ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
WILLIAM W. GOODEN
Mount Vernon, Indiana
DONALD E. BAIER
Baier & Baier
Mount Vernon, Indiana
COURT OF APPEALS OF INDIANA
DONNA M. CURTIS,
DONNA K. BUTLER,
APPEAL FROM THE POSEY CIRCUIT COURT
The Honorable James M. Redwine, Judge
Cause No. 65C01-0611-MI-334
May 15, 2007
OPINION - FOR PUBLICATION
Appellant Donna M. Curtis (“Curtis”) appeals the Posey Circuit Court’s refusal to
overturn the Posey County Recount Commission’s (“the Commission”) certification of
Appellee Donna K. Butler (“Butler”) as the duly-elected Clerk of the Posey Circuit Court.
Curtis presents a single issue for review: whether the trial court erred in determining
that the Commission properly executed its statutory duty to determine voter intent when
examining absentee ballots during a recount.
Facts and Procedural History
Curtis and Butler submitted to the trial court a joint stipulation of the underlying facts,
That Donna Curtis (hereinafter Curtis) was the Republican candidate
and Donna Butler (hereinafter Butler) was the Democrat candidate for
Clerk of the Posey Circuit Court in the 2006 General Election in Posey
County, Indiana (hereinafter Election).
That prior to October 10, 2006, approximately two hundred (200)
voters were sent absentee ballots to vote in the Election.
That on or about October 10, 2006, it was discovered that the absentee
ballots sent out prior to that date were incorrect, in that the ballots
incorrectly listed the candidates for school board races in various
school board districts in Posey County, Indiana.
That the absentee ballots sent out prior to October 10, 2006, were not
incorrect in the listing of candidates for the office of the Clerk of the
Posey Circuit Court.
That on October 10, 2006, those voters receiving the incorrect absentee
ballots were sent a letter from the Posey County Clerk indicating that
their previous ballot, if already turned in, would become null & void
and the voter would need to recast the corrected ballot enclosed with
That there is hereto attached as “Exhibit A” a copy of said letter.
That ten (10) absentee voters who had been sent the incorrect ballot and
who were subsequently sent the letter of October 10, 2006, did not
return the second, corrected ballot.
That the letters sent to those ten (10) absentee voters were sent by
ordinary U.S. Mail and were addressed to the address indicated on the
absentee ballot application and to which the first, incorrect ballot was
That none of the letters of October 10, 2006, to those ten (10) absentee
voters, were returned to the sender.
That, at the request of the Posey County Election Board, the attorneys
for the Election Board contacted the attorney for the State Election
Board and were advised that the ten (10) absentee ballots should be
counted and they had no right to deny the ten (10) absentee voters the
right to vote in other races even though they were not able to vote in the
school board races.
That those ten (10) absentee ballots were subsequently considered, with
two (2) of said ballots being disqualified, one (1) because of the lack of
a signature and the other because the voter had actually returned the
That, of the eight (8) such absentee ballots that were actually counted,
Butler received six (6) votes and Curtis received two (2) votes.
That Butler was certified as the winner of the Election with a two (2)
vote margin and Curtis subsequently requested a recount.
That the recount was duly conducted, resulting in a certification that
Butler had won the election by a margin of three (3) votes.
That, during the recount, one of the commissioners, Mr. Kohlmeyer,
asked the trial judge if the recount commission had the authority to
exclude the eight (8) absentee ballots referred to above.
That, in response to the inquiry by Commissioner Kohlmeyer, the trial
judge advised the recount commission that they must count those eight
(8) ballots and determine the intent of the absentee voters from the
That the attorney for Curtis subsequently objected to the instruction of
the trial judge, which objection was made prior to the actual counting of
That the basis for the objection by the attorney for Curtis was that the
recount commission had the authority to determine voter intent and
that, if an absentee voter failed to return a second ballot after being
advised that his or her first ballot would become null & void, then this
would indicate that voter’s intent not to vote in the Election.
