X-WIRE : 2016 ALLEN CO. COUNCIL CONTESTING

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ALLEN COUNTY COUNCIL AT LARGE CONTEST TO HEAT UP
ANYTHING CAN HAPPEN
WILD CARD PLAYOFF
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Gina Burgess

November 17 at 8:13pm

2016 ALLEN COUNTY COUNCIL AT-LARGE ELECTION CONTESTATION HEATS UP – A TIMELINE OF EVENTS: About approximately at 5:10 pm today, the Allen County Democratic Party (ACDP) candidate Palermo Galindo began hosting a press conference at the South entrance of the Rousseau Center. [26] At this press conference, he is expected to request that the Allen County Election Board (ACEB) certify him, instead of Roy Buskirk, as one of the top 3 vote getters in the 2016 General Election race for Allen County Council. Galindo can make “the ask,” but I don’t believe the ACEB is in the position to grant him his request. The Republican-controlled ACEB made a mistake. The Democratic-controlled Allen County Voters Registration made a mistake. Indiana seems to have a law that will allow a dead person to run for office, but they just can’t vote. (Really wish I was making that one up.)

Folks, you are going to want to grab a cup of coffee, get comfortable and read this post all the way through the twist and turns---the timeline of events presented below is a truly stranger-than-fiction fact-based story that isn’t likely to be over and is most likely headed to Court, as follows:

11/4/2016: It’s well promoted that Roy Buskirk has died. [1][2][3][4][5][6][7][8] News coverage begins at 5:50 pm with the early voting locations closing at 6 pm. There is no official word from the Republican Allen County Coroner as to the actual date and time of death.

11/5/2016: Early voting takes place as usual. Roy Buskirk’s name has been left on the ballot. The Allen County Election Board (ACEB) fails to tell people who voted early before Roy’s death could come back to the early voting locations and recast their ballots.

Every election season, the State of Indiana, by way of either the Indiana Secretary of State’s Election Division and/or the Indiana Election Commission, puts out a series of publications to provide rules and guidelines to those who run for elected office, to those who register voters, and to those who run/hold the actual elections. According to page 51 of the 2016 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) [9][10] This means the ACEB knew or should have known that the State of Indiana prescribed procedures to be followed (in this case letting early voters recast their ballots) and that there would be a specific form, if one was needed (in this case Indiana form ABS-5). All the ACEB needed to do was to issue a press release promoting this procedure and then made copies of the ABS-5 “recast vote” form available at all of its early voting locations. The ACEB failed to do so.

Incidentally, while the Republican-controlled ACEB should have been promoting that people who voted early had the right to recast their ballot, the Democratic-controlled Allen County Voters Registration office (ACVR) should have been working to get Buskirk’s voter registration card cancelled. Why? Indiana has a really goofy “Candidate Qualifications” law in that it requires candidates to be registered voters, but does not require candidates to be alive when running for office. (Indiana Code 3-8-1 et seq)[24] That’s right folks---you can’t vote if you are dead, but if no one cancel’s your voter registration card…you can run for an elected office. (On some levels this isn’t funny, but for right….come on, it’s hilarious!! LOL!) I’m guessing it’s a common sense thing.

Fortunately, page 28 of the 2016 Indiana Voter Registration seems to provide a remedy to this problem: “State law requires that the State Department of Health provide the Indiana Election Division with an electronic list of deceased individuals through SVRS so that a county voter registration office can cancel the voter registration records of deceased individuals on an expedited basis. (IC 3-7-45-2.1) The State Department of Health is also required to obtain information regarding death of Indiana residents occurring outside of the state and transmit those records to the county no less than on a monthly basis. (IC 3-7-45-5)” This same page goes on to say: “Each county voter registration office shall cancel the registration of each deceased person listed in these reports. (I.C. 3-7-45-3)” [24] This begs the question as to why the Democratic-controlled Allen County Voter Registration office failed to cancel Buskirk’s voter registration card, which could have made him ineligible to run for office or receive any votes.

