Election Law Enforcement Disparity

Advance Indiana has provided countless examples of people violating candidate and voting residency requirements over a number of years which resulted in no enforcement action compared to the draconian action taken against former Secretary of State Charlie White for registering and voting in one election at the home of his ex-wife when he was in between homes, which resulted in 7 felony charges against him, six of which he was found guilty and forced to give up his office. He later got the Indiana Court of Appeals to toss three of those convictions, but three of those felony counts still stand. Two years later, the Marion Co. Election Board determined that Sen. Richard Lugar and his wife, Charlene, had been illegally registered and casting votes in a precinct in which they had moved out of 35 years earlier. The board determined the Lugars relied on legal advice in continuing to vote using a home for their voting residence at which they no longer owned or resided and did not intend to violate Indiana's vote fraud laws. The board allowed them to re-register in a precinct in which they owned a home and not to refer their voting law violations to the prosecutor for further investigation.

Similarly, technical violations of candidate filings have resulted in differing outcomes. In 2010, Sue Ellspermann, now the state's elected Lt. Governor, filed to run in the Republican primary for the Indiana House of Representatives to represent District 74. In the 2008 primary election. Ellspermann cast a ballot in the Democratic primary. Under Indiana law, she could only run as a Republican for state representative if she filed a certification from the Republican Party leader that she was a member of the Republican Party at the time of her filing. Declaration of candidacy forms in primary elections require a candidate to swear that one of the two following statements is true: 1) the most recent primary election in which the candidate voted was the same party to which the candidate is seeking office; or 2) the county chairman of the party certifies that the candidate is a member in good standing of the political party.

A Democratic voter in District 74 filed a challenge to Ellspermann's candidacy for failing to qualify as a candidate for the Republican Party ballot under state law. Ellspermann admitted making a false statement on her statement of candidacy she filed with the state's Election Division. "I typically vote Republican, and so when I filled out that form, I checked that box without giving it another thought," she said. Nonetheless, the Indiana Election Commission dismissed the complaint against Ellspermann since the Republican Party certified they viewed her as a candidate in good standing, even if such certification did not come until after the complaint had been filed against her. The false statement she made on her statement of candidacy was viewed as an honest mistake and not referred to the prosecutor for further investigation.

Last week, there were two election complaints filed against candidates who filed for the Democratic municipal primary ballot in Marion County heard by the Marion County Election Board. Floyd Covington was removed from the ballot to run against Monroe Gray in District 8. In the race for Beech Grove mayor, the election board removed Richard Byland, the only opponent who filed to run against incumbent Mayor Dennis Buckley. Both Covington and Byland checked off the box indicating the most recent ballot they had cast in a primary election was a Democratic ballot, neither of which was true.

The board also voted to refer Byland's case to the Marion Co. Prosecutor for prosecution either for perjury or providing false information to the election board. Covington didn't appear at the hearing, and his case wasn't referred to the prosecutor. Byland appeared with his attorney. According to an election board employee, Will French, Byland had asked questions of him about the form before completing it and having French to notarize it for filing. Byland had told French he had never voted in a Democratic primary previously. Byland's attorney clarified that French understood the information on Byland's form was not true based on Byland's statements to him before French agreed to notarize it. The statement of candidacy form does not provide that the statements provided therein are made under penalties of perjury, only that the candidate affirms they are true. Byland's attorney noted the candidate's grandfather had been elected as a Democratic mayor of Beech Grove, and that Byland has always considered himself a Democrat. It's also the case that there is a great deal of animus between Buckley and Byland, with Buckley demanding and getting Byland prosecuted for intimidation after he made an angry phone call to the mayor's office to complain about the job he was doing as mayor. Would it be fair to prosecute Byland, in addition to removing him from the ballot, for simply filing a statement of candidacy to run for mayor?