Pabey v. Pastrick

Attorneys for Appellant / Attorneys for Appellee / Cross-Appellant

Cross-Appellee (George Pabey) (Robert A. Pastrick)

Bruce A. Kotzan George T. Patton Jr.

Indianapolis, IN Indianapolis, IN

Nathaniel Ruff Bryan H. Babb

Merrillville, IN Indianapolis, IN

Carmen Fernandez Theresa M. Ringle

Hammond, IN Indianapolis, IN

Attorneys for Amici Curai Attorney for Appellee / Cross-Appellant

(Attorney General of Indiana) (Lake County Board of Elections and

Registration)

Steve Carter James L. Wieser

Attorney General of Indiana Schererville, Indiana

Gary Damon Secrest

Chief Counsel

Frances Barrow

Deputy Attorney General

Doug Webber

Deputy Attorney General

U-Jung Choe

Deputy Attorney General

Gordon White

Deputy Attorney General

________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 45S04-0401-CV-14

George pabey,

Appellant / Cross-Appellee (Plaintiff below),

v.

Robert A. Pastrick, and

the Lake County Board of Elections and Registration,

Appellees / Cross-Appellants (Defendants

below),

Lonnie Randolph, and

A. Santos,

Appellees

(Defendants below).

_________________________________

Appeal from the Lake Superior Court, No. 45D10-0305-MI-007

The Honorable Steven King, Special Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 45A04-0308-

CV-425

_________________________________

August 6, 2004

Dickson, Justice.

Plaintiff/appellant George Pabey is appealing from a judgment denying

relief in an election contest. We reverse.

The primary election for the Democratic nomination for the office of

mayor of the city of East Chicago, Indiana, took place on May 6, 2003. The

candidates were incumbent Robert Pastrick and challengers George Pabey and

Lonnie Randolph. The results of that election were:

Pastrick 4,083

Pabey 3,805

Randolph 2,289

At trial, Pabey sought to have all of the absentee ballots declared invalid

or, in the alternative, to have the election invalidated and a new election

ordered. Judgment for Respondent Robert A. Pastrick (hereinafter

“Judgment”) at 99.

Following careful consideration of extensive testimony in this

election contest, Judge Steven King, regular judge of the LaPorte Superior

Court and appointed by this Court as Special Judge to conduct these

proceedings, issued a 103-page judgment that included comprehensive

findings of fact and conclusions of law that are most impressive. We

express our profound appreciation and admiration to the special judge for

his excellent work, especially given the compressed time schedule that the

Election Contest Statute requires and apparent efforts by some to interfere

with the proceedings.

Of the 8,227 votes personally cast on election day, Pabey received 199

more votes than Pastrick. But of the 1,950 absentee ballots, Pastrick

defeated Pabey by 477 votes, producing a 278-vote final victory for

Pastrick. The trial court concluded that Pabey had proven "that a

deliberate series of actions occurred" that "perverted the absentee voting

process and compromised the integrity and results of that election."

Judgment at 9. The judge found "direct, competent, and convincing evidence

that established the pervasive fraud, illegal conduct, and violations of

elections law" and proved the "voluminous, widespread and insidious nature

of the misconduct." Id. at 92.

Notwithstanding the overwhelming evidence of election misconduct,

however, Judge King was cautious regarding his authority to order a special

election under the circumstances. He noted that "Indiana election law

provides little insight into the appropriate remedy available in this

proceeding. Case authority on election contests provides virtual[ly] no

guidance for circumstances where widespread misconduct has impacted the

absentee ballots cast in an election." Id. at 95. The judge perceived

that he was not authorized by statute to order a special election because

Pabey's evidence was only able to prove the invalidity of 155 actual votes,

and because this was 123 votes short of the 278-vote difference that

separated Pabey and Pastrick, Judge King reluctantly concluded that Pabey

had failed to adequately establish that the proven deliberate series of

actions "make it 'impossible' to determine which candidate received the

highest number of votes." Id. at 100.

Perceiving his authority as a trial judge to be thus constrained,

Judge King nevertheless noted that "relief from the May, 2003, primary

election results lies in the province of the Indiana Court of Appeals or

Supreme Court." Judgment at 99. In fact, he quoted from the Mississippi

Supreme Court's decision in Rogers v. Holder, 636 So.2d 645, 650 (Miss.

1994), as follows:

Disenfranchisement of a significant number of voters may create

sufficient doubt as to the election results to warrant a special

election, even absent evidence of fraud. Invalidation of more than

thirty percent (30%) of the total votes cast is generally sufficient

to require a special election. However, even where the percentage of

total votes cast is small, if attended by fraud or willful violations

of the election procedure, the Court will order a

new election without reservation.

Judgment at 98-99 (citations omitted, emphasis supplied in Judgment).

Noting that 19.2% of the 10,177 total votes case in the East Chicago

election came from 1,950 absentee ballots, of which 7.9% were invalidated,

Judge King observed that the "Mississippi approach is appealing given the

rampant election abuse that occurred here. The remedy of special election

. . . would serve the public's interest in the certainty of the election

results at issue." Judgment at 3, 99.

We note that, while election procedures are normally matters for

legislative determination, this Court declared almost seventy years ago:

We are clear, however, that elections do not "belong to the political

branch of government," if by that term is meant the legislative branch

of the government. Elections belong to the sovereign people. The

qualifications of electors and other matters concerning elections are

prescribed by the Constitution. The Legislature may set up machinery

for the conduct of elections, and delegate to ministerial or executive

agencies the duty of conducting elections, and may prescribe the

procedure by which elections may be contested, so long as they stay

within their constitutional powers, and such procedure conforms to the

law, such steps and procedure will be governed by the legislative

rules prescribed. But courts have inherent power to protect the

sovereign people, and those who are candidates for office or claiming

title to or rights in an office from fraud or unlawful-

ness . . . .

State ex rel. Nicely v. Wildey, 197 N.E. 844, 847, 209 Ind. 1, 8-9 (Ind.

1935) (emphasis added).

Pabey initiated this appeal and sought emergency transfer to this

Court under Indiana Appellate Rule 56(A). Transfer was denied with the

effect that jurisdiction over the appeal remained in the Court of Appeals.

Pastrick then filed a motion to dismiss the appeal for lack of

jurisdiction. (Appellant, Pabey’s Pet. to Trans. at 4). The Court of

Appeals, over the dissent of Judge Baker, issued an order summarily

granting Pastrick’s motion to dismiss with prejudice. Pabey again sought,

and this time we granted, transfer. Pabey v. Pastrick, 2004 Ind. Lexis 51

(Ind. Jan. 9, 2004).

