                                                                                 FILED
                                                                           Mar 05 2020, 8:48 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
      Bryan H. Babb                                              Bryce Douglass Owens
      Stephen C. Unger                                           Pendleton, Indiana
      Jonathan W. Hughes
      Philip R. Zimmerly
      Bose McKinney & Evans LLP
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Madison County Board of                                    March 5, 2020
      Commissioners, Madison                                     Court of Appeals Case No.
      County Clerk, Madison County                               20A-PL-51
      Auditor, and Madison County                                Appeal from the Madison Circuit
      Election Board,                                            Court
      Appellants-Defendants,                                     The Honorable Thomas L. Clem,
                                                                 Judge
              v.                                                 Trial Court Cause No.
                                                                 48C05-1912-PL-167
      Kevin M. Sipe and
      Wesley T. Likens,
      Appellees-Plaintiffs.



      Mathias, Judge.


[1]   The Madison Circuit Court granted the request for a preliminary injunction

      filed by Kevin M. Sipe (“Sipe”) and Wesley T. Likens (“Likens”) (collectively


      Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                               Page 1 of 25
      “the Plaintiffs”) in which they sought to enjoin the enforcement of a

      redistricting ordinance enacted by the Madison County Board of

      Commissioners (“the Commissioners”) before the upcoming 2020 elections.

      The Commissioners appeal and present four issues for our review, one of which

      we find dispositive and restate as whether the trial court erred in concluding

      that the redistricting ordinance was contrary to the controlling redistricting

      statute. Concluding that the ordinance is in compliance with the statute, we

      reverse and remand.


                                        County Commissioners
[2]   As this case involves questions regarding the boundaries of districts for the

      office of county commissioner, we first provide a brief summary of the structure

      and function of the board of county commissioners as defined by statute.


[3]   Except in Marion County,1 “[t]he three (3) member board of commissioners of

      a county elected under this chapter is the county executive,” and shall transact

      the business of the county. Ind. Code § 36-2-2-2. The county commissioners are

      elected by the voters of the county for terms of four years, “alternat[ing]

      between one (1) and two (2) at succeeding general elections.” Ind. Code § 36-2-

      2-3. To be eligible for election to a county’s board of commissioners, a person

      must have resided in the county for at least one year before the election; have

      resided in the district in which he or she is seeking election for at least six



      1
        See Ind. Code § 36-2-2-1 (providing that the Indiana Code chapter 36-2-2, defining the county executive as
      the board of county commissioners, does not apply to a consolidated city).

      Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                                  Page 2 of 25
      months before the election; and remain residing in the district from which the

      member was elected. Ind. Code § 36-2-2-5 (referencing Ind. Code § 3-8-1-21). If

      the member does not remain a resident of the county and district after taking

      office, he or she forfeits the office. Id. at § 5(c). In a county having a population

      of more than 400,000 but less than 700,000, or more than 250,000 but less than

      270,000,2 “one (1) member of the executive shall be elected by the voters of

      each of the three (3) single-member districts established under section 4(b) or

      4(c) of this chapter.” Id. at § 5(d). In all other counties, including Madison

      County, “all three (3) members of the executive shall be elected by the voters of

      the whole county.” Id.


[4]   One of the statutory duties of a board of county commissioners is to

      periodically establish the boundaries for the office of county commissioner. Ind.

      Code § 36-2-2-4. For counties such as Madison County, the commissioners

      must divide the county into three districts that are “composed of contiguous

      territory and are reasonably compact.” Id. at § 4(a). The district boundaries

      drawn must not cross precinct boundaries and “must divide townships only

      when a division is clearly necessary to accomplish redistricting under this

      section.” Id. When the board of county commissioners divides a county into




      2
       According to the 2010 census, only Lake County has a population of more than 400,000 but less than
      700,000, and only St. Joseph County has a population of more than 250,000 but less than 270,000. Indiana:
      2010, Population and Housing Unit Counts, Table 4, p. 6 (Sept. 2012), available at:
      https://www.census.gov/prod/cen2010/cph-2-16.pdf [https://perma.cc/3LML-DWZP].

      Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                                Page 3 of 25
      districts under this statute, they “shall adopt an ordinance” reflecting this

      division, which ordinance must be filed with the circuit court clerk. Id.


