Judge allows Charlie White to remain in office pending appeal

Recognizing the judiciary has the ability to minimize damage caused by the ongoing Indiana secretary of state court challenge, a Marion Circuit judge has put a hold on his ruling that the state’s top election official be immediately removed from office and a successor appointed.

Instead, Judge Lou Rosenberg ruled Wednesday that Secretary of State Charlie White can remain in office while the Indiana appellate court hears his case.

The two-page order follows Rosenberg’s Dec. 22 decision ruling White ineligible to be a candidate for the state office in the November 2010 election because he allegedly committed voter fraud. An appeal is in the works, and most believe the case is on a fast track to the Indiana Supreme Court. Rosenberg is allowing White to remain in office until the appellate courts can consider the issues.

State Democrats called for an investigation into White two months before the 2010 general election after discovering he voted in the Republican spring primary while registered to vote at his ex-wife's house in Fishers. After the three-member Recount Commission in June 2011 allowed White to keep his job, the Democrats appealed in court and Rosenberg determined the record shows White wasn’t residing at the home he listed for voting as is statutorily required.

Just before Christmas, White and the commission asked Rosenberg to stay his ruling pending appeal. In making his decision, Rosenberg considered the public harm that could result by each of the potential decisions – to grant the stay and have the ruling upheld on appeal, to grant the stay and be reversed, and to deny the stay and be reversed.

The judge pointed out that no harm would result from granting the stay if the decision is reversed, but the other two options presented concerns.

“If the Court grants the stay and its decision is upheld, there will be irreparable harm to the public measured by the delay in implementing the trial court’s decision,” he wrote. “The appellate court’s may, however, expedite the consideration of an appeal. Thus, whatever harm may result from a granting of the stay can be minimized by the appellate courts.”

He continued, “If the court denies the stay and its decision is reversed, however, the negative consequences would be great and irreparable. If White were removed pursuant to this Court’s Judgment and then reinstated as a result of reversal on appeal, key personnel currently serving under Mr. White might become unavailable in the interim. Important decisions might be twice reversed causing confusion on many important issues. The denial of a stay together with a subsequent reversal would unnecessarily weaken the performance of the Secretary of State regarding many critical functions, not the least of which is oversight of the forthcoming general election.”

Noting that turmoil might be unavoidable if White is convicted in a separate criminal voter fraud case ongoing in Hamilton County, Rosenberg wrote that controversy could result in how White’s successor is chosen. He previously ruled that Democrat Vop Osili, the candidate receiving the second-highest number of votes in 2010, should be appointed. But he has now declined to intervene on that question.

The Indiana attorney general’s office plans to appeal Rosenberg’s ruling on behalf of the Recount Commission, while separately White’s private counsel has filed notice of appeal to the Indiana Court of Appeals.