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

SSRN ^ | January 10, 2008 | Simon J. Dodd

[Military family member]

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.

[Military family member]

This case may have far reaching affects should it go beyond Indiana. Simon Dodd has written an excellent paper on the issue of the Hatch Act.

[CharlesWayneCT]

Bump to read later. I love legal arguments.