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ROY BUSKIRK 2016 COUNTY ELECTION "POST MORTEM"-
LITERALLY FUGIRATIVELY AND POLITICALLY
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https://www.facebook.com/GinaMBurgess/posts/10210901730284103
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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: Special thanks to everyone who reached out to me asking for my review on various aspects of the election matters surrounding the death of Roy Buskirk. It is with a heavy and regretful heart that I share my findings below. While I have been an advocate for fair and free elections for a while now, this is the first time that what I want (the 2016 County Council At-Large election results to remain in good standing) and what I stand for (fair and free elections) are at truly odds with one another. It’s a peculiar and uncomfortable crossroad to be at, but I am sticking with what I have always stood for and letting go of what I want. To Roy Buskirk and Bob Armstrong---two candidates I endorsed in this year’s Primary and General elections, I am incredibly sorry for the position I feel obligated to remain true too. At a time when there’s a little too much politics in politics, and way too much politics in electioneering, I feel maintaining this position is for the greater good of our community.
I will be discussing my review in detail below, but I would like to remind everyone of a few things: 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. Additionally, from a political perspective, as a registered Democrat and former Democratic candidate, I 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. But despite these personal preferences, I believe elections need to be free and fair. In my review of this matter, at the request of many, I came across an error and omission by the ACEB that I believe does require a Special Election. I share this to make sure everyone is on the same page here. And now onto the details….
Everyone is feeling the loss of Roy Buskirk. They say politics makes for strange bedfellows and I am personally finding that to be a little all too real. As you of each know, I was a County Council At-Large candidate who ran against Roy in 2012. In 2013, Roy and I were attending the same meetings as it pertained to the impact of tax abatements among other things. In 2014, Roy and I found ourselves on the same side of that year’s proposed version of County government restructuring. I share this brief history because I want each of you to understand the respect and admiration I have for Roy. Like many of you, I too feel a loss, but undoubtedly my feeling of loss pales in comparison to those who knew Roy longer and better than I. While the loss of Roy is felt the deepest by his family and closest friends, this loss has literally reverberated to all four corners of Allen County.
Voters want a special election. As I will discuss in more detail below, rural County voters of all political persuasions are fearful and understandably concerned about Roy’s replacement. Since news of Roy’s death, I have been contacted by County voters in the Monroeville, Grabill, Woodburn and Arcola areas. These are rural County voters (many of whom are loyal Buskirk constituents) as well as 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). These folks are reaching out to me because of my 2012 campaign and 2014 advocacy in support of “Vote No to One,” which was against the then-proposed county government restructuring referendum. Many of them are wanting to know what can be done and some are wanting a special election. In an unusual and rather strange twist, I’ve also been contacted by Democratic voters---including some ACDP members and/or Henry loyalists---as well as a variety of independent voters. Many of them are also wanting to know what can be done and some are wanting a special election. Despite my public endorsement of Roy in the 2016 Primary as well as the 2016 General Election—once before his passing and again after he passed, these folks are contacting me because of my well-documented and continued advocacy for fair elections. Essentially, I have been asked to provide a second opinion/an independent review of matters for the community at-large.
Due to my own personal preference to let the results of the 2016 General Election stand as they are, I was initially somewhat hesitant to get involved. However, at the collaborative request of this unique coalition of voters noted above, I did take some time to review the facts that were made available to the public within the appropriate statutes, case law, state election publications/manuals, and other publically available sources of information. During my review, I came across what I believe is an error and omission made by the Allen County Election Board. It is because of ACEB’s error and omission that I have engaged in this matter and am now encouraging the affected candidates to consider seeking a Special Election through a contestation.
RURAL COUNTY VOTERS ARE FEARFUL. Before I discuss ACEB’s error and omission, I believe it is really important for ACEB as well as the ACGOP and the ACDP to have an understanding of the concerns and fears facing Allen County’s rural voters. While many folk are mourning Roy’s passing—for many rural Allen County residents, grief has taken the form of fear. The most common fears seem to be the general fear the unknown, a fear of diminished representation, a fear of county government restructuring that leads into consolidated government that favors urban residents to the disadvantage of rural residents, and a fear of continued or increased excessive spending. But the biggest fear seems to be the sense that Roy’s replacement will be “in the hands of crooks.”
