News From Terre Haute, Indiana

Local & Bistate

November 14, 2008

Indiana Court of Appeals nullifies 2007 Terre Haute mayoral election

Decision reverses Duke Bennett's victory

TERRE HAUTE — The election contest between former Terre Haute Mayor Kevin Burke and current Mayor Duke Bennett could continue for months, but according to two of the three judges for the Indiana Court of Appeals who decided the case, neither man is currently eligible to serve as mayor.

Judges Carr L. Darden and Elaine B. Brown, who wrote the 45-page majority opinion, concluded that Bennett was subject to the Little Hatch Act, making him ineligible as a candidate during his 2007 campaign, and concluded that Burke could not win an election in which voters were not fully informed of Bennett’s ineligibility.

The legal team for Bennett, along with dissenting appeals court Judge Edward W. Najam, still claims that any post-election challenge by Burke was invalid, and the election of Bennett should stand.

The majority found that neither candidate brought issues of Bennett’s eligibility to voters’ attention prior to the election.

“We fault both candidates for not doing so in this case,” the opinion states.

Because voters were unaware of Bennett’s ineligibility, the court determined that all votes in the 2007 mayoral election would have to be nullified equally, meaning that Burke could not have won, even if Bennett were disqualified.

The Little Hatch Act, 5 U.S.C. section 1502(a), provides in part that, “[a] state or local officer or employee may not … be a candidate for elective office.”

After a lengthy discussion of Bennett’s employment as director of operations at Hamilton Center Inc. from 2005-2007, it was determined that: the Little Hatch Act applies to the Hamilton Center because of its responsibility for planning and coordinating Head Start programs; that Bennett was considered a state or local employee because Hamilton Center is a state or local agency by virtue of its work with Head Start; that his work at Hamilton Center constituted his principal employment; and that it was in connection with an activity financed in part by federal funds.

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