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Race Contestable
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|  Nov 16 (2 days ago) | | ||
Dear Members of the Allen County Election Board:
I hope this email finds each of you doing well this week—the week following what was surely an adventurous election season. I am writing you for three reasons. First, to thank you for the way early voting was administered this year. Second, to discuss an error and omission made by the Allen County Election Board (ACEB) regarding Roy Buskirk’s death and this year’s Allen County Council At-Large race, and to request that the ACEB give consideration to holding a Special Election for that race as a result of the ACEB’s error and omission. Third, I would also like to know what the status is of differences publically discussed by Republican representative Tom Hardin and Democratic representative Tim Pape as to how the ballots in this year’s Allen County Council At-Large race are to be counted.
SPECIAL AND SINCERE THANKS
Thanks for a thankless job. First, my sincerest thanks on behalf of myself and the greater community at-large for a really wonderfully administered early voting option for the 2016 Presidential election. I’d also like to extend that thanks to Beth’s staff who helped coordinate matters and the hundreds of volunteers that it takes to put together county-wide voting. In a sea of politics, race and issues---the behind-the-scenes efforts to coordinate elections is, largely, a job that gets taken for granted. During good time and questionable times, my sincerest thanks and appreciation to each of you and everyone else involved as well.
Voting was enjoyable. In that spirit, I also wanted to give appropriate kudos for what I personally believe are key improvements, such as: allowing voters to take full advantage of early voting opportunities combined with offering voters multiple early voting locations with plenty of free parking, on-route access to public transportation, restroom facilities available to the public, and conveniences that made voting an enjoyable experience for everyone. Senior citizens and the disabled in our community enjoyed not having to climb steps or walk great distances “just to vote.” Parents with young children appreciated being able to send their kids to appropriate areas to play and read.
Community desires expanded electoral services.I believe that if you were to conduct a survey, you’d likely find that people would appreciate your expanding early voting to even more library locations. Some rural county voters have expressed to me their frustration that they have to travel “into town” [Fort Wayne] to vote early. Specifically, voters closest to the Grabill, Woodburn and Monroeville ACPL branches would like to see early voting available there. Additionally, voters with children who live in the older neighborhoods surrounding Downtown---particularly the neighborhoods that extend from the Downtown Edge neighborhoods to Glenbrook (NE) and Jefferson Pointe (SW) would really like to see early voting made available at the Downtown Public Library instead of the Rousseau Center. The motivation behind these preferences seems to be the conveniences noted above. While I’ve asked those who have expressed such wishes to reach out to Beth (as well as their elected county officials), I thought it would be beneficial to ACEB to be made aware of the public’s sentiments regarding electoral services and thought I should simply follow up by providing you with this information. Hopefully, you will find it helpful and implement the desired improvements where feasible and appropriate.
EARLY VOTERS HAVE THE RIGHT TO RECAST BALLOTS WHEN A CANDIDATE DIES -- NOTICE OF AN ERROR AND OMISSION MADE BY THE ALLEN COUNTY ELECTION BOARD AND REQUEST THAT CONSIDERATION BE GIVEN TO HOLDING A SPECIAL ELECTION IN THE 2016 ALLEN COUNTY COUNCIL AT-LARGE RACE
Despite the success that I believe you all deserve thanks for with regards to how early voting was administered this year, I respectfully regret to notify you that the Allen County Election Board also made a significant error and omission as it pertains to the Allen County Council At-Large race. As you are each well aware, Roy Buskirk’s death was well-promoted by local media on Friday, November 4th, 2016, beginning at 5:50 pm.[A][B][C][D][E][F][G][H]Roy’s passing was the reason for your emergency special meeting held the morning of November 7th, 2016. The focus of that meeting was whether or not Roy’s name should be removed from the ballot. Collectively, without taking a formal vote on the matter, the ACEB decided to let the ballot remain as it was. In my opinion, where the ballot was concerned, I agree that the ACEB did in fact take the correct course of action. I believe the statute the ACEB was following was I.C. 3-11-3-29.5, which is discussed in detail in the 2008 Indiana appeals case Lockard v Miles, (882 N.E.2d 288), leads me to presume that the proper statutory authority in matters like this is I.C. 3-11-3-29.5. [I][J]Essentially, if my understanding is correct, State law requires that the County Election Board (the ACEB) print/republish/reprogram new ballots to remove the name of a candidate who had died not later than Noon, five (5) days before the election. [I] Of course, the accuracy of the when the time of death tolls before the Tuesday, November 8th General Election isn’t dependent on what or when local media reported Roy’s passing, but rather what is on the certified death report from the Coroner’s office.
