Indiana Supreme Court justices peppered attorneys with questions Wednesday during arguments to determine whether ousted Secretary of State Charlie White was ever a legal candidate for the office, and who gets to appoint his successor.
White, a Republican, was removed from office following his Feb. 4 conviction on voter fraud and other charges. Democrats contend the conviction proves White ineligible to run for office and that state law requires a winner whose candidacy is declared invalid be replaced with the second-place finisher — in this case, Democratic runner-up Vop Osili.
A Marion County judge agreed and in December ordered the Indiana Recount Commission to certify Osili as the winner of the November 2010 secretary of state election.
But the state attorney general's office, which appealed to the Supreme Court on the commission's behalf, argued the state constitution calls for Republican Gov. Mitch Daniels to appoint successors in cases of removal from office due to conviction.
Justice Brent Dickson on Wednesday questioned why state law would seem to conflict with the constitution.
"Why wouldn't that constitutional provision trump all?" he asked.
Justice Dickson and Justice Frank Sullivan asked the most questions, hammering both sides about details of voter registration law and what constitutes residency. They and other justices posed complex hypothetical questions about requirements for candidacy and how state law might affect ordinary voters.
White's voter fraud conviction came after he listed his ex-wife's address instead of his new condo on his 2010 voter registration form, when he already was claiming the condo as his home on other legal documents. Prosecutors said he wanted to avoid giving up a town council salary after moving out of the district he was elected to represent.
State attorney Steve Creason argued Wednesday that being registered to vote is the only legal requirement to run for secretary of state, and the law doesn't say a candidate must be legally registered in the precinct where he or she lives.
Democratic attorney Karen Celestino-Horseman countered that White's conviction was for the same issue the recount commission must consider in deciding a candidate's eligibility.
"You can be registered to vote, but you have to be legally registered to vote," she said. "Failure to register properly is more than just a technicality."
Creason also argued Democrats legally should have challenged White's candidacy before the November election instead of waiting until he had won. Celestino-Horseman countered that was impossible because the violation didn't come to light until after pre-election challenge deadline had passed.
There is no timetable for the justices' ruling, but they likely will rule before Chief Justice Randall Shepard retires in March.
Daniels has named White's chief deputy, Jerry Bonnet, interim secretary of state, but he isn't expected to make a permanent appointment until the Supreme Court rules.
White was sentenced Feb. 23 to one year of home detention. He plans to appeal his convictions. If a higher court reverses or vacates his convictions on six felony charges, he could be reinstated as secretary of state.
"He's out, but not permanently," said his attorney, David Brooks.