What New Election Law Will Judge Rosenberg Make Up Today?

Who needs the Indiana Election Code and years of Indiana election law precedent when you have Judge Louis Rosenberg? The trailblazing judge has been making up new election law at an unprecedented pace in his quest to ensure the installation of the Democrats big-time losing candidate for secretary of state, Vop Osili, to that position despite his overwhelming repudiation by Indiana voters in the 2010 election. The Democrats first waited until after the election to challenge White's election after he won in a landslide victory over Osili. No problem said Rosenberg, choosing to ignore the Supreme Court's recent precedent in Burke v. Bennett where the state's high court ruled that Terre Haute Mayor Duke Bennett could not be removed from office despite the fact that he was ineligible to be a candidate for Terre Haute mayor because his candidacy was prohibited by the Little Hatch Act. After Bennett's election, the statute no longer disqualified him the court held. By waiting until after the election to raise the issue, the Supreme Court said the losing Democratic candidate lost his right to challenge Bennett's election. Rosenberg simply decided the case didn't apply to Charlie White's election.

Republicans then argued that even if you accepted the Democrats' contention that White was not "legally" registered to vote at the time he was nominated by the Republicans, since even the Democrats concede White was a legally registered voter at the time of the November, 2010 election, White should be deemed eligible based on his status at the time of his election. Rosenberg decided that he shouldn't have been on the ballot in the first place because he was not legally registered to vote at the time of his nomination by the Republican Party. As the Supreme Court has instructed us in the Bayh and Evrard cases, liberally applied voter intent is paramount in determining a person's residence for voting purposes. Essentially, a person's stated intention with any supporting evidence of intent concerning that stated intention will always prevail under the standards applied by our Supreme Court. White had supporting testimony of both his wife and ex-wife, a driver's license, mail and other evidence to support his intent. Again, Rosenberg decided the law means something entirely different. Despite a unanimous finding of the Recount Commission, including a respected former Democratic judge, who actually heard the testimony of multiple witnesses and received evidence supporting that intent unlike the judge, Rosenberg declared White didn't have intent to reside either where he claimed to reside prior to his nomination or at the time of his nomination to be "legally" registered to vote in Indiana. In other words, he was simply a man without a legal residence who could not at the time have cast a legal vote in Indiana despite the fact that he has resided in the same county within a couple mile radius his entire adult life. Applying the Rosenberg standard to voters casting votes in any given election, it would mean tens of thousands of voters every election could be denied the right to vote based on the arbitrary decision of an election board of where it and not you determined was your residence at the time.

Any person who has worked as an election judge, clerk or inspector at an Indiana election knows that under no circumstances would a voter in White's situation have been deemed an "illegally" registered voter as the law has been applied prior to Judge Rosenberg's ruling. White would have been permitted to vote period. Anyone who says otherwise is simply lying. Go back and review the archived video of the Marion County Election Board meetings when the board considers all the challenges precinct election boards made in past elections held in this county. In almost every case, the election board overruled any objections to a disputed vote cast in that election. I've come to the conclusion after watching those meetings that it's almost a waste of time to challenge a person's vote having served as an election judge in multiple elections. The election boards almost always resolve any doubts in favor of the voter regardless of the substance of the challenge. What we have seen take place in this Charlie White saga is a judge turning well-established election law on its head at every turn to reach the outcome he desires, which is to install as the winner of the secretary of state's race a candidate of his political party who received only 38% of the vote. That's not even taking up the issue of whether Judge Rosenberg should have been sitting in judgment of White given his daughter's public role in advocating and publishing a legal analysis declaring her opinion that White was ineligible to hold the vote before the Democrats even filed their initial complaint against White.

The Attorney General and White have both declared their intention to appeal Judge Rosenberg's unprecedented rulings in this case to a higher court, which ultimately will be decided by the Supreme Court. The Democrats want White tossed from office and Osili installed now while White challenges the outcome, which would be an unprecedented move and contrary to the Burke v. Bennett decision, but precedent has not stood in the way of this judge making contrary rulings in the past so anything is possible. Rosenberg has said he will rule this morning whether his party's chosen candidate or the people's chosen candidate will serve in the secretary of state's office while this case makes its way through the appeals process.

Make no mistake about it. If Vop Osili is installed as secretary of state, this race was stolen lock, stock and barrel by a judge who simply decided that he had the right to make up the law as he went along to make the candidate of his party's choice the winner. The fact that leaders of both parties, lawyers learned in the law and organizations like the ACLU who are suppose to fight to ensure that the rule of law still has meaning have not been screaming at the top of the their lungs about this outrage that is playing out in the Marion Co. Circuit Court should alarm everyone who holds dear their precious right to vote. What this case means is that your votes simply don't count. If a judge of the opposite political party decides his party's candidate and not the people's chosen candidate should hold that office, he can simply twist the law any way he likes to make your opponent the winner. We are seeing an Attorney General of this country who refuses to prosecute gang members who threatened voters with physical violence to prevent them from voting in the 2008 election, who at the same time is declaring a South Carolina Voter ID law essentially identical to an Indiana law that has been in effect for years and affirmed by the U.S. Supreme Court as violating the Voting Rights Act. Yes, Eric Holder is actually arguing that requiring a voter to prove his identity at the polls is tantamount to imposing a poll tax despite the Supreme Court's affirmation of Indiana's Voter ID law, a law since adopted by many other states. We are seeing our most precious right taken away from us as the public yawns and tunes in to learn the latest news about Kim Kardashian or Tim Tebow.

UPDATE: Judge Rosenberg may have gone up to the edge of the cliff, but he had enough doubt about his trailblazing electionmlaw-making to step back and not take the jump of making good on his order to remove White from office and install Osili to that office immediately. Judge Rosenberg wisely issued a stay of his order this morning until it is properly reviewed and decided by a higher court. Unless the Supreme Court decides to oveturn decades of law, Charlie White wins this case hands down, but you would never have a clue of the strong legal ground upon which White's defense rests by the biased, opinionated news reports fed to us on a daily basis by the local news media. Here's a copy of Judge Rosenberg's order here. Note that the Order is dated yesterday but was not released until today. Similarly, Judge Rosenberg held up the release of his Order determining that White should be removed from office a full day so that it was released the day before the start of the Christmas holiday weekend.