Please understand that these are not my words, but rather the verbalized emotions of rural County voters. “Crooks” is a diplomatic term used to describe anyone who pushes an agenda similar to the proposed 2014 county government restructuring. Rural County voters have made it known twice now that they do not approve of that proposal. First, they rejected the formalized 2014 referendum on the topic, 70% against to 30% in favor. Second, they flat-out rejected the candidacy of Morrison Agen, the Democratic candidate whose 2016 political platform contained key elements of the 2014 county government restructuring proposal. Despite Morrison’s bigger campaign chest and despite the ACDP removing all obstacles for him---from media exposure (“earned”), to creating and providing public speaking/photo opportunities, and a troupe of trained, seasoned volunteers to phone bank, canvas, etc.--- he got beat by the “perennial” underdog, David Roach. For everything Morrison was given, Roach was denied. I share this information to help each of you understand how a significant block of voters in our community are feeling and why they are feeling that way.
A lot of political candidates and elected officials often wear the self-proclaimed cloak of being a “champion of the people.” Roy actually was a “champion of the people.” He is not going to be easy to replace and whoever his replacement will be will undoubtedly find himself swimming in the void Roy has left behind.
UNDERSTANDING POSITIONS—ADVOCATING FOR THE ELECTORAL PROCESS VERSUS SEEKING A POLITICAL GAIN. Before I discuss ACEB’s error and omission, I also believe it is really important to acknowledge, admit and help create an understanding that my position on this matter is undoubtedly different from the position of the ACDP. First, I am merely a community advocate who happens to be a degreed paralegal with law office experience. As a matter of law, I cannot represent anyone in this matter. As a matter of personal ethics, I would not represent anyone in this matter. I publically endorsed Roy Buskirk before and after his passing. Hence, my initial reluctance to get involved. My purpose here is merely making sure that Allen County elections be conducted in a fair manner, to bring an unintentional error that has likely escaped the oversight and attention of ACEB to the attention of all involved, and to advocate that this unintentional error be corrected in the only way I believe is procedurally permissible and egalitarian.
In contrast, the Allen County Democratic Party (ACDP), as currently represented by ACDP Chair, Attorney Jack Morris, is seeking to gain a second (2nd) additional seat for Democrats on Allen County Council. To be pragmatically objective, that is Jack’s duty in this matter. In further contrast, the Allen County Republican Party (ACGOP), as currently represented by ACGOP Chair, Attorney Steve Shine, is seeking to retain a fifth (5th) seat for Republicans on County Council. Again, to be pragmatically objective, that is Steve’s duty in this matter. Regretfully, the duty of each of these talented political operatives is to ensure a seat on County Council. It is not their duty to make sure the elections are fair and egalitarian, that the wishes of the electorate be followed, nor to bring an error made by the ACEB to the attention of the ACEB. In fairness, nobody should fault either Party chair—if I were either of them, I would be disinclined to bring this error to ACEB’s attention. The most likely remedy to this error is a Special Election. A Special Election does not guarantee the desired outcome that each Party chairman is dutifully pursuing.
It should be noted that I do not believe that I have any legal standing in the matter at hand and that even if I had such standing, I have no interest in pursuing any legal options that might be available to me in this matter, as of this time. Further, it is my understanding that that all of the County Council At-Large candidates have standing to contest this election, that their standing is independent of the standing that the ACDP and ACGOP Chairs each have in this matter, that the candidates have up to 14 days after the November 8th election to contest the 2016 County Council At-Large race, and that the Party Chairs have up to 17 days after the November 8th election to challenge the results.
The ACDP’s PREMISE #1 – BALLOTS CAST FOR ROY BUSKIRK SHOULD BE NULLIFIED. It is my understanding that the Allen County Democratic Party (ACDP) is interested in pursuing an election contestation with the desired outcome of nullifying ballots cast for Roy and in the hopes of having Democrat Palermo Galindo recognized as the next “highest vote getter.”[1][2][3][4] Personally, while I understand the strategy of nullifying ballots cast for political gains and agree that nullifying votes would be an efficient method in solving the current situation with the least amount of cost, I disagree with its use in this particular race.
