                                                                                FILED
                                                                            Dec 30 2019, 8:36 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      William R. Groth                                           Robin C. Clay
      Fillenwarth Dennerline Groth & Towe,                       Curlin & Clay Law Association of
      LLC                                                        Attorneys
      Indianapolis, Indiana                                      Indianapolis, Indiana
      Kristina Frey                                              Robin A. Hall
      Indianapolis, Indiana                                      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Donald B. Kite, Sr.,                                       December 30, 2019
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 19A-MI-51
              v.                                                 Appeal from the Marion Circuit
                                                                 Court
      Alexandra Curlin,                                          The Honorable Sheryl Lynch,
      Appellee-Respondent.                                       Judge
                                                                 Trial Court Cause No.
                                                                 49C01-1811-MI-45470



      Mathias, Judge.


[1]   Donald B. Kite, Sr. (“Kite”) appeals the order of the Marion Circuit Court

      denying his petition for an election contest in which he claimed that Alexandra

      Curlin (“Curlin”) was ineligible to hold the seat on the school board to which

      she was elected. On appeal, Kite claims that Curlin does not reside in the

      Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019                           Page 1 of 27
      district she was elected to represent and is therefore statutorily ineligible for the

      school board seat. Curlin argues that her residency, and therefore her

      ineligibility, was discoverable prior to the election and that Kite’s post-election

      challenge is untimely. Because we agree with Kite that Curlin continues to be

      ineligible for the seat she holds, we reverse and remand.


                                  Facts and Procedural History
[2]   In 2015, the school board (“School Board”) of the Metropolitan School District

      of Washington Township (“MSDWT”) adopted a plan (the “2015 Plan”)

      regarding the organization and composition of the School Board. The 2015

      Plan provided that two members of the School Board would be elected at-large,

      but “preserve[d] the current and historical practice of board members elected by

      and representing all MSDWT voters without concentration of a majority of the

      Board from just one geographical area (residence district)[.]” Ex. Vol., Joint Ex.

      1, p. 2. The 2015 Plan also provided that any candidate for a seat representing a

      residence district must have lived in that district “for a period of time in excess

      of one (1) year prior to the date of the general election on which the candidate’s

      name appears on the ballot for election[.]” Id. at p. 3–4.


[3]   MSDWT is divided into three geographic residence districts. Areas south of

      75th Street between Spring Mill Road and College Avenue are within MSDWT

      Residence District 1, and areas north of 75th Street between Spring Mill Road

      and College Avenue are within MSDWT Residence District 2.The following

      diagram is based on the exhibits submitted by the parties and is offered as a

      visual aid to the reader:
      Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019         Page 2 of 27
      See Ex. Vol., Petitioner’s Ex. B. It is undisputed that Kite has lived in District 2

      for more than one year prior to the election at issue. Curlin resides at 7431

      North Meridian Street, which is between Spring Mill Road and College

      Avenue, but three houses south of 75th Street. It is undisputed that Curlin

      therefore resides in District 1.


[4]   Kite was the incumbent representing District 2. On August 23, 2018, Curlin

      filed a “Petition of Nomination and Consent for School Board Office Elected in

      2018,” State Form CAN-34, so that she could run against Kite for the seat

      representing District 2. Id., Joint Ex. 6. In this form, Curlin correctly listed her


      Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019         Page 3 of 27
      address as 7431 North Meridian Street. Although she listed her correct address,

      which lies within District 1, she indicated that she was seeking the seat

      representing District 2. In this form, Curlin incorrectly certified that she

      “meet[s] all qualifications for this office, including residency requirements[.]” Id.

      (emphasis added).


[5]   The election was held on November 6, 2018. Curlin received 14,723 votes, and

      Kite received 13,946 votes. The election results were certified, and Kite did not

      request a recount. However, the day after the election, while the votes were still

      being counted, Kite was informed that Curlin did not live in District 2.

      Accordingly, on November 15, 2018, nine days after the election, Kite filed a

      verified petition to contest the election on grounds that Curlin filed for and

      sought the District 2 seat even though she lived in District 1. Kite’s petition

      claimed that Curlin was therefore ineligible to run for election or be seated as a

      District 2 School Board member, because she did not meet the residency

      requirement.


[6]   The trial court held a hearing on Kite’s petition on December 11, 2018. A week

      later, pursuant to Kite’s request under Trial Rule 52, the trial court issued

      findings of fact and conclusions of law providing in relevant part:


              4. The defined residence districts are . . . depicted in a map that
              is posted on MSDWT’s website and on the Marion County
              Election Board (“MCEB”) website . . . although the maps posted
              on the MCEB’s website . . . and the MSDWT’s website are of
              different levels of clarity.



      Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019           Page 4 of 27
        5. The written descriptions of the MSDWT residence District
        boundaries which accompany the map on the MSDWT website
        describes boundaries which make residences north of 75th street
        between Spring Mill and College fall into residence District 2 and
        residences south of 75th street between Spring Mill and College
        fall into residence District 1. Because Respondent Alexandra
        Curlin (“Curlin”) lives south of 75th Street between Spring
        Mill and College, she resides, as she testified during the
        hearing in this matter, in residence District 1.

