Ballots won't have numbers this year

Judge rules there is no time to make changes

By BRYAN CORBIN Evansville Courier & Press staff October 15, 2004

A lawsuit that threatened to cloud the Nov. 2 election ended Thursday when a judge decided numbers must appear next to candidates' names on the electronic ballot, but the Vanderburgh County Election Board doesn't have to change the ballot for this election.

The Vanderburgh County Democratic Central Committee had sued the Election Board, contending it illegally failed to include ballot numbers next to candidates' names on the electronic displays of touchscreen voting machines. The Democrats asked for a declaratory judgment to require the Election Board to restore the numbers in time for the Nov. 2 election. The Election Board opposed that, contending it was too late to reprogram the electronic voting machines.

 
With time running out before Election Day, Vanderburgh Circuit Court Judge Carl Heldt heard nearly two hours of testimony Thursday. He returned to his office for more than an hour to write the decision, then emerged with his ruling and read it aloud from the bench.

While the Election Board is not required to change the Nov. 2 ballot, for all elections thereafter it must include a ballot number next to candidates' names, Heldt ruled. "He recognized the practicality of the situation and he agreed with our interpretation of the law," said the Democrats' attorney, Robert Faulkner. "The bottom line is, it determines the Election Board could have followed the law, and should have, but it's too late now, is what it amounts to." Asked if the decision split the difference, Election Board attorney Les Shively said, "I think it's certainly a lot more than 50-50." Shively chided the Democratic Central Committee for waiting until late in the process, until Sept. 27, to bring the complaint, when the same electronic voting machines were used in the May primary without incident. "If the intent was to stop this election, it was unsuccessful, and that's why I think it's more than a 100 percent win for the Election Board," Shively said.

With the old punch card voting system, each candidate's name corresponded to a pre-printed, numbered chad on a punch card. But the county this year switched to iVotronic touchscreen voting machines manufactured by Election Systems & Software, or ES&S. Because the touchscreen machines have no punch cards or chads for ballot numbers to correspond to, the Election Board approved the ballot Sept. 20 without assigning any numbers. Democrats argued that step violated state law. "It's been our position all along that it was clear as day and should have applied, and the judge apparently agreed with our interpretation," Faulkner said. Heldt had to reconcile three separate laws within the Indiana Election Code and apply them to Vanderburgh County.

He ruled that state law requires voting systems, including electronic ones, to display a ballot number with the name. "The statute does not say that the system must be able to '' or 'choose' a ballot number. It only requires that the system be able to 'display' a ballot number," Heldt wrote, adding that it's a duty of the Election Board.

But the judge also noted another state law says voting-system software may not be changed while an election is being conducted. Absentee voting began Oct. 4. During Thursday's courtroom testimony, a vice president of voting-machine manufacturer ES&S, John Groh, testified that adding numbers to the candidates' names at this late date would entail changing the software. Finding that the law does not permit a midelection software change, Heldt ruled the Election Board won't have to number the electronic ballot Nov. 2. Indiana has no elections scheduled in 2005; the next election is the May 2006 primary.

State law currently gives the county Election Board no guidance or mechanism for assigning ballot numbers to candidates on electronic ballots, Shively said. "We can't make up the rules as we go," he said. "The General Assembly will have to give us the recipe, if you will."