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

(Continued)

TERRE HAUTE —

The dissenting opinion of Judge Najam states, “Candidates have a duty to discover and disclose eligibility issues before an election so that the voters can take those issues into account when casting their ballots.”

The dissent adds that a candidate who knows of a “bona fide eligibility issue” and who fails to bring it up before the election is prohibited from raising that issue in a post-election challenge.

The majority disagreed with Najam’s claim, saying that the case he cited – Oviatt v. Behme, 1958 — “gave us only two options … : we must either count all votes cast in good faith, including those cast for a disqualified candidate, or count none of the votes cast in good faith … because there was no evidence that any of the voters were aware of Bennett’s disqualification.”

The majority continued, “If we count all the votes cast, then we render all statutes enacted by the legislature disqualifying a candidate meaningless … We would be indicating that these statutes never come into play when an election is challenged after the fact because we would be saying that the only question to be asked after an election is whether the voters believed the candidate was disqualified.”

The court stated simply, “The legislature has allowed challenges both before and after an election, and the legislature has not excluded the qualification statutes from post-election challenges.”

Because the court determined that neither Burke nor Bennett is currently eligible to be mayor of the city, it was concluded that a vacancy exists — however, that vacancy will not become a reality until the next step in the appeals process is undertaken. The Bennett team has vowed to go to the Indiana Supreme Court; it has 30 days to do so.

Joel M. Schumm, professor of law at the Indiana University School of Law in Indianapolis, and an expert on the Indiana judiciary, said nothing will happen with the mayor’s office until after the losing party goes through the appeals process. The opinion is nonbinding until that process is complete, he said.

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