        6. Curlin met with Kite, the District 2 incumbent, around July
        15, 2018 to discuss her running for MSDWT School Board.
        Curlin contacted Kite to meet. Kite asked Curlin where she lived.
        Curlin said District 2 at 75th and Meridian Street but did not give
        Kite her specific address of 7431 N. Meridian Street.

        7. Kite advised Curlin she could run for the seat in District 2 or
        for an At Large seat for MSDWT School Board.

        8. Kite and Curlin texted several more times after their initial
        meeting. Kite even texted Curlin to see if she decided what seat
        to run for.

                                                 ***

        15. Both at the time Curlin filed her candidacy and up to the
        present, Curlin has resided at 7431 N. Meridian Street,
        Indianapolis, IN 46260 since 2012. In fact, Curlin stated in her
        CAN-34 she resided at 7431 N. Meridian Street, Indianapolis, IN
        46260. Curlin’s CAN-34 form was a public record since received
        by the MCEB August 24, 2018.

        16. Kite agreed the CAN-34 form is a public record.

        17. However, as discovered by Kite, and as acknowledged by
        Curlin in her sworn testimony, Curlin’s address is actually within
        residence District 1 boundaries, rather than in residence District
        2.

Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019          Page 5 of 27
        18. However, at the time of filing her candidacy documents,
        Curlin, relying on her interpretation of the MSDWT’s district
        map, believed that she did in fact live in residence District 2.

        19. Kite filed this contest action under Ind. Code [chapter] 3-12-
        8, alleging that Curlin was ineligible to seek or occupy the office
        of MSDWT Board of Education member in residence District 2
        because she did not meet the statutory residency requirement to
        either run or to serve as a member in residence District 2, and
        because seating her would violate Indiana Code § 20-23-4-
        27(c)(3) and the 2015 Restated Plan (“Plan”) which requires that
        no more than two (2) members live in any one residence district,
        and that each district have at least one member.

        20. Kite discovered the day after the November 6, 2018 election
        after someone told him, Curlin did not reside in District 2 while
        the votes were still being counted.

        21. Kite did not investigate his opponent Curlin’s eligibility to
        run in District 2 as she was an attorney and he relied on what she
        told him when they met before she filed her CAN-34 on August
        24, 2018. Both Kite and Curlin are attorneys.

        22. Kite knows campaign reports are on the MCEB website with
        candidate’s addresses, but someone in his campaign looked at
        Curlin’s campaign reports. Kite did not.

        23. Kite was aware of Curlin’s CAN-34 form as candidates look
        to see who stands by the opponent as they are curious.

        24. Kite’s campaign maintained a Facebook page. Kite’s
        campaign was in control of the Facebook [page]. Kite’s Facebook
        demonstrates his campaign investigated Curlin with his
        accomplishments and information on Curlin’s background.

        25. Kite agreed the things on his campaign Facebook [page]
        about Curlin were to educate the voters about Curlin. Kite
        checked the Facebook [page] frequently.

Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019         Page 6 of 27
        26. Curlin relied on the MSDWT website map to decide she was
        in District 2 which did not have street lines. Curlin did not look
        at the MCEB website map before filing her CAN-34 form.

        27. Curlin’s house is less than half of a football field from 75th
        street where the line of District 2 is located.

        28. Curlin believed she resided in District 2 when she filed her
        CAN-34 form. She had consulted with Kite and others including
        the MCEB staff when she filed her CAN-34 form. Curlin did not
        consult the MSDWT attorney before filing her CAN-34.

        29. Curlin was aware that she could run for an At Large seat and
        a District 2 seat as she thought she resided in District 2.

        30. Curlin felt like she did her due diligence. Curlin did not give
        an incorrect address of where she resided on the CAN-34 form.

        31. Curlin believed she signed the CAN-34 form to be accurate
        and true.

        32. Curlin discovered she lived in District 1 instead of District 2
        after the election when MSDWT’s attorney gave her the heads
        up of Kite’s Petition to Contest Election.

        33. Curlin at hearing acknowledged she knows now that she
        does not reside in District 2.

        34. The Court finds Curlin credible stating that she had no intent
        to deceive voters or commit fraud as she put her correct address
        on the CAN-34 form.

        35. All Washington Township voters vote for all MSDWT
        School Board Members regardless of what district they reside in.
        The MSDWT School Board Members represent the entire
        MSDWT.




Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019           Page 7 of 27
                                 CONCLUSIONS OF LAW

        1. It is undisputed that Curlin’s address does not fall within
        residence District 2 and is in fact in residence District 1.

        2. Both Curlin and Kite maintain that they were unaware of the
        fact that Curlin was ineligible to run for the District 2 seat under
        both Indiana Code § 20-23-4-27(c)(3) and the Plan until after the
        election on November 6, 2018.

        3. Thus, the issue this Court must weigh is whether Indiana
        Code § 20-23-4-27(c)(3) is controlling even post-election after the
        voters have spoken.

