August 1998 Meeting Minutes
INDIANA ELECTION COMMISION MINUTES
AUGUST 18, 1998
MEMBERS PRESENT: Dudley Cruea, Chairman of the Indiana Election Commission [IEC]; Chip Garver, proxy for S. Anthony Long, Vice-Chairman; Butch Morgan; Joseph M. Perkins, Jr.
MEMBERS ABSENT: S. Anthony Long, Vice-Chairman.
STAFF ATTENDING: Laurie P. Christie, Co-Director, Election Division, Office of the Indiana Secretary of State ("Election Division"); J. Bradley King, Co-General Counsel, IEC and Election Division; Kristi Robertson, Co-General Counsel, IEC and Election Division; Annette Craycraft, Co-Director, Campaign Finance, Election Division; Michelle Thompson, Co-Director, Campaign Finance, Election Division.
ALSO ATTENDING: Jack Black, Election Systems & Software (ES&S); Robert C. Brown, Jr., of Huntington; Steve Corey, Governmental Business Systems (GBS); Sara B. Cotham, Libertarian Party of Indiana; Toby McClamroch, of Indianapolis; Robb McGinnis, ES&S; Roger Miller, of Fort Wayne; Pam Updike, Huntington County Circuit Court Clerk; Pat Whalen, ES&S.
1. CALL TO ORDER:
The chair called the August 18, 1998 meeting of the Indiana Election Commission to order at 10:10 a.m. in State House Room 233, 200 West Washington Street, Indianapolis, Indiana. He noted that proper notice of the meeting had been given, as required by state law, and that a quorum of Commission members was present. The chair noted that Mr. Morgan was absent, but was expected to arrive shortly.
A copy of the meeting notice and agenda is incorporated by reference in these minutes. [Copies of all documents incorporated by reference are available for public inspection and copying at the Election Division office.]
2. RECOGNITION OF PROXY MEMBERS:
The chair noted that Mr. Long had filed an instrument with the Election Division on August 10, 1998 designating Mr. Chip Garver as his proxy for this meeting. A copy of this document is incorporated by reference in these minutes.
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3. APPROVAL OF JUNE 25, 1998 MINUTES:
The chair said that each Commission member had previously received a draft of the proposed Commission minutes for June 25, 1998 meeting. There being no additions or corrections, Mr. Perkins moved that the minutes be approved as presented. Mr. Garver seconded the motion. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Cruea, Mr. Garver, and Mr. Perkins), one member absent (Mr. Morgan), and no member voting "nay", the motion was adopted.
4. VOTING SYSTEM CERTIFICATIONS:
A. RECERTIFICATION OF ELECTION SYSTEMS & SOFTWARE (ES&S) PC-BT BALLOT CARD VOTING SYSTEM:
The chair recognized Mr. King, who stated that the PC-BT voting system had been previously certified for marketing and use in Indiana, and that the vendor, ES&S, is requesting that this voting system be recertified for an additional five year period.
Mr. King noted that, at the request of the Commission, ES&S had provided Information Services Division of the Department of Administration (ISD) with documentation concerning this voting system's compliance with the "Indiana standards" set forth in IC 3-11-15. Mr. King added that Commission members had received the following documents concerning this application: (1) a nine page letter dated June 29, 1998 from Mr. Herb Deutsch to Mr. King setting forth a section by section review of this system's compliance with IC 3-11-15; (2) a letter dated June 29, 1998 from Mr. King to Mr. John Kraus of ISD; (3) a two page summary prepared by ISD concerning the compliance of the PC-BT voting system with these standards; (4) a four page facsimile transmission dated August 3, 1998 from Ms. Rhonda Arst of ES&S setting forth the list of counties using this system; (5) a two page memorandum dated August 5, 1998 from Mr. King to the county users of this system; and (6) a two page letter dated August 5, 1998 from Mr. King and Ms. Robertson to Mr. Jack Black concerning the demonstration of the PC-BT voting system to Commission members. These documents are incorporated by reference in these minutes. Mr. Morgan arrived at the meeting at this point.
Mr. King stated that the ISD report indicated that the PC-BT voting system complied with the Indiana voting system standards, to the extent that ISD was able to perform these tests. He added that after receiving this report, the Election Division sent notices to the circuit court clerks of all counties using this system requesting their comments concerning the proposed recertification. He indicated that the Election Division had not received any written responses, but that the Hancock County Circuit Court Clerk had advised him by telephone that she was satisfied with this voting
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system and expressed her support for recertification. Mr. King stated that in accordance with past Commission practice, the Election Division had invited representatives of ES&S to attend today's Commission meeting to conduct a demonstration of the PC-BT voting system and answer any questions from Commission members before the Commission considered recertification of this system.
The chair recognized Mr. Black of ES&S, who presented Mr. McGinnis and Mr. Whalen to Commission members. Mr. Black stated that Mr. McGinnis would conduct the demonstration, and that each of them would be available to answer any questions from the Commission. Mr. McGinnis noted that the chair was familiar with the PC-BT system, which had been used in Fountain County for several years.
Mr. McGinnis stated that a county using this punch card voting system provides for all ballot cards to be returned to the County Courthouse for tabulation in a central location. He indicated that the ballot cards for each precinct are then removed from the transfer case when the precinct election officials return their supplies to the courthouse. He noted that the person operating the tabulator adds a "header" card and an "ender" card to the ballot cards from each precinct, and the ballots are then loaded into the system and tabulated. Mr. McGinnis noted that the PC screen indicates the name of the precinct whose ballots are being counted, as well as the two precincts most recently tabulated by the system. Mr. McGinnis ran off a "zero report", a copy of which is incorporated by reference in these minutes, and noted that these reports are printed out before tabulation begins on election day to demonstrate that there are no totals already entered into the system.
Mr. McGinnis said that when the system process the ender card, it automatically generates a precinct vote total report for that precinct. He added that it is possible to "zero out a precinct" to correct an error in the initial report by entering "F7" under "Utilities" into the PC, which then asks the user to confirm that the precinct should be "zeroed out", and to reset the system for retabulation of the precinct. He noted that the system permits an order to be entered manually to print up to five precinct vote total reports for the precinct. Mr. McGinnis stated that the bottom of the PC screen indicates the number of precincts that have been tabulated at that point in the election. He indicated that all the Utilities functions are listed in the PCs program, including simulation of the header or ender cards, and making backup copies of vote totals. Mr. McGinnis said that the system then prints accumulated totals from all precincts.
Mr. McGinnis addressed the question of how the system responds to overvotes being cast for candidates in a particular race. He indicated that the system is programmed not to count any overvotes, and so if a voter punches two positions in a race where only one candidate can be voted for, the card reader will count all other punches on that card but will not count the overvote. He added that the system uses the same procedures in tabulating "undervotes", which occur when a voter does not cast a vote for any candidate in a particular race.
