July 2000 Meeting Minutes

Indiana Election Commission

Minutes

JULY 27, 2000

MEMBERS PRESENT: Doug Webber as proxy for Dudley Cruea, Chairman of the Indiana Election Commission ("IEC"), S. Anthony Long, Butch Morgan, and Marty Dezelan as proxy for Joseph M. Perkins, Jr.

MEMBERS ABSENT: Dudley Cruea and Joseph M. Perkins, Jr..

STAFF ATTENDING: Candy Marendt, Co-Director, Election Division, Office of the Indiana Secretary of State ("Election Division"), Spencer Valentine, Co-Director, Election Division, Kristi Robertson, Co-General Counsel IEC and Election Division, Dale Simmons, Co-General Counsel IEC and Election Division; Pam Potesta, Co-Director, Campaign Finance, Election Division, and Michelle Thompson, Co-Director, Campaign Finance, Election Division.

ALSO ATTENDING: Brad Klopfenstein, Executive Director, Libertarian Party, Marcia J. Ferree, counsel for the Libertarian Party, Fred Peterson, Libertarian candidate, Lewis J. Richardson, Libertarian candidate, Charles S. Kennedy, Libertarian candidate, Cindy Kirkpatrick, Libertarian candidate, R.J. Tavel, J.D., Steve Shamo, representative of MicroVote, Steve Wyatt, representative of MicroVote, Don Vopalisnsky, representative of Global Election Systems and Steve Corey, representative of Global Election Systems.

1. CALL TO ORDER

Acting chair Doug Webber called the July 27, 2000 meeting of the IEC to order in Room 233, Indiana State House, 200 West Washington Street, Indianapolis, Indiana. He noted that proper notice of the meeting had been given, as required by state law, and that all Commission members were present except member Butch Morgan. The chair advised that according to information supplied to him that Mr. Morgan was on his way and would be joining the proceedings soon. The chair then indicated that the Commission members present would proceed with business on the agenda that could be performed in Mr. Morgan's absence.

The chair introduced himself as Doug Webber and indicated he was acting as proxy for Dudley Cruea. The chair also introduced Marty Dezelan as proxy for Joe Perkins. The chair also introduced permanent member Anthony Long.

Copies of the meeting notice and agenda are 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. APPROVAL OF THE MAY 25, 2000 MINUTES

The chair noted that each Commission member had previously received a draft of the proposed Commission minutes for the May 25, 2000 meeting. There being no corrections, Mr. Long moved that the May 25, 2000 minutes be approved as submitted. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Webber, Mr. Long, and Mr. Dezelan), and no member voting "nay", the motion was adopted.

3. REPORT BY CO-DIRECTORS

The chair recognized Ms. Marendt who addressed the Commission on the continuing operations of the Election Division. Ms. Marendt stated that the Election Division had begun the administration of the duplicate voter registration elimination program. She reported that the first batch of postcards had been sent to those voters identified as having duplicate voter registrations. She advised that the vendor who is conducting the mailing is maintaining a website to update circuit court clerks on the progress of the program.

Ms. Marendt also stated that she had made progress in collecting information with respect to voting system issues pending before the Commission. She stated that she would be providing a report to the Commission as soon as she has gathered sufficient information for a comprehensive report. The chair asked if any Commission members had any questions for Ms. Marendt.

Mr. Long stated that one of the issues before the Commission on voting systems was performing audits on voting systems now in use by the counties. Mr. Long indicated he was concerned with the appropriate remedy if an audit disclosed voting systems in use that were not consistent with voting systems previously approved by the Commission. Mr. Long suggested that the Election Division may want to study the possibility of requiring a vendor to post some kind of bond that would require the vendor to shoulder the cost of bringing a voting system into compliance with state law, rather than requiring the state or a county to bear the cost of brining voting systems into compliance. Mr. Long also suggested that the Commission consider the resources necessary to conduct an audit program when it sets its fee structure for approving voting systems.

Ms. Marendt indicated that she would look at both of those suggestions and incorporate information that bears upon those suggestions in her report.

The chair then recognized Mr. Valentine who thought that the Election Division should also consider how such a bonding process would relate to the escrow provisions already in place.

With respect to other business, Mr. Valentine indicated that the Election Division was preparing a presentation on campaign finance for a seminar sponsored by the Indiana Realtor's Association, the Construction Trade's Council, and the Indiana Farm Bureau on August 28, 2000. Mr. Valentine indicated that he had flyers describing the program for distribution and that those are available to Commission members and anyone else who may want to distribute those. Mr. Valentine indicated that the sponsors of the seminar were provided with a list from the Election Division of all open committees to assist the sponsors in conducting the mailing to prospective attendees.

Mr. Valentine stated that the Election Division had made a presentation the day before about the duplicate elimination program to a gathering of the Indiana Voter's Registration Association. Mr. Valentine indicated that problems with the duplicate elimination program were discussed as well as other voter registration issues.

4. VOTING SYSTEMS

The chair then announced that he would move voting systems up on the agenda because one of the vendors who wished to speak at the meeting had to catch a flight.

