White v. Indiana Democratic Party, 49S00–1202–MI–73.

• Decision Date: 15 March 2012
• Docket Number: No. 49S00–1202–MI–73.,49S00–1202–MI–73.
• Citation: 963 N.E.2d 481
• Parties: Charlie WHITE, in his individual capacity, Thomas E. Wheeler, II, Gordon Durnil, and Bernard L. Pylitt, in their official capacities as members of the Indiana Recount Commission, Appellants (Respondents below), v. INDIANA DEMOCRATIC PARTY, through its Chairman, Daniel J. PARKER, Appellee (Petitioner below).
• Court: Indiana Supreme Court

963 N.E.2d 481

Charlie WHITE, in his individual capacity, Thomas E. Wheeler, II, Gordon Durnil, and Bernard L. Pylitt, in their official capacities as members of the Indiana Recount Commission, Appellants (Respondents below),

v.INDIANA DEMOCRATIC PARTY, through its Chairman, Daniel J. PARKER, Appellee (Petitioner below).

No. 49S00–1202–MI–73.

Supreme Court of Indiana.

March 15, 2012.

David M. Brooks, Samantha De Wester, Indianapolis, IN, Attorneys for Appellant Charlie White.

Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, David L. Steiner, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellant Indiana Recount Commission.

William R. Groth, Karen Celestino Horseman, Indianapolis, IN, Attorneys for Appellee.SHEPARD, Chief Justice.

This case comes before us only after deliberative actions taken by the executive branch, the Indiana Recount Commission, the General Assembly, the court system, and—most significantly—almost two million Indiana voters who cast their ballots for Secretary of State in November 2010. The Indiana Democratic Party sought to have the winner in the election, Republican Charlie White, declared ineligible to assume office because he had not been registered to vote at the address at which he resided on July 15, 2010, the deadline for certifying candidates for state office. The Indiana Recount Commission dismissed this petition and later denied it, but the Marion Circuit Court reversed.

The appeal before us today does not decide any questions flowing from White's subsequent criminal convictions, but rather whether the Democratic Party's petition was a basis for barring his taking office after winning the election. We hold it was not.

Facts and Procedural History

Charlie White married Nicole Mills in September 1998. They resided, together with their child, in the town of Fishers, in Precinct 12, Delaware Township, at a home on Broad Leaf Lane. White served as a member of the Fishers Town Council from a district that included the Broad Leaf house. White voted in the 2004 and 2006 primary and general elections in this precinct.

White and Mills divorced in December 2006, after which Mills continued to live at the Broad Leaf house. White began renting an apartment in Precinct 14 of Delaware Township, on Pintail Drive. In January 2007, White changed his voter registration from the Broad Leaf house to the Pintail apartment. The Pintail apartment was in the district from which White was elected to serve on the Fishers Town Council. That same month, he conveyed his interest in the Broad Leaf house to Mills.

In January 2009, White formed a campaign committee aimed at his candidacy for Secretary of State and filed a Statement of Organization with the Indiana Election Commission, listing the Pintail apartment as his mailing address.

In May 2009, White moved out of the Pintail apartment and into the basement of the Broad Leaf house. The next month, in June, he became engaged to Michelle Quigley, with plans to marry early in 2010 but not to live together until that time. White changed his driver's license address back to the Broad Leaf house in December 2009, received mail at the Broad Leaf house, and testified that he intended for it to be his principal residence until he and Quigley moved into a third residence on Overview Drive, in Fishers (the “Overview condo”). (Recount Commission's Add. at 4.) The Overview condo was not in the district from which White was elected to serve on the Fishers Town Council.

In November 2009, White voted in a special election at the Precinct 14 polling site, indicating in the poll book that his address had changed to the Broad Leaf house. (Recount Commission's Add. at 4.) He testified that he believed he had also changed his voter registration back to Broad Leaf, but this was not the case—on February 22, 2010, he filed an address change with the Board of Voter Registration to effectuate this change. (Recount Commission's Add. at 5.)

White had begun the process of purchasing the Overview condo in September 2009. Through the course of a drawn-out purchasing process, during which White leased the Overview condo from its seller, White listed the Overview condo as his mailing address on multiple loan application documents, tax documents, utility bills, and employment records, with his former address listed as the Broad Leaf house. Pursuant to the terms of his mortgage, White was to occupy the Overview condo no later than April 27, 2010. Quigley and her two children moved into the Overview condo in November 2009, where White's own child also spent one or two nights a week. (Recount Commission's Add. at 9.) White's marriage was delayed from March 2010 to May 2010.