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Mr. McGinnis stated that the report will list the number of undervotes for each office. He added that after all the ballots in an election have been counted, the PC offers several reporting options for the canvass report that is sent to the Election Division. He noted that by choosing "F9", a canvass report can be printed listing the number of votes received by each candidate in each precinct. He said that the canvass lists each candidate at the top of the report, along with an assigned number for that candidate. He indicated that each candidate number is printed at the top of the canvass, with a column running down the left side of the page listing all of the precincts, and that the number of votes received by a candidate in each precinct can be determined by matching the candidate number and the precinct line in the column.
Mr. McGinnis said that the system will also print an accumulated precinct report at the end of canvassing. He noted that larger jurisdictions also found the report listing all precincts processed to be a useful document to so that county officials can quickly determine which precincts have not reported so that precinct officials can be contacted. He indicated that the reports can also be displayed on the PC screen, but not printed. He said that about six jurisdictions using this system arrange for the vote totals to be sent from the tabulator and projected on large screens for public viewing. Mr. McGinnis stated that the Utilities function makes a back-up copy of all vote totals, and at the end of canvassing, these totals will be copied onto a floppy disk for safekeeping.
Mr. McGinnis indicated that if a precinct's certificate of vote totals in the ballot box does not match the vote totals on the PC screen, county election officials are instructed to set that precinct aside so that the precinct can be "zeroed out" in the tabulator, and then reprocessed after the county election officials determine where a mathematical or other tabulation error occurred in that's precinct certificate.
Mr. McGinnis noted that the system had functions to permit the restoration of vote totals from backup copies and to merge vote totals from backup copies. He indicated that at the conclusion of the canvass, the county election board conducts a "post test" of the voting system. He noted that this post test is performed for certain precincts with the same test deck used before the election for the public test. Mr. McGinnis indicated that after a back-up copy of precinct vote totals have been made on the computer diskette, the precinct vote totals are "zeroed out" on the machine to conduct the post test. He said that after conducting the post test, the county officials restore all or part of the actual precinct vote totals to the system by using these functions.
Mr. McGinnis noted that the system can simulate header or ender cards if these cards are lost or destroyed. He remarked that each header card indicates the candidates on the ballot in the appropriate precinct, and that the system can supply this information to permit tabulation without the header or ender cards being available. He added that the system can be instructed to end all ballot counting functions when the last precinct has been tabulated and the post test has been conducted.
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Mr. McGinnis stated that if a punch card has been torn, or inserted backwards into the holder and punches have then been made, the system will stop tabulation and alert users that a problem has occurred when the system attempts to process this punch card. He indicated that county election officials can then "re-make" the card if it is possible to determine the voter's intent.
Mr. McGinnis remarked that F5, F6, and F7 are the three most important functions used by the system, but that F2 permits variations such as printing lines for pollworker signatures, F3 permits all candidates to be listed in order of overall top vote getters, and F4 provides for reporting both overvotes and undervotes. He indicated that he often advises county users to omit printing out the overvote and undervote reports on election night due to the confusion it can cause to candidates and members of the public who are not familiar with these concepts, and to generate these reports after election night. He said that the number of columns on each report can be adjusted to suit the type of printer used. Mr. McGinnis noted that function F8 provides for cumulative vote totals to be included on individual precinct reports as each precinct report is processed. He indicated that his experience led him to believe that having the fewest numbers possible on precinct reports reduced confusion and error in canvassing process. Mr. McGinnis indicated that the system can also display overvote and undervote percentages, but that this function is not used very frequently by the counties.
Mr. McGinnis stated that F9 was the "whoops" key to correct an error by restoring the previous setting. He indicated that the functions were very easy to use on this system, with each function key under Utilities displaying a list of reports or report options. He noted that all reports contain a time and date stamp to document when the report was generated, and that when a user backs up out of the system, the user may print a log showing every key stroke made on the system from pre-test, the entire tabulation, to post test. Mr. McGinnis said that many of these functions contain a confirmation question to ask the user to indicate that they do wish the system to perform the function the user has chosen, and noted that this reduces accidental deletion of information. He indicated that this function was important in resolving questions regarding the proper functioning of the system, particularly in recounts.
The chair recognized Mr. Perkins, who referred to the August 5 letter from Mr. King and Ms. Robertson to Mr. Black, and noted that the Election Division staff had recommended recertification of this voting system if ES&S complied with certain conditions, including ES&S supplying information concerning the escrow arrangements for the system's software to permit the Election Division to have emergency access to the source codes for this software if necessary shortly before an election. Mr. Black indicated that this information had not yet been supplied to the Election Division. In response to a question from Mr. Perkins, Mr. King noted that in previous instances of recertification, staff had recommended approval of the application subject
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to the vendor subsequently supplying this information. He added that no ES&S customers using this system had submitted written comments concerning this recertification, but that the Hancock County circuit court clerk had telephoned to express her support for the ES&S application.
Mr. McGinnis stated that this voting system has been used in about 35 counties in Indiana, as well as in other states for many years. He added that this system had worked well over the years, and is very user friendly. In response to a question from Mr. Perkins, Mr. Black said that ES&S had provided escrow information to the Election Division regarding the company's optical scan voting system and would provide this information to the Election Division regarding the PC-BT voting system. The chair thanked the representatives of ES&S for demonstrating this voting system to the Commission.
The chair recognized Mr. King, who stated that staff's recommendation was for the Commission to recertify the ES&S PC BT voting system for use in Indiana, subject to ES&S complying with the request for the submission of escrow information and upon ES&S reimbursing the Election Division for the testing costs paid to ISD.
Mr. Perkins moved that the ES&S PC-BT voting system be recertified for marketing and use in Indiana during the next five year period, subject to the submission of the required escrow information set forth in the August 5 letter to Mr. Black and the reimbursement of testing costs incurred by the Election Division. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Garver, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.
B. GOVERNMENTAL BUSINESS SYSTEMS ACCU-TAB BALLOT CARD VOTING SYSTEM ESCROW:
The chair recognized Mr. King, who stated that Commission members had received a copy of a letter dated July 7, 1998 from himself to Mr. Steve Corey of GBS concerning this issue. A copy of this letter is incorporated by reference in these minutes. Mr. King remarked that the GBS ACCU-TAB ballot card voting system had been recertified by the Commission earlier this year, but that arrangements for the escrowing of the voting system's software still needed to be completed.
The chair recognized Mr. Corey, who presented documents to the Commission concerning the escrow of this material (the documents being designated as Exhibit B and Exhibit C, along with a one page attachment). These documents are incorporated by reference in these minutes. Mr. Corey stated that GBS had requested that Fort Knox Escrow Services, Inc., a firm located in
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Norcross, Georgia, add the State of Indiana as a licensee with access to the escrowed material concerning this voting system, with Mr. King being the contact person. He indicated that Fort Knox had not yet responded to this request. He noted that GBS was relocating its corporate headquarters and that the dislocation caused by this move had delayed completing some of the firm's business in this matter.
