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Indiana Election Division

Election Division > Election Commission > Archived IEC Minutes > 1997 Archived IEC Minutes > May 1997 Meeting Minutes Meeting Minutes

INDIANA ELECTION COMMISION MINUTES

May 12, 1997

MEMBERS PRESENT: Jeffery M. Mallamad (Chairman of the Indiana Election Commission [IEC]); Shirley Baker (proxy for Dudley Cruea); Barbara McClellan (proxy for Joseph M. Perkins, Jr.); Butch Morgan.

MEMBERS ABSENT: Dudley Cruea (Vice-Chair); Joseph M. Perkins, Jr..

STAFF ATTENDING: Laurie P. Christie, Co-Director, Election Division, Office of the Indiana Secretary of State ("Election Division"), Mary Ann Tippett, Co-Director, Election Division; J. Bradley King, Co-General Counsel, IEC and Election Division; Kristi Robertson, Co-General Counsel, IEC and Election Division; Carole M. Casto, Campaign Finance, Election Division; Michelle Thompson, Campaign Finance, Election Division; Kathy Koehler, NVRA Coordinator, Election Division.

ALSO ATTENDING: Lori G. Albitz, Governmental Business Systems; Maureen Bard, Legislative Services Agency; Jeff Brantley, Indiana State Chamber of Commerce; Larry Calvert, Governmental Business Systems; Barry Chambers; Jill Chambers; Steve Corey, MicroVote Corporation; Lori Hershberger, Legislative Services Agency; Leslie Davis Hiner, Indiana Secretary of State's Office; Cindy Lott, Attorney General's Office; Suzanne McBride, Indianapolis Star/News; David L. Nicholson; Greg Ullrich, Attorney General's Office; Mark Stratton, intern, Indiana Secretary of State's Office; Rick Vogel, Governmental Business Systems; Janet Williams, Indianapolis Star/News.

1. CALL TO ORDER AND OPENING REMARKS BY THE CHAIR:

The chair called the May 12, 1997 meeting of the Indiana Election Commission to order at 2:05 p.m. in the Training Center Room 8. Indiana Government Center South, 302 West Washington Street, Indianapolis, Indiana, stating that proper notice of the meeting had been given as required by state law, and noting that a quorum of the Commission (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) was present.

The chair noted that Mr. Cruea had filed a proxy dated May 2, 1997 designating Ms. Baker as his proxy for this meeting, and that Mr. Perkins had filed a proxy dated May 6, 1997 designating Ms. McClellan as his proxy for this meeting. Copies of Mr. Cruea's proxy and Mr. Perkins's proxy are incorporated by reference in these minutes. [Copies of all documents incorporated by reference are available for public inspection and copying in the Election Division office.] The chair welcomed Ms. Baker, Ms. McClellan, and all those in attendance.

2. APPROVAL OF MARCH 24, 1997 MINUTES:

The chair noted that copies of the minutes of the March 24, 1997 regular Commission meeting had been distributed to members before this meeting. There being no additions or corrections, Mr. Mallamad moved, seconded by Mr. Morgan, that the March 24, 1997 regular meeting minutes be approved as submitted. The chair called the question, and declared that with four members (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) voting "aye" and no member voting "nay", the motion was adopted.

3. CAMPAIGN FINANCE ENFORCEMENT:

  A.    CONTINUED CAUSES FROM PREVIOUS MEETINGS:

The chair recognized Ms. Casto, who noted that a document entitled "Delinquent 1996 Campaign Finance Committee Continued Causes" had been provided to Commission members before the meeting, along with copies of the notice of this hearing sent to the four committees with continued causes. These documents are incorporated by reference in these minutes.

  97-3985-95    Committee to Elect Fred Warsco

The chair asked if any person was present to speak on behalf of this committee. There being no response, the chair asked IEC staff if any individual had filed any document concerning this cause. Ms. Casto advised the Commission that a letter from Mr. Fred Warsco dated March 5, 1997 had been received on March 7. A copy of this letter is incorporated by reference in these minutes.

After Commission members reviewed this letter, and there being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that the record in this cause be closed. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Mr. Morgan, that the recommended civil penalty be imposed in this cause. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair directed staff to prepare the appropriate findings of fact and final order in this cause for subsequent adoption by the Commission.

  97-4034-105    Citizens for Steiner

The chair asked if any person was present to speak on behalf of this committee. There being no response, the chair asked IEC staff if any individual had filed any document concerning this cause. Ms. Casto advised the Commission that a letter from Mr. Daniel M. Steiner dated May 6, 1997 had been received on that date. A copy of this letter is incorporated by reference in these minutes.

The chair noted that Mr. Steiner had enclosed a check in the amount of $107.56 to pay the proposed civil penalty. After Commission members reviewed this letter, and there being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that the record in this cause be closed. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Mr. Morgan, that the recommended civil penalty be imposed in this cause. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair directed staff to prepare the appropriate findings of fact and final order in this cause for subsequent adoption by the Commission.

  97-0587-45    Friends of Dave Nicholson

The chair recognized Mr. David Nicholson. In response to a question from the chair, Mr. Nicholson stated that he had testified under oath at the last Commission meeting at which this matter was considered. The chair noted that the record reflected that Friends of Dave Nicholson had filed its January 1997 report on January 21, 1997, and that the amount of the proposed civil penalty was $75.04.

The chair recognized Mr. Nicholson, who stated that he would reiterate his testimony from the previous Commission meeting. He remarked that Indiana Code 3-9-4-14 required delinquents to be notified after the filing date and IC 3-9-4-16(b) stated that a penalty could be assessed if the report is not filed within ten days after the committee receives the notice. Mr. Nicholson added that although the record indicated that the report was seven days late, by his calculation the report was only six days late. In response to a question from the chair, Mr. Nicholson noted that the report was due at noon on January 15, and that the report was filed on the morning of January 21.

Mr. Nicholson testified that there had been severe inclement weather during the week of January 15, which had caused several other committee reports to be late. He concluded by noting that it was not possible to file this report on the Saturday, Sunday, or Monday after the deadline since the Election Commission was closed for the weekend and for the Martin Luther King, Jr. holiday.