I

The Court of Appeals did not state its rationale for dismissing the

appeal with prejudice. However, we found neither of the two grounds argued

in Pastrick’s motion to dismiss to have been persuasive and therefore

granted transfer.

In his motion to dismiss, Pastrick argued that by not requesting

preparation of the transcript of the evidentiary hearing and the exhibits

introduced by the other parties, Pabey failed in his duty to present a

complete record as required by Indiana Appellate Rule 4(F)(4). (Appellee

Pastrick’s Br. in Resp. to Pet. to Transfer at 3-4). For that reason, he

asked that the appeal be dismissed or, at a minimum, that Pabey be ordered

to cause a transcript of the hearing to be prepared along with the exhibits

of all parties.

Appellate Rule 4(F)(4) provides in relevant part:

The Notice of Appeal shall designate all portions of the

Transcript necessary to present fairly and decide the issues on

appeal. If the appellant intends to urge on appeal that a finding of

fact or conclusion thereon is unsupported by the evidence or is

contrary to the evidence, the Notice of Appeal shall request a

Transcript of all the evidence.

Pabey did not request that the court reporter prepare a transcript of

the evidentiary hearing. In defense of his decision not to request a

transcript of the evidentiary hearing, Pabey stated that no transcript was

necessary because he “does not contend that these findings are unsupported

by the evidence or that a conclusion is unsupported by the evidence or

contrary to the evidence.” (Resp. to Motion to Dismiss Appeal at 4). He

argued that his specifications of error do not rely on evidence outside the

trial court’s findings. Id. Indeed, the Statement of the Facts in Pabey’s

brief states: “The Special Judge entered substantial and comprehensive

findings of fact which Pabey adopts as his statement of the facts in this

case.” (Appellant’s Br. at 4). Pabey then cites frequently to the court’s

findings throughout his brief. Pastrick does not identify any references

in Pabey’s brief to facts outside those found by the trial court.

In re Walker, 665 N.E.2d 586 (Ind. 1996), is instructive in this

regard. Transfer was granted in Walker “to encourage litigants and

reviewing courts to employ efficient appeal procedures.” Id. at 588. The

Court noted that the appellate rules in effect at the time required an

appellant to transmit only those parts of the record that are necessary for

review of the issues to be asserted upon appeal. Id. at 588. This Court

addressed the merits of the appeal, even though no transcript had been

filed as part of the record, where the appellants accepted the trial

court’s findings of fact and argued that those findings did not support the

trial court’s judgment. Id. at 588-89.

Even if Appellate Rule 9(4)(F) required Pabey to submit a transcript,

dismissal with prejudice was not the appropriate remedy for his

noncompliance with the rule. Former Appellate Rule 7.2(C) set out the

procedure for modification or correction of an appellate record of

proceedings, providing specifically that, “[i]ncompleteness or inadequacy

of the record shall not constitute a ground for dismissal of the appeal or

preclude review on the merits.” See Ben-Yisrayl v. State, 690 N.E.2d 1141

(Ind. 1997) (citing this language from the rule). That language was not

carried over into the new appellate rules that became effective in 2001,

but that omission was not intended to authorize dismissal of an appeal

based merely on the incompleteness of the part of the record submitted to

the appellate court. After all, the current Appellate Rule 49(B) provides

that the failure to include an item in an appendix “shall not waive any

issue or argument” and Rule 9(G) allows supplemental requests for

transcripts to be filed.

Alternatively, Pastrick argued that the appeal should be dismissed

because the trial court lost jurisdiction over the election contest due to

its failure to hold a hearing within the time established by statute.

(Appellee Pastrick’s Br. in Resp. to Pet. to Transfer at 8). We reject

Pastrick’s premise that the trial court lacked jurisdiction.

It is true that in an election contest, “[t]he court shall fix a date

within twenty (20) days after the return day fixed in the notice to the

Contestee for the hearing on a contest.” Ind. Code § 3-12-8-16. It has

also been held that the failure to comply with the requirements of the

election contest statutes generally requires dismissal. See, e.g., English

v. Dickey, 128 Ind. 174, 27 N.E. 495 (1891) (right to contest election

forfeited where contestor, without assigning reason therefor, requested and

obtained postponement of hearing to date outside statutory deadline for

hearing); Smith v. King, 716 N.E.2d 963 (Ind. App. 1999) (holding generally

the same), trans. denied; Kraft v. King, 585 N.E.2d 308, 309-10 (Ind. Ct.

App. 1992) (petition for election contest did not comply with statute and

thus failed to invoke jurisdiction of trial court).

In this case, however, Pastrick filed a motion to dismiss in the trial

court on July 3, 2003. He argued that the trial court lost jurisdiction

because the statutory deadline for the hearing was July 2. On July 15, the

court denied Pastrick’s motion to dismiss. The court noted delays in

securing a judge to hear the case and pointed out that the special judge

who ultimately tried the case was not appointed by this Court until June

30. Moreover, the court explained that given the special judge’s

obligations in his own courtroom, which had been fully scheduled through

September, the special judge’s distance from the court in which this case

arose, and the many cases that had to be continued so that the special

judge could hear this case, the election contest was heard as soon as

practicable.

The trial court ruled that these circumstances, and the lack of any

compelling indication that Pabey was less than diligent in moving the case

forward, brought this case under an exception to the twenty-day deadline

discussed in State ex. rel. Arrendondo v. Lake Circuit Court, 271 Ind. 176,

391 N.E.2d 597 (1979). In Arrendondo, the trial court set a hearing on an

election contest petition for a date within, but near the end of, the

twenty-day period allowed for by statute; yet a timely hearing could not be

held because the contestor’s motion for change of judge (filed ten days

before the hearing deadline) was granted and the new judge did not qualify

in time to conduct a hearing within the statutory period. 271 Ind. at 177-

78, 391 N.E.2d at 598-99. The contestee objected to the new judge

proceeding to hear the case beyond the twenty-day statutory period and

filed an original action to prevent further proceedings. Denying the writ,

this Court reasoned:

To extend [English v. Dickey] to a fact situation such as the

one at bar would, in our opinion, be grossly inequitable and place a

great burden upon both an election contestor and the trial court. A

hearing might initially be set near the end of the statutory time

limit. If, then, the trial court either deliberately re-schedules the

hearing beyond the limit or is forced to do so because of

extraordinary circumstances beyond its control, a diligent and

faultless contestor would forever be denied his statutory remedy. Our

laws must provide a degree of flexibility to account for such

situations. There can be no justification for closing the judicial

doors to a bona fide litigant when the circumstances causing the

delay are completely beyond his control.

