Friday, February 10, 2012

Dick Lugar: "Defending" Indiana from Virginia

Dave Catanese notes the weakness of Senator Dick Lugar's "in defense" of country argument. First, here's the argument as articulated by Lugar spokesman, David Willkie:
It's just like the United States military. If you're a military personnel and you're in defense of this country and service to this country and you're overseas, you keep your last place of residence," said Lugar spokesman David Willkie to WISH-TV.
Catanese adds this:
This is a terrible news clip for Indiana Sen. Dick Lugar even without his campaign's head-scratching comment. 
But if the six-term Republican Senator ends up being knocked off in the May primary, journalists and political observers will undoubtedly point back to this explanation about Lugar's Virginia residency as one of the reasons why.
That's true, but Catanese never really explains why this is problematic. Sure, equating a plum job in DC with active duty military service is obviously bad messaging. And it's embarrassing that Senator Lugar sold his Indiana residence in 1977 and moved to the DC area, but the issue is far more serious than either of those problems suggest.

The US Constitution is pretty clear about who can become a Senator: "No person shall be a Senator... who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." Notably, there's no residency requirement for members of the military in the US Constitution. The fact that multiple Indiana Attorney Generals have said that Lugar retains his Indiana residence ignores the fact that the US Constitution and not state AGs are the supreme law of the land. That fact is established in the Constitution's supremacy clause. In short, Indiana's AG can't override the Constitutional requirement set forth in Article 1, Section 3 by issuing a permission slip.

That said, because Article 1, Section 5 allows each house of Congress to judge the qualifications of its members, it's possible that the US Senate could decide Lugar's eligibility:
That quandary in itself could lead to a protracted legal fight, but probably will not. I suspect that one would have to have legal standing in order to bring suit. Richard Mourdock, Lugar's opponent in the GOP primary would have standing, but Mourdock would have to decide whether or not he has the political capital to try to strike Lugar from the ballot. That's not an easy decision, though it certainly would raise Mourdock's name recognition. 
After Indiana's May primary, the Democrat candidate for US Senate would have two paths available to them to strike Lugar's name from the November ballot if Lugar wins the primary. First, they could go to the courts just as Mourdock could. Second, since Article 1, Section 5 empowers each house of Congress to judge the qualifications of its members, Indiana's Democrat nominee could ask the Democrat controlled Senate for an assist. In short, Harry Reid could pick Indiana's next Senator by having the US Senate rule that Dick Lugar is not an inhabitant of Indiana.
Dick Lugar's Indiana "residency" is a problem because it could get him struck from the May 8th primary and/or the November general election.

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