Bennett, 020118 INAGO, AGO 2018-2
| Case Date | February 01, 2018 |
| Court | Indiana |
A) In order to comply with the law while achieving the policy goals, fairness, efficiencies and cost-savings contemplated by the re-adopted Small Precinct Consolidation statute for Lake County, what actions must the Indiana Election Commission take under the circumstances cited above?
B) What actions should the Commission take in order to effectuate the initiative of precinct consolidation for Lake County, as has been successfully accomplished in several of Indiana's largest counties?BRIEF ANSWERS TO ISSUES PRESENTED 1. The Indiana Election Commission and/or its Chairman have standing to request an advisory opinion of the Attorney General on a matter pertaining to the duties of the Commission. 2. A) Since a proposed precinct establishment order was not submitted by the Lake County Board, the Commission must adopt an order for Lake County that it considers will realize savings for the county, and which does not impose unreasonable burdens on the ability of the voters to vote at the polls. B) The Commission's obligation to issue a precinct establishment order for Lake County is a continuing one, and it is mandatory. A single vote on each of two proposals properly submitted to it by other parties is not sufficient to fulfill the Commission's obligation, which would include constructing its own plan giving due consideration to any plans properly and timely submitted. The Chairman pursuant to statute should reconvene the Commission for this purpose, and it should remain in session until such time as an order is developed and agreed upon, with appropriate staff of the Election Division tasked with effectuating and fact-checking the plan in light of statutory boundary rules. No further opportunity for public comment or testimony from outside parties need be extended, as this has been done. If the Commission continues to be deadlocked and fails to issue a valid precinct establishment order for Lake County, the Commission should be aware that under appropriate circumstances, including but not limited to petition from Indiana voters, the Governor may consider calling the commission back into session pursuant to Ind. Code §3-6-4.1-12, until such time as their duty to issue an order is fulfilled. REQUESTOR STANDING The Indiana Election Commission (the "Commission") was created by statute in 1995, replacing the former Indiana State Election Board. See Public Law 8-1995; Ind. Code §3-6-4.1. The Commission is comprised of four members, evenly divided between the two major political parties in Indiana. Ind. Code §3-6-4.1-2. The Chair and Vice-Chair are required to be of different political parties. Ind. Code §3-6-4.1-6. All members of the Commission are statutorily entitled to the same per diem and reimbursements as are members of other state boards or commissions. Ind. Code §3-6-4.1-11. The Commission has rulemaking authority under Ind. Code §4-22-2, which includes emergency rulemaking authority under Ind. Code §§3-6-4.1-14(a)(2), and 16. Only an entity that may properly be considered an "agency" of the State, exercising some executive or administrative power of state government, may promulgate rules under the statutes cited above. See Ind. Code §4-22-2-3(a). The Commission since 1995 has been charged with the administration of Indiana's election laws. Ind. Code §3-6-4.1-14(a)(1). It also has a statutory grant of investigative and adjudicative authority, including the power to administer oaths, issue subpoenas, and levy fines. Ind. Code §§3-6-4.1-19, -20, -21, and -25. Despite ample indicia of being a "state agency" fully eligible and with appropriate standing to seek advisory opinions of the OAG, it appears that neither the Commission nor its Chair previously requested or received an official attorney general opinion. Its predecessor agency did seek such opinions, however, and in fact on regular occasions received formal responses to those requests. See, e.g., 1958 Op. Ind. Att'y Gen. 12; 1962 Op. Ind. Att'y Gen. 20. For his part, Indiana law directs the Attorney General to offer an official legal opinion upon request from certain described officials or entities, including any "state officer ... touching upon any question or point of law concerning the duties of the officer...". The term "state officer" has been interpreted to encompass an executive official of a "state agency," See Ind. Code §4-6-2-5. The term "state agency" is specifically defined by statute (at Ind. Code §4-6-3-1) to include "an administration, agency, authority, board, bureau, commission, committee, council, department, division, institution, office, officer, service, or other similar body of state government created or established pursuant to law." Id. (emphasis supplied). Thus, it is evident that the Commission, established pursuant to state statutory enactment some 22 years ago, is a "commission" and therefore a "state agency" within the meaning of Ind. Code §4-6-2-5. As the Chairperson of that Commission, the requestor in this matter is qualified to seek an advisory opinion on behalf of the Commission as a collective body. Moreover, the subject-matter of his inquiry not only "touch[es] upon [a] question or point of law concerning... [his] duties," it rests squarely on the Commission's very conduct and boundaries of authority, and upon a defined set of tasks placed before it by law where others have failed to act. On this basis we proceed. ADDRESSING THE ISSUES It will be helpful to know something about the first round of this twilight struggle, for it will instruct us about how Lake County arrived, legislatively and politically, at the current impasse now presenting itself. The basic structure for administering elections in Lake County is rather unique. Unlike other counties in Indiana, Lake County boasts its own County Board of Elections and Registration (the "County Board")—statutorily created, separately codified, uniquely staffed, with plenary responsibility for organizing Lake County's elections. See State v. Buncich, 51 N.E.3d 136, 139 (Ind. 2016); see also Ind. Code §3-6-5.2-6 (2005). The County Board has five members: the Circuit Court Clerk, and two members of each major political party, appointed by their respective party chairmen. Ind. Code §3-6-5.2-4; Buncich, supra, at 139. LAKE COUNTY PRECINCT CONSOLIDATION, I ["LAKE PRECINCTS 1"] In March, 2014, the General Assembly enacted Indiana Code, Section 3-11-1.5-3.4 (Supp. 2015), which created another local political sub-structure known as the "Lake County Small Precinct Committee." The purpose of this committee was to identify and issue a statistical snapshot of small precincts (defined as having fewer than 500 active voters) that were amenable, or at least susceptible as a matter of mathematical fact, to being consolidated with other precincts into larger precincts, but not (initially) to exceed 1,200 active voters per precinct. The idea, for some the principal idea...
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