Contested seat brings electoral law to forefront

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By Bridgett Hernandez
bhernandez@kpcmedia.com

The general election took place a month ago, but it’s still unclear who will fill the third Allen County Council at-large seat.

Councilman Roy Buskirk was re-elected to his post Nov. 8, but due to his death Nov. 4, the local parties are in disagreement as to who should fill his shoes, resulting in a lawsuit to contest the election.

Voters had six candidates to choose from to fill three at-large county council seats. The Republicans and Democrats each had three candidates on the ballot, but the three Republican candidates received the most votes Nov. 8.

The day before the election, the Election Board met to discuss how the passing of incumbent candidate Buskirk would affect the election and counting of votes. According to the board’s minutes, the board received advice from Laura Maser, board legal counsel, who advised that because of the timing of death, the code does not require the board to remove the candidate’s name from the ballot or replace the candidate’s name with “deceased” or the name of a successor candidate. She further said that it was her understanding that if Buskirk won the election, they would certify the vote totals for the candidate as if he were not deceased and a replacement would be selected by caucus.

The late Buskirk came in third with 19.38 percent of the votes, and the Election Board approved those votes Nov. 21 in a 2-1 vote.

The Allen County Republican Party met Nov. 30, electing Justin Busch to fill Buskirk’s unexpired term.

Another caucus is planned to be held Dec. 8 to select an individual to fill the four-year county council at-large seat which begins in 2017.

“That is what the state law provides,” Party Chairman Steve Shine said. “The next person in line is not the winner. The winner is certified by the Allen County Election Board. On [Nov. 21], they certified one winner. If the person cannot serve, they are replaced with a candidate selected by the caucus of the winning party’s precinct men and women.”

Contested results

Democrat Palermo Galindo, who finished fourth in the race with 12.25 percent of the votes, disagreed. In his petition contesting the election, he alleges that Buskirk was ineligible to be a candidate by reason of the fact he died prior to the election and therefore ceased to be a candidate. He contends that Shine did not follow the procedure set forth in Indiana Code 3-13-2-5, which contains provisions for the filling of vacancies.

Shine asserts that 30,000 voters had cast their ballots by the time Buskirk passed away, so he was not in a position to replace him.

“There’s no specific Indiana case that deals with this, but there are Indiana cases that say that the election process is under way when early voting begins,” he said. “Once early voting begins, you can’t change names on the ballot.”

Timothy Pape, member of the Election Board appointed by the chairman of Allen County Democratic Party, voted against certifying votes for the late Buskirk. He said when a candidate dies so close to an election, it is called a “late vacancy,” at which time the candidate’s party’s chairman is allowed to fill the vacancy. He said that since Shine didn’t elect to fill the vacancy, Buskirk was not a valid candidate.

“If you die close enough to the election – too late to take some of those more involved procedures – they call it a late vacancy. It’s all under the election code. It’s there in black-and-white,” Pape said.

However, not everybody sees it that way. Two election experts at Indiana universities declined to comment as to their thoughts on how the state’s election code applies to this situation and were unable to immediately recall similar cases in the past.

Galindo requested that the courts order the prior certification by the Election Board of the election of Buskirk be rescinded; issue an order requiring the Election Board to issue a new certificate of election certifying Galindo as the third person elected to the position; and enter an order declaring Galindo as the person elected to the seat.

The Allen County Election Board, Robert Armstrong, Roy Buskirk, Eric Tippmann, Morrison Agen and David Roach are listed as defendants. The Allen County Republican Party also filed a request that the court allow the party to intervene in the lawsuit.

“The Republican Party has an interest in the outcome of the lawsuit but was not named as a defendant,” Shine said.