I-Team Investigation: Most Indiana Counties Using Illegal Ballot Design

 
By Rick Dawson   WISH-TV 8   08 October 2004

Produced by Loni Smith McKown

(Statewide) - Voters in 90 Indiana counties will vote November second on ballots listing candidates by office. But an I-Team investigation exposes why counties that use the office-block ballot design are in violation of state law.

The party-column ballot, also known as the "Indiana ballot," has its roots in the old lever voting machines to be used only by Greene County voters this fall. While voting technology has changed, the law has not since the late 1800’s.
 
Ninety of 92 Indiana counties have opened themselves up to future lawsuits because of how their election ballots are designed. Marion and Green Counties are the only exceptions.

Marion County's optical-scan machine ballots used to list candidates by office like those used in the May primary.  But a lawsuit challenged that design.

Now Marion County’s ballot lists candidates by party. Here's why: Indiana state law requires the party-column ballot layout, according to a July ruling by the Indiana Court of Appeals.

Jeff Cooper, a professor at Indiana University School of Law, specializes in legislative interpretation. “It requires, pretty plainly as I read the statute, that candidates be set out in columns or rows according to their party affiliation,” said Cooper.

The statute made sense when Hoosiers used old lever machines to cast their votes.

“Of course, now, just about everybody is moving away from the lever machines,” said Cooper.

From punch-card ballots in Madison County to Johnson County’s optical-scan ballots to Hamilton County’s electronic ballots, all list candidates by office, not by party.

“It's okay to depart from the statutory scheme, as long as it's determined that following the statutory scheme isn't practicable,” said Cooper.

It all comes down to that one word: practicable. But what does it mean? “Practicable is that which may be done, practiced or accomplished; that which is performable, feasible, possible,” said Cooper.

But the state gave clerks who were worried about ballot design different advice.  Indiana election division staff said: “Come up with reasons why choosing the office-block layout is ‘practical’ instead.”
 
“Practical and practicable are not at all the same words,” said Cooper.

The dictionary says ‘practical’ "stresses effectiveness as tested by actual experience."
“That's more of a policy type of judgment. ‘Is this really the way we want to design our ballot?’ as opposed to ‘Is it possible to design our ballot in a particular way?’” said Cooper. 

Cooper examined election board minutes from five central Indiana counties and came to the same conclusion about ballot decisions. “They're not saying that they cannot accomplish the design required by the statute. They're just saying, ‘We think we have a better design.’ That's not practicability,” said Cooper.

Is Marion County's new party-column ballot practicable? “Oh, I think it's clearly practicable. I'm holding it in my hands. They have accomplished what the statute requires,” said Cooper.

The law professor says the legislature already determined what design is best and ninety counties are in violation of the law.

“Based on my reading of the statute, I would say that, yes, despite the history, these counties have been in violation of the statute, at least as long as the statute's been in place,” said Cooper. “I would say that there is clear potential for more lawsuits to be brought. And, given the court of appeals decision in the Sadler case, for more lawsuits to be successful.”

The discovery will not affect the upcoming election in November. With less than four weeks before the election, it would not be "practicable" or feasible for counties to change their ballot design. A candidate filing a lawsuit after the November second election would have to prove harm. While the ballot designs may not really comply with the state statute, there's no evidence the office-block ballot is unfair. But the next election is a different story.