Indiana Court of Appeals judges disagreed as to whether an elected at-large school board candidate was "qualified" under the Indiana Constitution to take office because his election caused three members from the same school district to be on the board. The majority ruled in favor of the candidate and another winner, ruling the portion of the statute that says the person who wins the greatest number of votes wins the position controls despite conflicting subsections.

In Clarke C. Campbell v. Board of School Commissioners of the City of Indianapolis and Marion County Election Board, et al., No. 49A02-0808-CV-681, Clarke Campbell appealed the trial court ruling that the individuals who received the highest number of votes for the two at-large seats on the Indianapolis Public Schools Board should be seated despite statute saying no more than two board members may reside in the same district. Winners Michael Cohen and Elizabeth Gore caused three members to be seated from the same district.

The Board of School Commissioners for IPS originally filed the complaint following the May 2008 election seeking an interpretation of Indiana Code Section 20-25-3-4. Gore ran for Campbell's incumbent at-large seat and won. Cohen won the "open" at-large election; the vacancy was the result of a resignation from another at-large board member before his term was up.

At the time Cohen and Gore ran, they were qualified to run and both lived in IPS District 3; there was already a board member representing District 3. This violated subsection (b) of the statute that states no more than two members who serve on the board may reside in the same board district. The statute also says in subsection (e) that a candidate who runs for an at-large position wins if he or she gets the greatest number of votes of all the candidates for the position.

The election brings up a situation in which it is impossible to adhere to both subsections, wrote Judge Paul Mathias, and the statute provides no guidance for the "rare, but potentially recurring circumstance in this case where a mid-term resignation by an at-large Board member caused both at-large seats to be vacant in the same election cycle."

The majority agreed with the trial court that subsection C(e) should control, which is later in position in the statute. It noted its conclusion is consistent with the governing rule in Indiana to uphold the will of the electorate.

The majority and Judge L. Mark Bailey disagreed as to whether Gore and Cohen were elected and qualified under Article 15, Section 3 of the Indiana Constitution. The majority concluded that "qualified" referred to actions the elected successor must take after the election to qualify for office, such as taking an oath of office. Judge Bailey believed Cohen wasn't qualified to hold an at-large position because when Gore defeated Campbell, Cohen was statutorily disqualified to hold office because he was the third person residing in the district elected to the school board. He also remained disqualified at the time he took office. In accordance with subsection (h) of the statute, Judge Bailey wrote Leroy Robinson, who held the office before Cohen was elected, should retain the position until another person is elected and qualified. The judge noted that because the "open" at-large position caused the current problem, his solution only affects that position.

The majority also urged the General Assembly to consider the circumstances of the appeal and formulate a statutory remedy should similar circumstances appear in a future election.