*1 PABEY, George Appellant/Cross- (Plaintiff below),
Appellee PASTRICK,
Robert A. and the Lake Regis Board of Elections and
tration, Appellees/Cross-Appellants , (Defendants below) Randolph, Santos,
Lonnie and A. (Defendants
Appellees
below).
No. 45S04-0401-CV-14.
Supreme Court of Indiana.
Aug. 2004.
Rehearing Aug. Denied *2 IN, Kotzan, Indianapolis, Na-
Bruce A. IN, Merrillville, Fer- Ruff, Carmen thaniel Hammond, IN, Ap- nandez, Attorneys for Pabey). (George pellant/Cross-Appellee Carter, Attorney General Steve Secrest, Indiana, Chief Coun- Gary Damon Barrow, sel, Webber, Doug Frances apparent U- efforts some to interfere with Choe, White, Jung Deputy Attor- Gordon proceedings. General, neys Attorneys for Amici Curai 8,227 Of the personally votes cast on *3 Indiana). (Attorney General day, Pabey received 199 more Jr., Babb, George Bryan T. Patton H. 1,950 votes than Pastrick. But of the ab- IN, Ringle, Indianapolis, Theresa M. At- ballots, sentee Pabey by Pastrick defeated
torneys Appellee/Cross-Appellant for votes, producing a 278-vote final vieto- (Robert Pastrick). A. ry for Pastrick. The trial court concluded Wieser, Schererville, IN, L. James At- Pabey proven had "that a deliberate (Lake torney Appellee/Cross-Appellant for series of actions "perverted occurred" that Registra- Board of Elections and voting process the absentee compro- and tion). mised integrity and results of that election." Judgment judge at 9. The found
DICKSON, Justice.
"direct, competent, and convincing evi-
Plaintiff/appellant George Pabey
ap-
dence that
pervasive fraud,
established the
from
pealing
judgment denying
relief
conduct,
illegal
and violations of elections
an election contest. We reverse.
"voluminous,
law"
proved
and
wide-
spread and insidious nature of the miscon-
primary
election for the Democratic
duct." Id. at 92.
mayor
nomination for the office of
of the
city
Indiana,
Chicago,
East
took place
Notwithstanding the overwhelming evi-
6,May
2008. The candidates were
misconduct, however,
dence of election
incumbent Robert Pastrick
challeng-
and
Judge King
regarding
was cautious
his
George Pabey
ers
and
Randolph.
Lonnie
authority to
special
order a
election under
The results of that election were:
circumstances.
He
noted
4,083
Pastrick
"Indiana election
provides
insight
law
little
3,805
Pabey
appropriate
into the
remedy
available
2,289
Randolph
proceeding.
authority
Case
on elec-
trial, Pabey
At
sought to
all
have
of the
tion contests
virtually]
guid-
no
or,
absentee ballots declared
invalid
ance for circumstances where widespread
alternative, to have the election invalidated
impacted
misconduct has
the absentee bal-
and a new election
Judgment
ordered.
lots
cast
an election." Id. at 95. The
(hereinaf-
Respondent Robert A. Pastrick
judge perceived that he was not authorized
"Judgment")
ter
at 99.
by statute to
order a
election be-
Following careful consideration of exten-
Pabey's
cause
only
evidence was
able to
testimony
contest,
sive
in this election
prove
invalidity
votes,
of 155 actual
Judge
King, regular judge
Steven
of the
and because this was 128 votes short of the
Superior
LaPorte
Court
appointed by
and
278-vote
separated Pabey
difference that
this Court
Special Judge
as
to conduct
Pastrick,
and
Judge King reluctantly con-
proceedings,
these
108-page
issued a
judg-
Pabey
cluded that
had failed to adequately
comprehensive
ment
included
findings
establish that
proven
deliberate series
of fact and conclusions of law that are most
'impossible'
actions "make it
to deter-
impressive.
express
profound
We
our
ap-
mine which candidate
received the
preciation and admiration to the special
number of votes."
judge
work,
for his
especially
excellent
given
compressed
time schedule
Perceiving
authority
his
as a
judge
the Election Contest
requires
constrained,
Statute
to be
Judge
thus
King never-
elections,
delegate
the conduct of
May,
from the
that "relief
noted
theless
agencies
executive
ministerial or
in the
results lies
primary
elections,
conducting
duty
Appeals
Indiana Court
province
by which elec-
procedure
prescribe
at 99.
Court."
Supreme
contested,
they
long as
may be
so
tions
Mississippi Su-
fact,
from the
quoted
he
powers,
their constitutional
stay
Hold-
within
Rogers
decision
preme Court's
law,
procedure conforms
and such
(Miss.1994),
fol-
as
er,
636 So.2d
gov-
will be
steps
procedure
such
lows:
prescribed.
legislative
rules
erned
significant
Disenfranchisement
power
pro-
inherent
But courts have
sufficient
may create
of voters
number
*4
and those who
sovereign people,
the
tect
to war-
results
as to the election
doubt
claiming
or
are candidates
election,
evi-
even absent
office
for
special
rant a
rights in an
title to or
of more
from fraud
fraud.
Invalidation
office
of
dence
....
(80%)
the total
of
thirty percent
unlawfulness
than
to re-
sufficient
generally
is
votes cast
Wildey, 197 N.E.
Nicely
rel.
State ex
However, even
election.
quire
(Ind.1935) (em
847,
1,
844,
Ind.
8-9
votes cast
total
percentage
where
added).
phasis
small,
attended
is
willful
fraud
if
appeal
sought
Pabey initiated
procedure,
election
violations of
to this Court under
emergency transfer
without
a new election
will order
Court
56(A).
Rule
Transfer
Appellate
Indiana
reservation.
jurisdiction
that
with the effect
was denied
(citations omitted, em-
at 98-99
Judgment
in the Court of
appeal remained
over the
Noting
Judgment).
phasis supplied
a motion to
Pastrick then filed
Appeals.
10,177
case
total votes
of the
19.2%
jurisdiction.
appeal for lack of
dismiss the
1,950
from
came
Chicago
East
4).
at
Pabey's
to Trans.