                                                Statement of Facts
[5]   Prior to the enactment of the ordinance at issue, Madison County was divided

      into three districts for the purpose of electing county commissioners. According

      to the 2010 census: the Northern District population was 24,353; the Middle

      District (including Anderson Township) population was 77,288; and the

      Southern District population was 29,995. Tr. p. 36. Each district was

      represented by one commissioner, and the commissioners are elected by the

      voters of the county at large. The disparity in population between the districts

      resulted in a “maximum population deviation”3 of 120.64%. Under the old

      districting scheme, no Madison County township was divided between different

      districts.




      3
          The maximum population deviated is calculated as follows:

                 [F]irst, the apportionment base, usually the state’s population, is divided by the number
                 of legislators in the legislative house under consideration to arrive at the norm if absolute
                 population equality were achieved. Second, if a district has more persons than the ideal
                 district, the ideal district population is subtracted from the actual district population; the
                 resulting number is then divided by the ideal district population to get the percentage of
                 under-representation. Third, if a district has fewer persons than the ideal district, its
                 population is subtracted from the population of the ideal district; the resulting number is
                 then divided by the ideal district population to get the percentage of over-representation.
                 Finally, when the percentages of under-representation or over-representation have been
                 calculated for all districts (or all legislators in multimember districts), the district that is
                 most over-represented is identified and the district that is most under-represented is
                 identified; these two percentages are then added together to obtain the maximum
                 population deviation.
      25 Am. Jur. 2d Elections § 25. Applying this formula gives a maximum population deviation of 120.639%
      under the districting scheme in effect prior to the Redistricting Ordinance.

      Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                                           Page 4 of 25
[6]   Because of the disparity in the population of the districts, the Commissioners

      proposed redistricting at a public meeting on July 22, 2019. At this meeting, the

      Commissioners unanimously voted that the President of the Board of

      Commissioners work with the county attorney to prepare a redistricting plan.

      The motion also recommended that the redrawn districts divide Anderson

      Township.


[7]   The redistricting plan was on the agenda at four other public meetings of the

      Commission: August 12, September 12, September 23, and October 14, 2019.

      Ex. Vol., Defendant’s Exs. B, K, L, and M. At these meetings, the

      Commissioners discussed the redistricting plan.


[8]   At the October 14 meeting, the commissioners adopted Ordinance No. 2019-

      BC-0-9 (“the Redistricting Ordinance”), which provides:


              WHEREAS, Madison County, Indiana (“County”) is divided
              into three (3) districts for the purpose of selecting members of the
              Board of County Commissioners (“Commissioner District(s)”);
              and

              WHEREAS, according to the 2010 federal decennial census
              completed by the U.S. Census Bureau, the current Commissioner
              Districts are not established in a manner that contains roughly
              equal population; and

              WHEREAS, the Board of County Commissioners for Madison
              County, Indiana (“Commissioners”) now desire to amend and
              redistrict the Commissioner Districts in a manner that will contain
              roughly equal population; and

              WHEREAS, the Commissioners desire that each Commissioner
              District contain roughly equal population so that the area [of] each
      Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                Page 5 of 25
        Commission District represents a roughly equal number of people and so
        that each person in Madison County has a roughly equal opportunity to
        seek the officer of Commissioner; and

        WHEREAS, the Commissioner Districts established by this
        Ordinance shall take effect immediately as set forth in this
        Ordinance.

        NOW THEREFORE BE IT ORDAINED by the Board of
        Commissioners of Madison County, Indiana, as follows:

        Section 1: The above recitals are incorporated herein by this
        reference as though fully set forth herein below.

        Section 2: The three (3) Commissioner Districts for Madison
        County, Indiana are hereby amended, and the Commissioner
        Districts are hereby restated and established, as set forth in the
        description of the boundaries of each district attached hereto as
        Exhibit A,[4] which description is incorporated herein by
        reference (“Description”).

        Section 3: Attached to this Ordinance as Exhibit B is a map
        showing the boundaries of each district (collectively the “Map”).

        Section 4: In the unlikely event of a conflict between the
        Description and the Map, the Description shall control.

        Section 5: This Ordinance and the new Commissioner Districts
        established hereunder take effect immediately upon the adoption
        of this Ordinance as follows: Current Commissioners shall
        continue to hold office until the term for which the Commission
        member was elected has expired under state law, the new
        Commissioner Districts established under this Ordinance shall
        constitute a current member’s Commissioner District for
        purposes of determining the district from which he/she was


4
 Exhibit A of the Redistricting Ordinance defines the new commissioner districts by listing what townships
and precincts are included in each district. See id. at 18.

Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                                 Page 6 of 25
        elected and/or whether a member continues to be a resident of
        his/her Commissioner District, and the current Commissioner
        represents the Commissioner District established under this
        Ordinance in which the member’s legal residence is located.

        Section 6: The County Administrator and/or the County
        Attorney shall forward a signed copy of this Ordinance to the
        Madison County Circuit Court Clerk, along with a copy of
        Exhibit A and Exhibit B not later than thirty (30) days after its
        adoption.

        Section 7: Consistent with Indiana Code § 36-1-6-10 any
        reference in this Ordinance “to the boundary of a political
        subdivision, a precinct boundary, or an election district boundary
        refers to the precinct or boundary as the precinct or boundary
        existed on the date of adoption” of this Ordinance. Additionally,
        consistent with Indiana Code § 36-1-6-10, “[a] change in the
        boundary of a political subdivision, precinct, or election district
        following the date of adoption” of this Ordinance “does not alter
        the boundaries of the election districts established by” this
        Ordinance.

        Section 8: Commissioners shall continue to be elected by an “at-
        large” vote of the general population of Madison County,
        Indiana, but the Commissioner elected for any particular
        Commissioner District must reside within that Commissioner
        District.

        Section 9: This Ordinance, with its attachment, shall be put on
        file with the County Auditor for public inspection.

        Section 10: All prior ordinances or parts thereof in conflict with
        this Ordinance are hereby repealed and superseded to the extent
        in conflict herewith.


Appellant’s App. pp. 14–15 (emphasis added).



Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020              Page 7 of 25
[9]   The map attached as Exhibit B to the Redistricting Ordinance depicts the

      districts as follows:




      Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020       Page 8 of 25
       Id. at 20; Motion to Stay Exhibit C.


[10]   Thus, the Redistricting Ordinance divides Anderson Township and includes

       portions thereof in all three of the new districts. The populations of the new

       districts are: 44,264 in District 1; 44,008 in District 2; and 43,364 in District 3.

       The total population deviation under the Redistricting Ordinance is now 2.05%.

       Tr. pp. 36–37.


                                            Procedural History
[11]   The Plaintiffs testified that they decided to challenge the Redistricting

       Ordinance immediately after it was adopted in October 2019. But they did not

       file any legal challenge to the Ordinance until December 30, 2019, a mere six

       days prior to the opening of the filing period for candidates in the 2020 primary

       election. On this date, the Plaintiffs filed a complaint for declaratory judgment,

       preliminary injunction, and permanent injunction. In their complaint, the

       Plaintiffs claimed that the Redistricting Ordinance failed to comply with the

       redistricting statute. Specifically, the complaint alleged that:


               12. The Ordinance divides Anderson Township into three (3)
               different districts with no showing or finding of “necessity”.

               13. The Ordinance fails by procedure in that no special meeting
               was ever called by the County Auditor to determine any
               “necessity”.


       Appellant’s App. pp. 11. The complaint further alleged that both Plaintiffs were

       “personally affected” by the changes to the districts. Id.


       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020             Page 9 of 25
[12]   On December 31, 2019, the day after the complaint was filed and before the

       summonses were issued or served upon the Commissioners, the trial court set

       the complaint for an “emergency hearing” to be held on January 6, 2020. The

       Commissioners were served on January 2, 2020, and immediately filed a

       motion for change of venue. See Ind. Trial Rule 76(A) (providing that a motion

       for change of venue shall be granted if “the county where suit is pending is a

       party[.]”). The Commissioners also moved to vacate the scheduled January 6

       hearing. The trial court denied the motion to vacate and did not immediately

       rule on the motion for change of venue.


[13]   Instead, the trial court held the January 6 hearing over the Commissioners’

       objection, on the merits of the Plaintiffs’ request for a preliminary injunction.

       At the hearing, the Commissioners informed the trial court that they were

       willing to perfect venue in another county in a speedy manner before the

       deadline for candidates to file closed in February. They also argued that, if

       preliminary relief should be granted, it should be granted only to extend the

       candidate filing deadline until the case could be transferred to another venue.

       The trial court denied this request, noting that even though it intended to grant

       the motion for change of venue, it would nevertheless consider the merits of the

       preliminary injunction request because the period for candidates to file would

       begin in two days.


