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Kerrey's Candidate filing for United States Senate 1. INTRODUCTION The purpose ofthis memorandum is to respond to the objection filed by the Nebraska Republican Patty to Bob Kerrey' s candidate filing for United States Senate. On March 6,2012, the Nebraska Republican Party, by its Chairman Mark Fahleson, filed a challenge to the candidate filing of Robert Kerrey for United States Senate on the.grounds that Mr. Kerrey "is not a properly registered voter as required by Nebraska Revised Statutes §§ 32602 &610." As part of the objection, Mr. Fahlesoll indicated that Mr. Kerrey committed two acts of election falsification. These allegations relate to allegedly false statements made by Mr. Kerrey in voter registration applications dated February 28 and 29,2012, filed with the Douglas County Election Commissioner, I conducted an investigation including documents on Douglas County property, Douglas County voter registrations, news articles, a letter sent to MrKerrey, and a signed sworn statement.in response from Mr. Kerrey. Relevant Filings : On February 28,2012, Bob Kerrey filed a voter registration application with the Douglas County Election Commissioner which listed a current residence address at 2405 South 103rd St. Omaha, NE 68124. The next day, Mr. Kerrey went back to the Douglas County Election Commissioner's office and filed a second voter registration application listing a new address of 2009 Mullen Road, Omaha, NE 68124. . On February 29,2012, a Partisan Office Candidate Filing Form was filed with the Nebraska Secretary of State Office along with a check for the filing fee for Bob Kerreytobe a Democratic candidate for the office of United States Senate, and requesting that his name as "Bob Kerrey" be placed oli the official ballot for the election to be held on May 15,2012. As part of that form, Bob Kerrey states thathe is "a registered voter in Douglas County, registered to vote and residing at 2009 Mullen Road, Omaha, NE 68124· II. ANALYSIS The Nebraska State Republican Party letter objecting to Mr. Kerrey's candidate filing was timely filed pursuant to Nebraska Statute Section 32~624. It contains many conclusions and allegations. My role as Secretary of State is to make a determination of the validity of the objection. Any
such determination is, of course, subject to a potential court review under certain circumstances allowed by law. This determination must be made in an expedited time frame by me and by any cOUl1of review. We have state and federal obligations to certify ballots, have ballots printed, and to provide ballots to military and overseas voters in a timely manner. Allegations of Criminal Misconduct: with the Douglas County 28, 2012, on which he had application showed a NE 68124.
Shortly after Mr. Kerrey arrived in Nebraska, he prepared and filed Election Commissioner a voter registration application on February sworn an oath of truth to the best of his knowledge and belief. That "CU1Tent Residence Address" to be: 2405 South 103 rd ST., Omaha,
From a review of Douglas County Property Records, that property is a residential property owned by Jessie A. Rasmussen. Based upon voter registration records, there are two registered voters at this location, namely Dean F.Rasmussen, and Jessie A. Rasmussen, According to a February29, 2012, storyin the LINCOLN JOURNAL STAR, this address is the home of Kerrey's sister; Jessie Rasmussen. Despite the possible arrangement with his sister to live ather home, the next day, Mr. Kerry went back to the Douglas County Commissioner's office and fileda second voter registration application. The new address shown on the application is 2009 Mullen Road, Omaha, NE 68124. From a review of the Douglas County Property Records, the property at 2009 Mullen Road is a residential property owned by Mr. JayB. Noddle et al, From a review of the voter registration records of Jay Noddle, Mr. Noddle is not registered to vote at 2009 Mullen Road. Why did Mr. Kerrey change his voter registration and change his residence to 2009 Mullen Road within one day after declaring under oath that he would be residing at the Rasmussen property at 2405 South 1023rd Street, Omaha, Nebraska? It would seem the first declared residence at the Rasmussenhome chosen. for his voter registration on February 28 was only cursory at best. He must have known that it was cursory because he never occupied that home. The OMAHA WORLD HERALD (PM) edition of February 29,2012, reported that on the evening of February 28,2012 ..he checked into an Omaha hotel and went to an Omaha Central High School basketball game. This is troubling, without a doubt. An oath is an oath, and should be done with serious intent because of the threat of pel jury. The oath he took with his first voter registration was treated pretty cavalierly by Mr. .Kerrey, He could have simply stayed with his sister as his immediate domicile and spent the day there considering a more permanent and more private home. As further discussed. below, it appears that Mr. Kerrey attempted to establish residency February29, 2012 at the 2009 Mullen Road location and changed his voter registration the Mullen Road address. on to reflect