Pet.
(Appellant,
ballots,
invali-
7.9% were
of which
absentee
the dissent of
Appeals,
over
The Court
dated,
that the "Mis-
Judge King observed
Baker,
summarily
an order
Judge
issued
given the
appealing
sissippi approach
with
motion to dismiss
granting Pastrick's
here.
that occurred
rampant election abuse
and this
Pabey again sought,
prejudice.
... would
remedy
special election
The
Pabey v. Pas
transfer.
granted,
time we
certainty
interest
public's
serve the
-
1770562,
--,
trick,
2004 WL
N.E.2d
at issue."
of the election results
2004).
(Ind.
Jan.
2004 Ind. Lexis
at
that,
procedures
note
while
We
I
deter-
normally
legislative
matters for
are
not state its
Appeals
did
The Court
mination,
almost sev-
declared
this Court
appeal with
dismissing the
rationale for
ago:
enty years
However,
found neither of
we
prejudice.
clear, however,
that elections do
We are
mo-
in Pastrick's
grounds argued
the two
branch
"belong
political
not
persuasive
to have been
tion to dismiss
that term is meant
if
government,"
granted transfer.
and therefore
govern-
branch of
legislative
dismiss, Pastrick
sovereign
belong to the
ment. Elections
In his motion to
preparation
requesting
argued
of electors
qualifications
people.
evidentiary hearing
transeript of
concerning elections
of the
and other matters
by the other
introduced
and the exhibits
prescribed by the Constitution.
duty
present
in his
Pabey failed
machinery
parties,
up
Legislature
set
complete
required by
record as
appeal procedures."
Indiana
Id. at 588. The Court
9(F)(4).
appellate
noted that the
Appellate
rules
effect at
(Appellee
Rule
Pas-
Resp.
trick's Br. in
to Pet. to
Transfer
the time
an
required
appellant to transmit
3-4).
reason,
only
parts
those
of the record that are
For that
he asked that
or,
minimum,
at a
appeal be dismissed
necessary for review of the
issues
Pabey
a transeript
be ordered
cause
upon appeal.
asserted
Id. at 588. This
hearing
prepared along
to be
with the Court
appeal,
addressed the merits of the
all parties.
exhibits of
though
even
no transcript had been filed
record,
part
as
of the
where the appellants
9(F)(4)
Appellate
Rule
in rele-
accepted
findings
court's
of fact
part:
vant
argued
findings
those
did not
Appeal
designate
The Notice of
shall
support the trial
judgment.
court's
Id. at
portions
Transeript necessary
all
588-89.
present fairly
and decide the issues
on
If
appeal.
appellant
intends to
9(F)(4)
if Appellate
Even
Rule
required
urge
appeal
that a finding of fact or Pabey to submit a transcript, dismissal
unsupported by
conclusion thereon is
*5
prejudice
with
was not
appropriate
contrary
the evidence or is
to the evi-
remedy
noncompliance
for his
with the
dence,
Appeal
the Notice of
shall re-
7.2(C)
rule.
Appellate
Former
Rule
set
a
quest
Transcript of all the evidence.
procedure
out the
for modification or cor-
Pabey did
request
not
the court
appellate
rection of an
proceed-
record of
reporter prepare
transeript
a
of the evi-
ings,
that,
providing specifically
"[iIncom-
dentiary hearing.
In defense of his deci- pleteness
inadequacy
of the record shall
sion not to request
transcript
of the
not
a ground
constitute
for dismissal of the
evidentiary hearing, Pabey stated that no appeal
preclude
review on the merits."
transcript
necessary
was
because he "does
State,
Bon-Yisrayl
See
v.
1143
forward, brought
moving
the case
gent
court lacked
that the trial
premise
trick's
twenty-
exception
under an
this case
jurisdiction.
ex. rel.
deadline discussed
State
day
contest,
in an election
It
is true
Court, 271 Ind.
v. Lake Circuit
Arredondo
twenty
fix a date within
court shall
"[the
(1979).
Arredondo,
176,
391 N.E.2d
(20)
day fixed
after the return
days
hearing
on an election
the trial court set
hearing
for
notice to the Contestee
within, but near
for a date
petition
contest
It
has
3-12-8-16.
a contest."
of,
twenty-day period allowed
the end
comply
the failure to
held that
also been
statute; yet
timely hearing
could
for
con
of the election
requirements
with
contestor's motion
held because the
not be
dismissal.
generally requires
test statutes
(filed
days
ten
before
change
judge
See,
Dickey, 128 Ind.
e.g., English v.
deadline)
and the
hearing
granted
elec
(right
to contest
N.E. 495
in time to con
judge
qualify
did not
new
contestor, without as
tion forfeited where
statutory period.
hearing
duct a
within
therefor,
and ob
requested
reason
signing
177-78,
N.E.2d at 598-99.
271 Ind. at
hearing
to date
postponement
tained
objected
judge
to the new
The contestee
hearing);
statutory deadline for
outside
beyond
case
to hear the
proceeding
(Ind.App.
King,
and thus failed to
Dickey to a
[English
]
To extend
*6
court).
trial
at bar
such as the one
fact situation
would,
grossly inequi-
opinion,
our
case, however,
a
Pastrick filed
In this
great
upon
burden
place
and
a
table
July
court on
dismiss
the trial
motion to
and the
an election contestor
both
3,
the trial court
argued
2003. He
initially be set
hearing might
A
court.
statutory
the
jurisdiction because
lost
statutory time limit.
near the end
July 2.
hearing was
On
deadline for the
If, then,
deliberate-
trial court either
the
15,
motion
denied Pastrick's
July
the court
hearing beyond the
the
ly re-schedules
delays in
The court noted
to dismiss.
because of
limit or is forced to do so
judge
to hear the case
securing
beyond its
extraordinary cireumstances
judge who
special
out that
the
pointed
control,
faultless contestor
diligent
appointed
ultimately tried the case was
statutory
his
forever be denied
would
Moreover,
until June 80.
by this Court
provide
must
a de-
remedy. Our laws
special
explained
given
the court
account for such
flexibility
of
gree
courtroom,
obligations in his own
judge's
justification
no
There can be
situations.
through
fully scheduled
had been
which
to a bona
judicial doors
closing
judge's distance
special
September,
the circumstances
litigant
fide
when
arose,
this case
the court
which
from
beyond
completely
causing
delay
to be contin-
many cases that had
and the
his control.
hear
judge could
that the
ued so
case,
heard as
election contest was
178-79,
N.E.2d at 599.