[14]   The Plaintiffs called two witnesses, who established that the Redistricting

       Ordinance split Anderson Township and that the Commissioners, not the

       County Auditor, called the special meeting that took place on September 12,

       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020           Page 10 of 25
       2019. The Commissioners presented evidence regarding the population of the

       districts under the old scheme and under the new Redistricting Ordinance. The

       Commissioners also submitted evidence that several other Indiana counties had

       commissioner districts that split townships, including: Allen, Bartholomew,

       Delaware, Hendricks, Monroe, Montgomery, Tippecanoe, St. Joseph, and

       Vanderburgh. The trial court disregarded this evidence, stating “this whole

       thing of using other counties and what they did as an excuse to justify what we

       did here, that just – that doesn’t – there’s just nothin[g] that seems right about

       that, it just seems wrong.” Tr. p. 47.


[15]   After the Commissioners rested, the trial court permitted the Plaintiffs to re-

       open their case to present the testimony of the two Plaintiffs. Likens testified

       that he was a voter who had not been asked his opinion regarding the

       redistricting plan. The trial court asked Likens, “other than just your

       generalized objection about what’s happened[,] [i]s there anything about this

       process that – in any way – affects you particularly?” Tr. p. 55. Likens

       responded, “there was talk of maybe – maybe my wife running in that district

       for Commissioner[.]” Id. at 56. The trial court then asked, “so, but your – your

       particular concern is that you might otherwise want to run, in the District as it

       prior existed [sic], but this would keep you from doing that?” Id. at 57. Likens

       agreed but on cross-examination clarified that he had no intention of running

       for the office of commissioner, and that his wife, who was not a plaintiff, might

       run. Surprisingly, Likens did not know which district he lived in under either

       plan.


       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020            Page 11 of 25
[16]   Sipe testified that, under the Redistricting Ordinance, District 3 was

       geographically larger than the old North District and that it included “people

       that do not really know me . . . like the previous North District people would

       know me.” Id. at 67. He also stated that he did not know whether he would run

       for the office of Commissioner and had plenty of time to decide before the filing

       period ended in February.


[17]   On January 7, 2020, the trial court entered an order granting the Plaintiffs’

       request for a preliminary injunction. The trial court’s order provides in relevant

       part:


               8. The Ordinance purports to make certain changes to the
                  boundaries of three (3) districts required by state law for the
                  Madison County Commissioners.

               9. The Ordinance No. 2019-BC-0-9 changes the district
                  boundaries for the Madison County Indiana Commissioner
                  districts in a dramatic way. The old boundaries that existed
                  for decades guaranteed that urban and rural citizens had a
                  voice in county government. Under the newly proposed
                  Ordinance No. 2019-BC-0-9 there could conceivably be three
                  (3) commissioners chosen from downtown Anderson Indiana,
                  thereby completely eliminating the voice of rural Madison
                  County citizens in the executive branch of local government.

               10. Such a dramatic and consequential change demands closer
                   scrutiny.

               11. Indiana Code 36-2-2-4 is the controlling statute and places the
                   authority and responsibility of the Madison County
                   Commissioners to set such boundaries in compliance with
                   such statute. The Madison County Commissioners have no


       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020              Page 12 of 25
             authority to set any boundary except as complies with such
             state statute.

       12. Indiana Code 36-2-2-4 contains four (4) critical elements that
           must be complied with[.] Each of the three (3) districts must
           consist of “contiguous territory” that is “reasonably compact”
           and the district lines may not cross “precinct boundary lines”
           and must divide townships only, “when a division is clearly
           necessary to accomplish redistricting under this section”. The
           statute goes on the state that, “If necessary, the county auditor
           shall call a special meeting of the executive to establish or
           revise districts”.

       13. The Ordinance fails to comply with Indiana Law both on its
           face and by procedure.

       14. The Ordinance divides Anderson Township into three (3) different
           districts with no showing or finding of “necessity”.

       15. The Ordinance fails by procedure in that no special meeting was ever
           called by the County Auditor to determine any “necessity”.

       16. Kevin M. Sipe has standing as [a] registered Democrat who is
           personally affected by the purported changes to his district
           boundary lines.

       17. Wesley T. Likens has standing as a registered Republican
           who is personally affected by the purported changes to his
           district boundary lines.

