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Last updated on Tuesday, December 29, 2015
(MITCHELL) - Special Judge E. Michael Hoff ruled John “JD” England will become the mayor of Mitchell on Friday.
On Monday, Judge Hoff rejected Dan Terrell's request to stop England from becoming mayor. The court case challenging the election is scheduled for trial on Monday.
England won a four-way race November 3. England, who ran on the independent candidate, beat Republican candidate Terrell, 499-495. Democrat Eugene "Pud" Terrell received 29 votes and William H. "Bill the Truck Driver" Conley received eight votes.
Terrell asked for a recount, which he later cancelled. But the case didn't stop there.
Terrell and his attorney David Brooks filed a temporary restraining order and injunction along with a 16-page memorandum stopping England from becoming mayor.
But Judge Hoff rejected that request saying, "The public interest would be disserved by interfering with the result of this election by enjoining the elected candidate from assuming office."
His ruling further states, "It is not possible as a practical matter to schedule an earlier, separate hearing on (Terrell's) motion for a preliminary injunction. It is not appropriate to proceed in a summary matter and issue the requested order without a hearing on an issue of this importance. However, (Terrell's) motion will be moot before the court can hold the trial on the election contest. There is clearly no point in setting a hearing on this motion after the successful candidate, John 'JD' England, takes the oath of office as mayor of Mitchell, the act the motion seeks to prevent."
Terrell and his attorney claim that Lawrence County Clerk Myron Rainey, his staff, the absentee ballot board and the election board; acting alone or together; committed an act or series of acts that he/they should have known would make it impossible to determine which candidate received the highest number of votes and that the court should order that a special election be held.
Brooks states the facts in the case are "virtually indisputable."
He and Terrell believe several problems in the November election make it impossible to know who won since England beat Terrell by only four votes.
The court paperwork states that 16 votes were counted illegally because they were cast as absentee ballots without the voters providing proof of residency. Brooks claims those ballots should have been set aside until proof of residency was provided. But in this election they were opened and illegally counted before the voter was qualified to vote.
They also claim 21 illegal votes were cast in person on election day after receiving an absentee ballot. According to Indiana law voters who received absentee ballots, but have not returned the ballot and security envelope to bring the ballot with them to a precinct inspector on Election Day, and those ballots are supposed to be marked "cancelled," but that was not done.
Brooks also claims that at least eighteen illegal 'remade' ballots were cast. Remade ballots are necessary if the original ballot is damaged or can not be read by an automatic tabulating machine. Brooks claims the remade ballots should have been labeled "duplicate" with a serial number recorded on both the original and the copy, but Rainey created at least 18 sets of two ballots paper-clipped together - none with the word "duplicate" on them or with serial numbers.
Brooks claims Rainey did not provide a list of duplicates and originals to identify the number of remade ballots and "therefore, no definitive matching of alleged duplicates to alleged originals could be made during the recount process."
Brooks also claims that "In twelve instances ... election officials illegally opened ballots, looked for self-identifying residency documentation, resealed ballots, placed them in a cabinet and did not turn them into provisional ballots by law."
Also two voters were given wrong ballots; specifically they were provided Democrat primary ballots from the May election. "There is no way to know how many other voters had the wrong ballot distributed to them."
Brooks and Terrell also claim election officials did not properly secure absentee ballots before and after the election and failed to comply with the court's impound order. Ballots were kept in one-lock key systems. Rainey and others had copies of the key and could assess the ballot even after the court ordered the materials to be impounded.
In conclusion, Brook claims, "This election was totally and fatally flawed well beyond the point of making it impossible to determine which candidate received the highest number of legal votes and well beyond the risk of allowing any candidate to assume office prior to a legal and fair election."
England and his attorneys David Smith and Cody Kendall submitted a 12-page response saying Brooks' allegations are a confused mixture of findings.
Smith and Kendall say, the allegation that "a deliberate act or series of actions" flawed the election are incorrect.
"It is wrong on two fronts," the attorneys wrote. First, they say Terrell's "factual allegations" are inaccurate. Second, they say Terrell's case is based on a misunderstanding of Indiana election law
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