Thursday, February 23, 2012

Zoeller Opinion Only Says Lugar Has Residency For Voting Purposes

An opinion released by Indiana Attorney General Greg Zoeller is being construed by the media to mean something other than what it actually says. Zoeller's opinion states only an interpretation of Indiana's Constitution and statutory law to mean that Sen. Richard Lugar did not lose his residency in Indiana for voting purposes. The opinion says nothing about whether Lugar is constitutionally eligible to represent Indiana in the U.S. Senate. The U.S. Constitution mandates that he be an inhabitant of the state at the time of his election. By his own admission, Lugar stopped living in Indiana 35 years ago when he sold his home here. Ever since he has relied upon that former address as the registered voting address for him and his wife. Zoeller's opinion says state law permits him to do that, although I think Zoeller and his predecessors have conflated the state constitutional provision beyond its original meaning. The opinion signed by Matthew Light reads:

If a person has established residency for voting purposes in an Indiana precinct prior to his or her service in Congress, that residence remains the Congressperson's residence as long as he or she remains on the business of the state or the United States. A continual physical presence is not required in order to maintain his or her residency status.
That says nothing of the requirement set out in federal court decisions clearly establishing that members of Congress must be inhabitants of their respective states "when elected", not just the first time the person stands for election to the Senate or the House of Representatives. The Lugar campaign and the media have misrepresented the argument made by Lugar's primary opponent, Richard Mourdock, to suggest Mourdock was saying he wasn't eligible to vote in Indiana. He said no such thing. Mourdock cited the U.S. Constitutional "inhabitancy" requirement for Senators and asked Lugar to re-establish a home in Indiana to avoid running afoul of this requirement should he be re-elected at this year's November election. Lugar's campaign and the media have conflated the Attorney General's opinion to mean that he is constitutionally eligible to be elected to the Senate without having any physical presence in the state. Under the U.S. Constitution, the Senate gets the final say on the qualifications of its members upon their presentment to that body after their elections to take their oaths of office.

It should be pointed out that Zoeller's opinion says nothing about the right of Lugar's wife, Char, to continue casting votes in Indiana as she has done for the past 35 years. Although Zoeller and previous Attorney Generals read the state constitution to permit the state's Senators and Representatives to give up their residency altogether, I believe the intent of the framers of that provision was to ensure that they would not be deemed to have lost their residency due to the fact that their congressional duties require them to spend the majority of the year in the nation's capital. I don't believe it was ever contemplated that Indiana's congressional members could simply take permanent leave of the state upon their initial election and never look back. Indeed, most, if not, all of the rest of Indiana's congressional delegation maintains some form of residence within the state, even if they primarily reside with their families in Washington, D.C.


Marycatherine Barton said...

With the strong pressitude media support he has, Senator Lugar is going to be a hard man to unelect.

Paul K. Ogden said...

MCB, the Senate can just refuse to seat them even if he gets elected.

Gary is exactly right. The Zoeller opinion says nothing about Lugar's qualifications under Article I of the Constitution which requires he be an "inhabitant" of the state.