The chair recognized Ms. Marendt who indicated that there were two voting systems vendors who are currently asking the Commission to approve software changes for use in voting systems that have been previously approved by the Commission. She indicated that these approval requests are part of her ongoing research into how to deal with such requests. She stated, however, that since these requests for approval are pending before the Commission, and the vendors who are seeking approval are present today, including an expert on voting systems, that she would ask the vendors to address their requests so that the Commission may ask them questions about their requests.

The chair asked for clarification of the requests pending before the Commission. Ms. Marendt stated that Global Election Systems is requesting approval of changes to their software. She further stated that MicroVote is requesting approval of some changes to their MEMS 7.4 and 7.5 software. She stated that the specific changes for which the vendors are seeking approval are described in greater detail in letters submitted by the vendors, which letters are included in the Commissions packets. (Copies of the letters are incorporated into these minutes by reference)

The chair asked whether these vendors had already been through the statutory certification process. Ms. Marendt indicated that this was an issue that she was looking into. She stated that, under the current system, all machines needed to obtain certification from the Independent Testing Authorities, Wylie and Nichols.

Mr. Valentine indicated that the systems themselves have been certified but the upgrades have not been. The chair asked Mr. Marendt whether a procedure for approving upgrades to voting systems had been established.

Ms. Marendt stated that there is not currently a written procedure. She stated that she is going to provide the Commission members with information so that the Commission can make a determination as to what procedure would be appropriate for approving such changes or upgrades to previously approved systems. Ms. Marendt indicated that the issue might eventually be addressed by the testing authorities themselves in that their certifications may be contingent upon any subsequent changes being submitted to them to determine if additional testing was necessary.

The chair then asked whether it was Ms. Marendt's position whether the Commission should consider approval of the changes at today's meeting. Ms. Marendt indicated that she would recommend that the Commission not consider such approval until the Commission has made a determination as to how it would treat all similar requests.

The chair then recognized Mr. Valentine who indicated that he wanted to make clear, however, that the requests of the vendors were entered into the record before the Commission. Mr. Valentine also indicated that staff wanted to give the vendor's representatives present a chance to address the Commission about their requests. Mr. Valentine also wanted to point out the relevant code cite, 3-11-15-51 which talks about the ability of the Commission to approve upgrades to previously approved systems. Mr. Valentine indicated that there are two competing interests, the interest of streamlining the procedure for the vendors and the interest of approving secure voting systems for use by the public.

The chair asked Mr. Valentine whether he thought the issue should be addressed by amendment to the Commissions' procedures or by statutory amendment. Mr. Valentine responded that he foresees providing more information to the Commission and allowing the Commission to make a decision as to what would be the most appropriate way to deal with the issue. He indicated staff's suggestions might include legislative initiatives that the Commission may wish to express in the form of an advisory opinion.

Mr. Long indicated that if the certifications are contingent upon updates being submitted to Wylie, on the software, and Nichols, on the hardware, then the Commissions' approval of updates, without resubmission to Wylie and Nichols, would, in effect, constitute an approval of a voting system that has lost its certification from the independent testing authorities. Mr. Long expressed an interest in coordinating the Commissions' approvals with the independent testing authorities because of the lack of technical expertise on the part of the Commission and its staff. He suggested that the upgrades be run through these independent testing authorities so that the certifications of the independent testing authorities can remain valid.

Ms. Marendt indicated that the information she has already gathered from Wylie and Nichols indicated that their approval of a voting system is contingent upon the examination of anything done to a voting system after their initial approval of the system. She indicated that this examination may mean that the letters before the Commission be sent to the independent testing authorities. She stated that the independent testing authorities may well respond that they do not need to reexamine the system, that the letters are sufficient for them to continue their certification of the voting system. On the other hand, she indicated that the independent testing authorities may also need to reexamine the voting system with the changes incorporated into the system before it is willing to continue its certification of the system. She indicated that, according the information she obtained, the cost of such reexamination would be substantially lower than voting system vendors have claimed to the Commission. She thought the cost estimates received to date appeared to be well within the cost of doing business as a voting system vendor. She suggested, however, that before specific numbers are provided to the Commission, and before specific proposals are developed, that she obtain these estimates from the independent testing authorities in writing as part of her report.

There being no further questions to staff from the Commission, the chair then invited a representative from GBS to address the Commission. Mr. Corey indicated that he has had contact with the Co-Directors, Mr. Valentine and Ms. Marendt,. He stated that the software in question is GBS's Accutab software, which is his company's "punch card" software. He stated that he believed that there is some confusion about whether this is a system-wide proposed change. He stated that the proposed software changes, as detailed in the June 19, 2000 letter sent to Mr. Valentine, do not affect the count logic part of the system at all. He stated that the changes only relate to some reporting type functions. He stated that the changes are detailed, and if need be, these changes can be addressed to an independent testing authority to see if they need to look at the software. He stated that punch card software has been used in Indiana for years and years now. He stated that when this system was originally approved for use in Indiana the independent testing authorities, Wylie or Nichols, did not exist. He stated that voting systems vendors merely came in and explained how their system worked and provided a demonstration. He indicated that factors such as where the system had been used and the experience with the system were given consideration. He stated that he didn't know how much consideration that would be given for the punch card software. He stated that their requested approval for upgrades does not apply to G BS's Accuvote or Accutouch voting systems, just for the punch card voting systems. He indicated that if there is any other information that he can supply to the Commission, or if the Commission desires a demonstration of the proposed changes, then he could demonstrate to the Commission that the proposed changes have nothing to do with the actual count logic of the system's "reader" itself. He explained that the changes just affect the reporting function of the system.

