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Friday, November 05, 2004

Indiana Law - Is the jury still out on District 46? Who is the jury?

This will be the Indiana Law Blog's 20th entry on the Indiana House District 46 election dispute. (To find the others, enter "District 46" in quotes in the search box.) In that race, the Republican candidate, Jeffrey Lee, withdrew and was replaced by current State Representative Brooks LaPlante, who earlier had decided not to run for re-election. Democrats challenged and several court rulings followed (available here and here), culminating in a Court of Appeals ruling "that LaPlante's name be on the ballot in place of Jeffrey Lee's. The court did not require that new absentee ballots with LaPlante's name on them be mailed out unless voters asked for them." (This quote is from an AP story summaried in this earlier ILB entry.) The AP story continued:

Although LaPlante's name will be on the ballot, the Court of Appeals has not ruled on the merits of the case. That means one or both parties could pursue further litigation after the election.

James Bopp Jr., an attorney for the state Republican Party, said he was pleased that LaPlante will be on the ballot Tuesday. But he said that at least 1,000 voters will end up being disenfranchised because they cast absentee ballots with Lee's name on them.

Bopp said that under the court orders and the law, absentee ballots checked as voting a straight Republican ticket would count for LaPlante, but split-ticket ballots in which Lee's name was specifically marked would not count for LaPlante.

Well, the election is over now, and LaPlante was defeated by over 700 votes. Will the Republicans appeal? That question was the subject of a story yesterday in the Terre Haute Tribune-Star by Howard Greninger. Some quotes:
By the final count, Democrat Vern Tincher won the Indiana House District 46 seat by 734 votes in a race that revolved around absentee ballots. Yet, it's those same absentee ballots that could become a basis for a Republican recount challenge by their candidate, Brooks LaPlante. The state GOP has until noon Tuesday to determine if it will request a recount. One option could be to ask the House of Representatives to conduct its own review.

If election finals hold statewide, Republicans would control the House 52 to 48.

"We are considering all the options and are analyzing how the count was conducted, particularly on the absentee ballots," said James Bopp Jr., attorney for the Indiana Republican Party. "We think there is some significant discrepancies in there and possibly some illegalities. "Once we are done, we will let everyone know what we are going to do," Bopp said.

Bopp said absentee ballots were the difference in the election. "The big problem was the delays and obstruction tactics of the Democrats meant many absentee voters were disenfranchised because they got a ballot with Lee's name on it, not LaPlante." Before a count of absentee ballots, Tincher led the race by 63 votes. After the absentee ballots were counted, Tincher had won by 734 votes. * * *

"If the Republican caucus wants to challenge my majority of 734 votes, they won a couple of seats by about 150 votes" in House districts 64 and 31, Tincher said. "So, if they use the same rules in counting, and I would expect consistency, then if they challenge me, I would assume the Democrat caucus would challenge those two seats that won by about 150 votes."

In addition, if there is a Republican challenge, the Indiana Democratic Party could ask the Indiana Court of Appeals or Supreme Court to continue a lawsuit the Democratic Party filed challenging LaPlante's eligibility on the ballot. Tincher said two trial courts issued rulings that Jeff Lee did not meet requirements of being physically removed from the district. "I think it is possible the Indiana Democratic Party could see favorable action in a higher court," Tincher said. * * *

Any dispute will revolve around absentee ballots. Here's how those numbers break down. Tincher won with 11,533 votes to 10,799 votes for LaPlante. In Vigo, Tincher received 5,224 votes, plus 717 absentee, while LaPlante received 4,890 votes plus 315 absentee. That gave Tincher a 5,941 total compared to 5,205 for LaPlante.

In Owen County, where 18 of 19 voting precincts rest in District 46, Tincher received 3,190 votes plus 572 absentee votes for a total 3,762. LaPlante received 3,184 votes plus 287 absentee for 3,471.

In Clay County, LaPlante got 1,596 votes plus 114 absentee- ballot votes for a total 1,710 votes. Tincher tallied 1,129 votes plus 99 absentee for 1,228 votes. In Monroe County, Tincher got 530 votes plus 72 absentee for 602 total votes. LaPlante got 359 votes plus 54 absentee for 413 total votes.

Re the "noon Tuesday" reference in the story above, according to IC 3-12-11-2:
Sec. 2. (a) A candidate who desires:
(1) a recount of votes cast for a nomination or election subject to this chapter; or
(2) to contest a nomination subject to this chapter or the election of a state office other than governor or lieutenant governor;
must file a verified petition with the election division not later than noon seven (7) days after election day.

(b) A state or county chairman who is entitled to and desires to file a petition for a recount or contest under this chapter must file a verified petition with the election division not later than noon ten (10) days after election day.

IC 3-12-11-21 provides in pertinent part that when a recount for a legislative office is complete, the secretary of state is required to deliver a certified statement of the results to :
* * * the presiding officer of the house in which the successful candidate is to be seated.

(c) The statement shall be referred by the presiding officer for such action as that house considers appropriate.
Although there has been talk about resolving the issue in the Court of Appeals where the case is on hold at present, as noted in this ILB entry from Nov. 1st, titled "District 46 and the separation of powers," Art. 4, Sec. 10 of the Constitution of the State of Indiana provides that "Each House, when assembled, shall * * * judge the elections, qualifications, and returns of its own members * * *." A knowledgeable reader writes:
[T]he issue of who is entitled to sit as a Representative can be raised only by a member of the House. Rep.-elect (apparently) Tincher will have a certificate of election in hand on November 16 and will be at least conditionally seated. If anyone challenges, its usually by a motion to appoint a committee to look into the matter. I think the procedure used to be that contested members would be asked to step aside and not take the oath. [Now, I believe,] contested members take the oath conditionally, subject to any determinations made by the House.
[More] Before the election, it was thought by many that control of the House of Representatives might rest upon which way the District 46 election went. However, even with the apparent loss of Distrct 46, the House returns show it now at 52-48 Republican, making, it would appear, resort to a court appeal or House seating fight less pressing.

Posted by Marcia Oddi on November 5, 2004 12:55 PM
Posted to Indiana Law