271 Ind.
practicable.
as
soon
there are
that when
concluded
This Court
cireumstances"
"extraordinary or unusual
that these circum-
trial court ruled
being
from
hearing
preclude a contest
compelling that
stances,
lack of
and the
twenty-day
statutory
conducted within
Pabey
less than dili-
indication
court,
not automati
period, "the trial court will
elections law" identified
the trial
jurisdiction
cally
long
be divested of
so
as
92,
Judgment at
are sufficient as a matter
practicable
had as soon as
hearing
is
requisite
law establish the
"deliberate
after the time limit."
II deliberate in- [Those] series of actions Pabey argues that pervasive "the cluded but are not limited to the follow- fraud, conduct, illegal and violations of ing: (8) § polls open;
1. Indiana Code 3-11-10-24 that a that the a voter who is any following voter who satisfies of the is eligible § to vote under Ind.Code 3-10-11 (1) by entitled to vote [relating persons mail: a voter who will to who have moved not county day; be absent from the on election days prior more than 30 to the election] or (2) pre- a voter who will be absent from the [relating persons 3-10-12 to who day cinct of the voter's residence on election change precinct residence from. a to another statutorily-pre- because of service in certain precinet notify county regis- do not voter (3) day positions; scribed election worker a change tration office of the of address before day voter who will be confined on election to day]. residence, facility, the voter's ato health care important The trial court made a most hospital injury; or to because of an illness or point distinguishing in its be- (4) disabilities; (5) elderly a voter with an voter; statutory requirements voting tween the (6) for prevented a voter who is from by voting per- absentee mail and voting absentee in due to the voter's care of an individual private son before an absentee voter board: confined to a residence because of (7) emphasized injury; ... illness or a voter who It without rea- is scheduled son, any registered person's regular place qualified to work at the of em- voter prior day cast an absentee ballot to election ployment during the entire twelve hours £) a) possession completed by pattern exercised predatory by supporters signed ballots Pastrick inducing voters supporters Pastrick by law to have who were not authorized otherwise first-time voters or that were . possession; lacking knowledge such informed or less infirm, poor, completion of substan- process, g) the routine voting applica- En- of absentee ballot portions in the tive with limited skills and those by supporters Pastrick to which tions engage to absentee glish language, simply signature; affixed their applicants voting; h) representa- routine use of false b) actions of Pastrick the numerous tions-usually ap- the indication that the providing compensation supporters from "expected" to be absent plicant creating expectation of com- and/or 6,May 2008-by Lake those voters to cast their pensation to induce who out the supporters Pastrick filled process. Those via the absentee ballot portions applications substantive exelusively- primarily-but actions supporters votes solicited Pastrick money to voters payment involved the complete absentee to vote absentee to on Elec- present polls outside the applications; ballot pre- Day. The extensive evidence tion i) City by employees votes cast that, thir- established at the least sented simply did not Chicago of East who ... fell ty-nine separate individuals Chicago; in East reside activities that within the ambit of those zealotry vot- J) promote absentee encourage engaged cash incentives personal ing that was motivated voting; absentee supporters financial interests of Pastrick c) sup- the actions of various Pastrick and, city employees. in particular, applicants directed for ab- porters who Judg- (emphasis supplied at 9-11 that Pastrick sentee ballots to contact added). ment) (footnote received supporter applicant when the of deliberate actions set series [Tlhe and, once or her ballot absent[ee] his (a) (J) through items ] forth in above [the and, called, proceed to their home concerning implicate various state laws so, not authorized law to do though detailing vari- ballots [therein absentee bal- completing the voter in "assist" implicat- criminal laws ous election and lot; ed, violations constitut- including various d) of vacant lots or former the use ing D felonies]. class applications of voters on residences 11-14. Id. at 2; ballots absentee *8 for those en- practice common It was voter
e) in the Pastrick absentee gaged of unmarked absen- possession completed absentee efforts to deliver by supporters and tee ballots Pastrick they acquired applications delivery of to absentee ballot those ballots headquarters. campaign Pastrick voters; to cast an eligible voter who wishes board. 2. An person before an absentee voter in "Applica- by mail submits an absentee ballot I.C. 3-11-10-26. pre- a form Absentee Ballot" on observed, tion for uti- Judgment at 8-9. As the court by Election Commission scribed the Indiana might well have lization of this alternative Board County Board. The to the Election and eliminate much of the mischief "served to with an absentee bal- provides the voter then Id. at 9. fraud at issue" in this matter. Judgment at lot. 7-8. There, applications toring voting by the absentee ballot Pastrick supporters photocopied. were Thereafter the Pas- subsequent possession and the of ballots original com- campaign trick caused by those malefactors are common here- pleted applications to be delivered to the illegalities in. Those came with a side County offices of the Lake Election naive, predation order of which the Point, Board in Indiana. Crown neophytes, needy the infirm and the subjected were to the unserupulous elec- Id. at 15. extensively tion tactics so discussed. campaign Rooted in the Pastrick and its weekly meetings exhortations with at Id. 89. party precinet Democrat officials and apparent political that a subeul- [It city department 'encourage' heads to ab- ture exists in Lake which views voting, sentee Pastrick confederates political machinations at issue with a throughout City Chicago of East "wink and a smile" and "business as to four month period preced- three usual." 6, 2008, ing May engaged citizens Id. at 91. voting process. absentee That absentee The routine and cavalier use of "absence played
