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Justices won't intervene in secretary of state eligibility case

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Ruling on an emergency transfer request, the Indiana Supreme Court today accepted Secretary of State Charlie White’s appeal against the state’s Democratic Party and ruled it won’t put a halt to the case while a recount investigation and criminal voter fraud proceedings are ongoing.

With that, the justices are allowing for the Indiana Recount Commission to rule on whether White – elected as the state’s chief election officer in November – was eligible for office because he registered using a false home address during his campaign.

Both White and the commission had appealed Marion Circuit Judge Lou Rosenberg’s decision in the past month ordering commission members to hear a challenge from Democrats, who allege White was illegally registered to vote at the time he declared his candidacy and therefore ineligible to run. The commission has scheduled an evidentiary hearing for the election contest June 21 and self-imposed a June 30 deadline for deciding on the matter.

That eligibility is related but separate from the criminal case in Hamilton County involving White. He faces a trial in August on felony voter fraud charges. The newly elected state official remains in office while these two matters are pending. He asked the Supreme Court to stay the recount matter until the criminal case is resolved on grounds that the voter fraud question is what is at issue in both civil and criminal proceedings. White argued that putting the recount matter first could jeopardize the felony case if he decides to defend himself.

The two-page order came today in Charlie White, et al. v. Indiana Democratic Party, No. 49S02-1105-MI-291. Noting that it only accepts jurisdiction on Appellate Rule 56(A) cases in extraordinary matters involving emergency and substantial questions of law of great public importance, the justices granted the request in this case. The court denied White’s request to stay the matter.

While dismissing the appeal to allow the recount commission process to play out, the court noted it would keep jurisdiction of the matter in case a further appeal surfaces. But it cautioned the parties that it likely would be “disinclined” to accept a discretionary interlocutory appeal in the name of a speedy resolution to this matter.

This case has significant implications for the state, as it could determine whether the Republican-elected White is allowed to stay in office. State officials are not able to hold elected office if they are convicted of a felony, but the recount commission could also remove White if it determines he wasn’t legally registered and able to be included on the ballot in the first place. The Indiana attorney general has argued that state statute says someone must be “registered,” not that he or she must be “legally registered.”

During the 2011 legislative session, the Republican-controlled General Assembly attempted to amend state law allowing for the governor to appoint the secretary of state’s replacement if the officeholder is removed. Currently, the law says the second-highest vote getter in the November election would take the position – in this case that would be Democrat Vop Osili. Control of the secretary of state’s office determines a party’s placement on the ballot and appointment of election board officials, and a change would have ripple effects for the Republicans who now have control.

The Legislature ultimately declined to act on what had been dubbed “the Charlie White Rule,” with attorney and House Speaker Brian Bosma, R-Indianapolis, joining others who said they weren’t comfortable intervening in an active lawsuit.

After today’s transfer decision by the court, Indiana Democratic Party Chairman Dan Parker said in a written statement that he’s happy with the ruling and he hopes the commission will continue to move forward with the complaint.

“Republicans threw out every roadblock they could to delay or discard this case,” he said in the statement, “but the central question has never been answered.”

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