Wednesday, February 15, 2012

Did Later Supreme Court Case Invalidate Attorney General Pearson's 1982 Opinion on Lugar's Residency?

The Associated Press has picked up on the issue of Lugar's use of a house he sold 35 years ago as his residence for qualifying to run for U.S. Senate from Indiana.  Here's the portion of that article outlining the defense the Lugar people are offering to the residency challenge:

Sen. Richard Lugar
There is no requirement that a person maintain a house, apartment, or any fixed physical location," said then-Attorney General Linley Pearson in a 1982 opinion provided to Lugar ahead of his 1982 race. Attorney General Greg Zoeller has supported Pearson's interpretation of state law.

Conservative activist Greg Wright filed a complaint with the Indiana Election Commission in December alleging voter fraud by Lugar and his wife Charlene. But the commission, which weighs whether or not candidates make it on the state ballot, has not scheduled a hearing on the complaint.

Daniels said he wouldn't force the election commission to hear the complaint.

"Both the [state] constitution and the statute are clear that (Lugar) is qualified as he's been for all his previous elections. We're going have a good, competitive election but he ought not try to end it on a technicality that really isn't legally valid," Daniels said.
The Pearson advisory opinion relies on the state constitution and state law to supplement the federal constitutional requirement that a candidate for Senator be an "inhabitant" of the state.  But the Pearson opinion was issued in 1982.  In 1995, the United States Supreme Court handed down U.S. Term Limits v. Thornton, a case in which it was held that states, through their constitution or state law, cannot alter or amend the congressional qualifications provision in Article I of the U.S. Constitution. 

One could certainly argue that the Thornton case invalidates the Pearson opinion which says that Lugar could meet the federal constitutional requirement that one live in the state he/she represents as U.S. Senator by satisfying state law requirements for residency for that office.


Gary R. Welsh said...

The term limits case didn't invalidate it. That was the law prior to the term limits case. There were lots of decisions that predated that decision holding that states could not alter the qualifications set out in the constitution for senators and represenatives. The term limit proponents argued that the states weren't altering a person's qualification to run for Congress; only the length of their service. A divided Supreme Court held that a term limit requirement had the effect of adding to the qualifications for those candidates who had previously served in Congress.

Paul K. Ogden said...


I don't know if there was another previous Supreme Court case dealing with state imposed term limits on Congressman, but you're right there were previous decisions interpreting the Qualifications section of the Article 1 and how Congress could not amend it via would have to be by constiutional amendment.

The 1995 term limits case also involved the 10th Amendment, a claim that states could use that as a vehicle to alter or add to the Qualifications provision in the U.S. Constitution and the majority rejected that approach 5-4.

Jeff Cox said...

If Indiana law actually says Lugar can do this, then, to borrow from a famous quote, "The law is an ass." That's nonsensical on its face, fraudulent in its application (in that Lugar, like Charlie White, uses as a voting address a place with which he has no legal connection) and insulting to Lugar's constituents.

I like Lugar but using a techicality like an AG's opinion to justify behavior which is on its face violative of the idea of representative government is just wrong.