Members of the Indiana Election Commission ruled twice this summer on a Secretary of State candidate challenge which, thanks to a quirk of Indiana law, has a direct bearing on the composition of the Commission itself.

Serving both as administrative law judges and executive appointees, the Commission’s conflicts of interest may violate state regulations. At no point during either hearing, however, did any member bring up the issue in question, or recuse themselves from the hearings.

The story so far…

The Indiana Election Commission (comprised of Republican appointees Bryce H. Bennett, Jr. and Zachary E. Klutz, plus Democratic appointees S. Anthony Long and Suzannah Wilson Overholt) met twice this summer on July 17th and August 17th to consider challenges to the candidacy of Secretary of State Connie Lawson. The largely identical challenges both claimed that after six years as Secretary of State, Lawson should be ineligible to run for another full four-year term. The Indiana Constitution prohibits statewide office holders from serving for more than eight years in a twelve year period.

On both occasions, the Commission dismissed the challenge following motions from Lawson’s attorneys. The August 18th challenge was dismissed on a valid, but technical point of law, which disallows a new challenge using a substantially similar argument to one previously ruled upon.

But other Indiana election laws seriously undermine the Commission’s moral (and possibly legal) authority to rule on the issue of Connie Lawson’s candidacy altogether. Membership of the Indiana Election Commission for the next four years will largely be determined by the results of the upcoming Secretary of State election – specifically by which parties come in first and second in the race.

On both July 17th and August 17th hearings, the decision to dismiss was not only helpful for Lawson’s reelection bid. The decisions were also very helpful for ensuring current Commissioners (especially the two Republican members) have the best chance to remain in office should they so choose.

The Indiana Election Commission and Secretary of State elections

The Indiana Election Commission is made up of four commissioners – two each from each “major party.” Commissioners are not appointed by the Secretary of State, as might be expected considering her oversight of Indiana’s electoral processes. Instead, commissioners are appointed by the Governor following nomination by the major parties.

What is unique about Indiana law is that while most states have only two dominant parties in practice, Indiana has only two major parties by law.

The Indiana Code defines “major party” as, “the two (2) parties whose nominees received the highest and second highest numbers of votes statewide for secretary of state in the last election.”

In other words, members of the Indiana Election Commission have their offices thanks to their membership and position in one of Indiana’s two major parties, and the election of the Secretary of State directly determines which two parties these will be.

This issue might be of little consequence if the Secretary of State election was always a two-way race, but it has been at least a three-way race for decades.

If Connie Lawson had been removed from the ballot, the Republicans would have been scrambling to find a last-minute replacement. With three candidates on the ballot (Republican incumbent Connie Lawson, Democratic challenger Jim Harper, and Libertarian challenger Mark Rutherford) plus two write-in candidates, it is certainly plausible to consider a scenario in which the Republican candidate came in third place if Lawson had been ruled ineligible.

If a Republican candidate did come in third in the Secretary of State election it would result in the Republican party losing its major party status, and the two Republican members of the Indiana Election Commission losing their seats and the per diems they receive for every hearing.

In layman’s terms, the issue appears to be a fairly clear-cut conflict of interest for the Commissioners. But there is more at stake than the perceived fairness in the electoral system. The Indiana Election Commission may have (possibly inadvertently) failed to observe state regulations.

Conflicts of interest and Indiana Election Commission members

The members of the Commission each act as “administrative law judges” when serving on the commission, and as such receive a $50 per diem plus expenses for each hearing. This is clearly stated on the Indiana Election Commission webpage, and a co-director of the Indiana Election Division has confirmed to News Growl by telephone that the commissioners were all acting as paid administrative law judges on both the July 17th and August 17th hearings.

Administrative law judges exist in federal and state agencies across the country to rule on matters of administrative law. Most administrative law judges, as in the case of all four members of the Indiana Election Commission, are licensed attorneys.

