Vanderburgh County Election Board says merger referendum cannot be derailed

Leaders of Citizens Opposed to Reorganization in Evansville said after losing a preliminary round before the election board last week that they may go to court to stop the vote on Evansville-Vanderburgh County government merger. CORE's leaders, who are weighing the use of their limited resources and the probability of success, have made no decision.

Doug Briody, the election board's attorney since 2005, said the decisive factor in a court battle would be the support found elsewhere in law for principles of the voter petition process that CORE challenges.

"There is long-standing Indiana case law, at least 60 years' worth, that says anything that a person intends as his or her signature counts as signing a document, whether it is typewritten, pre-printed on a form, handprinted, initialed," Briody said.

The election board attorney added that even a simple mark can be legally accepted as a person's signature.

Relying on a statute passed in 1988 and last amended in 1997, the anti-consolidation group argues that potentially hundreds of petition signatures are invalid for a variety of reasons, bringing the number below the required 5 percent of voters who cast ballots in the 2006 secretary of state's race. They cite Indiana Code 3-10-9-6, which requires each of three things — a signature, a printed name and a valid address — from each individual who signs public question petitions.

But consolidation advocates argue that 3-10-9-6, a general election statute, is superseded by Indiana Code 36-1.5, which was passed in March 2006 to give local government units a framework to merge.

The 2006 law contains a "conflict provision" which consolidation advocates say boils down to one thing: Game over.

"Except as otherwise specifically provided by law, to the extent the provisions of this article are inconsistent with the provisions of any other general, special, or local law, the provisions of this article are controlling, and compliance with this article shall be treated as compliance with the conflicting law," it states.

The conflict provision is important, consolidation advocates say, given that the 2006 consolidation statute does not require that a signature, printed name and address appear on each line of a consolidation petition.

Election board members David Shaw and Tom Massey, who are attorneys, and County Clerk Susan Kirk agreed last week that the 2006 statute trumps the older law upon which anti-consolidation activists rely.

But CORE co-chairman Bruce Ungethiem said the election board was not going to admit in a public meeting that consolidation petition signatures were invalid. The signatures were certified by Kirk and Voter Registration Office employees.

"A judge might be more impartial," Ungethiem said.

Briody says an Indiana Supreme Court case decided in March would settle the issue decisively — against CORE.

Briody points to Michael R. Kole, Joseph L. Weingarten, and Glenn J. Brown, et al. v. Scott Faultless, Daniel Henke, Eileen Pritchard, Stuart Easley, et al., in which the court cited the Legislature's intent that it "liberally construe the (2006 reorganization law) to effect its purposes." The case is the only relevant case law he has seen, Briody said.

While holding that the Town of Fishers could move forward with plans to reorganize from a town to a city with a council choosing a mayor, the court stated the 2006 consolidation statute "controls over any inconsistent law unless specifically provided otherwise."

Briody said a court also would rely on guiding principles of judicial interpretation that would mitigate decisively in favor of the 2006 consolidation statute as the final word in conflict with any other statute.

The guiding principles are not formally committed to code, Briody said, but are found instead in scores of reported decisions in Indiana courts and "probably every court in every state in the country."

"The first rule is, legislatures make the law. The courts interpret them. The statute does one thing. We (courts) have to go with what the plain meaning of the statute says and interpret it according to what the legislative intent was," Briody said.

"If there are questions about the legislative intent, that it could be interpreted in different directions, then we (courts) have rules that guide us in giving that interpretation."

A statute specifically tailored to a given situation will trump a more general one, Briody said, just as a later statute will carry the day in conflict with an earlier statute. The 2006 law, passed to give local governments a framework to merge, would be interpreted as more specific than the 1988 elections statute.

And it obviously was passed later.

"The Legislature knew what the law said before, now they've said something else, so they're dealing with it now. They knew what it said previously, so they're making the change," Briody said in characterizing the likely reasoning of a court.

In addition to all that, Briody cited Indiana Code 3-5-6, which addresses whether a registered voter has signed a document for certification by a county voter registration office. In a case in which officials are uncertain a signature is that of a registered voter, the statute says, "a reasonable doubt must be resolved in favor of the registered voter, and the signature must be certified as valid."

The law's intent is clear, Briody said: Minor variations in the printed or signed name or address of a voter when compared with voter registration information should be decided in the voter's favor.

"If someone's saying, 'Well, John Smith printed his name under the printed name column and then printed it again in the signature name column, that's bogus," he said.

Briody laughed when asked if another attorney would give CORE the same advice he would give.

"Depends on who they go to, and if (the attorney) wants the work and if they want their name in the paper for it," he said.