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Sunday, November 23, 2008
Ind. Decisions - Even more on: Another New twist on Terre Haute mayorial race dispute
Updating earlier ILB entries, the most recent being this one from Nov. 22nd, Thomas B. Langhorne of the Evansville Courier & Press reports today in a lengthy story headed "Election lawsuits examined":
The recent Indiana Court of Appeals ruling that inspired three lawsuits last week contesting Vanderburgh County election results flies against precedent and "may very well" be reversed by the Indiana Supreme Court, said a local attorney who has argued before the court.Here is the initial ILB entry on the Nov. 13th Court of Appeals decision In the case of Kevin D. Burke v. Duke Bennett.Cole Banks, an Evansville attorney and political science instructor at the University of Southern Indiana, said case law does not support the Court of Appeals' Nov. 13 finding that Terre Haute Mayor Duke Bennett was ineligible to run for that office in 2007.
In the 2-to-1 opinion, the appeals court decided Bennett was prohibited from seeking office under a federal law limiting the political activities of people whose jobs are funded at least in part by federal money.
Bennett was director of operations from 2005 until 2007 at the Hamilton Center, a not-for-profit community behavioral health services center that operates a federally funded Head Start program.
"I believe the Supreme Court will revisit all the issues involved (on appeal) and may very well reach a different conclusion," Banks said. "The ruling is contrary to prior case law. The basic principle that the courts operate on is, 'Wait a minute, these people have voted. There has to be a really good reason to throw out their votes.'"
Banks said state courts' traditional reluctance to overturn election results also should provide a stiff headwind against Republican County Commissioner Jeff Korb and the local GOP as they seek to reverse the election of Democrat Steve Melcher to Korb's seat and Ed Bassemier to an at-large County Council seat on the strength of similar claims.
In cases that Banks said will be watched by legal and political professionals across the state, Korb and the GOP separately seek hearings in Vanderburgh Circuit Court to declare Melcher and Bassemier disqualified from being candidates and ineligible to serve. * * *
The appeals court cited a 1958 Indiana Supreme Court case, Oviatt vs. Behme, in which a losing candidate unsuccessfully challenged the winner's eligibility to run.
In a lengthy explanation of that case, the appeals court repeatedly cited the Supreme Court's finding that voters' ballots should not be discounted unless it can be shown that they were aware of a candidate's ineligibility and willfully disregarded it.
Support for Banks' argument can be found in the dissent filed by Appeals Court Judge Edward W. Najam, who also argued that the court disregarded the Oviatt case and other case law.
"For almost 150 years, our Supreme Court has consistently held that a successful post-election challenge cannot be maintained on the grounds of the winning candidate's ineligibility unless the voters knew of that ineligibility and wasted their votes accordingly," Najam wrote.
Posted by Marcia Oddi on November 23, 2008 12:23 PM
Posted to Ind. App.Ct. Decisions