        4. Indiana law strongly disfavors post-hoc disenfranchisement of
        voters. The Indiana Constitution guarantees that “[a]ll elections
        shall be free and equal.” Ind. Const. art. 2, § 1. “Consistent with
        this guarantee, the Indiana Supreme Court has always been wary
        of overturning the will of the voters who have freely and willingly
        cast their ballots.” See, e.g., Burke v. Bennett, 907 N.E.2d 529 (Ind.
        2009), White v. Indiana Democratic Party ex rel. Parker, 963 N.E.2d
        481 (Ind. 2012).

        5. Courts liberally construe the statutes governing post-election
        contests “‘in order that the will of the people in the choice of
        public officers may not be defeated by any merely formal or
        technical objections.’” Pabey v. Pastrick, 816 N.E.2d 1138, 1148
        (Ind. 2004) (quoting Tombaugh v. Grogg, 146 Ind. 99, 103, 44
        N.E. 994, 995 (1896)).

        6. Because the five (5) MSDWT Board members, who hold seats
        from different residence districts to promote “geographic
        diversity”, still serve the entire MSDWT area as a whole and are
        elected by the Washington Township residents as a whole, not by
        district, it can be argued that the resident requirement is a mere
        formal or technical issue when weighed against the
        disenfranchisement of voters.


Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019            Page 8 of 27
        7. The alternative, as argued by Kite is for the Court to conclude
        the District 2 position is vacant, and apply Article 15, Section 3
        [of the Indiana Constitution], which states that when an elective
        term ends and no qualified person has been elected and qualified
        to take over the duties of the office, the person holding that office
        at the end of the elective term has a right and duty to hold the
        office and discharge his duties for an additional term until the
        next general election for that office. Patterson v. Dykes, 804 N.E.2d
        849, 853–54 (Ind. Ct. App. 2004)

        8. However, the facts of the Dykes case and the subsequent case
        law relied on by Kite in drawing this conclusion do not apply in
        this instance. The 2004 Dykes case does not discuss
        disenfranchisement of voters. Not to mention the Dykes case is an
        Indiana Court of Appeals case and not an Indiana Supreme
        Court case.

        9. In Dykes, the unsuccessful incumbent sought declaratory
        judgment, preliminary injunction and summary judgment that
        the councilman-elect was ineligible to hold office because of a
        prior felony conviction. This is not the case herein.

        10. Here, there has been no fraud or felony committed by
        Curlin. Rather, Curlin’s ineligibility is at most merely
        technical. Curlin ran for a seat in the incorrect district and gave
        her correct address on the CAN-34, but each MSDWT School
        Board Member serves the entire Washington Township area and
        not only their district. Furthermore, all MSDWT School Board
        Members are voted on and elected by the entire Washington
        Township residents and not by the district.

        11. No evidence of fraud or bad faith has been presented to
        show that Curlin submitted her candidacy for the District 2 seat
        with an intent to defraud or mislead voters.

        12. This Court cannot rely on the 2004 Indiana Court of Appeals,
        Dykes case.


Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019        Page 9 of 27
        13. In White v. Ind. Dem. Party, 963 N.E. 2d 481 (Ind. 2012),
        (“White Case”) the Court concluded that “the Code places a
        burden on political campaigns to investigate and vet their
        opposition before the pre-election time limitations expire, but
        that is better than the alternative: that a challenger might ignore a
        known (or knowable) disqualification challenge before the
        election, wait to see who won at the polls, and then seek to set
        aside the results of the democratic process. Such a result is
        inconsistent with free elections and respect for voters’ expressed
        preferences.[”]

        14. Curlin included her correct address on the CAN-34, which
        was a matter of public record before the election and remains
        public record today. Kite was aware of Curlin’s area of address
        during the campaign before the election.

        15. Even though Kite did conduct opposition research on
        Curlin, he did not disclose that her address fell in residence
        District 1 until after Curlin won the election. Absent proof that
        “the voters willfully threw away their ballots on a candidate they
        knew could not lawfully be elected, the mere fact that the one
        who received the largest vote was ineligible to be elected . . . is
        not enough to give the candidate who received the less number
        the right to the office.” Burke at 533 (Ind. 2009) citing State ex rel.
        Heston v. Ross, 84 N.E. 150–151 (1908).

        16. The knowledge of the ineligibility of a candidate must be
        such on the part of those voting for him as to imply a willfulness
        in acting and voting in defiance of the law and in opposition to
        such knowledge, in order to nullify such votes without nullifying
        all votes “equally” at the same time. Oviatt v. Behme, 147 N.E. 2d
        897, 901 (Ind. 1958). “It is a serious matter under our system of
        government to deprive one of an office for which he has received
        the highest number of votes.” Id. “The constitutional provision
        that ‘all elections shall be free and equal’ means that ‘the vote of
        every elector is equal in its influence upon the result to the vote of
        every other elector.’” Id.

Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019          Page 10 of 27
        17. It is clear that Kite was aware of Curlin’s potential run in
        District 2 as early as mid-July 2017 [sic, read 2018]. Not to
        mention, Curlin filed her CAN-34 received by the MCEB August
        24, 2018 that was a public form that Kite could have verified his
        opponent’s residence requirement as he advised Curlin she could
        run in District 2 or the At Large seat.

        18. Curlin should have reviewed the MCEB website map to
        determine what seat she could run for in the November 6, 2018
        MSDWT School Board Election. In the same manner, Kite
        should have investigated his opponent Curlin per the “White
        Case” to see if she was eligible and qualified to run against him
        as the incumbent for his 4th term before the election on
        November 6, 2018.

        19. Kite’s incumbent campaign investigated Curlin as evidenced
        on Facebook with other issues, but failed to investigate and vet
        his opponent Curlin’s residency requirement before the pre-
        election time limitations expired despite knowing he has a
        potential opponent as early as mid-July 2018.

        20. Instead Kite in the alternative ignored investigating his
        opponent Curlin’s residency which was public record and known
        for sure August 24, 2018 when Curlin filed her CAN-34 with the
        MCEB. Kite waited to see who won at the polls and then sought
        to essentially set aside the results of the democratic process when
        he filed his Verified Petition to Contest Election filed November
        15, 2018. The election was November 6, 2018.

        21. The Indiana Supreme Court has addressed post-election
        challenges. Disfranchisement of voters is discouraged.

        22. 51.36% of Washington Township voters voted for Curlin
        without knowing she did not reside in District 2.

        23. This Court is not in the position to disenfranchise voters
        post-election.


Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019         Page 11 of 27
      Appellant’s App. pp. 9–18 (italics in original, bold emphases added). The trial

      court therefore denied Kite’s petition, and Kite now appeals.


                                            Standard of Review
[7]   Where a trial court enters specific findings and conclusions, we apply a two-tier

      standard of review: we first determine whether the evidence supports the

      findings, and then we determine whether the findings support the judgment.

      Marion Cty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind. 2012). We

      will “‘not set aside the findings or judgment unless clearly erroneous.’” Id.

      (quoting Ind. Trial Rule 52(A)). We review the trial court’s legal conclusions de

      novo. Id. at 217. Here, Kite generally accepts the trial court’s findings,1 and

      argues only that the trial court misapplied the law. Thus, our review is de novo.

      See id.


                  I. The Statutory Scheme Permits Post-Election Challenges to the
                                      Eligibility of a Candidate

[8]   Kite first argues that the trial court erred by concluding that he could not

      challenge Curlin’s eligibility after the election. Kite correctly notes that the

      applicable statutory scheme clearly permits such post-election challenges.

      Specifically, Indiana Code chapter 3-12-8 contains several provisions setting




      1
        In a footnote to his brief, Kite argues that the trial court clearly erred in concluding that he “‘in the
      alternative ignored investigating his opponent Curlin’s residency’ and waited to see who won at the polls and
      then sought to essentially set the election aside.” Appellant’s Br. at 13 (quoting Appellant’s App. p. 11). Kite,
      however, does not argue that this allegedly erroneous conclusion requires reversal.



      Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019                                Page 12 of 27
      forth the procedure for post-election challenges to a school board member’s

      eligibility.


[9]   The first section of this chapter provides that, subject to exceptions not

      applicable here,2 “[a]ny candidate for nomination or election to a local or

      school board office may contest the nomination or election of a candidate who

      is declared nominated or elected to the office.” Ind. Code § 3-12-8-1(b). The

      second section of this chapter states that an election may be contested under

      section 1 if a petitioner alleges that one of the several circumstances exist,

      including that “the contestee was ineligible[.]” Ind. Code § 3-12-8-2. Such a

      contest must be filed in the local circuit court “no later than noon fourteen (14)

      days after election day.” Ind. Code § 3-12-8-5. The petition to contest the

      election must state inter alia:


               (3) That the petitioner in good faith believes that one (1) or more
               of the following occurred:

                     (A) The person declared nominated or elected does not
                     comply with a specific constitutional or statutory
                     requirement set forth in the petition that is applicable to a
                     candidate for the office. . . .


      Ind. Code § 3-12-8-6(a).




      2
       These exceptions apply to a candidate who (1) receives the most votes in a primary election; and (2) is
      certified as deceased. Ind. Code § 3-12-8-1(b).

      Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019                             Page 13 of 27
[10]   Once the relevant parties and the local election board have been served, Ind.

       Code § 3-12-8-8, and the candidate challenged in the petition files an answer,

       Ind. Code § 3-12-8-10, the trial court must hold a hearing on the petition. Ind.

       Code § 3-12-8-17. If the trial court determines that the contestee is ineligible,

       then the court “shall declare as elected or nominated the qualified candidate

       who received the highest number of votes and render judgment accordingly.”