White did not change his voter registration before the May 4, 2010 primary election and voted at the Precinct 12 location for the Broad Leaf house. (Recount Commission's Add. at 12.) After the primary election, on May 11, 2010, White filed his Declaration of Candidacy with the Indiana Republican Party. He submitted his state convention delegate form to the Republican Party a week later. On both of these forms, he indicated that Broad Leaf was his address. White and Quigley were married on May 28, 2010, and White moved his belongings out of the Broad Leaf house and into the Overview condo in June 2010. (Recount Commission's Add. at 12–13.)

The Indiana Republican Party submitted its certification of nomination—listing White as the party's candidate for Secretary of State—with the Indiana Election Commission on June 22, 2010. It showed White's address as the Overview condo, but the Broad Leaf house as the mailing address. (Recount Commission's Add. at 13.) The deadline for this filing was July 15, 2010. On September 20, 1010, White received a new driver's license showing the Overview condo address.

On September 21, 2010, a resident of Fishers announced a news conference for the next day to reveal White's failure to reside in the Fishers Town Council district from which he had been elected. White resigned his town council position that same day,¹ and on September 22, 2010, he filed a voter registration application showing his address as the Overview condo, with Broad Leaf as his previous address. (Appellee's Add. at 5; Recount Commission's Add. at 13.)

White won the November 2010 general election for Secretary of State, defeating his Democratic Party opponent Vop Osili by more than 300,000 votes.

On November 19, 2010, the chairman of the Indiana Democratic Party, Daniel Parker, filed a verified petition with the Indiana Recount Commission, seeking to contest the results of White's election under the provisions of Indiana Code §§ 3–12–11–1, –3. The petition alleged that White was not qualified to assume the office of Secretary of State because he was not registered to vote at the address at which he resided as of July 15, 2010—the deadline for the Republican Party to file its certificate of nomination—in accordance with Indiana Code § 3–8–1–1(b)(1).

White, now Secretary of State—Elect, moved to dismiss Parker's petition on November 23, 2010, but the Recount Commission denied his motion on December 5, 2010. On December 6, 2010, White renewed his motion. By a unanimous vote, the Recount Commission granted White's second motion to dismiss.²

The Democratic Party timely sought judicial review of this decision in the Marion Circuit Court; that court reversed the dismissal and remanded for a full proceeding on the merits.³

The Recount Commission held a hearing and received evidence on the matter on June 21, 2011. On June 28, it issued its findings of fact and conclusions of law, and determined that White was eligible to run as a candidate for Secretary of State in 2010. (Recount Commission's Add. at 1–32.) On December 22, 2011, the Marion Circuit Court again reversed, directing that the Commission declare White ineligible and certify Osili as Secretary of State, in accordance with Indiana Code § 3–12–11–25.⁴

The Recount Commission and White timely filed appeals, and both the Commission and the Indiana Democratic Party sought transfer of jurisdiction to this Court. We accepted the appeals. We now affirm the decision of the Recount Commission.

I. Statutory Framework for Challenging the Election of State Officers

Pre-election challenges to a candidate's eligibility are governed by Title 3, Article 8 of the Indiana Code. See Ind.Code §§ 3–8–8–1 to –8 (2005 & Supp.2011). A challenge under these provisions “must be filed with the election division not later than noon seventy-four (74) days before the date of the general election at which a candidate to the office is to be elected.” Ind.Code § 3–8–8–3(b).

An appeal may lie from the Commission's decision, but regardless of where the matter lies, at noon sixty days before the general election the challenge terminates and the challenged candidate's name may not be removed from the ballot, nor may a replacement name be submitted. Ind.Code §§ 3–8–8–6, –7(a). Any votes cast for that candidate will be reported under that name. Ind.Code § 3–8–8–7(a)(4).

If the challenged candidate is later found to have been “not qualified to be elected to the office,” the statutes treat the matter as if “[a]n eligible candidate of the same political party, if any, as the ineligible candidate had been elected,” and “[a] vacancy in the office occurred after the election.” Ind.Code § 3–8–8–8(b). In such an instance, “[t]he vacancy in the office shall be filled as otherwise provided by law.” Ind.Code § 3–8–8–8(c).

The Democratic Party, however, filed its petition challenging White's election pursuant to Title 3, Article 12, which provides a remedy for the state chairman of a candidate's party to contest “the nomination or election of a candidate” by filing a petition within seventeen days after election day. Ind.Code § 3–12–11–1(b)(2) (2005); see also Ind.Code § 3–12–11–2 (2005). In addition to various administrative requirements, such a petition must state as...