The chair asked if the members had any questions for Mr. Corey. There being none, the chair asked if the Co-Directors had any questions for Mr. Corey. The chair recognized Mr. Valentine who asked Mr. Corey if the voting system at issue has ever been sent for certification to the independent testing authorities, Wylie or Nichols. Mr. Corey indicated that he did not believe it had, that the system was a very old system. Mr. Corey indicated that over 42 counties in Indiana utilize punch card systems and that both GBS and ES&S are using offshoots products of the old CVS from 25 years ago when the companies branched off.

Mr. Long requested that the state certifications of these systems be retrieved from archives so that the Commission may determine where the Commission stands with the prior certifications.

The chair asked if there were further questions for Mr. Corey. Ms. Marendt asked Mr. Corey whether the software for which GBS was seeking approval resides on the voting machine or on the personal computer. Mr. Corey responded that, for the punch card system, the proposed software was on the personal computer. Mr. Corey directed the Commission to his letter of June 19 detailing the proposed changes. He further explained that with the punch card system there is (inaudible) block, any time anything done election night or when the pre test and post test is performed it's just a log printer only able to hold twenty messages in memory and that was increased.

The chair asked if Mr. Valentine wished to place anything into the record. Mr. Valentine stated that he wished to have GBS's June 19, 2000 letter entered into the record. Mr. Long moved that the letter be entered into the record before the Commission. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Webber, Mr. Long, and Mr. Dezelan), and no member voting "nay", the motion was adopted.

The chair then requested a motion as to the status of GBS's request. Mr. Long moved that the matter be tabled until the Commissions' next meeting. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Webber, Mr. Long, and Mr. Dezelan), and no member voting "nay", the motion was adopted.

The chair then asked if the co-director's wished to first address the application for approval submitted by MicroVote. Mr. Valentine indicated that MicroVote was also requesting approval of changes to software for a previously certified voting system. Mr. Valentine indicated that MicroVote was changing its software from version 7.4 to 7.5. Mr. Valentine asked that MicroVote's letter of June 15, 2000 detailing the proposed software changes be entered into the record before the Commission. Mr. Valentine requested that MicroVote's request be tabled also.

The chair then asked if Ms. Marendt had anything to add. Mr. Marendt indicated that she might have some questions for Mr. Shamo after his presentation.

The chair then asked Mr. Shamo if he would like to address the Commission on MicroVote's request. Mr. Shamo introduced himself and stated that he had brought Mr. Steve White, director of MicroVote's information services who was the co-writer for MicroVote's MEMS software, to answer any questions the Commission may have. Mr. Shamo stated that the MEMS software, unlike other software, is used to program the voting machines and to tabulate the results from the voting machine, however, the voting machine can perform, and be programmed independently of, the software. Mr. Shamo stated that MicroVote is in the same situation as GBS and ES&S with their older grandfathered software, that is, they have not been through the Nichols certification procedures.

He stated that the manner in which the Commission has addressed changes in the past has been by providing an explanatory letter, as they are doing now, detailing the proposed software changes. He stated further that last year two Commission members came to their office and they demonstrated year 2000 compliance. He stated that the proposed changes are minor changes that do not affect the vote tabulation module. He stated that the changes were the result of requests by customers. He stated, for example, that one of the changes is a control lock command in the software so that a user reading absentee voter cards can designate the precinct those absentee cards are supposed to be going to so if a card by (inaudible) was inserted in the stack it would stop the system at that point and address that card individually. He stated that these are the sorts of changes being made, more cosmetic election day procedural type things.

The chair asked if there were any questions from Commission members. There being none, the chair asked if there were any questions from the co-directors.

Ms. Marendt asked whether MicroVote's original software and hardware package went through the Wylie and Nichols certification. Mr. Shamo stated that the voting machine software has been through Wylie certification. He stated that it was originally certified by Mr. Nagley and then recertified up to version 6.4, then to 7.3. He stated that even though they had made several advances in the software, they honored an agreement with the state that none of the changes affected Indiana so they didn't come back. He stated that they are attempting to get all of their last cosmetic changes in place before these all go through the Nichols certification. He stated that the frustration that all the vendors share is that they have seen the Nichols certification process and question the level of testing being performed by Nichols to determine if the software is appropriate to a particular state law in the way that Nagley did. He also questioned whether a one to three month certification process by someone who is not familiar with election software per se overrides ten years of actual use without any problems in terms of vote tabulation.

The chair asked whether MicroVote was operating under some time pressure to get a system approved for use in the upcoming November election. Mr. Shamo responded that most customers would not change their version of software after they have created their election database before the election. Mr. Shamo stated that he didn't see any reason not to change it, however, as a customer he understands that the customer may not want to admit that they have changed their software after they have created their original database.

