ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

William R. Groth David W. Brooks 

Geoffrey S. Lohman Brooks, Koch & Sorg 

Fillenwarth Dennerline Groth and Towe Indianapolis, Indiana 

Indianapolis, Indiana 

 Marion O. Redstone 

 Indianapolis, Indiana 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 49S00-0501-CV-17 

KAREN C. HORSEMAN, 

 Appellant (Cross-Appellee below), 

v. 

J. SCOTT KELLER, 

 Appellee (Cross-Appellant below). 

_________________________________ 

Appeal from the Marion Superior Court, Civil Division 10, No. 49D10-0311-MI-001998 

The Honorable David Dreyer, Judge 

_________________________________ 

On Direct Appeal 

_________________________________ 

January 31, 2006 

Rucker, Justice. 
Case Summary 

 The trial court affirmed a decision of the court-appointed Recount Commission that 

concluded J. Scott Keller was the winner of the 2003 election for the Marion County CityCounty Council District 16 seat. In so doing the trial court also declared unconstitutional an 

absentee voting statute. We previously announced (on February 11, 2005) that we agreed with 

the trial court’s conclusion concerning the ultimate outcome of the election. However, we 

disagree with its decision concerning the constitutionality of the statute and now write to explain 

our reasoning. 

Facts and Procedural History 

Marion County employed new voting machines during the November 2003 general 

elections. These machines provided voters with paper ballots that included a line for write-in 

candidates. 

The November 4, 2003 Marion County municipal elections included a contest for the 

office of City-County Councilor of the Indianapolis City-County Council District 16. On the 

ballot were Karen C. Horseman (“Horseman”), Democrat, J. Scott Keller (“Keller”), Republican, 

and one other candidate. 

Horseman and Keller garnered most of the votes. The initial results showed Keller with 

1,407 votes and Horseman with 1,404 votes. Horseman filed a Verified Petition for Recount on 

November 10. Ind. Code § 3-12-6-1. On December 17 the court-appointed Recount 

Commission (“Commission”) determined that Keller received 1,408 votes and Horseman 1,403 

votes. The three-member Commission reached its conclusion after inspecting each individual 

ballot and voting on whether certain contested ballots could be counted. Horseman appealed the 

Commission’s determination to the Marion Superior Court. Ind. Code § 3-12-6-22.5. Three 

voters from District 16 marked a section of the ballot indicating that they wished to cast straight 

Democratic Party tickets. However, these voters also used the available write-in line to vote for 

individuals other than Horseman for the District 16 Council seat. One voter wrote in Ricky 

2
Hence, the Democratic candidate for District 1, one wrote in Patrice Abduallah, the Democratic 

candidate for District 15, and one wrote in Katherine Caldwell Kennedy, the Democratic 

candidate for District 25. The Commission did not include these ballots as votes for Horseman. 

Two absentee ballots containing votes for Horseman were received but not counted. The 

Commission determined that these ballots were correctly rejected pursuant to Indiana Code 

section 3-12-1-13 because they did not bear the initials of two members of the Marion County 

Election Board and/or its official seal. The absence of initials or seals on these two ballots was 

apparently due to human error. 

Concluding that the Commission’s decision concerning the three disputed ballots was 

based on questions of fact which were not reviewable, the trial court addressed only the issue of 

the validity of the two absentee ballots. It determined that the statute disallowing these two 

ballots violated Article 1, Section 23 of the Indiana Constitution and that the votes must therefore 

be credited to Horseman. Thus, the court concluded that Keller won the election by three votes 

as opposed to five. 

Both parties filed motions to correct error, which the trial court denied. On March 15, 

2004, Horseman appealed to the Indiana Court of Appeals. It was not until late December 2004 

that the parties finished submitting filings to that court. On January 14, 2005, the Court of 

Appeals realized that this case involved a trial court declaring a statute unconstitutional. 

Because this Court has mandatory and exclusive jurisdiction over such cases, see Ind. Appellate 

Rule 4(A)(1)(b), we received this matter on January 18, 2005. Because substantial time had 

elapsed before this Court received the case and because it involved a matter which could 

significantly impede local governance absent resolution, this Court promptly reviewed the 

arguments and issued an order on February 11, 2005, affirming the outcome of the election in 

Keller’s favor. We declared that the Court would issue in due course a more extensive opinion 

reflecting the Court’s reasoning. In Re: Horseman and Keller, Case No. 49S00-0501-CV-17 at 2 

(Ind. Feb. 11, 2005) (unpublished order). We now undertake to do so. 

3
Discussion 

 At issue in this appeal are five contested ballots.1 To determine the fates of these ballots, 

we are asked to examine two questions: first, whether Indiana law recognizes write-in votes cast 

for individuals who are not registered write-in candidates as votes for the nominated same-party 

candidate in an electoral race where the voters otherwise selected the straight ticket ballot option, 

and second, whether Indiana Code section 3-12-1-13 is unconstitutional. 