voter drive as out in the testimo- County" from Lake day, on election ny presented included eriminal conduct often supplied reason and checked but, supporters just Pastrick as of- supporter the Pastrick op- himself [as ten, unwitting engage induced citizens to posed registered voter] in criminal conduct or violate election applications, absentee ballot is the com- laws. predicate mon to the most insidious and widespread of exposed the abuse tactics [The commission of eriminal acts predatory approach here: the to the un- supporters Pastrick included such witting. activity possession as their unauthorized (bracketed Id. at Judg- comments in of completed species ballots of vote [a ment). appellate briefs filed on behalf 3-14-2-16(4) fraud defined Ind.Code challenge of Pastrick do not dispute any (5) ], and possession unauthorized findings. of these unmarked species [a ballots of "vote 3-14-2-16(6) ], per fraud" The trial court cognizant was also presence their while voters marked by Pabey difficulties faced in discovering completed spe- their absentee ballots [a presenting support evidence to his per cies of 'vote fraud' Ind.Code 3-14-2- claims. 16(8) and a violation of Indiana Code 3- voluminous, Given the widespread and 11-10-1.51, and the direct solicitation of prov- insidious nature of the misconduct yielded a vote for cash all absentee votes en, together with the sheer number of respondent
which concedes are Pastrick misconduct, impacted by pe- voters invalid. counsel, Pabey, titioner legal his (bracketed Id. at 84-85 comments and em- investigators amateur faced a herculean phasis original). locating interviewing task of absen- *9 voters, Chicago mayoral
The East Democrat visiting multi-family tee dwell- primary may example ings housing projects, be "textbook" gathering and chicanery the that can combing through attend the absen- voluminous election documents, tee vote mail: in- examples cast and analyzing, comparing, supervision sifting stances where the and moni- and assembling the information provides their case.... Election Contest Statute necessary present to short, govern the time constraints court shall determine the issues "[the contests, designed petition to raised the and answer to the primarily and needs of important 8-12-8-17(b). interests serve § As petition." Ind.Code public interest officials and us, relevant to the issue before both see- statute, finality, simply prescribes not work well tion which do may is of grounds upon elections where misconduct which an election be those variety and multi-faceted contested, the dimension designates and section which required petition here. content of a to con- present election, substantially test an contain simi- on the "relue- Commenting at 92-93. language specifying lar that an election candidly to discuss tance voters [of] following contested surrounding their absentee cireumstances grounds: vote," wholly "It is judge observed: (1) ineligible. The contestee was course, natural, of that voters would be (2) A printing mistake occurred potential to themselves to expose reluctant or distribution of ballots used Id. at 93. The liability...." criminal impossible election that makes it to de- that, in course of the judge also noted termine candidate received the which trial, in supporters several Pastrick were highest of votes. number attempts in various to influence volved . (3) testimony, at prevent witnesses' pro- id. A occurred in the mistake voting machine or an gramming of "feign a including instructing a witness to - system;, making it im- voting electronic knowledge lack of on the witness stand." Id. at 873 the candidate who possible to determine highest of votes. received the number Indiana law two methods voting A machine or an electronic examine the results of elections: an elec- malfunctioned, system making it voting an election "contest." tion "recount" and impossible to determine the candidate (recount) §§ seq. 3-12-6-1 et See Ind.Code highest received the number of who | (contest). seq. Pabey and 3-12-8-1 et votes. originally challenged pri- the results of the (5) A act or series of ac- deliberate mary under both of these statutes. How- making impossible tions occurred ever, request subsequently dropped he his determine the candidate who received petition for a recount and his recount was number of votes cast in the (Br. prejudice. Appel- with dismissed election. 2). lee, such, Pastrick at As what is at 8-12-82; § see also proceeding solely in this an elec- Ind.Code issue § 3-12-8-6(a)(8). tion "contest" under Indiana Code 3-12- Pabey contested the re- Chicago mayoral primary of the East seq. 8-1 et We will refer to the election sults chapter (5), contest of the Indiana Code as the is, that a pursuant subsection of actions had occurred "Election Contest deliberate series Statute." judgment, "appropriate action'" with At conclusion of the final court had taken County judge reported- court noted that it had referred to Lake respect who to a Lake Carter details re- Prosecutor Bernard ly indicating prospective witnesses specific garding several Pastrick conduct of testify they they had did not have to unless supporters who had threatened other- and/or paid $20.00 been witness fee. testimony attempted of wit- wise to influence 101-103. case, in this and further noted that the nesses *10 1148 (Ind.2002). 255, as to determine the N.E.2d 257 We must impossible
that made it in a language employed candidate had received who sume to primary, cast intentionally. number of votes was used Burks v. statute (Ind.1981). refer hereafter as the "De- 887, which we will Bolerjack, 427 N.E.2d 890 ground. liberate Actions" presume legislature "will that the did We provision." not enact useless Robinson statutory language in the Deliberate (Ind. Wroblewski, 467, v. 704 N.E.2d 475 presents various difficul- ground Actions 1998). statute, interpreting In we must susceptible It is not interpretation. ties in practical application, to it a to "give seek interpretation application. to literal and absurdity, prevent construe it so as to acts example, phrase For "deliberate injustice, hardship, public or and to favor actions" unclear or series of is because State, convenience." Baker v. 483 N.E.2d mean interpreted could be conscious 772, addition, (Ind.Ct.App.1985). T4 decid In When phrase human behavior. literally "number of votes cast" includes statutory ing questions interpretation, of legal illegal Finally, appellate and courts need not defer to a trial both votes. application methodology pre- interpretation intended court's the statute's phrase "impossible meaning. Trucking, scribed to deter- Himer Buchta Inc. v. text, (Ind.2001). 939, not from the apparent Stanley, mine" is 744 N.E.2d 942 appellate has never construed been addition, long this Court has held courts of Indiana. Because of these ambi- providing contesting that statutes elec judicial required. construction is guities, liberally tions "should be construed or people der the will the choice this Court has the While inherent public officers not defeated be protect voters and power to candidates any merely objections." formal or technical unlawfulness, from election fraud 99, 103, Tombaugh Grogg, v. 146 Ind. 44 847, Nicely Wildey, v. 197 at N.E. 994, (1896); legislature "may up machinery set for the Hadley N.E. 995 see also v. (1877). 