       Id. at § 17(c). If the trial court declares the winning candidate is ineligible and

       that the eligible candidate who received the most votes is therefore elected, it

       must certify its determination to the county election board and if applicable, the

       election division and governor. Ind. Code § 3-12-8-18. If the challenger is

       successful, the person then in possession of the office “shall vacate the office”

       upon “demand of a person receiving a . . . certificate of election issued

       following the certification under section 18[.]” Ind. Code § 3-12-8-21. It is

       therefore clear that Indiana Code chapter 3-12-8 permits a post-election contest

       to the eligibility of a candidate who won the office.


           II. Curlin Was Not an Eligible Candidate for the District 2 Seat to Which
                                         She was Elected

[11]   Kite also correctly notes that Curlin was not an eligible candidate for the

       District 2 seat to which she was ultimately elected. The trial court did not find

       otherwise. Indeed, it is undisputed that Curlin did not reside in District 2. Nor

       is there any evidence that she moved or planned to move into District 2.

       Indiana Code section 3-8-1-34(b) clearly provides that, for “a candidate for

       school board office seeking to represent an election district that consists of less


       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019         Page 14 of 27
       than the entire school corporation,” “[t]he candidate must have resided in the

       election district for at least one (1) year before the election.” (emphasis added).

       The 2015 Plan adopted by MSDWT incorporated this requirement by stating

       that a candidate for a seat representing a residence district must have lived in

       that district “for a period of time in excess of one (1) year prior to the date of the

       general election on which the candidate’s name appears on the ballot for

       election[.]” Ex. Vol., Joint Ex. 1 pp. 3–4. Thus, Curlin was clearly ineligible for

       the District 2 seat on the School Board.


[12]   We further note that MSDWT’s 2015 Plan provides that


               Three (3) of the five (5) Board Members must reside within and
               run for a board position from those three geographically limited
               residence districts with one member elected from each such
               residence district. The other two (2) Board Member positions
               will be elected from the at-large district comprising of the entire
               territory of MSDWT, provided, however, both of the at-large seat
               Board Members may not reside within the same geographically
               limited residence district.


       Id. at 3 (emphases added). Thus, the 2015 Plan provides for geographic

       diversity among the members of the School Board.


[13]   This provision of the 2015 Plan mirrors similar provisions meant to ensure

       geographic diversity among school board members that are set forth in the

       applicable statutes. Indiana Code section 20-23-4-27(b) provides that an elected

       school board shall be elected in accordance with one of six methods set forth in

       Subsection 27(c). The method chosen by MSDWT is that listed in Subsection


       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019        Page 15 of 27
       27(c)(3): dividing the school corporation into three residence districts of

       approximately equal population. See Ind. Code § 20-23-4-27(c)(3); Ex. Vol,

       Joint Ex. 1. If the school board consists of five members, as the MSDWT

       School Board does, then no more than two members may reside in any one

       residence district. Ind. Code § 20-23-4-27(c)(3)(B).3


[14]   Here, the trial court found, and the parties do not dispute, that the School

       Board consists of five members, two of whom are elected as at-large candidates,

       and the other three from the three residential districts. District 1 is represented

       by Wanda Thurston, who resides in District 1 and was re-elected in 2016;

       District 3 is represented by Tony Dzwonar, who resides in District 3 and was

       re-elected in 2016; one at-large seat is held by Bill Turner, who was re-elected in

       2018 and resides in residence District 1, and the other at-large seat is held by

       John Fencl, who was elected in 2016 and resides in District 3. As Curlin lives in

       District 1, there are currently three members of the School Board who reside in

       District 1 and none who live in District 2, contrary to the legislative intent

       favoring geographic diversity on school boards.




       3
         Literally, Subsection 27(c)(3)(B) provides that, if a three-district school board consists of five members, then
       “two (2) members may not reside in any one (1) residence district.” This is an obvious drafting error. If a
       school board has five members and three geographical residence districts, with three members elected from
       the residence districts and two at-large members, then two members must, by mathematical necessity, reside
       in one residence district. “We are required to determine and effect the legislative intent underlying the statute
       and to construe the statute in such a way as to prevent absurdity and hardship and to favor public
       convenience.” Livingston v. Fast Cash USA, Inc., 753 N.E.2d 572, 575 (Ind. 2001). Here, the legislative intent
       for geographic diversity is obvious. We therefore construe Subsection 27(c)(3)(B) to mean that, if a school
       corporation is divided into three residence districts and has a five-member school board, then no more than two
       members may reside in any one residence district.

       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019                                 Page 16 of 27
[15]   We additionally note that Indiana Code section 20-23-4-29.1(e) states that, if a

       school corporation plan provides that all members of the school board are to be

       elected by all the voters in the corporation, then the candidates shall be placed

       on the ballot by residence district. “The ballot must state the number of

       members to be voted on and the maximum number of members that may be

       elected from each residence district as provided in the plan.” Id. Generally,

       “[t]he candidates who receive the most votes are elected.” Id. If, however,

       “more than the maximum number [of candidates] that may be elected from a

       residence district are among those receiving the most votes, the candidates from

       the residence districts exceeding the maximum number who receive the fewest

       votes shall be eliminated in determining the candidates who are elected.” 4 Id.