271 Ind. at 178-79, 391 N.E.2d at 599. This Court concluded that when

there are “extraordinary or unusual circumstances” that preclude a contest

hearing from being conducted within the statutory twenty-day period, “the

trial court will not automatically be divested of jurisdiction so long as

the hearing is had as soon as practicable after the time limit.” 271 Ind.

at 179, 391 N.E.2d at 599. “The contestor, of course, must be diligent in

his efforts and must not utilize tactics to delay the hearing beyond the

twenty-day period,” the Court explained, but it also clarified that the

contestor’s motion for change of judge filed ten days before the statutory

deadline did not itself prevent a timely hearing. 271 Ind. at 179, 391

N.E.2d at 599-600.

We agree with the trial court that Arrendondo applies here. Moreover,

it is unclear why Pastrick believes that his allegations of delay, even if

true, require dismissal of the appeal. The trial court found the

Arrendondo exception applied, heard the election contest, and entered a

judgment. No allegation has been made that Pabey’s notice of appeal or

appellant’s brief was late under the applicable appellate rules.

For the same reasons, we reject Pastrick's claim on cross appeal that

the trial court should have dismissed the election contest complaint as

untimely.

II

Pabey argues that “the pervasive fraud, illegal conduct, and

violations of elections law” identified by the trial court, Judgment at 92,

are sufficient as a matter of law to establish the requisite “deliberate

act or series of actions occurred making it impossible to determine the

candidate who received the highest number of votes cast in the election.”

Ind. Code § 3-12-8-2. Under the circumstances, he asks that the results of

the primary election be vacated and a special election be ordered.

(Appellant’s Br. at 24).

The evidentiary hearing in the trial court spanned eight and one-half

days and included the testimony of 165 witnesses. Among the findings and

conclusions included in the trial court's judgment are the following:

Petitioner George Pabey has satisfied his burden to establish that a

deliberate series of actions occurred in the May 6, 2003 primary

election to determine the Democrat nominee for the office of Mayor of

the City of East Chicago, Indiana. Those actions perverted the

absentee voting process[1] and compromised the integrity and results

of that election.

Judgment at 9 (footnoted added).

[Those] deliberate series of actions included but are not limited to

the following:

a) a predatory pattern exercised by Pastrick supporters of

inducing voters that were first-time voters or otherwise less informed

or lacking in knowledge of the voting process, the infirm, the poor,

and those with limited skills in the English language, to engage in

absentee voting;

b) the numerous actions of Pastrick supporters of providing

compensation and/or creating the expectation of compensation to induce

voters to cast their ballot via the absentee process. Those actions

primarily–but not exclusively–involved the payment of money to voters

to be present outside the polls on Election Day. The extensive

evidence presented established that, at the least thirty-nine separate

individuals . . . fell within the ambit of those activities that

engaged cash incentives to encourage absentee voting;

c) the actions of various Pastrick supporters who directed

applicants for absentee ballots to contact that Pastrick supporter

when the applicant received his or her absent[ee] ballot and, once

called, to proceed to their home and, though not authorized by law to

do so, "assist" the voter in completing the ballot;

d) the use of vacant lots or former residences of voters on

applications for absentee ballots[2];

e) the possession of unmarked absentee ballots by Pastrick

supporters and the delivery of those ballots to absentee voters;

f) the possession of completed and signed ballots by Pastrick

supporters who were not authorized by law to have such possession;

g) the routine completion of substantive portions of absentee

ballot applications by Pastrick supporters to which applicants simply

affixed their signature;

h) the routine use of false representations–usually the

indication that the applicant "expected" to be absent from Lake County

on May 6, 2003–by those Pastrick supporters who filled out the

substantive portions of applications and by votes solicited by

Pastrick supporters to vote absentee to complete absentee ballot

applications;

i) votes cast by employees of the City of East Chicago who

simply did not reside in East Chicago; and

j) a zealotry to promote absentee voting that was motivated by

the per-

sonal financial interests of Pastrick supporters and, in particular,

city employees.

Id. at 9-11 (emphasis supplied in Judgment) (footnote added).

[T]he series of deliberate actions set forth in [the above items (a)

through (j)] implicate various state laws concerning absentee ballots

[therein detailing various election and

criminal laws implicated, including various violations constituting

class D felonies].

Id. at 11-14.

It was common practice for those engaged in the Pastrick absentee

voter efforts to deliver the completed absentee ballot applications

that they acquired to the Pastrick campaign headquarters. There, the

absentee ballot applications were photocopied. Thereafter the

Pastrick campaign caused the original completed applications to be

delivered to the

offices of the Lake County Election Board in Crown Point, Indiana.

Id. at 15.

Rooted in the Pastrick campaign and its weekly exhortations in

meetings with Democrat party precinct officials and city department

heads to 'encourage' absentee voting, Pastrick confederates throughout

the City of East Chicago in the three to four month period preceding

May 6, 2003, engaged citizens in the absentee voting process. That

absentee voter drive as played out in the testimony presented included

criminal conduct by Pastrick supporters but, just as often, induced

unwitting citizens to engage in criminal conduct or

violate election laws.

Id. at 84.

[T]he commission of criminal acts by Pastrick supporters that included

such activity as their unauthorized possession of completed ballots [a

species of vote fraud defined by Ind.Code 3-14-2-16(4) and (5)], the

unauthorized possession of unmarked ballots [a species of "vote fraud"

per Ind.Code 3-14-2-16(6)], their presence while voters marked and

completed their absentee ballots [a species of 'vote fraud' per

Ind.Code 3-14-2-16(3) and a violation of Indiana Code 3-11-10-1.5],

and the direct solicitation of a vote for cash all

yielded absentee votes which respondent Pastrick concedes are invalid.

Id. at 84-85 (bracketed comments and emphasis in original).

The East Chicago Democrat mayoral primary may be a "textbook" example

of the chicanery that can attend the absentee vote cast by mail:

examples of instances where the supervision and monitoring of voting

by Pastrick supporters and the subsequent possession of ballots by

those malefactors are common herein. Those illegalities came with a

side order of predation in which the naïve, the neophytes, the infirm

and the needy were

subjected to the unscrupulous election tactics so extensively

discussed.

Id. at 89.

[I]t is apparent that a political subculture exists in Lake County

which views the

political machinations at issue with a "wink and a smile" and

"business as usual."

Id. at 91.