Folks--- Think about it for a moment, not only did the people who are in charge of our elections make a mistake by not promoting the fact that early voters could recast their ballots, but the people in charge of voter registration could have also gotten ahead of the Buskirk dilemma by simply cancelling the voter registration card of a deceased voter. That’s two separate departments, one headed up by Republicans and one headed up by Democrats, that made mistakes that could have expensive and/or detrimental consequences for the surviving 5 County Council At-Large candidates. And nobody is talking about it. Not the ACGOP. Not the ACDP. Not ACEB. Not local media. Nobody…????

11/7/2016: Early voting continues. ACEB holds a special emergency public meeting. [11] During the course of this meeting, the ACEB unanimously agrees, but does NOT vote, to keep Roy Buskirk’s name on the current ballot. There is no discussion about whether early voters should or would be given the opportunity to recast their ballots as outlined in procedures and statutes by the State of Indiana. Allen County Democratic Party starts circling the wagons a lil’ more aggressively, stating how they will "challenge" the County Council race if Buskirk gets re-elected. [12]

11/8/2016: It’s Election Day. In the Allen County Council At-Large race, the Republicans continue to sweep all three spots. Deceased Roy Buskirk is the third highest vote-getting candidate in that race. But would he have been had early voters had known that they could recast their ballots?

11/9/ 2016: It’s the day after Election Day and Roy Buskirk has gotten re-elected. WANE-TV conducts on-camera interviews with ACEB members Tom Hardin, 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. [13]

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.” [13] 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.” [13]

This dispute over how to count Buskirk’s ballots by two members of the ACEB should have triggered immediate judicial oversight by the honorable Judge Thomas Felts of the Allen Circuit Court, pursuant to Indiana Code 3-12-4-16, which states: “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.”[14] But it wasn’t. This marks the second time in the Allen County Council At-Large race that the ACEB failed to follow electoral procedures prescribed by Indiana statutes.

11/10/2016: As those news reports were published, several of you forwarded these reports to me. (Thanks to those who did!) Soon, individuals representing some pretty specific local demographics were reaching out to me for help in getting either a Special Election or in getting a second Democrat onto County Council. I didn’t make any promises other than to look into the matter. As many of you know I publically endorsed Republican Roy Buskirk in the May Primary for the GOP ticket and re-endorsed him, twice, during the 2016 General Election. I did this as a Democrat who understood the needs and concerns of county voters. In making the promise to look into the matter, I made a mistake. I thought it was going to be a simple review of facts, forms, and procedures that would validate the current election results and confirm my endorsee Roy Buskirk as being the third top-voting getting individual in this year’s County Council At-Large race. I was wrong. Matters were more complex and more technical than I first realized. Realizing I made a mistake in underestimating the time needed and the complexity of the review. I owned up to it. [15]

11/11/2016 – 11/15/2016: As I reviewed matters, 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. [16][17][18][19][20][21] I also felt obligated to review various local media stories as to the arguments being offered by both the ACDP and the Allen County Republican Party (ACGOP). This included a review of ACDP Chair Jack Morris’ suggestion that votes already cast for Roy Buskirk could have been “transferred” to Buskirk’s successor. [22] A review of Indiana Code 3-12-1-14 ”debunked” Morris’ theory confirming that votes cast for Buskirk could not be transferred to Buskirk’s successor. [23]

11/16/2016: I posted the findings of my review online in a post entitled: “INDEPENDENT REVIEW OF THE IMPACT OF ROY BUSKIRK’S PASSING ON THE 2016 COUNTY COUNCIL AT-LARGE RACE --- ACEB ERROR AND OMISSION REQUIRES A SPECIAL ELECTION.” [24] I explained why I was reviewing matters, how I had reviewed matters, and my findings:

(1) Assuming that Roy Buskirk died by or after Noon on Thursday, November 3rd, 2016—which would need to be verified with a Certified death report from the Republican-controlled Allen County Election Board--- that I agreed that the ACEB was correct in not removing Buskirk’s name from that ballot;

