There’s Law and There’s Politics

A lawyer friend of mine recently sent me an email commenting on the Recount Commission’s ruling on Charlie White’s residency.

“Contrary to what I repeatedly heard from the Commission members yesterday, mostly Wheeler, Indiana law does not state that residence is totally a function of one’s intent.  While important, the Supreme Court in the Evan Bayh case said these things about the role of intent in domicile cases.  First, it said that “a self-serving statement of intent is not sufficient to find that a new residence has been established.” (“I intended to live at Broad Leaf at the home of the woman I divorced 3 years earlier, while I was engaged to another woman, and after I’d leased and then purchased a condominium with a 30-year mortgage and paid all the utility bills while my fiancé was living there.”) Second, the Bayh case held that residency requires both intent and “evidence of acts taken in furtherance of the requisite intent, which makes the intent manifest and believable.”  In other words, one’s professed intent, to be made believable, requires conduct that is consistent with that professed intent.  And third, the Court in the Bayh case emphasized that a location cannot be one’s domicile unless it is one’s “true, fixed, permanent home,” not a place (like one’s ex-wife’s home) where one goes occasionally to “crash”, i.e. a purely temporary arrangement.”

The Commission essentially ruled that all White needed to do was profess an intent to reside at his ex-wife’s home.  But as my friend pointed out, his ex-wife explicitly testified that the arrangement was “never intended to be permanent but only temporary.” Furthermore, White’s contemporaneous conduct and the circumstances surrounding his divorce and engagement to another woman was–in any world most of us inhabit or recognize–totally inconsistent with his testimony that he intended to take up permanent residence with his ex.  He leased and then purchased the new condo and moved his fiancé into it at no charge to her; he represented to his lending institution, to his future employer, to his prior employer and to the IRS that this condo would be his permanent residence. If this were a made-for-TV movie, the obvious question would be: “Were you lying then or are you lying now, Mr. White?”

As my friend conceded, the process is and was intended to be political rather than judicial in nature, so that a political rather than a judicial outcome would result.  And that is precisely what happened here. If White thinks he will have as easy a time of it when the criminal charges against him are heard, he’s likely to be very disappointed.

The great irony is that, by refusing Republican and Democratic demands that he resign, White is continuing to embarrass the same Republican party that provided him with last week’s Pyrrhic victory.


  1. Sheila, If you simply read the controlling Supreme Court decisions (Evrard and Bayh), you would understand why the Commission got it right. Evrard and Bayh both found in favor of the office-seeker in cases less believable than White’s case and involving egregious cases of persons residing outside the state having their residency generously interpreted by the courts as being in Indiana based on their intent.

    Evrard claimed residence at his parent’s house where he hadn’t lived in 17 years and registered to vote there in order to run for a circuit court judge position that opened up. He lived and worked in D.C. where his children attended school. He only gave up his job at the Justice Department 3 weeks before the election because the AG forced him to resign because he was violating the Hatch Act by running for a partisan political office, a fact he hadn’t bothered to disclose to his employer. He was using a private plane to fly back to Indiana occasionally on weekends over a several month period to campaign for office. He didn’t buy a home in the county where he was running for office until the July following the May primary election and move his family there until he knew he had secured his party’s nomination. He even got married to his wife under peculiar circumstances shortly before running for office before she was divorced from her current husband. His wife had never lived in the county or state of Indiana before moving there with him but voted in the May primary election at his parent’s residence. His car was registered in Virginia where he held a driver’s license.

    Bayh relied on his parents’ farmhouse in Shirkieville for his Indiana residence. He had not lived there since he was a small child. He had rented several apartments in his name in the D.C. area after moving out of his parents’ home when he became an adult. His car was registered in D.C. He even claimed a federal tax deduction for his move into his D.C. apartment to work for a D.C. law firm after finishing law school where he worked for almost 2 years. When Bayh did finally move to Indiana, he lived in a downtown Indianapolis condo purchased by his father.

