2016 Indiana Election Administrator’s

Conference

WHO POLICES WHAT?

The role of circuit court clerks and county election boards with

respect to candidate filing and other issues

Candidate FilingWhat’s the “Put up or shut up”

rule? General Rule: Clerk may not reject

candidate filings. In general, a timely candidate challenge must be filed before a county election board may consider whether a candidate filing is valid. except….

Candidate Filings and Challenges

Clerk as Candidate Police There are specific state laws that require

the clerk to refuse a candidate filing

These specific laws do not require “background checks” or research beyond what is being offered to be filed

Candidate Filing

Clerk as Candidate Police The clerk may not accept a declaration or

petition, including supporting documents, by email or fax (IC 3-5-4-1)

Option1: Hand-delivery to clerk by candidate or someone else

Option 2: U.S. Mail or bonded courier (USPS, for example)

Candidate FilingClerk as Candidate Police

A clerk may not accept a candidate filing offered after the applicable deadline (IC 3-5-4-1.9)

Know your candidate deadlines- Primary, Libertarian Party, ballot vacancy, independent/minor party, school board, small town candidates

Know what date and time it is There is no “postmark” rule for mailed

candidate declarations

Candidate FilingSome Candidate Filing Deadlines

Noon Jan. 26 in county voter registration office- presidential petitions (IC 3-8-3-4)

Noon Feb. 2 in county voter registration office- U.S. Senate and Governor petitions (IC 3-8-2-10)

Noon Feb. 5 for primary declarations (IC 3-8-2-4)

Noon June 30 for independent/minor party petitions to be filed for certification (IC 3-8-6-10)

Noon July 5 for most write-in candidates and ballot vacancy candidates due to no candidate in the primary to be certified (IC 3-13-1-15)

Other candidates: Libertarian Party, school board petition and write-in, small town convention, other ballot vacancies

Candidate FilingClerk as Candidate Police

The clerk may not accept a declaration or petition for local office without the CAN-12 as follows:

With candidate’s primary declaration (CAN-2), write-in general election (CAN-3), write-in school board (CAN-26), small town convention (CAN-16), school board petition (CAN-34), or a petition of nomination as an independent/minor party (CAN-19)

With the certification to fill a ballot vacancy- either CAN-29 for early ballot vacancy or CAN-35 for late ballot vacancy

With Libertarian Party Certification (CAN-22) for convention nominee (IC 3-8-9-5)

Candidate FilingClerk as Candidate Police

The clerk may not accept a candidate declaration or form tendered on a form not currently approved for use by the Indiana Election Division (IC 3-5-4-8(c))

The “2016 Election Conference Forms List” is on your disk. Print it out and keep a copy of handy

This forms list will give current form numbers and revision dates in the upper left hand corner and will indicate if a form has been “grandfathered”

Candidate FilingClerk as Candidate Police

The clerk may not accept a declaration or certified petition required to be filed with the State (IC 3-5-4-1.2)

Federal offices, statewide offices, state legislative offices and judges file with the Secretary of State or the Election Division. If petitions are required for these offices, they are filed with the county voter registration office for certification of signatures

County voter registration office still certifies voter registration signatures on petitions from these candidates

Candidate FilingClerk as Candidate Police

Ballot Vacancies: The clerk may not receive a Certificate of Candidate Selection (CAN-29) to fill a ballot vacancy if the related Call of Caucus or Meeting (CAN-30) or Declaration of Candidacy to fill Ballot Vacancy (CAN-31) was not filed at all, or not timely filed, with the clerk (IC 3-13-1-21)

Minor party/independent: Candidate must file both the CAN-19 and CAN-20 to be placed on the ballot (IC 3-8-6-12.5)

Candidate FilingClerk as Candidate Police

A circuit court clerk must determine whether minor party/independent petition candidate or if a school petition candidate obtained required number of certified signatures and do one of the following

Clerk must certify the petition has a sufficient number of valid certified signatures (Form 1)

Deny the certification of the petition if the petition does not have a sufficient number of valid certified signatures and immediately notify the candidate by certified mail. (Forms 1 and 2; IC 3-8-6-10; IC 3-8-6-12(d); IC 3-8-2.5-5; IC 3-8-2.5-6)

Candidate FilingClerk is NOT Candidate Police

On many issues the clerk is not the candidate police so a challenge must be filed: Party affiliation in a primary (IC 3-8-2-7) Residency of candidate (IC 3-5-2-42.5; IC

3-5-5) Requirement that candidate was a

registered voter of the election district (IC 3-8-1-1)

Felony Conviction (IC 3-8-1-5) Sore Loser (IC 3-8-1-5.5) Appeal of denial of certification that

petitioner did not receive enough signatures (IC 3-8-6-12; IC 3-8-6-14(d))

Candidate ChallengesLocal Office and Party Offices

Challenge must be filed by a registered voter of the election district that a candidate seeks to represent

OR A county chairman of a major political party

of a county in which any part of the election district is located (IC 3-8-1-2(c))

Candidate Challenges Specific deadlines for filing and deciding

challenges. The clerk may not accept a challenge (CAN-1) offered after deadline.

Deadline to challenge candidates running in a primary is noon February 12 and timely challenges must be decided by noon Feb. 25

Deadline to challenge candidates filling a ballot vacancy, Libertarian Party candidates, minor party/ independent petition candidate and write-in candidates is Aug. 26 and must be decided by noon Sept. 9

Other deadlines for school board candidates and small town convention candidates

Candidate Challenges

County Election Board as Judge

Candidate Challenges General procedural requirements apply to

County Election Board challenge hearings: Provide required Open Door Law 48-hour

notice (Form 3) Provide specific notice to candidate and

challenger of date, time and place of hearing (Form 4)

Like other meetings, keep minutes with record of “yes” and “no” votes (IC 3-6-5-13)

Candidate Challenges

Other General Rules: Challenger has the “Burden of Proof”

with respect to the challenge) Technical rules of evidence or procedure

do not apply but may be utilized with respect to unreliable or repetitive evidence

Candidate Challenges Other “suggested” procedures:

Sworn testimony (Form 5; CEB member authorized to administer oath per IC 3-6-5-26)

Is a proxy required? (Form 6; IC 3-6-5-4.5) Establish Order of Testimony: Challenger

First, Challenged Candidate Second, rebuttals

Place time limits on presentation Consider need for County Attorney Consider tape recording (for record on

appeal)

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”

Other County Election Board Hearings

Other County Election Boards hearings where board assumes a judicial role: Campaign Finance Enforcement

(breakout session) Alleged Election Law Violations

(Disclaimer violations, for example) Title 3 HAVA Complaints Provisional ballot determinations Absentee ballot applications

challenges

Other County Election Board Hearings

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) Election Law Violations (IC 3-6-5-31 & 32) HAVA Complaints (IC 3-6-5.1)

Other County Election Board Hearings

General Rules for CEB in Judicial Role Other Powers that may aid the Board:

CEB may subpoena persons and/or papers and ask sheriff to serve subpoena (Form 7; IC 3-6-5-26 & 27)

√ Subpoenas require payment of witness and mileage fees and may be enforced through court action (IC 3-6-5-30; IC 33-19-1-6; IC 3-6-5-28)

Other County Election Board Hearings

Other Election Law ViolationsCEB 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)

Other County Election Board Hearings

Title III HAVATitle 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)

Other County Election Board Hearings

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)