Election Board Finds Lugar Committed Noncriminal Election Law Violation By Voting Using Abandoned Residence

Greg Wright

Today I sat in on the Marion County Election Board hearing.   Abdul tweeted today inaccurately uggesting the challenger failed as Lugar was not removed from the ballot.  In fact certified fraud examiner Greg Wright challenge was not to get Sen. Lugar removed from the ballot, but dealt with Lugar and his wife's eligibility to vote using a house at 3200 Highwoods Court that they sold 35 years ago.

Gary Welsh

The attorneys were impressive.  Attorney/Blogger Gary Welsh presented Wright's challenge.   Welsh probably knows voter residency law better than anyone in the state.  He made the case that Lugar had abandoned his home at 3200 Highwoods Court and that he had not established any other residence in the state.  Welsh argued that the "fail safe" provision in the Constitution and statute which says people don't lose their Indiana residency because they are out of state while on state business did not give Lugar the right to abandon their home, leaving no specific residence in the state identified that he planned to return to.  Welsh also pointed out that the constitutional "fail safe" provision was adopted in 1851 at time when Congressmen worked part-time in D.C.  He said it the "fail safe" provision was never intended to apply to members of Indiana's part time congressional delegation, but rather to people such as those serving in the military.   Before watching the argument I read Welsh's lengthy brief which skillfully took apart the Lugar argument.

Wayne Turner, a partner with Bingham Greenbaum, presented Lugar's defense.  He argued that the Board's jurisdiction only allowed it to make a referral to the Attorney General or Marion County Prosecutor if the Board found that the Lugars had violated the election law by voting at 3200 Highwoods Court.   Turner also pointed out how Lugar had relied on the opinion of the Marion County Voter Registration Board which said the Lugars were free to continue using the 3200 Highwoods Court address to vote from as long as Sen. Lugar served in the Senate.  Turner also pointed to the opinion of a Deputy Attorney General's opinion (that was apparently not signed off on by then AG Ted Sendak) and opinions from former AG Linley Pearson.  Those opinions suggested that Lugar, for voting purposes, maintained his residency at the house he sold.

Wayne Turner

Turner made a strong presentation  But I got the impression he didn't 100% believe his client's position.  Any attorney worth his or her salt would have long ago advised Lugars to stop signing documents under oath that they resides at a house they clearly have not lived in for 35 years and to get an actual residence in the state.   Turner strikes me as the sort of attorney that would have given Lugar exactly that advice. Where Turner excelled was in arguing that Lugar had not done anything criminal because the voter fraud statute requires knowledge that the person is breaking the law, not just knowledge the person is committing the act.  By relying on legal opinions, Turner argued Lugar shielded himself from criminal consequences should he be found to have violated the law.

Turner's brief lacked the detailed legal arguments that Welsh's contained, relying instead on a lot of exhibits, including a nonsensical law professor's opinion, media reports and the aforementioned Board of Registration and Attorney General opinions.  I can't fault Turner though.  He simply didn't have a strong legal argument.

The Election Board members asked a number of questions of the attorneys and made several statements during the course of the hearing.  Republican Patrick Dietrick particularly focused on a newly-executed, self-serving affidavit by Sen. Lugar that said he was a resident of Indiana and fully intended to return to Indiana after his service ended.   Dietrick offered the argument that although Lugar abandoned the home at 3200 Highwoods Court, he didn't abandon his "residence."  But Dietrick never identified where that Lugar "residence" was located.

Andrew J. Mallon

The Board's attorney Andrew J. Mallon, was very impressive.  He had researched the issues in detail and knew the statutes and case law inside and out.  Mallon addressed every problem Dietrick suggested there was with his analysis.  Mallon agreed that the "fail safe" provision could be used to prevent the Lugars' from losing their right to vote.  The problem though was that Lugar didn't lose his residency because of his service in D.C.   The problem was he abandoned his home at 3200 Highwoods Court and did not establish any other residence.

By a 2-1 vote, the Election Board agreed with Mallon that the Lugars had committed an election law violation by voting at the Wayne Township precinct encompassing 3200 Highwoods Court.  The Lugars still have a month to register with a new residence.

The rumor now is that Sen. Lugar is going to appeal the decision.  That would be a foolish decision.  While Lugar might be able to get some political considerations by going to an elected county judge, the fact is he's just going to increase the publicity that he's running for Senate and doesn't have a home in Indiana.  Lugar's voter registration and inhabitancy problem are easily fixable.  He just needs to get an apartment and start staying there on occasion when he comes back to Indiana.  Problem solved.   The only reason to not do it is Lugar's incomprehensible arrogance.