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County Election Board Hearings

County Election Board Hearings

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County Election Board Hearings

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  1. County Election Board Hearings Matthew Kochevar, Co-General Counsel Election Administrator’s Conference | November 30, 2017

  2. County Election Board Roles • Two major roles of every county election board • General administration of voting : • Ballot preparation • Testing voting systems • Conduct elections • Certify results • Judicial-type related to elections: • Candidate challenges • Campaign finance enforcement • Title III HAVA complaints • Investigate state election law (Title 3) violations • Refer to county prosecuting attorney or attorney general

  3. Relevant Statutes • Open Door Law • Indiana Code 5-14-1.5 • Publication of Notice • Indiana Code 5-3-1-2; 5-3-1-4 • Election Record Retention • Indiana Code 3-10-1-31.1 & 3-7-27-6(b) • Administrative Orders and Procedures Act (AOPA) • Indiana Code 4-21.5

  4. Open Door Law • Meetings of public agencies where official action is taken must be open to the public • Applies when a majority of the body is gathered • Exception: executive session is not open to the public, but must be publicly noticed • Official action includes: • Receiving information; • Deliberating or debating a subject; and • Making a decision by voting • There are exceptions to what is considered a meeting: • Social or chance gatherings of body not intended to evade the law • Attending trainings and other “good government” meetings IC 3-14-1.5-3 | IC 3-14-1.5-3.1(c)

  5. MeetingNotice • Public notice must be given forty-eight (48) hours before meeting • This does not include weekends or legal holidays • Notice must include the date, time, and place of the meeting • Notice must be posted in the principal office of the governing body • If there is no principal office then post notice at the building where the meeting will occur • Send notice to news media by mail, email, or fax • News media must file annual request for notice by Dec. 31 of previous year IC 5-14-1.5-5

  6. Notice Exceptions • Recessed meetings: • Only when the time and place was announced and included in the minutes of the previous meeting • Valuable for CEBs on Election Day • An emergency to deal with disruption of government activity • 48-hour notice is not required • Notice must be placed at principal office • News media that ask for notice must be notified of emergency meeting IC 5-14-1.5-5

  7. Regular Meetings • Governing body can schedule regular meetings • Ex: Monthly meeting every second Tuesday • Notice only needs to be given once a year announcing when regular meeting will take place throughout the year • Additional notice required when: • An emergency meeting is called • Date, time, or place of a regular meeting is changed

  8. Agendas • Not required by law • If used agenda must be posted at the entrance of the meeting location before the meeting begins • If agenda includes matter to be voted on then matter cannot be adopted by agenda item number. • Ex: Don’t say, “Mr. Chairman, I move that the county election board adopt Item #7 on the agenda.” • Say: “Mr. Chairman, I move that the county election board adopt CEB Resolution 2017-8.” IC 5-14-1.5-4

  9. Minutes • CEBs are required to have minutes for each meeting • Meeting minutes may never be destroyed! • Not having minutes carries considerable risk of legal action • A summary (memoranda) of meeting must be available within a reasonable time after meeting concludes which must include: • Date, time, and place of meeting • Members present or absent • The general substance of all matters discussed and decided at meeting • Record of all votes • Includes roll call vote of members, if taken • No voting by secret ballot IC 5-14-1.5-4

  10. Notice Publication Law • The public is required to receive notice of certain election activities: • When an election is to be held • This does NOT include party caucuses to fill ballot or elected office vacancies • Public test of certain voting systems • Place of polling location • Generally notice is to be published in at least (2) newspapers published within the county • Exception: if a county only has one (1) newspaper then notice only needs to be placed in that publication • NOTE: It is NOT necessary for notice of regularly-scheduled CEB meetings to be published in the newspaper • Post notice on county government website, if possible IC 5-3-1-2 | IC 5-3-1-4 | IC 3-10-2-2 | IC 3-11-8-3.2 | IC 3-11-13-22(c) | IC 3-11-14.5-2

  11. Administrative Orders and Procedures Act • Additional rules required to be used at administrative hearings • CEB required to follow these rules during campaign finance enforcement hearings • Act designed to ensure due process to subject of potential fines • Requires parties involved in the hearings to: • Receive notice; and • An opportunity to be heard at the meeting IC 3-9-4-17 | IC 4-21.5

  12. County Election Board – General Powers • Powers that may aid the Board: • CEB members can appoint proxies • Use for when CEB member cannot attend meeting • Proxies must be appointed through written notice by the absent member • Any member of CEB may administer oath • CEB may subpoena persons and/or papers and ask sheriff to serve subpoena • CEB must pay witness and mileage fees for subpoenas and may only enforce subpoena through court action IC 3-6-5-4.5 | IC 3-6-5-26 | IC 3-6-5-27 | IC 3-6-5-28 | IC 3-6-5-30 | IC 33-37-10-3

  13. Acting Judicially • At times CEB will have to act in a judicial capacity • CEB judicial roles related to elections: • Candidate Challenges • Absentee • Alleged Election Law Violations • Title 3 HAVA Complaints • Provisional ballot determinations • Campaign Finance