In response to a question from the chair, Mr. King summarized the position previously taken by the Commission concerning the statutory arguments raised by Mr. Nicholson. He noted that members had been provided with a memorandum dated May 12, 1997 titled "Analysis of Campaign Finance Enforcement Provisions (Indiana Code 3-9-4 and IC 3-9-5 in context of Cause #97-4066-112; Friends of Jill Chambers). A copy of this memorandum is included by reference in these minutes. He indicated that he had prepared this memorandum in response to the chair's request at the last meeting following consideration of the Chambers matter, but that this document also addressed the arguments presented by Mr. Nicholson. Mr. King remarked that on pages 4 and 5 of the memorandum, he stated that the Commission took the position at its June 1996 meeting that the "ten day" language and the "delinquency" language in these campaign finance statutes must be construed together to give each word meaning and effect to reach a result that makes sense in interpreting the statutes. He noted that the Commission had held that the statutory language setting a deadline for filing or correcting a report does not affect the penalty for failing to file a report on time. Mr. King remarked that the General Assembly which recently adjourned had not passed legislation to overrule this interpretation of the statutes by the Commission, but had in fact enacted legislation to remove any ambiguity whatsoever in the statutes in regard to the penalty beginning to run immediately following the deadline for filing the report.

Mr. King added that the computation issue raised by Mr. Nicholson had not been addressed in this memo, but he recalled that the rule under common law was that the law did not recognize fractions of a day, so that any part of a day is considered an entire day. He stated that he was not aware of any statutory provision that provided otherwise in the campaign finance statutes.

Mr. King concluded by stating that he had provided a copy of this memorandum to both Mr. Nicholson and Mr. and Mrs. Chambers shortly before the meeting, and although they had not had an opportunity to fully review it, the information in his presentation had been provided to these committees. The chair stated that the Commission would entertain any motion that either committee had with regard to this memorandum. 

There being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that the record in this cause be closed. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Mr. Morgan, that the recommended civil penalty be imposed in this cause. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair directed staff to prepare the appropriate findings of fact and final order in this cause for subsequent adoption by the Commission.

  97-4066-112    Friends of Jill Chambers

The chair recognized Mr. Barry Chambers. In response to a question from the chair, Mr. Chambers stated that he had testified under oath at the last Commission meeting at which this matter was considered.

Mr. Chambers stated that he joined with Mr. Nicholson in contending that while IC 3-9-4-16(b) empowers the Commission to impose a penalty for failing to timely file a report, but the penalty can only be assessed after the Commission sends a notice advising the committee of the delinquency. Mr. Chambers said that the statute does not refer to defective reports, but to delinquents. He stated that the committee did not question that the report was filed two days late, but noted that the record indicated that the report was mailed two days before the deadline by certified mail.

Mr. Chambers argued that the civil penalty in this case should be waived due to the committee's good faith effort to file the report on time. He added that despite the interpretation set forth in Mr. King's memo, the statute is clear that the Commission must give notice to delinquents before assessing the penalty. Mr. Chambers remarked that the Commission could remedy this problem now by giving the committee written notice and then assessing the penalty, but that the Commission must comply strictly with the statute and that by doing so, the Commission can give meaning to each and every term. He noted that the Commission had advised individuals at its last meeting that although a report was a few minutes late, that compliance was required by the statute.

Mr. Chambers stated that the committee had made a good faith effort by entrusting this report to the U.S. Postal Service, but that the report had taken four days to be delivered. He noted that since the report was not delivered on the Friday deadline, it could not be delivered to the Commission until the following Tuesday. 

In response to a question from the chair, Mr. Chambers stated that the report was placed in the mail on January 13 at 4:42 p.m. and arrived at the Commission's office on January 17. Staff noted that the five page document submitted by this committee at the February 25, 1997 Commission meeting, which included a photocopy of the certified mail slips for this report, had also been provided to members for this meeting. A copy of this document is included by reference in these minutes.

In response to a question from the chair, Ms. Casto stated that the Commission had sent notice of this meeting to this committee, which the committee had received on April 16, 1997 according to certified mail records. She added that this notice stated that the committee was delinquent with regard to its January 1997 report.

The chair recognized Mrs. Chambers, who stated that the committee had made a good faith effort to comply with the filing deadlines by sending the report by certified mail. The chair stated that he believed the record was not ambiguous on this point at all.

The chair stated that the most candid description of the campaign finance laws would be that they need some interpretation. He added that this is not unusual for legislation and regulation. He remarked that the construction of these requirements by the Commission is a fair reading of the obligation. The chair stated that although the individuals testifying today and at previous meetings had presented an alternative interpretation of the statutes, the Commission's position has adequate support in the language of the statute and regulations, as well as in the Commission's past practice. He added that while he appreciated that there was some ambiguity, the level of compliance seen by the Commission (the 99% level) suggests that there is general understanding concerning what is required, and that there is significant support for the manner in which the Commission has interpreted the requirements. The chair added that the Commission is best served by the Commission's interpretation of the statutes.

The chair recognized Mr. Morgan, who stated that he admired the efforts of the committees in raising the principles addressed in their testimony. He added that it was very commendable for representatives of the committees to attend the Commission's meeting to raise these points. The chair added that he agreed with Mr. Morgan, and that the issues raised in these cases addressed changes that need to be made in the statutes to eliminate any argument that the requirements are in fact ambiguous. He stated that he appreciated the efforts of those in attendance to bring these matters to the attention of the Commission. 

There being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that the record in this cause be closed. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Mr. Morgan, that the recommended civil penalty be imposed in this cause. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair directed staff to prepare the appropriate findings of fact and final order in this cause for subsequent adoption by the Commission.

The chair recognized Mr. Chambers, who asked why Friends of Jill Chambers was treated differently from everyone else who put their report in certified mail or presented other evidence of putting their report in the mail at the last Commission meeting, and against whom no fines were assessed. The chair responded that he did not think this was the case.

Mrs. Chambers interjected "Mike Phillips." In response to a question from the chair regarding the point of her comment, Mrs. Chambers stated that Mike Phillips had sent his committee's report by certified mail the day before the deadline that did not arrive in Indianapolis in time, and that his committee had not been assessed a penalty. The chair said that he did not want to address that question without seeing the record of that meeting, and that he could only address the question as a single member of the Commission to explain how he voted. He stated that he voted not for a mechanical application of the rules because he did not think that result was intended by the statute. He remarked that in cases where he found there were sufficient efforts to comply and where there was an intervening factor beyond the control of the committee's attempt to comply, he had voted not to impose a penalty.

  B.    ENFORCEMENT ACTION CONCERNING REGULAR PARTY COMMITTEES WHO FAILED TO FILE A CAMPAIGN FINANCE REPORT BEFORE NOON, MARCH 3, 1997:

The chair recognized Ms. Casto, who noted that a document entitled "Delinquent 1996 Campaign Finance Regular Party Committee Reports" had been provided to Commission members before the meeting, along with copies of the notice of this hearing sent to the five committees with causes listed in this document. These documents are incorporated by reference in these minutes.

