I’ve had a chance to go over the Marion Circuit Court decision (pdf) on the challenge to whether Republican Secretary of State nominee, Charlie White, was ever an eligible candidate for the office. The contention has been that he moved out of the precinct in Fishers where he was a town councilman but didn’t update his registration because he would have lost his council seat and, because he was not properly registered as a voter, he was not an eligible candidate.
Time line:
1998 – 2006: Married to Nicole, lived at Broad Leaf in Fishers (14th district); registered to vote at Broad Leaf.
Dec. 2006: Divorced, moves to Pintail in Fishers (14th district)
Jan. 2007: Quitclaims interest in Broad Leaf to Nicole, remains on mortgage; registers to vote at Pintail.
May 2009: Terminates lease at Pintail, moves belongings into Broad Leaf basement.
June 2009: Becomes engaged to Michelle; Nicole has remarried.
November 2009: Leases Overview condo (Fishers 2d district). (Splits time between Nov. 2009 and June 1, 2010 staying with Michelle at Overview and crashing in Nicole’s basement in Broad Leaf)
Feb 22, 2010: Changes registration back to Broad Leaf (Fishers 14th district)
Feb 26, 2010: Buys Overview condo (has paid rent since November.)
May 28, 2010: Marries Michelle.
June 1, 2010: Moves into Overview permanently.
June 19, 2010: Republican party certifies White’s nomination as SoS candidate.
July 15, 2010: Deadline to register to vote to be a qualified candidate.
Sept. 2010: Controversy over registration breaks in the news.
Sept. 22, 2010: Changes registration to Overview.
October 4, 2010: Deadline to register to vote to participate in general election.
Law:
IC 3-8-1-1: “A person is not qualified to run for [office] unless the person is registered to vote in the election district the person seeks to represent not later than the deadline for filing the declaration or petition of candidacy or certificate of nomination.” (So, in this case, by July 15, 2010.)
IC 3-5-5: Chapter for determining residency of a voter or potential voter and a candidate. A person can’t reside in more than one precinct (sec. 3), a person retains residency in the precinct until the person abandons the residence (sec. 4). A person does not gain residency by moving without the intent of making a permanent home in the precinct. (sec. 7)
IC 3-5-2-42.5: “”Residence” means the place (1) where a person has the person’s true, fixed, and permanent home and principal establishment; and (2) to which the person has, whenever absent, the intention of returning.”
It was pretty clear that White abandoned his Pintail residence — the lease terminated, he moved out. But, he never established a new, permanent residence in the 14th precinct after that. The judge compares White’s stay in the Broad Leaf basement to a stay in a motel while one is looking for a job or to a student’s stay in a dorm while studying. He says that when White began staying with his ex-wife and her husband, they were hospitable, but there was no evidence that this was ever intended as anything more than a temporary arrangement; he was a guest whose invitation could be withdrawn at any time. Because his physical presence at Broad Leaf did not coincide with intent to make it his permanent abode, the court reasoned, White did not establish the Broad Leaf address as a permanent domicile or residence within the meaning of the registration residency statute. “Intent and conduct must converge to establish a new domicile,” the court stated, citing a challenge to Evan Bayh in the 80s.
For my part, I would have liked an analysis of IC 3-5-5-18: “an individual with a nontraditional residence whose residence is within a precinct, but is not fixed or permanent, resides in that precinct.” But, perhaps the Secretary of State – either in person or through the Attorney General did not pursue that argument for whatever reason and waived it.
Something of an aside, and I can’t believe that, even if this decision stands the Republicans wouldn’t get bailed out, but IC 3-5-2-30 suggests that the Libertarians and not the Republicans would be the other Indiana “major party” for ballot access purposes:
Sec. 30. “Major political party” refers to:
(1) with respect to the state, either of the two (2) parties whose nominees received the highest and second highest numbers of votes statewide for secretary of state in the last election; or
(2) with respect to a political subdivision, either of the two (2) parties whose nominees received the highest and second highest numbers of votes in that political subdivision for secretary of state in the last election.
Andysonson at Daily Kos speculates:
To close, let me reclarify what Rosenberg’s ruling and a subsequent agreement from the Indiana Supreme Court could have in store for our state. Democrats could get the top ballot line for every single race in the state (no matter how down in the weeds) for the next three years. Democrats could get inspectors in all precincts, meaning that we control every precinct board in the state. Furthermore, the Indiana Election Commission and all precinct boards would consist of Democrats and Libertarians. With Osili as Secretary of State, we could gain a majority control over the Indiana Recount Commission. The Republican Party could lose major party status in the state, while the Libertarian Party could take their place as a major party. The Libertarian Party could then gain access to primaries, whereas the Republican Party would lose their access to primaries. It would force Republicans into conventions to nominate their candidates, and that would certainly favor state Treasurer Richard Mourdock in his primary challenge against sitting US Senator Richard Lugar. Because the GOP would lose their line on the ballot for the next three years, it would mean that the GOP would have to petition each time they want to get a candidate on the ballot (ballot line access requires signatures equal to 2% of the number of voters in the Secretary of State race; with Charlie White’s votes invalidated in the total, this equates to 14,659 signatures per candidate). With this lowered number of necessary signatures, a wide array of upstart Independent and third-party candidacies could theoretically sprout up.
Like I said, I don’t think this will happen. Even if White’s ouster is upheld; some legal interpretation or statutory fix will come through to keep Republicans and Democrats in the cat bird’s seat with respect to ballot access.
Lawmakers already fixed the ballot access problem earlier this year regardless of the White conclusion. It is in HB 1242 – also where they changed the law for the future no longer allowing the second-most vote getter to take over the office.
Oh, and just for the record, I’m pretty much always wrong when I try to predict how an election law case will turn out.
I think the problem with the decision is that the way Judge Rosenberg interpreted “temporary” effectively means White had no residence. He expressly refused to decide what White’s residence should have been.
But everyone has a residence. Even a homeless person has a residence. As far as White goes, iIt couldn’t have been the apartment and it couldn’t have been the condo which he had not moved into. The only address that could have been his residence was his ex-wife’s house where Judge Rosenberg confirms the evidence says he was living.
Doug said:
“For my part, I would have liked an analysis of IC 3-5-5-18: “an individual with a nontraditional residence whose residence is within a precinct, but is not fixed or permanent, resides in that precinct.” But, perhaps the Secretary of State – either in person or through the Attorney General did not pursue that argument for whatever reason and waived it.”
This is an excellent point, Doug. I don’t know how you could not consider that statute.
Here is the link to HB 1242-2011 mentioned by Interested.