[Image courtesy of breakthrough apps]
Last week, an Indianapolis trial judge sentenced former Secretary of State Charlie White to one year of home detention after a jury convicted him of six felony counts related to his use of his ex-wife’s address as his voting address in the May 2010 election.
While White has vowed to appeal, the felony convictions did bring an end to one argument – whether or not White could continue to serve as Secretary, which would have been possible had the judge agreed to reduce the sentence to a misdemeanor.
A larger argument has emerged, however, and it is one to which other states and localities should pay attention in this era of razor-close elections:
What happens when the law and/or the evidence shows the winner of an election is no longer the winner?
That’s the question that the Indiana Supreme Court will take up soon as it is asked to resolved who should replace White as Secretary of State.
The state’s Democrats argue that Indiana law as of the time of the 2010 election says that White’s conviction (in essence, a retroactive declaration of ineligibility) means that the eligible candidate with the next-highest number of votes – Democrat Vop Osili – should be declared the winner, even though he lost to White by 300,000 votes in 2010 AND was elected to Indianapolis City Council in 2011.
Republicans counter that the vacancy did not occur until White’s conviction and removal, meaning that the Governor can appoint his replacement.
The case has already made stops in and around the Hoosier State legal system – the State Recount Commission voted to uphold White’s eligibility; a decision that was then overruled by a Marion County judge in December 2011.
Basically, the Indiana Supreme Court is facing the same kind of choice that any court faces when asked to resolve a disputed, yet usually long-past, election. The problem is that all three of the major choices have significant drawbacks:
- If the Court chooses to elevate Osili, it chooses a candidate who was a distant runner-up despite alerting voters to potential issues with White’s candidacy;
- If the Court allows the Governor to fill the vacancy, it is essentially allowing the most significant result of the alleged fraud to stand; and
- If the Court throws up its hands and orders a revote, it will not restore the status quo ante that existed in November 2010 and could cost Indiana taxpayers significant funds depending on the timing of the election.
It’s a difficult choice that I am confident that the members of the Court wish they didn’t have to make.
If nothing else, the mess in Indiana – and the difficulties in resolving a disputed election result – should be in the back of the mind of anyone who cares about election administration. No one really emerges victorious when a court is asked to pick a winner; while we can’t always guard against bad actors, all of us who care about the nation’s voting system should do everything we can to ensure that voters, and not judges, decide the outcome of our electoral process.