According to the publically-available Election Summary Report made available online by the Allen County Election Board (ACEB) dated 11/8/2016 and time-stamped 11:52:04 pm, Roy received a total vote of 71,700. [5] That vote total was broken down as follows: Machine Ballots (or ballots cast by machine on Election Day, November 8th, 2016) was 43,594. [5] This means that 75% of all ballots cast for Roy were cast on Tuesday, November 8th. (43,594/71,700=75%) Alternatively, this means that only 25% of all votes cast for Roy were done as part of early voting. This means that for whatever reason, the majority of people who voted for Roy did so (1) AFTER he had passed and (2) AFTER local media reported on his passing.
To their combined credit, local media did the best job they could in alerting our community of Roy’s passing. Fort Wayne Newspapers, over the course of 15 hours, from 5:50 pm November 4th to 9 am November 5th, released 5 news stories that alternated between the News~Sentinel and the Journal Gazette. [6][7][8][9][10] In comparison, Indiana News Center, WANE-TV and WOWO radio each also released at least one news story during the same 15 hour period. [11][12][13][14]. Additionally, many local media outlets posted the story of Roy’s passing on their social media sites.
But despite local media’s best efforts, the fact remains that 43,594 voters cast ballots for Roy after he passed and after local media reported and publicized Roy’s passing. With 43,594 ballots out of the total 71,700 ballots cast for Roy coming AFTER these facts, to nullify these votes would be to purposefully disenfranchise over 43,000 voters. While it is understandable as to why the ACDP is pursuing this course of action, it would come at the expense of over 43,000 voters. That fundamentally flies in the face of fair and free elections and it may call into question the Constitutionality of such action.
Please note that Article 2 of the Indiana State Constitution, Section 1 states: “All elections shall be free and equal.” Further note that Article 2 of the Indiana State Constitution, Section 2(b) clearly states: “A citizen may not be disenfranchised under subsection (a), if the citizen is entitled to vote in a precinct under subsection (c) or federal law.” From my admittedly limited understanding of State Constitutional law, it would seem that nullifying votes simply because one political party does not like the outcome of the election is prohibited by the Indiana State Constitution.
UNDERSTANDING WHY PEOPLE VOTED FOR ROY BUSKIRK AFTER HE PASSED. I believe that the average reasonable person could deduce that people who voted on November 8th and cast a ballot for Roy did so for any number of reasons: (1) they did not know Roy had passed, (2) they knew Roy had passed but were voting to honor his memory and preserve his legacy, (3) they knew Roy had passed and were voting to block Democrats from being on County Council, (4) they knew Roy had passed and were voting to block candidates more fiscally liberal than Roy from being on County Council, (5) they knew Roy had passed and were voting to block candidates who showed signs of being pro-UniGov (i.e. supported the original 2014 proposal on county government restructuring referendum, adopted the 2014 proposed county government restructuring as part of their political platform, have supported Downtown Development/Riverfront Development, have supported the “Road to One Million,” have supported the “Regional Cities Initiative,”etc), (6) they knew Roy had passed and believed that he had probably already won his re-election due to the high number of early voters that had already cast ballots---this may have led some people to believe that any vote not cast for Roy would be a “wasted vote,” and/or (6) they knew Roy had passed and were voting for any combination of reasons presented here or any number of reasons not listed. From a purely business marketing perspective, it is highly likely that despite all the media attention given to Roy’s passing, most people simply didn’t know that Roy had passed.
PEOPLE REALLY MAY NOT HAVE KNOWN THAT ROY BUSKIRK HAD PASSED. While I anticipate my business marketing perspective will be discounted or flat-out rejected by some, please consider the following:
1. The average voter is not as engaged in political matters as candidates/elected officials would all like them to be or would hope that they would be.
2. During a Presidential election year, voters are more likely to pay attention to the national races and less likely to pay attention to local races.
