Carrie Ritchie, writing for the Indianapolis Star, has an article entitled Jury finds Indiana Secretary of State Charlie White guilty on 6 of 7 felony charges. (Ritchie, by the way, did a phenomenal job reporting on the trial as it happened via Twitter. Really a great mix of the old media using the new media, in my ever so humble opinion.)
White was convicted of three counts of voter fraud, two counts of perjury, and one count of theft. He was acquitted of committing fraud on a financial institution. Basically, he lied about his residence and registered to vote at a place where he wasn’t living. He did so because he had moved out of the precinct where he had been elected to the Fishers Town Council and, had he been honest about where he lived, would have no longer been eligible to continue serving and get a paycheck. He claimed he was living in his ex-wife’s basement when, in reality, it appears he was living with his fiance in the town home they’d bought. One of the most telling pieces of evidence Ritchie tweeted about was that cell phone towers near the town home picked up something like 400 (or maybe it was 600) calls from White’s cell phone after business hours versus only something like 60 from the tower near his ex-wife’s home.
I feel a little bad for White, not because I believe he made some kind of honest mistake or because I feel like the jury got the facts wrong. Rather, at some level, voter registration laws don’t seem like “real” laws. I know they are, and I know we don’t get to pick and choose our laws, but at a gut level, the voter registration requirements feel like just so much bureaucratic paperwork.
For the state, the bigger question is for the office of Secretary of State. The suit before the Recount Commission resulted in a reviewing trial court determining that White was not a properly registered voter at the time of the election and, therefore, was never an eligible candidate. (As a matter of fact, this jury verdict helps support that determination — though, I’m not brushed up enough on my collateral estoppel rules to recall whether this criminal jury verdict could be used at some point in the legal proceedings to bolster the claim in that civil matter). The upshot of that Recount case is that White was never an eligible candidate and, therefore, the eligible candidate that received the most votes gets the job — Vop Osili (Democrat). The felony conviction, on the other hand, results in an officeholder’s removal from office; with a replacement appointed by the Governor (Republican).
Political parties being what they are; the matter of whether the Governor’s appointment as replacement or Vop Osili as highest eligible vote recipient gets to keep the job will be litigated three ways from Sunday. Conceptually, I’m pretty firm on the idea that this is Osili’s. Someone could run me through the law to show me why I’m wrong; but right now I’m fairly certain that White’s election was void ab initio. He was never the valid winner because he never was an eligible candidate. As such, the later conviction is of someone who never legally held the office in the first place. Under IC 3-12-11-25, Vop Osili was entitled to a certificate of election.
[W]henever the [recount] commission makes a final determination under section 18 of this chapter that the candidate who is subject to a contest proceeding is not eligible to serve in the office to which the candidate is nominated or elected, the candidate who received the second highest number of votes for the office is entitled to a certificate of nomination or certificate of election even though a certificate may have been issued to another candidate upon the tabulation of the votes.
Under that statute, Osili was entitled to a certificate of election. Just as a thief can’t pass legal title to property to someone else; White’s actions can’t serve as the basis for conveying the office to someone else. The property rights still belong to the original owner; and the right to the office, by virtue of the certificate of election, still belongs to the eligible candidate that received the most votes. Even if I’m correct about that, I wouldn’t be surprised if the Governor’s replacement is allowed to occupy the office through the 2012 elections which could, potentially have consequences for those elections.
Thus the really interesting question becomes whether, given White’s ineligibility, the Republican party is stripped of its “major party” status, thereby losing automatic ballot access or right to a primary. Hmm. I wonder what Lugar (or those who want Burton’s seat) thinks about that?
I’m pretty sure they changed the law on the “major party” status matter back in 2011 to clean up this mess. They didn’t retroactively change the law concerning who gets the office if White wasn’t eligible – though, for challenges after 2011, the Governor would name the replacement in this situation.
See HEA 1242-2011, SECTION 78 which amended IC 3-12-11-25(b)(2) to say:
As always a cogent and thorough explanation, Doug. Thanks for walking me through this.
I like to think of the Indiana Code as a computer program. Sometimes you get nothing but a bug report; but most times, if you walk through the steps, it’ll give you an answer.
They did change the law in the last session, wholly anticipating this outcome. And to your point of who now takes office, I think once Osili does it becomes crystal clear why Mitch Daniels and other Republicans were urging White to resign. If he had resigned, Daniels could have appointed a Republican.
