County Election Board Proceedings

1. County Election Board Proceedings COUNTY ELECTION BOARDS CHALLENGES, COMPLAINTS, HEARINGS AND APPEALS

2. County Election Board Proceedings TYPES OF HEARINGS • County election boards sometimes assumes a judicial role: • Campaign Finance • Candidate Challenges • Alleged Election Law Violations • Title 3 HAVA Complaints • Provisional ballot determinations

3. County Election Board Proceedings General Rules for CEB in Judicial Role • Open Door Law: Requirement post notice 48-hours in advance applies to all meetings • Notice and an Opportunity to be Heard: For parties potentially impacted by decision send notice to parties • Other statutes depending upon the issue: • Campaign Finance-Election laws (IC 3-9-4) and AOPA (IC 4-21.5) • Candidate Challenges (IC 3-8-1-2) • Election Law Violations(IC 3-6-5-31 & 32)

4. County Election Board Proceedings General Rules for CEB in Judicial Role • Powers that may aid the Board: • Proxies (IC 3-6-5-4.5) • CEB member may administer oath (IC 3-6-5-26) • CEB may subpoena persons and/or papers and ask sheriff to serve subpoena (IC 3-6-5-26 & 27) • CEB must pay witness and mileage fees and enforce subpoena through court action (IC 3-6-5-30; IC 33-19-1-6; IC 3-6-5-28) • Indiana Election Division can provide sample forms for proxies, oaths, and subpoenas

5. County Election Board Proceedings Candidate Challenges • “Do Something-that candidate’s not qualified!” • Put Up or Shut Up Rule: Voter of the election district must file candidate challenge (State Form CAN-1) • Exception 1- clerk rejects candidate filings offered after deadline, by email, or by fax (this does not apply to campaign finance or voter registration) • Exception 2- clerk denies certification of petitions candidate for lack of signatures (2% votes cast for SOS)

6. County Election Board Proceedings Candidate Challenges • Party affiliation in a primary (IC 3-8-2-7) • Residence (IC 3-5-2-42.5; IC 3-5-5) • Sore Loser (IC 3-8-1-5.5) • Felony Conviction or Little Hatch Act (IC 3-8-1-5) • Appeal of denial of certification that petitioner did not receive enough signatures (IC 3-8-6-12; IC 3-8-6-14(d))

7. County Election Board Proceedings Candidate Challenges • Specific deadlines for filing and deciding challenges. A late challenge must be rejected. • Applicable rules: • Specific notice to candidate and challenger of date, time and place of hearing • Open Door Law 48-hour notice • Like other meetings, keep minutes with record of “yes” and “no” votes (IC 3-6-5-13) • Technical rules of evidence or procedure do not apply

8. County Election Board Proceedings Candidate Challenges • Other “Suggested” procedures: • Sworn testimony (CEB member administers oath) • In notice to parties request that attorneys file an “appearance” • Place time limits (including on attorneys) • Establish Order of Testimony: Challenger First, Challenged Candidate Second, rebuttals • Consider need for County Attorney • Consider tape recording (for record on appeal)

9. County Election Board Proceedings Candidate Challenges • CEB must deliberate and decide in public (no executive session for deliberations) • Appeal may be taken from a decision of a county election board to the circuit court if filed not later than thirty (30) days after the board makes the decision (IC 3-6-5-34) • Issue on appeal is whether CEB decision is “arbitrary and capricious”

10. County Election Board Proceedings Campaign Finance Enforcement • Most cases involve failure to file or late reports • Other violations include, for example: • Excessive corporate/labor contributions • Expending contributions for primarily personal purposes • Penalty Provisions: CEB can waive or reduce penalty by unanimous vote of entire membership if it finds that statutory penalty is “unjust under the circumstances” (IC 3-9-4-17; IC 3-9-4-19)

11. County Election Board Proceedings Campaign Finance Enforcement • Hearings are subject to the Administrative Orders & Procedures Act (AOPA) (IC 3-9-4-17(j)) • AOPA is specific about: • Notice to Committee: At Least 5 Days Notice (excluding Sat, Sun, and holiday) IC 4-21.5-3-20 • Content of Notice: a) Time, Place, and Nature of Hearing, Failure to Appear Could Result In Default, and Include Contact Information (IC 4-21.5-3-20(c)) • Issue Order: Within 90 days of hearing with findings and provide order to the committee (IC 4-21.5-3-27)

12. County Election Board Proceedings Other Election Law Violations CEB can investigate an election law violation if it finds “substantial reason” to believe a violation has occurred (Disclaimer, for example) (IC 3-6-5-31) • Must provide notice and opportunity to be heard • If, after hearing, CEB finds a violation the CEB may take “appropriate action” including: • Referral to prosecutor if it is an election crime (IC 3-6-5-32; IC 3-14-5-3) • Referral to attorney general for continuing violation requiring an “injunction” (IC 3-6-5-32)

