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A candidate who finished fourth in the Nov. 8 election for an Allen County Council At-Large seat has filed a lawsuit against the Allen County Election Board and the other candidates .
On Tuesday, Democrat Palermo Galindo filed a lawsuit in Allen Circuit Court over the county council seat in response to the Allen County Election Board’s decision on Monday to approve votes for late Republican Roy Buskirk.
The Republican council president died Nov. 4 after a lengthy battle with cancer, and the day before the election the board agreed his name should remain on the ballot, in part because 30,000 early and absentee votes had already been cast and Director of Elections Beth Dlug said it would be impossible to change 700 voting machines in so short a time.
Galindo, the fourth place finisher, and Allen County Democratic Party chair, Jack Morris, disagreed with the board’s decision on the basis Buskirk wasn't a valid candidate and votes for him don't count, according to Indiana law.
The Allen County Election Board, Robert Armstrong, Roy Buskirk, Eric Tippmann, Morrison Agen and David Roach are listed as defendants. Galindo also filed for a change of venue motion in the case.
A caucus to select someone to fill Buskirk’s four-year term takes place at 6:30 p.m. on December 8 at Allen County GOP headquarters. Another caucus takes place November 30 to select someone to fill the remainder of Buskirk’s current term.
The Allen County Election Board Monday certified Roy Buskirk a victor in the Nov. 8 contest for County Council, setting up a likely legal battle over whether a dead person can remain a legitimate candidate.
The Republican council president died Nov. 4 after a lengthy battle with cancer, and the day before the election the board agreed his name should remain on the ballot, in part because 30,000 early and absentee votes had already been cast and Director of Elections Beth Dlug said it would be impossible to change 700 voting machines in so short a time.
The three Republicans on the ballot handily defeated the three Democrats in the contest for three at-large seats, with the third-place Buskirk receiving 22,500 more votes than Palermo Galindo, the top Democrat. Galindo and Party Chairman Jack Morris, however, said Galindo should be declared the victor, suggesting legal action could follow if Buskirk's victory stands.
"We didn't have a controversy (when the board met) the day before the election," said President Tom Hardin, the board's GOP's appointee. "It would be an overreach to claim (Buskirk) somehow wasn't a candidate. We said he was. That would disenfranchise voters and would be a bad precedent to set. This is a judicial question."
Tim Pape, who did not object to Buskirk's candidacy at the Nov. 7 meeting, is the board's Democratic appointee. The third member is County Clerk Lisa Borgmann, a Republican.
Hardin said there is no clear precedent in Indiana for determining what should happen when a candidate dies so soon before a general election. Given the growth in early voting, the state Legislature may want to consider whether current laws need to be updated, he added.
During the campaign Buskirk said he would resign if his illness made him unable to do the job. But GOP Chairman Steve Shine said the cancer progressed so quickly Buskirk never had a chance to make good on the pledge. Republicans will caucus Nov. 30 to select someone to fill Buskirk's seat through the end of the year. A second caucus that day could also select someone to fill the four-year term starting Jan. 1, pending an expected Democratic challenge.
Shine has said he will challenge the results if Buskirk's election does not stand.
Confusion over Buskirk votes calls for clarity before a bigger crisis comes
Allen County Election Board Democratic member Tim Pape, left, makes his point Monday to Republican board members Tom Hardin and Lisa Borgmann, right, who certified late Allen County Council member Roy Buskirk's Nov. 8 victory over Pape's objection. (Photo by Kevin Leininger of The News-Sentinel)
By Kevin Leininger, kleininger@news-sentinel.com
Tuesday, November 22, 2016 12:01 AM
Six of Allen County Council's seven members were Republicans before Roy Buskirk died Nov. 4, meaning Democrats will remain a scarce commodity around the table even if the party wins its appeal of Buskirk's re-election. But despite the party-line nature of Monday's Election Board decision certifying the results of the Nov. 8 election, this debate transcends partisan politics and should be clarified before something more important than a relatively meaningless council seat is on the line.
When I wrote my Nov. 3 column about my distaste for early voting, I had no way of knowing Buskirk would lose his long battle against cancer the following day. But, even more than the chance last-minute information could cause voters to regret their decision, a candidate's death just days before an election and after more than 30,000 votes have already been cast offers undeniable evidence that Indiana laws need to catch up with the times.
In hindsight, the looming legal battle could have been avoided had Buskirk simply announced he would not seek re-election in order to concentrate on his treatment. A councilman for 14 years, Buskirk said more than once during the campaign he would step down if he became physically unable to do the job. As his condition deteriorated rapidly over the final two weeks of his life, however, that announcement never came. County Republican Chairman Steve Shine could have named a replacement candidate, but the Election Board agreed Nov. 7 he was under no legal obligation to do so, noting the large number of early votes and the fact it would have been impossible to update 700 electronic voting machines so late in the campaign.
So Allen County voters were left with the choice of electing a dead Republican or a live Democrat to one of three at-large seats. They chose Buskirk, giving him about 22,500 more votes than the top Democrat, Palermo Galindo.
But Democratic Election Board member Tim Pape — who did not object to leaving Buskirk on the ballot during the meeting earlier this month — insisted the board's Monday certification of Buskirk's victory was a violation of state election law.
"Death creates a vacancy, and you can't get around that other than to ignore (the law)," he said. "Our oath (as board members) says we have to apply the law."
It's easy to question motives here. Although Republicans almost always win county-wide races, the party no doubt was happy to have the name of a proven vote-getter on the ballot. Democrats, meanwhile, may believe they have a better chance of convincing a judge to appoint Galindo than they had of convincing voters to elect him.
"Our duty is to certify the election results," said Chairman and Republican member Tom Hardin, who with Republican County Clerk Lisa Borgmann ratified Buskirk's victory Monday. "It would be overreach for the board to make a legal decision." That decision will now come from the courts, which must choose between the election of a dead candidate or a living candidate soundly rejected by voters. Hardin called the situation "novel," but neither option is ideal.
Pape insists the substitution of a last-minute replacement for Buskirk could have been accommodated by the use of paper ballots. That's possible, although it surely would have created a logistical nightmare for poll workers and election officials and even longer lines for voters. Far more problematic would have been those early and absentee votes cast prior to Buskirk's death. Removing his name at the last minute would have disenfranchised thousands of people, Hardin said.
Pape argues it's not the Election Board's job to protect individual voters in such cases, but to follow the law as written. But if you believe a candidacy should be voided when a party declines to name a last-minute replacement for a deceased candidate, you should also believe early and absentee voters should be allowed to adjust their ballots accordingly.
Many Americans are clearly troubled by the election of a president who lost the popular vote, but at least the Electoral College is constitutional and, hence, extremely vote difficult to change. State law is more easily altered, and with the exponential growth of early voting probably should be before a candidate for governor or senator dies the day before an election and hundreds of thousands of people can't be sure who's voting for whom.
This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. Email Kevin Leininger at kleininger@news-sentinel.com or call him at 461-8355
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