Tuesday, June 16, 2009

Supreme Court Confirms Bennett's Election As Terre Haute Mayor

It's hard to believe that this issue is only being definitively decided nineteen months after the Terre Haute mayoral election concluded. The Indiana Supreme Court unanimously decided today that former Mayor Kevin Burke's challenge to Duke Bennett's eligibility to take office as the winner of the 2007 mayoral election due to Bennett's candidacy violating the Little Hatch Act is moot. Quite simply, the Court said, Bennett no longer violated the Little Hatch Act at the time he took office as Terre Haute mayor because he resigned his job with the Hamilton Center that was partially funded with federal tax dollars upon taking office.

The Supreme Court noted that the state statute under which Burke asserted his action allowed the disqualification of a candidate pre-election as a candidate for office, or post-election to prevent a winning candidate from assuming office. Post-election challenges based on the Little Hatch Act are not possible according to the Court. Although Burke first raised the Little Hatch Act violation early in the 2007 election campaign, he did not challenge Bennett's qualification until Bennett had been certified as the winner of the election. The Supreme Court said that Bennett's ineligibility had to be assessed at the time he was taking office since it involved a post-election challenge. Because Bennett ended his employment with the Hamilton Center, he was no longer subject to the Little Hatch Act. The post-election challenge, according to the Supreme Court, cannot consider whether the successful candidate was subject to the Little Hatch Act or had been in violation of the Act when he became a candidate.

Secondly, the Court enunciated the rule further to effectively foreclose post-election challenges based on Little Hatch Act violations. After the election, the winner is no longer "becoming" or "remaining" a candidate. If the challenged winner is no longer a candidate for public office, the disqualification doesn't come into play. The Court said this ruling is consistent with its "longstanding respect for the right of the people to free and equal elections." The Court noted its past decisions refusing to remove an elected officer on claims of ineligibility unless the electorate had notice or knowledge of the ineligibility or disqualification.

As I've pointed out in the past, there are a number of Indianapolis' current elected City-County Councilors who became candidates for that office in violation of the Little Hatch Act. Rest assured that timely-filed challenges to their eligibility under the Little Hatch Act will be made in the 2011 municipal election should they decide to continue to flaunt this law. Today's ruling instructs us that we cannot remove them now, but we can certainly block them from running for re-election to their offices.


varangianguard said...

I think the Court recognized that this was a real can of worms, better left unopened. The sheer number of lawsuits that would have been filed (mainly on Democratic office holders, btw) would have given a place for Kevin Burke in Indiana political history. But, it likely wouldn't have been a good place, as he soon would have become a pariah around the state Democratic party.

Bulldog said...

Just a friendly reminder that candidate challenges should be filed as soon as possible. It takes several weeks for the ballot to be programmed, proofed and then printed, so, unfortunately, the election board can't take a name off the ballot at the last minute. They have to submit the candidate list to the programmers as soon as the deadline for candidate challenges closes. After that point, a judicial decision disqualifing a candidate would be next to impossible to translate to the ballot - that is not without the county having to pay a hefty fee to the vendor for last minute programming changes and the possibility that ballots will have to be reprinted, which would be a great expense.

Again, just a friendly reminder

Gary R. Welsh said...

If the challenge is made timely, a candidate already on the ballot or aleady nominated in the primary can be disqualified from the general election ballot if I'm reading the court's decision correctly.