The routine and cavalier use of "absence from Lake County" on election

day, a reason often supplied and checked by the Pastrick supporter

himself [as opposed to the registered voter] of the absentee ballot

applications, is the common predicate to the most insidious and

widespread of the abuse tactics exposed here: the predatory approach

to the

unwitting.

Id. at 91 (bracketed comments in Judgment). The appellate briefs filed on

behalf of Pastrick do not challenge or dispute any of these findings.

The trial court was also cognizant of the difficulties faced by Pabey

in discovering and presenting evidence to support his claims.

Given the voluminous, widespread and insidious nature of the

misconduct proven, together with the sheer number of voters impacted

by that misconduct, petitioner Pabey, his legal counsel, and amateur

investigators faced a herculean task of locating and interviewing

absentee voters, visiting multi-family dwellings and housing projects,

gathering and combing through voluminous election documents, and

analyzing, comparing, sifting and assembling the information necessary

to present their case. . . . In short, the time constraints that

govern election contests, primarily designed to serve important

interests and needs of election officials and the public interest in

finality, simply do not work well in those elections where misconduct

is of the dimension and multi-faceted variety present

here.

Id. at 92-93. Commenting on the "reluctance [of] voters to candidly

discuss the circumstances surrounding their absentee vote," the judge

observed: "It is wholly natural, of course, that voters would be reluctant

to expose themselves to potential criminal liability. . . . " Id. at 93.

The judge also noted that, in the course of the trial, several Pastrick

supporters were involved in various attempts to influence or prevent

witnesses' testimony, id. at 94, including instructing a witness to "feign

a lack of knowledge on the witness stand." Id. at 87.[3]

Indiana law provides two methods to examine the results of elections:

an election "recount" and an election "contest." See Ind. Code §§ 3-12-6-1

et seq. (recount) and 3-12-8-1 et seq. (contest). Pabey originally

challenged the results of the primary under both of these statutes.

However, he subsequently dropped his request for a recount and his recount

petition was dismissed with prejudice. (Br. of Appellee, Pastrick at 2).

As such, what is at issue in this proceeding is solely an election

"contest" under Indiana Code § 3-12-8-1 et seq. We will refer to the

election contest chapter of the Indiana Code as the "Election Contest

Statute."

The Election Contest Statute provides that "[t]he court shall

determine the issues raised by the petition and answer to the petition."

Ind. Code § 3-12-8-17(b). As relevant to the issue before us, both section

2 of the statute, which prescribes the grounds upon which an election may

be contested, and section 6, which designates the required content of a

petition to contest an election, contain substantially similar language

specifying that an election may be contested on the following grounds:

(1) The contestee was ineligible.

(2) A mistake occurred in the printing or distribution of

ballots used in the election that makes it impossible to determine

which candidate received the highest number of votes.

(3) A mistake occurred in the programming of a voting machine or

an electronic voting system, making it impossible to determine the

candidate who received the highest number of votes.

(4) A voting machine or an electronic voting system

malfunctioned, making it impossible to determine the candidate who

received the highest number of votes.

(5) A deliberate act or series of actions occurred making it

impossible to deter-

mine the candidate who received the highest number of votes cast in

the election.

Ind. Code § 3-12-8-2; see also Ind. Code § 3-12-8-6(a)(3). Pabey contested

the results of the East Chicago mayoral primary pursuant to subsection (5),

that is, that a deliberate series of actions had occurred that made it

impossible to determine the candidate who had received the highest number

of votes cast in the primary, to which we will refer hereafter as the

"Deliberate Actions" ground.

The statutory language in the Deliberate Actions ground presents

various difficulties in interpretation. It is not susceptible to literal

interpretation and application. For example, the phrase "deliberate acts

or series of actions" is unclear because it could be interpreted to mean

conscious human behavior. In addition, the phrase "number of votes cast"

literally includes both legal and illegal votes. Finally, the intended

application and methodology prescribed by the phrase "impossible to

determine" is not apparent from the text, and has never been construed by

the appellate courts of Indiana. Because of these ambiguities, judicial

construction is required.

While this Court has the inherent power to protect voters and

candidates from election fraud and unlawfulness, Nicely v. Wildey, 197 N.E.

at 847, the legislature "may set up machinery for the conduct of

elections," id., and we prefer to exercise our authority within the

constraints of the Indiana Election Contest Statute.

The process of statutory construction is guided by well-recognized

principles. "Our objective in statutory construction is to determine and

effect the intent of the legislature." Matter of Lawrence, 579 N.E.2d 32,

38 (Ind. 1991). We do not presume that statutory language "is meaningless

and without a definite purpose" but rather seek to give effect "to every

word and clause." Combs v. Cook, 238 Ind. 392, 397, 151 N.E.2d 144, 147

(1958). "Where possible, every word must be given effect and meaning, and

no part is to be held meaningless if it can be reconciled with the rest of

the statute." Hall Drive Ins, Inc., v. City of Fort Wayne, 773 N.E.2d 255,

257 (Ind. 2002). We must assume that the language employed in a statute

was used intentionally. Burks v. Bolerjack, 427 N.E.2d 887, 890 (Ind.

1981). We "will presume that the legislature did not enact a useless

provision." Robinson v. Wroblewski, 704 N.E.2d 467, 475 (Ind. 1998). In

interpreting a statute, we must seek to "give it a practical application,

to construe it so as to prevent absurdity, hardship, or injustice, and to

favor public convenience." Baker v. State, 483 N.E.2d 772, 774 (Ind. Ct.

App. 1985). When deciding questions of statutory interpretation, appellate

courts need not defer to a trial court's interpretation of the statute's

meaning. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind.

2001).

In addition, this Court has long held that statutes providing for

contesting elections "should be liberally construed in order that the will

of the people in the choice of public officers may not be defeated by any

merely formal or technical objections." Tombaugh v. Grogg, 146 Ind. 99,

103, 44 N.E. 994, 995 (1896); see also Hadley v. Gutridge, 58 Ind. 302, 309

(1877).

The trial court noted that the statutory "deliberate act or series of

actions" language does not require the conduct to be a species of "vote

fraud," a criminal act, or otherwise proscribed by law. Judgment at 83.

The legislature cannot have intended that any "act or series of actions"

can trigger a special election. Of course, the conduct of every election

campaign will involve an "act or series of actions" by candidates,

political parties, and election officials alike. Standing alone, the

phrase "act or series of actions" is ineffectual. The statute further

requires that, to support an election contest and to justify a special

election, the act or actions must be "deliberate." Ind. Code §§ 3-12-8-

2(5), -6(a)3)(E). Used in this context, the noun "deliberate" means

"[c]onsidered or planned in advance with a full awareness of everything

involved; premeditated" or "[d]one or said on purpose; intentional."