However, whether or not this registration on February 29th or the voter registration of February 28 constitutes "election falsification" as alleged in the objection filed by the Nebraska Republican Party is not within the jurisdiction of the Secretary of State to investigate and determine. Complaints of criminal misconduct are matters for law enforcement offices and county attorneys. Neither the Secretary of State nor the Douglas County Election Commissioner has criminal investigative staff, nor has the power to initiate criminal charges. Therefore, my determination cannot be based on whether Mr. Kerrey has or has not committed "election falsification. " Residency Objection: The objection filed by the Nebraska Republican Party also indicates that Mr. Kerrey is not a resident of Nebraska. The objection indicates that New York is Mr. Kerrey's state of residence. Neb. Rev. Stat.§ 32-602(1) provides, "Any person seeking an elective office shall be a registered voter at the time of filing for the office pursuant to section 32-606 or 32-611. Neb. Rev. Stat. § 32-610provides that, "No person shall be allowed to file a candidate filing form as a partisan candidate or to have his or her name placed upon a primary election ballot of a political party unless (1) he or she is a registered voter of the political patty ifrequired pursuant to section 32-702 ... " The term registered voter is defined in the Election Act, "Registered voter shall mean an elector who has a valid voter registration record on file with the election commissioner or county clerk in the county of his or her residence." The term "residence" is also defined in the Election Act. Residence shall mean (1) that place in which a person is actually domiciled, which is the residence of an individual or family, with which a person has a settled connection for the determination of his or her civil status or other legal purposes because itis actually or legally his or her permanent and principal home, and to which, whenever he or she is absent, he or she has the intention of returning, (2) the place where a person has his or her family domiciled even if he or she does business in another place, and (3) if a person is homeless, the county in which the person is living. No person serving in the armed forces of the United States shall be deemed to have a residence in Nebraska because of being stationed in Nebraska. Neb. Rev. Stat. § 32~116 While this definition includes the intent of the person, which is difficult to determine objectively, Nebraska courts have looked to surrounding circumstances to determine a person's intent In Krajicekv. Gale, 267 Neb. 623, the Supreme Court of Nebraska considered the issue of where a person is domiciled when they have two places of residence and reasoned that, " ... domicile must be determined from all the circumstances taken together in a particular case and that in order to establish a domicile, two essential facts must be present: (I) residence, or bodily presence, in the locality and (2) an intention to remain there. See also State v. Jones, 202 Neb. 488 (1979)
It is quite clear that Mr. Kerrey considered himself a resident of New York State until February 28,2012, when he filed his first voter registration application with the Douglas County Election Commissioner. In that application, Mr. Kerrey completed the box asking about prior registration as follows: "If previously registered, provide your name: "Bob Kerrey" & address: 27RWest 4th ST., NY, NY 10014". Thiswas a clear acknowledgement of his residence in New York State untilthat day of February 28. In order to explore the validity of the address provided on the candidacy filing form and the contemporaneous registration application, several questions in my letter of March 7, 2012 to Mr. Kerrey inquired about his living arrangements with respect to the 2009 Mullen Road address (the address on the candidacy filing form and the February 29th voter registration application). Three questions addressed Mr. Kerrey's ability to utilize the Mullen Rd address as his residence: 11 The address provided on your filing is 2009 Mullen Rd., Omaha,NE 68124. Was this property occupied by you on February 29, 2012? 21 Was the above described property owned or leased byyou on February 29,2012. 41 If so, please describe the general nature of the agreement, including exclusivity of use and term of occupancy.with the proper owner. In Mr. Kerrey's sworn response of March 13,2012, Mr.Kerrey stated: As you know I made the decision to become a candidate very late in the process. In fact, I was still a guest at the downtown Omaha Hilton on February 29, although I had secured a one-year lease at 2009 Mullen Road, the guest house of my 20-year friend, Jay Noddle, who has allowed me to use it. Two additional questions attempted to explore other surrounding circumstances: 5/ Did you have personal belongings and/or furnishings at the Mullen Rd. address as of February 29, 2012? If so, please describe the general nature of the belongings or furnishings.