       18. A Declaratory Judgment is appropriate since the issues is not
           subject to monetary relief. This Court has authority to hear
           this action under Indiana Code 34-14-1-1.

       19. A preliminary injunction is appropriate since if the political
           process is allowed to move forward using the illegal ordinance
           there would be no practical way to correct the error.




Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020               Page 13 of 25
       20. 2020 is an election year [] in which two Madison County
           Commissioners are up for election and both are subject to
           changes in the boundaries of the districts.

       21. The Plaintiffs’ likelihood of success on the merits is high since
           the Ordinance is defective on its face.

       22. Each Defendant is being sued in their official capacity only.

       23. The Madison County Election Board is made a defendant for
           the purposes of requiring that their actions comply with this
           case.

       24. Rick Gardner has at all relevant times been the Auditor of
           Madison County.

        The Court has reviewed the Complaint, the Statute and The Ordinance
        and based on that review finds that a Preliminary Injunction is necessary
        and appropriate since it appears that The Ordinance fails to comply with
        Indiana Law and since the 2020 election cycle is upon us and there will
        be irreparable harm to the citizens of Madison County Indiana if the
        Ordinance is used to determine the Madison County Commissioner
        District improperly. The harm to the citizens of Madison County in
        using the previous boundaries pending the resolution of the issues
        in the case is minimal. The Plaintiffs’ probability in prevailing is
        high.

        IT IS THEREFOR ORDERED THAT:

       1) A Preliminary Injunction is now issued which prohibits Olivia
          Pratt, as Madison County Clerk, and the Madison County
          Election Board, and the Madison County Commissioners and
          the Madison County Auditor from using any part of
          Ordinance No. 2019-BC-0-9, for any purpose pending the
          resolution of this case.

       2) Olivia Pratt, as Madison County Clerk, and the Madison
          County Election Board, and the Madison County
          Commissioners and the Madison County Auditor shall use

Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020               Page 14 of 25
                    the previously determined boundaries for the districts for the
                    Madison County Commissioner’s election as was used in the
                    2018 election cycle, pending final resolution of the case
                    herein.

              3) The Preliminary Injunction herein shall remain in full force
                 pending resolution of the case by the court accepting the case
                 on transfer of venue.


       Appellant’s App. pp 52–54 (emphases added). The day that the trial court

       issued its order, the Commissioners filed a Notice of Appeal and filed in the

       trial court a motion to stay the preliminary injunction pending the appeal. The

       trial court denied the motion to stay.


[18]   On January 9, 2020, the Commissioners filed in this court a verified motion for

       emergency stay of injunctive relief pending appeal and a request for expedited

       briefing. We granted this motion on January 17, 2020, staying the trial court’s

       order and scheduling expedited briefing.5


                                           Standard of Review
[19]   We summarized the law of preliminary injunctions in Clay Township of Hamilton

       County ex rel. Hagan v. Clay Township Regional Waste District:


               The grant or denial of a preliminary injunction is within the
               sound discretion of the trial court, and the scope of appellate
               review is limited to deciding whether there has been a clear abuse
               of discretion. When determining whether or not to grant a
               preliminary injunction, the trial court is required to make special

       5
        On January 20, 2020, the case was transferred to Hamilton Superior Court 1 under Cause No. 29D01-2002-
       PL-1088.

       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                           Page 15 of 25
               findings of fact and state its conclusions thereon. When findings
               and conclusions are made, the reviewing court must determine if
               the trial court’s findings support the judgment. The trial court’s
               judgment will be reversed only when clearly erroneous. Findings
               of fact are clearly erroneous when the record lacks evidence or
               reasonable inferences from the evidence to support them. A
               judgment is clearly erroneous when a review of the record leaves
               us with a firm conviction that a mistake has been made. We
               consider the evidence only in the light most favorable to the
               judgment and construe findings together liberally in favor of the
               judgment.

               The power to issue a preliminary injunction should be used
               sparingly, and such relief should not be granted except in rare
               instances in which the law and facts are clearly within the
               moving party’s favor. To obtain a preliminary injunction, the
               moving party has the burden of showing by a preponderance of
               the evidence that: 1) its remedies at law are inadequate, thus
               causing irreparable harm pending resolution of the substantive
               action; 2) it has at least a reasonable likelihood of success at trial
               by establishing a prima facie case; 3) its threatened injury
               outweighs the potential harm resulting from the granting of an
               injunction; and 4) the public interest would not be disserved.