American Heritage Dictionary, Second College Edition (1982) at 378. But

such a qualification would likewise apply to the ordinary purposeful but

lawful activities of candidates and political parties in the election

process. Thus understood, the phase standing alone would lack any definite

purpose and would be meaningless, contrary to the rules of statutory

construction noted above.

The statutory language adds one further qualification, however. It

requires that the deliberate acts or series of actions must result in

"making it impossible to determine the candidate who received the highest

number of votes cast in the election." Ind. Code §§ 3-12-8-2(5),

-6(a)(3)(E). Interpreting the phrase "deliberate act or series of actions"

so as to have the purpose and meaning intended, we conclude that it

requires the acts or series of actions to be deliberate in the sense of

being purposeful in that the actor or actors knew or reasonably should have

known that such conduct would "make it impossible" to determine the

candidate receiving the most votes.

As to the phrase "votes cast in the election" used in the statute, the

plain meaning demonstrates that the legislature meant to restrict this

ground to votes actually cast and not to include potential votes that were

not actually cast. However, by the word "votes," the legislature could not

have meant it to include votes illegally cast. To impose such a meaning

would render ineffectual the purpose of the statute. More than a century

ago, this Court recognized that the "true gravamen of the case, whatever

may be the ground of contest, is 'the highest number of legal votes.'"

Dobyns v. Weadon, 50 Ind. 298, 302 (1875) (emphasis omitted). We hold that

the word "votes," as used in the phrase "highest number of votes," means

legal votes.

The last and most challenging issue relating to the Deliberate Acts

ground is the application and methodology intended by the phrase

"impossible to determine." The trial judge focused on individual ballots

to determine whether Pabey proved to a mathematical certainty that there

existed a number of invalid votes cast that equaled or exceeded Pastrick's

margin of victory. While recognizing the appeal of granting "some form of

relief to petitioner, given the direct, competent, and convincing evidence

that established the pervasive fraud, illegal conduct, and violations of

elections law," Judgment at 92, the trial court believed:

[A] court is not free to engage in speculation as to whether the will

of the electorate has been served or to impose . . . its subjective

determination as to whether it is "impossible" to determine which

candidate received the most votes in an election. Objective factors

established by the evidence must guide that determination.

Id. at 97 (emphasis in original). The trial court declared 155 votes to be

invalid but concluded "that those invalid votes were the result of a series

of deliberate actions that do not make it impossible to determine which of

the candidates" received the most votes. Id. at 101. This construction is

unnecessarily restrictive and incorrect.

The last four grounds for a special election quoted above from section

2 and subsection 6(a)(3) of the Election Contest Statute each contain the

"making it impossible" qualification. Of these four, clearly the last one,

the Deliberate Actions ground, specifying conduct in the nature of

purposeful behavior, is in stark contrast to the first three, which

encompass inadvertent human error or device malfunction. This distinction

is significant. The occurrence and resulting consequences of printing,

distribution, or programming mistakes, or machine/system malfunctions,

referred to in the prior three grounds are likely to be ascertainable with

relative objectivity.

In contrast, the disruptive effects of deliberate conduct committed

with the express purpose of obscuring the election outcome based on legal

votes cast is likely to be more invidious and its results difficult to

ascertain and quantify. Schemes that seek to discourage proper and

confidential voting or that endeavor to introduce unintended or illegal

votes into the outcome will inevitably produce outcome distortions that

defy precise quantification. Furthermore, the grounds of mistake and

malfunction are distinguished by the absence of deliberate human efforts to

thwart true election results, and are generally not obscured by the

material witnesses' self-interest or desire to avoid criminal self-

incrimination. With its enactment of the Deliberate Actions ground in the

Election Contest Statute, the legislature expressly intended to provide the

remedy of a special election not merely for inadvertent mistakes and

malfunctions, but also for deliberate conduct. In construing the language

of these subsections, we must interpret and apply them in such a manner as

to achieve the effect intended. As to the Deliberate Actions ground, the

legislature could not reasonably have intended to immunize obviously

corrupt elections where the resulting distortion of an election outcome

could not be precisely traced and mathematically determined.

On the other hand, the mere occurrence of conduct by one or more

persons who knew or reasonably should have known that the conduct would

make it impossible to determine the candidate receiving the most valid

votes, but which deliberate conduct does not affect the outcome of an

election, would be inconsistent with the language "makes it impossible to

determine the candidate who received the highest number of votes" and thus

cannot be a valid ground requiring a special election. We are convinced

that this language was intended to require that the results of an election

contested under the Deliberate Actions ground may not be set aside and a

special election ordered unless the deliberate acts or series of actions

succeed in substantially undermining the reliability of the election and

the trustworthiness of its outcome.

We therefore hold that the burden upon a challenger seeking a special

election under the Deliberate Actions ground in subsections 2(5) and

6(a)(3)(E) of the Election Contest statute is to conclusively demonstrate

(a) the occurrence of an act or series of actions by one or more persons

who knew or reasonably should have known that such conduct would make it

impossible to determine which candidate receives the most legal votes cast

in the election, and (b) the deliberate act or series of actions so

infected the election process as to profoundly undermine the integrity of

the election and the trustworthiness of its outcome.[4] A special election

should be ordered only in rare and exceptional cases.

This methodology applies only to the "deliberate acts or series of

actions" in subsections 2(5) and 6(a)(3)(E), but not to the same phrase as

used based on mistakes and malfunctions stated in the grounds set forth in

subsections 2(2)-(4) and 6(a)(3)(B)-(D). The methodology utilized by the

trial court here, requiring a mathematically sufficient number of resulting

invalid ballots to be demonstrated, is appropriate to a proceeding under

subsections 2(2)-(4) and 6(a)(3)(B)-(D) of the Election Contest Statute.

In the present case, the undisputed trial court findings establish the

occurrence of a deliberate series of actions that "perverted the absentee

voting process and compromised the integrity and results of that election."

Judgment at 9. The court found that this scheme subjected "the naïve, the

neophytes, the infirm and the needy" to "unscrupulous election tactics,"

id. at 89, that there was "convincing evidence that established the

pervasive fraud, illegal conduct, and violations of elections law," id.,

and that the misconduct was "voluminous, widespread and insidious." Id. at

92.