61 Is this your residence such that whenever you are absent from this location, your intention is to return to this location as your permanent or principal residence?
Mr. Kerrey responded: I made arrangements to live at 2009 Mullen before filing the registration and candidacy paperwork. I have since stayed on the property, keep my personal belongings there, come and go as I please, and will be receiving my mail there. In all respects it is my Nebraska residence. Finally, I understand that the law guarantees my right toregister to vote, so long as l reside.and intend to remain here, which I already declared under oath when lfiledmy voter registration application with the Douglas County Election Commissioner.
In response to a request by me to Lincoln attorney Alan Peterson on March 14 for more information, a letter from ML Peterson dated the same day was delivered to my office. In that letter, Mr. Peterson states that Mr. Kerrey on the morning of February 29, after breakfast with Mr. Noddle, Mr. Kerrey went to the house at 2009 Mullen Road, entered it, and walked through it to determine its suitability as his residence; he liked it, and agreed to lease it. The letter doesn't confirm that Kerrey actually occupied the property that day, nor that he had belongings there; nor whether any lease was written and signed. He spent the night at the downtown Omaha Hilton on February 29, which certainly weakens any assertion thathe was "actually domiciled" there, Whether he had a "settled connection" with that residence, or that it was actually or legally his "permanent and principal home," are not factually confirmed. These are all requirements of32 116 of Nebraska law. Most troubling is the fact that Mr. Kerrey did not appear to have "bodily presence" at the 2009 Mullen Road address on February 29,2012 (the dateof the second voter registration and candidacy filing). III. FINDINGS OF FACT AND LAW: After reviewing the objection and the documentary evidence, I find as follows: 1. That Bob Kerrey returned with some urgency to Nebraska with the intention to meet certain filing deadlines for voter registration and for filing as a candidate for the U.S. Senate; 2. That Bob Kerrey registered tovote with the Douglas County Election Commissioner on February 28, 2012, declaring under oath that his residence was to be at the home of his sister and brother-in-law, Jessie and Dean Rasmussen, at 2405 South 103rd Street, Omaha, Nebraska. 3. That Mr. Kerrey declared his prior voter registration to be: Bob Kerrey, 278 West 4th ST, NY, NY 10014. His listing ofthe previous New York registration address on the voter registration indicates he intended to abandon the previous address. 4. Considering the surrounding circumstances, the residence listed on the February 28,2012 voter registration seemed clearly to be only be a cursory one and not a domicile intended to become a permanent address; he stayed overnight at the Hilton Hotel that evening; he had already talked to Jay Noddle about leasing a different property for his residence; the very next day, Mr. Kerrey registered to vote at 2009 Mullen Road, Omaha, Nebraska. 5. On February 29, 2012, Mr. Kerrey filed anew voter registration with the Douglas County Election Commissioner, declaring under oath that his principal residence was at 2009 Mullen Road, Omaha, Nebraska. This voter registration was the basis for his oath in his Partisan Candidate Filing Form on February 29,2012. 6. Mr. Kerrey filed a to questions posed Omaha, Nebraska. Road before filing sworn statement with the Secretary of State on March 13,2012, in answer by me, and affirmed his residence in Nebraska to be 2009 Mullen Road, Mr. Kerrey averred that he had made arrangements to live at2009 Mullen his candidacy paperwork; that he has stayed on the property; is keeping