[16]   Thus, our General Assembly has expressed its intention to prioritize the

       geographic diversity of the composition of a school board over seating the

       candidate who received the most votes if the election of a candidate dilutes or

       destroys the geographic diversity of the board. Yet, with Curlin on the

       MSDWT School Board, there are now three of five members who reside in

       District 1: Thurston, Turner, and Curlin, who, contrary to the clear statutory

       eligibility requirement that a candidate for the District 2 seat reside in District 2,

       resides instead in District 1. This leaves the School Board without the




       4
         This last provision was added in apparent response to our opinion in Campbell v. Board of School
       Commissioners of the City of Indianapolis, 908 N.E.2d 1234, 1240 (Ind. Ct. App. 2009), in which we held that a
       statutory provision that defined the winning candidate for school board as the one who received the most
       votes controlled over a conflicting provision that prohibited two members residing in the same residential
       district.

       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019                               Page 17 of 27
       geographic diversity required by the 2015 Plan and clearly intended by the

       General Assembly.


[17]   Again, the trial court did not conclude that Curlin was eligible to hold the seat

       representing District 2. The outcome of this case would therefore seem to be

       simple: Curlin was an ineligible candidate due to her residency in District 1,

       and Kite brought a statutorily authorized post-election challenge to her

       eligibility wherein it was clearly established that Curlin was an ineligible

       candidate. The trial court, however, concluded that it could not unseat Curlin

       despite her ineligibility based on controlling precedent from our supreme court.

       We therefore turn our attention to this precedent.


                     III. Precedent Disfavors Post-Election Disenfranchisement

[18]   Our supreme court has held that Indiana law strongly disfavors “post-hoc

       disenfranchisement of voters,” writing:


               The Indiana Constitution guarantees that “[a]ll elections shall be
               free and equal.” Ind. Const. art. 2, § 1. Consistent with this
               guarantee, this Court has always been wary of overturning the
               will of the voters who have freely and willingly cast their ballots.
               See, e.g., Burke v. Bennett, 907 N.E.2d 529 (Ind. 2009) (“This
               application of the Indiana disqualification statute is consistent
               with the longstanding respect for the right of the people to free
               and equal elections . . . and the reluctance of this Court to
               remove from office a person duly elected by the voters.”). We
               liberally construe the statutes governing post-election contests
               “‘in order that the will of the people in the choice of public
               officers may not be defeated by any merely formal or technical
               objections.’” Pabey v. Pastrick, 816 N.E.2d 1138, 1148 (Ind. 2004)


       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019       Page 18 of 27
               (quoting Tombaugh v. Grogg, 146 Ind. 99, 103, 44 N.E. 994, 995
               (1896)).

               Even where facts are alleged that might if later proven render a
               candidate ineligible, “[t]he existence of the fact which
               disqualifies, and of the law which makes that fact operate to
               disqualify, must be brought home so closely and so clearly to the
               knowledge or notice of the elector, as that to give his vote
               therewith indicates an intent to waste it.” Oviatt v. Behme, 238
               Ind. 69, 74, 147 N.E.2d 897, 900 (1958) (quoting People ex rel.
               Furman v. Clute, 50 N.Y. 451 (1872)). Those voters who are
               lawfully qualified to participate in our democratic process “may
               not be disenfranchised except by their own willful or deliberate
               act to the extent that one who did not receive the highest vote
               cast may still be declared elected.” Id. at 74–75, 147 N.E.2d at
               900.

       White v. Indiana Democratic Party ex rel. Parker, 963 N.E.2d 481, 486 (Ind. 2012)

       (emphasis added).


[19]   Relying on the above-emphasized language, the trial court determined that

       Curlin’s ineligibility for the District 2 seat was merely a “technical” issue and

       that unseating Curlin would improperly disenfranchise the electorate who voted

       for Curlin. We agree with Kite that the question of whether a candidate is

       ineligible for office due to her failure to meet a residency requirement is not a

       mere formal or technical objection.


[20]   As discussed infra in more detail, the White court cited this “technicality”

       language in addressing a challenge to a candidate’s residency, but the court

       ultimately held that the candidate, at the time of the post-election challenge,

       was eligible. Thus, White did not hold that a candidate’s ineligibility based on


       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019      Page 19 of 27
       residency was a formal or technical objection. 963 N.E.2d at 488. And in the

       case cited in White in support of this proposition, the issue was not one of the

       eligibility of a candidate. See Pabey, 816 N.E.2d at 1149 (considering whether

       there had been deliberate acts that made it impossible to determine the

       candidate who received the highest number of votes). In contrast, the cases

       cited in Pabey did deal with technical, procedural objections. See Tombaugh, 146

       Ind. 99, 44 N.E. at 995 (rejecting appellee’s argument that board of

       commissioners did not have jurisdiction because it failed to meet at the time

       fixed by the auditor); see also Hadley v. Gutridge, 58 Ind. 302, 309 (1877)

       (addressing appellee’s argument that service of process was insufficient).


