Fortville recount process stalled for legal response

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FORTVILLE — The decision to recount votes in last month’s Fortville Town Council at-large race will depend on how a judge interprets election law governing at-large candidates.

Robert Sterrett, a Republican who lost in the Nov. 6 at-large council race to Independent Fritz Fentz by 43 votes, is asking for a recount, claiming some voters forgot to “bubble in” his name on the ballot when they voted for a straight-ticket. Indiana law states straight-ticket voters must also individually select at-large candidates, because many governing boards have multiple at-large seats and the possibility of multiple candidates from the same party running for them.

In Fortville, however, the at-large council position is a single-person seat, and that’s the crux of Sterrett’s case. During a hearing Monday in Hancock County Superior Court 1, Sterrett’s attorney, Michael Griffin said state law is “ambiguous” in how it defines at-large, adding that many references to the position in the Indiana Code refer to multi-member at-large districts.

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Griffin argued the Fortville at-large position should’ve been tallied with straight-ticket voting since only one Republican and one Democrat can run for the seat.

Sterrett says the number of votes cast in his race with Fentz — 1,275 — is in suspicious contrast to the number cast in the District 2 council race. In that race, won by incumbent Robert Holland, 1,388 votes were cast. Holland received 118 more votes than Sterrett.

Briane House, attorney for Fentz, said counting Republican straight-ticket ballots that didn’t chose a candidate in the at-large race negates voter intent, which he called the “bedrock” of election law. He said some straight-ticket voters maybe didn’t like either candidate, voted for Fentz or just forgot to choose.

Griffin said the county election board made an error in how it interpreted the at-large Fortville seat and that it shouldn’t have OK’d the ballot, which states: “To vote for any candidate for an at-large office, you must darken the oval for each candidate you wish to vote for. A Straight Party vote will not count as a vote for any candidate for that office.”

Johnson County Judge Kevin Barton, who was appointed as a special judge in the case, said he’ll take the questioning of the at-large interpretation under advisement. Until he files a ruling, the recount process cannot go forward. The recount must be completed by Dec. 20 unless Barton grants an extension. Barton will have a decision on the case before Thursday, the final day set for the recount, he said.

If a recount is ordered, it will be difficult. County Clerk Marcia Moore told the court that all 1,400 or so paper ballots cast in four Fortville-area precincts will have to be separated from the more than 34,000 county ballots that were cast. The ballots are stored in about 250 sealed cases. Moore said it could take her small staff several days to gather the paper ballots.

A commission appointed to oversee the pending recount — comprised of a Democrat, a Republican and someone to operate a ballot tabulator — met on Monday morning and asked Barton to provide instruction on how to count the ballots. Griffin said Sterrett is requesting a manual recount instead of a computerized one. Moore said if the ballots are run through the tabulator again as it’s currently set up to search for a “bubbled-in” candidate for the at-large race, it won’t change the result.

Griffin said he would like to see how many straight-ticket voters chose Sterrett, Fentz or no one.

House also filed a motion on Monday morning to dismiss the recount petition. He said Sterrett is focusing on the wrong remedy in trying to resolve the at-large interpretation. He said Sterrett should’ve filed a petition of contest and claim the ballot was mistaken in how it advised voters to chose at-large races. A contest petition, however, would’ve had to be filed 14 days after Election Day, House added.

Griffin said he was “puzzled” by the motion to dismiss the recount. He said Sterrett has a right to a recount, and that the ambiguity lies in how the votes were counted and approved by the election board.

Barton said he will also take the motion to dismiss under advisement.

An earlier version of this story misreported the nature of the Fortville District 2 election. All Fortville residents can vote for candidates in any district and at-large race. We regret the error.