When as here an election is characterized by a widespread and

pervasive pattern of deliberate conduct calculated to cast unlawful and

deceptive ballots, the election results are inherently deceptive and

unreliable. Widespread corruption of this nature has a high probability of

producing untold improper votes and unreliable election results by coercing

or intimidating citizens to vote in disregard of their own preferences and

by manipulating them into voting when they would otherwise not vote at all.

The effectiveness and breadth of such a scheme is inherently difficult to

quantify. The opportunities for positive proof of individual ballot

improprieties will inevitably be relatively few in comparison with the

actual impact of such efforts.

The trial court findings abound with instances of concerted,

purposeful efforts such as "a predatory pattern exercised by Pastrick

supporters," Judgment at 9; "weekly exhortations in meetings," id. at 84;

and "direct solicitation of a vote for cash," id. at 85 (emphasis in

Judgment). As found by the trial judge, the deliberate series of actions

in the campaign "compromised the integrity and the results" of the

election. Id. at 9. The magnitude, pervasiveness, and widespread effect

of the deliberate series of actions found in this case leads to but one

conclusion. The Pastrick campaign certainly knew or consciously intended

that the results of their conduct would so inhibit opposing votes and

inject invalid favorable votes as to profoundly undermine the integrity of

the election and the trustworthiness of its outcome. And this objective

was clearly achieved. Given the exceptional facts and circumstances of

this case, any other conclusion is inconceivable.

In view of the uncontested factual findings of the trial court, we

conclude that Pabey has established that a deliberate series of actions

occurred making it impossible to determine the candidate who received the

highest number of legal votes cast in the election and that the trial court

erred in denying Pabey's request for a special election.[5] While this

remedy will be appropriate only rarely and under the most egregious

circumstances, it is compelled by the facts of this case.

III

Pastrick contends that even if the actions found by the trial court to

have occurred make it impossible to determine the candidate who received

the highest number of votes cast in the election, a special election is not

a permissible remedy. He points to the remedy section of the Election

Recount Statute which provides:

(a) A contest shall be heard and determined by the court without

a jury subject to the Indiana Rules of Trial Procedure.

(b) The court shall determine the issues raised by the petition

and answer to the petition.

(c) After hearing and determining a petition alleging that a

candidate is ineligible, the court shall declare as elected or

nominated the qualified candidate who received the highest number of

votes and render judgment accordingly.

(d) If the court finds that:

(1) A mistake in the printing or distribution of the ballots;

(2) A mistake in the programming of a voting machine or an

electronic voting system; or

(3) A malfunction of a voting machine or an electronic voting

system;

makes it impossible to determine which candidate received the

highest number of votes, the court shall order that a special election

be conducted under IC 3-10-8.

(e) The special election shall be conducted in the precincts

identified in the petition in which the court determines that:

(1) Ballots containing the printing mistake or distributed by

mistake were cast;

(2) A mistake occurred in the programming of a voting machine or

an electronic voting system; or

(3) A voting machine or an electronic voting system

malfunctioned.

Ind. Code § 3-12-8-17. The omission, Pastrick argues, from subsections (d)

and (e), of any mention of "deliberate act or series of actions . . .

making it impossible to determine which candidate received the highest

number of votes" indicates that the Legislature did not intend that a

special election be a remedy under such circumstances.

Our analysis on this point requires a review of the legislative

history of the Election Contest Statute and decisions of the Indiana Court

of Appeals interpreting it. The modern form of the Election Contest

Statute was enacted in 1986. It authorized eligible parties to contest

elections on grounds of (1) irregularity or misconduct by election

officials, (2) ineligibility of a candidate, and (3) "[m]istake or fraud in

the official count of the votes." Ind. Code §§ 3-12-8-2, -6 (1986 Supp.).

The Statute did not provide a special election as a remedy. See Ind. Code

§ 3-12-8-17 (1986 Supp.). In 1988, the first and third of those grounds

were deleted such that the Election Contest Statute was apparently

available only to contest elections on grounds of ineligibility of the

candidate. 1988 Pub. L. 10, §§ 153, 155. The remedy section remained

unchanged. See Ind. Code § 3-12-8-17 (1988). In 1989, the Statute was

amended to authorize eligible parties also to contest elections on grounds

that "a mistake occurred in the printing or distribution of ballots

[making] it impossible to determine which candidate received the highest

number of votes.” 1989 Pub. L. 10, §§ 12, 13; Indiana Code § 3-12-8-2, -6

(1989 Supp.). The 1989 amendments also added a special election remedy for

the first time but only in the precincts where the mistakenly printed or

distributed ballots were cast. Id., § 14; Ind. Code § 3-12-8-17 (1989

Supp.).

Despite the elimination of the grounds of irregularity or misconduct

by election officials and mistake or fraud in the official count, an

unsuccessful primary candidate in a 1991 primary election sought to file an

election contest on those bases. The Court of Appeals held that,

notwithstanding the 1989 legislative changes, a candidate could challenge

an election based on fraud under the Election Contest Statute. Hatcher v.

Barnes, 597 N.E.2d 974 (Ind. Ct. App. 1992). It reasoned that “fraud of

all kinds is abhorrent to the law, and if one person sustains injury

through the fraud of another, courts have jurisdiction to afford a proper

remedy” for fraud. Id. at 976. The court also stated that it did not know

why the legislature took fraud out of the election contest statute, but

that it was “convinced that [the Legislature] did not do so with any

intention of precluding candidates from public office from a remedy if

fraud indeed occurred.” Id. at 977. See also Kraft v. King, 585 N.E.2d

308, 311 (Ind. Ct. App. 1992) (Sullivan, J., dissenting).

Hatcher was the last word on the subject until 1999 when the Statute

was amended in two places to authorize eligible parties also to contest

elections on grounds that “[a] deliberate act or series of actions occurred

making it impossible to determine the candidate who received the highest

number of votes cast in the election” and to specify this as one of the

grounds that may be included in a petition to contest an election. 1999

Pub. L. 176, § 100; Ind. Code § 3-12-8-2, -6 (1999 Supp.). In 2004, after

this case had reached this Court, the legislature corrected an apparently

inadvertent omission by amending section 17(d) of the Election Contest

Statute to conform with subsections 2(5) and 6(a)(3)(E) which had been

adopted in 1999, to expressly provide that a special election could be

ordered in such circumstances. 2004 Pub. L. 14, § 161.

Based upon this history, we conclude that eligible parties are

authorized to contest elections on grounds of intentional misconduct under

the Election Contest Statute and that the court has authority to order that

a special election be conducted where it finds that the occurrence of a

deliberate act or series of actions makes it impossible to determine which

candidate received the highest number of votes.