Mr. Corey stated that when GBS receives the signed escrow agreement from Fort Knox, he will be prepared to present this agreement at the Commission's next meeting. In response to a question from the chair, Mr. King indicated that it had been past practice for staff to present escrow agreements to the Commission for its approval, and that he would be prepared to do so at the next meeting following receipt of the signed agreement from GBS. Mr. Corey thanked the Commission for their consideration.
C. GOVERNMENTAL BUSINESS SYSTEMS ACCU-TOUCH DIRECT RECORDING ELECTRONIC VOTING SYSTEM APPLICATION FOR CERTIFICATION:
The chair recognized Mr. King, who stated that on June 28, 1998, the Election Division received an application for the certification of this voting system for marketing and use in Indiana. He submitted a copy of the application, consisting of a cover letter from Mr. Corey dated June 29, along with the IEC-11 application form and a binder setting forth detailed information concerning this voting system. A copy of these documents are incorporated by reference in these minutes. Mr. King noted that this voting system is a direct recording electronic system which had not been previously certified in Indiana.
The chair recognized Mr. Corey, who stated that GBS has already submitted all of the technical documentation required for consideration of this voting system. He indicated that although GBS had planned to demonstrate this voting system to the Commission at today's meeting, GBS had decided not to do so since Global Election Systems, the manufacturer of this product, has almost completed some "retooling", and as a result, GBS plans to demonstrate the revised system at the
Commission's next meeting. Mr. Corey stated that Global has revised the system to build a printer into the precinct devices themselves. He said that the Commission should anticipate that a large number of DRE systems will be requesting certification, and that these DREs will include both true touch screen systems, while others have screen systems with buttons. He indicated that many of these newer systems have external features which require the use of external printers or modems when used by pollworkers. Mr. Corey stated that Global planned to make these features all internal so that the system would be easier for pollworkers to use.
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Mr. Corey added that the system is so new that there is no literature concerning it available to present to the Commission, but that all of the technical information regarding the DRE has been supplied to the Election Division. He noted that Wyle Laboratories has already approved the hardware and "resident software" for this system. He concluded by stating that when GBS obtains a retooled system, he will contact Mr. King to arrange for a demonstration of the voting system before the Commission.
D. ENFORCEMENT OF BALLOT CARD SECURITY STUB STATUTE (INDIANA CODE 3-11-13-18):
The chair recognized Mr. King, who stated that the Commission had discussed this matter at a previous meeting this year. He provided Commission members with copies of the Indiana statutes pertinent to this requirement (Indiana Code 3-5-2-4 and 3-11-13-18), along with copies of letters dated July 2, 1998 from Mr. King to Mr. Black of ES&S, Mr. Corey of GBS, and Mr. Shamo of MicroVote concerning this requirement. Copies of these documents are incorporated by reference in these minutes.
Mr. King noted that the definition of "ballot card" in IC 3-5-2-4 indicates that this term applies both to the traditional "punch cards" demonstrated earlier to the Commission, as well as to the newer optical scan cards, on which a voter shades in the voter's choice of candidates, with the shading then being read by an optical scan device. He referred the Commission to IC 3-11-13-18, which specifies that each ballot card must have two attached perforated stubs with an identical serial number printed on each stub. He indicated that the statute required that the top stub be bound or stapled within the package of ballot cards and retained by precinct election officials, and that the second stub be detached when the voter presents the ballot to precinct election officials. Mr. King stated that vendors had previously informed the Commission that some counties were not using the dual security stub system, either because of additional cost or because it might be difficult for a tabulator to process a ballot card after a stub had been detached. He indicated that he had contacted each vendor at the request of the chairman so that their concerns regarding this statutory requirement could be discussed. He concluded by noting that any legislative solution could not be implemented until after the November 1998 election.
In response to a question from the chair regarding the disposition of the two stubs, Mr. King stated that the top stub is retained by precinct election officials, while the second stub is offered to the voter. The chair noted that the statute indicated that the top stub is only required to contain the serial number, but that the statute requires the second stub to contain several items of information such as the date and type of the election, along with the serial number.
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The chair recognized Mr. McGinnis of ES&S, who stated that his firm was concerned about the increased costs of complying with the second stub requirement. He noted that he expected their customers to complain about this additional cost, which did not appear to have a benefit with regard to this ballot. Mr. McGinnis said that ES&S produced punch cards as well as optical scan cards, and that the stub requirement was not a problem regarding the punch cards since the stub was removed, and handed to the voter when the voter leaves the polls. He noted that with regard to optical scan cards, the voter will insert the ballot in a counter, which will require one more step for pollworkers and for the voter.
Mr. McGinnis stated that additional steps lead to confusion at the polls. He cited the example of Washington County (which used two stub ballots for the first election that the county employed the optical scan system). He said that a Washington County precinct election board thought that the ballots were supposed to retain the second stub when processed by the tabulator, and therefore scotch taped the second stub to the ballot after a voter had properly removed the stub. He indicated that the precinct counter had been damaged as a result when the scotch tape was caught in the tabulator. He asked the Commission what benefit the extra stub brings since he does not know. The chair responded that he personally did not see any benefit at all, but that the state statutes clearly requires that there be two stubs, and that the statute must be followed. Mr. McGinnis responded that part of the problem was that the statutes were written for punch cards, and not for optical scan. The chair asked whether Fountain County has been using two numbered stubs on its punch card ballots. Mr. Black responded that these ballots did contain two stubs. Mr. McGinnis stated that ES&S would print ballots in compliance with whatever requirements the Commission determined to be applicable, and asked whether the Commission might wish to consider a change in these statutes.
Mr. McGinnis stated that while the punch card ballots do not contain the candidates' names, as the optical scan ballots do, and that the optical scan ballots are printed on larger pieces of paper. He indicated that the voter is feeding an optical scan ballot through a card reader at the precinct, while the punch cards are tabulated in a central location. He emphasized that it was important for each pollworker to understand the processing requirements for optical scan cards. He stated that the system should not be made more complicated than necessary, and that unless the Commission saw a specific benefit to the second stub requirement, that the vendors not be required to comply with this statute.
In response to a question from the chair concerning any statutory requirement that the stub be attached to the ballot, Mr. King referred to Indiana Code 3-11-13-18(a), which required that the two stubs be attached to the ballot.