Ms. Casto noted that staff recommended dismissal of Cause 97-0421-144, and a draft order to do so had been provided to Commission members. She stated that this report had been sent by FAX, and had been received before the deadline. 

  97-1529-142    Fifth District Democratic Central Committee

The chair asked if any person was present to speak on behalf of this committee. There being no response, the chair asked IEC staff if any individual had filed any document concerning this cause. IEC staff advised the Commission that no document had been filed with the Commission concerning this cause.

There being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that the record in this cause be closed. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Mr. Morgan, that the recommended civil penalty be imposed in this cause. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair directed staff to prepare the appropriate findings of fact and final order in this cause for subsequent adoption by the Commission.

  97-0026-143    Indiana Democratic State Central Committee

The chair asked if any person was present to speak on behalf of this committee. There being no response, the chair asked IEC staff if any individual had filed any document concerning this cause. Ms. Robertson advised the Commission that a letter from Mr. Dennis M. Charles, Co-Treasurer of the Indiana Democratic Party, dated May 1, 1997 had been received on May 7. A copy of this letter is incorporated by reference in these minutes. The chair noted that the letter acknowledged that the Party had filed late, stated that the Party was willing to pay any penalty assessed by the Commission, and that the Party apologized for any inconvenience that had resulted.

After Commission members reviewed this letter, and there being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that the record in this cause be closed. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Mr. Morgan, that the recommended civil penalty be imposed in this cause. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair directed staff to prepare the appropriate findings of fact and final order in this cause for subsequent adoption by the Commission. 

  97-0724-145    Third District Democratic Central Committee

The chair asked if any person was present to speak on behalf of this committee. The chair recognized Mr. Morgan, who stated that the Committee would be paying its fine.

There being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that the record in this cause be closed. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Mr. Morgan, that the recommended civil penalty be imposed in this cause. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair directed staff to prepare the appropriate findings of fact and final order in this cause for subsequent adoption by the Commission.

  97-3350-146    Sixth Republican Congressional Central Committee

The chair asked if any person was present to speak on behalf of this committee. There being no response, the chair asked IEC staff if any individual had filed any document concerning this cause. IEC staff advised the Commission that no document had been filed with the Commission concerning this cause.

There being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that the record in this cause be closed. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Mr. Morgan, that the recommended civil penalty be imposed in this cause. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair directed staff to prepare the appropriate findings of fact and final order in this cause for subsequent adoption by the Commission.

  97-0421-144    Indiana's Ninth Congressional District Democrat Central Committee

The chair noted that Commission members had received a draft of Order 1997-39, dismissing this cause. In response to a question from the chair, Ms. Casto stated that this cause should not have been listed since the report was in fact filed on time. 

There being no further testimony in this cause, Mr. Mallamad moved, seconded by Mr. Morgan, that Order 1997-39 be adopted as presented. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

  C.    STATUS OF PREVIOUSLY ADOPTED ENFORCEMENT ORDERS:

The chair recognized Ms. Casto, who noted that a five page document entitled "Committees That Have Not Paid Fines" had been provided to Commission members before the meeting. This document is incorporated by reference in these minutes.

Ms. Casto noted that this spread sheet listed forty-two committees (including candidate committees, political action committees, and regular party committees) who have been previously fined by the Commission, but who have not paid the assessed civil penalty. In response to a question from the chair, Ms. Casto stated that each of these committees had received a letter containing the Commission's final order assessing a civil penalty and the findings of fact in these matters. In response to a question from the chair, Ms. Thompson stated that these letters had been sent by certified mail and the Commission has received acknowledgments that these committees have received the certified mailing. Ms. Casto added that as of the date of this meeting, there had been no further communication from these committees concerning the outstanding penalty.

The chair stated that he understood that the Attorney General was ultimately responsible for efforts to collect these fines, and that staff was recommending that the Commission send a final notice advising these committees that if the civil penalties were not paid by June 13, the matter would be turned over to the Attorney General's office for collection. Mr. Mallamad moved, seconded by Mr. Morgan, that the staff be directed to prepare and send a final notice to the committees listed in the spread sheet that have not paid previously assessed civil penalties. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

Mr. Mallamad moved, seconded by Ms. Baker, that the staff be directed that if any civil penalty has not been paid by June 13, 1997, the matter be turned over to the Attorney General's office for collection. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The chair asked staff to continue their same outstanding efforts to make certain by use of certified mail that all these committees are notified of the Commission's action at this meeting.

  D.    STATUS REPORT CONCERNING ALLEGED EXCESS CORPORATE CONTRIBUTIONS:

The chair recognized Ms. Casto, who stated that the Indianapolis Star ran an article on April 14, 1997 reporting that several corporations may have exceeded the statutory limits on contributions by corporations. She noted that a six page memorandum entitled "Excess Corporate Contributions" had been provided to Commission members before the meeting. This document is incorporated by reference in these minutes.

Ms. Casto added that staff had contacted each of the corporations named in the article and had provided the Commission with its most current information regarding these contributions.

The chair recognized Ms. Robertson, who noted that Indiana Code 3-9-2-4 sets forth the limits on corporate contributions, IC 3-9-4-16(d) permits the Commission to assess a civil penalty of not more than three times any excess corporate contribution. She added that IC 3-14-1-10 imposes a Class B misdemeanor criminal penalty against any corporation that recklessly exceeds these limits. Ms. Robertson remarked that some of these corporate contributions had taken place in 1994, but that the statute permitting the assessment of a civil penalty took effect July 1, 1995, and that as a result, the Commission would not have the authority to assess a civil penalty against a corporation for contributions made before July 1, 1995.

In response to a question from the chair, Ms. Robertson stated that the Commission could still act regarding the contributions, but could not impose a civil penalty. Ms. Robertson added that with regard to excess corporate contributions made on or after July 1, 1995, the Commission had authority to act and to impose a civil penalty if appropriate. She also noted that, with regard to the criminal penalty for excess corporate contributions, the two year statute of limitations had run for contributions made in 1994 (and before May 12, 1995), and that as a result, the Commission could not recommend prosecution of these matters by the Marion County Prosecuting Attorney's office.

