Thursday, February 2, 2012

Is Senator Lugar Constitutionally Qualified to Run for US Senate in Indiana?

Earlier this week I noted that the Daily Caller had picked up the story that Dick Lugar has not lived in Indiana--the state he represents in the United States Senate--since the late 1970s. That's interesting because Article 1, Section 3 of the US Constitution reads in part: "No person shall be a Senator... who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." From there, I concluded:
Dick Lugar has not inhabited the state which he represents since the Carter Administration, which, in light of the US Constitution, would imply that he has not been eligible to run for the United States Senate since the Gerald Ford Administration. It's time to vote for Richard Mourdock in the Indiana Senate GOP primary.
There have been a couple of developments since I posted that. Lugar shrugs off the issue claiming that he has a 1982 permission slip from the Indiana attorney general stating that he need not live in Indiana because he is "on business of this state or of the United States."

That argument falls apart because of the Constitution's supremacy clause
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
A state's AG can not override a requirement of the US Constitution; therefore, permission from a state attorney general does not allow a candidate for US Senate to dodge the requirement that they "be an Inhabitant of that state..."

I described this all to Dave Roland of the Freedom Center of Missouri. The Freedom Center specializes in constitutional law and Roland is their Director of Litigation. He agreed with me on the points as I relayed them that a candidate for office should maintain a home in the state they wish to represent. However, he added:
...the big question is who ultimately gets to decide if a candidate for Congress meets this requirement.  Article I, section 5, states that each house of Congress is responsible for judging the qualifications of its own members - it is very possible that courts might take this as meaning that they have no jurisdiction to address this matter.
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.

Don't take chances. If you live in Indiana, please remember to vote for Richard Mourdock on May 8th.


Anonymous said...
This comment has been removed by a blog administrator.
Jenny Gee said...

This is explains it perfectly... finally!!

dsm said...

@Jenny Gee,


Paul K. Ogden said...

I don't agree you Lugar's name can be stricken from the primary ballot. The Constitution requires him to be an "inhabitant" when elected. The primary is a nomination not elected. It is when Lugar is not an inhabitant of Indiana as of 11/6/2012 that there is a problem.