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A hearing date of Dec. 7 has been set in a contested Warsaw school board race in which a ballot error was made.
The case, Sterling Watkins v. Charles Sauders, will be heard at 1:15 p.m. Dec. 7 in Kosciusko Circuit Court.
Watkins, who lost the Nov. 2 election for Warsaw School Board District 4 by five votes to Sauders, filed Nov. 8 in Circuit Court seeking a special election. Sauders has supported a recount but not a re-vote.
The ballot error occurred Nov. 2, when it was discovered approximately two hours after the polls opened that one of three voting booths in Warsaw Precinct 1, Ward 2 did not contain a ballot for the District 4 school board member. The other two booths reportedly contained the correct ballots.
Since voting tickets are numbered sequentially, and since the error was discovered by Watkins' wife, who was voter number 64, Watkins' lawsuit alleges that there was no record of how many people had voted at the booth with no school board ballot. Watkins lost the election to Sauders by five votes, which, his petition states, makes it "impossible to determine which candidate received the highest number of votes in said election."
Indiana Code specifies that a candidate for school board may contest the election if, among other conditions, "a mistake occurred in the printing or distribution of ballots used in the election that makes it impossible to determine which candidate received the highest number of votes."
If Circuit Court Judge Rex Reed finds after the Dec. 7 hearing that a mistake in the printing or distribution of the ballots used in the election made it impossible to determine which candidate won, Reed can order a special election in the precinct in which the error occurred.
If Reed orders a special election, state law requires the election to be held on the ninth Tuesday after the election is ordered.
Dale Simmons, co-general counsel for the Indiana Election Division, said Watkins will have to prove "that there was an error and that error prevented a fair election."
He said Indiana law also specifies that a school board seat may not be vacant for more than 30 days, but that law may conflict with the law that directs the election to be on the ninth Tuesday after the court orders an election.
Reed will have jurisdiction in this matter, Simmons said, and Reed will have at least two possible choices to fulfill both the 30-day and the ninth Tuesday requirements.
"He can allow the nominal winner (Sauders) to take office until after the special election," Simmons said, or, if Reed grants the order before the beginning of the school board term, a holdover provision will apply and "the person who last held office will stay on until a person is elected and qualified to take the holdover's position."
In this case, Sauders and Watkins were running for the District 4 seat on the school board; that seat is now held by Mark Minatel.
In a related matter, an error on absentee ballots in Warsaw School Board District 3 was corrected before the general election, county clerk Sharon Christner said Tuesday.
The absentee ballots for voters in Wayne Township Precinct 5, which is in Warsaw school board District 3, had erroneously listed the candidates for District 4. The ballots should have named Dan Robinson and Jim Folk, but instead listed Sterling Watkins and Charles Sauders.
Christner said after the error was brought to her attention Oct. 26, the voters who had filed absentee ballots and who had listed phone numbers were contacted and asked if they wanted to make a change.
Approximately 50 absentee ballots were involved, Christner said, but she did not know the exact number of voters who re-voted for Warsaw school board. Because the margin of victory in District 3 was 662 votes in Robinson's favor, she said, neither candidate contested the results.
