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Judge affirms dead candidate winner in Allen County election

February 8, 2017

An Allen Superior judge decided Wednesday that the Republican candidate for an at-large seat on the Allen County Council who died four days before the General Election was properly left on the ballot and certified as a winner. The judge noted that Indiana Code doesn’t specifically address this unique situation.

Special Judge Craig Bobay was asked to decide who won the 2016 election for Allen County Council at-large seats. Roy Buskirk, a Republican whose term was ending and up for re-election, died Nov. 4, just four days before the General Election. His death was widely reported by the local media, and the Allen County Election Board decided to leave him on the ballot because it would be impossible to remove his name from the electronic voting machines before the election.  It also believed statute did not require his name to be removed. In addition, early voting had been occurring since September.

Voters elected Buskirk to office. Democrat Palmero Galindo, who was the fourth-highest vote-getter, contested the results. He argued because Buskirk had died, he couldn’t be elected and that Galindo would be the third-highest vote-getter and should be certified as a winner.

The Allen County Republican Party did not choose a replacement candidate before the election. On Nov. 30, it held a caucus and elected Justin Busch to complete Buskirk’s term ending in 2016; a week later, a second caucus elected Busch to replace Buskirk for his full term beginning this year.

Last month, the parties all agreed that Bobay shouldn’t order a special election. Bobay issued his ruling Wednesday in favor of the election board’s decision to leave Buskirk on the ballot and certify his win.

Bobay noted that Indiana Code doesn’t specifically address this unique situation and the parties argued it is necessary to review and apply at least 19 sections of Indiana election code. Bobay listed them “to demonstrate the need for the legislature to remedy the gap in the election law that the Court is being asked to seal.”

Galindo’s argument is that Buskirk ceased to be a candidate and was not eligible to be elected after his death; his death created a ballot vacancy that was not properly filled; and that vacancy remained at the time of the election. Since Galindo had the third-highest vote total if you took out Buskirk’s votes, he argued that he should be certified as a winner of the election.

The election board believes that Buskirk was an eligible candidate for the election based on code; the vacancy was properly filled in compliance with the election code; and the election board properly certified Buskirk as the winner of one of the Allen County Council at-large seats.

Bobay, wary of overturning the will of the voters, ruled in favor of the election board. There is no express language in Indiana law that clearly and plainly states because Buskirk was dead at the time of the election, his name had to be removed from the ballot and the votes cast in his favor must not count, the judge wrote. He noted that the election board’s decision to leave Buskirk on the ballot was a reasonable one, given the circumstances.

Bobay also noted the margin of victory between Buskirk and Galindo’s votes. Buskirk received 61,375 votes to Galindo’s 38,798.

“The will of the people seems clear that they did not want Galindo to hold the office of Allen County Council At-Large. Because Buskirk was elected despite reports of his death, it is reasonable to conclude that the voters cast ballots for Buskirk to ensure that Galindo and the other two Democrat candidates … were not chosen … .”
 

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