The chair stated that since his appointment as chair, the Commission had embarked on an effort to change the campaign finance environment so that individuals in the political arena appreciated that the Commission's mission was a serious one, and that violations of the campaign finance laws would result in a predictable penalty. He added that he felt that the staff had done a marvelous job in recent months with regard to the voluminous and difficult to track reports considering the computer capability that the office currently has. He stated that the Commission had sent the appropriate message to committees during its meeting two sessions ago, and had resolved some of those matters as recently as today. The chair remarked that he put the alleged excess corporate contributions in the same category as the delinquent filers. The chair added that the state was well served by the new legislation permitting the Commission to investigate and make recommendations, and to assess penalties when warranted. He expressed his hope that in the future that the Commission's computer capabilities would permit tracking of these matters from cycle to cycle without the assistance of the Indianapolis Star. He remarked that the Star's reporting had led to the Commission's investigation and review of these matters, and that the Star had done a very good job in identifying corporations that have failed to comply with the limits on corporate contributions. In response to a question from the chair, representatives from the Star indicated that they had developed a computer database containing contribution records; he urged them to keep using this resource to see what additional information they could find.

The chair remarked that the memorandum had identified several corporations who may have failed to comply with the corporation contribution limit before July 1, 1995, and noted the names of the corporations set forth in the memo. He added that he realized that the Commission is not empowered to assess a civil penalty in these bases, but that the seriousness of the alleged violations cannot go without some response by the Commission. The chair recognized Ms. Casto, who remarked that although Golden Rule Insurance Company had been listed in this part of the memorandum, it was unclear at this time whether the corporation had exceeded the corporate contribution limit.

Mr. Mallamad moved, seconded by Mr. Morgan, that the Commission empower the staff to investigate as it deems appropriate, to prepare findings as it deems appropriate, and to make recommendations to the Commission for its next meetings with respect to the corporations identified as possible violators of the corporate contribution limits with regard to contributions made before July 1, 1995 so that the Commission would be fully appraised of the facts and circumstances in these cases. The chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

With regard to allegations concerning contributions made on or after July 1, 1995, Mr. Mallamad moved, seconded by Mr. Morgan, that the Commission empower the staff to investigate as it deems appropriate, to prepare findings, and to make recommendations to the Commission for its next meetings with respect to the corporations identified as possible violators of the corporate contribution limits with additional recommendations for any civil penalties or other corrective action that might be appropriate. He noted that this motion was not to prejudge any of these events, but to direct staff to conduct an investigation based on these allegations and not to draw conclusions from the Star's reporting or any other information except from first hand investigations as to what actually occurred. The chair indicated that he expected staff to come to the next meeting with recommendations based on their findings. With the consent of the Commission, he amended his motion to empower the staff, with regard to both contributions made before and after July 1, 1995, to conduct its own hearings if necessary to carry out the Commission's directive.

There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

With the consent of the Commission, the chair revised the agenda to take up several housekeeping items at this time.

4. IEC FORMS:

The chair recognized Mr. King, who stated that the Commission had received copies of the following forms: ABS-1 (R8/8-96); ABS-3 (R2/03-97); VRG-4 (R6/03-97); and VRG-12 (R2/03-97). He noted that these documents were the current version of these forms as reflected in the records of Forms Management Division in the Commission on Public Records as of May 1, 1997. Copies of these forms are incorporated by reference in these minutes.

Mr. King remarked that the ABS-1 is an 8.5" by 11" version of the existing 8.5" by 14" absentee ballot application, as requested by Mr. Cruea at a previous meeting. He noted that after Commission action today, a county could use either version of the ABS-1. He noted that the ABS-3 form is a special absentee ballot for military and overseas voters, and that the form had been revised to clarify the mailing instructions and to include the offices to be placed on the statewide ballot in 1998. Mr. King indicated that the VRG-4 and VRG-12 are voter registration transfer forms designed to permit voters who have moved within a county, or shortly before election day, to transfer their registrations after voting at their former polling place on election day. He remarked that these forms had been revised to request a telephone number from the voter so that the county voter registration office could contact the voter to resolve any question arising from the transfer request.

In response to a question from the chair, Mr. King noted that the legislation passed by the 1997 General Assembly would require revisions in several IEC forms. He added that some changes would be very simple, and could be presented to the Commission at its next meeting, but that staff would plan to have all revisions submitted to the Commission for its approval prior to distribution of the forms at the annual Election Seminar in December 1997. Mr. Mallamad moved, seconded by Ms. Baker, that the proposed revised forms be approved as submitted. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

5. 1997 LEGISLATION:

The chair recognized Mr. King, who stated that the Commission had received copies of the 27 page document entitled "1997 Session Election Legislation", which included both bills enacted by the General Assembly and bills that died during the legislative process. A copy of this document is incorporated by reference in these minutes.

Mr. King remarked that the election legislation passed by the 1997 regular session of the General Assembly had either already been signed by the Governor, or was required to be acted on by the Governor no later than May 13, 1997. He noted that there were several small bills such as HEA 1072 and HEA 1275 which make minor changes regarding city court judge candidates and prohibiting campaign finance committee chairmen and treasurers from serving on precinct election boards if the candidate is on the ballot in that precinct. He added that HEA 1661 and SEA 50 addressed statutes concerning school board elections in specific communities. Mr. King noted that HEA 1542 and HEA 1783 altered the mileage rate for counties attending the annual Election Seminar and the tax rate for a county cumulative voting system fund. He indicated HEA 1845 and HEA 1969 permitted members of the state police to serve as elected officers in some cases, and for elected officials in municipalities to hold a liquor permit.

Mr. King stated that the major legislation enacted during the past session was HEA 1844, which began as a campaign finance bill and includes the changes in that area agreed on by the General Assembly. He noted that HEA 1844 includes most of SB 515, which had addressed a large number of election law topics. Mr. King remarked that HEA 1844 will explicitly grant the Commission authority to issue advisory opinions, which might prove useful in the timing and implementation of some of the new campaign finance legislation. Mr. King noted that HEA 1844 also reenacts Indiana's campaign literature "disclaimer" statute, which would be modeled after the federal disclaimer statute. He indicated that staff would prepare a detailed legislative summary for the Commission after the legislation had been acted upon by Governor O'Bannon.

In response to a question from Mr. Morgan concerning his proposal to permit the state recount commission to provide for a special election within thirty days following a contested primary, Mr. King reported that this proposal had been approved unanimously when presented in the House Elections Committee as an amendment to SB 515, but that SB 515 had died on third reading in the House. He noted that the Senate Rules would not permit this language to be added to the final version of the conference committee report on House Enrolled Act 1844 since this language had not been passed by either the House or the Senate. Mr. Morgan asked if this proposal could be presented for consideration by the legislature at its next session. Mr. King responded that there should be no objection to this since there was an understanding among House Elections Committee members that it would be extremely difficult to have a nine week special election process following a contested primary.

