Horseman v. Keller, 49S00-0501-CV-17.

Docket NºNo. 49S00-0501-CV-17.
Citation841 N.E.2d 164
Case DateJanuary 31, 2006
CourtSupreme Court of Indiana

William R. Groth, Geoffrey S. Lohman, Fillenwarth Dennerline Groth and Towe, Indianapolis, for Appellant.

David W. Brooks, Brooks, Koch & Sorg, Marion O. Redstone, Indianapolis, for Appellee.

RUCKER, Justice.

Case Summary

The trial court affirmed a decision of the court-appointed Recount Commission that concluded J. Scott Keller was the winner of the 2003 election for the Marion County City-County Council District 16 seat. In so doing the trial court also declared unconstitutional an absentee voting statute. We previously announced (on February 11, 2005) that we agreed with the trial court's conclusion concerning the ultimate outcome of the election. However, we disagree with its decision concerning the constitutionality of the statute and now write to explain our reasoning.

Facts and Procedural History

Marion County employed new voting machines during the November 2003 general elections. These machines provided voters with paper ballots that included a line for write-in candidates.

The November 4, 2003 Marion County municipal elections included a contest for the office of City-County Councilor of the Indianapolis City-County Council District 16. On the ballot were Karen C. Horseman ("Horseman"), Democrat, J. Scott Keller ("Keller"), Republican, and one other candidate.

Horseman and Keller garnered most of the votes. The initial results showed Keller with 1,407 votes and Horseman with 1,404 votes. Horseman filed a Verified Petition for Recount on November 10. Ind.Code § 3-12-6-1. On December 17 the court-appointed Recount Commission ("Commission") determined that Keller received 1,408 votes and Horseman 1,403 votes. The three-member Commission reached its conclusion after inspecting each individual ballot and voting on whether certain contested ballots could be counted. Horseman appealed the Commission's determination to the Marion Superior Court. Ind.Code § 3-12-6-22.5. Three voters from District 16 marked a section of the ballot indicating that they wished to cast straight Democratic Party tickets. However, these voters also used the available write-in line to vote for individuals other than Horseman for the District 16 Council seat. One voter wrote in Ricky Hence, the Democratic candidate for District 1, one wrote in Patrice Abduallah, the Democratic candidate for District 15, and one wrote in Katherine Caldwell Kennedy, the Democratic candidate for District 25. The Commission did not include these ballots as votes for Horseman.

Two absentee ballots containing votes for Horseman were received but not counted. The Commission determined that these ballots were correctly rejected pursuant to Indiana Code section 3-12-1-13 because they did not bear the initials of two members of the Marion County Election Board and/or its official seal. The absence of initials or seals on these two ballots was apparently due to human error.

Concluding that the Commission's decision concerning the three disputed ballots was based on questions of fact which were not reviewable, the trial court addressed only the issue of the validity of the two absentee ballots. It determined that the statute disallowing these two ballots violated Article 1, Section 23 of the Indiana Constitution and that the votes must therefore be credited to Horseman. Thus, the court concluded that Keller won the election by three votes as opposed to five.

Both parties filed motions to correct error, which the trial court denied. On March 15, 2004, Horseman appealed to the Indiana Court of Appeals. It was not until late December 2004 that the parties finished submitting filings to that court. On January 14, 2005, the Court of Appeals realized that this case involved a trial court declaring a statute unconstitutional. Because this Court has mandatory and exclusive jurisdiction over such cases, see Ind. Appellate Rule 4(A)(1)(b), we received this matter on January 18, 2005. Because substantial time had elapsed before this Court received the case and because it involved a matter which could significantly impede local governance absent resolution, this Court promptly reviewed the arguments and issued an order on February 11, 2005, affirming the outcome of the election in Keller's favor. We declared that the Court would issue in due course a more extensive opinion reflecting the Court's reasoning. In re Horseman and Keller, Case No. 49S00-0501-CV-17 at 2 (Ind. Feb.11, 2005) (unpublished order). We now undertake to do so.


At issue in this appeal are five contested ballots.1 To determine the fates of these ballots, we are asked to examine two questions: first, whether Indiana law recognizes write-in votes cast for individuals who are not registered write-in candidates as votes for the nominated same-party candidate in an electoral race where the voters otherwise selected the straight ticket ballot option, and second, whether Indiana Code section 3-12-1-13 is unconstitutional.