his personal belongings there; comes and goes as he pleases; and will be receiving his mail there, Mr. Kerrey also states his intent to move his family to Nebraska. . 7. The surrounding circumstances of what happened on February 29 are very unclear. Mr. Kerrey himself said he spent the night of February 29 at the Omaha Hilton Hotel, despite agreeing to lease the property at 2009 Mullen Road. There is no evidence he made it his domicile that day nor that he actually had the rightto occupy it that day. Mr. Kerrey's sworn statement of March 13 says he stayed on the property but does not say starting when; it says he is keeping his personal belongings there but doesn't say when his belongings were moved to the property; it says he can come and go as he pleases but doesn't explain why he stayed at the Omaha Hilton the night of February 29th• 8. lean only conclude that the property located at 2009 Mullen Road did not constitute the domicile nor the permanent and principal residence of Mr. Kerrey on February 29,2012. Mr. Kerrey may well have established residency after February 29, 2012. 9. "Residence" under Nebraska Iawis defined as a place where a person is actually domiciled, and a place that is actually or legally the person's permanent and principal home, and to which, whenever he or she is absent, he or she has the intention of returning. 10. The sworn statements of Mr. Kerrey on his Candidacy Form filed with the Secretary of State, rely upon the truthandaccuracy of his February 29 voter registration application. That has failed to be convincing. The sworn statement filed with Secretary of State on March 13, 2012, is too vague and general to be convincing evidence of his actual permanent and principal residence as of February 29, 2012. IV. CONCLUSION Nebraska statute 32-602(1) requires candidates for elective office to be registered voters at the time of filing. This is the basis for the objection to Mr. Kerrey's filing as a candidate for US Senate. In order to determine the objection filed by the Nebraska Republican Party is without merit, I must conclude that sworn statements contained in either Mr. Kerrey's February 29 voter registration form or on his candidacy filing form of the same day meet the "residence" requirements of32~116. I have given Mr. Kerrey several opportunities to clarify various unknown facts surrounding his actions on February 29, and satisfactory answers have not been received. My determination must be based upon what facts I know after having done my due diligence to investigate. Nebraska courts have summarized the requirements to determine domicile at a residence to be: presence at the location, an intentto remain, and an intent to abandon any previous domicile. Mr. Kerrey has failed to meet these requirements. Therefore, the objection filed by the Nebraska Republican Party has merit.
However, my analysis cannot stop there. Nebraska Statute Section 32-502 states that "Candidates for the United States Senate shall meet the qualifications found in Article I, Section 3, of the Constitution of the United States." . . Article I, section 3 of the U.S. Constitution, provides that "No Person shall be a Senator. ..who shall not, when elected, be an Inhabitant of that State forwhich he shall be chosen." Courts have consistently interpreted Article I, Section 3 of the U.S. Constitution to mean that a state cannot impose additional qualifications for federal candidacy such as residency requirements prior to election. See Exon v. Tiemann, 279F. Supp, 609 (D. Neb. 1968), Schaefer v. Townsen, 215 F. 3d 1031 (9th Cir. 2000), Texas DemocraticParty v. Benkiser, 459 F.3d (5th Cir. 2006). By any thoughtful standard of review, it would appear that Nebraska residency laws apply to local and state candidates, but not to federal United States Senate candidates. It is the only way to reasonably reconcile Nebraska Statute Sections 32-502 and 32-602 in this case. The Nebraska Supreme COUlihas stated that a statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. See Hass v. Neth, 265 Neb. 321 (2003) Therefore, after considering the time-frame at hand, along with the facts and the law, I determine that, despite the failure of Bob Kerrey to establish residency as of his date of filing his Partisan Candidate filing form for U.S. Senate, I must reconcile the applicable laws by determining that Bob Kerrey is eligible to be a candidate on the Nebraska primary ballot, and ifhe prevails in the primary, then on the Nebraska general election ballot. Dated this 16th day of March, 2012
John A. Nebrask
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