302, id., Gutridge, elections," 58 Ind. 309 prefer conduct of and we authority con- exercise our within the statutory The trial court noted that the of the Indiana Election straints Contest "deliberate act or series of actions" lan- Statute. guage require does not the conduct to be a fraud," act, species of "vote a criminal process statutory con proscribed by otherwise law. guided by well-recognized struction is legislature 83. The cannot have intended objective principles. statutory "Our "act or series of actions" can construction is to determine and effect the course, trigger a special election. Of legislature." intent of the Matter Law every campaign conduct of will rance, (Ind.1991). 32, N.E.2d do 38 We an involve "act or series of actions" statutory language presume "is candidates, political parties, and election meaningless pur and without a definite alone, Standing phrase officials alike. give rather effect "to pose" but seek "act or series of actions" is ineffectual. Cook, every v. word and clause." Combs that, 397, requires sup- The statute further 238 Ind. 151 N.E.2d port justify an election contest and to (1958). every possible, "Where word must election, the act or actions must be given meaning, part effect and no - 3-12-8-2(5), §§ if meaningless to be held it can be recon "deliberate." 6(a)(8)(E). ciled with the rest of the statute." Hall context, in this the noun Used Inc., Ins, City Wayne, Drive Fort means "[clonsidered "deliberate" *11 "votes," full in advance with a awareness planned as used in the the word votes," involved; number.of phrase "highest means premeditated" everything legal votes. purpose; intentional." or said "[dJlone Dictionary, Second Heritage American challenging most issue re- The last and (1982) But such a Edition at 378. College ground Acts is the lating to Deliberate to the apply would likewise qualification methodology intended application lawful activities of ordinary purposeful but "impossible to determine." phrase in the elec- political parties candidates judge focused on individual bal- understood, the phase Thus process. tion Pabey proved lots determine whether pur- would lack definite standing alone certainty a mathematical that there existed meaningless, contrary pose and would be equaled a number of invalid votes cast that statutory noted to the rules of construction victory. margin or exceeded Pastrick's above. recognizing appeal granting While petitioner, given "some form of relief to further statutory language adds one direct, competent, convincing evi- requires however. It qualification, fraud, pervasive dence that established the acts or series of actions the deliberate conduct, and violations of elections illegal impossible it "making must result law," the trial court be- received the determine the candidate who . Heved: in the highest number of votes cast elec- - engage spec- court is not free to 3-12-8-2(5), [A] §§ tion." ulation as to whether the will of the 6(a)(8)(E). Interpreting phrase "delib- impose has served or to electorate been of actions" so as to have erate act or series . subjective its determination as intended, we purpose meaning "impossible" whether it is to determine requires that it the acts or series conclude candidate received the most votes which actions to be deliberate in the sense of Objective in an election. factors estab- in that the actor or actors being purposeful guide lished the evidence must reasonably should have known knew determination. impossi- would "make it that such conduct receiving ble" to determine the candidate The trial (emphasis original). Id. at 97 the most votes. court declared 155 votes to be invalid but invalid votes were concluded "that those phrase to the "votes cast the elec-
As of deliberate actions the result of a series statute, meaning plain tion" used in the impossible make it to deter- that do not meant to legislature demonstrates that the the candidates" received the mine which of actually cast ground restrict to votes at 101. This construction most votes. potential and not to include votes and incorrect. is restrictive However, by actually not cast. were unnecessarily elec- "votes," gTbunds The last four legislature could word from section 2 and sub- illegally quoted tion above have meant it to include votes impose meaning 6(a)(8) of the Election Contest such a would section cast. To "making impos- each contain the purpose ineffectual the of the stat- Statute render four, clearly qualification. Of these century ago, More than a this Court sible" ute. one, Actions the last the Deliberate gravamen that the "true recognized nature conduct case, ground ground, specifying of con- whatever be the behavior, is in stark contrast test, legal purposeful 'the number of three, encompass inad- which first Weadon, Dobyns v. 50 Ind. votes." malfune- human error or device omitted). vertent (emphasis We hold *12 impossible would make it significant. distinction is the conduct tion. This resulting consequences receiving of to determine the candidate the occurrence and distribution, programming or printing, votes, con- most valid but which deliberate of an malfunctions, duct does not affect the outcome mistakes, machine/system or grounds three prior referred to the election, with the would be inconsistent likely to with relative ob- be ascertainable language impossible "makes to deter- Jectivity. high- mine the candidate who received cannot a est number of votes" and thus be contrast, of de- disruptive In effects ground requiring special valid a election. committed with the ex- liberate conduct language are convinced that this We press purpose obscuring the election require intended to that the results of an legal likely cast is outcome based votes under election contested Deliberate results diffi- to be more invidious and its ground may Actions not set aside and a be quantify. cult to ascertain and Schemes special election ordered unless the deliber- discourage proper and confi- seek to ate acts or series actions succeed voting or that endeavor to intro- dential substantially undermining reliability illegal votes into the duce unintended the election and trustworthiness its inevitably produce outcome outcome will outcome. defy precise quantification. distortions that Furthermore, grounds of mistake and therefore hold that the burden We distinguished by malfunction are the ab- upon challenger seeking special a a elec sence of deliberate human efforts to ground tion under the Deliberate Actions results, gener- and are thwart true 2(5) 6(a)(8)(E) in subsections and by ally not obscured the material wit- conclusively Election Contest statute is to nesses' self-interest desire avoid (a) demonstrate the occurrence of an act criminal self-incrimination. With its en- persons or series of actions one or more ground of the Deliberate Actions actment reasonably who knew or should have Statute, legis- the Election Contest conduct make it such would expressly provide lature intended to known impossible to determine which candidate remedy merely of a election not legal receives the most votes cast in the malfunctions, inadvertent mistakes and but (b) election, and the deliberate act or ser construing also for deliberate conduct. pro ies of actions so infected the election subsections, language of these we must profoundly integ cess as to undermine the interpret apply and them such manner rity of the election and the trustworthiness as to achieve the effect intended. As to A special of its outcome.4 election should legisla- ground, the Deliberate Actions only in exceptional be ordered rare and reasonably ture could not have intended to cases. obviously corrupt immunize elections resulting