The Write-In Votes

The Commission's decision to exclude the three contested straight ticket ballots from Horseman's tally is not an appealable determination. Indiana Code section 3-12-6-22.5 limits an appeal of the Commission's findings to "questions of law arising out of the recount" and "procedural defects by the recount commission that affected the outcome of the recount." The trial court declined to address the merits of Horseman's arguments about these three ballots because it determined that the exclusion was a determination of an issue of fact. Namely, the trial court determined that the issue at bar was the "intent" of the voters under Indiana Code section 3-12-1-1. It correctly noted that intent is a question of fact under Indiana case law. See, e.g., Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997) (trial court's finding of discriminatory intent was a finding of fact); Gibson County Farm Bureau Coop. Ass'n, Inc. v. Greer, 643 N.E.2d 313, 320 (Ind.1994) (whether parties intended a writing to create a security interest was a question of fact); Deming Hotel Co. v. Sisson, 216 Ind. 587, 24 N.E.2d 912, 915 (1940) ("question of fraudulent intent is a question of fact").

Horseman contends that the Commission's decision is appealable. She argues that the Commission's conclusion involved a determination of the application of Indiana Code section 3-12-1-7.5(a). Specifically, she asserts that the statutory meaning of the term "candidate" is at issue. And the law is clear that "[t]he interpretation of a statute ... is not a question of fact, but one of law reserved for the courts." Joseph v. Lake Ridge Sch. Corp., 580 N.E.2d 316, 319 (Ind.Ct.App.1991) (emphasis added). See also Bettenbrock v. Miller, 185 Ind. 600, 112 N.E. 771, 774 (1916) ("The courts are charged finally with the responsibility of construing doubtful statutes...."); Figg v. Bryan Rental Inc., 646 N.E.2d 69, 72 (Ind.Ct.App.1995) ("The interpretation of a statute is a question of law...."). Indeed, if the statutory definition of "candidate" were at issue, it would be the clear province of the courts to evaluate it on appeal. Ind.Code § 3-12-6-22.5.

The three contested ballots contain straight Democratic Party votes but also attempt to vote for Democratic candidates from different Council district races. The Horseman-Keller race was for District 16, but the three contested ballots contain write-in votes for Democratic candidates from Districts 1, 15, and 25. Horseman, who was the District 16 Democratic Party candidate, argues that the write-in votes, but not the ballots, should be ignored because they are not for "candidates" for the District 16 race and thus cannot, under Indiana Code section 3-12-1-7.5(a), take votes that would have been hers if the voters had left their write-in lines blank. Alternatively, Horseman claims these three ballots should be counted in her favor because the voters manifested the intent to cast Democratic ballots.2

Horseman rests her first argument upon the language of Indiana Code section 3-12-1-7.5(a), which reads:

Sec. 7.5. If a voter votes a straight party ticket for at least one (1) office for which only one (1) person may be elected and writes in the name of a candidate, the straight party ticket vote shall be counted for all offices except the offices for which a write-in vote was cast. The write-in vote shall be counted if the voter's intent can be determined.

She asks us to construe the statutory meaning of "candidate" to exclude from its scope those individuals written in on the three contested ballots. Because, Horseman argues, no alternative "candidates" were written in on the ballots, Indiana Code section 3-12-1-7.5(a) does not remove votes from her tally.

However, we need not interpret 3-12-1-7.5(a) because the Indiana legislature has provided us the guidance of another statutory provision that renders an analysis of "candidate" immaterial here. Provisions of the Indiana Code do not stand alone; the statutes complement each other and must be applied harmoniously. Freeman v. State, 658 N.E.2d 68, 70 (Ind.1995) ("[W]here two statutes address the same subject, they are in pari materia, and we strive to harmonize them where possible."); Matter of Lemond, 274 Ind. 505, 413 N.E.2d 228, 246 (1980). Indiana Code section 3-12-1-1 reads:

Sec. 1. Subject to sections 5, 6, 8, 9, 9.5, and 13 of this chapter, the primary factor to be considered in determining a voter's choice on a ballot is the intent of the voter. If the voter's intent can be determined on the ballot or on part of the ballot, the vote shall be counted for the affected candidate or candidates or on the public question. However, if it is impossible to determine a voter's choice of candidates on a part of a ballot or vote on a public question, then the voter's vote concerning those...

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