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Last updated on Monday, December 28, 2015
(MITCHELL) - Mitchell Mayor candidate Dan Terrell and his attorney David Brooks have asked the court to restrain John “JD” England from taking office on January 1.
On Wednesday, Brooks filed a temporary restraining order and injunction along with a 16-page memorandum requesting the court stop England from becoming mayor, until Special Judge E. Michael Hoff rules is or is not warranted.
Brooks claims that Lawrence County Clerk Myron Rainey, his staff, the absentee ballot board and the election board; acting alone or together; committed an act or series of acts that he/they should have known would make it impossible to determine which candidate received the highest number of votes and that the court should order that a special election be held.
Brooks states the facts in the case are "virtually indisputable."
He and Terrell believe several problems in the November election make it impossible to know who won since England beat Terrell by only four votes.
The court paperwork states that 16 votes were counted illegally because they were cast as absentee ballots without the voters providing proof of residency. Brooks claims those ballots should have been set aside until proof of residency was provided. But in this election they were opened and illegally counted before the voter was qualified to vote.
They also claim 21 illegal votes were cast in person on election day after receiving an absentee ballot. According to Indiana law voters who received absentee ballots, but have not returned the ballot and security envelope to bring the ballot with them to a precinct inspector on Election Day, and those ballots are supposed to be marked "cancelled," but that was not done.
Brooks also claims that at least eighteen illegal 'remade' ballots were cast. Remade ballots are necessary if the original ballot is damaged or can not be read by an automatic tabulating machine. Brooks claims the remade ballots should have been labeled "duplicate" with a serial number recorded on both the original and the copy, but Rainey created at least 18 sets of two ballots paper-clipped together - none with the word "duplicate" on them or with serial numbers. Brooks claims Rainey did not provide a list of duplicates and originals to identify the number of remade ballots and "therefore, no definitive matching of alleged duplicates to alleged originals could be made during the recount process."
Brooks also claims that "In twelve instances ... election officials illegally opened ballots, looked for self-identifying residency documentation, resealed ballots, placed them in a cabinet and did not turn them into provisional ballots by law."
Also two voters were given wrong ballots; specifically they were provided Democrat primary ballots from the May election. "There is no way to know how many other voters had the wrong ballot distributed to them."
Brooks and Terrell also claim election officials did not properly secure absentee ballots before and after the election and failed to comply with the court's impound order. Ballots were kept in one-lock key systems. Rainey and others had copies of the key and could assess the ballot even after the court ordered the materials to be impounded.
In conclusion, Brook claims that "injunctive relief is the only and proper way to prevent Mr. England from assuming office after a fatally flawed election."
Brooks also states that if England does take office, he would be able to set policies and make appointments that could be irreversible if a special election selects a different mayor.
According to the document: "Simply put, this election was totally and fatally flawed well beyond the point of making it impossible to determine which candidate received the highest number of legal votes and well beyond the risk of allowing any candidate to assume office prior to a legal and fair election."
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