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Mr. McGinnis asked if the purpose of the second stub was to provide a receipt to the voter. In response to a question from the chair, Mr. McGinnis stated that Maryland currently requires that these stubs be printed on ballot cards. Mr. Whalen responded that in Maryland, the second stub is collected by the pollworkers or retained by the voters, but that there is no rhyme or reason for the requirement. He added that Michigan does not require the use of the second stub. Mr. McGinnis stated that he had contacted an ES&S representative in Maryland, who had advised him that all the second stub does is cause confusion.
The chair recognized Mr. Corey, who said that in the states imposing this requirement, the stubs are to be given to the voters, and are generally discarded by the voters before leaving the polling place.
The chair recognized Mr. Black, who stated that while he understood that a statute currently required the stubbing of ballot cards, there was no comparable stubbing requirement for paper ballots. Mr. McGinnis said that a paper ballot was closer to an optical scan ballot than to a punch card. In response to a question from Mr. McGinnis, Mr. King stated that there was no statutory requirement for the use of stubs on official paper ballots. Mr. King added that this requirement applies to optical scan cards as a result of the definition in Indiana Code 3-5-2-4 which includes both punch cards and optical scan cards under the definition of "ballot card" for Election Code purposes.
The chair asked for staff's recommendation in this matter. Mr. King responded that he and Ms. Robertson would not attempt to address whether certain procedures regarding the use of ballot cards would be feasible from a technical perspective, but would address two issues: first, to what extent it is practical to require a voting system to comply with standards that were adopted in 1986, before the current optical scan ballot card voting systems were envisioned. He noted, however, that the staff could not recommend to the Commission that vendors not be required to follow the law. He indicated that this recommendation was supported by the arguments asserted in a recount that he and Ms. Robertson had assisted with recently. Mr. King stated that in this recount, requirements far more technical than that of the second stub were asserted to contend that particular ballots, or even all of the ballots in a precinct, should not be counted. He expressed their concern that a county or a candidate could suffer unintended harm following the general election as a result of the failure of ballot cards to comply with all pertinent requirements. He indicated, however, that there also did not appear to be any national consensus that the newer optical scan ballot cards be required to be printed with two stubs. Mr. King suggested that staff meet with the vendors to review the ballot card statutes and be prepared to make recommendations to the 1999 session of the General Assembly concerning the amendment of ballot card requirements which do not make sense when applied to optical scan ballot cards.
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Mr. King stated that the second issue concerned the use of the traditional punch card ballots in locations such as Fountain County. He indicated that it would be important to ensure that the use of double stubs continue in punch card counties, unless there was a consensus that this requirement did not serve a useful security purpose in those counties either. Mr. King added that it would be useful to receive additional input from the thirty or so Indiana punch card counties before proceeding with a recommendation that would affect those jurisdictions.
Mr. King concluded by stating that when counties inquired about ballot printing requirements for the November 1998 general election, staff believed that it must advise these counties to comply with the current state laws governing ballot cards, but to also advise them that the statutes might be amended with regard to future elections.
The chair recognized Mr. Corey, who presented a one page memorandum to the Commission dated August 17, 1998. A copy of this document is incorporated by reference in these minutes. Mr. Corey stated that he entirely agreed with Mr. McGinnis's remarks. He added that everyone appeared to agree that this requirement would result in additional costs for counties for a ballot printing feature which was not necessary. Mr. Corey indicated that this additional cost would be significant in larger jurisdictions, since a cost of three to five additional cents per ballot would be imposed as a result of this second stub. He stated GBS would nonetheless comply with the current ballot card statute for the November 1998 general election, as it did in the May 1998 primary election in Steuben County, but expressed the hope that this statute would be changed during the 1999 session of the General Assembly.
The chair recognized Ms. Christie, who stated that a total of ten Indiana counties would be affected by this requirement (the nine Indiana counties currently using the ES&S Optech III-P optical scan system, and Steuben County, which uses the GBS optical scan system).
The chair recognized Mr. McGinnis, who stated that he was also concerned regarding the large amount of information that must be printed on the second stub in accordance with this statute. Mr. Black stated that the instructions are not currently printed on the second stub, but appear on the ballot card itself. The chair stated that the back of the punch card contains instructions to place the punch card over the tabs. Mr. Corey stated that GBS does place instructions on the stubs produced for Steuben County.
The chair recognized Mr. Morgan, who asked if this matter could be studied further before the next Commission meeting. In response to a question from the chair concerning the timing for the printing of ballots, Mr. Black responded that ES&S would begin printing ballots following the Election Division's certification of general election candidates, which must occur by August 20, and as a result, he did not think this matter could be addressed before the election.
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In response to a question from Mr. Black, Mr. King agreed with Mr. Black that it was wishful thinking to believe that there was a short-term solution to this problem that could be implemented before the 1998 general election. He said the long-term solution was amending the statute next year. Mr. King noted that by state law, ballots must be printed and delivered to counties no later than September 19, 1998, and that as a result, it would be very difficult to schedule another Commission meeting and attempt to resolve this problem.
In response to a question from the chair, Mr. King stated that it was not necessary for the Commission to take action on this matter today. He indicated that staff had brought this issue before the Commission to advise them of this problem. He said that unless the Commission preferred otherwise, staff would continue to advise counties to fully comply with the current law, and to bring their concerns regarding this matter to the attention of their state legislators. He added that staff would also advise counties that the Election Division would be working with the vendors to develop legislative proposals in this matter for consideration by the General Assembly.
The chair recognized Mr. Morgan, who stated that the Commission's fall back position could be to determine the Commission's attitude regarding this matter at a Commission meeting after the fact, but before the November election. He said this might give the Commission an opportunity to learn who had proposed this dual stub requirement, and for what purpose. He agreed that this was an awkward situation, and must be addressed after the 1998 general election.
The chair recognized Mr. Perkins, who stated that based on the presentations and Commission discussion, he moved that the Commission take this matter under advisement, and work with staff to develop some options on how to address this matter. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Garver, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.
E. NICHOLS RESEARCH CORPORATION CORRESPONDENCE:
The chair recognized Mr. King, who stated that Commission members had received copies of a letter to Mr. King dated August 6, 1998 from Mr. Shawn Southworth of Nichols Research Corporation. A copy of this letter is incorporated by reference in these minutes. Mr. King noted that this letter contained detailed information concerning the voting software testing procedures employed at Nichols, which is the only independent testing authority accredited by the National Association of State Election Directors to confirm software compliance with Federal Election Commission standards.
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The chair stated that the Commission meeting would stand in recess at 11:05 a.m.
The chair reconvened the Commission meeting at 11:20 a.m., in the same location and with the same members and staff present.
5. CANDIDATE ELIGIBILITY DETERMINATIONS:
The chair asked all individuals who planned to testify in any of these causes to stand for the administration of an oath by Mr. King. Mr. King proceeded to administer the oath to those who wished to testify before the Commission.