The chair asked if the Co-Directors had any questions. Ms. Marendt asked if the proposed changes affected software on the voting machine or on the personal computer. Mr. Shamo stated that the proposed changes were to software that resides on the personal computer. Mr. Shamo added that the firmware version has not changed on the voting machine in thirteen or fourteen years. Ms. Marendt asked whether the changes they are proposing in Indiana have been in use elsewhere for ten years. Mr. Shamo stated that no, some of the changes are recent, for instance, the lockout upgrade. Mr. Shamo stated further that some of these upgrades have been used in other areas of the country but not in Indiana.

Mr. Valentine asked whether it was Mr. Shamo's contention that the independent testing authorities lack knowledge of the election process. Mr. Shamo stated that the independent testing authorities are qualified investigators of firmware code. He stated that the problem is, for example, in Iowa they certified a system, however, they found that the certified system did not comply with certain Iowa state laws. He stated that the independent testing authorities examine things like module lengths of code and not whether a system would comply with a state rotation law.

Mr. Valentine asked Mr. Shamo whether he thought that Indiana should replace the current code provisions governing the use of the independent testing authority. Mr. Shamo indicated that he felt that when Mr. Nagley examined voting machines, he examined them both with respect to how the machine worked and whether the machine complied with Indian law. He stated that with new touch screen systems a concern with software changes is more valid because of the lack of ability to audit a system.

The chair then asked if there was a motion on Mr. Valentine's request to place MicroVote's June 15, 2000 letter into the record. Mr. Long moved that the letter be entered into the record before the Commission. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Webber, Mr. Long, and Mr. Dezelan), and no member voting "nay", the motion was adopted.

The chair then recognized Mr. Shamo who stated that he wanted to address the Commission's earlier inquiry about time frame. Mr. Shamo stated that there appears to be only one more meeting before the counties start programming and that limits the time that MicroVote has to get new software out to its customers.

The chair then recognized Mr. Long who stated that he wished to ask another question of Mr. Shamo. Mr. Long asked whether the systems that MicroVote has in place in Indiana right now would adequately address the upcoming election without any changes. Mr. Shamo stated that they would.

The chair then requested a motion as to the status of MicroVote's request. Mr. Long moved that the matter be tabled until the Commission's next meeting. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Webber, Mr. Long, and Mr. Dezelan), and no member voting "nay", the motion was adopted.

The chair then acknowledged for the record that Commission member Butch Morgan had arrived and taken his seat on the Commission.

5. LITIGATION UPDATE

The chair recognized Mr. Simmons who indicated that the Commission is currently a defendant in three active cases. He stated that he had been reporting to the Commission the last few meetings on two cases. He stated the first such case is Leaf versus Able. He explained that this case is now pending in federal court before Judge McKinney. He stated that this particular case involves a challenge to Indiana's disclaimer law. He stated that, as reported in the past, there are still Motions for Summary Judgment pending and the last brief filed on the motion was filed in February.

He explained that the other case that he has been reporting to the Commission on is the Majors versus Indiana Election Commission. He stated that this case involves challenges to campaign finance fines imposed against Libertarian candidates. He explained that the Libertarian's claim in that lawsuit is that since they did not raise money for their campaigns, they did not have to file campaign finance reports. He stated that there is a pending dispositive motion in this case as well.

He advised the Commission that since its last meeting a new lawsuit was filed July 20 naming the Commission as a defendant. He stated that the Marion County Committee of the Democratic Party brought the case. He stated that this action was brought against the Commission in its official capacity rather than against members in their personal capacities.

The chair recognized Mr. Long who stated that he wished to make a note that when the Democrats sue the Commission they are sued in their official capacity yet when the Libertarians sued the Commission in this case they were sued individually.

Mr. Simmons went on to advise that there are other defendants in this lawsuit, including the Marion County Election Board. He explained that this case seeks an injunction to have Indiana Code 3-13-1-7 declared unconstitutional. He explained that this statute sets the deadline for filling candidate vacancies for major parties as noon June 6. He explained that the plaintiff in this case is claiming that since the Libertarians have additional time, up to August 1, to nominate candidates and to fill vacancies, that the statute setting an earlier deadline for filling such vacancies is unconstitutional.

He explained that Jim Nave is the Deputy Attorney General that is currently handling the case on behalf of the Commission. He stated, as of yesterday, Mr. Nave advised him that no motion for preliminary injunction had been filed and such a motion would be required to get an expedited hearing unless the chair, Mr. Webber, as the Marion County Election Board attorney, had been served with a notice of hearing. The chair indicated that he had been served with notice that a hearing will be conducted on the plaintiff's request for preliminary injunction the following Tuesday, August 2nd at 2:00 p.m. in Judge Hamilton's court.

The chair asked if there were any questions from Commission members for Mr. Simmons. Mr. Dezelan asked for a clarification of the plaintiff's argument. Mr. Simmons indicated that the plaintiff Democratic Committee was arguing that Indiana statutes actually treat the Libertarian party more favorably than the major parties by giving them more time to nominate candidates and to fill ballot vacancies. He explained that the challenge was based upon the equal protection and the free association clauses of the United States Constitution.

The chair said he had a question about the Libertarian case involving the definition of a candidate. He asked for a clarification of what motions were pending. Mr. Simmons responded that the procedural posture of the case is that the original action was dismissed for failure to exhaust administrative remedies. He stated further that this case was dismissed with prejudice.

