1 / 24

County Election Board Hearings

County Election Board Hearings. Matthew Kochevar, Co-General Counsel Election Administrator’s Conference | November 30, 2017. County Election Board Roles. Two major roles of every county election board General administration of voting : Ballot preparation Testing voting systems

Jims
Download Presentation

County Election Board Hearings

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  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

More Related