"Most Indiana Counties Using Illegal Ballot Design" is the headline to a story posted yesterday on the WISH-TV 8 site. Some quotes from the story:
Voters in 90 Indiana counties will vote November second on ballots listing candidates by office. But an I-Team investigation exposes why counties that use the office-block ballot design are in violation of state law. * * * Marion and Green Counties are the only exceptions.The lawsuit was Doris A. Sadler, et al. v. State of Indiana, et al. (7/19/04 IndCtApp) [Election Law; Statutory Construction]. Access the July 19th ILB about it here (last case), including a link to the decision.Marion County's optical-scan machine ballots used to list candidates by office like those used in the May primary. But a lawsuit challenged that design.
Now Marion County’s ballot lists candidates by party. Here's why: Indiana state law requires the party-column ballot layout, according to a July ruling by the Indiana Court of Appeals.
WISH-TV's story continues:
Jeff Cooper, a professor at Indiana University School of Law [with his own blog], specializes in legislative interpretation. “It requires, pretty plainly as I read the statute, that candidates be set out in columns or rows according to their party affiliation,” said Cooper. The statute made sense when Hoosiers used old lever machines to cast their votes.The statutes at issue, according to Sadler v. State, are:“Of course, now, just about everybody is moving away from the lever machines,” said Cooper. From punch-card ballots in Madison County to Johnson County’s optical-scan ballots to Hamilton County’s electronic ballots, all list candidates by office, not by party. [Click here to open WISH_TV story, with sample ballots, in a separate window.].
“It's okay to depart from the statutory scheme, as long as it's determined that following the statutory scheme isn't practicable,” said Cooper. It all comes down to that one word: practicable. But what does it mean? “Practicable is that which may be done, practiced or accomplished; that which is performable, feasible, possible,” said Cooper.
[IC] 3-11-2-5, which provides, “The nominees of a political party or group of petitioners shall be listed on the ballots under the name and device of the party or petitioners as designated by them in their certificate or petition, or if none is designated, then under some suitable name or device.” (Emphasis added.) This statute unambiguously mandates that the party-column format be the “default setting” for ballots in Indiana. * * * This mandate is not absolute, however. [IC] 3-11-2-10 acknowledges that variations in ballot arrangement for ballot card voting systems are permitted under [IC] 3-11-13-11. See [IC] 3-11-2-10(e) (“Except for variations in ballot arrangement permitted for … ballot card voting systems under IC 3-11-13-11, … the list of candidates of the political party shall be placed immediately under the instructions for voting a straight party ticket.”). [IC] 3-11-13-11 provides, “The ballot information, whether placed on the ballot card or on the marking device should, as far as practicable, be in the order of arrangement provided for ballots under IC 3-11-2.” (Emphasis added.) Under this statute, the legislature granted county election boards discretion to determine the practicability of placing ballot information in the order of arrangement specified in [IC] 3-11-2.Posted by Marcia Oddi at October 9, 2004 05:20 PM