Lugar Residency For Voting Purposes Based On Backroom Politics Rather Than The Law

Gordon Durnil

Tomorrow, the Marion County Elections Board will hear a voter registration complaint citizen activist Greg Wright has lodged against Sen. Richard G. Lugar and his wife, Charlene, alleging that the couple have been illegally registered to vote in Marion County since they sold their Indianapolis home thirty-five years ago only months after Lugar's election to the U.S. Senate and moved their family to McLean, Virginia where they have resided continuously and permanently since. While Lugar and his supporters have steadfastly maintained there is nothing illegal with the arrangement of having no physical presence in Indiana as a condition to being a resident of Indiana for voting purposes, the law says otherwise. They suggest this arrangement has been out in the open and publicly endorsed by two Attorney General opinions, but the real story is something quite different.

Before long-time Lugar aide Mark Helmke told Real Clear Politics' Erin McPike during an interview a little more than a year ago that Lugar maintained no residence in Indiana and stayed in hotels during his return visits to the state, the fact that Lugar and his wife had relied upon a home he sold in 1977 and thereafter ceased occupying for voting registration purposes was unknown to all but a few political insiders. There's a fascinating back story to be told here that, to date, mainstream news reporters in Indiana have been disinterested in exploring. To reach the roots of this story, we must travel back in time to 1974 when then-Mayor Richard Lugar was locked in a tight election battle with a two-term liberal Democratic incumbent senator, Birch Bayh.

The political campaign between these two powerful political figures had grown very negative. Lugar, who is today characterized as a statesman who always ran positive campaigns prior this year's race against Richard Mourdock, ran a totally different sort of campaign against Bayh. He accused Bayh of being a "liar" whose "vote could be bought for $2,500." His campaign sent out a letter to veterans claiming Lugar was the only veteran running for Senate despite the fact that Bayh was an Army veteran. Bayh was deemed a big-spending liberal out-of-touch with Hoosier values. Lugar had a lot of help with his message from the Pulliam-owned Indiana newspaper chain, including the two large daily newspapers, the Indianapolis Star and Indianapolis News, which endorsed him. The Pulliams were particularly miffed that Bayh refused to give his blessing to federal funding for the Geist Reservoir project that would eventually make a few political insiders a handsome profit once it was developed.

For his part, Bayh did all he could to use against Lugar the public corruption during his tenure as Indianapolis mayor that had been exposed by the Pulliam-owned newspapers, in particular, the Indianapolis Police Department, which had high-ranking officers involved in running various rackets with crime syndicates and had even been accused of being involved in murder-for-hire deals. Bayh railed against the large budget increases within the mayor's office during Lugar's two terms. More importantly, the stinch of Watergate hung over the Republican Party nationally in 1974, and Bayh did all he could to tie Lugar to the unpopular Richard Nixon, successfully dubbing him as Richard Nixon's favorite mayor.

As an indication of just how nasty this campaign had been, when Sen. Bayh showed up to vote at a firehouse near his family's farmhouse in Shirkieville in rural Vigo County, a Republican election official was on hand to greet him with an unwelcome surprise. The Republican election's official challenged Bayh's right to cast a vote at the precinct where he had grown up and lived with his wife, Marvella, following their marriage, prior to his election to the U.S. Senate. According the Vigo Co. Republican Chairman, Bayh and his wife had not lived in the farmhouse for years and a tenant occupied the home. Bayh was not a resident of the precinct in which he sought to vote the official charged. The media, of course, had been tipped off that the challenge would occur. After a several hour standoff and the embarrassing point made, Republican officials relented and Bayh was allowed to cast his vote. By the end of the day when the votes were tabulated, Bayh eked out another term in the Senate, beating Lugar in his own home county of Marion by 6,593 votes.

Two years later, Lugar would take on incumbent Democratic Sen. Vance Hartke in the 1976 election. Unlike the 1974 election, the times were much better for the Republican Party in Indiana and Lugar coasted to victory over Hartke. Only three months after being sworn in to the Senate, Sen. Lugar and his wife, Charlene, decided it was "too expensive to maintain two homes" after they made the decision to purchase a home in McLean, Virginia and move their family there. A few months later on July 6, 1977, they sold their Indianapolis home at 3200 Highwoods Court.

