When Two Wrongs Do Make a Right: The Strange Case of Burke v. Bennett

Abstract

Indiana imposes certain eligibility qualifications on candidates for public office, and provides a statutory cause of action for losing candidates in an election to challenge the results based on the eligibility of the winner. Following the 2007 mayoral election in Terre Haute, Ind., the losing candidate argued that the winner fell afoul of the federal Hatch Act, which is an explicit disqualification under Indiana law. The trial court concluded that the winning candidate did violate the Hatch Act, but through an interesting feat of jurisprudential jujitsu held that the disqualification didn't matter because the election was over. The court reached the paradoxical (in fact absurd) conclusion that a legislatively-created post-election contest procedure cannot be used after an election, using reasoning that, consistently-applied, would also gut Indiana's provision for a losing candidate from requesting a recount after the election. This is a draft of an essay examining what the court did wrong on both the federal and state law questions and what it should have done instead.