[21]   Our research has revealed no Indiana case that has held that a candidate’s

       residency, as it pertains to his or her eligibility for office, is a “mere

       technicality.” Instead, we agree with the Supreme Court of Kansas that, given

       “the importance of geographical representation on school boards, expressed

       through the complex scheme for school board makeup precisely set forth in the

       statutes,” “[d]isqualification by nonresidency, continuing and not corrected at

       any stage by the candidate,” is not a technical irregularity. In re Massey, 605

       P.2d 147, 150 (Kan. 1980). Instead, here, residency is a fundamental eligibility

       requirement to hold the office.


[22]   Unlike the trial court, we do not think that a contrary result is mandated by

       White. In that case, the challenged candidate, Charlie White, ran for and was

       eventually elected to the office of Indiana Secretary of State as a member of the

       Indiana Republican Party. After White was elected to this office, the chairman

       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019          Page 20 of 27
       of the Indiana Democratic Party filed a petition with the Indiana Recount

       Commission, seeking to contest the results of White’s election, alleging that

       White was not qualified to assume the office of Secretary of State because he

       was not registered to vote at the address where he resided as of July 15, 2010—

       the deadline for the Republican Party to file its certificate of nomination—in

       accordance with the applicable statute. The Recount Commission determined

       that White was eligible, but the trial court reversed and ordered the

       Commission to declare White’s opponent as the Secretary of State. The

       Commission and White appealed, and our supreme court granted transfer of

       jurisdiction to that court.


[23]   The White court noted that the Democratic Party could not have brought its

       claim in the period after the May 2010 primary election because several months

       remained before the expiration of the period for White to comply with the

       statutory residency requirement. 963 N.E.2d at 487. The question before the

       court was therefore whether the challenge to White’s eligibility was permissible

       under the post-election challenge statute or whether it was untimely because it

       could have been brought earlier under the pre-election challenge statutes. Id.


[24]   The White court held that the language of the statutes at issue spoke in the

       present tense, which suggested that a claim to the eligibility of a candidate must

       be “analyzed at the time that the [challenge] is brought.” Id. at 488 (citing Ind.

       Code § 3-12-11-3(b)(4)(A) (permitting a post-election challenge to a winning

       candidate if the winner “does not comply with a specific constitutional or

       statutory requirement set forth in the petition that is applicable to a candidate

       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019      Page 21 of 27
       for the office.”). The Democratic Party sought to read the statute as permitting

       a challenge when the challenged candidate “did not” comply. Id. The White

       court noted, however, that unlike other sections regarding a challenge to a

       candidate’s eligibility, this subsection “was not written to encompass a past-

       tense violation—only a current and ongoing one.” Id. (citing Ind. Code §§ 3-12-

       11-3(b)(4)(B) (“A mistake was made”), -3(b)(4)(C) (“A mistake occurred”), -

       3(b)(4)(D) (“An electronic voting system malfunctioned”), -3(b)(4)(E) (“A

       deliberate act or series of actions occurred”)). Id. at 488–89.


[25]   The statutory eligibility requirement at issue in White was concerned with the

       current status of the candidate, providing that “‘[a] person is not qualified to run

       ... unless the person is registered to vote in the election district the person seeks to

       represent.’” Id. at 489 (quoting Ind. Code § 3-8-1-1(b)). This contrasted with

       other disqualifying provisions aimed at past conduct. Id. (citing Ind. Code § 3-8-

       1-5(c)(1) (disqualification if “the person gave or offered a bribe, threat, or

       reward to procure the person’s election”), -5(c)(3) (disqualification for felony

       convictions), -5(c)(4) (disqualification if “the person has been removed” from

       office)).


[26]   Accordingly, the White court held that, “when the challenge was filed post-

       election[,] White was correctly registered at his place of residence—[his]

       condo—in the election district he sought to represent—i.e., the State of

       Indiana.” Id. (emphasis in original). The court further observed that the statutes

       governing pre-election filings provide for an express procedure through which a

       voter may challenge the validity of those filings within the time limits for pre-
       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019          Page 22 of 27
       election challenges. Id. (citing Ind. Code § 3-8-1-2 (2005)). None of White’s

       filings were confidential or sealed, and the discrepancy at issue was discovered

       by a private citizen. Id. The court therefore concluded that “the exercise of

       more due diligence by the Democratic Party might have made a pre-election

       challenge possible.” Id.


[27]   The White court noted that its holding placed a burden on political campaigns

       to investigate and vet opponents before the pre-election challenge time limits

       expire, but concluded that this was “better than the alternative: that a challenger

       might ignore a known (or knowable) disqualification challenge before the

       election, wait to see who won at the polls, and then seek to set aside the results

       of the democratic process. Such a result is inconsistent with free elections and

       respect for voters’ expressed preferences.” Id. Because the allegations regarding

       White’s qualifications arose before the election and were made public, the court

       concluded that it was “likely that the average voter was aware that there were

       concerns about White’s voter registration history at the time of the election, but

       we will not, on the basis of the present petition, judicially disenfranchise voters

       who went to the polls aware of what were at that moment only allegations.” Id.

       at 490.