A. CAUSE 98-165 (IN RE: THE NOMINATION OF JACK L. RIDDLE AS THE REPUBLICAN PARTY CANDIDATE FOR PROSECUTING ATTORNEY IN THE 77TH JUDICIAL CIRCUIT (CRAWFORD COUNTY))
The chair recognized Ms. Robertson, who stated that Commission members had received a copy of a letter to the Co-Directors dated July 10, 1998, from Mr. Larry C. Wilder of Wilder Lewis & Williams, with an attached affidavit signed by Ms. Sherri L. Byerly and dated July 10, 1998. A copy of the letter and affidavit are incorporated by reference in these minutes.
Ms. Robertson stated that the affidavit challenged Mr. Riddle's candidacy on the 1998 general election ballot for this office due to Mr. Riddle's suspension from the practice of law by the Indiana Supreme Court. She added that the affidavit refers to a statute requiring that a candidate for prosecuting attorney be admitted to the practice of law in Indiana at the time of the general election.
Ms. Robertson said that Commission members had also received a copy of a two page letter to the Co-Directors dated August 4, 1998, from Mr. Riddle, in which Mr. Riddle requested that his name be removed from the ballot. A copy of this letter is incorporated by reference in these minutes. Ms. Robertson added that she and Mr. King had prepared a draft of the proposed Findings of Fact and Final Order 1998-77 for adoption by the Commission in this matter if the Commission determined that Mr. Riddle should be removed from the ballot. A copy of the Findings of Fact and Final Order are incorporated by reference in these minutes.
The chair asked if any person wished to testify in this matter. There was no response.
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Mr. Cruea moved that the Findings of Fact in this cause and Final Order 1998-77 be adopted as presented. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Garver, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.
B. CAUSE 98-166 (IN RE: THE NOMINATION OF ROGER M. MILLER AS THE DEMOCRATIC PARTY CANDIDATE FOR PROSECUTING ATTORNEY IN THE 56TH JUDICIAL CIRCUIT (HUNTINGTON COUNTY))
The chair recognized Mr. King, who stated that an affidavit had been signed by Mr. Robert C. Brown, Jr., and filed with the Election Division on August 10, 1998 concerning the selection of Mr. Miller as the Democratic Party candidate for Prosecuting Attorney for Huntington County. He noted that Commission members had received a copy of a letter dated August 13, 1998 from Ms. Robertson to Mr. Miller providing notice of this hearing. Copies of these documents, with their attachments, are incorporated by reference in these minutes. Mr. King noted that Mr. McClamroch was present as counsel for the petitioner.
The chair recognized Mr. McClamroch, who stated that he wished to introduce certain documents into evidence, and that if these were accepted, he did not anticipate the need to call any witnesses to testify in this matter. Mr. McClamroch presented the following exhibits to the Commission: (1) "Exhibit A", a declaration of candidacy signed by Mr. Miller on July 9, 1998; (2) "Exhibit B", a certificate of candidate selection to fill an early ballot vacancy for a local office, signed by Rita G. Johnson on July 27, 1998; (3) "Exhibit C", an undated certificate signed by Pamela J. Updike, Huntington County Circuit Court Clerk; (4) "Exhibit D", a letter dated August 7, 1998, from Kate Love-Jacobson, Allen County Board of Voter Registration; (5) "Exhibit E", the minutes of a meeting of the Democrat Caucus dated July 8, 1998, and signed by Bonnie Kindler, Secretary; and (6) "Exhibit F", the first page of the statement of economic interests filed by Mr. Roger M. Miller on August 4, 1998 with the Clerk of the Supreme Court. The Commission consented to the introduction of these exhibits into evidence.
Mr. McClamroch stated that Mr. Miller should be removed as a candidate for Prosecuting Attorney for three reasons: (1) Mr. Miller is not registered as a voter in Huntington County; (2) Mr. Miller's selection was improper because the certificate of candidate selection was not signed by the Huntington County Democratic Party chairman, even though appointment by the county chairman was apparently the process used to fill this candidate vacancy; and (3) Mr. Miller filed his statement of economic interests after the certificate of candidate selection was filed. Mr. McClamroch then distributed copies of the exhibits.
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Mr. McClamroch contended that Indiana Code 3-8-1-1 clearly states that a person is not qualified to run for local office unless the person is registered to vote in the election district the person seeks to represent no later than the deadline for filing as a candidate. He stated that Mr. Miller is not qualified to be a candidate for a local office in Huntington County since he is not registered to vote there. He added that IC 3-8-1-1 applies to candidates for prosecuting attorney since the central issue in the case of Mason v. Gohmann, 498 N.E.2d 1344 (Ind.App. 1986) concerned whether Stephen Goldsmith, a candidate for Marion County Prosecuting Attorney, had complied with the requirement to be a registered voter in Marion County. Mr. McClamroch stated that the Court of Appeals held in this case that if Mr. Goldsmith was not a registered voter in Marion County, he was not qualified to be a candidate for the office of Prosecuting Attorney. Mr. McClamroch stated that the exhibits submitted in this case clearly establish that Mr. Miller is not a registered voter in Huntington County: (1) the declaration of candidacy signed by Mr. Miller states that he is a resident of Allen County; (2) the certificate of candidate selection filed by the Huntington County states that Mr. Miller is a resident of Allen County; (3) the certificate executed by the Huntington County circuit court clerk certifies that Mr. Miller is not a registered voter of Huntington County; and (4) the certificate signed by a member of the Allen County Board of Voter Registration states that Mr. Miller is a registered voter of Allen County. Mr. McClamroch stated that both the law and facts regarding this issue are clear, and that Mr. Miller is not qualified to be a candidate for this office.
Mr. McClamroch said that with regard to the filling of this candidate vacancy, the petitioner notes that the form (CAN-29) has been signed by the vice-chairman of the Huntington County Democratic Party. He contended that the law in this case (Indiana Code 3-13-1-6) very clearly requires that the candidate vacancy be filled by a caucus of precinct committeemen, or the county chairman, when authorized to do so, but not by the vice-chairman. He indicated that the statute states that the county chairman shall file a certification of candidate selection, and that the fact that Rita Johnson signed this certificate as vice-chairman was undisputed in this case. Mr. McClamroch noted that Exhibit E, submitted by the petitioner in this matter establishes that Ms. Johnson is not the Huntington County Democratic Party chairman, and that Mr. Everett Clements currently serves as chairman. Mr. McClamroch added that the certificate had not been properly notarized, and that state law required that this certification be made on a form prescribed by the Commission.
