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Thursday, March 15, 2012

Ind. Decisions - Supreme Court, in direct transfer from Marion Circuit Court, reverses trial court decision ruling Charlie White ineligible to assume office

In Charlie White; Thomas E. Wheeler, II, Gordon Durnil, and Bernard L. Pylitt, as Members of Ind. Recount Comm. v. Indiana Democratic Party, through its Chairman, Daniel J. Parker (White v. Democratic Party), a 20-page opinion, Chief Justice Shepard writes:

This case comes before us only after deliberative actions taken by the executive branch, the Indiana Recount Commission, the General Assembly, the court system, and—most
significantly—almost two million Indiana voters who cast their ballots for Secretary of State in November 2010. The Indiana Democratic Party sought to have the winner in the election, Republican Charlie White, declared ineligible to assume office because he had not been registered to vote at the address at which he resided on July 15, 2010, the deadline for certifying candidates for state office. The Indiana Recount Commission dismissed this petition and later denied it, but the Marion Circuit Court reversed.

The appeal before us today does not decide any questions flowing from White's subsequent criminal convictions, but rather whether the Democratic Party's petition was a basis for barring his taking office after winning the election. We hold it was not. * * *

Here, the Indiana Democratic Party filed a post-election challenge pursuant to Section 3-12-11-3(b)(4), alleging that White violated Section 3-8-1-1(b) in that he was not "registered to vote in the election district [he sought] to represent," because on July 15, 2010, he was registered to vote at the Broad Leaf address, not the Overview condo.

Of course, the Democratic Party could not have brought this claim in the post-election period after the May 2010 primary election because when that time limit expired, White still had until July 15th to comply with the requirements of Section 3-8-1-1. What remains, then, is whether the claim was still valid under Section 3-12-11-2 when brought following the general election, or if it must have been brought earlier under Section 3-8-8-1. * * *

Our conclusion is that the Code places a burden on political campaigns to investigate and vet their opposition before the pre-election time limitations expire, but that is better than the alternative: that a challenger might ignore a known (or knowable) disqualification challenge before the election, wait to see who won at the polls, and then seek to set aside the results of the democratic process. Such a result is inconsistent with free elections and respect for voters' expressed preferences.

Here, the allegations of White‘s registration impropriety arose before the election and were made public by private citizens, the media, and by the Osili campaign and by the Democratic Party. It is likely that the average voter was aware that there were concerns about White‘s voter registration history at the time of the election, but we will not, on the basis of the present petition, judicially disenfranchise voters who went to the polls aware of what were at that moment only allegations. The fact that criminal charges were filed after the election and resulted in convictions (appeals still pending) does not alter that conclusion.

We therefore reverse the decision of the trial court and affirm the Commission‘s dismissal.

Sullivan, Rucker, and David, JJ., concur.
Dickson, J., concurs in result with separate opinion. [that concludes] Unlike the requirement that a voter present an ID when voting to verify that they satisfy the voting qualifications prescribed in our Constitution, the statutory requirement that a candidate for Secretary of State be registered to vote requires an eligibility qualification absent from the Constitution.

For this reason, I conclude that the legislature's attempt to impose an additional eligibility qualification—requiring a candidate for this position to be "registered to vote," Ind. Code § 3-8-1-1(b)—is violative of the Indiana Constitution and thus cannot serve as a basis upon which to contest a candidate's eligibility for election to the office of Secretary of State. The election contest petition was thus properly dismissed.

Posted by Marcia Oddi on March 15, 2012 12:04 PM
Posted to Ind. Sup.Ct. Decisions