Thursday, December 22, 2011

Court Finds White's Living at Ex-Wife's House Was Temporary and Thus Not His Residence; Flawed Rationale Leaves White Without a Residence

Secretary of State Charlie White
In a decision handed down today, Marion County Circuit Judge Louis Rosenberg ruled that Secretary of State Charlie White was unlawfully registered at his ex-wife's house.  Because of that unlawful registration, Judge Rosenberg ruled that White was ineligible to be elected as Secretary of State and that the second highest votegetter in the race, Democrat Vop Osili, should be awarded the office.  The Election Commission, whose decision Judge Rosenberg overturned, has already indicated it intends to appeal.

Before delving into the decision, it is first necessary to look at the three residences at which White lived and the dates of those registrations

Broad Leaf (previous marital  home):  Before 2006
Pintail Apartment:  January 2007
Broad Leaf (ex-wife's home); February 22, 2010
Overview Condo:  September 22, 2010

The law Judge Rosenberg was applying is IC 3-8-1-1 which says:
(b) A person is not qualified to run for:
(1) a state 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. 
That deadline to file the declaration of candidacy for Secretary of State was July 15, 2010.

In the decision, Judge Rosenberg looked at the evidence heard before the Commission.  While counsel for the Democrats had argued that White had moved to Overview Condo and should have been registered there, that is not what Judge Rosenberg focused on.  Rather the judge decided that the evidence established that White was living at that Broad Leaf house where he was registered when he voted in the May primary and even as late as July 15th, but that the stay in the Broad Leaf house was "temporary" and thus did not meet the definition of "residence."   IC 3-5-2-42.5 states:
"Residence" means the place:

(1) where a person has the person's true, fixed and permanent home and principle establishment; and
(2) to which the person has, whenever absent, the intent of returning.
Judge Rosenberg concluded that because White did not have a lease at the Broad Leaf home, did not have an ownership interest in the home (he had quitclaimed it to his now ex-wife as part of the divorce), and could at any time be asked to leave, that White was a "guest" and since it was not his "permanent" home he should not have registered there.  The decision states:
The finding of the Commission that White intended to reside at the Broad Leaf address until he was married appears to render that house a temporary residence in the same sense as a stay in a school dormitory until studies are completed is a temporary or a stay in a hotel while searching for or starting a job might be temporary.
Marion County Circuit Court
Judge Louis Rosenberg
In the opinion, Judge Rosenberg suggests he need not make a determination of White's residence, i.e. where White should have been registered.  I disagree.  When a judge determines that the place where one is staying is "temporary" and thus not the person's "residence," that means there is another location that the person is living which is his or her permanent living quarters, i.e. the person's residence. With regard to White, what is that location?

Reading between the lines it appears even Judge Rosenberg agrees it would not have been appropriate for White to register at the Overview Condo since the evidence was that he had not yet moved in. It is also unlikely that White should have continued using the Pintail Apartment to vote and run for office from when his lease had long expired and he had moved out. Certainly the Democrats would have been screaming about voter fraud (and quite rightly) if White had tried that.

If registering at White's ex-wife's house was improper because it was a "temporary" stay for White and he could not have registered at the Overview Condo because he had not yet moved in there and he had long ago move out of the Pintail apartment, then where should White have been registered on July 15, 2011?   Applying Judge Rosenberg's rationale, renders  White without a residence on July 15, 2010, a decision which not only disenfranchises him but makes him ineligible to run for Secretary of State.

I don't agree with that conclusion.   With all due respect to Judge Rosenberg, who I truly believe is one of our best judges in Marion County (I'm not just saying that), I believe his interpretation of "temporary" is far too narrow and was never to be interpreted in such a way as to disenfranchise people by leaving them without a residence.  Certainly this decision will be appealed to the Court of Appeals and the Indiana  Supreme Court.  I would guess that the decision, which overturns the result of an election, which courts historically oppose doing, will almost certainly be overturned.  It might be the appellate courts decide on narrower grounds, such as that the Democrats waited too long to raise the issue - that it should have been raised before the election.

Note:  In writing this I struggled to avoid using the contradictory phrase "temporary residence" as the court did in its opinion.  By definition a "residence" is a "permanent home." (See above.) Therefore, if it is a "temporary" abode it cannot be a "residence."


Gary R. Welsh said...

How do the homeless register to vote? Don't we let them register to vote at homeless shelters knowing that their place of residence there is only temporary (we hope) until they can afford a permanent place to call home? To think that Democrats were worried about disenfranchising voters by requiring them to have a photo ID, but we can declare you an unlawful voter if you claim a residence that is only temporary for voting purposes while you are in between permanent homes.