where the distortion of an elec- methodology applies only This precisely tion outcome could not traced "deliberate acts or series of actions" in mathematically determined. 2(5) 6(a)(8)(E), subsections but not to hand, phrase On the other the mere occurrence the same as used based on mis- persons of conduct one or more who takes and malfunctions stated reasonably 2(2)-(4) knew or should have known grounds forth in set subsections subsections, margin victory, but 4. Under these a contestor need the contestee's such prove certainty proof course be to warrant to mathematical that the would of sufficient equaled or exceeded relief. number of invalid votes actual comparison impact with the of such 6(a2)(8)(B)-(D). methodology uti- here, efforts. requiring court lized the trial of result-
mathematically sufficient number findings The trial court abound with in- demonstrated, to be ing invalid ballots concerted, purposeful stances efforts proceeding to a under subsec- appropriate predatory pattern as "a exercised such 2(2)-(4) 6(a@)(8)(B)-(D) of tions *13 9; supporters," Judgment Pastrick at Election Contest Statute. "weekly meetings," at exhortations id. case, 84; trial and "direct solicitation of a vote for present undisputed In of a findings cash," court establish the occurrence (emphasis Judgment). id. at 85 "perverted judge, actions that As found the trial the deliberate deliberate series of of voting process compro- campaign "compro- series actions the absentee integrity of that mised the and the results" of the integrity mised the and results magnitude, perva- at 9. The court found election. 9. The election." siveness, naive, subjected widespread "the effect of the de- that this scheme needy" infirm series of actions found in this case neophytes, the and the liberate one conclusion. The leads but Pastrick tactics," "unserupulous election id. at certainly consciously in- "convincing campaign there was evidence knew fraud, their pervasive illegal con- tended that the results of conduct established inject opposing would so inhibit votes and id., duct, law," of elections and violations "voluminous, profoundly invalid favorable votes as to and that the misconduct was integrity Id. at 92. undermine the of the election and widespread and insidious." the trustworthiness of its outcome. And here an election is character- When as objective clearly this achieved. Given by widespread pat- a and pervasive ized of exceptional facts and circumstances tern of deliberate conduct calculated to case, any this other is inconceiv- conclusion ballots, deceptive cast unlawful and able. inherently deceptive results are factual find Widespread corruption of view of the uncontested and unreliable. court, ings a of the trial we conclude that high probability pro- this nature has Pabey has established that a deliberate ducing improper untold votes and unrelia- making impos intimi- occurred it by coercing ble election results series actions disregard of their to determine the candidate who re dating citizens vote sible legal ceived the votes preferences manipulating own number they other- cast in the election and that the court voting them into when would Pabey's request for a denying at all. The effectiveness and erred wise not vote remedy special election.5 While will inherently of such a scheme is breadth rarely and appropriate only for be under quantify. opportunities difficult to circumstances, it is com impro- egregious most positive proof individual ballot this case. inevitably relatively pelled by be few in the facts of priecties will occurred," 3-12-8-17(e) Ind.Code specifies a act or series of actions 5. Indiana Code added), 3-12-8-6(c) (emphasis special § special election ordered in an election contest precincts "'shall be conducted in the identified generally ordered without where, here, petition in which the court determines specific precincts in the limitation to as petition alleges that acts and series of act or of actions "the that ... the deliberate series every ... in each and one" requires actions occurred occurred." Because statute (33) precincts City "identify thirty-three in the petition election contest to of the for an Appendix at Chicago. Appellant's precinct or location in which the East each other III voting A machine or an electronic voting system malfunctioned. if the ac- Pastrick contends even oc- by the trial court to have tions found omission, 3-12-8-17. to determine the impossible curred make it (d) argues, Pastrick from subsections highest num- candidate who received the (e), mention of "deliberate act or election, special of votes cast in the ber impossible ... making series of actions remedy. permissible not a He election is to determine which candidate received the remedy section Elec- points highest number of votes" indicates that the provides: tion Recount Statute which Legislature not intend that a did remedy election be a under such cireum- (a) A shall be heard and de- contest stances. jury by the court without termined Trial
subject to the Indiana Rules of *14 analysis point requires Our on this a Procedure. legislative history of of review the the
(b) court determine the is- The shall Election Contest Statute and decisions of by petition and answer sues raised Appeals interpreting the Indiana of Court petition. it. The modern form of the Election Con- to the in It au- test Statute was enacted 1986. (c) hearing determining After a eligible parties thorized to contest elec- alleging that a candidate is ineli- petition (1) grounds irregularity tions on of or gible, the court shall declare as elected (2) officials, by ineligi- misconduct election qualified or nominated the candidate (8) candidate, bility or of a "[mlistake highest who 'received the number of fraud the official count of the votes." judgment accordingly. votes and render (1986 3-12-8-2, §§ Supp.). Ind.Code -6 (d) If the court finds that: provide special The Statute did not a elec- (1) printing A mistake in the or distri- remedy. § tion as See Ind.Code 3-12- ballots; bution (1986 1988, Supp.). In the first and 8-17 (2) programming A mistake of grounds third of those were deleted such voting voting machine or an electronic ap- that the Election Contest Statute system; or only parently available to contest elections (3) A voting malfunction of a machine grounds ineligibility on of the candi- voting system; anor electronic 10, 158, §§ date. 1988 Pub.L. The 155. it impossible makes to determine remedy unchanged. section remained See highest which candidate received the (1988). § Ind.Code 3-12-8-17 votes, number of the court shall order the Statute was amended authorize eli- un- special that a election be conducted on gible parties also contest elections der 1C 3-10-8. grounds that "a mistake occurred (e) special election shall be con- or printing [making] distribution of ballots precinets ducted in the identified in the impossible it to determine which candidate petition in which the court determines highest received the number votes." that: 12, 13; §§ Pub.L. Indiana 1989 Code (1) containing printing Ballots (1989 3-12-8-2, § Supp.). -6 The 1989 mistake or distributed mistake were amendments also added a election cast; remedy only for the first time but mistakenly printed where the or precinets pro- A in the mistake occurred Id., 14; § gramming voting of a machine or an distributed ballots were cast. voting system; (1989 electronic Supp.). 