The chair asked whether the Libertarians appealed that first dismissal. Mr. Simmons advised that they did not. He stated that the Libertarians re-filed the lawsuit and an additional motion to dismiss was filed based upon the fact that the prior lawsuit had been dismissed with prejudice.

6. CAMPAIGN FINANCE ENFORCEMENT

The chair then announced that the Commission would consider campaign finance enforcement issues. The chair asked for a clarification of the types of campaign finance enforcement cases pending and indicated that the information he had showed these cases involved post-convention filings. The chair then requested all those present to testify in cases before the Commission to stand for the administration of the oath.

Ms. Robertson administered the oath to those present to testify.

The chair recognized the co-director of campaign finance for the Election Division, Michelle Thompson, who referred the Commission to their red folder, which contains a spreadsheet identifying the committees who were before the Commission today on campaign finance cases. (Copies of the spreadsheet, pages 1-5, are incorporated into these minutes by reference)

The chair asked whether the cases involved the same issue. Ms. Thompson stated that the cases did involve the same issue. Ms. Thompson stated, however, that there was one case that she would like to start with.

The chair addressed the gallery and asked if a representative of the Libertarian Party would confirm whether the issues involved in all the cases before the Commission were the same. Marcie Ferree identified herself as an attorney representing the Libertarian Party and the Libertarian candidate committees at the request of the Libertarian Party state chairman, Mark Rutherford. She stated that she thought the cases involved the same issue.

A. SIROKY FOR INDIANA, CAUSE NO. 00-4609-143

The chair then asked Ms. Thompson if she would proceed. Ms. Thompson stated that she would like to start with the committee on page 5 of 5 of the spreadsheet, Siroky of Indiana, case number 00-4609-143. She stated that Siroky was not a convention candidate but was a vacancy candidate. She explained that Siroky got mixed in with the convention candidates because the Libertarian Party certifies vacancy candidates the same way they certify convention candidates. Therefore, Siroky did not have the June 5th deadline to file his post-convention report and the case against his committee should be dismissed.

Mr. Long moved that the case against Siroky for Indiana be dismissed. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan.and Mr. Morgan), and no member voting "nay", the motion was adopted.

The char then asked Ms. Thompson to proceed. The chair recognized Mr. Long who stated that perhaps the cases could all be heard at once. The chair asked the representatives of the committees present whether they would like to address the Commission individually.

The chair recognized Richard Gordon. Mr. Gordon stated that his case was like the case involving Siroky for Indiana. Mr. Morgan asked Mr. Gordon to confirm that he represented Gordon for Indiana Senate, cause number 00-4596-138. Mr. Gordon stated that that was his committee.

The chair then recognized Ms. Thompson who stated that she had this candidate listed as a convention candidate. The chair then asked Mr. Gordon to step forward to testify. The chair asked Ms. Ferree if she represented Mr. Gordon and she stated that she did but that he was free to speak for himself. Ms. Ferree also indicated that she was checking a list with her client to confirm whether or not Mr. Gordon was nominated at convention.

The chair asked Mr. Gordon to address the Commission on his case. Mr. Gordon stated that he was requested to fill in a spot for the Libertarians and that he was unfamiliar with the procedures. He stated he was filling an open slot for district number 33 for Indiana Senate. He stated that Kurt St. Angelo asked him to participate. The chair indicated that he believed that Mr. St. Angelo was the Marion County chairman for the Libertarian party and Mr. Gordon indicated that was correct.

The chair asked if the Commission members had any questions for Mr. Gordon. Mr. Long asked for a clarification as to how Libertarians nominated candidates.

The chair recognized Mr. Brad Klopfenstein who identified himself as the Executive Director of the Libertarian Party. Mr. Klopfenstein stated that Mr. Gordon was approached to fill a vacancy, however, this was before their state convention and he was subsequently selected by convention and that makes him a convention candidate.

Mr. Long then directed the chair to another Libertarian candidate who had his hand up. The chair asked him to identify himself and he stated that his name was Charles S. Kennedy and his committee was Taxpayers for Charles S. Kennedy. He stated that he was a convention candidate but that he would not know until after the presentation of counsel whether his case was unique from the other Libertarians or not. The chair indicated that Mr. Kennedy would have an opportunity to speak after counsel if he put his hand back up.

The chair then requested some background applicable to all the committees. Ms. Thompson explained that all the committees on the spreadsheet submitted to the Commission are post-convention candidates whose campaign finance reports were due no later than June 5. She stated that the committees on the spreadsheet were all late. She stated that the proposed fine for each committee is contained on the spreadsheet. She further stated that no committee on the spreadsheet had ever been before the Commission on a prior occasion for a campaign finance violation.

The chair recognized Mr. Long who suggested that the Commission seek advice from counsel on this issue. The chair then recognized Mr. Simmons who stated that he did not desire to steal the thunder of the Libertarian's counsel, however, there is some reason to believe that the statutes, in their current form, may have confused Libertarian candidates. He stated that the statutes are designed in such a way that the statement of organization for a Libertarian candidate may not be due until 7 days after a certificate of nomination is required to be filed. He explained that this means that a statement of organization for a Libertarian candidate may not be due until August 8th for all of these candidates. He explained that one might think that, as a matter of normal process, a statement of organization would come before a detailed statement of contributions and expenditures. He stated further that, the way the statute is set up, the detailed statement of contributions and expenditures is actually due before the statement of organization is due.