I see a lot of gnashing of teeth in Republican circles about this as a ‘witch hunt’ or other such, and pointing to others, such as Senator Lugar, ostensibly guilty of the same crimes. As a political partisan who sees his own party routinely tossed from the ballot for minor clerical infractions, I don’t have a huge amount sympathy. White’s party helped write election law, and White is a lawyer besides. He should have been one of three people most aware of election law at the time of his election. If his party doesn’t like it, because this time the game of ‘gotcha’ came back to bite their side, they can change the laws.
I don’t think White’s resignation would have mattered. The mechanics of IC 3-12-11-25 aren’t concerned with replacing a vacancy; they are concerned with who is entitled to a certificate of election. If White was ineligible, Osili was entitled to a certificate of election which trumps that of White’s. That White later does something – resigns, gets convicted – wouldn’t (or shouldn’t anyway) retroactively impair Osili’s right to that certificate.
As of 8:30 AM, his picture was still showing as SOS on SOS website.
http://www.in.gov/sos/
White made several other mistakes:
1) He wanted a jury trial
2) Brizzi’s/White’s strategy not to have White testify. When you have a colorable (although not a great) factual defense, the defendant
hopefully with some charisma, testifies and takes his chances on cross-exam.
3) Once the jury had the case for more than 90 minutes, the defense attorney at least explores the possibility of cutting a deal with the Special Prosecutor (ie., drop all felonies in exchange for guilty pleas to 2 or 3 misdemeanor counts + agree to resign). Admittedly, don’t know if this ever took place.
It’s really unfair that minor parties still have to include the votes for Charlie White as part of their calculation of ballot access requirements. IC 3-8-6 If he was not an eligible candidate, votes for him don’t count. It’s just like votes for Mickey Mouse, or undeclared write-in candidates, which also shouldn’t be included in the total. In 2008, Obama, Clinton, and McCain allegedly failed to gather the 4,500 signatures required to make their party’s primary ballot. Rick Santorum failed to make the ballot this year. Yet minor parties must collect 34,000+ signatures for the same office (over 9 times more than major parties), without the help of voter lists and other tools available to established parties. Even if votes for White do not count, that still leaves 15,000+ required signatures, or 3 times what the major parties collect. Yet while White’s offense may hand the office to Democrats, all others outside of this 2 party equation are unfairly burdened by this seemingly retroactive change in law.
The ballot access laws do seem unduly burdensome in light of the legitimate purpose they do serve. You don’t want the ballot to be littered with a parade of people who just want to see their name on a piece of paper. But, the threshold should be much lower to allow third parties that, nevertheless, have a legitimate message and a non-trivial constituency.
I am hopeful that the two parties will see that they are each one irresponsible candidate away from losing their ballot access, and will broaden the ties to any statewide office (rather than specifically SOS), and will lower the threshold back to what it was in 1994: 0.5%.
Uniform rules would be refreshing, for sure. The Libertarian Party has been able to maintain ballot access for nearly two decades now. But there is no good reason that other legitimate parties, such as the Greens especially, shouldn’t be on the ballot. Bill Stant gave it a good shot in 2006, but could not muster the signatures required. It would have been vastly easier for him to get the signatures had he been running for governor, which is a much, much higher profile office than SOS. Well, at least that was true until this case arose.
So, we know this means nothing, right. Republican obstructionism in this case (White should have been forced from office in 2010) will enable the Republicans to count on the time litigation takes to run out the clock on what should be Osili’s rightful term. Oh, Osili might get ten minutes prior to the conclusion of the term, but the successful legal and political strategy was to play four corners offense and wait for time to expire and then for the Governor to appoint a successor, despite lacking the power to do so.
Don’t pack the current office Vop, yet.
Republican obstructionism in this case (White should have been forced from office in 2010)
No offense, but you have no idea what you are talking about. There was no way that “Republicans” could force White from office. I have inside knowledge that Mitch was doing everything he could to get White out of there, so that he could install one of his cronies.
My buddy spoke with White in his office on the first day of candidate filing (whatever day that was, can’t recall now), and he had quite the story to tell about Mitch. Quite a few F bombs and MF’ers thrown in for good effect.
With that said, I agree that, now that White has been convicted, more than likely Mitch will name a successor and allow the litigation to run out the clock till 2014. Makes perfect sense. I am predicting that Mayor Costas of Valpo gets the nod.
I thinking there is much we (most of us, at any rate) don’t know concerning the details of this case. Why was Charlie White singled out? Surely not for simply crossing the Governor? Why didn’t he testify on his own behalf? Why can’t he go anywhere without his Mom & Dad? OK, that was a cheap shot, but Man, grow up already.
Seriously though, the more I think about this, the less it adds up. Indiana Republicans don’t often “eat their young”. I think there are a lot of unasked questions laying about concerning this whole mess.