    Charlie at all times lived in the same Indiana county. The debate centered over which home he resided in a small community for running for statewide evidence. Any attorney who has handled divorces in today’s age for younger couples knows it is not at all uncommon for them to not only continue to reside with each other while the divorce is pending, but in some situations, continue living with each other for an extended period due to the financial circumstances they face in in paying for the divorce, establishing a new home for themselves and fulfilling court-ordered child support payments. Charlie White is not a wealthy person. Those of us who aren’t wealthy sometimes have to make decisions and do things that might seem foreign to the very wealthy of society who never have to worry about their next pay check. It is amazing that you and your other liberal friends would deem someone who has always lived and worked in the state of Indiana as not only being ineligible run for statewide office here but also to vote. The Indiana Constitution, by the way, does not even require a person be a resident of the state of Indiana to run for secretary of state. The residency requirement is only required for candidates who run for governor. I understand that you personally may not like Charlie White, but for heavan’s sake, isn’t he entitled to any basic rights under the Constitution and the law, if not some compassion and understanding?

  2. Gary Welsh has recently become a passionate defender of Charlie White. Charlie is fortunate to have him in his camp. But Gary should stick to the facts and the law rather than filling his defense with invectives and distractions. The Bayh and Evrard cases both involved claims made by Republicans (and in Bayh’s case, one of the members of the current Commission, Gordon Durnil) that candidates had abandoned their residence in Indiana. That has never been the claim in Charlie’s case. Even he agrees that he abandoned his Broad Leaf home after his divorce from Nicole in ’06 and his Pintail apartment after his lease expired in June ’09. The issue in Charlie’s case is where his one true and permanent residence was after that. Was it the Overleaf condo he leased in Nov. ’09, purchased in Feb. ’10, allowed his fiance and her kids to move into after executing the lease (without telling anyone he was subletting the apartment), represented for purposes of obtaining the homestead credit that he intended to occupy as his primary residence, made the lease, mortgage and utility payments on from Nov. ’09-May, ’10, and represented to both his previous employer (DNR) and his future employer (Krieg Devault) was his address? Or was it the Broad Leaf home of his ex-wife, who testified under oath that any of Charlie’s sleeping arrangements there were obviously temporary in nature?

    Gary’s references to Charlie not being a wealthy person (though he had access to the abundant legal resources of one of the top election law firms in the nation), and divorced couples who continue to live with each other because they can’t afford separate residences (Charlie was paying $1,700/month for a nice condo to house his fiance and her kids–doesn’t sound like a poverty case to me) are also red herrings.

    Gary is free to disagree with the law and teh evidence presented to the Commission, but not to misrepresent it. The evidence assembled without any pre-trial discovery demonstrated that as between Broad Leaf and the Overview condo, the condo was his permanent residence was, regardless of where he may have slept (personal details we steered clear of). The Commission, which is an inherently political body, chose to ignore certain undisputed evidence and it bought the distortions of the law Gary is pedalling. Whether that decision be appealed and if so will survive on appeal, only time will tell.

    Charlie White is the person who chose to make certain decisions, and it is not unfair or lacking in compassion to expect him to take some personal responsibility for them. Isn’t that what conservatives are always preaching to “liberals?” He also received more legal and constitutional protections than 99.9% of persons who are charged with crimes in this state. For Gary to suggest that Sheila Kennedy doesn’t want Charlie to have the protections of the Constitution and law is beyond absurd. As even the Republican chair observed, Charlie walked up to the line (we think he clearly crossed it) and should have known better. He is not being picked on, he is being held accountable for choices he freely made.

  3. Evan Bayh voted year after year at a Shirkieville home at which he never lived, Bill. The undisputed fact is that the only place he really lived was in the D.C. area before he decided to run for office in Indiana. Evrard hadn’t lived in the state for 17 years before registering to vote at his parent’s home. He didn’t even bother to move to Indiana until after he secured his party’s nomination. The undisputed fact, Bill, is that Charlie always lived in Hamilton County, Indiana at all times relevant to these proceedings. He was an eligible registered voter of this state. You want to strip him of his office and send him to prison because he used his ex-wife’s home as his declared voting residence for a period of a few months more than he should have lived. You couldn’t refute the fact that he had at least moved to his ex-wife’s home after he gave up the Pintail apartment before purchasing the Overview condo. He, not you or anyone else for that matter, gets to decide when he wants to make that new home he has purchased his voting residence. He in fact did produce evidence he was still getting mail sent to his ex-wife’s address, he had his driver’s license address changed to that address and his ex-wife confirmed he had her permission to come and go from a basement living space in the home they formerly shared so he could spend more time with his son. Nobody in the history of Indiana has been prosecuted and persecuted for such a flimsy set of facts. It is frightening to say the least. This case is doing more to disenfranchise voters than anything Voter ID could ever do to harm that right. I would advise people simply not to register to vote and cast votes unless you want to give political enemies and dark forces within the government specious grounds for prosecuting you. Many people already stopped registering to vote to avoid jury duty service. It’s not worth it. Why don’t you care about the case of Tommy Schrader managing to cast a vote in Wisconsin’s primary this year while living at a homeless shelter at the same time he was on the ballot as a candidate for the Ft. Wayne city council? Now that’s a case of real voter fraud, but I entirely understand why you wouldn’t want to shine any attention on a case involving a state that allows you to register and vote the day of an election.