The Write-In Votes

 The Commission’s decision to exclude the three contested straight ticket ballots from 

Horseman’s tally is not an appealable determination. Indiana Code section 3-12-6-22.5 limits an 

appeal of the Commission’s findings to “questions of law arising out of the recount” and 

“procedural defects by the recount commission that affected the outcome of the recount.” The 

trial court declined to address the merits of Horseman’s arguments about these three ballots 

because it determined that the exclusion was a determination of an issue of fact. Namely, the 

trial court determined that the issue at bar was the “intent” of the voters under Indiana Code 

section 3-12-1-1. It correctly noted that intent is a question of fact under Indiana case law. See,

e.g., Wright v. State, 690 N.E.2d 1098, 1104 (Ind. 1997) (trial court’s finding of discriminatory 

intent was a finding of fact); Gibson County Farm Bureau Coop. Ass’n, Inc. v. Greer, 643 

N.E.2d 313, 320 (Ind. 1994) (whether parties intended a writing to create a security interest was 

a question of fact); Deming Hotel Co. v. Sisson, 216 Ind. 587, 24 N.E.2d 912, 915 (1940) 

(“question of fraudulent intent is a question of fact”). 

Horseman contends that the Commission’s decision is appealable. She argues that the 

Commission’s conclusion involved a determination of the application of Indiana Code section 3-

12-1-7.5(a). Specifically, she asserts that the statutory meaning of the term “candidate” is at 

issue. And the law is clear that “[t]he interpretation of a statute . . . is not a question of fact, but 

one of law reserved for the courts.” Joseph v. Lake Ridge Sch. Corp., 580 N.E.2d 316, 319 (Ind. 

 

1

 On cross-appeal, Keller also challenges the Commission’s determination concerning one other ballot 

which he contends should not have been counted for Horseman. Because this case is resolved on other 

grounds, we decline to address this issue. 

4
Ct. App. 1991) (emphasis added). See also Bettenbrock v. Miller, 185 Ind. 600, 112 N.E. 771, 

774 (1916) (“The courts are charged finally with the responsibility of construing doubtful 

statutes . . . .”); Figg v. Bryan Rental Inc., 646 N.E.2d 69, 72 (Ind. Ct. App. 1995) (“The 

interpretation of a statute is a question of law . . . .”). Indeed, if the statutory definition of 

“candidate” were at issue, it would be the clear province of the courts to evaluate it on appeal. 

Ind. Code § 3-12-6-22.5. 

 The three contested ballots contain straight Democratic Party votes but also attempt to 

vote for Democratic candidates from different Council district races. The Horseman-Keller race 

was for District 16, but the three contested ballots contain write-in votes for Democratic 

candidates from Districts 1, 15, and 25. Horseman, who was the District 16 Democratic Party 

candidate, argues that the write-in votes, but not the ballots, should be ignored because they are 

not for “candidates” for the District 16 race and thus cannot, under Indiana Code section 3-12-1-

7.5(a), take votes that would have been hers if the voters had left their write-in lines blank. 

Alternatively, Horseman claims these three ballots should be counted in her favor because the 

voters manifested the intent to cast Democratic ballots.2

 

 Horseman rests her first argument upon the language of Indiana Code section 3-12-1-

7.5(a), which reads: 

Sec. 7.5. If a voter votes a straight party ticket for at least one (1) 

office for which only one (1) person may be elected and writes in 

the name of a candidate, the straight party ticket vote shall be 

counted for all offices except the offices for which a write-in vote 

was cast. The write-in vote shall be counted if the voter’s intent 

can be determined. 

She asks us to construe the statutory meaning of “candidate” to exclude from its scope those 

individuals written in on the three contested ballots. Because, Horseman argues, no alternative 

“candidates” were written in on the ballots, Indiana Code section 3-12-1-7.5(a) does not remove 

votes from her tally. 

 

 

2

 Because we hold that the trial court’s finding that the Commission made a finding of fact is not clearly 

erroneous, this argument need not be discussed. 

5
 However, we need not interpret 3-12-1-7.5(a) because the Indiana legislature has 

provided us the guidance of another statutory provision that renders an analysis of “candidate” 

immaterial here. Provisions of the Indiana Code do not stand alone; the statutes complement 

each other and must be applied harmoniously. Freeman v. State, 658 N.E.2d 68, 70 (Ind. 1995) 

(“[W]here two statutes address the same subject, they are in pari materia, and we strive to 

harmonize them where possible.”); Matter of Lemond, 413 N.E.2d 228, 246 (Ind. 1980). Indiana 

Code section 3-12-1-1 reads: 

Sec. 1. Subject to sections 5, 6, 8, 9, 9.5, and 13 of this chapter, 

the primary factor to be considered in determining a voter’s choice 

on a ballot is the intent of the voter. If the voter’s intent can be 

determined on the ballot or on part of the ballot, the vote shall be 

counted for the affected candidate or candidates or on the public 

question. However, if it is impossible to determine a voter’s 

choice of candidates on a part of a ballot or vote on a public 

question, then the voter’s vote concerning those candidates or 

public questions may not be counted. 

