|Secretary of State Charlie White|
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
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."