Saturday, November 19, 2016

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

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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
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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   SPECIAL ELECTION IN THE 2016 ALLEN COUNTY COUNCIL AT-LARGE RACE
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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 caseLockard 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. 
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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.   
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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. 
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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.


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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]  
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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.
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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.
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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,

DAVID CHRISTOPHER ROACH
also

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Cc:
ACDP Chair, Jack Morris (jmorris@bpmjl.com)
ACGOP Chair, Steve Shine (sshine@shineandhardin.com)
Candidate Bob Armstrong (bob.armstrong@allencounty.us)
Candidate Eric Tippmann (tippmane@ipfw.edu)
Candidate Palermo Galindo (palermo.galindo@cityoffortwayne.org)
Candidate David Roach (dcroach60@gmail.com)
Candidate Morrison Agen (info@neatneatneatrecords.com)
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SOURCES:

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David Roach dcroach60@gmail.com

6:17 AM (15 hours ago)
to DavidGinaelectionboardBethjmorrissshinebob.armstrongtippmanepalermo.galindoinfo
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ATTENTION PLEASE:
TO WHOM IT MAY CONCERN- ALLEN COUNTY ELECTION BOARD AND ALL CONCERNED PARTIES:
PLEASE NOTE TIME DATE SENT EMAIL INFORMATION VIA G-MAIL SERVERS; RECORDING  SENT/ RECEIVED DATA OF THIS DEFECTIVE ABSENTEE BALLOT REQUEST FOR RE-VOTE.
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ALSO- NOTE- DATE /TIME STAMP AS ACKNOWLEDGEMENT OF ELECTRONICALLY SIGNATURE AS  SECRETARY OF STATE WEBSITE/ PDF HAS NO PROVISIONS FOR ELECTRONICALLY SIGNATURES OF  FORMS SENT VIA E-MAIL

RECEIPT BY MY EMAILS ; AND SERVERS REPLY DATA INDICATES RECEIPT OF MESSAGE AND INFORMATION BY E-MAIL ADDRESSEES.
If you read it or ignore it - thats on you.
thank you very much.
 PLEASE CONSIDER MY VOTE AS RENDERED DEFECTIVE/INVALIDATED DU TO DEATH OF ONE OF 6 CANDIDATES WHOM I VOTED FOR-
2ND OF THREE PERMITTED WAS FOR MYSELF AND 3RD IS UNNECESSARY  TO DISCLOSE OR IRRELEVANT DUE TO SCOPE OF THIS ABSENTEE BALLOT SUBMISSION REQUEST.

THANK YOU FOR YOUR ACCEPTANCE AND RESPONSE/ACTION TAKEN WITH RESPECT TO THIS SUBMISSION.
i AM MERELY ACTING AS A GOOD CONSCIENTIOUS CITIZEN CONCERNED THAT MY VOTE MAY NOT HAVE BEEN PROPERLY COUNTED  AND DULY RECORDED; OR DUE TO CURRENT CIRCUMSTANCES AND PENDING LEGAL ACTIONS BY THE TWO COUNTY POLITICAL PARTY CHAIRMEN AND THEIR LEGAL TEAMS   WITH RESPECT TO ELECTION CERTIFICATION; I WANTED TO MAKE SURE THIS WAS  SENT PRIOR TO THE FRIDAY    DEADLINE- (BEFORE OFFICE OPENING HOURS OF OPERATION AND BEFORE ANY ACTION IS TAKEN TO CERTIFY THE ELECTION.
THANK YOU SINCERELY FOR PERMITTING ME TO ACT AND ENTERTAINING THIS MOTION >
DAVID CHRISTOPHER ROACH

5TH PLACE CANDIDATE
36,973 DEMOCRAT VOTES
2016- ALLEN COUNTY COUNCILMAN AT-LARGE CANDIDATE.

PLEASE  REVIEW  THIS STATE ELECTION LAW CASE /ELECTION LAW PRECEDENT- IM NOT A LAWYER BUT IT SEEMS TO APPLY.
BURKE VS BENNETT- WITH RESPECT TO  4TH ; ETC PLACE FINISHERS- IN A ELECTION- CLEARLY THE VOTERS MADE A INFORMED DECISION OF WHOM TO VOTE DESPITE WIDESPREAD AND FREQUENT MEDIA AND NEWS PAPER  S OF RECORD ARTICLES INFORMING THE VOTING PUBLIC AND GENERAL POPULATION OF THIS TRAGIC LOSS OF A FINE MAN OF HIGH REGARD AND ESTEEM AND MILITARY VETERAN; HIS DEATH HIS  REMAINING ON THE BALLOT WITH NOT TIME TO CHANGE OR TAKE ACTION; THE DULY CONVENED COUNTY ELECTION BOARD AND SUBSEQUENT DECISION; AND PROPERLY CARRIED OUT  NOVEMBER 8TH ELECTION.