               [W]hile we defer substantially to the trial court’s findings of fact,
               we evaluate questions of law de novo.


       838 N.E.2d 1054, 1062 (Ind. Ct. App. 2005) (citations and internal quotation

       marks omitted).


[20]   Resolution of the question presented also requires us to consider the language

       of Indiana Code section 36-2-2-4.


               The first step in interpreting any Indiana statute is to determine
               whether the legislature has spoken clearly and unambiguously on

       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020              Page 16 of 25
               the point in question. If a statute is unambiguous, we must give
               the statute its clear and plain meaning. A statute is unambiguous
               if it is not susceptible to more than one interpretation. However,
               if a statute is susceptible to multiple interpretations, we must try
               to ascertain the legislature’s intent and interpret the statute so as
               to effectuate that intent. We presume the legislature intended
               logical application of the language used in the statute, so as to
               avoid unjust or absurd results.


       Gray v. D & G, Inc., 938 N.E.2d 256, 258–59 (Ind. Ct. App. 2010) (quoting Nieto

       v. Kezy, 846 N.E.2d 327, 335 (Ind. Ct. App. 2006)).


[21]   The primary goal in statutory construction is to ascertain and give effect to the

       intent of the legislature. Id. at 259. (citing Hannis v. Deuth, 816 N.E.2d 872, 876

       (Ind. Ct. App. 2004)). The best evidence of legislative intent is the language of

       the statute itself, and we must give all words their plain and ordinary meaning

       unless otherwise indicated by statute. Id. We presume that the legislature

       intended its language to be applied in a logical manner consistent with the

       statute’s underlying policies and goals. Id. Moreover, in construing a statutory

       provision, we will assume that the legislature did not enact a useless provision.

       Id. Therefore, when possible, every word is to be given effect and no part of the

       statute is to be construed as meaningless if it can be reconciled with the rest of

       the statute. Id.


                                       Discussion and Decision
[22]   The Plaintiffs’ request for a preliminary injunction was based on two alleged

       failings of the Redistricting Ordinance: (1) that “the Ordinance divides


       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020            Page 17 of 25
       Anderson Township into three (3) districts with no showing or finding of

       “necessity”; and (2) that “the Ordinance fails by procedure in that no special

       meeting was ever called by the County Auditor to determine any “necessity.”

       Appellant’s App. p. 11. The Commissioners argue that the Redistricting

       Ordinance was a valid exercise of their authority that complied with the

       redistricting statute and that the trial court erred in concluding otherwise.


[23]   Indiana Code section 36-2-2-4 (“Section 4”), which is at the heart of this

       controversy, provides in relevant part:


                (a) This subsection does not apply to a county having a
                population of:

                    (1) more than four hundred thousand (400,000) but less than
                    seven hundred thousand (700,000); or

                    (2) more than two hundred fifty thousand (250,000) but less
                    than two hundred seventy thousand (270,000).[6]

                The executive shall divide the county into three (3) districts that
                are composed of contiguous territory and are reasonably
                compact. The district boundaries drawn by the executive must
                not cross precinct boundary lines and must divide townships only
                when a division is clearly necessary to accomplish redistricting under this
                section. If necessary, the county auditor shall call a special
                meeting of the executive to establish or revise districts.

                                                          ***




       6
        Neither party disputes that Madison County does not have a population of more than 400,000 but less than
       700,000 nor more than 250,000 but less than 270,000. As of the 2010 census, Madison County had a
       population of 131,636. Indiana: 2010, Population and Housing Unit Counts, Table 4, p. 6 (Sept. 2012), available
       at: https://www.census.gov/prod/cen2010/cph-2-16.pdf [https://perma.cc/3LML-DWZP].

       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                                   Page 18 of 25
        (e) Except as provided by subsection (g), a division under
        subsection (a), (b), or (c) shall be made:

             (1) during the first year after a year in which a federal
             decennial census is conducted; and

             (2) when the county adopts an order declaring a county
             boundary to be changed under IC 36-2-1-2.

        (f) A division under subsection (a), (b), or (c) may be made in any
        odd-numbered year not described in subsection (e).

        (g) This subsection applies during the first year after a year in
        which a federal decennial census is conducted. If the county
        executive or county redistricting commission determines that a
        division under subsection (e) is not required, the county executive
        or county redistricting commission shall adopt an ordinance
        recertifying that the districts as drawn comply with this section.