[28]   In support of its holding, the White court relied on Burke v. Bennett, 907 N.E.2d

       529 (Ind. 2009). That case involved a post-election challenge alleging that the

       winning candidate for the office of mayor of Terre Haute, Indiana could not

       assume the office because his prior job was connected with activities financed in

       part by the federal government, which is forbidden under the federal “Little

       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019       Page 23 of 27
       Hatch Act,” and also acts as a disqualification under the Indiana election

       statutes. Id. at 530–31 (citing 5 U.S.C. § 1502; Ind. Code § 3-8-1-5(c)(6)). At the

       time the winning candidate assumed office, however, he was no longer

       employed in his prior position. Id. at 532. The trial court rejected the challenge,

       and on transfer to our supreme court, the court affirmed. Id. at 533.


[29]   The Burke court held that a disqualification challenge for a Little Hatch Act

       violation could properly be brought before or after the election—but “[t]he

       point in time at which the statute’s disqualifiers are to be assessed depends upon

       whether the challenger is using the statute to prevent another person from being

       a candidate or from assuming office.” Id. at 532. Regardless of whether there

       was a pre-election challenge or a post-election challenge, the language of the

       disqualification provisions at issue in Burke “focuse[d] on current or prospective

       status as the basis for disqualification,” whereas “several of the statute’s other

       provisions clearly refer[red] to a person’s past conduct as grounds for

       disqualification.” Id. Thus, the winner’s change in employment after assuming

       office was dispositive. Id.


[30]   The Burke court viewed the question not as “whether a successful candidate was

       subject to the [Little Hatch] Act or had been in violation of it when the candidate

       became or remained a candidate, but “whether the election winner is subject to

       the Act and whether he would violate it by becoming or remaining a candidate.”

       Id. (emphasis in original). Because this question necessarily required proof that

       a person “would, in the future, violate the Act by becoming or remaining a

       candidate,” the Burke court held that “this disqualifier is inapplicable to
       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019       Page 24 of 27
       establish ineligibility in a post-campaign election contest” because from the

       time the challenge was filed until the date of assumption of office, the defendant

       was no longer a candidate. Id. From the undisputed facts of that case, it was

       simply impossible to find that the winner “is subject to” and “would violate” the

       Little Hatch Act by “becoming or remaining” a candidate. Id. (emphasis in

       original). The Burke court acknowledged that its holding would restrain

       application of the Little Hatch Act in post-election contests, but not in pre-

       election challenges. Id.


[31]   The trial court here, citing White, concluded that because Curlin’s ineligibility

       was discoverable prior to the election, a post-election challenge was untimely.

       Although there is language in White supporting this conclusion, and we

       understand why the trial court relied thereon, we believe that the facts of White,

       and the facts of Burke on which the White court relied, are distinguishable from

       the facts of the present case.


[32]   As set forth above, in both White and Burke, the disqualifications at issue had

       ceased to exist by the time the winning candidate had been elected and assumed

       office. Curlin, in contrast, was and continues to be ineligible for the office she

       now holds. We do not read White or Burke as prohibiting a post-election

       challenge to the continued ineligibility of a candidate simply because the

       ineligibility could have been discovered prior to the election.


[33]   Certainly, it would have been preferable if Curlin had realized her ineligibility

       by looking at what are rather straight-forward descriptions and maps showing


       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019         Page 25 of 27
       that Curlin clearly did not and does not live in District 2. Had Curlin not made

       such a fundamental mistake, we would not be faced with the current

       controversy. Of course, as noted by the trial court, the same is true of Kite, who

       could have easily looked at Curlin’s address in her publicly available election

       filings, compared this with the relatively clear district map, and discovered that

       Curlin was ineligible. Had he done so, he could have made a pre-election

       challenge to Curlin’s candidacy. Indeed, neither party, both of whom are

       attorneys, did what they should have done.


[34]   But despite our strong disinclination to overturn the results of an election after

       the fact, Curlin, unlike the candidates in White and Burke, remains statutorily

       ineligible for the seat that she currently holds. To hold that Kite cannot now

       challenge Curlin’s current eligibility would be to effectively read the post-

       election challenge statutes out of the Indiana Code. We do not believe this was

       the intent of our supreme court in White or Burke, where the disqualifications

       were not continuing.


                                                  Conclusion
[35]   It is undisputed that Curlin does not reside in District 2. Nevertheless, Curlin

       ran for, and was elected to a seat on the School Board representing District 2.

       Under the applicable statutes, she is ineligible to hold the seat she currently

       holds. This ineligibility, although discoverable prior to the election, was not

       discovered until after the election. Although Indiana law disfavors post-election

       removal of candidates who were chosen by the voters, we are unable to

       overlook the fact that, unlike the candidates in Burke and White, Curlin remains
       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019       Page 26 of 27
       ineligible for the seat she holds. Accordingly, we reverse the trial court’s

       judgment and remand for proceedings consistent with this opinion.


[36]   Reversed and remanded.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-MI-51 | December 30, 2019       Page 27 of 27
