State Election Division Attorneys Offer Legal Memorandum To Help Defeat Ft. Wayne Ordinance

Opponents lobbying to defeat a proposed ordinance in the City of Ft. Wayne to bar city contractors from making contributions to city candidates get more help from attorneys with the Indiana Elections Division. Councilor Tim Pape (D) shared with the Journal-Gazettte's Benjamin Lanka a memo the Elections Division's co-counsel penned against the proposed ordinance:

Dale Simmons and Leslie Barnes, co-counsels for the state division, wrote a four page memo dated Monday providing detailed reasoning for why the proposal does not comply with state law.

"We believe the proposed ordinance unlawfully attempts to exercise the 'power to conduct elections,' which is a power expressly withheld from municipalities by the General Assembly," they wrote. "If this were not so, it would be easy to anticipate the confusion wrought in the administration of elections by numerous and conflicting local campaign finance regulations."

The reasons cited by the election division are similar to those cited by critics since the proposal was first discussed: mainly, state law prevents local communities from enacting their own election or campaign finance restrictions . . .

Pape sent the opinion to Council Attorney Joe Bonahoom and asked for his reasoning to decide the bill was appropriate.

Bonahoom said home rule allows a city to exercise any power not denied by the state. While state law does withhold the power to conduct elections, Bonahoom said this bill seeks only to regulate city contracts, not political contributions.

"This is really an effort to regulate local purchases and local contracts," he said.

Bonahoom said while a judge might disagree with him, generally when there is doubt to whether a unit of government has the authority to regulate an action, the government gets the benefit of the doubt in the matter.

Simmons and Barnes said arguments to characterize the bill as a contract issue instead of a campaign law fail because the bill revolves around campaign contributions and prohibitions, penalties and reporting requirements.

"In sum, the ordinance attempts to alter, supplement and contradict state election law regarding political contributions," they wrote.

Bonahoom said attorneys are notorious for having varied opinions on difficult legal matters, and the state election board has a vested interest in keeping control of all election powers.

"While I respect their opinion, it would seem to me that they have an interest in protecting their sovereign authority based on State law," Bonahoom wrote in response to Pape's request.

It's curious that the State Elections Division has done nothing to nullify a Jeffersonville ordinance enacted in 2006 which limits campaign contributions by city contractors to $200 a year if it believes such ordinances violate state law. It also confirms Secretary of State Charlie White's contention that he really has no power over the State Elections Division to administer election law in this state.