A political disclaimer as to my position on this matter. First a disclaimer--As we are all well aware, I have absolutely no legal standing whatsoever as it pertains to requesting that the ACEB hold a Special Election in the 2016 Allen County Council At-Large race. Some of you may find the Special Election request perplexing since I (a) do not have legal standing and (b) I, as a registered Democrat and former Democratic candidate, have publically endorsed Roy Buskirk in the 2016 Allen County Council At-Large race. In fact, as a matter of disclosure, personally, I would prefer the results for this particular race stand. This, of course, reasonably begs the question of why then am I bringing an error and omission to the attention of the ACEB and requesting that consideration be given to a Special Election.
Reason for an independent review. Ever since Roy’s passing, I have been approached by a rather unusual coalition of voters that include rural County voters (many of whom are loyal Buskirk constituents), rural and urban voters who are anti-UniGov (i.e. anti-annexation, anti-county government restructuring, anti-“government efficiency study,” and anti-local government consolidation), and, in the strangest twist of all, registered Democrat voters who are known Henry-loyalists and are active within the ACDP. Historically, this particular sect of Democratic voters and I are at odds in matters concerning economic development and public policy. These voters asked me to review matters concerning Roy’s passing and the impact of his passing on the 2016 County Council At-Large race. Essentially, I am being asked to provide a second opinion/an independent review to the community at-large.
Community concerns fueling special election request. Please understand that there are a lot of emotions in play within the At-Large community, ranging from confusion (much of that stemming from news reports providing inconsistent information) and a wide variety of fears. Rural County voters want a say in who is going to replace Roy, fearful that he will be replaced with someone more liberal. Within in this context, liberal is pretty much defined as anyone who is for county government restructuring that limits the representation of rural County voters as well as anyone who is in favor of Downtown Development/Riverfront Development. Anti-UniGov voters want a say in who is going to replace Roy, fearful that whoever the ACGOP selects will stand with the current establishment and not with voters who are against the various public policy elements that will lead to local UniGov. Democratic voters are all over the board---Some retain the notion that because the ACEB is dominated by Republicans that rules and procedures automatically favor the ACGOP. (Note to Tim Pape---making the commentary that you’ve made at past ACDP Breakfast meetings is contributing to this situation.) Some Democratic voters won’t openly admit it, but they have lost faith in ACDP’s abilities to represent Democratic interests where elections are concerned, which is why they have turned to me for an independent review. I am sharing this with you to help you better understand that the request for a Special Election is coming from the community. My role here is merely that of the person people are turning to for assistance in getting a Special Election, assistance that I am hesitant to provide and assistance that I would not provide without first conducting an independent review. I share this because I sincerely want each of you to understand that my independent review of the Allen County Council At-Large race is not a negative reflection on the ACEB.
A legal disclaimer as to my position on this matter. As I stated earlier, personally I would prefer the election results stand and I, again, acknowledge that I have no legal standing to make a request that the ACEB consider holding a Special Election in the 2016 Allen County Council At-Large race. It is my understanding from my own 2015 contestation that the legal standing, and therefore the request for a Special Election, rests with the individual Allen County Council At-Large candidates (whom have 14 days after the election to file a Petition for Contestation with the Allen Circuit Court) and/or the Chairman of the local political parties (whom I believe have 17 days after the election to file a Petition for Contestation). To those who have sought a second opinion/independent review from me--- I have explained and reinforced the fact that I am not an attorney; that I cannot legally or ethically provide answers to legal questions; that I am limited to sharing experiences and my own personal knowledge, thoughts and opinions; and that I have no legal standing in this matter and as such, I cannot pursue this matter even if I were so inclined to do so. I share this to make sure everyone is on the same page here. I am as neutral as neutral can be. Again, this is all merely a matter of circumstances.