  14. Acting Judicially • When CEB is acting judicially remember: • Open Door Law notice requirement • General constitutional right to notice and an opportunity to be heard in certain hearings • Depending upon issue involved, other specific statutes may also apply: • Campaign Finance • Candidate Challenges • Election Law Violations IC 3-6-5-31 | IC 3-6-5-32 | IC 3-8-1-2 | IC 3-9-4 | IC 4-21.5

  15. Candidate Challenges • Hearing to determine candidate eligibility to be placed on ballot • Generally burden is on a voter of the election district to file candidate challenge (CAN-1) • Major party county chair in election district can also file challenge • Candidates filing by petition may file a CAN-1 to dispute the county’s decision to reject a signature of a registered voter on the certified petition • Candidate challenge made by filing CAN-1 with proper election administrator IC 3-8-1-2

  16. Candidate Challenge Reasons • Reasons candidate can be challenged on: • Party affiliation in a primary • Sore Loser • Felony Conviction or Little Hatch Act • Appeal of denial of certification that petitioner did not receive enough signatures • Residency of Candidate • Voter registration requirement for candidate • Challenger has “burden of proof” to show candidate is not eligible IC 3-5-2-42.5 | IC 3-5-5 | IC 3-8-1-1 | IC 3-8-1-5 | IC 3-8-1-5.5 | IC 3-8-2-7 | 3-8-6-12 | IC 3-8-6-14(d)

  17. Candidate Challenges Deadlines • Deadlines for filing CAN-1 challenge: • Noon, 2/16 against Primary candidates • Noon, 8/24 against Libertarian/minor party/independent candidates or candidates filing ballot vacancies • Noon, 8/10 against write-in candidates • Noon, 8/31 against school board candidates • Deadlines for CEB to decide challenges: • Noon, 3/1 for CEB decision on 2/16 challenges • Noon, 9/7 for CEB decision on 8/24 challenges • Noon, 8/17 for CEB decision on 8/10 challenges • Noon, 9/13 for CEB decision on 8/31 challenges IC 3-8-2-14 | IC 3-8-2.5-7 | IC 3-8-6-14 | IC 3-10-2-15(h)

  18. Candidate Challenge Preparation • When preparing for candidate challenge hearing remember: • Provide specific notice to candidate and challenger of date, time and place and an opportunity to be heard • Post Open Door Law 48-hour notice • Keep minutes with record of “yes” and “no” votes IC 3-6-5-13 | IC 3-8-1-2

  19. Suggested Procedures: Challenge Hearing • Sworn testimony by placing witnesses under oath • In notice to parties request attorneys file an “appearance” • Place time limits on each side (including on attorneys) • Establish Order of Testimony • CEB need for county attorney or security at meeting • Consider tape recording or other method to create record for appeal • Do not need to follow rules used in trial court IC 3-6-5-26

  20. Challenge Hearing – After Testimony • CEB must deliberate and decide in public • Cannot go into executive session • Appeal may be taken from a decision by CEB to a county court within thirty (30) days after decision is made • Issue on appeal is whether CEB decision is “arbitrary and capricious” IC 3-6-5-34

  21. State Election Law Violations • CEB can investigate state election law violations if it finds: • “There is substantial reason to believe an election law violation has occurred” • Example: Disclaimer violation • CEB must provide notice and opportunity to be heard to party alleged to have or will about to violate state election law • If in judgment of CEB a person has engaged, or is about to engage, in a violation of election law then CEB may take appropriate action including: • Referral to prosecutor if it is an election crime • Referral to attorney general if involve continuing violation requiring an injunction IC 3-6-5-31 | IC 3-6-5-32 | IC 3-14-5-3

  22. HAVA Title III Violations • HAVA Title III Violations may result in a HAVA Complaint: • Example: provisional ballots, accessibility problem • Process begins when sworn statement filed with election division, county election board, or both • CEB to dismiss local complaint if same complaint filed IED • If clerk determines no violation has been stated then clerk dismisses case and sends dismissal certified mail to interested parties and publishes dismissal in newspaper • If clerk finds a claim is stated then clerk shall investigate and report to CEB IC 3-6-5.1-6 | IC 3-6-5.1-10 | IC 3-6-5.1-13 | IC 3-6-5.1-14 | IC 3-6-5.1-15 | IC 3-6-5.1-16 | IC 3-6-5.1-17

  23. HAVA Title III Hearing • If Clerk prepares report then it must be sent certified mail to interested parties • Complainant or CEB member may request hearing not later than noon, seven (7) days after report mailed • After hearing CEB may • affirm or amend report; • dismiss case; • refer to clerk for further investigation; or • refer to IED • If CEB dismisses case then dismissal must be published in newspaper and sent certified mail • Notice of action (other than dismissal) taken by CEB must be provided by certified mail but does not have to be published IC 3-6-5.1-16 | IC 3-6-5.1-18 | IC 3-6-5.1-19 | IC 36-5.1-20 | IC 3-6-5.1-21 | IC 3-6-5.1-22

  24. Canvassing Meeting • After precinct results returned CEB canvasses vote and determines vote total • This initial vote total does not include provisional ballots • Canvass must occur in public to comply with Open Door Law • If there is ever a dispute among the CEB about how a precinct returns should be counted then the dispute should be refer to a county judge by providing the judge: • A written brief describing the dispute; and • All papers regarding the dispute IC 3-12-4-6 | IC 3-12-4-9 | IC 3-12-4-16