## Facts

- George Pabey challenged incumbent mayor Robert Pastrick in the May 6, 2003 Democratic primary for mayor of East Chicago, Indiana.
- The reported totals were Pastrick 4,083; Pabey 3,805; and Lonnie Randolph 2,289, giving Pastrick a 278-vote margin over Pabey.
- Pabey led Pastrick in in-person voting, but Pastrick prevailed by a substantial margin in absentee ballots.
- Pabey filed an election contest seeking to invalidate the absentee ballots or to void the election and require a new primary.
- The trial court made extensive findings that a deliberate course of conduct perverted the absentee voting process through pervasive illegality and fraud, including vote buying and improper handling and completion of absentee ballots.
- Despite finding pervasive fraud and compromised integrity, the trial court denied relief because it concluded only 155 specific votes were proven invalid, fewer than the 278-vote margin.

## Issues

1. Whether Indiana’s Election Contest Statute permits a court to set aside an election and order a new election when pervasive and systematic absentee-ballot fraud makes it impossible to determine the true winner, even if the contestant cannot prove enough specific illegal votes to exceed the margin of victory.
2. How to apply the statutory standard for voiding an election when it is “impossible to determine” which candidate received the highest number of legal votes in the presence of systemic absentee-ballot misconduct.

## Decision

- The Indiana Supreme Court reversed the judgment denying relief.
- The Court held that the Election Contest Statute authorizes voiding an election and ordering a new election when widespread, systematic, outcome-tainting misconduct in the absentee-ballot process makes it impossible to determine which candidate received the highest number of legal votes.
- The Court rejected the trial court’s view that relief depends on proving, vote-by-vote, that invalid ballots exceed the numerical margin of victory.
- The case was remanded for entry of relief consistent with the opinion, including a new Democratic mayoral primary election.

## Legal Principles

- An election may be set aside when pervasive fraud or illegality so compromises the voting process that the lawful winner cannot be determined.
- In assessing whether it is “impossible to determine” the winner, a court may consider the nature, scope, and effect of systemic misconduct, not only a subtraction of specifically identified illegal votes.
- A contestant need not always prove an exact count of illegal votes exceeding the victory margin when the evidence shows the absentee-ballot process was fundamentally corrupted and the result cannot be trusted.
- Courts should avoid voiding elections lightly, but must provide an effective remedy when election administration has been materially subverted.

## Conclusion

The Indiana Supreme Court held that pervasive, systematic absentee-ballot fraud that makes the true winner unknowable permits a court to void the election and order a new one, even without proof that a specific number of invalid ballots exceeds the margin of victory.


Pabey v. Pastrick, 816 N.E.2d 1138 (Ind. 2004)