Jeff Cox said...

Gotta disagree with you on this one, Paul. A residence need not be permanent. It happens all the time, especially when someone is moving from one city to another. Someone moving to New York City might "reside" at the Marriott World Trade Center for a few weeks while they are gettig settled. A person moving to Los Angeles might "reside" at the Century Plaza until they get settled. That doesn't mean they can or should be allowed to vote from those locations. And they usually are not. That means they do not get to vote. People who are moving around election time often don't get to vote. Maybe that's a flaw in the election system, but permanent residency in a location must be established before giving someone the right to vote concerning candidates and issues in that location.

In fact, if they did try to vote from those hotels, they would actually have a stronger claim for doing so than Charlie White did. Because they would at least have documentation showing they were paying for and had a legal right to stay at that hotel for a set period of time. White had none of that.

The case turned, as I suspected it might, on White having no ownership interest in, no mortgage for and no lease for the house he claimed as his "permanent" residence. Even if White's (latest) story is taken as true, he was, at best, a "guest." If such guests were allowed to vote, the result would be chaos and massive vote fraud.

The court got it right in this one.

Pete Boggs said...

Nah Jeff, Paul & Gary have this one right. College kids vote using an address they're leaving within days / months & where they have on lease. People take in elderly family members who don't have ownership or lease interests as a stop gap to other care arrangements.

All residence is temporary, it's a life cycle thang. All residents have leases or mortgage interests? Intent or "planning to move" is not itself an act of moving. Using your "logic," the judge should be denied the right to vote if he has plans to retire in the Ozarks...

Jeff Cox said...

Uh, Pete, you just killed your own argument. By your own admission, those college kids you talk about have a lease. White did not. Major difference legally.

Gary R. Welsh said...

No, you just defeated your argument, Jeff. Many college students continue to vote at their parents home even though they have no plan to return there and don't following the completion of their studies. Others go off to serve in the military. Some use their military bases as their voting residence; others choose to register at their parents' home even though they may never plan to return back home to live with their parents. The reality is that lots of people go through divorces and find themselves in limbo as to where they are going to "permanently" reside. The current president of the Carmel city council separated from his wife and was living outside his district. Maybe he and his wife will reconcile and he will move back home; maybe he won't. That'a a decision that married couples encounter every day, and every attorney who handles divorces appreciates this fact. Rosenburg's ruling harshly punishes White for doing what countless of adults are doing at any given time.

Jeff Cox said...

The law recognizes college students' transitory position and that they likley have no long-term living arrangements. In Ohio, for instance, they are allowed to vote either from their parents' home or their college address. Last time I checked, White was not a college student. Additionally, those students have the documentation to back up where they live. White did not.

Even if people do what White did all the time (very, very doubtful), it is still illegal. And you simply cannot have the "chief election officer of the state" as White called himself coming anywhere in the same area code of having committed vote fraud. That entire "appearance of impropriety" thing comes to mind.

varangianguard said...

Question. Do any of you think that (if it's even allowable) that the Court of Appeals will pass this directly to the Indiana Supreme Court?

I ask because I imagine that whatever decision might be rendered by the Court of Appeals would immediately be appealed by the losing side to the Indiana Supreme Court anyways.

marksmall2001 said...

Excellent point. The C of A might want the case to go to the Supremes for a couple of reasons. First, whatever the C of A decides, the losing party will seek transfer. Second, there is political blowback on this. Third,and without a copy of Rules of Court close at hand to be sure, there might be a provision for direct appeal to the Supremes when state-wide elected office is at issue.

Pete Boggs said...

Yo Jeff, not all College kids have leases & most outward bound high school seniors don't either. Using yours or the Judge R's "logic," if White produces evidence of monetary contribution to maintenance of his shared residence with his ex-wife... Curiously, the judge is assessing intent.

Gary R. Welsh said...

You are wrong again, Jeff. Charlie presented ample evidence of his intent to reside at his ex-wife's address. He regularly received mail there, his driver's license was registered at that address, his son over whom he exercised joint custody with his ex-wife lived there and both he and his ex-wife testified to the sleeping arrangements allowing him to spend his nights in the spare basement bedroom, although he was traveling throughout the state at that time campaigning for secretary of state and as he explained, felt like he was living out of his car because of the amount of time he spent on the road.

Cato said...

This is why I stopped voting. In America, especially Nazi Indiana, exercising basic rights lands you in jail.