Mr. King noted that the General Assembly had adopted two state constitutional amendments, ESJR 3, which concerned residence requirements for state elected officials, and ESJR 10, which contained a number of measures to protect the voting rights of individuals who moved shortly before election day or within the same county. He remarked that as a result, these two constitutional amendments would be on the November 1998 general election ballot.

At 3:08 p.m., the chair declared the Commission meeting in recess.

At 3:22 p.m., the chair reconvened the meeting, with all members present as before.

6. VOTING SYSTEM CERTIFICATIONS:

The chair recognized Ms. Robertson, who remarked that the Commission had been provided with a memorandum dated May 5, 1997 concerning voting systems. A copy of this memorandum is incorporated by reference in these minutes. She reviewed the contents of the memorandum, including the vendors currently marketing voting systems in Indiana, the accredited independent testing authorities which certify voting equipment, and the federal and state agencies involved in the voting system certification process. Ms. Robertson also addressed the Indiana standards for voting system certification and the recertification process required under Indiana law for a voting system which vendors wish to continue marketing more than five years after receiving Commission approval.

The chair thanked Ms. Robertson for the preparation of this memorandum, and stated that he had benefitted from it. He added that with the dissolution of the Voting Systems Advisory Committee, the responsibility for voting system certification had shifted to the Commission, and noted that the memorandum did a good job of explaining the certification process and why it was important to the voters of Indiana. He commended staff on its good work. 

  A.    DEMONSTRATION OF GBS ACCUVOTE VOTING SYSTEM:

The chair recognized Ms. Lori Albitz, Mr. Larry Calvert, and Mr. Rick Vogel of Governmental Business Systems (GBS) for this demonstration. The chair noted that the Commission had voted to approve the GBS ACCUVOTE system at its February 25, 1997 meeting, with the condition that GBS conduct a demonstration of the system for the Commission.

Ms. Albitz stated that she would conduct a short demonstration of the system, and would be happy to answer any questions. Ms. Albitz proceeded to conduct the demonstration, and furnished the Commission with an "Indiana Accu-Vote Demonstration Ballot", an election day "zero total tape", which would be printed by precinct workers before balloting began on election day to verify that all vote totals on the system were set to zero, and a printout tape of election results. These documents are incorporated by reference in these minutes.

Ms. Albitz noted that the machine slides into the ballot box, and locks in place to prevent tampering with the machine during election day. She indicated that after the machine prints the zero total tape, a message appears on a window screen asking if another printout is needed. She added that after pressing the "no" button, the screen indicates that the worker should insert the ballot to start the system. She noted that the demonstration ballot provided with the system advises a voter to cast a ballot for a candidate by darkening the oval next to the candidate's name. Ms. Albitz remarked that after completing the ballot, the voter is instructed by a pollworker to insert the ballot in a secrecy folder, and then to insert the ballot into the machine. She noted that if a voter overvotes on a ballot, the system alerts the voter to give an opportunity to correct the mistake and prevent loss of the entire ballot. She noted that the pollworkers may issue a replacement ballot to a voter who makes a mistake on the voter's first ballot.

Ms. Albitz stated that when the polls are closed, an ender card is inserted to lock the machine in place to prevent the machine from reading any additional ballots. She stated that one of the pollworkers would then unlock the door, and by pressing both the "yes" and "no" button simultaneously, could run the ender card through the system. Ms. Albitz noted that the ballots and ender cards could be run in any orientation (up or down, backwards, or reversed). She indicated that after the ender card is processed, the system begins to print the election results automatically. She noted that the pollworkers can then go to the ballot box at the back of the system, open the box, and remove the bins. She remarked that system contained two bins, one for ballots containing write-in votes, and one for ballots without them. Ms. Albitz noted that when the election results begin printing, the pollworkers can remove the sealed bins from the machine and prepare to close the polls. 

Ms. Albitz noted that the system contains a small memory card with a three volt lithium battery, and that this card contains the election parameters and totals for the system. She added that the system also contains a twelve volt lithium battery, with an expected life span of five years. She remarked that if this battery needs to be replaced, the system permits the customer to do so. Ms. Albitz stated that if a power failure occurs, this battery can power the machine for up to eight hours.

In response to a question from the chair, Ms. Albitz and Mr. Calvert noted that the system would take between two minutes and seven or eight minutes to printout complete election results, depending upon the number of offices and parties on the ballot. Mr. Calvert noted that the tape can produce a duplicate copy as it prints. In response to a question from Ms. Baker, Ms. Albitz stated that even if the voter did not completely shade in the oval, the system would read the ballot as a vote for the candidate, and could do so if the voter made an "X" in the oval, so long as the mark passed through the center of the oval. She added that if the machine could not read the mark, it would kick out the ballot for correction by the voter. She noted that the machine reads both sides of the ballot simultaneously.

The chair recognized Mr. King, who noted that the Commission had received a letter dated April 2, 1997 from Wyle Laboratories concerning the complete test report for this system. A copy of this document is incorporated by reference in these minutes. He added that Commission members had received three representative pages from the Wyle report, which was too lengthy to duplicate in its entirety for Commission members and the minutes. In response to a question from Mr. King, Ms. Albitz indicated that the date on the tapes was the date of the simulated election, not the date the test was being conducted, and that the systems were programmed by GBS staff at its office in Burr Ridge, Illinois (near Chicago), not at the precinct.

The chair thanked Ms. Albitz for the demonstration of the ACCUVOTE system.

  B.    PUBLIC HEARING ON RECERTIFICATION OF GBS ACCUTAB VOTING SYSTEM; UPDATE ON WYLE LABORATORY CERTIFICATION PROCESS:

The chair opened the public hearing required by state law for the Commission's consideration of the recertification of the GBS ACCUTAB voting system.

The chair asked if any person was present to testify at this hearing. There being no response, the chair recognized Ms. Robertson, who stated that the Commission had received the following documents concerning the recertification of the ACCUTAB
system: (1) a letter dated Mar. 24, 1997 from Randy Yohn, Elkhart County Circuit Court Clerk; (2) a letter dated April 2, 1997 from Marilyn Coleman, Jay County Circuit Court Clerk; (3) a letter dated March 24, 1997 from Kyle Conrad, Newton County Clerk. These documents are incorporated by reference in these minutes.

Mr. Mallamad moved, seconded by Mr. Morgan, to close the public hearing on recertification of the GBS ACCUTAB voting system. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

The chair recognized Mr. Calvert of GBS, who stated that GBS had been making arrangements with Wyle Laboratories regarding testing of the ACCUTAB voting system. He noted that GBS will be submitting a new version of this system for testing that will accommodate Windows, along with some additional printing options, but that the program logic and tabulation functions would remain the same as the current system. Mr. Calvert stated that GBS would be working with Wyle Laboratories to establish a timetable for testing this system.