  4. Gary, quit beating the dead horse formerly known as Evan Bayh. That case has been over for years and it was decided 5-0 by a Supreme Court that was majority Republican. And I don’t know who Tommy Schrader is or what he’s accused of doing and don’t care. I have no desire to see CW go to jail and I seriously doubt he ever will even if the bipartisan special prosecutors secure his conviction. You and I know that only poor people without high-priced defense lawyers get sent to prison. And I have no idea how you think enforcing the residency laws disenfranchises anyone other than those who lie or deceive and have a motive to do so. CW wasn’t disenfranchised, nor was his fiance who admittedly voted at a precinct in which she didn’t live as recently as the May 2010 primary. And CW never proved that he “moved” to his ex-wife’s home permanently, which as you know is what the law requires to establish domicile. Otherwise, we’d have people claiming multiple residences and voting in multiple sites. Do you really believe CW established legal residence at the home of his ex-wife? He made a self-serving ipse dixit to that effect, but even his ex said any arrangement was only temporary. Duh.

    Since I’m taking my grandson to the fireworks, I have to end this interesting dialogue. But I do have a suggestion. You agree that Voter ID as it’s presently constituted is nothing more than a thinly-veiled effort to suppress voters of color and ethnicity and that we should go to a system of same-day registration, and I’ll agree we should eliminate all these pesky residency requirements that your friend Charlie finds so irksome. I think one thing we can agree on is that there are way too many laws on the books.

  5. Sorry, Bill, you’re the one who is beating a dead horse. I admire the job you and Karen did but at the end of the day attorneys are limited by the evidence they have to offer. There comes a time as a lawyer when you have to admit you just don’t have a very good case to argue. You guys don’t have a good case, and that’s reflected by the fact a unanimous commission, including a former Democratic judge, ruled against you.

    You can talk legal technicalities all you want but the Commission looked at the fact White had circumstantial evidence and four witnesses and you only had circumstantial evidence to prove your case. That’s the bottom line.

    The case gets much worse when it moves to the criminal court. You think a jury is going to pick up on some highly technical point you’re trying to make? Absolutely not. The standard is beyond a reasonable doubt, as you know. The prosecutors have no chance of winning that for the same reason you didn’t win in front of the commission. There goes 5 of the 7 felony charges. Mortgage fraud is easily disposed of…all he has to show is an intent to occupy within 30 days. Then the only remaining charge is “theft” which is a downright goofy charge that I believe a Judge will dismiss as not fitting the facts.

    You talk about beating a dead horse. Bill that’s exactly what you are doing by continuing to pursue this. And White is right that he is being selectively prosecuted. This was a political prosecution from the beginning.

  6. Paul,
    Pylitt’s vote made no difference and he decided to go along rather than issuing a principled dissent. That was his choice, and he’ll have to live with it. And yes, we did rely on what you describe as “legal technicalities.”. The problem with that, as you implicitly concede, is that (and this is Sheila’s point), this case was never about the law. The Commission by it’s nature is a political tribunal and it made a political decision rather than a judge-like decision. How this comports with due process rights to a disinterested decisionmaker is a question for another day. Both you and Gary insist on ignoring those technicalities, such the permanency requirement to establish one’s domicile, which is odd given both of you as lawyers have doubtlessly relied on “technicalities” to successfully represent clients. One person’s technicalities are another’s pillars of our legal system. The fourth amendment is such a “technicality.” You have your views about CW and I have my quite different views, and I doubt the twain shall ever meet.

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