Diego Morales might have easily clinched the Secretary of State race, but his future is clouded by allegations of 2018 voting improprieties reminiscent of another Indiana elections chief convicted of voter fraud.
Lawyers and election experts — including the special prosecutor who handled former Secretary of State Charlie White’s case in 2012 — expressed doubt that Morales would face a legal challenge in conversations with the Indiana Capital Chronicle.
Political calculations, subjective residency rules, the staleness of the alleged acts, and differences between the two mens’ circumstances complicate the issue, they said.
Any entity that took it up, for example, would face intense public scrutiny, and possibly the closed-door wrath of leading Republicans. The party dominates Indiana government bodies.
“Someone’s got to come forward, even law enforcement, to pick it up and say, ‘Hey, let’s look into this.’ If it doesn’t get looked into, somebody can say so, to the judge in Hendricks County, via a request for special prosecutor,” said Daniel Sigler, who served as one of three special prosecutors in White’s case. The process is outlined in Indiana law.
But otherwise, he said, it’s unlikely.
“Usually, law enforcement agencies stay away from those kinds of investigations unless they’re asked or ordered to,” said Sigler, now retired. “[That] seems to be the way it happens — nobody wants to pick up the ball.”
And there’s not much time left on the clock for even those that would want to take up an investigation or legal action. The five-year statute of limitations on the primary election would be up next May, and for the general election would be up next November.
Five days before the General Election, the Indianapolis Star in an opinion column revealed that Morales appears to have lived in one county while voting in another, potentially violating the elections law he’ll soon uphold.
Morales voted in Hendricks County twice in 2018 — in the May 8 primary and the November 6 general election — registered as the resident of a Plainfield condo. That year, he ran an unsuccessful campaign for the Republican nomination to Indiana’s Fourth Congressional District, which includes none of Marion County.
But Morales and wife Sidonia Nicolae have owned a significantly larger house in Marion County since 2016, and have claimed a homestead deduction on the property since 2017, according to county auditor records. To qualify for that common tax break, a house must be its owner’s primary place of residence.
Morales didn’t respond to multiple requests for comment from the Capital Chronicle, but issued an earlier statement to The Associated Press on the allegation saying “The issue regarding my residency has been previously vetted in the media and no wrongdoing was discovered then and nothing new is being reported now. I followed all applicable state and federal election and property tax laws. This defamation and character assassination by replaying old news and attaching damaging headlines is reprehensible.”
Like for any potential crime, anyone can file a complaint with local law enforcement or a prosecutor — likely with Hendricks County Sheriff Brett Clark’s office or Prosecutor Loren Delp — or Indiana State Police.
Charges typically begin with investigation by a police agency, which presents evidence to a prosecutor, who then chooses whether to move forward with prosecution. Delp didn’t respond to multiple requests for comment.
Big consequences for a predecessor
With the news of Morales’ 2018 voting registration change and ballots cast came immediate comparisons to White, another Republican felled under similar circumstances.
“Where people are making comparisons is that [White] was a troubled Republican candidate who campaigned on election integrity and ultimately was chased out of office,” said Robert Dion, a political science professor at the University of Evansville. “And now years later, we have another troubled Republican candidate campaigning on election integrity.”
“The question is: what’s going to happen to [Morales]? What would be the consequences?” asked Dion, who is a research associate with the nonpartisan Mike Downs Center for Indiana Politics.
White in 2009 was a Fishers Town Councilor running for secretary of state. He rented and then bought a townhouse outside of his council district, but changed the address on his voter registration records to his ex-wife’s house, which was inside the council district. And he voted using that address in the May 2010 primaries.
A jury in 2012 convicted White of six out of seven felony counts, including submission of a fraudulent voter registration application, perjury regarding that registration change form, voting in another precinct and casting a fraudulent ballot.
The felony convictions automatically removed White from office, and then-Gov. Mitch Daniels, also a Republican, appointed an interim officeholder.
But White’s actions, his successful candidacy and public scrutiny of both those factors occurred in the same year. Morales won office more than four years after casting the Hendricks County votes associated with his ill-fated congressional run.
A different deadline approaches
The Indiana Election Division could also play a role. Under Indiana code, a candidate, county party chair or state party chair can file a verified petition to request a recount, or contest the nomination or election of a state officer. That section of law doesn’t apply to the governor or lieutenant governor.
That deadline is 14 days after election day: Tuesday at noon. And the division can reject the petition. Both Indiana Democratic Party Chair Mike Schmul and Democrat Secretary of State candidate Destiny Wells declined to comment on if they planned to file a verified petition.
In White’s case, then-Indiana Democratic Party Chair Daniel Parker filed a verified petition for election contest with the division, according to court records. The Indiana Recount Commission, after holding a hearing and receiving evidence, declared White was eligible to run for secretary of state. The Marion County Circuit Court reversed the commission’s decision, but the Indiana Supreme Court reaffirmed it.
Separately, the Hamilton County Prosecutor at the time petitioned for the appointment of a special prosecutor. A trial court appointed three, setting White on the path to his eventual criminal convictions. An appeals court later vacated three of his convictions, two of them vote-related because they constituted double jeopardy.
Several lawyers and elections professionals cautioned that Morales’ circumstances aren’t clear-cut. If it is taken up, any results will depend on the specific facts of his situation — which could require things like mortgage applications, utility billing, cell phone records and more — and the nuances of Indiana code.
For example, the burden of proof in a dispute over residency rests on whoever’s challenging it. And Indiana law seems subjective in terms of residency.
Former Indiana House Speaker Brian Bosma — also an attorney — said the issue of residency goes back to the famed 1988 case involving whether Democrat Secretary of State Evan Bayh was allowed to run for governor.
Bayh’s case was about residency in terms of a qualification to run for office, but many of the same concepts are instilled in Indiana’s election statutes in terms of where to register to vote.
To qualify constitutionally to hold office, Bayh was required to have been a resident of Indiana from November 1983 to November 1988. However, for sixteen months during that time he lived in Washington, D.C. while working as a lawyer.
The case eventually worked its way to the Indiana Supreme Court, which essentially ruled that a person’s residency is where they intend for it to be.
“That ruling makes all these cases hard to prove,” Bosma said.
Bosma didn’t comment specifically on the details of Morales’ circumstances, but noted the irony in Morale moving to an apartment in Hendricks County for his run for Congress. That’s because a person doesn’t have to live in a congressional district to run for it.
That isn’t the case for state House and Senate seats: “We’ve had legislative candidates on both sides essentially rent a broom closet to run,” Bosma said.
In addition to the disincentives that exist for Hoosier police agencies and prosecutors, comes the will of the people: Hoosier voters overwhelmingly supported Morales on November 8.
Reports on his 2018 registration and votes were published days prior, in addition to months worth of controversies. Morales won 54% of the vote, while Democrat Wells earned 40% and Libertarian Jeff Maurer notched nearly 6%, according to Indiana Election Division results.
“This story made the news around the state, and voters more or less ignored it,” Dion said. “We didn’t see the political consequences that people thought it might [have].”
The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.