(2) That I agreed with the ACDP Chair that Buskirk’s death created a late ballot vacancy;

(3) That I disagreed with the ACDP Chair that this did not prevent Buskirk’s name from being on the ballot because, in my opinion, statutes governing Indiana Election Administration rules and procedures were clear on the matter---that if a candidate died on or after NOON five days before the General Election, there was no requirement that the ACEB remove that candidate’s name from the ballot and that I believed this was a matter of logistics;

(4) That instead of removing Buskirk’s name, the ACEB was supposed to alert the general public that individuals who had already voted early could come back to the early voting places and recast their ballot by way of Indiana State form ABS-5;

(5) That because ACEB failed to do that, they had effectively influenced the outcome of the race, that it could not be determined who the top voters really were, and as such a Special Election was needed; and

(6) That because of the internal conflict between members of the ACEB as to how to or whether to count ballots cast for Buskirk, that the ACEB was now subject to the oversight of the honorable Judge Felts of the Allen Circuit Court.

Late 11/16/2016 – early 11/17/2016: I sent an email alerting the ACEB of my findings with a copy going to the ACDP Chairman, the ACGOP Chairman, and the five surviving 2016 County Council At-Large General Election candidates. [25]

11/17/2016: At 1:01 am, the Journal Gazette ran with a story about how Democratic County Council At-Large candidate Palermo Galindo will be holding a press conference today at 5:10 pm at the South entrance of the Rousseau Center (One Main Street, Downtown Fort Wayne), “ask that he be certified in the recent election as an Allen County councilman.” [26] Because this is America, Galindo can ask anything that he wants. However, at this point, it would be improper (and perhaps illegal) of the ACEB to do so without following the proper Election Rules and Procedures outlined in the 2016 Indiana Election Administration Manual, in accordance with various State laws.

Further, I don’t believe ACEB wants to trigger a federal audit by the FBI concerning elections. Unlike in past years where all problems were limited to non-federal municipal ballots, this year’s ballot contained federal offices, which if I am not mistaken (and I could be---perhaps I should forward a copy of email to the ACEB to the FBI for confirmation???) this year’s ballot and all political races, and how elections for those races were administered—from Allen County Council all the way to the President/VICE PRESIDENT of the United States, falls under the jurisdiction of Federal law enforcement. Of course, I admit that I could be totally wrong about this.

It seems, however, that based on my findings -- the correct course of action is for the ACEB to turn the matter of how votes are to be counted to the honorable Judge Thomas Felts of the Allen Circuit Court and let his honor, a Republican judge, determine whether:

OPTION A (Republican preference): Let the current ACEB results for the Allen County Council At-Large race stand, which would seemingly be consistent with the Indiana State Constitution as it concerns disenfranchising 71,700 voters but would not deal with the ACEB’s error and omission, which would seemingly be in contradiction of the Indiana State Constitution as to fair elections, which is why there are rules and procedures to begin with; or

OPTION B (Democratic preference): That the current ACEB results for the Allen County Council At-Large race DON'T stand and that 71,700 voters should be disenfranchised in violation of the Indiana State Constitution as well as in violation of the 2009 case of Burke v. Bennett, (907 N.E.2d 529), which his honor juuuuust confirmed last June, 2015, to be the standard for elections held within the County of Allen as it pertained to the 2015 City Council At-Large Contestation;[27] or

OPTION C: Regretfully acknowledge that his honors hands are tied and that due to the technical error made by ACEB, that the Circuit Court is unable to determine who the top vote getters are and call for a Special Election.

