Recount Commission Moves Step Closer To Dismissing White Election Challenge

The Indiana Recount Commission met in a rare Sunday afternoon meeting to consider a petition filed on behalf of Democratic Secretary of State candidate Vop Osili by the Indiana Democratic Party against the Republican winner of the race, Charlie White. Karen Celestino-Horseman and Bill Groth, attorneys for the Democratic Party contend White should be disqualified from taking office because he failed to be legally registered to vote in the precinct where he actually lived when he became a candidate for that office and through the date of his Certification for Nomination for the election in November. The Democratic Party's petition for an election contest urges the Commission to disqualify White and certify Osili the winner as the candidate receiving the second largest number of votes in the race.

David Brooks, an attorney representing White, moved to dismiss the Democratic Party's petition, which was not filed until after White's election, because he says the Commission lacks jurisdiction to decide the issue once White ceased to be a candidate for that office. Democratic attorneys countered that Brooks' motion was defective and must fail because he failed to cite a specific deficiency as set forth in the Indiana Election Code for dismissing a petition for an election contest. Brooks further argued Indiana law only required White to be a registered voter in order to seek the secretary of state's office. He believes the qualification statute in question does not require White as a candidate to be legally registered to vote in the precinct where he resides; only that he be a registered voter in the state of Indiana.

As a matter of law, Brooks believes the Commission is required to dismiss the Democratic Party's petition. Brooks relied on the recent Indiana Supreme Court decision in Burke v. Bennett in which it was held the disqualification statute for candidates subject to the Little Hatch Act does not apply to post-election challenges to prevent the winning candidate from assuming office. Similarly, Brooks argues the post-election challenge to White on the basis he was not legally eligible to vote at the address he falsely claimed on his Certificate of Nomination as his primary residence cannot be invoked to prevent him from assuming office.

Outgoing Secretary of State Todd Rokita, who was successfully elected to retiring U.S. Rep. Steve Buyer's congressional seat, chaired today's Commission hearing despite requests by the Democrats' attorneys he recuse himself. Rokita's office investigated allegations White committed voter fraud by claiming his wife's residence as his primary residence so he could continue to represent a town council district to which he had been elected before he and his wife divorced. The residence White purchased in February is outside his district, and he claimed the residence of his ex-wife as his primary residence when he voted in May, was nominated by the Republican Party for Secretary of State in June, and certified as a candidate for the office in July. Democrats first raised the issue of voter fraud in September, at which point White promptly resigned his seat on the Fishers town council; however, they raised the issue after it was too late to challenge White's nomination for the November election ballot. Rokita forwarded a report detailing his office's findings in the matter to a special prosecutor appointed to determine whether White had committed voter fraud shortly before the November election, but he refused to release his findings to the public. Rokita maintains the document is shielded from public release as an investigative report prepared in an ongoing investigation. If an election contest is allowed to proceed, the document would be one of the first items sought in discovery by the petitioners.

Rokita denied the Democratic attorneys' claim he could not be impartial in the matter because he had already concluded whether White committed voter fraud. Rokita denied he has made any such conclusions, although it was clear from today's deliberations he believes their petition should be dismissed. The Commission voted along party lines to give Brooks until noon tomorrow to file an amended petition to dismiss the Democrats' petition for an election contest to comply with the statutory requirement to remedy his defective motion to dismiss. Although the Commission approved a schedule for conducting discovery in the event the contest is allowed to proceed, it was apparent from today's deliberations both Rokita and the other Republican Commission member, Gordon Durnil, intend to vote to dismiss once Brooks files his amended petition. The lone Democratic member, former state legislator Robert Kuzman, who is now a lobbyist for Ice Miller, opposed Brooks' motion to dismiss and believes the contest should proceed in accordance with law. White was noticeably absent from today's hearing. He has remained virtually invisible since the vote fraud allegations against him first arose in September.

At the end of the day, I think Brooks has the stronger argument that Democrats should have timely contested White's qualification to run for secretary of state until waiting after he won the election in November to file their petition, although I think it appears apparent to any objective observer that White committed voter fraud in order that he could continue to represent a council district in which he didn't live. If the special prosecutor concludes he committed voter fraud and brings charges against him, he will no doubt be pressured to resign. If he refuses to resign and is ultimately found guilty of violating the law, he could be removed from office.

I publicly challenged my own councilor's residency during the 2007 municipal election and he promptly resigned his seat on the council with the prodding of party leaders. Particularly troubling in that case was the fact that Marion Co. Clerk Beth White, who is an attorney, certified Patrice Abduallah for the May primary election even after he filed a declaration of candidacy listing a residence outside his district. White claimed she had no legal obligation to challenge Abduallah's candidacy. She simply advised him of the problem and left it to him to correct it. Upon further investigation, it appeared to me Abduallah had lived outside the district the entire time he served as my councilor. The home he claimed as a primary residence was actually an abandoned home in bad disrepair that had been cited by the city for numerous code violations. No legal action was taken against Abduallah despite the obvious voter fraud he had committed.