Friday, February 17, 2012

Video: Petition to Investigate Lugar's Residency Delivered to Gov Mitch Daniels

Wrap Your Head Around: Lugar’s residency called into question:
[Yesterday afternoon] Greg Fetig of Hoosiers for a Conservative Senate, addressed a group in the atruim of the Indiana Statehouse before presenting a petition to the Governor, demanding that he order the election commission to investigate Senator Lugar’s residency. This is a bit of a messy subject once you delve into it, as Indiana law and National law seem to come into conflict. I could certainly debate that topic all day long, but if the election commission takes a look at this, I’m sure there will be lawyers coming out of the woodwork with various arguments.
You might think that lawyers would be all over this, and the ones in Missouri that I've spoken with all find the Constitutional question fascinating. I've written that the Constitution's supremacy clause makes Indiana's state Constitution and statutes secondary. The issues is also complicated by Art 1, Sec 5 which empowers each branch of Congress to judge the qualifications of its own members. Has anyone in the Indiana media actually brought on a Constitutional Law professor or lawyer to discuss this question?

Hoosiers for a Conservative Senate originally filed a complaint last November with the State Election Commission. They turned to Gov. Mitch Daniels after discovering a possible conflict of interest between the chairman of the commission, Daniel Dumezich, and Senator Lugar:
Monica Boyer, co-founder of Hoosiers for Conservative senate stated “We are deeply concerned that this complaint is not receiving its due process, and we are asking that the Governor hold the appropriate hearing concerning Senator Richard Lugar using a false address to register to vote. In the wake of the Charlie White case, we must ensure that Indiana does not maintain a double standard and that all public officials are held to the same standards.”“After viewing the FEC reports, Boyer added, “we are concerned with a possible conflict of interest as Chairman Daniel Dumezich has given thousands of dollars to Senator Lugar. We ask the Governor to listen to Hoosiers, and give this complaint a hearing.”
The Fort Wayne Journal Gazette reported on Gov. Mitch Daniels's response to the request for an investigation into Lugar's residency:
“No, we’re not doing that,” said Daniels, a former Lugar aide who has endorsed the senator’s re-election bid. “I’ve talked to lawyers, and both the constitution and statute are clear. He’s qualified as he has been for all his previous elections.” 
Keep in mind that there are two issues: 1) Lugar's eligibility to vote and 2) his qualification to be a US Senator. Daniels has taken #1 off of the table. That's a state issue and I think that's right decision, though I understand why many others feel differently.

Let's take a closer look at #2: Lugar's qualification to be a US Senator. While noting that a political science professor is not an expert on Constitutional law, Advance Indiana makes the same argument that I've made:
...King articulates accurately the fact that the U.S. Constitution determines whether a person is eligible to be a senator and the fact that the Senate is the final judge of a person's qualifications. He notes the three requirements: a person must be 30 years of age, a U.S. citizen and be an inhabitant of his or her state when elected. A state election official, when considering a challenge at this point, could only make a determination as to whether a person meets the age and citizenship requirement. Whether the person is an inhabitant is determined on the date of the general election at which the person is elected. In other words, the Indiana Election Commission is without authority to determine that Lugar is ineligible because he is not an inhabitant of the state, or even ascertain that fact until after this year's election. If you followed Mourdock's press conference yesterday, he asked Sen. Lugar to re-establish a residence within the state to remove this as an issue; he did not say he should be removed from the ballot. Regardless of what a state official or judge says about a person's qualifications, the Senate is the final judge under the U.S. Constitution. 
Listen carefully to how the media cover Mourdock's request that Lugar re-establish a home in Indiana. They may spin it to suggest that Mourdock is trying to get Lugar struck from the ballot. That's not the case and Gary at Advance Indiana explains why in the context of a 2006 Fifth Circuit opinion that suggests Lugar is currently not qualified to be elected to the US Senate:
In its analysis, the court noted that the framers of our constitution had specifically rejected imposing a minimum residency requirement for house and senate members, having "specifically rejected seven-year, three-year and one-year requirements." The Fifth Circuit cited an 1808 case in which the House of Representatives had declared a representative elected from Maryland, who had only moved to the state "a mere two weeks before his election" constitutionally eligible to hold the office "because he was an inhabitant of that state as of election day." 
Because Lugar had no residence in Indiana at any of the five elections at which he was elected subsequent to his initial 1976 election, it is arguable that Lugar was ineligible to serve Indiana in the Senate because he was not an inhabitant of the state. If someone challenged his eligibility this year, Lugar could remedy the problem by simply renting a home within the state by the date of this year's general election, which is November 6, 2012.
I maintain that Art 1, Sec 5 of the US Constitution, which allows the Senate to determine the qualifications of its own members, could be used to impose a one-year residency requirement that would make Lugar ineligible next November. Would the Democrat-controlled Senate be that brazen?

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