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“DEBUNKING” ACEB CLAIMS RAISED BY DEMOCRAT TIM PAPE: Earlier today, the Journal Gazette reported on the Allen County Election Board’s certifying ballots cast for Roy Buskirk. [1] In its reporting, the JG, like the News~Sentinel, is trying the frame the point of contention as to whether a dead person can remain a legitimate candidate. The irony here is that Democrats having a winning case for a Contestation that could easily result in a Special Election, but instead of going for the sure win---they are following a path that should really lead to a sure loss.
If we all blindly believe the point of contention is whether or not a dead person can remain a candidate on the ballot, here’s a harsh reality. Here in Indiana, a dead person can be a legitimate candidate until certain procedures. First, either the county election board has to unanimously vote to confirm that the candidate in question is deceased or, alternatively, the county voter registration office has to get certification from the county coroner’s office or county board of health as to the death of a candidate, cancel that persons voter registration card, and pursuant to a cancelled voter registration card, the person is no longer a candidate. Why? A person running for office has to first be a registered voter. (Note: This is one of the many topics I covered in an earlier post 2016 ALLEN COUNTY COUNCIL AT-LARGE ELECTION CONTESTATION HEATS UP – A TIMELINE OF EVENTS and all its supporting references. [2])
Understanding that the JG tends to be the mouthpiece for the Henry Administration, I want to “debunk” some of the claims ACEB is trying to promote by way of its Democratic representative, Tim Pape:
CLAIM #1: “…Under the state's election law, ‘I don't know any way around the outcome that the result that the death of Roy Buskirk four days before the election other than he cannot have been elected,’ Pape said. ‘A dead candidate is no longer a candidate after his death.’…” [1]
DEBUNKING CLAIM #1: Tim Pape is correct that generally a dead candidate is no longer a candidate after his death. But Pape really gets it wrong in this case. Folks, you need to understand that 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)[3] 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 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)” [4]
This begs the question as to why the Democratic-controlled Allen County Voter Registration office failed to cancel Buskirk’s voter registration card by or before November 8, 2016 (General Election Tuesday), which could have made him ineligible to run for office or receive any votes. But maybe we aren’t supposed to talk about that….???
Regarding Pape’s comment of “I don't know any way around the outcome that the result that the death of Roy Buskirk four days before the election other than he cannot have been elected.” – If statement is genuinely true, then Pape needs to voluntarily step down from serving on the ACEB. Why do I say that? Because all the counterpoints to his arguments are literally found within the manuals and guidebooks put out this year by the State of Indiana. All he and the other members of the ACEB had to do was read ‘em and apply ‘em.
PURPOSE OF CLAIM #1: In my opinion, Pape is game playing. He is trying to look pro-active as though he supports Democratic candidates, but the reality is that he only supports Henry candidates. Ironically, Galindo is a Henry candidate.
So what is Pape really doing? Again, in my opinion, he’s trying really hard to draw attention away from his own personal mistake of (1) not fighting hard enough on Monday, November 7th, 2016 in representing the best interests of the Allen County Democratic Party and (2) of either being so blatantly unknowledgeable or so incredibly arrogant as to not read the 2016 Indiana Election Administrators Manual on what should be done when a candidate dies while on the ballot. Had Pape read the manual, he would have known to publicize the fact that early voters could recast their ballots and he would have taken/should have taken steps to make sure that was just as well publicized as Roy’s passing. Pape failed to do so.
Pape also failed when he didn’t take actions to try to assist the Democratic-controlled Allen County Voter Registration get the appropriate paperwork they needed to cancel Roy Buskirk’s voter registration card and render him disqualified to be on the ballot by or before the November 8th, 2016 General Election. This means Pape failed the Dems not once, but TWICE! (And really, on behalf of all local Dems, ACDP Chair---THIS is the best guy to represent the needs of the Allen County Democrats on the Allen County Election Board???)
