Sunday, February 26, 2012

Would a Democratically-Controlled Senate Refuse to Seat Sen. Richard Lugar?

Imagine that it is January 2013.  The snow is falling in Washington, D.C.  President Barack Obama has won re-election and the Democrats have managed to dodge a bullet holding on to the Senate.  Although the Democrats had 23 of the 33 seats up for election (actually two are independents who caucus with the Democrats), the Democrats hold their losses to 3 and the Senate is 50-50 with Democrats in control thanks to Vice President Joe Biden, who also sits as President of the Senate.
Sen. Richard Lugar (R-Indiana)

Into the chamber walks newly re-elected Republican Sen. Richard Lugar of Indiana who that fall was re-elected in a hard-fought contest against former Representative Joe Donnelly.   But Donnelly is already there and he is asking the Democratically-controlled Senate seat him instead of Lugar because the Senator failed to meet the Qualifications Clause in Article I, Section 3:
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
The Senate Democrats introduce a resolution to seat Rep. Donnelly instead of Lugar based on Section 5 of Article 1 of the Constitution.:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
The Democrats' resolution discusses how Lugar has lived in Virginia since 1977.  More importantly it focuses on the fact that Lugar's only claim that he has a "home" in Indiana is a house at 3200 Highwoods Court in Indianapolis that he sold over 35 years earlier and where he admits he does not live.  The resolution discusses Lugar signing documents under oath that the 3200 Highwoods Court home is his "residence" when he votes and gets a driver's license.  The Senate resolution finishes with the conclusion that Lugar was not an "inhabitant" of Indiana on Election Day, November 6, 2012, and that Donnelly is the rightful winner of the election.  The resolution passes on a party line vote.

What is Lugar and the Republican's recourse if this happens?  Absolutely none.  There is no appeal from the Senate choosing to seat Donnelly instead of Lugar.  You can't take the issue to the courts. If Lugar stubbornly continues to claim 3200 Highwoods Court as his Indiana home up until the day of the general election, he puts the Republicans at risk of losing the Senate seat, even if he win the election.


Nicolas Martin said...
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dsm said...

Arguably, the Democrats could simply threaten to do that to influence the November election. I talk about that towards the end of my post about whether Lugar is Constitutionally qualified to run.

I wonder if the Senate's rules allow them to reconsider a sitting Senator's qualifications. If so, then they could turn out Dick Lugar now.

Indy Rob said...

I'm sure Senator Lugar is not the only Senator with this problem. I also think that if the Senate took this step, it would leave the choice of replacement in the hands of the governor.

Paul K. Ogden said...

Indy Rob,

I thought about that. I don't think that's right though. To be eligible to be elected, Lugar would have to be an "inhabitant" of Indiana as of Election Day, i.e.11/6/2012. If he's not eligible to be elected on that date, that means the person who is eligible with the highest vote wins. That would be Donnelly.

Regardless of how you interpret the law, the Senate makes the decision, nobody else. If the Senate interprets the law to put Donnelly in, there's nothing the Republicans can do.

Paul K. Ogden said...


The Senate can do whatever it wants so I'm sure they could revisit whether Lugar was eligible when elected in 2006. Highly unlikely though. The D's though didn't put up a candidate that year.

artfuggins said...

This is in the theater of the absurd. A Dem controlled Senate would seat Lugar as he is legally qualified to be on the ballot. This manufactured drama about his residency has no grounds.

marksmall2001 said...

The United States Senate has been described as the most exclusive club in the world. Lugar has been there longer than most of the players in either Major League Baseball or the NFL have been alive (check it; that's true, line-by-line, roster-by-roster). He is more one of "their" own than he is a Hoosier. Dem or Repub, I find it difficult to believe they would do something so distasteful to a long-standing member of the Club.

patriot paul said...

You've outlined a legitimate scenario. This is one reason Richard Mourdock's press conference on the issue in addition to the tea party pleaded with the Senator to establish himself in Indiana prior to election day. Despite the requests, Lugar has indicated he just didn't want to spend the money to do that.
While it's true Lugar has developed political capital among his colleagues during 30+ years, if Lugar is the one deciding issue tipping the Senate scales, Dems rule and throw him overboard.

Greg Purvis said...

Your hatred for Senator Lugar is confusing to me, as well as your repeated refusal to acknowledge Article 2, Section 4, of the Indiana Constitution:

"No person shall be deemed to have lost his residence in the State, by reason of his absence, either on business of this State or of the United States."

Whether or not that is the same as the US Constitution's use of the word "inhabitant" is the only LEGAL issue I can see.

Lugar does have a POLITICAL problem, but it is pretty much the same as Senator Coats had... i.e., he lived elsewhere (the DC area) for so long that he was out of touch with Hoosiers. That did not work against Coats, it remains to be seen if it will work against Lugar, and others who are more connected to the Beltway than Indiana.

Downtown Indy said...

As I see it, Lugar didn't lose 'his residence in the State, by reason of his absence, either on business of this State or of the United States' but rather by selling it for his own convenience (he has talked about being young, having a large family and not much cash as the reasons for selling their home).

For some reason, he continued to use that address despite having no interest in it. The only reason that makes sense is to hide the fact he no longer had a home here, which to most people means 'not an inhabitant.'

Indy Rob said...

Actually, Senator Lugar could put this issue to rest by signing a short term apartment lease. Maybe share a college apartment with a couple of roommates. Might cost a few thousand dollars but probably cheap at that price.

Nicolas Martin said...

By the criminal standards of the United States Senate, this is jaywalking.