That the trial judge noted the objection but refused to alter his previous
instruction to the recount commission.
(App. 35-38.) On December 14, 2006, the Commission certified Butler the winner, by a
margin of three votes. The Commission indicated that no ballots were excluded due to an
inability to ascertain the intent of the voter.
On December 15, 2006, Curtis initiated an appeal of the Commission’s certification to
the Posey Circuit Court. On December 21, 2006, the trial court conducted a hearing and
upheld the Commission’s decision. This appeal ensued.
Discussion and Decision
Curtis contends that, when the Commission considered the eight absentee ballots in
dispute in accordance with Indiana Code Section 3-12-1-1, it should have considered the lack
of response to the Posey County Clerk’s letter of October 10, 2006, in its determination of
the intent of those eight voters. Curtis does not claim that the Clerk’s letter could invalidate
ballots, despite its “null and void” language. Rather, Curtis claims that non-compliance with
the Clerk’s letter directing the completion of a second ballot is evidence of intent to refrain
from voting for either candidate, and that the Commission should have considered all
evidence of intent.
The procedures for an election contest and for a recount of votes are statutory, and the
contestor must bring himself strictly within the terms of the governing statute. State ex rel.
Howard v. Lake Circuit Court, 233 Ind. 459, 461, 121 N.E.2d 647, 649 (1954). Indiana Code
Section 3-12-6-22.5 limits an appeal of the Commission’s findings to “questions of law
arising out of the recount” and “procedural defects by the recount commission that affected
the outcome of the recount.” See Horseman v. Keller, 841 N.E.2d 164, 167 (Ind. 2006). The
“intent” of the voters is a question of fact under Indiana law, and is not appealable. See id.
Here, however, the “procedure” for determining “intent” is implicated.
The “Rules for Counting Ballots” are set forth in Indiana Code Section 3-12-1-1, et
seq. Indiana Code Section 3-12-1-1, the statute here at issue, provides:
Subject to sections 5, 6, 8, 9, 9.5, and 13 of this chapter, the primary factor to
be considered in determining a voter’s choice on a ballot is the intent of the
voter. If the voter’s intent can be determined on the ballot or on part of the
ballot, the vote shall be counted for the affected candidate or candidates or on
the public question. However, if it is impossible to determine a voter’s choice
of candidates on a part of a ballot or vote on a public question, then the voter’s
vote concerning those candidates or public questions may not be counted.
The words of a statute will be given their plain and ordinary meaning unless otherwise
indicated by the statute. Doe v. Donahue, 829 N.E.2d 99, 107 (Ind. Ct. App. 2005), trans.
denied, cert. denied, 126 S. Ct. 2320 (2006). In construing statutes, we will presume that the
legislature intended the language used in the statute to be applied logically and not to bring
about an unjust or absurd result. Id.
The statute here at issue directs the Commission to determine a voter’s choice by
examining the ballot. If the intent can be determined from the ballot, the vote shall be
counted. If it is impossible to determine the voter’s choice, the vote may not be counted.
There is no provision for the consideration of evidence that is extrinsic to the ballot to
determine individual voter intent. Here, the Commission was able to determine each voter
choice from the ballot presented and examined. There is no statutory authorization for a
challenge to a completed ballot based upon a showing of a contrary intent. Moreover, there
is no statutory provision for the withdrawal of a vote once it is cast, even if the voter
subjectively intended by his or her subsequent omission to do so. 1
As such, Curtis did not show that the Commission procedurally failed to comply with
its statutory duty so as to invalidate the recount.
SHARPNACK, J., and DARDEN, J., concur.
On the other hand, when the commission or election board determines that ballots must be reprinted or
corrected, there is a statutory entitlement to a voter who has voted a defective absentee ballot to recast the
ballot and have the ballot counted “if the intent of the voter can be determined and the ballot would otherwise
be counted under IC 3-12-1.” Ind. Code § 3-11-2-16(f).