Indiana lawmakers might be facing an unexpected constitutional hiccup as they move forward with legislation to make the Superintendent of Public Instruction an appointed position instead of elected.

Last session, lawmakers passed a bill that called for the position to be appointed in 2025, however, with incumbent Jennifer McCormick not running for re-election, legislation is moving to have the position appointed in 2021 when she leaves office.

The hiccup, however, is under the Indiana Constitution, the Superintendent of Public Instruction is sixth in line to become Governor, should something happen to the other constitutional offices.

Under Article 5, Section 10(f), the Constitution states…

(f)  An individual holding one (1) of the following offices shall discharge the powers and duties of the governor if the office of governor and the office of lieutenant governor are both vacant, in the order listed:

(1)  The speaker of the house of representatives.

(2)  The president pro tempore of the senate, if the office described in subdivision (1) is vacant.

(3)  The treasurer of state, if the offices described in subdivisions (1) and (2) are vacant.

(4)  The auditor of state, if the offices described in subdivisions (1) through (3) are vacant.

(5)  The secretary of state, if the offices described in subdivisions (1) through (4) are vacant.

(6)  The state superintendent of public instruction, if the offices described in  subdivisions (1) through (5) are vacant.

The provision was added to the State Constitution after 9/11, according to former State Representative Mike Murphy who authored the measure.

“Shortly after 9/11, I began to think about Indiana’s vulnerability in a post-9/11 world.  We were certainly less safe, and less trusting of everything around us.  I worked with then-House Democratic Caucus Chair Dale Grubb, to explore ways in which we could make Indiana more secure, “ Muphy told Indy Politics.  “ We consulted the FBI, State Police, anti-terrorism experts like Peter Beering, and local law enforcement. After months of study, Rep. Grubb and I announced an “Indiana Preparedness” package of  10 bills that each in its own way, sought to preserve Hoosiers’ sense of security.”

After doing the research, Muphy said  Indiana’s gubernatorial succession provisions in Article 5 of the Indiana Constitution were inadequate for the modern world. They essentially dictated that if the Governor could not serve, then the Lt. Gov would step up.  If the Lt. Gov could not serve, then the General Assembly would choose a Governor.  But what if there was no General Assembly?

While the idea may sound like something out of an episode of “Designated Survivor” the question can’t be too far-fetched.  Murphy noted that at least once each year (State of the State), all members of the General Assembly, along with the Governor, Lt. Gov, the Supreme Court, and all of the Governor’s cabinet members gather in the House chamber.

“I realized that one truck bomb, driven into the basement of the Capitol, through the west entrance of the building could wipe out virtually all of the leadership of state government in one flash of fire,” he noted.  “State government would cease to exist, with no prescribed methods for re-establishing leadership.  Just a few years earlier, someone tried to drive a truck filled with cans of gasoline into the Tippecanoe County courthouse lower lever. Fortunately, the truck bomb failed to explode.”

So with that said, lawmakers in two separately elected sessions of the General Assembly amended the Constitution; 2002 and 2003 and voters approved the measure in the November 2004 general election.

The glitch in the system now is, does the Indiana State Constitution allow a non-elected official to serve as Governor?   In some states, such as Illinois, only an official elected by the voters could serve as Governor.   Both House Speaker Brian Bosma and Senate President Pro Tempore Rod Bray said they would have to look into the matter.  However, the Speaker noted to the media this past Friday that it is probably not appropriate to have a non-elected official in that role.

Andy Downs, of the Mike Downs Center for Indiana Politics at Purdue University Ft. Wayne, noted at the federal level, unelected officials can serve in the Presidency.

“The short answer is the line of succession at the federal level includes many people who are not elected.  Granted, they are confirmed by the Senate, but they are not elected,” Downs said.  “I think people will be willing to accept an unelected Superintendent of Public Instruction in the line.  What I think would concern the public more, is not having a succession plan.”

“Frankly, the collective wisdom of the General Assemblies in 2002 and 2003 never pondered this issue,”  Murphy stated.  “I leave it to the contemporary leadership of the 2019 General Assembly to act, or waive action, as they see fit.”