Mr. McClamroch contended that Mr. Miller's failure to file his statement of economic interests until after the declaration of candidacy and the certificate of candidate selection was filed with the Election Division raised a jurisdictional issue regarding his candidacy. He noted that although this might seem like a mere filing problem, Indiana Code 3-8-1-33 provides that the statement of economic interests must be filed before the certificate of candidate selection is filed. He added that Indiana Code 3-13-1-14 provides that a candidacy is not effective until a candidate has complied with IC 3-8-1-33. He noted that Exhibit F indicated that the statement was filed with
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Clerk of the Supreme Court on August 4, 1998, while the certificate of candidate selection (CAN-29; Exhibit B) indicates that the certificate was filed on July 28, 1998. He added that Indiana Code 33-2.1-8-7 also specifically requires the filing of the economic interest statement before the declaration of candidacy is filed. Mr. McClamroch stated that the application of any of these three statutes would require that Mr. Miller be removed from the general election ballot.
The chair recognized Mr. King, who stated that on August 17, 1998 Mr. Miller had filed a complete copy of his statement of economic interests with the Election Division, along with a handwritten note concerning this matter. The Commission consented to the introduction of this document into evidence and designated the document as "Exhibit G."
The chair then recognized Mr. Miller to present his response. Mr. Miller referred to Article 7, Section 16 of the Constitution of the State of Indiana, which sets forth the requirements for serving as Prosecuting Attorney, and also to Indiana Code 3-8-1-19, which sets forth the requirements for candidates for this office. He noted that several statutes impose a one year residence requirements for judicial office candidates, but that these statutes do not apply to prosecuting attorney candidates. Mr. Miller stated that he believed that he was qualified to be a candidate, and that the political party had every right to choose a qualified individual as its candidate for this office. In response to a question from Mr. Perkins, Mr. Miller stated that the Constitutional provision that he cited had been adopted by the electorate on November 3, 1970.
In response to a question from Mr. Perkins, Mr. Miller stated that he was registered to vote in Allen County, and that he resided in Allen County. In response to a further question from Mr. Perkins, Mr. McClamroch stated that the certificate of candidate selection was signed by the vice-chairman. Mr. Miller added that he did not dispute this fact, but understood that the vice-chairman did so because the chairman was absent. In response to a final question from Mr. Perkins, Mr. King stated that the statement of economic interests was received by the Election Division and file stamped on August 17, but that the statement may have been filed with State Court Administration on an earlier date. Mr. McClamroch advised the Commission that he had obtained a copy of the statement of economic interest statement from State Court Administration which indicated that the document had been filed in that office on August 4, 1998. Mr. Miller responded that he mailed this document, and believed that the August 4 date might be correct. He stated that he was uncertain whether he had mailed the statement before or after the party caucus. Mr. Perkins noted that the certificate of candidate selection had been filed July 28.
In response to a question from the chair concerning the date on which the statement of economic interest was signed, Mr. Miller stated that he had dated the document as July 29. The chair noted that the vice-chairman had signed the certification on July 27, 1998.
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The chair then recognized Mr. McClamroch for rebuttal argument. Mr. McClamroch stated that the constitutional provision cited by Mr. Miller does not determine the qualifications of candidates for the office of prosecuting attorney, and does not address residency requirements for candidates or individuals serving as a prosecuting attorney. He stated that this constitutional provision does not preclude the Indiana General Assembly from enacting legislation requiring that a candidate be a resident of the election district or a registered voter. He added that Article 6. Section 4 of the Indiana Constitution also provides that "no person shall be elected... as a county officer, who is not an elector of the county and who has not been an inhabitant of the county one year next preceding his election or appointment." Mr. McClamroch added that Indiana Code 3-8-1-19 simply provides that a candidate for prosecuting attorney must be a practicing attorney, which was a relevant factor in the Riddle matter decided by the Commission earlier today.
The chair then recognized Mr. Miller, who responded that Article 7, Section 10 of the Indiana Constitution specifically requires that a judge be domiciled within the district for ten years, and that circuit judges would be subject to the same requirement. He said that the Constitution did not contain a similar provision regarding prosecuting attorneys.
There being no further discussion, the chair closed the Commission's hearing in this cause. In response to a question from the chair, Mr. King indicated that he and Ms. Robertson had analyzed the constitutional and statutory provisions cited by both parties in this matter, and could convey their opinion regarding the law in this case.
Mr. King stated that the constitutional provisions cited in this matter concerning prosecuting attorneys and judges are included within Article 7, which was adopted by the voters in 1970. He noted that both before and after that date, the General Assembly had adopted and subsequently amended the provisions now contained in Indiana Code 3-8-1-1, which sets forth a general requirement applicable to all candidates for local office. He noted that "local office" is defined as including circuit offices, such as prosecuting attorney. He indicated that there is no case law holding that Indiana Code 3-8-1-1 is unconstitutional as applied to prosecuting attorneys, and that the Indiana Court of Appeals had held in the 1986 Mason v. Gohmann case that this statute does apply to candidates for prosecuting attorney. Mr. King noted that while IC 3-8-1-19 sets forth some additional requirements for prosecuting attorney candidates, this is not unusual in that the legislature has enacted a general requirement for candidates in IC 3-8-1-1, and in the case of some, but not all, other offices, has imposed additional requirements for those candidates. He concluded that he and Ms. Robertson were therefore of the opinion that IC 3-8-1-1 does apply to candidates for prosecuting attorney and that a candidate must therefore have been a registered voter of the circuit no later than the deadline for filing a declaration of candidacy.
Mr. King noted that the statute concerning candidate vacancies that occurred because no candidate ran in a primary provides that the vacancy can only be filled by one of several specified methods:
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(1) by a caucus of precinct committeemen and vice-committeemen; or (2) if that caucus is not held, by the delegation of this authority by the committeemen and vice-committeemen, either to the county chairman or to all four officers of the county committee, namely the chairman, vice-chairman, secretary, and treasurer. He indicated that there is no provision in state law authorizing the vice-chair to act independently or on behalf of the chairman. Mr. King noted that there is case law (Higgins v. Hale, 476 N.E.2d 95 (Ind. 1985)), holding that the procedures in the vacancy filling statutes must be followed for the filling of the candidate vacancy to be effective.
Mr. King stated that the third argument concerning the filing of the economic interest statement is partially a question of fact, and partially a question of law. He indicated that the law clearly requires that a candidate for prosecuting attorney file the statement of economic interests with State Court Administration before the certificate of candidate selection is filed with the Election Division. He remarked that in several cases earlier this year, he and Ms. Robertson had held declarations of candidacy filed by candidates for judicial office or prosecuting attorney to wait for the statement of economic interests to arrive at the Election Division.
Mr. King concluded that legal staff's opinion was that: (1) IC 3-8-1-1 does apply to candidates for prosecuting attorney; (2) that IC 3-13-1 requires that either the county chairman or county officers acting jointly appoint a candidate when authorized by precinct committeemen and vice-committeemen; and (3) that IC 3-8-1 does require the prior filing of the statement of economic interests.