The chair asked for a clarification of whether this meant that a Libertarian candidate might be required to file his CFA-4 before his CFA-1. Mr. Simmons stated that it did. He further stated that staff has provided members of the Census Data Committee information on this statutory anomaly and staff will indicate to that committee that this is a matter that the General Assembly may want to address legislatively.

The chair asked if Ms Ferret had anything to add and she indicated that she did. The chair warned to tread carefully because counsel had just provided a pretty convincing argument for her side. Mr. Mogan indicated that they were risking snatching defeat from the jaws of victory. Mr. Long indicated that, as a trial attorney, he has received similar warnings himself.

The chair then recognized Ms. Ferree who stated that she would like to add that she contends that the Libertarian committees were not required to file campaign finance reports in the first place since these candidates did not raise or spend money. She directed the Commission to Indiana Code 3-5-2-6 that defines "candidate." She argued that the first thing this section does is to provide an exception. Subsection b states: "as used in Indiana Code 3-9", and it is Indiana Code 3-9 that requires CFA-4's to be filed. She argued, therefore, that for purposes of filing CFA-4's, an individual becomes a candidate when the individual receives or spends more than one hundred dollars. She stated that the individuals brought before the Commission have raised no money. She stated that to read subsection b any other way would give it no meaning. She argued if the legislature had intended all candidates to file CFA-4's then they would have had no need to put in subsection b. She stated that the way the Libertarian party reads subsection b is that it is the subsection that defines which candidates must file CFA-4's.

The chair asked if any of the members had any questions. Mr. Long asked if it was Ms. Ferree's position that Libertarian candidates would not have to file a statement of organization either. Ms. Ferree stated she contended that they did not, that the requirement to file a statement of organization was also controlled by subsection b because the requirement to file both the CFA-1 and CFA-4 falls within 3-9.

The chair indicated to counsel Ferree that the Commission was not going to expand today's hearing into the issue of what is a candidate under Indiana law since that matter as in litigation. The chair asked Ms. Thompson how many Libertarian committees were before the board. Ms. Thompson stated that there were 15 committees. The chair asked if the reports filed indicated that the candidates had neither raised nor spent more than one hundred dollars. Ms. Thompson indicated that the reports reflected no money raised or spent.

The chair then asked if there was anyone else present who wished to address the Commission. The chair recognized Cindy Kirkpatrick who stated that her committee is Logic 2000. Ms. Kirkpatrick explained that she experienced the confusion described by counsel for the Commission. She stated that she filed her forms to be a candidate, including her CFA-1, then she got a call about the CFA-4. She stated that she looked up the requirements and it didn't look to her like she need to file a CFA-4 for the reasons that counsel for the Commission explained. She stated that it did not make since to her to have to file a CFA-4 before she was even required to file a CFA-1.

The chair asked if there was anyone else who wanted to address the Commission on the issue. The chair recognized Mr. Richardson who stated that he asked for a sheet explaining when campaign finance reports were due when he filed his CFA-1. He stated that he received a sheet that did not list anything about the June 5th filing date. He stated that he followed the sheet he was given and then he received a letter that indicated that he could be fined. He stated that there was something unreasonable about that.

The chair asked to see the sheet and Mr. Richardson provided the sheet to the chair. The chair reviewed the sheet and observed that the sheet appears to apply to major party candidates since it mentions pre-primary, primary, general election and annual. He indicated that while he could understand how Mr. Richardson could have been confused by the sheet, Indiana law differentiates between major party candidates and Libertarians and that Mr. Richardson has an obligation to educate himself on the requirements applicable to him. Mr. Richardson stated that when he was given that form the staff member, or whoever gave him the form, knew that he was not a Republican or Democrat.

The chair then asked Mr. Kennedy if he wanted to address the Commission separately. Mr. Kennedy stated that he was not an attorney and was not aware of the litigation previously mentioned but he felt that it was unfair that he could be responsible for paying a fine when he was not notified of what the deadlines were. He stated that the instructions on the back of the CFA-4 are voluminous but nowhere in those instructions does it state the deadlines for filing the forms.

The chair stated that he appreciated Mr. Kennedy's argument but stated that the law does not require individual notification of each candidate about the deadlines applicable to that candidate. The chair stated that candidates have some individual responsibility for learning the deadlines applicable to them.

The chair then asked if there were any further comments from the representatives of the committees before the Commission. There being none, the chair asked Ms. Thompson whether she, as campaign finance director, had a position on the imposition of fines on the committees. Ms. Thompson stated she did not have anything to add.

Mr. Long moved to close the hearing. Mr. Morgan seconded the motion.

The chair recognized Bret Peterson who asked if the record was going to be closed on all issues. The chair asked Mr. Peterson if he had additional testimony relevant to the campaign finance issues that were before the Commission. Mr. Peterson stated that if was not related to the cases before the Commission but his issue related to campaign finance. The chair asked Mr. Peterson to elaborate on the issue. Mr. Peterson stated that in March or April of this year he received a flyer in the mail from an incumbent with postage paid by permit number. He stated that there was no acknowledgement as to who had paid for the flyers. He wanted to know if this was a violation of the law. He stated he called the Election Commission and someone told him that he should pursue that with the Secretary of State or Attorney General who he called and they said they couldn't do anything about it.

