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COA: Candidate remains on ballot

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The Republican winner of the primary election for Indiana House of Representatives District 74 will remain on the ballot for the general election, the Indiana Court of Appeals ruled today.

Charles R. Wyatt challenged Republican candidate Susan Ellspermann’s declaration of candidacy for the primary election. In her declaration, she certified she’s affiliated with the Republican Party because she voted as a Republican in the most recent prior primary election, but she had actually voted as a Democrat in the 2008 election.  

After discovering her vote, she filed an amended declaration. Ellspermann’s motion to reconsider failed as well as Wyatt’s challenge to her candidacy because votes on those motions split 2 to 2. By Indiana Election Commission rules, she remained on the ballot and beat her challenger, Angela Sowers.

Before the election, Wyatt filed suit in Marion Superior Court, but the court didn’t rule before the election. It denied his request for a preliminary injunction and denied both parties’ motions for sanctions. Wyatt appealed the denial of his request for injunctive and declaratory relief; Ellspermann appealed the denial of her request for attorney’s fees.  

Wyatt failed to meet his burden of showing by a preponderance of the evidence that the public interest would not be disserved by granting the preliminary injunction, wrote Senior Judge Patrick Sullivan. He noted if the Court of Appeals ruled in favor of Wyatt, it would nullify the primary election results.

Caselaw has held that the purpose of election law and the courts are to secure voters an opportunity to freely and fairly cast ballots and prevent disenfranchisement. The statute at issue in this case doesn’t provide that compliance with its provisions is essential to a valid election. Ellspermann testified that she had forgotten she had voted as a Democrat in the 2008 primary and she historically had voted Republican. Wyatt didn’t submit any evidence to counter her explanation.

“Under these circumstances, the irregularity in Ellspermann’s declaration and any misconstruction of Indiana Code section 3-8-2-7 by the IEC or the Marion Superior Court cannot justify reversal of the trial court’s denial of a preliminary injunction because it would contradict the will of the electorate and disenfranchise voters,” wrote Judge Sullivan in Charles R. Wyatt, et al. v. Thomas E. Wheeler, et al., No. 49A02-1006-PL-636.

The judges also found even if the per se rule applied to this case, which it does not, it wouldn’t provide grounds for reversal because Wyatt would still have to show that the issuance of the injunction wouldn’t be contrary to the public interest. They also affirmed the denial of declaratory relief because if they rule that the IEC and Marion Superior Court had misapplied the relevant statutes, then Ellspermann’s victory would be invalid. That outcome would violate the purpose of election laws, wrote Judge Sullivan.

The Court of Appeals affirmed denial of Ellspermann’s request for attorney’s fees and denied her request for appellate attorney’s fees.

 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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