IV

The Lake County Election Board by cross appeal challenges the trial

court's determination that certain votes of the 155 absentee ballots cast

in the primary are invalid because they had been cast by individuals “who

applied to vote absentee by mail and made a false representation to the

Lake County Election Board concerning the reason they were entitled to vote

in that manner.” Judgment at 87. There are 55 ballots that fall into this

category. The Lake County Election Board contests the conclusion that

these votes should not be counted.

We noted in footnotes 1 and 2, supra, several of the provisions of law

applicable to this claim. Indiana Code § 3-11-10-24 provides that a voter

who satisfies certain specified conditions is entitled to vote by mail.

Among these conditions are the following: that the voter will be “absent

from the county on election day; . . . absent from the precinct of the

voter's residence on election day because of service in certain statutorily-

prescribed election day worker positions; confined on election day to the

voter's residence, to a health care facility, or to a hospital because of

an illness or injury; . . . [is] an elderly voter; . . . [or] is scheduled

to work at the person's regular place of employment during the entire

twelve (12) hours that the polls are open.” Id. A voter falling into one

or more of these categories who wishes to cast an absentee ballot by mail

submits an “Application for Absentee Ballot” on a form prescribed by the

Indiana Election Commission to the County Election Board. The Board then

provides the voter with an absentee ballot.

The County Election Board argues that the trial court erred in

invalidating the votes in each of these 55 instances where the subject

voter simply indicated on the ABS-1 Form of Application for Absentee Ballot

that he or she would be absent from the County on Election Day, thus

serving as a basis for Voting by Mail, when, in fact, the individual was

not actually absent from the County on Election Day.

As discussed in Part II above, our ultimate resolution of this case

does not rest on the mathematical comparison of votes invalidated to

Pastrick's final victory margin. Instead, it rests on the trial court's

unchallenged findings and conclusions of pervasive and widespread

deliberate conduct that "perverted the absentee voting process and

compromised the integrity and results of that election." Judgment at 92.

The total number of absentee votes invalidated by the trial court is not

determinative. Our conclusion is not altered whether the number of

invalidated absentee ballots is 155 as found by the trial court, or 100, as

urged by the Lake County Election Board.

Conclusion

We reverse the trial court's determination denying a special election

and remand to the trial court with directions to promptly order a special

election by issuing a writ of election pursuant to Indiana Code § 3-10-8-3,

and for all further proceedings consistent with this opinion. Any Petition

for Rehearing must be actually received by the Clerk of Courts not later

than ten calendar days following the date of this opinion, notwithstanding

provisions to the contrary in Indiana Appellate Rule 54(B).

Shepard, C.J., and Rucker, J. concur. Boehm, J., dissents with

separate opinion in which Sullivan, J., concurs.

Boehm, J., dissenting.

I respectfully dissent. In my view, the controlling question is not

whether election law violations occurred. The trial court found they did,

and that finding was plainly supported by the evidence. But the central

issue here is whether the corruption was the cause of the election result.

The presence of corruption, even if “widespread,” is no basis to upset an

election and nullify the votes of the electorate if a majority of untainted

votes supported the winning candidate. As the majority opinion spells out

in some detail, the trial court found election law violations, and they

were not limited to a few isolated instances. But the standard set forth

in Indiana law for overturning an election it is that it is “impossible to

determine the candidate who received the highest number of votes.” Ind.

Code § 3-12-8-2 (1999). The trial court, like the majority, read “the

highest number of votes” to mean legitimate votes. The trial court,

despite the portions of the judgment quoted by the majority, found that the

plaintiffs failed to carry their burden of establishing that.

The trial court’s finding, like any fact determination, is reversible

only if clearly erroneous. Infiniti Prods. v. Quandt, 810 N.E.2d 1028, ___

(Ind. 2004) (slip op. at 5) (quoting Bussing v. Ind. Dept of Transp., 779

N.E.2d 98, 102 (Ind. Ct. App. 2002), trans. denied). I believe that the

trial court carefully analyzed these complex facts, and its finding is

correct on this record. The trial court found the statute to require that

the plaintiffs establish, by a preponderance of the evidence, that the

“deliberate acts” rendered it “impossible” to determine who got the most

legitimate votes. I think that is the correct reading of the statute, and

I believe it is the same reading the majority gives it. I also believe

that reading makes sense. If corruption is widespread but has no effect on

the election result, neither the public nor the parties should be put to

the trouble of redoing the election. This does not mean the plaintiffs had

to prove enough individual instances of unlawful votes to tip the election.

It does mean that they needed to prove that the unlawful practices made it

more likely than not that the result of the election, measured by lawful

votes, was unknowable. There are a number of ways that a statistician

might attempt to establish that it was a more probable than not that the

deliberate acts affected the result. Here the trial court’s judgment

turned on its finding that there was no such showing. Neither plaintiffs

nor the majority show how, on this record, the trial court was incorrect,

much less clearly erroneous.

The majority concludes that it is irrelevant to the result here

whether the trial court was correct in finding 155 invalid votes, rather

than 100. I believe the trial court’s calculations of invalid votes were

excessively generous to the plaintiffs, and I do not agree that it is

irrelevant. Fifty-five of the 155 ballots the trial court found invalid

were defective only because they were based on an absentee affidavit that

stated that the voter expected to be absent from the county on election

day, but in fact the voter was in Lake County on that day. I believe it is

common practice, and permissible, to vote by absentee ballot if there is

any chance that voting on election day will not be possible. In today’s

commercial world, many people are unsure of their schedules and vote

absentee to be sure they exercise their franchise, even if they know they

may indeed be present on election day. To be sure, others may abuse that

privilege and vote absentee in order to work at the polls in another

precinct, or for other less valid reasons. But as long as the voter votes

only once, and in the precinct in which he or she is eligible, I would not

disenfranchise that voter as the trial court did. The reason I believe

this issue is relevant is that the conclusion that the legitimate votes are

“impossible” to tally obviously turns on how close the election was. If

over one third of the invalid ballots were in fact valid, it obviously

affects the margin the plaintiffs need to overcome (increasing it from 278

to 333). But importantly, it also alters the percentage of irregular

absentee ballots proven from 8.2% (155 of 1950) to 5.1%. It also increases

the percentage of absentee ballots that were cast properly. The net result

is, as the trial court found even without this adjustment, plaintiffs have

not shown that the result of the election is more likely than not

undetermined.

