specifically addressed the fact that the Lugars no longer owned, occupied or maintained any legal interest in a residence within the precinct in which they continuously voted since 1977.

The findings of fact and conclusions of law prepared by the election board's attorney and adopted by the board on March 15th concluded that the act of the Lugars selling their home at 3200 Highwoods Court in 1977 and thereafter re-establishing no other residence within the precinct established an intent to abandon their residence within that precinct and made their voter registration status within that precinct unlawful. Contrary to what many people think, the election board did not as a result of the adoption of its motion at its March 15th meeting take any steps to remove the Lugars from the registered voting rolls, instruct their precinct election board to challenge their right to vote, or otherwise take any steps to prevent them from voting in that precinct at the May 8th primary election or other future elections. Essentially, the election board's action amounted to no more than offering an advisory opinion to the Lugars. The board chose that route to afford the Lugars an opportunity to re-register to vote within a precinct in which they could lawfully vote. The board also gave the Lugars the benefit of the doubt and assumed they lacked the intent to commit a criminal violation of the state's voter registration laws by continuously voting at a precinct in which they didn't reside over the past 35 years. No referral to the Marion County Prosecutor's Office was made despite evidence of the Lugars' past violations of the state's voter registration laws, the same laws that resulted in six criminal convictions being returned by a jury against Secretary of State Charlie White in neighboring Hamilton County last month.

Because no final order or action has been taken to remove the Lugars from the registered voter rolls of their precinct, the election board is arguing that Judge Louis Rosenberg lacks jurisdiction to hear the Lugars' complaint for a permanent injunction claiming that their right to vote has been disenfranchised. The Lugars, by law, may still request a ballot to vote in the same precinct they've always voted, if they choose not to heed the board's advisory opinion to re-register in a different precinct and persist in voting in their old precinct. In the event the Lugars are challenged at their precinct, they are still by law allowed to cast their votes by provisional ballot. The election board would then have to decide after the election whether to count their ballots. If the board chose not to count their ballots, the Lugars would have the right to appeal that decision to the circuit court at that time.

By seeking an order prior to the election allowing them to vote in their old precinct, the election board contends the Lugars are seeking review of a non-justiciable claim because no final order or action has been taken by the board. Because there is no justiciable claim yet, the court would be impermissibly issuing yet another advisory opinion the Lugars have been generously afforded over the years, unlike ordinary citizens. The election board also contends that if the court substitutes its judgment for the process set out in statute for challenging any registered voter, the court would be exercising a function delegated by statute to the election board to perform, resulting in a violation of the separation of powers. To obtain a permanent injunction, the Lugars must be able to demonstrate that they will suffer immediate and irreparable harm if injunctive relief is not ordered, that the benefit of granting them a preliminary injunction outweighs the harm imposed on the board, that the public interest will not be disserved by granting them an injunction, and that they are likely to prevail on the merits of their underlying claim. That's a pretty tall order for the Lugars to fill under these particular circumstances. Interestingly, despite the great harm they claim they will suffer if not granted this extraordinary relief from the court, the Lugars will not appear at Friday's hearing to testify. Instead, they will remain at their home in McLean, Virginia and leave it to their team of lawyers in Indiana to convince the court the election board acted contrary to the law by simply issuing the first unfavorable legal opinion the Lugars have ever received concerning their right to vote at a place they no longer reside.

So you've all probably concluded this all seems a lot more complicated than it might have first appeared to you. It's a mess that was unnecessarily created by self-serving politicians who, in my opinion, conferred a constitutional benefit on the Lugars that has never before been recognized at law. I believe that the current Attorney General and the past Attorney Generals who provided opinions to Sen. Lugar based on a tortured and totally illogical interpretation of our state's constitution should be ashamed of their handiwork. It has made matters much worse that so much of the media has simply bought into this faulty legal argument and dismissed a more logical interpretation of the state's constitution as pure nonsense. The framers of our state constitution would never have included this provision in the constitution if they had understood that it exempted Indiana's congressional delegation from a the most basic requirement of residency--physical presence. Talk to any average citizen on the street and they're outraged to think that it is possible that our laws would permit Sen. Lugar, or any other member of Congress from this state for that matter, to continuously represent this state without maintaining a "true, fixed permanent home" within the state to which they could return while the Congress is not in session.

The task Judge Rosenberg faces in sorting through this unnecessary mess these Attorney Generals and political insiders have created to confer this special benefit on the Lugars is not an easy one, and it's one made more difficult by the media's complete abrogation of its responsibility to research the facts and law and report all sides of this debate with impartiality rather than joining the Lugar campaign in piling on the unwarranted criticism of those who believe in upholding the rule of law and applying the law equally to all of the state's residents. It was appalling to watch the media react with a collective yawn when Sen. Lugar last week matter-of-factly announced that he had illegally billed taxpayers for hotel stays in Indianapolis while the Senate was not in session and would return at least $4,500 to the U.S. Treasury, although he was uncertain whether he would pay for it out of his personal funds or from his campaign funds. The small matter that Lugar was deemed ineligible to bill those hotel bills because he had claimed that former residence he abandoned 35 years ago as his residence on Senate travel forms flew right past the non-discerning media. The fact that Sen. David Durenberger faced criminal prosecution a little more than a decade ago for the same offense seemed to be of no significance to the media either. The Indianapolis Star editorialized its concern that this trivial matter would get more attention than it deserved. Sorry, Charlie. The Star's generosity and deference only extends to a few privileged insiders, and you're not one of them.

By way of disclosure, I represented Greg Wright, the petitioner in the challenge before the election board. I have filed an amicus brief with the Court at Judge Rosenberg's invitation in opposition to the Lugars' request for a preliminary injunction.


Bill said...

Who is representing the Marion County Election Board?

Gary R. Welsh said...

The board is represented by its counsel, Andrew Mallon.

Paul K. Ogden said...

Andrew Mallon is one sharp cookie. The only attorney who knows residency for voting issues better is Gary Welsh.

Gary R. Welsh said...

You're being too generous, Paul. There are plenty of attorneys out there who understand the residency law for voting purposes. There are just few who are willing to speak out on its negative consequences for Richard Lugar.

Paul K. Ogden said...

I can't get over the number of attorneys who see the provision that you don't lose your residency because of your service out of the state on behalf of the State of Indiana and then throw up their hands saying that Lugar is fine.

Let's say the "fail safe" provision does apply. The purpose of that law is to prevent you from being found not to be a resident because of your service. The purpose is not to allow you to give up any home in the district. Lugar didn't lose his residency because of his service in D.C. He lost it when he sold his home and had established no other residence in the district.

Gary R. Welsh said...

And of course they then twist the argument, Paul, and try to claim you are impermissibly imposing a property ownership requirement as a condition of residency. No, we're not. You can rent a room from a friend or a relative. You can rent a cheap apartment. Just anything you can point to as your intent to return to the state to reside while the state is not in session. The fail safe provision was never meant to exempt the physical presence requirement altogether as the AG claims; it, at most, means there is no minimum amount of time you have to spend at your Indiana residence in order to prove residency here in the state while you are absent on business of the state or the federal government.

Paul said...

Gary, while I agree with you that a Senator should have an indication of returning, the one concern with your argument above is that we all know that a Senator isn't going to lose an election and say "time to return to my rented room/house until I find a place." As such, the realities is that your argument does mean there will be some economic waste.

That being said, I have little faith that Lugar will return to Indiana when he retires. I also note that neither Bayh or Coats have returned either. The scary thing is that we re-elected Coats anyway. I want Hoosiers serving as my elected Indiana representatives, not Virginians or North Carolinans.