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November 14, 2008

Indiana Court of Appeals nullifies 2007 Terre Haute mayoral election

Decision reverses Duke Bennett's victory

(Continued)

TERRE HAUTE —

The court chose not to distinguish each of Bennett’s duties within the Hamilton Center, instead finding that “as a normal and foreseeable incident to his principal position … he performs duties in connection with an activity financed in whole or in part by federal funds.”

The determination that Bennett was subject to the Little Hatch Act, and that he violated it by becoming a partisan candidate for office, were not the final factors in deeming him ineligible, however.

One of the issues contested at the appeals level was whether Bennett was ineligible at the time he assumed office, or just during the campaign. Bennett argued that he was eligible to assume office because any ineligibility there might have been during his campaign was no longer relevant when he took office (because he was no longer employed at the Hamilton Center).

The trial court in Vigo County reasoned that Bennett was mayor-elect and no longer a candidate at the time the challenge occurred.

The appeals court disagreed.

“Because Bennett was disqualified from even being a candidate … and, therefore, was ineligible to assume office,” the court wrote.

After determining Bennett’s ineligibility, the court turned to Burke’s assertion that he should be elected as “the qualified candidate who received the highest number of votes,” based on Indiana state law.

The court disagreed, reasoning that if all the voters who cast ballots for an ineligible Duke Bennett — without knowing he was ineligible — lost their votes, then all the other voters who cast ballots in good faith would also have to lose their votes. The entire mayoral election, then, would have to be nullified.

“It is incumbent upon the candidates to have issues of eligibility brought to the voters’ attention prior to an election,” the court wrote. “The voters must be aware of a candidate’s ineligibility in order to nullify the votes without nullifying all votes equally … [and] even though Bennett was ineligible, Burke does not have a right to the office of mayor of Terre Haute.”

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