Could Libertarian Mike Wherry actually be Indiana’s Secretary of State? Maybe, it’s not as farfetched as you might think. There is speculation starting to percolate that if the Indiana Supreme Court finds that Charlie White was ineligible to be Secretary of State then that job could go to Libertarian Mike Wherry, who was also on the ballot, instead of Democrat Vop Osili.
This may sound a little bizarre, but the legal theory behind it does make you think. Follow the logic here. Indiana Democrats argue that because White was convicted of voter fraud he was not eligible to run for the office because he was not a properly registered voter. And therefore the position should go to Democrat Vop Osili, who was the second highest vote getter on the ballot and he should be certified the winner.
Here’s the problem. Since the 2010 election, Osili has run for the Indianapolis City-County Council and is currently serving on the body. Indiana law prohibits an individual from serving in two “lucrative” offices at once so he could only serve in one position. So this is the part where you say, “So what’s your point? Osili simply gives up his Council seat and goes to serve as Secretary of State.” Not so fast. This is where it could get complicated.
Not only does state law say an individual cannot serve in two “lucrative” offices, but when an individual is sworn into one office, he or she automatically gives up the prior office. So here is the legal theory being circulated. Since Osili took the position of City-County Councilmember, he has given up the claim to the Secretary of State’s Office and since White was never eligible then the Office goes to the only other person on the ballot, Libertarian Mike Wherry.
Now this is the part where you say, “Wait a second! Osili didn’t give up the seat. He was never certified as the winner and he just moved on.” I thought of this too, and this where it gets even more complicated/interesting. There is a concept in the law called “constructive notice” this means while a person may not actually know something, they should have so there is a presumption that they did, like illegal drugs in your suitcase. The same theory would be applied here. The legal challenge to White’s status had begun long before Osili assumed his spot on the Council, and therefore by running, winning and taking the oath, Osili has “constructively forfeited” his right to that office. It would have been one thing had he gone back into private life or for that matter, filed suit. But since he didn’t do anything, but go about his business and run for another office, the argument is that he forfeited the office by taking a spot on the Council. Therefore, he is no longer eligible to be Secretary of State and the job goes to Wherry. I’m just saying.
And even if the job doesn’t go to Wherry, the alternate legal theory is that Osili gave up the office when he took his Council seat so the position is vacant and the Governor makes the appointment.
Now whether the Indiana Secretary of State matter will get this far remains to be seen. And before you call this a farfetched scenario dreamt up by a political muckraker, think again. If I can come up with this after having a few conversations, someone with a lot more time and dedicated resources can dig into the weeds and do the briefs and file the lawsuit to bring the question forward. In fact, I would not be surprised if the paperwork wasn’t already being drawn up. So this drama could be far from over, even after the Court makes its ruling. This is great for us muckrakers, bad for the voters.