Mr. Cruea then moved that the name of Roger M. Miller not be placed on the ballot as a candidate for Prosecuting Attorney in the 56th Judicial Circuit (Huntington County) due to the fact that Mr. Miller does not meet the requirements of IC 3-8-1-1, the fact that the certificate of candidate selection was not signed by the county chairman, and the fact that Mr. Miller's statement of economic interest was not filed in a timely manner. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Garver, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted. Mr. King advised the Commission that Findings of Fact and a Final Order in this matter would be prepared for Commission members to sign at the next meeting.
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C. CAUSE 98-167 (IN RE: THE NOMINATION OF REBECCA F. MAJORS AS THE LIBERTARIAN PARTY CANDIDATE FOR INDIANA HOUSE OF REPRESENTATIVES, DISTRICT 78)
The chair recognized Mr. King, who stated that Commission members had received a copy of a letter dated August 12, 1998 to Mr. King from Ms. Connie Jean Carrier, with an attached affidavit signed by Ms. Carrier dated August 12, 1998 and other attachments. Mr. King noted that Commission members had also received a copy of a letter dated August 13, 1998 from Ms. Robertson to Ms. Majors, notifying Ms. Majors of the filing of the affidavit and of this meeting. A copy of the letters, affidavit, and attachments are incorporated by reference in these minutes.
Mr. King added that shortly before the Commission meeting began on this date, he received a facsimile transmission from Ms. Majors, in which she requested that her name be removed from the general election ballot. A copy of this document is incorporated by reference in these minutes.
Mr. King stated that he and Ms. Robertson had prepared a draft of the proposed Findings of Fact and Final Order 1998-78 for adoption by the Commission in this matter if the Commission determined that Ms. Majors should be removed from the ballot. A copy of the Findings of Fact and Final Order are incorporated by reference in these minutes.
After Commission members reviewed the documents, the chair asked if any person wished to testify in this matter. There was no response.
Mr. Perkins moved that the Findings of Fact in this cause and Final Order 1998-78 be adopted as presented. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Garver, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.
D. LETTER TO MR. WELKE CONCERNING BURGHER VIDEOTAPE:
The chair recognized Ms. Robertson, who stated that Commission members had received a copy of a letter dated June 26, 1998 from herself and Mr. King to Mr. Brent Welke. A copy of this letter is incorporated by reference in these minutes.
Ms. Robertson noted that this letter concerned the videotape submitted by Mr. Welke during the Commission's consideration of the eligibility of Marcus Burgher, IV, as a candidate for Prosecuting Attorney in Crawford County at its March 10, 1998 meeting. She indicated that Mr. Welke had requested that the videotape be returned, and that staff had responded that this videotape had been accepted into the public record of this proceeding and that as a result, could
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not be returned to Mr. Welke. She added that they had advised Mr. Welke that the office would be happy to make arrangements for him to copy this videotape, but that they had not been contacted again by Mr. Welke as of this date. The chair thanked Ms. Robertson, and noted that the letter was self-explanatory. There were no further questions from Commission members.
E. LETTER TO MR. KENT I. PHILLIPS CONCERNING STATE REPRESENTATIVE DISTRICT 83:
The chair recognized Mr. King, who stated that Commission members had received the following documents regarding this matter: (1) a letter dated July 31, 1998 from Mr. King and Ms. Robertson to Mr. Phillips; and (2) a letter dated July 23, 1998 from Mr. Phillips to Mr. Cruea. He added that on August 17, 1998, he had received a facsimile transmission from Mr. Phillips concerning Mr. Phillips's request to withdraw as a candidate for Indiana House of Representatives, District 83. Copies of the letters are incorporated by reference in these minutes.
Mr. King indicated that Mr. Phillips had informed him that Mr. Phillips was no longer an active candidate for State Representative District 83, and that Mr. Phillips had requested to be removed from the ballot. Mr. King stated that he advised Mr. Phillips that the deadline for Mr. Phillips to officially withdraw as a candidate (without the existence of a special circumstance, such as moving out of the election district) was noon, July 15, 1998, and that it was therefore too late to remove him from the ballot. Mr. King added that he had advised Mr. Phillips that Mr. King could submit his July 23 letter to the Commission to put this information concerning his candidacy on public record, and that Mr. Phillips had agreed to this approach.
Mr. King stated that the August 17 letter from Mr. Phillips indicated that, contrary to Mr. King's understanding of their conversation, Mr. Phillips was continuing to request that the Commission act to remove his name from the general election ballot. In response to questions from the chair and Mr. Morgan, Mr. King stated that he was not aware that Mr. Phillips had done anything which would disqualify him as a candidate, such as moving outside of the election district.
The chair stated that Mr. King's letter seemed self-explanatory. There being no further discussion, Mr. Cruea moved that the Commission deny Mr. Phillips's request to be removed from the general election ballot since there is no reason at this time which would require his removal from the general election ballot. Mr. Garver seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Garver, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.
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6. VOTER REGISTRATION REPORTS:
The chair recognized Ms. Tippett, who stated that Mr. Northern was not present to give this report, but that he would provide a full report at the next Commission meeting.
7. CO-DIRECTORS' REPORT:
The chair recognized Ms. Christie, who stated that the Election Division staff had been working with the Duplicate Voter Registration Elimination Program, required under NVRA, and had entered into a contract with Quest Information Systems to conduct this program. A copy of this contract is incorporated by reference in these minutes. She noted that this was the third year that the Election Division had undertaken this program, which involves sending postcards to voters identified as possibly being registered at more than one address. Ms. Christie added that staff was planning to host a meeting of county voter registration officials in the near future to identify ways to improve NVRA voter list maintenance, and would report the recommendations of this group to the Census Data Advisory Committee.
Ms. Christie noted that Commission members had received a copy of a letter dated June 26 from herself and Ms. Tippett to Mr. Joe Andrew and Mr. Michael McDaniel concerning new and revised election forms approved by the Commission. A copy of the letter is incorporated in these minutes by reference.
The chair recognized Ms. Tippett, who noted that Commissioner Morgan and Commissioner Perkins had been appointed to additional two year terms. Copies of the letters dated July 1, 1998 to Commissioners Morgan and Perkins from Governor Frank O'Bannon are incorporated by reference in these minutes.
Ms. Tippett reported that the Election Division was preparing the certification of candidates for the general election ballot, which will be mailed to the counties in the next couple of days.
8. LITIGATION REPORT:
The chair recognized Mr. King, who stated that there was no news concerning litigation since the last Commission meeting. Mr. King added that the Election Division had provided copies of Advisory Opinion 1998-1 and 1998-2 to the Census Data Advisory Committee to consider possible legislative solutions to gaps and ambiguities in the current campaign finance statute, as directed by the Commission.