The chair stated that political flyers have to have disclaimers. The chair asked if it endorsed a candidate for office. Mr. Peterson stated that the mailing had the picture of the incumbent on it and discussed legislation he was pursuing.

The chair requested advice from counsel on the current disclaimer law violations. Mr. Simmons responded that if a person has a complaint that the disclosure law has been violated then they could refer that complaint to the Commission. He stated that the Commission could investigate that complaint and refer the matter to a prosecutor if appropriate.

Mr. Peterson stated that he had talked to a prosecutor who referred him to the state police.

The chair stated that he did not want to stray too far from the issues before the Commission. He stated as attorney for a local election board they handle complaints about disclaimer law violations all the time.

Mr. Peterson stated that he wondered about the propriety of using taxpayer money for such mailings. He stated that he wanted to know how one would pursue such a complaint.

The chair stated that he could address the issue with the Commissions' counsel after the meeting about the disclaimer law and procedures for pursuing a complaint.

The chair stated that there is a pending motion to close the hearing that has been seconded. There being no further discussion the chair called the question and declared that with four members voting aye (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan) and no member voting nay, the motion to close the hearing was approved.

The chair asked if there was a motion on the pending campaign finance enforcement cases. Mr. Long moved to dismiss the cases against the Libertarian candidates listed in the spreadsheet on pages 1 through 5 for the reason that the CFA-1's and CFA-4's have in fact been filed for each of the candidates and for the further reason that there appears to be an anomaly in the law which requires the filing of a detailed statement of contributions and expenditures before the statement of organization. Mr. Long stated he wanted to make clear that he considered these people as "candidates" as defined by Indiana Code such that these candidates were required to file campaign finance statements notwithstanding the current litigation, whether they raise or spend any money or not. Mr. Dezelan seconded the motion. There being no further discussion the chair called a vote and declared that with four members voting aye (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan) and no member voting nay, the motion was approved and the campaign finance enforcement cases were dismissed.

The cases were disposed of as specifically set forth in detail below.

B. PETERSON FOR STATE HOUSE COMMITTEE, CASE NO. 00-4580-130

The record showed that the Peterson for State House Committee, case no. 00-4580-130, has had no prior appearance before the Commission and has a proposed fine of Four Hundred Dollars ($400.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

C. LEWIS J. RICHARDSON COMMITTEE, CASE NO. 00-4581-131

The record showed that the Lewis J. Richardson Committee, case no. 00-4581-131, has had no prior appearance before the Commission and has a proposed fine of One Hundred Dollars ($100.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

D. JOELL PALMER COMMITTEE, CASE NO. 00-4583-132

The record showed that the Joell Palmer Committee, case no. 00-4583-132 has had no prior appearance before the Commission and has a proposed fine of One Hundred Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

E. TAXPAYERS FOR CHARLES S. KENNEDY, CASE NO. 00-4587-133

The record showed that the Taxpayers for Charles S. Kennedy Committee, case no.00-4587-133, has had no prior appearance before the Commission and has a proposed fine of Fifty Dollars ($50.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

F. LESS GOVERNMENT-NO TAXES-HART FOR THE COMMON PERSON COMMITTEE, CASE NO. 00-4589-134

The record showed that the Less Government-NoTaxes-Hart for the Commons Person Committee, case no. 00-4589-134 has had no prior appearance before the Commission and has a proposed fine of One Hundred Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

G. KLOP FOR HOUSE 98 COMMITTEE, CASE NO. 00-4590-135

The record showed that the Klop for House 98 Committee, case no. 00-4590-135 has had no prior appearance before the Commission and has a proposed fine of Fifty Dollars ($50.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

H. WEBSTER SMITH FOR STATE REPRESENTATIVE COMMITTEE, CASE NO. 00-4591-136

The record showed that the Webster Smith for State Representative Committee, case no. 00-4591-136 has had no prior appearance before the Commission and has a proposed fine of One Hundred Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

I. ERIC BARNES FOR SENATE COMMITTEE, CASE NO. 00-4595-137

The record showed that the Eric Barnes for Senate Committee, case no. 00-4595-137 has had no prior appearance before the Commission and has a proposed fine of One Hundred Dollars ($100.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

J. GORDON FOR INDIANA SENATE COMMITTEE, CASE NO. 00-4596-138

The record showed that the Gordon for Indiana Senate Committee, case no. 00-4596-138 has had no prior appearance before the Commission and has a proposed fine of One Hundred Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

K. RENEE GRANT FOR INDIANA HOUSE COMMITTEE, CASE NO. 00-4597-139

The record showed that the Renee Grant for Indiana House Committee, case no. 00-4597-139 has had no prior appearance before the Commission and has a proposed fine of One Hundred Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

L. LOGIC 2000 COMMITTEE, CASE NO. 00-4598-140

The record showed that the Logic 2000 Committee, case no. 00-4598-140 has had no prior appearance before the Commission and has a proposed fine of Fifty Dollars ($50.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

M. AMY FOR INDY COMMITTEE, CASE NO. 00-4605-141

The record showed that the Amy for Indy Committee, case no. 00-4605-141 has had no prior appearance before the Commission and has a proposed fine of One Hundred Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

N. JACOB PERRY 2000 COMMITTEE, CASE NO. 00-4607-142

The record showed that the Jacob Perry 2000 Committee, case no. 00-4607-142 has had no prior appearance before the Commission and has a proposed fine of Fifty Dollars ($50.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

O. CICAK FOR SENATE COMMITTEE, CASE NO. 00-4610-144

The record showed that the Cicak for Senate Committee, case no. 00-4610-144 has had no prior appearance before the Commission and has a proposed fine of One Hundred Dollars ($100.00) plus investigative costs in the sum of Two Dollars and Ninety-Eight Cents ($2.98).

