News From Terre Haute, Indiana

November 21, 2007

Hoosier law could overturn election

Indiana law, Hatch Act must be tied together to disqualify Bennett, IU law prof says

By Austin Arceo

TERRE HAUTE — If Mayor-elect Duke Bennett violated the Hatch Act, state law prevents him from taking office, a law professor said Wednesday.

The Hatch Act prevents certain government employees from becoming political candidates, though it doesn’t necessarily invalidate an election. But Indiana law provides the language deeming a candidate ineligible to take office because of the federal Hatch Act, said Luis Fuentes-Rohwer, an associate law professor at Indiana University.

A petition contesting the mayoral election filed Monday on incumbent Kevin Burke’s behalf states that Bennett should be considered ineligible since his employer, Hamilton Center Inc., receives federal funding, such as for its Early Head Start program.

Republican Bennett defeated Democrat Burke by 107 votes, less than 1 percent of all ballots cast.

Employees of some not-for-profit agencies are subjected to the Hatch Act based upon certain federal funds the organization receives.

Bennett has said that he received legal advice before he ran for mayor for the first time in 2003 that he did not violate any laws by running for office.

If a violation occurred, the U.S. Office of Special Counsel, a federal agency that investigates Hatch Act complaints, is not “really in a position to go in and pull somebody out of [an] office that they’ve been elected to,” agency spokesman Jim Mitchell said in a recent interview.

But Burke’s petition cites the Hatch Act and Indiana Code 3-8-1-5(c)(6), which states that a “person is disqualified from assuming or being a candidate for an elected office if” the person is subjected to the Hatch Act.

“So the two of them have to be read together to disqualify” Bennett, Fuentes-Rohwer said. “Everything hearkens back to the Hatch Act.”

“Without the state law, the Hatch Act would not overturn the election,” he said.

Attorney Ed DeLaney, who represents Burke, and Chou-il Lee, representing Bennett, have said they’ve had difficulty finding similar cases in Indiana in which someone was alleged to be ineligible after the election because of the Hatch Act.

Howey Political Report publisher Brian Howey, James McDowell, a political science professor at Indiana State University, and James McCann, assistant professor of political science at Purdue University, also could not recall a similar situation in Indiana.

McCann also considers himself a skeptic of Burke’s case.

“It strikes me as a very novel argument,” he said, “and definitely a long shot.”

An Indiana court likely will decide the ultimate fate in the contest. DeLaney has said that the Office of Special Counsel will not be involved, since the case is a state issue being tried in a state court.

Fuentes-Rowher also said that “parties are quite willing to fight until the end.”

“Elections are not the end,” he said. “Oftentimes, they’re the beginning of the battle.”

Austin Arceo can be reached at (812) 231-4214 or