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9. CAMPAIGN FINANCE CONSENT AGREEMENTS:
The chair recognized Ms. Tippett, who reported that some committees which had been assessed a campaign finance civil penalty wished to make arrangements to pay this penalty over the course of time. She stated that the Election Division believed that it might be worthwhile to pursue an agreement to that effect, rather than referring the matter to the Attorney General's office for collection. Ms. Tippett indicated that staff had borrowed similar agreements from the Securities Division of the Office of the Secretary of State to use as models for a consent agreement for the Co-Directors to sign when a committee wishes to pay a campaign finance civil penalty over time. She provided Commission members with copies of the Consent Agreements entered into by the Reform Party of Indiana, PAC to Keep Agriculture Engaged, and Barnard for State Representative. Copies of these agreements are incorporated by reference in these minutes.
The chair stated that the use of Consent Agreements was an excellent idea. Mr. Cruea moved, seconded by Mr. Morgan, that the Consent Agreement as prepared by the two Co-Directors be used in cases where a payment plan is needed. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Garver, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.
10. REMARKS CONCERNING ELECTION DIVISION BUDGET:
The chair recognized Ms. Christie, who stated that the Election Division had been preparing its budget submission for the next biennium, and had complied with a request from both the Governor's office and the Secretary of State's office to reduce the total budget by five percent. She indicated that she would be happy to supply information concerning the proposed budget to Commission members who wished to receive this information.
11. POLL WORKER COMPENSATION SURVEY:
The chair thanked staff for compiling information concerning poll worker compensation and providing the results to the several Indiana counties who requested it. A copy of the memorandum dated July 2, 1998 from Mr. King and Ms. Robertson to the circuit court clerks concerning this survey is incorporated by reference in these minutes. The chair added that this information had been very useful, and had led to some county councils approving raises for poll workers.
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12. POINT OF PERSONAL PRIVILEGE BY COMMISSIONER PERKINS:
The chair recognized Mr. Perkins, who requested the chair grant him a point of personal privilege to read a statement at this time. He added that before doing so, he wished to state that he was delighted to be reappointed to the Commission, and looked forward to serving for another two years, and working with everyone. He expressed his thanks to Commission members and the Election Division staff for their card, and for their kind thoughts and prayers when he and his wife had another baby boy. Mr. Perkins noted that he had not been present at the last Commission meeting when this event was recognized because he was in the hospital with his wife.
Mr. Perkins said that although his statement was not timely, he wished to place the statement in the record at the next Commission meeting he attended. Mr. Perkins then proceeded to read the following statement:
"I want to say at the outset, by way of introduction, I believe that this bipartisan structure of the Indiana Election Commission does work well. I have an excellent working relationship, not only with my Republican colleague, but also with my Democratic colleagues on the Commission. With that being said, we also are very keenly aware that any of the decisions that we make can ultimately have an effect on partisan politics. Nonetheless, I believe that the members of this Commission do attempt to check politics at the door and make decisions on the basis of enforcing Title 3 of the Indiana Code, without letting political affiliation influence our decisions.
With that being said, I think it would be naive of me to think that we are not part of the overall political system in the State of Indiana and as a result, many of our decisions often get scrutinized by professional, and sometimes not so professional, spin doctors. That, in itself, is OK. It comes with this territory, and anyone who doesn't have a stomach for that shouldn't serve on this Commission. However, a few months ago, the Election Commission heard the case of Bob Kern (or Bob Hidalgo Kern). Mr. Kern's candidacy was being challenged by the Marion County Democratic Party. To make a very long story short, the Commission voted two-to-two, which is in the record of the Commission hearing. That ended up with the Commission taking no action on Mr. Kern's candidacy, and he remained on the ballot. This case drew the attention of the local media and the spin doctors went to work. For reasons that I still do not understand, the Democratic spin doctors chose to target me. On television news and television shows (like Indiana Week in Review), and on local talk radio shows, I was labeled as, and I quote, "a political hack", and I was also portrayed as an unthinking automaton, who follows the directives of the leadership of the Republican Party without any analysis of the issues on my own. Those statements simply are just not true.
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All of this labeling, and all of these personal attacks on me, were designed to shift blame for Mr. Kern's placement on the ballot onto my shoulders. By now, as I mentioned before, this story has grown old, and for the moment, especially in light of the national events that have taken place in the last twenty-four hours, it is not necessarily newsworthy. But for the past couple of months, I have been out attending to personal family matters, as I noted, and also some very pressing business matters. As a result, I have not been able to attend the last few Election Commission meetings. Therefore, I was unable to respond to my critics in a timely manner. Today, while my comments are not timely, I am here to respond to those people who thought that they could make personal attacks against me, and upon my character, in public forums and get no response.
First, I want to say that the record of the Election Commission hearings speaks for itself. Nothing about Mr. Kern's candidacy violates Title 3 of the Indiana Code, and therefore this Commission acted appropriately. My attackers had apparently not taken the time to review the law in this matter, and they apparently are more comfortable with simply shooting from the hip. Second, anyone who reads the transcript of the Election Commission hearing on that day or the minutes from the hearing will find that none of the individuals who were out in the public attacking my character were present at this hearing. The hearing was held, however, with proper public notice, and in a public forum, in a room just like this. Yet these people chose not to attend. Instead, they chose to take the cowardly approach. They chose to misconstrue the proceedings based on, at best, second hand knowledge, and then irresponsibly, they chose to launch personal attacks on me in forums where they knew I could not respond.
Therefore, I say to those people who took this approach, your comments are irresponsible. I invite you to attend any meeting of the Indiana Election Commission, any time you have questions or comments on how this Commission rules on any matter. Every citizen of the state of Indiana has the right to do that. To those in positions of leadership in the Democratic Party, who chose to blame me for their own failures, and especially you, Mr. Andrew, I am proud to serve the citizens of the state of Indiana as a member of the Indiana Election Commission. I take my responsibilities on this Commission very seriously. I always evaluate the facts and the law, without allowing partisanship to sway my judgment. I take that responsibility very seriously, and if that makes me a political hack, I will proudly carry that label.
Finally, as I stated earlier, I have been consumed with personal business over the last couple of months, and therefore was unable to respond to these politically motivated attacks on my character in a timely manner. However, you can rest assured that future attacks on my character will not go unanswered. Thank you, Mr. Chairman."
Commission members thanked Mr. Perkins for his remarks.
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13. ADJOURNMENT:
There being no further business to come before the Commission, Mr. Garver moved, seconded by Mr. Perkins, that the Commission do now adjourn. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Garver, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted. The Commission then adjourned at 12:10 p.m.
Respectfully submitted,
________________________ ___________________________
Laurie P. Christie Mary Ann Tippett
Co-Director Co-Director
APPROVED:
__________________________