Thursday, March 15, 2012

This has been another edition of "I Guess Good And Stuff"

Back in February, when Indiana Secretary of State Charlie White became a convicted felon, I wrote

So the next question is: who becomes SoS?

Mitch Daniels seems to be proceeding as if he's going to be able to make a permanent appointment. But there's still a question as to whether the job rightfully belongs to the highest vote-getter in the last election who was actually eligible for the job. If it does, then Democrat Vop Osili would be sworn in.

I think that Daniels' choice will probably be sworn in permanently. I don't really think the courts will want to give the job to someone whom over 60% of the state voted against when it can allow the governor from White's own party to make an appointment to fill the vacancy. Even though Osili was the highest vote-getter who was actually eligible for the office, and has a very good claim to the position, I think the courts will decide to let this one play out politically rather than actively award the office to someone. But I've been surprised before.

The Indiana Recount Commission held he was eligible, and the state Democratic Party chair, who filed the challenge, appealed to the courts. Judge Rosenberg ruled against White. Judge Rosenberg's verdict is being appealed: whether his ruling will stand on appeal is in doubt, and I (not to sound too much like the legal realist that I am) would expect the courts to find a way to allow the governor's appointee to hold office, since they don't want to be seen as giving the job to someone "rejected" by the voters, especially not so long after the actual election.

That's really more my take on the politics of the situation, but I can think of a way for the appellate courts to handle the issue that would let Daniels make a pick (two ways, actually: one based on statutory interpretation, and the other based on laches, a concept generally illustrated here.).

I think the question of whether White was actually ineligible to be on the ballot was somewhat close. I take a very liberal view of residency requirements, and when he initially entered the race I think he might have been okay remaining registered at his ex-wife's home, since he actually returned there for a time in 2010 before his re-marriage (Judge Rosenberg ruled otherwise, but without further knowledge of Indiana case law I could see this being reversed on appeal, or at least remanded back to him with instructions to more carefully consider whether he could not have legally resided at his ex's house as a matter of law, even though that's where his belongings were, where his son lived, and where he seems to have stayed when in town). If an appeals court holds he was validly registered at his ex's in February 2010, he arguably met the statutory requirement for candidacy ("A person is not qualified to run for...a state office...unless the person is registered to vote in the election district the person seeks to represent not later than the deadline for filing the declaration or petition of candidacy or certificate of nomination."). It's not a great argument, but I can see a court grab hold of it if they need a reason to avoid appointing Osili. Based on the findings of fact in the lawsuit to have him removed*, he probably should have re-registered sometime between May 28, 2010--when Judge Rosenberg found he stopped staying at his ex's and removed all his belongings from there--and the nomination deadline in July 2010, but he might have still met the statutory requirement

(*Note: this is just for the matter of him being listed on the ballot, not the question of whether he committed fraud by voting from his ex-wife's address in the May 2010 primary, which he most assuredly did. The jury in the criminal case found that he should have re-registered much earlier than the facts in the lawsuit seem to indicate--I guess that's the difference between actually mounting a defense and sitting silently while a case against you is made.)

Well, the opinion isn't up yet, but it looks like they went with the laches argument, which makes sense in this context.

UPDATE: The opinion is here.