George Pabey v. Robert A. Pastrick (8/6/04 IndSCt) [Election Law]
Dickson, Justice
Plaintiff/appellant George Pabey is appealing from a judgment denying relief in an election contest. We reverse. * * *Posted by Marcia Oddi at August 6, 2004 04:38 PMIndiana law provides two methods to examine the results of elections: an election "re-count" and an election "contest." See Ind. Code §§ 3-12-6-1 et seq. (recount) and 3-12-8-1 et seq. (contest). Pabey originally challenged the results of the primary under both of these statutes. However, he subsequently dropped his request for a recount and his recount petition was dis-missed with prejudice. (Br. of Appellee, Pastrick at 2). As such, what is at issue in this proceed-ing is solely an election "contest" under Indiana Code § 3-12-8-1 et seq. We will refer to the election contest chapter of the Indiana Code as the "Election Contest Statute." * * *
With its enactment of the Deliberate Ac-tions ground in the Election Contest Statute, the legislature expressly intended to provide the remedy of a special election not merely for inadvertent mistakes and malfunctions, but also for deliberate conduct. In construing the language of these subsections, we must interpret and apply them in such a manner as to achieve the effect intended. As to the Deliberate Actions ground, the legislature could not reasonably have intended to immunize obviously corrupt elections where the resulting distortion of an election outcome could not be precisely traced and mathematically determined. * * *
We therefore hold that the burden upon a challenger seeking a special election under the Deliberate Actions ground in subsections 2(5) and 6(a)(3)(E) of the Election Contest statute is to conclusively demonstrate (a) the occurrence of an act or series of actions by one or more persons who knew or reasonably should have known that such conduct would make it impossible to determine which candidate receives the most legal votes cast in the election, and (b) the deliberate act or series of actions so infected the election process as to profoundly undermine the integrity of the election and the trustworthiness of its outcome. A special election should be ordered only in rare and exceptional cases. * * *
In the present case, the undisputed trial court findings establish the occurrence of a deliberate series of actions that "perverted the absentee voting process and compromised the integrity and results of that election." The court found that this scheme subjected "the naïve, the neophytes, the infirm and the needy" to "unscrupulous election tactics," that there was "convincing evidence that established the pervasive fraud, illegal conduct, and violations of elections law," and that the misconduct was "voluminous, widespread and insidious." * * *
In view of the uncontested factual findings of the trial court, we conclude that Pabey has established that a deliberate series of actions occurred making it impossible to determine the candidate who received the highest number of legal votes cast in the election and that the trial court erred in denying Pabey's request for a special election. While this remedy will be appropriate only rarely and under the most egregious circumstances, it is compelled by the facts of this case. * * *
Based upon this history, we conclude that eligible parties are authorized to contest elec-tions on grounds of intentional misconduct under the Election Contest Statute and that the court has authority to order that a special election be conducted where it finds that the occurrence of a deliberate act or series of actions makes it impossible to determine which candidate received the highest number of votes. * * *
Conclusion. We reverse the trial court's determination denying a special election and remand to the trial court with directions to promptly order a special election by issuing a writ of election pursu-ant to Indiana Code § 3-10-8-3, and for all further proceedings consistent with this opinion. Any Petition for Rehearing must be actually received by the Clerk of Courts not later than ten calen-dar days following the date of this opinion, notwithstanding provisions to the contrary in Indiana Appellate Rule 54(B).
Shepard, C.J., and Rucker, J. concur.
Boehm, J., dissents with separate opinion in which Sullivan, J., concurs:I respectfully dissent. In my view, the controlling question is not whether election law violations occurred. The trial court found they did, and that finding was plainly supported by the evidence. But the central issue here is whether the corruption was the cause of the election re-sult. The presence of corruption, even if “widespread,” is no basis to upset an election and nul-lify the votes of the electorate if a majority of untainted votes supported the winning candidate. As the majority opinion spells out in some detail, the trial court found election law violations, and they were not limited to a few isolated instances. But the standard set forth in Indiana law for overturning an election it is that it is “impossible to determine the candidate who received the highest number of votes.” Ind. Code § 3-12-8-2 (1999). The trial court, like the majority, read “the highest number of votes” to mean legitimate votes. The trial court, despite the portions of the judgment quoted by the majority, found that the plaintiffs failed to carry their burden of establishing that. * * *
If corruption is widespread but has no effect on the election result, neither the public nor the parties should be put to the trouble of redoing the election. This does not mean the plaintiffs had to prove enough individual in-stances of unlawful votes to tip the election. It does mean that they needed to prove that the unlawful practices made it more likely than not that the result of the election, measured by lawful votes, was unknowable. There are a number of ways that a statistician might attempt to establish that it was a more probable than not that the deliberate acts affected the result. Here the trial court’s judgment turned on its finding that there was no such showing. Neither plaintiffs nor the majority show how, on this record, the trial court was incorrect, much less clearly erroneous. * * *
I also believe the majority’s standard for judicial intervention in an election is problem-atic. The statute as written provides a relatively objective standard: are enough votes tainted that it is more likely than not that the result of the election, measured by lawful ballots, is unknown. The majority puts an essentially subjective patina on this test and calls for a new election when-ever wrongdoing “profoundly undermines the integrity of the election and the trustworthiness of its outcome.” This seems to me to invite courts to exercise essentially discretionary authority to alter election results that they deem undermined. Given that many Indiana trial judges are se-lected by partisan election, it seems an unwise expansion of the quite limited standard selected by the legislature, and one calculated to lead to claims of improper judicial interference with the electoral process. * * *
In sum, the legislature has provided that the election stands if, after disregarding the votes shown to be tainted, there is no showing that the result is unknown. The majority cites authori-ties under other statutes that suggest a lower threshold of proof may be sufficient to overturn an election. I believe under our statutes Indiana courts have no business imposing a higher standard on the electorate. The trial court faithfully carried out the charge given to it by the legislature and found that the plaintiffs’ case fell short of establishing the need for a new primary election. There is no doubt that the plaintiffs proved old-style election fraud in some cases, and highly in-appropriate behavior in others. But our disapproval of the conduct of some of the participants in the election is no basis to change its result without proof that the ultimate result was altered by the wrongdoing.
Sullivan, J. joins.