State ex rel. Bodine v. Elkhart County Election Bd.

• Decision Date: 09 August 1984
• Docket Number: No. 3-184A7,3-184A7
• Citation: 466 N.E.2d 773
• Parties: STATE ex rel., Richard Clay BODINE, et al., Plaintiffs-Appellants, v. ELKHART COUNTY ELECTION BOARD et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 773

466 N.E.2d 773

STATE ex rel., Richard Clay BODINE, et al., Plaintiffs-Appellants, v. ELKHART COUNTY ELECTION BOARD et al., Defendants-Appellees.

No. 3-184A7.

Court of Appeals of Indiana Third District.

Aug. 9, 1984.

David T. Stutsman, Stutsman & Stevens, Elkhart, for plaintiffs-appellants.

John D. Ulmer, R. Gordon Lord, Yoder, Ainlay, Ulmer & Buckingham, Goshen, Charles C. Wicks, Elkhart, Daniel A. Manion, Doran, Manion, Boynton, Kamm & Esmont, South Bend, for defendants-appellees.

HOFFMAN, Judge.

On November 29, 1982, appellants filed an action for mandamus in the Elkhart Superior Court, challenging the certification of certain vote totals tallied during the November 2, 1982 general election. The trial court found the suit to be untimely filed, and granted defendants' motion for summary judgment. This appeal follows.

The sole issue on appeal is whether the trial court erred in dismissing this cause as untimely filed.

Actions in mandamus to correct the certification of votes in any given election are governed by IND.CODE Sec. 3-1-26-7. This statute provides as follows:

"Error in certification of vote; action to correct

"Sec. 7. Any error in the certification of the vote for any candidate at any general, special or city election discovered within ten (10) days after such certification shall be corrected by the clerk of the circuit court or the secretary of state, as the case may be, making such erroneous certification. Should the clerk of the circuit court or the secretary of state fail or refuse to correct such error, the duty to make the correction may be enforced by an action in mandamus brought by any duly qualified voter within five (5) days after the expiration of the ten (10) day period allowed for making such corrections. Such action shall be brought in the circuit or superior court of the county where the officer or board making the certification is domiciled.

"No certificate of election shall be issued until the ten (10) day period for the discovery and correction of errors has expired."

Under the Indiana Election Code, votes are first tallied by precinct officials and delivered to the county board of canvassers. See, IND.CODE Secs. 3-1-25-2, 3-1-25-6, 3-1-25-7, and 3-1-25-8. In order to certify the vote:

"[s]uch county board of canvassers, when organized, shall carefully compare and examine the papers entrusted to it, and aggregate and tabulate from them the vote of the county, township, or the vote of the city, as the case may be, a statement of which shall be drawn up by the clerk, which shall contain the names of the persons voted for, the office, the number of votes given in each precinct ward or township in a county election, and in each ward and precinct in a city election to each person; the number of votes given to each in the county or city and also the aggregate number of votes given, which statement shall be signed by each member of such board, and canvass sheets, together with such certificates and tally papers, shall be delivered to the clerk, and by him filed in his office; and the same shall be preserved by him open to inspection of any legal voter.

"Within ten (10) days following such certification by the county board of canvassers, the clerk of the circuit court shall furnish to the county chairman of each political party a copy of the statement of the county board of canvassers containing the votes cast for every candidate in each precinct, ward or township."

IND.CODE Sec. 3-1-25-11.

See also, IND.CODE Sec. 3-1-25-12.

After the vote is certified, the clerk of the circuit court or the secretary of state is given ten days to make corrections as provided by IND.CODE Sec. 3-1-26-7. Corrections, if any, may be made upon the motion of any duly qualified voter or upon the clerk's or secretary of state's own motion. After this ten-day period has lapsed, voters shall have five days in which to bring an action in mandamus to correct any errors which remain outstanding. Under no circumstances are voters permitted to sue for mandamus after fifteen days from the date on which the vote was certified.

Appellants' action in mandamus was filed 27 days after the vote was certified. They now contend that IND.CODE Sec. 3-1-26-1 extends the time in which to certify the vote by ten days, permitting actions in mandamus to be filed within 25 days of an election.

This interpretation of IND.CODE Sec. 3-1-26-1 misconstrues the plain language employed by the Indiana Legislature. This statute provides in relevant part that:

"Where any person is elected to an office by the voters of a county not to be commissioned by the governor, the clerk of the circuit court shall, after ten (10) days from the time the votes cast at any election have been counted and tabulated, make out and deliver, on demand, to such person, a certificate of his election; and where any officer is to be commissioned by the governor, the clerk of the circuit court shall make out a statement under his hand and the seal of the circuit court specifying the number of votes given to each person for each office, and who has been declared elected, and shall transmit the same, by mail, to the secretary of state, within the time aforesaid."

Appellants have confused the provisions of this statute governing certificates of election with election code provisions regarding certification of the vote. The vote is certified by the board of canvassers and entered by the clerk of the circuit court. This act begins the ten-day period for discovery and correction of errors referred to at IND.CODE Sec. 3-1-26-7. After ten days have passed, the clerk or the secretary of state ¹ may issue a...