3-12-8-17 upon history, grounds Based we the elimination of Despite misconduct election irregularity eligible parties conclude that are author in the official mistake or fraud officials and grounds ized to contest elections on count, primary candidate an unsuccessful misconduct under the Election intentional to file an sought election primary in a 1991 and that court has Contest Statute those contest on bases. election authority that a special to order that, notwithstand Appeals held Court it be conducted where finds the occur a candi legislative changes, ing the 1989 act ac rence of a deliberate or series of challenge an election based date could impossible it tions makes determine the Election Statute. fraud under Contest candidate num which received (Ind. Barnes, Hatcher v. 597 N.E.2d ber of votes. that "fraud of It reasoned Ct.App.1992). law, if one all kinds is abhorrent IV injury through the fraud of person sustains Election Board The Lake another, jurisdiction to afford courts have challenges trial court's appeal cross remedy" for fraud. proper not know determination certain votes The court also stated that did took fraud out of the why legislature primary absentee ballots cast statute, they invalid had been cast indi- it was because contest but *15 not by Legislature] that did applied viduals "who to vote absentee [the "convinced precluding intention of do so with representation made a mail and false public from office from a reme candidates concern- County the Lake Election Board Id. at 977. dy if fraud indeed occurred." they were entitled to vote in ing the reason 308, King, 585 N.E.2d See also Kraft that manner." at 87. There (Sullivan, J., dissent (Ind.Ct.App.1992) category. that fall into are 55 ballots this ing). County The Lake Election Board contests the last word on the that not Hatcher was sub- the conclusion these votes should was ject until 1999 when the Statute be counted. eligible in to authorize places amended two 2, supra, in footnotes 1 and We noted grounds also to contest elections on
parties applicable of law provisions several of the of actions that deliberate act or series "[a] § claim. Indiana Code 3-11-10-24 to this making impossible to deter- occurred that a voter who satisfies certain provides high- mine the candidate who received is entitled to vote specified conditions in est number of votes cast the election" are the fol- Among mail. these conditions grounds specify and to this as one that the voter will be "absent from lowing: to con- petition be included day; . county on election absent 100; 176, § test an election. Pub.L. residence precinet from the voter's (1999 3-12-8-2, § In Supp.). -6 day in cer- on election because service 2004, after this case had reached day statutorily-prescribed tain election Court, appar- an legislature corrected day positions; worker confined on election amending ently inadvertent omission residence, care voter's to a health to the 17(d) of the Stat- section Election Contest hospital to a because of an facility, or 2(5) ute to conform with subsections and voter; elderly injury; ... an [is] illness or 6(a)(8)(E) adopted which had been [(or] per- at the expressly provide ... is scheduled to work during place employment regular son's in such circumstances. could be ordered 2004 Pub.L. polls hours that the entire twelve falling opinion, notwithstanding provisions A into one or of this voter open." categories contrary Appellate who wishes to the in Indiana Rule more of these 54(B). by mail an cast an absentee ballot submits Ballot" on a for Absentee
"Application SHEPARD, C.J., RUCKER, J. by the Indiana Election prescribed form concur. County Election Board. Commission the voter an The Board then with J., BOEHM, separate dissents with ballot., absentee SULLIVAN, J., opinion in which concurs. County argues Board Election BOEHM, J., dissenting. invalidating
the trial court erred 55 instances where votes each these view, my I respectfully dissent. subject simply voter indicated on the controlling question is not whether election Application ABS-1 Form of Absentee trial court law violations occurred. The be absent from Ballot that he she would did, they finding plain- found Day, serving County on Election thus ly But the supported the evidence. Mail, when, Voting as a basis for corrup- central issue here is whether the fact, actually absent the individual was tion was the cause of the election result. Day. from the on Election if presence corruption, even "wide- upset no an spread," is basis above, in Part II our ulti- As discussed nullify the votes of the electorate if a mate resolution of this case does not rest majority supported of untainted votes comparison on the mathematical of votes winning majority opin- candidate. As the victory final invalidated to Pastrick's mar- detail, spells ion out in some the trial court Instead, gin. it rests on the trial court's violations, they found election law unchallenged findings and conclusions of *16 were not limited to a few isolated instanc- widespread and deliberate con- pervasive es. But the standard set forth Indiana "perverted duct that the absentee voting an it that it process compromised integrity overturning the law for election is "impossible of that election." is to determine the candidate results of highest 92. The total number absentee votes who received the number of votes." (1999). by § invalidated the trial court is not deter- trial 312-82 conclusion is not altered court, majority, minative. Our like "the read whether the number of invalidated absen- to mean legitimate number votes" votes. tee is 155 as found the trial court, ballots despite portions The trial of the court, 100, urged by as the Lake Coun- judgment quoted by majority, found ty Election Board. carry that to plaintiffs failed their bur- that. establishing den of
Conclusion
finding,
The trial court's
like
fact
We reverse the trial court's determina-
determination,
only
clearly
is reversible
if
special
election
denying
tion
and remand
Quandt,
Infinity
erroneous.
Prods. v.
810
to the trial court with directions
to
(Ind.2004)
(quoting
N.E.2d
1031-32
promptly
order a
issu-
ing
pursuant
Bussing
Dept.
Transp.,
a writ of election
to Indiana
v. Ind.
779
8-10-8-8,
(Ind.Ct.App.2002),
all
pro-
Code
and for
further
N.E.2d
trans.
opinion. Any
this
ceedings consistent with
denied).