Shortly before the 1978 primary election, it occurred to Lugar he might have a "residential situation in Indiana" to use his words. Lugar called on an old political friend and lawyer, Gordon Durnil, for assistance. At the time, Durnil served as vice-chairman of the Marion Co. Elections Board. On March 27, 1978, Durnil drew up an unprecedented legal document for the benefit of Lugar, his wife and oldest son, Mark, for voting purposes titled, "Affirmation of Registration," in his capacity as a private attorney for Lugar, which nonetheless stated his official role as vice-chairman of the county elections board. Durnil obtained the following day the written approval of the two Marion County Board of Voter Registrations members, John A. Cook, Republican member, and Knute Dobkins, Democrat member who also served as the Marion Co. Democratic Party Chairman at the time. The Affirmation provided that Lugar, his wife and son, were deemed to be "duly registered and qualified voters of Precinct 16, Ward 29, Marion County, Indiana for the Primary Election and the General Election of 1978 and for all elections thereafter for as long as Richard G. Lugar is serving the State of Indiana as United States Senator or until the Board is sooner notified by any of the above named that it is their intent to change from said precinct, all pursuant to Article 2, Section 4 of the Constitution of Indiana."

Durnil drafted and mailed a letter addressed to Sen. Lugar at his Washington, D.C. Senate office on March 28, 1978 on his law firm letterhead with the Affirmation of Registration enclosed. Durnil reiterated in the letter that the document would permit Lugar to vote using his former 3200 Highwoods Court address "as long as you are a U.S. Senator unless you sooner change your registration." Obviously mindful of what had happened to Bayh in Vigo County at the November, 1974 general election, Durnil instructed Lugar to "place the original in safe-keeping and xerox copies to have in your possession for general election voting should you ever be challenged." Durnil added, "All of this pursuant to Rick's request." The Rick referred to in the letter was Rick Hohlt, a senior aide in his Senate office.

It remains a mystery why the Marion County Democratic Chairman Knute Dobkins would have agreed to sign a document to benefit the Lugars that many election experts would argue did not comport to Indiana's voter registration law, particularly in light of the 1974 problem Republicans had given Bayh in voting using a farmhouse that had been owned by the Bayh family for many years. Dobkins recently died at the age of 90. Greg Wright contacted Durnil and inquired about the document. Wright said Durnil did not seem happy to receive his call. He told Wright that he should be ashamed and embarrassed of his actions in challenging the legality of Lugar's voter registration. Wright asked Durnil if the action represented by the Affirmation of Registration had been approved at a formal meeting and whether any minutes of such meeting existed. Durnil told him that he believed there would be minutes that recorded the action. According to the Marion County Election Board, no minutes of board action dating back that many years are to be found in the archives. It appears doubtful that there was any formal approval recording the action. The signature of the county clerk at the time, Thomas O'Brien, a Democrat, is not affixed to the document. For all practical purposes, the document is a nullity and the subsequent actions of Lugar indicated as much.

Six months after Lugar obtained the Affirmation of Registration courtesy of Durnil's actions, he sought and obtained a separate legal opinion from Attorney General Theodore Sendak's office. Apparently Sendak wasn't keen on offering the opinion because no formal opinion was offered. Instead, a deputy in his office, Robert Swain, penned an "Unofficial Memorandum" addressed to Rick Hohlt in Lugar's Senate office titled "Residency of the Family of U.S. Senator" dated September 28, 1978. Relying upon a provision of the Indiana Constitution which provides that persons absent from the state while on business of the state or of the United States shall not be deemed to have lost his residence, Swain opined that Lugar did not lose his Indiana residence by moving to Washington "absent other conditions" for voting, tax or other purposes." Swain's memorandum contained a disclaimer that "[t]he opinions expressed herein are not necessarily those of the Attorney General."

Despite obtaining the Affirmation of Residence and the unofficial memorandum from Swain, Lugar remained concerned about his legal residency status in Indiana when he sought re-election in 1982. In response to that concern, then-Attorney General Linley Pearson provided Lugar an official advisory opinion assuring him that it was perfectly legal for him to continue voting at his former Indianapolis home. "If such a person was entitled to vote in this state prior to departing for service in Congress, whatever residence that person possessed for voting purposes prior to such departure remains his or her residence," Pearson opined. "There is no requirement that such a person maintain a house, apartment, or any fixed physical location," Pearson added. "Such a person's residence is completely protected by the [state] constitutional and statutory provisions." Pearson continued, "I am therefore of the opinion that a United States Senator from Indiana, or a member of the U.S. House of Representatives from Indiana, is deemed a resident, for voting purposes, of the precinct in which such person maintained his or her residence, and in which such person voted, prior to departing for service in the Congress of the United States."