The chair thanked the representatives of GBS for the voting system demonstration and for their presence at this meeting.

  C.    RECERTIFICATION OF BRC PC/BT VOTING SYSTEM

The chair recognized Mr. King, who noted that Commission members had received a copy of a letter dated April 23, 1997 from Mr. Dan T. McGinnis, Vice-President of Business Records Corporation. A copy of this document is incorporated by reference in these minutes.

Mr. King noted that the letter indicated that the Department of Justice was still screening the proposed merger between BRC and AIS, and that a decision is expected in the near future. He added that the letter also states that BRC has requested that Wyle schedule time as soon as possible to perform testing on the PC/BT system, and that BRC will keep the Commission informed of any developments concerning the testing process.

  D.    STATUS OF OPTECH III-P CERTIFICATION OF OCTOBER 21, 1992

The chair recognized Mr. King, who noted that the April 23, 1997 letter from Dan T. McGinnis, Vice-President of Business Records Corporation also addresses a question regarding the timetable for the five year approval that a voting system receives upon certification or recertification by the Commission. 

Mr. King stated that in October 1992, BRC received certification by the Commission for the Optech III-P Eagle system, with the five year certification period ending in October 1997. He noted, however, that in October 1995, BRC requested certification of the AERO software as an attachment to the Optech III-P Eagle system. Mr. King remarked that the Commission did certify the Optech III-P Eagle with AERO software at that time, and that this certification would expire in October 2000.

Mr. King indicated that the question arises with regard to the status of the Commission's October 1992 approval of this system, and whether it is necessary for BRC to have the same system that BRC had certified in October 1995 back to Wyle Laboratories to be recertified so that BRC could sell the system without software. He added that BRC had advised staff that BRC intended to sell the Optech III-P Eagle with the AERO software as the normal course of its business, but that BRC did not wish to lose the option of selling the Optech III-P Eagle without the software if a county could not afford to purchase the software. Mr. King remarked that BRC was requesting the Commission clarify when the five year certification for this voting system would expire, and that it was the recommendation of staff that the expiration dates be synchronized, so that October 2000 would be the expiration date for the Optech III-P Eagle, with or without the AERO software.

Mr. Mallamad moved, seconded by Mr. Morgan, that the expiration date for the Optech III-P Eagle be fixed at October 18, 2000, for voting systems with or without the AERO software. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

  E.    RECERTIFICATION OF MICROVOTE CORPORATION MV 464 WITH MEMS SOFTWARE

The chair recognized Mr. King, who noted that Mr. Steve Corey of MicroVote Corporation was present, and that he had delivered three binders to Commission staff earlier today that contained information relating to this agenda item. A copy of this document is incorporated by reference in these minutes.

The chair recognized Mr. Corey, who stated that the material provided to Mr. King consisted of MicroVote's analysis of the MEMS software's compliance with the Indiana voting system standards set forth in the Commission's administrative rules. He added that this information included MicroVote's software requirement specifications, its election management manual, absentee ballot manual, and all MEMS software revisions from Version 6.1 through 6.4, and Wyle Laboratories' certification of the MV 464 system itself.

Mr. Corey stated that MicroVote hoped by late summer or early fall to have software testing underway with Nichols Research.

In response to a question from the chair regarding the role of Information Services Division (ISD) in the certification process, Mr. King noted that Indiana had statutes and administrative rules prescribing standards for both the hardware and software of voting systems. He added that MicroVote's MV 464 system (the hardware) has been certified by Wyle Laboratories, but that the software component of that system (MEMS) is not an item that Wyle certifies.

Mr. King noted that in consideration of a voting system previously submitted by GBS for Commission approval, the Commission noted that there was no individual on staff who had the technical expertise to determine if the system's software complied with the Indiana standards. He added that the Commission then referred the question of the software's compliance with the Indiana standards to ISD, who had agreed to examine the GBS system software for the Commission.

Mr. King remarked that GBS had submitted a written analysis of its software's compliance with the Indiana rules to assist ISD in this evaluation process, and that ISD had reported back to the Commission that the GBS software complied with the Indiana standards. Mr. King concluded by stating that he understood that MicroVote Corporation had included a similar analysis of its MEMS software's compliance with the Indiana rules as a part of the information submitted to Commission staff earlier today, and that MicroVote was requesting the question of the MEMS software's compliance with the Indiana standards be referred to ISD, with ISD reporting back to the Commission before the Commission would take a vote on recertification of the MV 464 with MEMS voting system.

The chair recognized Mr. Corey, who stated that MicroVote wished to have its software personnel meet with ISD, either at ISD's office or the MicroVote facility in Indianapolis, to discuss the software and provide a demonstration to ISD. He indicated that he would be happy to work with Mr. King to coordinate this meeting.

The chair stated that the Commission wants to ensure that it applies the same standard to all vendors, and since ISD had previously played a role in the review and certification of software, he felt it was appropriate that ISD play the same role with regard to the MicroVote system.

Mr. Mallamad moved, seconded by Mr. Morgan, that the MicroVote MV 464 MEMS software be sent to ISD for review of the system to determine if the software complies with the Indiana voting system software standards. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. 

In response to a question from the chair, Mr. King indicated that he anticipated the ISD review process to be completed shortly, and that a report would be present to the Commission at its next meeting. The chair thanked Mr. Corey for his presentation.

7. ST. JOSEPH COUNTY PRECINCTS:

The chair recognized Maureen Bard and Lori Hershberger of Legislative Services Agency, who distributed a five page document consisting of three maps of part of St. Joseph County, a selection from Indiana Code 2-1-7 concerning state senate districts, and a memorandum analyzing the effect of certain precinct changes within the City of Mishawaka. A copy of this document is incorporated by reference in these minutes.

Ms. Bard stated that these documents had been prepared in response to the Commission's request for a review of questions that had been presented to the Commission regarding the impact of alleged precinct boundary changes that may have crossed state senate district lines. Ms. Bard remarked that congressional, state senate, and state house of representative district lines are defined by precincts. However, when a precinct boundary changes, there can be some confusion regarding its impact on an existing state house or state senate line.