I also believe the majority’s standard for judicial intervention in an

election is problematic. The statute as written provides a relatively

objective standard: are enough votes tainted that it is more likely than

not that the result of the election, measured by lawful ballots, is

unknown. The majority puts an essentially subjective patina on this test

and calls for a new election whenever wrongdoing “profoundly undermines the

integrity of the election and the trustworthiness of its outcome.” This

seems to me to invite courts to exercise essentially discretionary

authority to alter election results that they deem undermined. Given that

many Indiana trial judges are selected by partisan election, it seems an

unwise expansion of the quite limited standard selected by the legislature,

and one calculated to lead to claims of improper judicial interference with

the electoral process.

The majority’s reliance on State ex rel. Nicely v. Wildey, 197 N.E.

844, 209 Ind. 1 (1935) is misplaced. That case stated that elections do

not “belong” to the legislature. Id. at 847-48. But neither Nicely nor

any of the cases it cites for that proposition suggests that the

legislature cannot prescribe processes for challenging election results.

They do stand for the proposition that a writ of quo warranto may be a

vehicle to challenge an officeholder’s right to office, even if there are

also statutory remedies. If it can be shown that the officeholder did not

receive the most votes, he or she may be removed by that traditional common

law writ proceeding, even if there are also statutory remedies that might

be invoked. See, e.g., State ex rel. Waymire v.Shay, 101 Ind. 36, 37

(1885). But that does not suggest, as the majority implies, that the

courts have unfettered authority to disregard legislative standards if, as

here, a plaintiff invokes a statutory procedure. The election contest

remedy provided by Indiana statute is specific in what must be shown and

when it must be shown, and neither Mississippi case law nor Indiana

precedent provides any basis for disregarding the statutory standards if a

statutory challenge is raised. Moreover, if quo warranto had been

attempted, it would require essentially the same showing that the statute

demands for an election contest: proof that Pabey received the greater

number of legitimate votes. As this Court put it in Waymire, “Whatever

form the contest may assume, the pivotal question is, Who received the

highest number of votes?” Id. at 38.

The difficulties the plaintiffs faced in proving their case were

substantial, but are in my view no reason to upset an election. To be

sure, plaintiffs here labored under severe constraints, but those

constraints are imposed by statute and are designed to prevent judicial

interference with electoral results except in the most extreme

circumstances. Indiana law requires an election contest, as opposed to a

recount, to be filed within seven days after the election. I.C. § 3-12-8-5

(1998). The matter is to be heard within twenty days after notice of a

contest is served. I.C. § 3-12-8-16. This very short timetable

undoubtedly imposes limits on the access to information and discovery that

is available in more conventional lawsuits. But there is a very good

reason why the election laws require this very expedited resolution of

election disputes, even at the cost of sacrificing the court’s normal

opportunities for fact finding. There are many other remedies for the

actions complained of in addition to setting aside an election. These

include criminal prosecution of those who violate the law. As the entire

nation painfully learned in the 2000 presidential contest, protracted

election disputes leave the leadership and governance of the body politic

in question. Upsetting an election thus visits a penalty on all citizens

of the affected electorate, not just the wrongdoers.

In sum, the legislature has provided that the election stands if,

after disregarding the votes shown to be tainted, there is no showing that

the result is unknown. The majority cites authorities under other statutes

that suggest a lower threshold of proof may be sufficient to overturn an

election. I believe under our statutes Indiana courts have no business

imposing a higher standard on the electorate. The trial court faithfully

carried out the charge given to it by the legislature and found that the

plaintiffs’ case fell short of establishing the need for a new primary

election. There is no doubt that the plaintiffs proved old-style election

fraud in some cases, and highly inappropriate behavior in others. But our

disapproval of the conduct of some of the participants in the election is

no basis to change its result without proof that the ultimate result was

altered by the wrongdoing.

Sullivan, J. joins.

-----------------------

[1] Indiana Code § 3-11-10-24 provides that a voter who satisfies any

of the following is entitled to vote by mail: (1) a voter who will be

absent from the county on election day; (2) a voter who will be absent from

the precinct of the voter's residence on election day because of service in

certain statutorily-prescribed election day worker positions; (3) a voter

who will be confined on election day to the voter's residence, to a health

care facility, or to a hospital because of an illness or injury; (4) a

voter with disabilities; (5) an elderly voter; (6) a voter who is prevented

from voting due to the voter's care of an individual confined to a private

residence because of illness or injury; (7) a voter who is scheduled to

work at the person's regular place of employment during the entire twelve

(12) hours that the polls are open; or (8) a voter who is eligible to vote

under Ind. Code § 3-10-11 [relating to persons who have moved not more than

30 days prior to the election] or Ind. Code § 3-10-12 [relating to persons

who change residence from a precinct to another precinct do not notify the

county voter registration office of the change of address before election

day].

The trial court made a most important point in its Judgment in

distinguishing between the statutory requirements for voting absentee by

mail and voting absentee in person before an absentee voter board:

It is emphasized . . . that without any reason, any registered and

qualified voter may cast an absentee ballot prior to election day in

person before an absentee voter board. I.C. § 3-11-10-26.

Judgment at 8-9. As the court observed, utilization of this alternative

might well have "served to eliminate much of the mischief and fraud at

issue" in this matter. Id. at 9.

[2] An eligible voter who wishes to cast an absentee ballot by mail

submits an “Application for Absentee Ballot” on a form prescribed by the

Indiana Election Commission to the County Election Board. The Board then

provides the voter with an absentee ballot. Judgment at 7-8.

[3] At the conclusion of the final judgment, the trial court noted

that it had referred to Lake County Prosecutor Bernard Carter details

regarding conduct of several specific Pastrick supporters who had

threatened and/or otherwise attempted to influence testimony of witnesses

in this case, and further noted that the court had taken "appropriate

action" with respect to a Lake County judge who reportedly was indicating

to prospective witnesses that they did not have to testify unless they had

been paid a $20.00 witness fee. Judgment at 101-103.

[4] Under these subsections, a contestor need not prove to a

mathematical certainty that the number of invalid votes equaled or exceeded

the contestee's margin of victory, but such proof would of course be

sufficient to warrant relief.

[5] Indiana Code 3-12-8-17(e) specifies that a special election

ordered in an election contest "shall be conducted in the precincts

identified in the petition in which the court determines that . . . the

deliberate act or series of actions occurred." Because the statute

requires the petition for an election contest to "identify each precinct or

other location in which the act or series of actions occurred," Ind. Code §

3-12-8-6(c) (emphasis added), a special election may be generally ordered

without limitation to specific precincts where, as here, the petition

alleges that "the acts and series of actions . . . occurred in each and

every one" of the thirty-three (33) precincts in the City of East Chicago.

Appellant's Appendix at 128.