Cummings Has It Wrong On McIntosh's Residency

Laying aside the inappropriateness of a county prosecutor offering advisory opinions to private citizens concerning the legality of their registered voter status, Madison Co. Prosecutor Rodney Cummings simply has the residency law for voting registration purposes wrong. Last year Cummings provided a favorable advisory opinion on the legality of former U.S. Rep. David McIntosh's voter registration status in a Madison Co. precinct after a well-known Washington, D.C. criminal defense attorney, Jackie Bennett, Jr., wrote Cummings a letter and asked him to issue a favorable opinion to his client, David McIntosh. It was undisputed that McIntosh had sold his former residence in Muncie and moved his family several years ago to a Virginia suburb outside Washington, D.C. where he works, owns a home and his children attend school. McIntosh had even obtained a Virginia driver's license, where he was required under that state's law to prove he was a Virginia resident in order to be issued a driver's license. McIntosh has rented space in two homes that he hasn't occupied in Pendleton and Anderson for voting registration purposes in Indiana. Cummings defended his opinion to the Anderson Herald Bulletin after McIntosh's opponents raised questions about the legality of his voting registration status:

On Friday, Cummings elaborated by saying the essence of residency lies in intent. He cited a 1988 Indiana Supreme Court case that ruled in favor of Evan Bayh who was running for governor. Bayh had been living out of state most of his life as the son of Sen. Birch Bayh but had been born in Terre Haute. The Supreme Court upheld a lower court ruling by writing, “After hearing evidence, the trial court concluded that Bayh met the constitutional residency requirement. Specifically, the court found that Bayh has been domiciled in Indiana since his birth and had not intended to abandon his Indiana domicile and establish his domicile elsewhere.”

Cummings called it a state of mind test.

What Cummings fails to grasp is that the residency standard that applied to Evan Bayh was a totally different standard than applies to McIntosh's voter registration. Bayh was defending a challenge as to whether he was a "resident of" Indiana within the meaning of the residency requirement of the Indiana Constitution for candidates for governor. The Indiana Constitution requires a person to be a "resident in" the state for voting purposes. The Indiana Supreme Court distinguished the differing standards in its decision holding that Bayh had been a "resident of" Indiana for the preceding five-year period for purposes of being a candidate for governor. The Bayh court noted that the term "resident of" did not require actual physical presence within the state, unlike the "resident in" standard used for voting registration purposes. The framers of the 1851 Indiana Constitution changed "resident in" to "resident of" for the gubernatorial eligibility clause only because of their desire to preclude the physical habitation requirement provided for in the constitution for citizenship. McIntosh may be a resident of the state applying the Bayh standard and still not "reside in" the precinct in which he is currently registered to vote to make his voter registration legal within the meaning of Indiana's voter registration laws.

 

 

Sen. Lugar faced a similar, although factually different, situation with his recent voter registration problem. Lugar was registered to vote in a precinct in which he had stopped residing 35 years ago when he sold his home within that precinct. The Marion Co. Election Board ruled that Lugar's registration at his former home was illegal; however, it determined that he had demonstrated sufficient physical connection to a farm his family owned in Marion County to legally register to vote within that precinct. To remedy the problem, Sen. Lugar re-registered within the precinct in which his farm was located. McIntosh has definitely evidenced an intent to be a resident within the precinct he is registered by entering into a lease with the property's owner; however, his act of declaring himself a Virginia resident in order to obtain a driver's license in that state conflicts with his declared intent. As one of his opponents has pointed out, he made representations under penalties of perjury to obtain his Virginia driver's license. I've not been able to confirm this, but others have stated that McIntosh's wife had registered to vote in Virginia at the same time he was registered in Indiana according to that state's voter registration records. If McIntosh's residency within that precinct is challenged, he could face a tough time reconciling conflicting evidence. That's to say nothing of his former voter registration in Pendleton, where he was supposedly renting a room in a home owned by another person where people doubt he ever resided.