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Sunday, November 21, 2010

Ind. Gov't. - "Democrats contest White's election: Petition says he is not eligible to be secretary of state"

That is the headline to this Nov. 20th story by Mary Beth Schneider of the Indianapolis Star. It follows on this Nov. 3 ILB entry. From the Nov. 20th story:

The Republican winner, Charlie White, is under investigation by two special prosecutors on allegations of felony voter fraud. He's accused of voting in a precinct in which he did not live.

Democrats say he should be found ineligible to serve as Indiana's chief elections officer, and that state law provides for the second-highest vote-getter to be elected instead.

Friday, Indiana Democratic Party Chairman Dan Parker filed a petition with the Indiana Recount Commission contesting White's election. He argued that White was trying to cover up the fact that he had moved outside the Fishers Town Council district he represented, so he voted in the May 2010 primary in a precinct in which he no longer lived.

Parker said White was fraudulently registered to vote at the wrong address, so was ineligible to be nominated by the GOP and ineligible to serve now that he's been elected.

And, he said in the petition, White would also be ineligible to serve if he's convicted of a felony.

Democrats cite a section of state law that says that if a candidate is found to be ineligible to serve, "the candidate who received the second highest number of votes for the office is entitled" to be certified as the winner.

Republicans say that's rubbish.

They point to another provision in state law, which says the governor shall appoint a replacement if there is a vacancy for state office.

ILB: To paraphrase the Star story, IF White was fraudulently registered to vote at the wrong address, then:
(a) he was ineligible to be nominated by the GOP and

(b) ineligible to serve now that he's been elected.

In that case, he would not be able to resign from office, leaving a vacancy for the Governor to fill -- because he would never have assumed the office.

IC 3-12-11 deals with "Recount and Contest Procedures for Presidential Primary Elections and Nomination for and Election to Federal, State, and Legislative Offices"

IC 3-12-11-25 provides:

Whenever the commission makes a final determination under section 18 of this chapter that the candidate who is subject to a contest proceeding is not eligible to serve in the office to which the candidate is nominated or elected, the candidate who received the second highest number of votes for the office is entitled to a certificate of nomination or certificate of election even though a certificate may have been issued to another candidate upon the tabulation of the votes.
But there is more. From Count 6 of the petition:
Alternatively, Petitioner believes in good faith that were White, who is currently under investigation by two special prosecutors on suspicion of voter fraud, be convicted of, pleads guilty to or pleads nolo contendere to a felony before taking office, he would be ineligible to take office pursuant to I.C. 3-8-1-5.
But if White assumes office, and then is convicted of, or pleads guilty to, a felony, and resigns from office, he will have created a vacancy.

From Article 5, Section 18 of the Indiana Constitution:

When, during a recess of the General Assembly, a vacancy shall happen in any office, the appointment to which is vested in the General Assembly; or when, at any time, a vacancy shall have occurred in any other State office, or in the office of Judge of any Court; the Governor shall fill such vacancy, by appointment, which shall expire, when a successor shall have been elected and qualified.
Another constitutional provision which may prove relevant is Article 15, Section 3:
Whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean, that such officer shall hold his office for such term, and until his successor shall have been elected and qualified.
In other words, a vacancy may not exist here unless someone is seated and then resigns or is removed. Normally, under IC 4-5-1-2(a):
The individual elected as secretary of state shall take office on January 1 following the individual's election.

Posted by Marcia Oddi on November 21, 2010 04:24 PM
Posted to Indiana Government