Are the so-called constitutional bright line rules really relevant?

February 21st, 2012

Judges often say that some things in the Constitution are clear and others are not. For example, the President must be thirty-five years. Or a Senator must inhabit in the state in which he represents. But, these are exactly the types of constitutional questions that would never be litigated, because they are political questions.

Take for example, Senator Dick Lugar, who sold his house in Indiana 35 years ago that he still lists as his official residence.

Sen. Richard Lugar defended himself during an appearance in Indianapolis on Monday that came days after opponents claimed that he isn’t qualified to run for office because he doesn’t live in the state.

Lugar said two attorneys general have affirmed his position that the Indianapolis address on his Indiana driver’s license is valid, even though he sold that home in 1977.

Lugar said he and his wife sold their house in Indianapolis because the only way they could afford to keep the family together and be part of their sons’ school and after-school activities was to move to Washington, D.C. full time and buy a home there.

This would seem a clear-cut violation of that bright-line constitutional rule. Yet, it doesn’t matter much.

OTB has the follow-up:

Apparently, though, the 1982 opinion by the Indiana Attorney General was over whether Lugar had the eligibility to continue to vote in the district where he previously lived. The answer was that he did because he lived in the DC area on official government business representing the state. That’s reasonable enough; military personnel and other government employees have similar protections.

But Indiana University law professor John Hill notes that the US Constitution requires that members of Congress “inhabit” the state they represent. This comes from Article I, Section 2, Clause 2 which states:

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Neither Indiana law nor the opinions of its election officials have any bearing on the question of whether a Member is an “inhabitant” of the state. A series of court decisions have made clear that neither the states nor Congress can neither add to nor take away from the Constitutional requirements. As far as I can determine, however, there is no case law on what constitutes being an “inhabitant.”


Update: And now, a local election board ruled that Lugar is not eligible to vote in Indiana because he hasn’t owned a home there in three decades!

After reviewing the complaint submitted by Lugar’s political opponents, the board ruled that there is “substantial reason to believe a non-criminal election law violation has occurred and … the Lugars have abandoned the 3200 Highwoods Court residence and thus forfeited their respective abilities to lawfully vote.”

The remedy appears to be straightforward: Submit a new voter registration form by April 9 with a new address to which Lugar has some ties.

On Thursday, Lugar argued that legal precedent favors him and predicted the county election board would be overruled by an appellate court. During the past 35 years, three state attorneys general have ruled Lugar is an Indiana resident, he said. And just last week, a state election board voted 4-0 to put him on the state’s primary ballot

So he’ll be on the ballot in Indiana, but he can’t vote for himself. That makes sense!