3. Friday evening television news has some of the lowest audience viewership ratings for the week, beat out only by Saturday and Sunday television news audience viewership ratings. Saturday’s newspapers are historically the least read, which is why the papers are pretty thin and full of “fluffy,” feel-good features articles or public policy announcements that the current Administration needs to make “notice” of but doesn’t really want to publicize---and to those who would play coy on these points, please let’s continue to be respectful and stay above such coyness.
4. Sunday’s newspapers, particularly the Journal Gazette are thick and full of a varied content, most of which was geared towards the national elections. While both newspapers carry a features-like column dedicated to weekly politics, the reality is that the weekend before this year’s election---everyone was pretty well burned out from all the political television ads, radio ads, direct mail pieces, etc. The last thing the average person was going to do was purposefully read more political stuff. People interested in voting either had already done so or were going to review their choices by smart phones as they waited in line on Election Day. People not interested in voting tend not to be interested in politics as a rule of thumb.
While the timing of Roy’s death was bad enough, media’s promotion of his passing on an average weekend would have been spotty at best. But the weekend before the election, the average person was burned out from all the election coverage and was likely to be actively turning off TV political news reports, changing the channels of radio political news, and/or simply ignoring printed version of political news.
THE ACDP’s POSITION #2– LATE BALLOT VACANCY WAS CREATED AND ACGOP FAILED TO FILL THE VACANCY. On November 11th, WANE-TV reported that ACDP Chairman Jack Morris stated that the Indiana Code cites the death of a candidate creates a “late candidate vacancy” which allows for the party chairman to appoint a candidate to fill the spot. [4] On this point, I technically agree with the ACDP Chair.
A review of I.C. 3-13-2-1 et seq. is, in my opinion, surprisingly straight-forward on this particular point. [14] From my review and personal understanding (which admittedly may be limited herein) of this section, with a particular focus on I.C. 3-13-2-8, is that the death of a candidate during an election does create a ballot vacancy and that this ballot vacancy must be filled by the appropriate Chairman. Matter of fact, this point is discussed in detail in the 2008 Indiana Court of Appeals case of Lockard v Miles, 882 N.E.2d 288, involving a similar set of facts where a candidate for local office died during a primary election. [15] Although this case focuses on early ballot vacancies versus late ballot vacancies, it spends a significant amount of time differentiating the two. All parties involved in the potential contestation may find this case to be beneficial, if not at least educational.
From my review, it seems that the ACDP Chair is making the argument that Roy’s death creates a vacancy on the ballot, that the ACGOP Chair had a statutory duty to fill that ballot vacancy, and that the ACGOP Chair failed to meet his duty and as such chose not to filled the vacancy created by Roy’s passing.
ACGOP CHAIR’S RESPONSE TO ACDP’S POSITION #2 SEEMS TO BE APPROPRIATE. While I agree with the ACDP Chair that Roy’s death created a vacancy, I disagree that that the ACGOP Chairman would have logistically had enough time from the moment Roy passed on November 4th to the start of voting on Election Day at 6 am on Tuesday, November 8th. I respectfully diverge from the ACDP Chair’s position on the technicality that even though a candidate’s death creates a vacancy, the vacancy still has to be established—or made official.
While local media made great efforts to publicize Roy’s death, the reality is that media does not get to determine who has died or when. That’s a job left up to the Allen County Coroner’s office by way of a certified death report, or Death Certificate. Once the death certificate is obtained, it’s my understanding, pursuant to I.C. 3-13-2-8, that it has to be received by Clerk of Court, and that establishes the vacancy. It’s my understanding that you can’t fill a vacancy without first establishing that a vacancy exists, which is the purpose of filing things with the Clerk of Court. Once the vacancy is established, then the ACGOP Chairman could have begun the selection process of finding an eligible and willing candidate (alone, with the assistance of the ACGOP Central Committee, or by way of an emergency caucus), helped that candidate complete the CAN-2 (Declaration of Candidacy) and CAN-12 (Statement of Economic Interest) forms, and gotten those forms filed with ACEB.