        (h) Each time there is a division under subsection (e) or (f) or a
        recertification under subsection (g), the county executive or
        county redistricting commission shall file with the circuit court
        clerk of the county, not later than thirty (30) days after the
        division or recertification occurs, a map of the district
        boundaries:

             (1) adopted under subsection (e) or (f); or

             (2) recertified under subsection (g).

        (i) The limitations set forth in this section are part of the ordinance, but
        do not have to be specifically set forth in the ordinance. The ordinance
        must be construed, if possible, to comply with this chapter. If a
        provision of the ordinance or an application of the ordinance
        violates this chapter, the invalidity does not affect the other
        provisions or applications of the ordinance that can be given
        effect without the invalid provision or application. The
        provisions of the ordinance are severable.

Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                        Page 19 of 25
                                                        ***


       Ind. Code § 36-2-2-4 (emphases added).


                             I. Special Meeting Called by the County Auditor

[24]   We first address the trial court’s conclusion that the Redistricting Ordinance is

       invalid because the County Auditor did not call for a special meeting to

       determine any necessity for redistricting. This misreads Section 4. The last

       sentence in Subsection 4(a) states that, “if necessary,” the County Auditor

       “shall call a special meeting of [the Commissioners] to establish or revise

       districts.” A plain reading of this provision reveals that a special meeting called

       by the County Auditor is not a prerequisite to redistricting. Instead, Section 4

       sets forth three circumstances under which redistricting must or may take place:

       (1) the year after a decennial census, (2) any odd-numbered year, and (3) when

       the county auditor deems it necessary. We do not read Section 4 to mean that

       the Commissioners cannot redistrict in an odd-numbered year without a special

       meeting called by the County Auditor. If the General Assembly intended to

       impose such a restriction, it could have done so explicitly, but it did not.

       Accordingly, the trial court clearly erred in concluding that the Redistricting

       Ordinance was procedurally defective because the County Auditor did not call

       for a special meeting.


                               II. Necessity of Dividing Anderson Township

[25]   The trial court also concluded that the Redistricting Ordinance was invalid

       because it divided Anderson Township among districts without a finding that

       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020           Page 20 of 25
       such division was “clearly necessary” as required by Subsection 4(a). To the

       extent that the trial court concluded that the Redistricting Ordinance was

       facially invalid because it failed to specifically declare such a necessity, this was

       clearly erroneous. Although Section 4 states that the Commissioners may

       divide a township only if it is clearly necessary to accomplish the redistricting,

       the statute does not require the redistricting ordinance to include language

       declaring such a necessity. To the contrary, Subsection 4(i) provides that the

       limitations set forth in Section 4 are “part of the [redistricting] ordinance” by

       operation of statute and “do not have to be specifically set forth in the

       ordinance.” It further provides that a redistricting ordinance “must be

       construed, if possible, to comply with this chapter.” Id. We therefore conclude

       that the trial court clearly erred in finding that the Redistricting Ordinance was

       facially invalid because it did not include language specifically declaring that

       dividing Anderson Township was “clearly necessary.”


[26]   Moreover, we disagree with the trial court that there was no evidence

       supporting a finding that dividing Anderson Township among districts was

       “clearly necessary.” As noted above, Section 4(a) provides that the district

       boundaries drawn by county commissioners “must not cross precinct boundary

       lines and must divide townships only when a division is clearly necessary to

       accomplish redistricting under this section.” Id. Thus, under a plain reading of

       this provision, Subsection 4(a) contains a complete ban on dividing precincts

       among districts, but there is no similar bar to dividing townships. Instead, district




       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020             Page 21 of 25
       boundary lines may divide townships if such a division is “clearly necessary” to

       accomplish the redistricting.


[27]   The essential question is whether dividing Anderson Township among the three

       districts was “clearly necessary” to accomplish the redistricting. We believe that

       the determination of whether dividing a township among districts is “clearly

       necessary” is a legislative judgment that should be given considerable deference

       by the judiciary. See State Election Bd. v. Bartolomei, 434 N.E.2d 74, 77 (Ind. Ct.