Methodology of independent review. However, having said all of that, due to the number of requests I received from voters of all political persuasions and for such varied reasons, I did perform an independent review. As part of the review process, I assessed and analyzed various materials readily and freely available to the general public, including but not necessarily limited to the Indiana Code (Title 3), Indiana case law (7th Circuit), the 2016 Indiana Election Administrator Manual, the 2016 Indiana Voter Registration Guidebook, and a variety of materials from the Indiana Election Commission, including slide show presentations from the Indiana Election Commissions General Co-Counsel, Dale R. Simmons and J. Bradley King.[I][J][K][L][M][N]
Independent review favors ACEB’s decision to leave Buskirk on ballot. My review of these materials demonstrated to me that the ACEB was seemingly correct in leaving Roy Buskirk’s name on the ballot, as I’ve briefly discussed above.
Independent review discovers Indiana has procedures in place to deal with this situation. Interestingly, a closer review of election procedures revealed that there are some specific procedures in place for dealing with the death of a candidate after early voting had commenced. According to page 51 of the 2015 Indiana Election Administrators Manual, “VOTERS MAY RECAST AN ABSENTEE BALLOT UNDER CERTAIN CIRCUMSTANCES SUCH AS a ballot misprint or THE DEATH OF A CANDIDATE….” (Emphasis added)(IC 3-11-10-1.5; IC 3-11-10-32) (ABS-5 form)[M]
Independent review discovers that ACEB had a duty to follow Indiana’s procedures. Roy’s death was well-promoted by local media as occurring on Friday, November 4th, but these reports didn’t happen until near the closing of early voting hours for that day. As soon as the Election Board was made aware of or became aware of Roy’s death, it would seem that the ACEB then had a duty to alert citizens that voters who had already cast their ballots early had the right and the option, should they so choose, to rescind those early votes and recast their ballot. Early voting opportunities were still taking place on Saturday, November 5th, and Monday, November 7th. These early voting dates presented opportunities where those who had already early voted could have opted to recast their ballots using Indiana form ABS-5, if they knew that option was available to them. But that option was never promoted and should have been publicized in tandem with all the news reports of Roy’s death.
Independent review discovers that ACEB failed to follow Indiana’s procedures. By not letting early voters know that they had the right, option and ability to recast their early votes in the Allen County Council At-Large race, the ACEB has, in my opinion, effectively influenced the outcome of that election. Matter of fact, I believe a reasonable person could conclude that this was a deliberate action. Please understand that the ACEB is overseen by Clerk of Court Elizabeth “Lisa” Borgmann who has served in that position for a period of 12 years. Lisa Borgmann is assisted by ACEB Executive Director, Beth Dlug, whom has been in this position since at least 2011. Tom Hardin is an attorney who has been involved with the ACEB as their attorney in 2011 and as an ACEB member since 2012. Tim Pape is an attorney, who was also a former political candidate, former elected official, and has been a member of ACEB since 2012. The point here is that while the death of a candidate so close to the date of the General Election is an unusual and rare situation, the individuals in charge of the election process are seasoned election officials who knew or should have known to check the Indiana Election Administration Manual that is provided for County Election Boards each and every election year by the State of Indiana. It is clear that collectively, the ACEB---whose members get paid an annual salary to follow the procedures contained in the Indiana Election Manual---failed to follow the procedures contained in the Indiana Election Manual.