13. County Election Board Proceedings Title III HAVA Title III HAVA Violations (provisional ballots, accessibility problem, for example) may result in a HAVA Complaint (Grievance) • Process beings on filing of a Grievance From (sworn) filed with clerk or election division, or both (IC 3-6-5.1) • CEB to dismiss local complaint if same complaint filed IED (IC 3-6-5.1-10) • If clerk determines no claim has been stated then clerk dismisses case and sends dismissal certified mail to interested parties and publishes dismissal in newspaper (IC 3-6-5.1-13 & 14)

14. County Election Board Proceedings Title III HAVA • If clerk finds a claim is stated then clerk shall investigate and report to CEB (IC 3-6-5.1-15, 16 & 17) • Report sent certified mail to interested parties • Complainant or CEB member may request hearing not later than noon 7 days after report mailed (IC 3-6-5.1-18) • After hearing, CEB may affirm or amend report, dismiss case, refer to clerk for further investigation, or refer to IED (IC 3-6-5.1-19, 20, and 21) • Notice of CEB action is sent certified mail to interested parties (dismissal must also be published) (IC 3-6-5.1-21; IC 3-6-5.1-22)

15. County Election Board Proceedings Provisional Ballots • After precinct results returned, County Election Board canvasses vote and determines vote total except for provisional ballots (IC 3-12-4-9) • This is a CEB meeting subject to the Open Door Law (IC 3-12-4-6) • Provisional ballots must be counted by noon 10 days after the election (IC 3-11.7-5-1) • This is a CEB meeting subject to the Open Door Law

16. County Election Board Proceedings Provisional Ballots • Determination of whether provisional ballot is valid may be based upon documentary evidence submitted with ballot or on file with CEB or VR office • CEB must contact a full-service VR agency (for example, BMV) if provisional voter indicated on PRE-4 they registered at a VR agency when registration was open • Full-service agency is required to respond by noon Friday after election (IC 3-11.7-5-2((b))

17. County Election Board Proceedings Provisional Ballots Procedures Easy Cases: • If voter claims registered at full-service agency (but did not have a valid receipt), and agency did not respond to CEB or responds that is has not record of registration, provisional ballot is rejected (IC 3-11.7-5-3) • Photo ID requirement must meet (or exception satisfied) by noon 10 days after election or ballot is rejected (IC 3-11.7-5-2.5) • “Proof of residency” requirement not met by 6:00 p.m. election day then provisional ballot is rejected

18. County Election Board Procedures Provisional Ballots • Hard Cases: • Provisional ballot documentation not properly completed • Residency challenge • CEB Determination: CEB shall make findings to support decision whether to count or not count ballot and enter on the provisional ballot envelope (IC 3-11.7-5-3)

19. County Election Board Proceedings Election Certifications to IED • For municipal elections CEB files a Post Election Report (CEB-9) by noon 14 days after the election including precinct-by-precinct results • Election Reports may be filed on state forms or electronically via the SVRS except for precinct-by-precinct results (canvass sheets) • County Election Board may amend certification of election results up to noon 17 days after the election (IC 3-12-5-14)

20. County Election Board Proceedings Certificates and Commissions • County Election Board issues “Certificates of Election” upon request to municipal candidates beginning noon the 17th day after election (State forms CEB-27:mayor, CEB:28-city common council, etc.) • Candidates must take an oath before taking office which is on the back of a certificate of election • City and Town judges receive a commission issued by the governor which is coordinated by the election division

21. County Election Board Proceedings Election Recounts and Contests • What’s the difference? • A local “recount” is started by filing a lawsuit incourt -ballots be recounted by a court-appointed commission, not the county election board (IC 3-12-6) • A local “contest” petition is filed in court and either • Questions the eligibility of candidate OR • Claims it is impossible to determine who won the election and requests a special election (IC 3-12-8) • Both a recount and contest may be filed for the same office at the same time

22. County Election Board Proceedings Recount and Contests • State level recounts & contests • Fed, statewide and state leg. recounts or contests are filed with, and conducted by, a 3-person State Recount Commission • CEB has no direct role in local or state recounts or contests but may be asked to cooperate with impoundment order and provide other information and assistance

23. County Election Board Proceedings Recount and Contests • Recount and contest filing deadline for candidates is noon 14 days following the election. • In a general election, if the candidate does not file by the noon 14-day deadline, the county chair (or state chairman for federal or statewide offices) may file a recount or contest petition by noon 17 days following the election (IC 3-12-6-2) • A local recount petition filed in the county is treated as “miscellaneous filing” and a recount bond is required

24. County Election Board Proceedings Basic Points to Remember Give the best notice you can to interested persons and the general public. Set the rules BEFORE the hearing starts: “Well, when we play Monopoly, we put Community Chest money on “No Parking.” Get it written down (or recorded). Even if you don’t think it will happen, plan as if the Election Board will have to go to court to defend its actions before a judge. Good meeting minutes, tape recordings, or even court reporters in unusual situation are worth the trouble.