       App. 1982) (holding statute governing the drawing of councilmanic districts

       based on population, compactness, and a preference for including whole

       townships dealt with a “subject matter which is both multi-faceted and

       characterized by the juxtaposition of a variety of competing and arguable

       political views, warranting the court in granting the legislative judgment

       considerable deference.”) (citing Dortch v. Lugar, 255 Ind. 545, 266 N.E.2d 25

       (1971), abrogated on other grounds by Collins v. Day, 644 N.E.2d 72 (Ind. 1994)).

       Applying such deference, we conclude that the Commissioners were well

       within their discretion to determine that it was clearly necessary to divide

       Anderson Township among districts.


[28]   Indeed, the Commissioners had a compelling reason for dividing Anderson

       Township among the commissioner districts: to divide the population of

       Madison County into districts that are of roughly equal population. It is

       mathematically impossible to divide Madison County into districts of roughly

       equal population without dividing Anderson Township. Anderson Township,

       with a population of 56,436, is by far the largest township in Madison County.

       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020           Page 22 of 25
       If Anderson Township were not divided, i.e., if it consisted of one district, and

       the remaining townships were split among the other two districts, the lowest

       maximum population deviation among districts would be approximately 43%.

       Thus, to achieve their goal of a more equal population among the three

       districts, the Commissioners had to divide Anderson Township. This is more

       than sufficient to support a conclusion that dividing Anderson Township was

       “clearly necessary.”


[29]   Even though the Commissioners are elected at large by the voters of Madison

       County, each of the three Commissioners themselves come from one of the

       three districts. See Ind. Code § 36-2-2-5(b) (“A member of the executive [i.e., the

       board of county commissioners] must reside within . . . the district from which

       the member is elected.”). The Commissioners had a legitimate concern that

       permitting the districts to remain unbalanced could cause underrepresentation

       of commissioners from the old Middle District, with a population greater than

       the other two districts combined, and overrepresentation of commissioners

       from the two more sparsely populated districts.7


[30]   Indeed, Subsection 4(e) generally requires the Commissioners to redraw district

       boundaries the year after a decennial federal census. This signals a clear


       7
         The Commissioners note that, in cases involving single-member districts, the United States Supreme Court
       has held that an apportionment plan with a maximum population deviation under 10% is considered a
       “minor deviation,” but plans with deviations larger than 10% create a prima facie case of discrimination that
       must be justified by the state. See Brown v. Thompson, 462 U.S. 835, 842–43 (1983). The Plaintiffs argue that
       the Commissioners’ citation to the “ten percent rule” is “red herring” because the Commissioners are elected
       at large, see Ind. Code § 36-2-2-5(d), and there is therefore no concern of vote dilution. Because the
       Commissioners are elected at large, we need not consider any concerns about vote dilution or attempt to
       apply the “ten percent rule.”

       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                                 Page 23 of 25
       legislative intent to empower county commissioners to redraw the districts

       according to changes in population, as there would be no reason to require that

       district boundaries be redrawn after a census—at which time changes in

       population are determined—if the population of the districts were not intended

       to be balanced. As noted, the Commissioners clearly indicated in the

       Redistricting Ordinance that they divided Anderson Township to achieve a

       more balanced population in the districts.


[31]   Under these facts and circumstances, the Commissioners were well within their

       legislative discretion to determine that it was “clearly necessary” to redraw the

       district boundaries in such a manner as to divide Anderson Township among

       the districts in order that the districts be balanced in population. The

       Redistricting Ordinance does not violate any of the provisions of Section 4, and

       the Plaintiffs cannot prevail on the merits of their claim. Accordingly, the trial

       court erred in granting their request for a preliminary injunction. 8


                                                    Conclusion
[32]   The Madison County Board of County Commissioner’s Redistricting

       Ordinance does not run afoul of the redistricting statute. The Plaintiffs cannot

       prevail on the merits of their case, and the trial court erred in granting their

       request for a preliminary injunction. We therefore reverse the trial court’s entry



       8
         Because we conclude that the trial court erred by granting the preliminary injunction, we decline to address
       the Commissioners’ remaining arguments, i.e. that the Plaintiffs lacked standing, that the trial court was
       without authority to act due to the pending motion for change of venue, and that the trial court’s order was
       improper because it did not contain adequate findings of fact and conclusions of law.

       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020                                  Page 24 of 25
       of the preliminary injunction and remand for proceedings consistent with this

       opinion.


[33]   Reversed and remanded.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 20A-PL-51 | March 5, 2020      Page 25 of 25