Independent review discovers that ACEB failure influence outcome of election. In my opinion as someone who isn’t a stakeholder in this election and as someone who would prefer to see the results of this election stand, I cannot overlook the ACEB’s failure. Nor can I overlook that the ACEB’s failure to follow the Indiana Election Manual was a deliberate action. As such, that deliberate action makes it impossible to determine the candidate who actually received the highest number of votes received among Roy Buskirk, Palemermo Galindo, David Roach and/or Morrison Agen. Specifically, the highest number of votes cannot be determined because voters who cast their ballot early for Roy before he died did not know they could recast that ballot for someone else by way of Indiana form ABS-5. Essentially, voters who may have wanted to change their mind about whom they voted for were prohibited from doing so by virtue of ACEB’s failure to promote that legal option. Matter of fact, technically, ACEB’s failure to promote the legal option of recasting early votes makes it impossible to determine who was the overall winner and top vote-getter of the 2016 Allen County Council At-Large election. If people knew they could recast their votes for someone other than Roy, then where would Roy’s votes have gone? Also, with Roy gone, would everybody who voted early still maintained their votes? Or would people have changed their votes based on what was going to be a new make-up of County Council? Roy was one of the most conservative County Councilmen. Some people may have voted for Roy but then tried to balance their voting by selecting someone else they deemed to be politically more liberal than Roy, or from a different party than Roy, or closer to/further from age than Roy? Or some people may have voted for the three most conservative candidates and with Roy gone, who knows who the top three conservative candidates would have been? The point here is that Roy left behind a void and none of us know how the Allen County community would have attempted to fill that void had people known they could recast their ballot.
Independent review discovers that Special Election may be only remedy for ACEB’s error. If my understanding is correct, it would regrettably seem that the only alternative available that can remedy the quagmire created by ACEB’s error and omission is to hold a Special Election. (IC 3-12-8-2) However, it is also my understanding that the ACEB cannot hold a Special Election without a directive from the honorable Judge Thomas Felts of the Allen Circuit Court to do so and that the Allen Circuit Court will only entertain such an option if a party with legal standing files an appropriate Petition for Contestation, properly notifying all parties—including ACEB-- of the challenge, and does so within the appropriate time frame.
Again, I have no legal standing and therefore I cannot be the person who pursues this matter, even if I were inclined to do so. As such, I am merely bringing this information to your attention. As a follow-up to those who made this initial request of me, I will be making this communication available to the general public by way of social media.
ACEB INTERNAL DISPUTE OVER HOW TO COUNT VOTES CAST TO ROY BUSKIRK
This brings me to another matter that I am bringing to your attention as an individual voter. On or about Wednesday, November 9th, WANE-TV conducted on-camera interviews with ACEB members Tom Harden, the ACGOP representative, and Tim Pape, the ACDP representative. These interviews were broadcasted to WANE-TV’s television viewing audience, were published online at WANE-TVs website, and were shared on WANE-TV’s social media pages. [O]
Publically promoted interviews show ACEB members in conflict over counting votes. These interviews were about counting the ballots. In discussing how the votes were to be counted, Tom Hardin, being the dutiful Republican representative, towed the ACGOP line of the votes would be counted as they are: “Because there was no ballot change, we would certify the top vote-getters.” [O] In contrast, Tim Pape, being the dutiful Democratic representative, towed the ACDP line that votes can’t be certified if they can’t be counted and can’t be counted if a candidate is dead: “The law is clear. It says when a candidate dies, the seat is vacant. Buskirk was not a candidate on Tuesday.” [O]
Indiana has provided a statutory procedure to deal with such conflict. According to various materials I reviewed as put forth by the Indiana Election Commission’s General Co-Counsel, Dale R. Simmons and J. Bradley King, Indiana Code 3-12-4-16 requires that: “If there is a disagreement between the members of a county election board as to how the vote of a precinct should be counted, the board shall: (1) immediately report the matter in dispute to the judge of the circuit court; and (2) provide the judge with a written brief stating the grounds of the disagreement and all papers concerning the matter.”[P]
Has this conflict been resolved--If so, when and how? From WANE-TV’s much-distributed November 9th reporting featuring interviews of ACEB members as to how ballots cast for Roy were to be counted, one ACEB member saying that the votes will be counted as they are and another ACEB member saying these votes shouldn’t be counted at all, my question is: Has this dispute been reported to the honorable Judge Thomas Felts of the Allen Circuit Court? If so, when? If not, why not?
It is with sincerity that I thank each of you again for all your hard work. Please understand that it is also with respect and humility that I bring the above matters to your attention. Should you have any questions, please do not hesitate to reach out to me. Thank you also for your patience in reading this email. I look forward to a timely response at your convenience.
Respectfully,
Gina M. Burgess
Cc:
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