Ms. Bard noted that the first map indicated the boundary between Mishawaka precincts 1-9 and 4-4 in 1991, which served as the boundary between State Senate Districts 10 and 11 in the redistricting approved by the general assembly during that year. She referred Commission members to the second map, which indicated that the 1991 State Senate district line followed Cedar Street (the line between 1-9 and 4-4). Ms. Bard then referred Commission members to the third map, which reflected a precinct change made in St. Joseph County that effectively did away with precinct 1-9 by absorbing that precinct within precinct 4-4, and noted that the resulting precinct no longer recognized the 1991 State Senate district line along Cedar Street. She concluded by noting that the document included a recommendation to revise the boundary of the current Mishawaka precinct 4-4 to have the territory west of Cedar, north of the St. Joseph River, east of Main, and south of Lawrence placed in a precinct that would conform with the state senate district boundary and be considered a part of Senate District 10.

Mr. Morgan stated that the situation involving this matter was very convoluted, and that the legislative change he had alluded to earlier regarding the schedule for special elections after a contested primary had been an additional reason for concern. He noted that he would be taking this information to a meeting of St. Joseph County Election Board scheduled for next Wednesday, and would ask Election Board members to contact the Commission to discuss this matter. The chair recognized Mr. King, who stated that the likely solution will involve changing precinct boundary lines in this area. In response to a question from the chair, Mr. King stated that any precinct boundary change can only be made following review and action by the Commission.

8. NVRA REPORT; NOVEMBER 1996 GENERAL ELECTION:

The chair recognized Kathy Koehler, NVRA Coordinator, who provided Commission members with a six page document entitled "Voter registration applicants who cast November 1996 general election ballots based on registration receipts." Supplementary material consisting of twenty-four pages of photocopies of poll list entries, voter registration applications, and miscellaneous correspondence concerning this matter was also made available. A copy of the document and supplementary material is incorporated by reference in these minutes.

Ms. Koehler remarked that the memorandum provided detailed information concerning cases where individuals applied to register to vote at an agency, but whose application was not received by the county voter registration office. She added that most of these individuals had been permitted to vote under state law by producing their application receipt at the polls. She noted that Commission staff reviewed these incidents following each election as required by state law to ensure that no significant number of problems occurring in one office. Ms. Koehler indicated that in five counties, the problems appeared to be the result of random error, but in two counties (Marion and Orange), precinct election boards had permitted voters to vote who produced receipts dated after the close of registration on October 7. She recommended that these matters be referred to the county election boards to address as part of pollworker training.

Ms. Koehler stated that in Randolph County there had been several instances reported of voters who had applied at the same license branch, but whose name did not appear on the poll lists. She indicated that after the license branch manager who was in office in early 1996 had been dismissed, several voter registration application forms which had not been forwarded to the county voter registration office were found in the license branch office, and that this may have accounted for the problem. Ms. Koehler stated that the new branch manager was working well with the circuit court clerk, and no continuing problem was foreseen. She concluded by stating that she would forward the information set forth in this memorandum to the appropriate county election board. 

In response to a question from the chair, Ms. Koehler indicated that none of the incidents reported in the memorandum appeared to have affected the outcome of any election.

Mr. Mallamad moved, seconded by Mr. Morgan, that the proposed findings and recommendations in the memorandum be approved. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted. The Commission thanked Ms. Koehler for her work on this memorandum.

9. VOTER REGISTRATION DRIVE PROGRAM PLAN:

The chair recognized Ms. Koehler, who stated that Commission members had received copies of a document entitled "Voter Registration Drive Program Plan Instruction." A copy of this document is incorporated by reference in these minutes.

Ms. Koehler stated that under Indiana Code 3-7-22-6, as amended by HEA 1844, an individual who requests more than 10,000 voter registration forms at one time would be required to submit additional information to ensure that these forms would be used responsibly and not wasted. She remarked that the form requested a minimum amount of information necessary to ensure responsible use of the forms.

After Commission review of this document, Mr. Mallamad moved, seconded by Ms. McClellan, that the voter registration drive program plan be approved as submitted. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Ms. Baker, Mr. Mallamad, Ms. McClellan, and Mr. Morgan) and no member voting "nay", the motion was adopted.

10. COUNTY NVRA IMPLEMENTATION PLANS:

The chair recognized Ms. Koehler, who stated that there were six counties who were delinquent in submitting the county NVRA implementation plans required by state law, and three counties with amendments to be made to existing plans. She stated that she would proceed to draft plans for the delinquent counties, and that she would submit these documents at a future Commission meeting for consideration.

11. FUTURE COMMISSION MEETINGS:

The chair stated that he wished the Commission to meet within the next thirty days to address the important issues raised by alleged excess corporate contributions. After further discussion, the chair directed staff to poll Commission members to determine if the next Commission meeting could be scheduled for Monday, June 16, 1997, at 2:00 p.m. The chair asked staff to present information at that time concerning the alleged excess corporate contributions and concerning any committees that had not paid previously assessed civil penalties by the June 13, 1997 deadline.

The chair noted that Mr. Morgan was required to leave the meeting at this time to attend another event in the northern part of the state. Commission members thanked Mr. Morgan for his participation, and wished him a safe journey.

12. BLOCK BOUNDARY SUGGESTION PROJECT (BBSP) REPORT:

The chair recognized Ms. Bard and Ms. Hershberger, who reported that 90% of the initial review had been completed, and most of the project material have been sent to the Census Bureau for feedback. Ms. Bard stated that they expected to have the initial maps returned to them by October. She added that about 90% of counties have been completed.

Ms. Bard stated that the primary issues to be brought to the Commission at future meetings will involve clarification of house and senate district lines, and that most of these problems appear to involve municipal annexations where annexed territory was assigned to a municipal precinct, notwithstanding a house or senate district boundary line. The chair thanked Ms. Bard and Ms. Hershberger for the update and expressed his pleasure that the project was moving forward.

13. ANNUAL ELECTION ADMINISTRATORS SEMINAR:

The chair recognized Ms. Christie, who advised Commission members that the next Election Administrators Seminar would be conducted on December 8-10, 1997, at the Westin Hotel in downtown Indianapolis. She stated that this would give staff time to prepare publications and forms for distribution at the seminar. She added that she and Ms. Tippett would be contacting Commission members concerning the seminar's agenda. The chair stated that the seminar was a very worthwhile endeavor, and that he had found last year's seminar to be a valuable experience.

14. LITIGATION UPDATE:

The chair recognized Ms. Robertson, who noted that Commission members had received a memorandum dated May 12, 1997 and titled "Litigation Update", along with supplemental material concerning Libertarian Party of Illinois v. Rednour, a case recently handed down by the Seventh Circuit upholding an Illinois ballot access statute similar to Indiana's. A copy of the memorandum and supplemental material is incorporated by reference in these minutes.

