Despite residency challenge, COA upholds results of Vigo Co. treasurer election

Despite having a Florida driver’s license and recently voting in an out-of-state election, the candidate for Vigo County treasurer who ousted the incumbent met the residency requirements to hold local Indiana office, the Indiana Court of Appeals has ruled.

Nancy S. Allsup was the incumbent Vigo County treasurer in 2020 when Josie Swalls-Thompson filed her candidacy as Allsup’s opponent. The same day she filed to run, Swalls-Thompson registered to vote in the county. Swalls-Thompson went on to earn 51% of the vote in the November 2020 election to Allsup’s 49%.

After the election, Allsup learned Swalls-Thompson had provided a Florida driver’s license as her ID to vote on Election Day. Also, Swalls-Thompson had claimed a homestead exemption on Florida real estate for 2014 through 2020.

Thus, Allsup filed a petition to contest the election results, seeking a declaration that she was the elected candidate because Swalls-Thompson was not eligible. Specifically, Allsup alleged her opponent was still a Florida resident at the time of the election and that she didn’t meet the requirement to have lived in the county for at least one year before the election.

At a hearing, Swalls-Thompson testified that she had lived in Terre Haute from 1976-2013, during which time she moved in with a man named Robert Thompson. The couple separated and Swalls-Thompson moved to Florida, where she purchased a condo, filed a homestead exemption and registered to vote.

However, she and Robert reconciled and were married in 2017, and Swalls-Thompson testified that she considered Indiana her home from that point on. Though she kept the condo, Swalls-Thompson filed tax returns listing Indiana as her residence and purchased two vehicles with titles in Indiana, among other business conducted in the Hoosier State.

The Vigo Circuit Court ultimately denied Allsup’s election contest, finding Swalls-Thompson’s “intention was to make Vigo County, Indiana her residence and that her actions taken to implement that intent was sufficient to establish her residency.” Although Swalls-Thompson had not received an Indiana license, “failing to obtain a valid driver’s license does not mean an individual is not a resident of Indiana. Rather, it means only that had she been stopped she would be driving without a valid license … .”

The Indiana Court of Appeals affirmed in the case of Nancy S. Allsup v. Jose Swalls-Thompson, 20A-MI-2333, with Judge James Kirsch writing Thursday that the case presented a “close question as to Swalls-Thompson’s ineligibility on the basis of her residency and reasonable minds could draw conflicting inferences from the facts and circumstances demonstrating her reestablished residency … .” Even so, “we decline to overturn the will of the voters because we cannot say the trial court’s decision denying Allsup’s post-election contest petition was clearly erroneous.”

Allsup’s appellate challenge was based on the argument that the trial court had misapplied State Election Board v. Bayh, 521 N.E.2d 1313 (Ind. 1988), which addressed the five-year residency requirement for Indiana governor. Here, she argued, the court misapplied Bayh “as a test of physical presence alone.”

But the Court of Appeals determined the trial court correctly determined the word “domicile,” as used in Bayh, is a synonym for “resident” or “inhabitant,” as used in the constitutional and statutory provisions governing county officer residency. Thus, the trial court did not misstate the issue as whether Swalls-Thompson “resided” in Vigo County.

“Viewed as a whole, the trial court’s findings support its conclusion that ‘the evidence is undisputed that she moved back to Vigo County after her marriage in August 2017 and has resided here ever since with her husband in his house,’” Kirsch wrote. “… Moreover, Allsup’s contention that the trial court’s failure to determine a specific date on which she reestablished her status as a resident of Vigo County overlooks the other factors that the trial court considered in applying Bayh and arriving at its conclusion.

“Despite Allsup’s assertions to the contrary,” Kirsch continued, “the trial court’s order did not misapply Bayh as a test of physical presence alone.”

The appellate panel noted Swalls-Thompson was a “snowbird” who spent winters in Florida, adding that “an individual is not required to sever all ties to reestablish residency.” What’s more, although she did not obtain an Indiana driver’s license, there was also no evidence that she had renewed her Florida license.

A sticking point was Swalls-Thompson’s decision to vote in Florida during the 2018 election, after her marriage. Even so, the appellate panel agreed with the trial court that “such action did not conclusively negate her intent to change her residence from Florida to Indiana or that she resided in Vigo County for one year prior to the November 3, 2020 election.” The panel noted Swalls-Thompson had demonstrated her intent of making Indiana her home after the 2018 election by changing her name and purchasing a car using an Indiana address.

“Swalls-Thompson acknowledges that she ‘certainly invited a challenge to her residency by failing to relinquish her homestead exemption, failing to obtain an Indiana driver’s license, and casting a single ballot in Florida after her marriage to Robert,’” Kirsch concluded. “These failures may be probative in assessing an individual’s domicile; however, no one factor is dispositive of an individual’s domicile as it is a contextual determination. … We cannot say the trial court’s decision was clearly erroneous.”

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