CLAIM #2: “…Pape said Allen County Republican Party Chairman Steve Shine under the law is authorized to fill the vacancy, but he did not do so. The consequence is that ‘the candidate who got the third-highest number of votes won,’ Pape said….” [1]
DEBUNKING CLAIM #2: I believe Pape is talking about a late candidate vacancy—which is one of the legal theories offered by ACDP Chair Jack Morris. According to Indiana Code 3-13-2-1: “Indiana Code § 3-13-2-1 provides: “This chapter [Late Candidate Vacancies] applies to the filling of a candidate vacancy that exists due to the: (1) death of a political party's candidate; (2) withdrawal of a candidate who has moved from the election district; (3) disqualification of a candidate under IC 3-8-1-5; or (4) issuance of a court order under IC 3-8-7-29(d); for nomination or election to an office at a general, municipal, or special election after the thirty-first day before a general, municipal, or special election.” [5]
For kicks and giggles, let’s assume that this is a legitimate legal theory. Personally, I don’t believe it is, but the Dems have two attorneys trying to promote this notion so let’s just go with it. The response of the ACGOP Chair has been that “it would have been impossible to replace [Buskirk’s] name on the ballot just a few days before the election.”[6] 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 replace Buskirk’s name on the ballot even if the ACGOP was able to come up with a replacement candidate. [7] 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 able transfer those votes to Buskirk’s successor. [8] But that doesn’t seem to be correct according to state law. [9]
But here’s the problem – Pape AGREED WITH HARDIN and Clerk of Court Lisa Borgmann when it came time to challenge having Buskirk’s name on the ballot. Pape just went with the flow. My guess is that everyone---Pape (and myself) included---believed that Roy Buskirk was again going to be the ACGOP’s top vote getter for the County Council At-Large race just as he had been the last few times out. And everyone guessed wrong.
Even though Pape agreed with Hardin and Borgmann, he failed in his duty as representing the best interest of the Allen County Democratic Party. Had Pape insisted that the media promote the fact that early voters could recast their ballots, then the argument that Palermo Galindo should be the third place finisher after the two Republicans in place of Roy Buskirk would hold water. But Pape failed to do that.
By failing to insist that people who early voted be allowed to know that they could recast their early vote ballots, Pape (and the rest of the ACEB) have created a situation now where we don’t really know who would have gotten which votes and in what amounts. And that unknown is a scary thing to both the ACGOP and the ACDP. For all we know, Democrat David Roach could be the top vote-getter? Literally, we are all assuming at this point as to who the top vote-getter was, the second top vote-getter, the third top vote-getter, etc.
PURPOSE OF CLAIM #2: Pape is juxtaposing two legal theories and morphing them together as one in attempt to make a stronger, more beneficial claim on behalf of the Democrats. The first legal theory is that the ACGOP had a duty and an opportunity to fill a late candidate vacancy. The second legal theory is that the ACGOP failed to fill a late candidate vacancy and that results in the highest vote-getting Democrat being certified as the third highest-voting, meaning Palermo Galindo is elected to County Council At-Large. It’s a common legal tactic and a favorite among attorneys who know they are on the losing side of a legal battle, but still need to appear proactive.
Now, I’m going to do something here that may seem a little out of character---I’m going to throw Tim Pape a bone. If Pape had known how ill Roy Buskirk was, I am confident that Pape would have been prepared to handle things differently. I’ve seen Pape in action and have worked behind-the-scenes in matters where he was opposing legal counsel. He’s one heck of a skilled litigation and to his credit---in all ways good and some ways not so good—this guy is as strategic and calculating as they come. When Pape is at the top of his game, he anticipates the moves of his opponents like few people I’ve seen. Yes, I’m sure Pape knew Roy Buskirk was ill. Buskirk released information as such.
But Buskirk was also really good about keeping the severity of his illness to himself. Sadly and regrettably, he had to. In the political arena, weakness---real or perceived---is often tantamount to bleeding in shark-filled waters. To the very end, Roy was protecting his constituents the best he could. In doing so, he didn’t share with very many the true extent of his illness until, as everyone now knows, it was too late.
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