Indiana law regulates administrative law judges, and has includes rules concerning conflicts of interest. Specifically, Indiana Code 4-21.5-3-10 states, “Any individual serving or designated to serve alone or with others as an administrative law judge is subject to disqualification for bias, prejudice, or interest in the outcome of a proceeding.”

As judges who are quite literally partisan (in the political sense) it is hard to see how Indiana Election Commissioners could ever preside over a case where they had no bias. But in the case of the Secretary of State’s election, commissioners have a very precise and specific personal interest beyond mere partisanship.

According to the commission webpage, the Indiana Election Commission has met 6-7 times a year in recent years, meaning each Commissioner is typically paid $300-$350 a year plus travel expenses for their service. This means each Commissioner has a moderate but not insignificant financial interest in their position on the Commission.

A spokesperson for the Indiana Inspector General’s Office (who declined to comment on this particular case) confirmed to News Growl that members of the Indiana Election Commission are also liable for following conflicts of interest rules published on its website, both as appointees to the executive branch and as administrative law judges.

Beginning with the summary, “Do not make decisions at work which might financially benefit you,” the Inspector General’s rules further state that, “Potential conflict of interests [sic] must be disclosed to the State Ethics Commission by requesting an advisory opinion or by completing and filing a disclosure form.”

The National Association of Administrative Law Judiciary (NAALJ) has even more stringent guidance. In its Model Code of Judicial Conduct for Administrative Law Judges it states, “A state administrative law judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where…[the judge] has a more than de minimis financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

The $300-$350 per year Commissioners earn each year might be far less than what they earn at in their respective private legal practices, but it is hardly a trivial (i.e. “de minimis”) amount.

And of course, being a member of the Commission brings more than just a moderate financial benefit. Commissioners can expect to occupy a position of respect and influence within their respective parties. If an office-holder gains both financial and professional value from his or her office, it is stands to reason they should recuse themselves from a decision that has bearing on their ability to serve in that office in future.

As stated above, no member recused themselves from either hearing (although one member did declare a possible conflict of interest on another issue during the July 17th hearing, but following precedent for that issue did not recuse themselves).

In fairness to the commissioners, it is reasonable to ask what would have happened if they had declared their conflicts of interest and recused themselves, and if it is even possible for the Commission to rule impartially on Secretary of State elections. The answer is far from clear.

The Indiana Election Commission’s inherent bias

The problem for members of the Indiana Election Commission is there is no clear way under Indiana law for the Commission to have ruled in either Summer hearing without conflicts of interest.

Indiana law does allow the appointment of proxy commissioners (and Suzannah Wilson Overholt was represented by a proxy at the July 17th hearing), but these proxies derive their authority directly and solely from the Commissioner they are representing. Proxies are arguably just as conflicted as full members, and a Commission made up of proxies would still possibly fail to meet the legal requirements for impartiality.

Nor would it have been proper for only the Republican members to recuse themselves from the hearings to allow their Democratic colleagues to decide the fate of Lawson’s candidacy. Democratic party representatives still have an enormous stake in maintaining the two-party system, and preserving the duopoly could easily be argued to be in the medium-to-long-term personal interests of Democratic party-nominated commissioners.

The law appears to put members of the Indiana Election Commission in an impossible position.

At no point did News Growl uncover any evidence that members were aware of their possible conflicts of interest, or knowingly broke any rules. As the two-party system is so ingrained in American politics, it is entirely plausible the issue has never been raised previously.

The conflicts of interest may arise only because of a technical point of law, but as the Commission aptly demonstrated at the two hearings in question, technical points of law are important.

And however obscure the issue, the problem it poses still remains: the July and August rulings on Connie Lawson’s eligibility may have been conducted improperly. If so, the issue of Connie Lawson’s eligibility still remains unresolved.

News Growl emailed each member of the Indiana Election Commission, inviting them to contribute to this story. Only Suzannah Wilson Overholt has replied, thanking us for our interest in the issue, but stating that it would be inappropriate for her to comment.

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