Now, for the sake of kicks and giggles, let’s assume that the ACGOP Chair could have gotten that all accomplished by or before Monday, November 7th. In fairness to points being made by ACDP Chair Jack Morris, ACGOP Chairman Steve Shine probably could have gotten the Republican Coroner to put in some overtime and rush a death certificate, pulled some strings with the Republican Clerk of Court, sent a mass email out to the ACGOP for candidate volunteers/recommendations/nominations to secure a willing candidate and garner support for said candidate, alerted the Republican-controlled ACEB (which consists of the Republican Clerk of Court Lisa Borgmann and Shine’s law partner Tom Hardin) of the efforts to establish a vacancy and swap out candidate, and performed the other numerous tasks that needed to be accomplished to meet the above-referenced statutory requirements in a faster-than-timely manner. But then what?
Reviewing 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. [15][16] The statute, like most election law statutes, is complicated. [16] Essentially, if my understanding is correct, the law requires that the 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. [16]
The General Election was held on November 8. It was well-promoted that Roy died on November 4. At first glance, it would seem that the ACEB is correct. Thursday, November 3rd is five (5) days before the election. On the fifth day before the election, which was Thursday, November 3rd, Roy was believed to be still alive. Of course, if I were the ACDP Chair, or the legal representative of any At-Large candidate, as a matter of prudence and thoroughness--I would be seeking a certified death report from the Allen County Coroner’s office to determine and prove the exact date and time of death. But, then again, as a matter of prudence, if I were a member of the ACEB, I’d probably also work to obtain a copy of the Coroner’s report just to put that aspect of this overall matter to rest.
If Roy’s actual death---versus media reported death---occurred at 11:59 am or earlier on Thursday, November 3rd, 2016, then the ACEB was obligated to remove Roy’s name from the ballot and replace it with the name of the candidate selected to fill the vacancy created by Roy’s death. However, if Roy’s death was certified as occurring at Noon on Thursday, November 3rd, or anytime thereafter---ACEB was not obligated to do anything with the ballots. From the reasonable perspective of the ACGOP Chair, what would have been the point of going through all the motions as seemingly set forth in I.C. 3-13-2-1 et seq., with a focus on I.C. 3-13-2-8, only to have the ACEB be in a position of not being required to make any changes on the ballot, pursuant to I.C. 3-11-3-29.5. [14][16][15]
THE ACDP’s POSITION #3–WHEN A PERSON DIES, THEY CEASE TO BE A CANDIDATE. The ACDP Chair, Attorney Jack Morris, seems to be trying to make what would appear to most people as a common-sense argument that when a person dies, they cease to be a candidate. [17][18] Jack cites I.C. 3-13-1, I.C. 3-13-2 and I.C. 3-12-14(b) in support of this premise. [17] I understand the fundamental argument he is attempting to make. However, I don’t understand the statutory support Jack seems to be relying upon. But, alas, as I’ve stated before-- I am merely a regular run-of-the-mill citizen and not a seasoned litigator of Jack’s caliber.
In fairness to Jack, he is essentially trying to prove a negative (what a dead person can and cannot do). Indiana Code 3-8-1 et seq. sets forth the minimal qualifications to hold office.[19] Humorously, being a registered voter is a requirement. Being alive is not. (And nope, folks---you just can’t make this stuff up…LOL!)
Fortunately, page 28 of the 2016 Indiana Voter Registration seems to provide a remedy to Jack’s 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)” [20]
This should have been great news to the ACDP Chair because Allen County Voter Registration (ACVR) is pretty much headed up by Sharon Knuth, the wife of former Democratic County Chairman Kevin Knuth and a registered Democrat herself. While the ACEB is controlled by Republicans, the ACVR is controlled by Democrats. Had somebody from ACVR pushed to get a certified death report from the Republican Coroner’s office, establishing or confirming Roy’s death, then the Democrat-controlled ACVR could have cancelled the voter registration card of Roy Buskirk. Once Roy was no longer a registered voter, he was no longer qualified to be a candidate for office, pursuant to I.C. 3-8-1 et seq. [19]
But despite the amount of seasoned and experience personnel working for the Democratic-controlled ACVR, there is no evidence to suggest that anyone in that office made any effort to cancel Roy’s voter registration card. Perhaps the ACVR also held the same perspective as the ACGOP, what would have been the point of going through all the motions as seemingly set forth in I.C. 3-7-45-3, only to have the ACEB be in a position of not being required to make any changes on the ballot, pursuant to I.C. 3-11-3-29.5. [20][14][16][15]
ACEB’s RESPONSE WAS APPROPRIATE BUT THEIR ACTIONS WERE ERRONEOUS. From the perspective of the ACEB—from my admitted limited understanding herein, there did not appear to be a duty for them to make any changes on the ballot, pursuant to I.C. 3-11-3-29.5. [14][16][15]
But that response, while seemingly appropriate, begs some questions. For example, as sad as it is—Roy was not likely the first candidate to die while on the ballot, campaigning for an elected office, or as early voting had already commenced. Nor was it likely that there had never before been a candidate to die so close to the date of the General Election before. Surely, there is a procedure in place to handle such a scenario? And there was.