At 8:11 am, the News~Sentinel ran with a story about Palermo Galindo’s desire to be certified as one of the three top vote-getters in the Allen County Council At-Large race. [28] Galindo is reported to have said: “…."I trust the Election Board will comply with Indiana law and certify the top three eligible candidates for County Council at-large, including me. However, should they [ACEB] FAIL TO PERFORM ACCORDING TO THE LAW I WILL PURSUE ALL LEGAL OPTIONS AVAILABLE TO ME…” (Emphasis added) [28]

I believe Galindo is running under the mistaken belief that the ACEB has the authority to disregard votes. Given the election matters of 2011 and 2015, this is absolutely a reasonable mistake for Galindo or any other candidate to make. However, the ACEB does not have that authority. The ACEB’s Executive Director Beth Dlug was made aware that the ACEB does not have that authority by way of communication between her and the Indiana Election Commission as it regarded the 2011 matter involved Tommy Schrader.

Also discussed in the 8:11 am News~Sentinel were three positions being held by the ACGOP Chairman Steve Shine in collaboration with the ACEB: “… County Republican Chairman Steve Shine has accused Democrats of attempting to ‘steal’ Buskirk's victory, and has said it would have been impossible to replace his name on the ballot just a few days before the election — a claim echoed by Director of Elections Beth Dlug. Shine has also pointed out more than 30,000 early and absentee votes had been cast by the time of Buskirk's death, and that those votes could not be transferred to another GOP candidate…”[28]

The first position being taken is that “it would have been impossible to replace[Buskirk’s]name on the ballot just a few days before the election.” In my findings, I agree that logistically this wasn’t going to be able to happen and that I also agree that the ACEB was under no requirement to do so. [24] ACDP Chairman Jack Morris has taken a position opposite of Shine and believes the ACEB was under some sort of obligation to remove votes cast for Buskirk and should have been transferred to a successor. [29] But that doesn’t seem to be the correct according to state law. [30]

The second position taken by the ACGOP Chairman is that “…more than 30,000 early and absentee votes had been cast by the time of Buskirk's death…” Even if that were true, and it may have been true overall—but not in Buskirk’s race. His early voting totals were nearly half that. So I don’t understand the point the ACGOP Chairman is trying to make other than this would be how many voters would be disenfranchised. But if that was the point, it doesn’t matter if the number is 30,000 or 1---a disenfranchised voter is a disenfranchised voter.

The third and last postion the ACGOP Chair takes is in response to the position taken earlier by the ACDP Chair that somehow votes could have been transferred from Buskirk to Buskirk’s GOP successor. The ACGOP Chairman disagrees with that assessment and I believe state law backs up the ACGOP Chairman on this point. [30]

But folks, none of these positions are relevant. And that’s just it---right here is what those that control the local narrative do. They ping pong off of each other using one irrelevancy after another to divert your attention from what really is important. And what is important in this matter?

The fact that the ACEB didn’t follow proper rules and procedures in this election as it pertained to Buskirk’s death. Also discussed in the 8:11 am News~Sentinel was the fact that I sent a letter to the ACEB: “…In a letter to the Election Board, however, Democrat Gina Burgess has challenged that position, asserting that Indiana election law allows absentee voters to submit another ballot in the event of a candidate's death. ‘By failing to let people know that early voters could recast their ballots, the (board) ended up influencing the election,’ Burgess stated….”[28]

SPECIAL NOTES

As this above election matter was being reported, other news stories were released regarding other matters I am involved in. To those asking yourselves, was this a coordinated effort to distract people? I don’t know. But I have had several of you have reached out to me throughout the day on the following matters, which will be discussed at a later time:

At midnight, the News~Sentinel ran with a story about this year’s Emergency Warming Shelter Plan for the Homeless [31]

Around 10 am, within 10 minutes of each other, the News~Sentinel and the Journal Gazette each ran with a story about a negotiated compromise that has been worked out with Three Rivers Ambulance Authority (TRAA) and the Fort Wayne Fire Department (FWFD). [32][33]

Around 3:14 pm, the Journal Gazette ran a story about how Eric Doden’s Domo Development, LLC has decided to rethink putting in a dual-branded hotel in the shopping center/amusement zone it is hoping to create in the failed North IV Annexation area by Parkview North. [34]

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Saturday, November 19, 2016

2016 ALLEN CO. COUNCIL CONTESTING

Gina Burgess

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