INDIANA's 1988 GUBERNATORIAL RESIDENCY CHALLENGE Joseph
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INDIANA’S 1988 GUBERNATORIAL RESIDENCY CHALLENGE Joseph Hadden Hogsett Submitted to the faculty of the University Graduate School in partial fulfillment of the requirements for the degree Master of Arts in the Department of History Indiana University June 2007 Accepted by the Faculty, Indiana University, in partial fulfillment of the requirements for the degree of Master of Arts. Robert G. Barrows, Ph.D., Chair Elizabeth Brand Monroe, Ph.D. Master’s Thesis Committee William A. Blomquist, Ph.D. ii Dedicated to the memory of my colleague and friend, Jon D. Krahulik iii ACKNOWLEDGMENTS I take this opportunity to thank the people who helped make this paper possible. Dr. Robert G. Barrows served as my seminar professor, my mentor and the Chair of this thesis committee. Many other graduate students have acknowledged his sound advice, his guidance, his editing and his sense of humor. All of those also apply here. In my case, however, above all, I owe him a debt of gratitude for patience. This paper began as a concept in his seminar in the spring of 2002, but was not finished for five years. Even if Dr. Barrows had known then how flawed and distracted the author would prove to be, I am convinced he still would have agreed to chair the project. His patience is a gift. I also acknowledge the advice offered unconditionally by the committee’s other members, Dr. Elizabeth Brand Monroe and Dr. William A. Blomquist. Though they, like Dr. Barrows, possessed sufficient probable cause to notify authorities of a “missing person”, both exercised incredible restraint and, in so doing, no doubt violated some antiquainted canon of academic protocol. However, their restraint allowed me to finish the effort. It is also important to underscore that Indiana Supreme Court Justice Frank Sullivan was extraordinarily helpful with his ideas, editing and attending commentary, particularly as it relates to his appreciation of the critical role that the state judiciary played in the process. Whether as administrative assistant to U.S. House of Representatives Majority Whip John Brademas, as Governor Evan Bayh’s budget director, or now as an associate justice of Indiana’s highest court, Frank Sullivan has epitomized what it means to be a “public- servant.” It has always been my honor to call him a friend. This paper would never have been memorialized absent the loyalty and dedication of my colleague at my law firm, Bingham McHale, Elizabeth “Libbi” Potter. She has spent iv countless hours of her own time on this project. For that, I will be forever grateful. Libbi has, however, enrolled me in a twelve-step program to help free me from my dependency on red pens and the uncontrollable desire to continue re-writing the same paragraphs and pages over and over. Finally and with solemnity, no acknowledgement would be complete without identifying some of the names of individuals who lived essential parts of this story, but who will never have the opportunity to comment on this account: Jon D. Krahulik, Governor Frank O’Bannon, Mary Finnegan, Phil Schermerhorn, Ed Lewis, John Weliever, Marion County Sheriff Jim Wells, Ed Connery, Jack Waldroup, Judy Burton, Governor Matthew Welsh, Secretary of State Larry Conrad, U.S. Attorney Virginia Dill McCarty, Gertrude “Gert” McConahay, Indiana AFL-CIO President Ernie Jones, Ed Owen, United Auto Workers Region 3 Director Bill Osos, Buford Holt, Bob Squier, John Rumple and U.S. District Court Judge James Noland. May God bring rest to each of their souls. v CONTENTS Introduction...............................................................................................................................1 Chapter One – The Emergence of Evan Bayh..........................................................................9 Chapter Two – Prelude to the Challenge................................................................................30 Chapter Three – The Legal Context .......................................................................................64 Chapter Four – The State Election Board v. the Courts.........................................................87 Chapter Five – The First Appeal...........................................................................................115 Chapter Six – The Trial.........................................................................................................151 Chapter Seven – The Second Appeal ...................................................................................171 Chapter Eight – The Decision...............................................................................................187 Conclusion.............................................................................................................................195 Bibliography..........................................................................................................................226 Curriculum Vitae vi INTRODUCTION “No person shall be eligible to the office of Governor or Lieutenant Governor, who shall not have been five years a citizen of the United States, and also a resident of the State of Indiana during the five years next preceding his election ….” 1851 Constitution of the State of Indiana Article 5, Section 7 In early summer of 1816, with Indiana’s impending admission to the Union, a constitutional convention, attended by forty-three delegates, was held in the state’s first capital, Corydon. Those in attendance drafted and ratified a state constitution. Included in that document were the eligibility requirements for the office of governor. Specifically, Article 4, Section 4, provided that a governor had to be thirty years old, a citizen of the United States for ten years, “and have resided in the state five years next preceding his election; unless he shall have been absent on the business of the state, or of the United States.”1 Thus, the framers adopted a specific durational residency requirement for anyone seeking the office of governor. They did so for other offices and privileges under the law as well. Durational residency requirements as a qualification for holding statewide elected office are not unusual. They still appear in some form in most state constitutions. In fact, in the original constitution for most states, language requiring durational residency for the office of governor was the rule and not the exception. At one time, as many as forty-three states had some form of residency requirement as a qualification to hold the office of 1 Ind. Const. Art. IV, § 4 (1816). 1 governor. Of that number, twenty-nine states required at least five years of residence. Twelve other states required longer periods, ranging from seven years up to ten. These requirements were thought to have a clear public purpose, particularly in the early days of our nation when states were young and their inhabitants relatively recent arrivals. The requirements were said to promote legitimate state interests or goals, including the goal of giving voters an extended period of time in which to get to know the individuals who were interested in holding public office. This allowed voters the opportunity to scrutinize a candidate’s conduct, habits, and to learn his strengths and weaknesses. Correspondingly, being a resident of a state for a required period of time afforded a prospective candidate the opportunity to get to know the characteristics and ideologies of the people he sought to serve, to become familiar with the state’s problems, finances, institutions, and laws. In essence, residency requirements promoted knowledgeable and responsive candidates who possessed clear ties to the community while, at the same time, discouraging candidacies by persons who were not seriously concerned with or, perhaps, even capable of serving their constituents. Indiana was no different. As explained above, the original state constitution contained the requirement compelling a citizen to “have resided in the state five years” before election as governor. In a subsequent state constitutional convention in 1850, called for the specific purpose of revising the constitution in the midst of a catastrophic financial crisis, an amendment was offered to eliminate the residency requirement for governor altogether. It was unsuccessful.2 Article 5, Section 7, of the new Constitution adopted in 1851 retained the five year durational period, although the requirement that an individual 2 Journal of the Convention of the People of the State of Indiana to Amend the Constitution 537 (1851). 2 “have resided in the state five years” was changed to “have been a resident of” the state for that period of time. Also, the two explicit exceptions for being absent from the state – that is, being on the business of the state or on the business of the United States – were eliminated. Because an Indiana gubernatorial candidate’s satisfaction of it had never been questioned, neither the 1816 constitutional residency language nor its 1851 revision had ever been interpreted by Indiana courts – that is, until 1988. In November of 1987, Indiana Secretary of State Evan Bayh announced his intention to seek the Democratic Party’s nomination for governor of Indiana in the upcoming 1988 election. To qualify constitutionally to hold office, therefore, Bayh was required to have been a resident of Indiana from November, 1983, to November, 1988. However, for sixteen months, from July, 1983 until December, 1984, Bayh lived in Washington, D.C., while he worked as a lawyer for the firm of Hogan & Hartson. Approximately thirteen of those sixteen