I believe that
the trial court
facts,
Rehearing
actually
carefully analyzed
complex
Petition for
must be
these
finding
received
the Clerk of Courts not later
its
is correct on this record. The
that
days following
require
than ten calendar
the date
trial court found the statute to
establish,
they may
present
know
indeed be
on elec-
by preponderance
plaintiffs
sure,
day.
tion
To be
others
abuse
evidence,
that
acts"
the "deliberate
of the
who
"impossible"
it
to determine
and vote absentee in order
privilege
rendered
that
I
that
legitimate votes.
think
got
polls
precinet,
the most
at the
in another
to work
statute,
I
reading of the
correct
long
is the
But
for other less valid reasons.
as
majority
reading
it
the same
once,
believe
is
only
as the voter votes
and in the
reading
that
makes
it.
I also believe
gives
eligible,
he or she is
I
precinet
which
has
corruption widespread
-If
is
but
sense.
would not disenfranchise
voter as
result, neither the
on the election
no effect
trial court did. The reason I believe this
put
to
public
parties
nor
should
is that the conclusion that
issue is relevant
This does
redoing
the election.
trouble
to
legitimate
"impossible"
votes are
plaintiffs
prove
had to
not mean the
obviously turns on how
the elec-
tally
close
of unlawful
individual instances
enough
If
one third of the
tion was.
over
invalid
tip
to
the election.
It does mean
votes
valid,
obviously
in fact
it
af-
ballots were
they
prove
that the
needed
unlaw-
margin
plaintiffs
feets the
need
likely
made it more
than
practices
ful
383).
(increasing it from
overcome
election,
measured
that the result
percent-
But
importantly,
also alters
votes,
unknowable.
There are
lawful
was
proven
age
irregular
absentee ballots
might
that a
ways
(155 1950)
a number of
statistician
It also
from8.2%
5.1%.
a more
attempt
to establish that
it was
percentage
increases the
bal-
absentee
than not that the deliberate acts
probable
properly.
lots that were cast
The net result
Here the trial court's
affected the result.
is, as the trial court found even without
judgment
finding
turned on its
there
adjustment, plaintiffs have not shown
showing.
plaintiffs
no
Neither
such
of the election is more
the result
how,
record,
majority
on this
nor the
show
likely than not undetermined.
incorrect, much less
the trial court was
majority's
I
standard for
also believe the
clearly erroneous.
judicial
pro-
in an
intervention
majority concludes that it is irrele-
statute as
blematic.
written
The.
trial
to the result here whether the
vant
objective
enough
relatively
standard:
finding
155 invalid
court was correct
likely than not
votes tainted that it is more
votes,
than 100.
I believe the
rather
*17
election,
of the
measured
that the result
calculations of invalid votes were
court's
ballots,
majority
is unknown. The
lawful
excessively
plaintiffs,
to the
generous
subjective
on
essentially
patina
an
puts
Fifty
I
that it is irrelevant.
agree
do not
this test and calls for new election when-
found
the 155 ballots the trial court
five of
wrongdoing "profoundly undermines
ever
only
they
invalid were defective
because
the trust-
integrity
of the election and
on an
affidavit that
were based
absentee
This seems to
worthiness of its outcome."
expected
that
voter
absent
stated
be
essentially
meto invite courts- to exercise
day,
in fact
county
from the
on election
but
authority to alter election re-
discretionary
day.
in
on that
the voter was Lake
they
undermined. Given
sults that
deem
practice,
per-
I
it is common
believe
many
judges
Indiana trial
are selected
that
missible,
if there
to vote
absentee ballot
election, it seems an unwise
by partisan
voting
day
any
is
chance that
on
standard
quite
of the
limited
expansion
possible.
today's
In
commer-
will not be
caleu-
legislature,
one
world,
selected
many
unsure of their
people
cial
judicial
improper
tolead to claims of
sure
lated
and vote absentee
be
schedules
franchise,
process.
with the electoral
they
even if
interference
they exercise their
majority's
except
ex rel. with electoral results
the most
reliance
State
844,
The difficulties the faced substantial, lishing primary the need for new elec- proving their case were but plaintiffs tion. There is no doubt that the my upset are in no reason to an view sure, old-style proved election fraud some plaintiffs election. To be here la- cases, constraints, highly inappropriate behavior in under severe but those bored disapproval others. But our of the con- imposed constraints are statute and are judicial participants in the designed prevent interference duct of some of appeal. Ap- change its result dismisses the Court is no basis to peals opinion remains vacated. that the ultimate result was proof without wrongdoing. altered copies The Clerk is directed send record, this order to all counsel includ- SULLIVAN, joins. J. curiae; ing counsel for all amici and to Publishing Company publication West bound volumes of the deci- Court's sions.
All Justices concur.
FEDERATED RURAL ELECTRIC EXCHANGE,
INSURANCE
appellant,
In the Matter of Martin H. KINNEY.
NATIONAL FARMERS UNION
AND CASUALTY
PROPERTY
No. 45S00-0407-DI-307.
COMPANY, appellee.
Supreme Court of Indiana.
No. 49S05-0408-CV-381.
29, 2004.
Oct.
of Indiana.
Supreme Court
ORDER ACCEPTING RESIGNATION
Oct.
2004.
AND CONCLUDING
PROCEEDING
PUBLISHED ORDER
H.
respondent,
Comes now the
Martin
Appeals
opinion
The Court of
issued its
Kinney, and tenders to this Court his res-
Ins.
in this case at Federated Rural Elec.
State, pursu-
of this
ignation from the bar
Prop. and
Exch. v. Nat'l Farmers Union
Discipline
ant to Ind.Admission and
Rule
Co.,
(Ind.Ct.App.
suant to Indiana Rule THEREFORE, IS, IT ORDERED resignation trans- from the bar of this state Supreme granted After the Court Martin H. fer, respondent, tendered opportuni- but before the Court had an Accordingly, Kinney, hereby accepted. ty opinion, parties its filed a to issue directed to strike of this Court is Appeal." "Joint Motion To Dismiss Clerk Attorneys. name from the Roll of parties have his represents motion *19 readmitted, comply he must requests order to be settled their differences provisions con- with the reinstatement appeal. dismiss the The Court Court 28(4). hereby grants parties' now motion and tained Admis.Disc.R.