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…”(IC 3-11-10-1.5; IC 3-11-10-32) (ABS-5 form) [21] 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, they had a duty to alert the community that early voters had the right and the option, should they so choose, to rescind their 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 opt to recast their ballots. But the ACEB omitted to do so.
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. 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.
The deliberate action—failing to follow the procedures contained in the Indiana Election Manual--- 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. 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 actually 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? With Roy gone, who would voters pick as their conservative choice and who would they pick to balance out that conservative choice, if they so desired.
The point here is that Roy left behind a void and there is no possible way to know how the Allen County community would have attempted to fill that void had people known they could recast their ballot. But the fact that ACEB omitted that option by failing to promote said option means that many people who voted early may have left their vote stand simply because they didn’t know all of their voting options. They didn’t know they could recast their early ballot.
Now some of you are very likely to raise the issue of timing --- afterall, if voters didn’t see the media reports that Roy had died, then how could anyone expect better of an ACEB notice alerting voters of their right to recast their early voting ballot? That’s a fair question. And honestly, I don’t think the ACEB notice would have received better coverage than the media reports of Roy’s death. But I also don’t think the coverage would have been any worse either. At the end of the day, the point here is that the ACEB had an obligation to follow a specific procedure and because they failed to follow that procedure, none of us can really know what the real outcome of the County Council At-Large race would have been. If the ACEB had followed procedure and had let people know, but the people didn’t get the message because they weren’t paying attention to the news---the ACEB duty and obligation would have been met. ACEB’s duty isn’t to alert everyone to all they are doing all the time, but their duty is to follow the procedures outlined in the 2016 Election Administration Manual for the 2016 elections. ACEB erred when they chose not to follow the procedures outlined, that error led to an omission/failure to inform people of their right to recast their early voting ballot, and that without giving voters the opportunity to recast their early voting ballots—the ACEB has made it impossible to determine what voters wanted and who got or who would have gotten what votes cast for them, and without that determination it is simply not possible to know who was the top three vote getting candidates.
A SPECIAL ELECTION MAY BE THE ONLY REMEDY AVAILABLE FOR ACEB’S ERROR AND OMISSION. 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.
This means either one of the Chairman of the political parties needs to step up. Both ACDP Chair Jack Morris and ACGOP Chair Steve Shine are attorneys. Or one of the affected candidates---Eric Tippmann, Bob Armstrong, Palermo Galindo, David Roach or Agen Morrison---needs to step up independent of the political parties. In my review and opinion, as part of any contestation, interested parties should be able to cite Indiana Code 3-12-8-2(5) as a reason for contestation. I.C. 3-12-8-2(5) states: “A deliberate series of actions occurred making it impossible to determine the candidate who received the highest number of votes cast in the election.” To learn more about contestation rules, procedures and requirements, interested parties should refer to Title 3, Article 12, Chapter 8 of the Indiana Code for helpful information on how to get started: http://law.justia.com/…/…/2015/title-3/article-12/chapter-8/
ACEB INTERNAL DISPUTE OVER HOW TO COUNT VOTES CAST TO ROY BUSKIRK. Interestingly, in addition to creating a situation likely needing to be solved by a Special Election because of an error and omission, the ACEB inadvertently created another quagmire. On or about Wednesday, November 9th, WANE-TV conducted 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. [22]
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.” [22] 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.” [22]
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.”[23]
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---I’m pretty sure there’s a disagreement. This, of course, begs some questions: Was this dispute real or was it a “horse and pony” show? If the dispute was real, has it been reported to the honorable Judge Thomas Felts of the Allen Circuit Court? If so, when? If not, why not? It should be entertaining to see how this all plays out.
