# Pabey v. Pastrick > Indiana Supreme Court · August 6, 2004 · 816 N.E.2d 1138 URL: https://www.frixlaw.com/law-library/cases/9505320 ## Case - **Full name:** 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) - **Court:** Indiana Supreme Court - **Decided:** August 6, 2004 - **Citations:** 816 N.E.2d 1138; 2004 Ind. LEXIS 705; 2004 WL 1770562 - **Precedential status:** Published - **Opinion:** Dissent by Boehm - **Judges:** Dickson, Shepard, Rucker, Boehm, Sullivan - **Cited by:** 40 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9505320 ## How later opinions describe it (automated extraction) - holding "that the results of an election contested ... 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" - holding that a special election was required because one candidate engaged in “a deliberate series of actions . . . making it impossible to determine the candidate who received the highest number of legal votes cast in the elec *196 tion” - finding “pervasive and widespread deliberate conduct that perverted the absentee voting process and compromised the integrity and results of th[e] election” (internal quotation marks omitted) - declining to dismiss appellant’s appeal for failure to include a transcript of the trial because the appellant did not argue that the trial court’s findings were unsupported by the evidence and his argument relied on the trial court’s factual findings - stating that courts should not presume that the legislature would enact a useless provision and thus should attempt to give effect to every word of a statute ## Opinion text 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 § 312-82 (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. Infinity Prods. v. Quandt, 810 N.E.2d 1028, 1031-32 (Ind.2004) (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 *1155 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 precinet, or for other less valid reasons. But as long as the voter votes only once, and in the precinet 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 af-feets the margin the plaintiffs need to overcome (increasing it from 278 to 383). 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 caleu-lated to lead to claims of improper judicial interference with the electoral process. *1156 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 , 197 N.E. 844 . 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 guo 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. Seq, eg., State ex rel. Waymaire 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 warran-to 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. IC. § 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 *1157 election is no basis to change its result without proof that the ultimate result was altered by the wrongdoing. SULLIVAN, J. joins. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9505320. Public record. Not legal advice.