Mr. Long moved that the campaign enforcement case, with its proposed fine, be dismissed. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

6. FORMS APPROVAL

The chair recognized Ms. Robertson who directed the Commission to the orders contained in their packets that relates to the dispositions of the campaign finance cases in the last meeting. She stated that these dispositions are contained in Order 2000-104 through Order 2000-134 and that these orders may be executed at the Commissions' pleasure. Ms. Robertson stated that she was also presenting the Commission with Order 2000-140 which is the order dismissing the Siroky campaign finance case discussed earlier in this meeting.

Mr. Long moved that the Commission approve Order 2000-104 through Order 2000-134 and Order 140. Mr. Morgan seconded the motion. There being no further discussion the chair called the question and declared that with four members voting aye (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan) and no member voting nay, the motion was approved.

The chair again recognized Ms. Robertson who directed the Commission to the documents contained in their packets under forms. She stated that Order 2000-135 approves a new Spanish language absentee ballot application. She stated that Bruce Northern, the Election Division's voter registration coordinator, worked diligently in developing the form prior to the general election. The chair asked if federal law required this absentee ballot. Ms. Robertson stated that it was not required under federal law, but permitted under state law. She stated that there have been many requests for this form from the general public and county clerks.

She stated that Order 2000-136 is a form that is part of the voter list maintenance program, which is mandated by the National Voter's Registration Act. She explained these forms are the current state forms that are the post cards that are a part of the program. She explained further that these post cards have been revised for this year's dual elimination program.

Mr. Morgan asked why the address "Fake Street" was on the post card. Ms. Valentine stated that this was just a sample; the post cards that would be sent would have the addresses shown on the individual's voter registration records. He explained that the field that contains this address is an active field, which would be filled with data specific to a voter.

Ms. Robertson referred to Order 2000-137 that approves a form that is a request for the paper ballots prepared by the Election Division for statewide candidates. She stated that this is done every year and that the current proposed form is simply an updated version of the older form, applicable to this election year.

Ms. Robertson then referred the Commission to Order 2000-138 that approves county election board forms that need to be updated. She stated that the CEB-4 form is the form that a party chair would need to complete after filling an office vacancy. She stated that there was a statutory change last session which changed those eligible to vote at a caucus to select a candidate to fill an office vacancy from both precinct committeeman and vice precinct committeeman to just precinct committeeman. She stated that the reference to vice committeeman needed to be removed from the form to reflect this change. She stated that this order also approves a new CEB-12, which is used by the counties to report the vote on any state constitutional amendment public question as well as any vote on retention of a Court of Appeals judge. She stated that this year Indiana does have four Court of Appeals judges on the ballot for retention.

Ms. Robertson then directed the Commission to Order 2000-139 that approves an updated version of the PRE-1, the precinct oath book. She explained that a prior statutory change had removed the status of first cousin as a status that rendered a person ineligible to work on a precinct election board. She stated that, therefore, a precinct election official no longer had to take an oath that a first cousin did not appear on the ballot. She stated that the current form PRE-1 still contains a reference to first cousin as part of the oath and should be removed. She stated that the proposed PRE-1 removes the reference to first cousin and is consistent with statute.

Mr. Dezelan moved that the Commission approve and adopt Orders 2000-135, 2000-136, 2000-137, 2000-138 and 2000-139 as presented by counsel. Mr. Long seconded the motion. There being no further discussion the chair called the question and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

The chair recognized Mr. Long who asked whether Order 2000-140 had been approved. Ms. Robertson recommended the Commission approve Order 2000-140. The chair asked what that pertained to. Mr. Long stated that it was the order pertaining to the Libertarian that was dismissed because he was a vacancy candidate and not a convention candidate. Mr. Long moved that the order be approved and adopted. Mr. Morgan seconded the motion. There being no further discussion the chair called the question and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted.

7. OTHER BUSINESS

The chair recognized Mr. Valentine who indicated that, consistent with the chair's instruction that it is a candidate's responsibility to educate himself on the statutory requirements related to campaign finance reporting, he would available for distribution to Mr. Klopfenstein and the Libertarian candidates a flyer that describes a campaign finance seminar which will be put on by the staff of the Election Division. He also indicated that the Election Division has several left over copies of the 2000 election code that he would be glad to provide for distribution to Libertarian candidates.

8. ADJOURNMENT

The chair asked if there was any further business. There being no response, Mr. Morgan moved that the Commission adjourn. Mr. Dezelan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Webber, Mr. Long, Mr. Dezelan and Mr. Morgan), and no member voting "nay", the motion was adopted. The Commission then adjourned at 3:10 p.m.

Respectfully submitted,