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SOURCES:
[1] http://www.news-sentinel.com/…/Democratic-Party-to-challeng…
[2] http://www.journalgazette.net/…/GOP-prevails--1-win-contest…
[3] http://wane.com/…/county-council-seat-debate-could-go-to-c…/
[4] http://wane.com/…/local-gop-calls-caucus-to-replace-buskir…/
[5] http://www.allencounty.us/index.php…
[6] http://news-sentinel.com/…/Allen-County-Council-President-R…
[7] http://www.journalgazette.net/…/County-Councilman-Roy-Buski…
[8] http://www.journalgazette.net/…/Councilman-Buskirk--72--die…
[9] http://www.news-sentinel.com/…/Cancer-claims-Allen-County-C…
[10] http://www.journalgazette.net/…/Verbatim--County-Council-st…
[11] http://www.indianasnewscenter.com/…/Allen-County-Councilman…
[12] http://wane.com/…/allen-co-councilman-roy-buskirk-passes-a…/
[13] http://www.wowo.com/allen-county-councilman-roy-buskirk-pa…/
[14] http://law.justia.com/…/…/2015/title-3/article-13/chapter-2/
[15] http://www.leagle.com/…/20081170882NE2…/LOCKARD%20v.%20MILES
[16] http://codes.findlaw.com/…/ti…/in-code-sect-3-11-3-29-5.html
[17] http://www.wowo.com/republican-chairman-democrats-trying-s…/
[18] http://www.news-sentinel.com/…/Democratic-Party-to-challeng…
[19] http://law.justia.com/…/i…/2015/title-3/article-8/chapter-1/
[20] http://www.in.gov/…/2016_VR_Guidebook_with_Appendix_Documen…
[21] https://www.in.gov/…/2016_Election_Administrators_Manual.Co…
[22] http://wane.com/…/county-council-seat-debate-could-go-to-c…/
[23] http://codes.findlaw.com/…/titl…/in-code-sect-3-12-4-16.html
_________
SOURCES:
[1] http://www.news-sentinel.com/…/Democratic-Party-to-challeng…
[2] http://www.journalgazette.net/…/GOP-prevails--1-win-contest…
[3] http://wane.com/…/county-council-seat-debate-could-go-to-c…/
[4] http://wane.com/…/local-gop-calls-caucus-to-replace-buskir…/
[5] http://www.allencounty.us/index.php…
[6] http://news-sentinel.com/…/Allen-County-Council-President-R…
[7] http://www.journalgazette.net/…/County-Councilman-Roy-Buski…
[8] http://www.journalgazette.net/…/Councilman-Buskirk--72--die…
[9] http://www.news-sentinel.com/…/Cancer-claims-Allen-County-C…
[10] http://www.journalgazette.net/…/Verbatim--County-Council-st…
[11] http://www.indianasnewscenter.com/…/Allen-County-Councilman…
[12] http://wane.com/…/allen-co-councilman-roy-buskirk-passes-a…/
[13] http://www.wowo.com/allen-county-councilman-roy-buskirk-pa…/
[14] http://law.justia.com/…/…/2015/title-3/article-13/chapter-2/
[15] http://www.leagle.com/…/20081170882NE2…/LOCKARD%20v.%20MILES
[16] http://codes.findlaw.com/…/ti…/in-code-sect-3-11-3-29-5.html
[17] http://www.wowo.com/republican-chairman-democrats-trying-s…/
[18] http://www.news-sentinel.com/…/Democratic-Party-to-challeng…
[19] http://law.justia.com/…/i…/2015/title-3/article-8/chapter-1/
[20] http://www.in.gov/…/2016_VR_Guidebook_with_Appendix_Documen…
[21] https://www.in.gov/…/2016_Election_Administrators_Manual.Co…
[22] http://wane.com/…/county-council-seat-debate-could-go-to-c…/
[23] http://codes.findlaw.com/…/titl…/in-code-sect-3-12-4-16.html
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