Friday, February 17, 2012

Law Professor Says 1982 AG Opinion is Irrelevant to Lugar Residency Challenge; Election Commission Agrees to Hear Issue (w/Update)

Sen. Richard Lugar
WIBC is reporting that an Indiana University Law School-Indianapolis (I refuse to call my alma mater the "McKinney Law School") professor agrees that the 1982 Attorney General Pearson opinion does not provide cover for Sen. Richard Lugar on the issue of whether he qualifies as an "inhabitant" of Indiana under the U.S. Constitution.
An I-U law professor says there may be some validity to Richard Mourdock's claim that Senator Dick Lugar doesn't live in Indiana. 
...  John Hill, Professor of Constitutional Law at the IU Robert H. McKinney School of Law, says the U.S. Constitution says Senators must "inhabit" the state they represent.
"What's interesting is unlike the voting requirements, who gets to vote in the state which are governed by state law, these standards are actually governed by federal law so the Attorney General's opinion is not relevant to this particular question," Hill says.
Hill says the Attorney General's opinion was in regard to Lugar's ability to vote in state elections despite not living in the state. He says the law is clear that Lugar can vote in state elections because he is on business for the state in Washington D.C.
I have previously written about these issues and will repeat the conclusions I had reached.  Professor Hill is exactly correct that the issue of whether Lugar is an "inhabitant" under the U.S. Constitution cannot be altered or supplemented by state law, a conclusion the Supreme Court reached most recently in the 1995 case U.S. Term Limits v. Thornton.   The 1982 Pearson opinion, which relied on state law, is irrelevant to whether Lugar meets the inhabitant qualificant under the Constitution.

As I've also discussed earlier, I don't agree at all with Professor Hill on the voting issue.  Indiana law certainly says you don't lose your residency because you are in D.C. on business for the state.  The reason for the law is obvious.   But Lugar did not lose his residency to vote because of his service in D.C. as a U.S. Senator  He lost it because he sold his home and did not claim any other residency in the state.  I am not aware of any exception in the law that allows you to vote, signing documents under oath, that you live in a place you sold 35 years ago.  [Update:  After forwarding my article on this subject to Prof. Hill, he wrote me an email back saying that he had not looked into the voting issue and he did not intend to render a legal opinion on that issue when he talked to the WIBC reporter.]

On a related note, WIBC is reporting that the Indiana Election Commission has agreed to hear the challenge to Lugar's residency next Friday.
The Indiana Election Commission will hear arguments next Friday on whether Lugar's home outside Washington means he's no longer an Indiana resident. Tea Party groups backing Lugar's rival, state Treasurer Richard Mourdock, had been demanding a hearing, but it wasn't until late Thursday that anyone submitted formal paperwork.
Greg Wright
It is not clear why the Election Commission is saying it didn't have "formal paperwork" until yesterday, since certified fraud examiner Greg Wright filed a formal complaint with the Commission back on December 1.  The Election Commission acknowledged in writing it had received the Wright complaint.

While it seems doubtful to many observers that Lugar is an "inhabitant" of Indiana as required by the U.S. Constitution, the Constitution only requires that he be an inhabitant at the time of his election. Further, the U.S. Senate determines the qualifications of its own members.  Therefore, the Election Commission could well decide the challenge is premature or that the Commission does not have the jurisdiction to disqualify Lugar as that power belongs to the U.S. Senate.  Nonetheless, it makes one wonder why Lugar doesn't simply start using a relative's house as his residence, or get an apartment, rather than stoking the issue by continuing to use a home he sold 35 years ago as his claim he still lives in Indiana.

1 comment:

Gary R. Welsh said...

Paul, I believe the challenge the Commission is hearing is the one filed by the tea party activists and not Greg's. You will recall that Greg's complaint raised the issue of whether Lugar and his wife are committing vote fraud by registering and casting votes from their former home after 35 years. The tea party complaint is challenging Lugar's eligibility to run for re-election because he is not an inhabitant of the state.