“Voting records show McIntosh participating in several Indiana primaries and general elections while at the same time holding a Virginia driver’s license which, under Virginia law, you can only have if you are a resident,” the press release reads, quoting from IndyPolitics.Sen. Lugar last week agreed to re-register at his family's farm after a successful citizen complaint established to the satisfaction of the Marion County Election Board that Lugar had been voting illegally from a home in Indianapolis he sold 35 years ago. Lugar initially filed suit against the Board to overturn their decision, claiming the Indiana Constitution allowed him to vote using the residence he had established at the time of his first election to the Senate in 1976 regardless of whether he subsequently abandoned the residence. After cooler heads prevailed, Lugar agreed to come into compliance with the law and register to vote at his family's farm in Marion County.
Virginia statute states that you must show two proofs of identity, one proof of legal presence and one proof of Virginia residency, in order to obtain a driver’s license in that state.
Today, Dr. John McGoff, a front running candidate for the 5th District seat, responded, “You have to ask the important questions. Where does David McIntosh live? Where does the McIntosh family go to church? What school do his children attend? The answer to all of these questions is Arlington, Virginia, not Indiana….”
When IndyPolitics.org asked for a comment on the allegations, a McIntosh campaign staff member stated that McIntosh “was forced to get a Virginia driver’s license, but he never gave up his Indiana residency.”
Dr. McGoff questions McIntosh’s bid for election in the 5th District, “You can only be forced to obtain a Virginia driver’s license if you actually live in Virginia. If David McIntosh wanted to re-enter Congress, perhaps he should have sought office in Virginia. I’m not sure if it’s pride or arrogance, but the voters of the 5th District will not tolerate another insincere career politician after 30 years of Dan Burton.”
Residency has been an issue in at least two recent Indiana elections. Both incumbent Senator Richard Lugar and Charlie White have faced challenges based on residency.
McIntosh, by contrast, apparently relies on a rented residence owned by a defense contractor executive as his voting residence in Indiana since he gave up his seat in the House following his unsuccessful run for governor in 2000. McIntosh and his family moved to Washington where they have been living for more than a decade before McIntosh decided to return to Indiana to run in the newly-drawn 5th congressional district being vacated by retiring U.S. Rep. Dan Burton (R). In order to run for Congress, McIntosh need only be able to prove that he is an inhabitant of the state at the time of this year's November general election under the U.S. Constitution. He is not required to reside within the 5th district or be a registered voter of the state so long as he can prove he is an inhabitant of the state "when elected."
The legal question for McIntosh, as with Lugar, is whether he is legally registered to vote in the precinct in Indiana at which he is currently registered to vote. The fact that he resides with his family in Virginia and has a Virginia driver's license makes the case pretty weak for proving his residence in that Indiana precinct for voting purposes. A spokesman for the McIntosh campaign told IndyPolitics that the Madison County Prosecutor advised him that there was nothing improper with his current voter registration. "When asked about whether they are concerned about possible voter fraud, the spokesman said they have a legal opinion from the Madison County County Prosecutor’s office which assured them they were not breaking any laws because 'McIntosh had always been a resident in the 5th District' and there was no issue there." Sen. Lugar also had an advisory opinion from the Attorney General claiming it was perfectly legal for him to continue voting at a home in Indianapolis he sold 35 years ago that wasn't worth the paper on which it was written. A political foe can certainly make a lot of mischief with McIntosh's residency, whether legal or not, as Sen. Lugar has already learned the hard way.
McGoff has cited recent polls as showing him running neck-and-neck with McIntosh in a crowded primary race. Marion Mayor Wayne Seybold recently won the endorsement of a number of Republican state lawmakers in the 5th district, as well as the endorsement of Rep. Burton. McIntosh and former U.S. Attorney Susan Brooks have raised by far the most amount of money for their respective campaigns. McGoff enjoys high name recognition from his two previous unsuccessful bids to unseat Burton in the past two elections.
UPDATE: Susan Brooks has weighed into the debate over McIntosh's residency. WISH-TV has this quote from her:
"I call on David McIntosh to tell us where has he sworn under the penalty of perjury that he is a resident - of which state?" Brooks said.McIntosh's campaign produced to WISH-TV's Jim Shella a letter from Madison Co. Prosecutor Rodney Cummings saying there was nothing improper with his voter registration status. Dr. McGoff is not impressed. "When I heard that he's not living here and not working here," McGoff said, "I think that is an important issue for voters in the Fifth District to know." I'm not sure where this whole thing got started of Attorney Generals and prosecutors producing advisory opinions concerning the voter registration status of political candidates, but it is an entirely inappropriate and unseemly practice. As I told someone the other day, poor Charlie White didn't have the malice of forethought to use his political muscle to get an Attorney General or prosecutor to write an opinion for him to exonerate him from any potential wrongdoing. Brooks' husband, David, represented Charlie White in the appeal of the challenge to his eligibility to serve as Secretary of State based on his voter registration status before the Indiana Supreme Court.
UPDATE (4/5/12): The Star's Chris Sikich has more on McIntosh's residency problem today. He lays out the relevant facts of McIntosh's residency as follows:
Virginia authorities told McIntosh to obtain a Virginia driver's license because of his home there, Streeter said. His family lives in Virginia, and his two children go to school there.
McIntosh, though, has voted in Indiana. He voted from a home he owned in Muncie from 1993 until he sold it in 2008. Although McIntosh rented out the main floor after moving out of state, his campaign maintains he kept a portion of the home for his own residence.
He voted from a Pendleton home he rented from 2008 to 2011, and he switched his residence last year to a home he rents in Anderson. Streeter said McIntosh no longer has the Virginia license, having switched back to an Indiana license.
No law requires congressional candidates to live in their district, though they have to be an inhabitant of the state. McIntosh's campaign says he has been.As I understand it, McIntosh used a residence owned by Randall Wilson, a CPA who serves on the board of Anderson-based Xtreme Alternative Defense Systems (Xads), a company that has contracts with the Defense Department, for his Pendleton voting address from 2008 to 2011. Just like Lugar, McIntosh had the malice of forethought to suspect the residency problem might become a political, if not a legal issue, one day and used his insider political status to obtain a favorable advisory opinion from the county prosecutor:
Knowing the residency issue had cost other politicians, his lawyer, Jackie M. Bennett Jr., wrote a letter to Madison County Prosecutor Rodney Cummings in July, citing several legal precedents to confirm McIntosh's residency.
Cummings agreed, writing back that McIntosh has taken reasonable steps to maintain his residency.
"It is my considered judgment that David McIntosh has been, and continues to be, a resident of Madison County, Indiana, and as such, he may vote and seek office as a resident of Madison County," Cummings wrote.
The Star doesn't include the full contents of the Cummings advisory opinion, which as I said before, isn't worth the paper on which it's written. If a complaint was filed against McIntosh and the election board agreed that McIntosh had violated election laws by illegally registering to vote at someone's home where he clearly wasn't residing, Cummings would be required to recuse himself from the case and appoint a special prosecutor because of the improper advisory opinion he issued to McIntosh. The Attorney General and county prosecutors have no business issuing advisory opinions for the benefit of private citizens concerning the legality of their actions, which essentially amounts to allowing them to issue free get out of jail cards to their political cronies.