In an interesting twist, ten years after Durnil obtained the sweeping exemption for Lugar, his wife and son from the requirement of all other voters that they maintain a "true, fixed and permanent home and principal establishment" to qualify as residents of the state for voting purposes, Durnil went on the attack as Indiana State Republican Party Chairman against the son of Birch Bayh when he sought the office of governor in 1988. Durnil charged that Bayh, who had been elected Secretary of State in 1986, had not been a resident of Indiana for the preceding five years as mandated by the U.S. Constitution and had been illegally registered to vote at his parents' residence for many years. "The guy thinks he's above the law and now the Constitution," Durnil charged. "The question is . . . can Evan Bayh rely on an illegal act (voting in Vigo County, but not living there) to prove residence? The answer is no . . . What kind of arrogance does it take for Evan Bayh to claim that he is not subject to the Indiana Constitution?" The challenge to Bayh's residency would make its way all the way to the state's Supreme Court, which held in a landmark decision that Bayh satisfied the residency requirement during the preceding five years because he manifested an intent to maintain an Indiana residence despite the period of time he had been absent from the state working at a law firm in Washington. Notably, Bayh could point to "a true, fixed and permanent home" in Indiana, even if he did not continuously reside there, which he had relied upon for voting purposes, unlike Lugar.

The existence of the 1978 Affirmation of Registration or prior Attorney General opinions had not been a matter of public record prior to the firestorm over Lugar's residency. The current Attorney General entered the picture when a challenge to Lugar's eligibility to run for re-election was heard by the Indiana Election Commission last month. Like his predecessor, Attorney General Greg Zoeller issued a second official opinion siding with Lugar's claim that he did not lose residency in Indiana despite the absence of a physical presence within the state because he was absent from the state while in service of the United States. "If a person has established a residence for voting purposes in an Indiana precinct prior to his or her service in Congress, that residence remains the Congressperson's residence as long as he or she remains on business of the state or of the United States," Zoeller's opinion reads. Like Pearson, he believes Lugar and others similarly situated are not subject to a "continued physical presence" in order to maintain residency within the state.

The problem with the Attorneys Generals' opinions is twofold. First, it runs afoul of the Qualifications Clause for Senators and Representatives, which require them to be "inhabitants" of their respective states "when elected." An inhabitant requires both a physical presence and an intent to habitate within the state according to federal court decisions. Lugar's act of abandoning his Indiana residence and establishing as his sole residence a home in Virginia runs afoul of the inhabitancy requirement contained in the U.S. Constitution. Contrary to the interpretations offered by Pearson and Zoeller, the inhabitancy requirement is a continuing qualification that must be met each time a Senator or Representative stands for election; it does not only apply to their initial election. It is true that a Senator or Representative may cease to be an inhabitant of their state during the current term being served, but incumbent members of Congress are still subject to the inhabitancy requirement at the time of the next general election if they choose to seek re-election.

Secondly, the Pearson and Zoeller opinions conflate and confuse the fail safe provision of the Indiana Constitution that protects persons absent from the state on business of the state or of the U.S. government from loss of residence. When the Indiana Constitution was adopted in 1851, Senators and Representatives were still part-time lawmakers who spent most of their time away from Washington. Unlike today, members of Congress were not paid a salary upon which they could subsist; they were paid a mere $8 per diem while they were in session. Unless they were independently wealthy, members of Congress had to return home to their regular jobs, businesses or farms to earn a living to support their families. The framers of the Indiana Constitution would have shuttered to think that they were adopting a provision that allowed members of Indiana's congressional delegation to give up their homes and move permanently to Washington with their families without losing residency within the state. The provision is more susceptible to an interpretation that applies it to persons whose absence required a full-time commitment away from the state for an indefinite period, such as those serving in the military, or persons serving in the executive branch as President, Vice-President, cabinet member, or ambassador. Members of Congress were constitutionally mandated to be inhabitants of their state and were expected to return, mix and live among the people they represented during their terms of service.

By way of disclosure, I am representing Greg Wright at tomorrow's election board meeting contesting the voting registration of the Lugars. It is important to bear in mind that members of Congress are not constitutionally required to be registered voters of their respective states, and any state law that would require them to be a registered voter would run afoul of the Qualifications Clause. Even if the Marion County Elections Board deemed the Lugars current voter registration to be illegal, it would not render Lugar ineligible to seek re-election to the Senate. There are easy remedies to his "residential situation," but he has remained stubborn in his refusal to designate "a true, fixed and permanent home" to which he can return within the state while he's not serving in Washington. If he refuses to re-establish a physical presence within the state and is successful in his bid to be re-elected to a seventh term this November, he runs the risk someone could step forward to challenge his eligibility to be seated for failing to be an inhabitant of the state "when elected." Under the U.S. Constitution, the Senate has the final say on the qualifications of its members. Why leave anything to chance?