The chair then welcomed Ms. Cindy Lott and Mr. Greg Ullrich of the Attorney General's Office, and after advising them to convey no information that would in any way compromise the Commission's attorney-client privilege, recognized them for a status report on the current cases involving the Commission.

Ms. Lott stated that she had joined the Attorney General's office in January, and currently served as the Section Chief for Administrative and Regulatory Litigation, and noted that although Beth Henkel had been transferred to another section of the Attorney General's office, she continued to be assigned to several cases involving the Commission.

    A. Anderson v. Indiana Election Commission:

Ms. Lott noted that both she and Mr. Ullrich were assigned to this case, which involves the election of small claims court judges in Marion County. They provided Commission members with copies of the following documents concerning this case: (1) A letter dated May 1, 1997, from Jon M. Bailey of Bose McKinney & Evans with an attached Joint Motion to Stay Pending Appeal; (2) the Commission Defendants Motion to Adopt; and (3) a draft order dated May 8, 1997 by the United States District Court Southern Division. Copies of these documents are incorporated by reference in these minutes.

Mr. Ullrich said that in Marion County, small claims court judges have jurisdiction in civil cases in which there is less than $3,000 in controversy. He noted that the Joint Motion to Stay Pending Appeal reflected that the plaintiffs, the county defendants, and the state defendants had all agreed to stay proceedings in the district court until an interlocutory appeal had been conducted. Mr. Ullrich stated that trial in this case had originally been set for the first week of June, but that the trial was stayed pending the appeal.

In response to a question from the chair concerning the status of settlement discussions in this case, Mr. Ullrich indicated that during a pretrial conference attended by Ms. Henkel and Ms. Jan Kreuscher of the Attorney General's Office, Judge Hamilton indicated that while he considered the county defendants the primary party in the settlement negotiations in this case, he also considered the state defendants to be a secondary party in the negotiations. He stated that Judge Hamilton had requested that the plaintiffs and the Marion County defendants aggressively pursue settlement discussions in this matter, and that Ms. Kreuscher understood that these negotiations are in fact taking place. 

In response to a question from the chair, Mr. Ullrich stated that he had no information about whether the state had been present for any of these ongoing settlement discussions. Ms. Lott added that she understood that any discussions were in a very preliminary stage. The chair noted that this case had been pending for some time, and that the Commission had been involved in settlement discussions in the past. He added that he wished to remain current regarding the Anderson case, and that perhaps an executive session by the Commission in the near future would be useful.

Ms. Lott stated the resolution of the issues presented in the interlocutory appeal could move this case along very quickly. The chair stated that when the date of the next Commission meeting is set, the Commission consider conducting an executive session to discuss this litigation. He noted that forty-eight hours notice would be required to conduct an executive session.

Mr. Ullrich noted that the Election Commission's "Motion to Adopt" set forth the Commission's agreement with Marion County's motion to reconsider the summary judgment request filed by the Marion County Election Board and to request an interlocutory appeal. He indicated that with regard to the draft "Order" provided to the Commission, he was requesting the Commission to advise him whether to adopt Marion County's motion to request Judge Hamilton to sign his interlocutory order. Mr. Ullrich indicated that the defendants are requesting that the Seventh Circuit rule on two issues in the interlocutory appeal. He noted that the issues are set forth on page five of the Order: (1) whether the Gingles doctrine apples to the plaintiffs' claims under the Voting Rights Act; and (2) whether the "one person, one vote" standard under the Equal Protection Clause of the Fourteenth Amendment applies to the election of Marion County small claims court judges. Mr. Ullrich added that these issues would be addressed if Judge Hamilton signs the interlocutory appeal and if the Seventh Circuit accepts the interlocutory appeal. He added that he and Ms. Lott would consult with Jon Laramore of the appeals division if the court adopts the county's proposed order in this matter.

The chair stated that he did not think a Commission vote was necessary with regard to the adoption of this draft order, and that if this draft is the appropriate order to pursue the Commission's litigation strategy in this case, the Attorney General's office should proceed to submit the order. Commission members consented to this course of action. The chair added that an executive session to discuss Anderson would be necessary if there were developments concerning a settlement or if any other significant events occurred in this case, and that any aspect of the case not required to be addressed in an executive session should be discussed in the Commission's public meeting. 

Ms. Lott stated that the Attorney General's office would always advise the Commission about substantive settlement negotiations occurring in any litigation, but that sometimes very preliminary settlement discussions between parties might be an informal conversation that would not rise to the level of substantive negotiations.

The chair responded that in the Anderson case there had already been an exchange of settlement proposals and a series of communications between the Commission and the plaintiffs' attorney. Mr. Ullrich stated that if this case is not settled as a result of the Seventh Circuit's ruling on interlocutory appeal, he expected negotiations to become more serious when the case gets closer to trial.

    B. BAPAC v. Mallamad:

Ms. Lott reported that this case was currently before the Seventh Circuit Court of Appeals, and that Jon Laramore, the chief of the Attorney General's Office Appellate Division will be presenting the oral argument in this case to the court on May 22. She stated that she anticipated that the court would hand down its decision a couple of months following oral arguments. She noted that Beth Henkel continued to be assigned to this case.

    C. Stewart v. Taylor:

Ms. Lott stated that she had nothing new to report in Stewart, but she understood that since there was not yet a final order in the case, there was no appeal in progress. She noted that Beth Henkel remained assigned to this case as well.

The chair thanked Ms. Lott and Mr. Ullrich for their presentation.

The chair recognized Ms. Robertson, who reported that the United States Supreme Court handed down a decision on April 28, 1997 that upheld state statutes prohibiting a candidate from being the nominee of more than one party. She noted this question had been one of the issues in the Stewart case, and that the Supreme Court's ruling supports Indiana's current fusion statute.

Ms. Robertson stated that the campaign literature disclaimer issue in Stewart had been addressed in House Enrolled Act 1844, which repealed the former Indiana disclaimer statute and enacted a new state disclaimer statute modeled on the federal disclaimer law. She noted that this legislation had been passed by the General Assembly, and was awaiting action by Governor O'Bannon. 

15. ADJOURNMENT:

There being no further business to come before the Commission, Mr. Mallamad moved, seconded by Ms. Baker, that the Commission do now adjourn. The chair called the question and declared the motion adopted with three members voting "aye" (Ms. Baker, Mr. Mallamad, and Ms. McClellan), and one member absent (Mr. Morgan). The Commission then adjourned at 4:25 p.m.

Respectfully Submitted,

__________________________        _________________________
Laurie P. Christie                               Mary Ann Tippett
Co-Director                                        Co-Director
 

APPROVED:

__________________________
John T.L. Koenig
Acting Chairman