Thursday, February 16, 2012

Note To Star: A Political Science Professor Is Not A Constitutional Law Expert

The Star's Mary Beth Schneider has a story on yesterday's big push by the campaign of Richard Mourdock to make the fact that Sen. Richard Lugar lost his eligiblity to represent Indiana in the U.S. Senate in 1977 when he decided to sell his home and stop maintaining any physical presence in the state he has represented for the past 35 years in years. Instead, we're seeing a tap dance around the U.S. Constitution that says in no uncertain terms a person must be an inhabitant of the state when he is elected in order to be a senator. A state law, which cannot trump the U.S. Constitution, continues to be cited by Lugar's defenders, including our current Attorney General, whose wife was once on Lugar's Senate staff payroll. Schneider writes:

Willkie said the issue of Lugar's residency was settled in 1982, when then-Indiana Attorney General Linley Pearson, at Lugar's request, issued a written opinion stating that senators did not lose their residency while out of state serving their state or nation.
"If such a person was entitled to vote in this state prior to departing for service in Congress, whatever residence that person possessed for voting purposes prior to such departure remains his or her residence," Pearson, a Republican, wrote then. "There is no requirement that such a person maintain a house, apartment or any fixed physical location."
Indiana's current attorney general, Republican Greg Zoeller, said his office agrees. This, he added, "appears to be more of a political subject rather than a legal one."
That, though, doesn't make it insignificant.
Robert Dion, a political science professor at the University of Evansville, said the legal question "is largely a settled one. He's on solid footing. He's in compliance with the law.
"However, the real question is: Does this bring with it political consequences when he faces the voters in May?" Dion said. "Any longtime lawmaker is vulnerable to charges that he's grown out of touch. And not owning a home in the state you represent might be seen as evidence of losing a connection with the state. In the right hands, that kind of charge could do some real damage."
Burdett Loomis, a political science professor and congressional scholar at the University of Kansas, said at one time it was fairly typical for members of Congress to live in Washington, rather than their home states, though that has changed as travel became easier and the federal funds to pay for the trips more available.
But, he said, "anything is fair game" in an election.
The Star's reporters have had access to my analysis for weeks now that cite actual federal court decisions which say otherwise, one as recently as the 5th Circuit's 2006 decision in the Tom DeLay eligibility case. They pretend multiple federal decisions interpreting the eligibility clauses for House and Senate members doesn't exist. It's the natural born citizenship battle all over again where a U.S. Supreme Court decision, Minor v. Happersett, which stated in no uncertain terms that only children born to U.S. citizen parents can be considered natural born citizens, is simply read out of existence. I'm telling you folks, the Constitution is dead. We have become a nation of men, not of laws. The people in power simply make up the law as they go along to suit their own ends. For the last time, it makes no difference what a state law says; it only matters what the U.S. Constitution says as to a person's eligibility. It says that "No person shall be a Senator who . . . shall not when elected, be an inhabitant of that state for which he shall be chosen." Lugar admits he is no longer an inhabitant of this state. No state law can save him from that requirement. If Lugar is re-elected this year and presents himself to the Senate to be sworn in, the Senate as a body (in particular if it remains under Democrat control) can challenge his eligibility and deny him a seat in the Senate on his failure to be an inhabitant of his state. "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members," which means a court won't interfere with its judgment.

I'll give the South Bend Tribune credit. At least their reporter acknowledges Lugar's failure to maintain a residence in his home state is somewhat of an anomaly among members of Congress:
While nearly all members of Congress have living arrangements in the Washington, DC area, most also own homes or a rent apartments in the states they represent. Lugar typically stays in hotels when he returns to Indiana and no longer has a physical address there.
Gee, I wonder why? Could it be they've been given different advice than Lugar? As to Lugar's suggestion that he's too poor to maintain two residences, I say bull. Congress enacted a special tax break that allows only members of Congress to expense the cost of their second homes in Washington, a benefit afforded to no other Americans who maintain a second residence for the convenience of their work.

UPDATE: There's an important distinction in issues that needs to be made in this whole issue of Lugar's residency challenge. Abdul Hakim Shabazz has a recorded interview with the Indiana Election Division's co-counsel, Brad King, here, where King articulates accurately the fact that the U.S. Constitution determines whether a person is eligible to be a senator and the fact that the Senate is the final judge of a person's qualifications. He notes the three requirements: a person must be 30 years of age, a U.S. citizen and be an inhabitant of his or her state when elected. A state election official, when considering a challenge at this point, could only make a determination as to whether a person meets the age and citizenship requirement. Whether the person is an inhabitant is determined on the date of the general election at which the person is elected. In other words, the Indiana Election Commission is without authority to determine that Lugar is ineligible because he is not an inhabitant of the state, or even ascertain that fact until after this year's election. If you followed Mourdock's press conference yesterday, he asked Sen. Lugar to re-establish a residence within the state to remove this as an issue; he did not say he should be removed from the ballot. Regardless of what a state official or judge says about a person's qualifications, the Senate is the final judge under the U.S. Constitution.

A totally separate issue from his constitutional eligibility is whether Lugar is legally registered to vote in Indiana. King notes in his interview with Shabazz that the U.S. Constitution does not even require Lugar to be a registered voter of this state in order to represent it in the Senate because that would be imposing an additional qualification not specifically set out in the U.S. Constitution. It is true that for purposes of residency, the Indiana Constitution provides that a person such as Lugar does not lose their residency due to their absence from the state while in service to their country. That precludes someone from claiming a member of Indiana's congressional delegation lost his residency in Indiana because he primarily lives in Washington; it does not, however, say that if that representative or senator wishes to be a registered voter of this state, it is not necessary that they maintain a physical address within the state to which they can return. The law presumes the person is renting a home or apartment or relying on a relative's or friend's residence for purposes of claiming an Indiana residence that permits them to register to vote, obtain a driver's license, register their motor vehicles, pay their taxes, etc. Lugar and his wife have been using the address of a home they haven't owned for more than 35 years as their residence. Every time they fill out an official document claiming they reside at that residence, they are committing perjury. That includes all the absentee ballots Lugar and his wife have cast over the years using that address. Evan Bayh, for example, claimed he and Susan once lived at Fred Glass' home for purpose of registering to vote in Indiana. Later, the couple purchased a cheap condo on the city's north side that they used to claim as their Indiana residence for voting and other purposes. If the law is strictly applied in the fashion it was applied to Charlie White, Lugar is guilty as charged. White actually received mail at his ex-wife's home, had his driver's license and motor vehicle registered there and occasionally slept there, and yet he was still deemed to have committed vote fraud by registering to vote there. How in the hell can Lugar be excused for using a home at which he hasn't lived in 35 years as his registered voting address?

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