i WOULD LIKE TO NOTE THE VOTING PUBLIC  MADE A CONSCIOUS ACTION TO SELECT THE VOTING MACHINE BUTTONS FOR ALL CANDIDATES VOTED FOR; AND I RECEIVED  5 OF 6 BALLOT FINISHING POSITIONS IN THIS "HORSE RACE".
THANK YOU TO ALL THE VOTERS- ; AND THE ELECTION BOARD AND OTHERS FOR THEIR PARTICIPATION AND GOOD ACTS OF CITIZEN SHIP IN MAKING OUR ELECTION SYSTEM WORK TO THE BEST OF THEIR AND ITS ABILITY.

tHE VOTERS HAVE DECIDED; THEY DECIDED THEY WOULD ALLOW THE GOP PRECINCT PERSONS TO CAUCUS AN UNDESIGNATED BALLOT REPLACEMENT/CANDIDATE/ POLITICIAN TO FILL IN THE UNFINISHED TERM OF MR ROY BUSKIRK TILL DEC 31ST AND FOR THE GOP CAUCUS TO SELECT AN AS YET UNDISCLOSED POSSIBLE REPLACEMENT / REPLACEMENTS - TO SERVE THE NEXT FOUR YEAR TERM.

AT PRESENT; I DO NOT INTEND TO  GET INVOLVED IN ANY RIGGING OF THE LEGAL SYSTEM ELECTION MACHINATIONS AND LAWYER WAR MANUEVERS TO OVERTURN THE PEOPLES WILL THROUGH ACTIVIST JUDGES  SPECIAL INTERESTS PACS OR PARTY HACKS- ACTIONS; i TRUST THE VOTERS AND CITIZENS THAT THEIR WILL WAS HEARD UNDERSTOOD AND ACTED UPON; THAT THEY MADE THE INFORMED AND CONSCIOUS DECISION AND ACTION TO VOTE FOR A DECEASED REPUBLICAN OVER THE THREE  LIVE DEMOCRATS.
WHAT A STRANGE WORLD WE LIVE IN.
IN CHICAGO- REPUBLICANS  COMPLAIN ABOUT DEAD PEOPLE VOTING FOR  DEMOCRATS
AND IRONICALLY IN FORT WAYNE; WE HAVE DEMOCRATS COMPLAINING ABOUT REPUBLICANS VOTING FOR DEAD PEOPLE

i LOST TO A DEAD REPUBLICAN POLITICIAN; AND DEFEATED THE PARTY FAVORITE BY 509 VOTES DESPITE THE THOUSANDS OF DOLLARS AND HUNDREDS OF HOURS BY THE PARTY MACHINE TO  DECLARE ME NULL AND VOID AND  SUPPRESS THE VOTERS FROM VOTING FOR ME.
DIDNT WORK OUT FOR THEM DID IT? I received an all time vote total 37,000 votes and 30- 37%-depending on your methodology

THIS WILL BE ANOTHER CHAPTER IN THE STRANGE AND TERRIBLE SAGA OF FORT WAYNE POLITICS AND ELECTORAL HISTORY; WITH THE  REST OF THIS CHAPTER STILL TO BE WRITTEN BY THE PARTY S LAWYERS AND THE COURTS AND PARTY OFFICIALS;
THANK YOU FOR YOUR TIME PATIENCE AND ENTERTAINING THIS MOTION AND DULY ENTERING THIS INTO THE ELCTION BOARDS RECORDS AND FILES.AND HAPPY HOLIDAYS TO ALL OF YOU.

Imnot a lawyer but i don know that when absentee ballots are sent to be printed; names cannot be removed from the ballot- as determined by my 2015- election board; and ACEB appeals and election contestment -
so there is precedent for not being able to change  a ballot-; and I also can understand the technology problems with a RUSH JOB- trying to correct  300+ voting machines or change the ballots and of course the simple   problem of gathering 250+ gop precinct committee persons to convene a caucus in 72 hours notice-  to declare a replacement candidate; and to properly publicize that replacement for the voting public.
I think the voting public and the courts and the election board will determine the system and all parties did the best they could and acted in good faith to  remedy this highly unusual election event.

GENERIC DEATH CERTIFICATE ISSUED
BY A GENERIC CORONERS OFFICE - RECORDING TIME AND DATE OF AN INDIVIDUALS  DEATH AND CAUSE OF DEATH AND OTHER VITAL STATISTICS. i HOPE THE ELECTION BOARD AND CONCERNED REPUBLICAN AND DEMOCRAT PARTY LEGAL TEAMS OF LAWYERS WILL ALSO MAKE PUBLIC THE TIME OF MR BUSKIRKS DEATH - WITH PROPER  INFORMATION NECESSARY T O DETERMINE THE stop watch/time line ticking   for purposes of determining  deadline for determining election boards actions as proper or incorrect.-
 by the way _ im pretty certain this OHIO death certificate is MY great- grandfather- coincidentally also named DAVID ROACH
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E-MAIL MESSAGE REPLY TO ALL SENT
TO ALLEN COUNTY INDIANA ELECTION BOARD

BY DAVID CHRISTOPHER ROACH
aka  DCROACH60@GMAIL.COM
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Mail Delivery Subsystem mailer-daemon@googlemail.com

6:17 AM (15 hours ago)
to me
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     sshine@shineandhardin.com

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