The trial court found that the Commission made a finding of fact regarding the intent of these 

three voters. App. at 58. We review a lower court’s findings of fact for clear error. Infinity 

Products, Inc. v. Quandt, 810 N.E.2d 1028, 1031 (Ind. 2004). “Findings of fact are clearly 

erroneous when the record lacks any reasonable inference from the evidence to support them . . . 

.” Id. Further, when evaluating findings of fact for clear error, “we consider only the evidence 

favorable to the judgment and all reasonable inferences to be drawn therefrom.” Id. The 

evidence in the record supports the trial court’s finding that the Commission made a finding of 

voter intent. From the transcript of the Commissioner’s meetings, it is clear that the 

Commissioners contemplated whether their determinations regarding these three ballots reflected 

findings of fact and law. App. at 64 (quoting Ex. A at 96), 65-67 (quoting Ex. A at 100-104). 

And it is clear that at least one Commissioner believed that the exclusion of the three ballots was 

based at least partially upon Indiana Code section 3-12-1-1. App. at 64 (quoting Ex. A at 96). 

Thus, we cannot conclude that the trial court’s finding was clearly erroneous. 

Therefore, we are faced with a finding of fact from the Commission that these three 

voters did not intend to cast votes for Horseman. And under Indiana Code section 3-12-6-22.5 

6
findings of fact by the Commission are not appealable. Thus, we affirm the determination that 

the three write-in ballots may not be included in Horseman’s tally. 

We take the opportunity to note that even if we recognized the need to interpret 

“candidate,” the result would remain the same. Indiana’s election laws strive to uphold the 

Indiana Constitution by protecting the virtues of freedom and equality in the electoral process. 

Hathcoat v. Town of Pendleton Election Bd., 622 N.E.2d 1352, 1354 (Ind. Ct. App. 1993). And 

in its efforts to prevent fraud, undue influence, and oppression in the process, the Indiana 

legislature has given the voter’s intent a central role. Borders v. Williams, 155 Ind. 36, 57 N.E. 

527, 529 (1900); Ind. Code § 3-12-1-1. It is illogical to say that votes not cast for a candidate 

should be deemed cast for that candidate. An analysis of the facts of this case against the 

backdrop of Indiana Code section 3-12-1-1 would lead to a determination that these three voters 

did not definitively intend to vote for candidate Horseman, and thus their votes would remain 

uncounted. 

Indiana Code Section 3-12-1-13

 Also at issue are two absentee ballots. These two ballots contained votes for Horseman 

but were left uncounted by the Commission because they did not conform to the requirements of 

Indiana Code section 3-12-1-13. An appeal of this decision led the trial court to declare Indiana 

Code section 3-12-1-13 unconstitutional under Article I, Section 23 of the Indiana Constitution. 

Thus the trial court ordered that these two votes be included in Horseman’s tally. 

 While our holding pertaining to the write-in ballots settles the ultimate question of which 

candidate prevails, it is important to address the trial court’s determination regarding Indiana 

Code section 3-12-1-13.3

 Typically, the doctrine of mootness leads courts to decline to address 

 

3

 It is unclear why the trial court declared Indiana Code section 3-12-1-13 unconstitutional rather than 

section 3-12-1-12(b), which is actually the statutory provision that excludes absentee voters from the 

protections included in section 3-12-1-12. Section 3-12-1-13 merely sets out the endorsement 

requirements for absentee ballots and is paralleled by section 3-12-1-2, which prescribes the endorsement 

requirements for Election Day ballots. Because the trial court’s order dealt with the contents of section 3-

12-1-12(b) while referring to section 3-12-1-13, our analysis of section 3-12-1-13 should be understood to 

evaluate section 3-12-1-13 in conjunction with section 3-12-1-12(b). 

7
the merits of claims that have otherwise been resolved. Ind. Bureau of Motor Vehicles v. 

Zimmerman, 476 N.E.2d 114, 118 (Ind. 1985). Where there is a matter of great public 

importance, however, and the possibility of repetition, Indiana courts may choose to adjudicate a 

claim. Ind. Educ. Employment Relations Bd. v. Mill Creek Classroom Teachers Ass’n, 456 

N.E.2d 709, 711 (Ind. 1983). Public elections will continue to be affected by Indiana Code 

section 3-12-1-13. Because the question before us is “capable of repetition, yet evading review,” 

we now address the constitutionality of Indiana Code section 3-12-1-13. Ray v. State Election 

Bd., 422 N.E.2d 714, 716 (Ind. Ct. App. 1981) (citing Rosario v. Rockefeller, 410 U.S. 752, 756 

n.5 (1973)). 

 The Indiana legislature is vested with the responsibility of providing state election laws 

designed to efficiently and fairly govern voting and challenge procedures. 

The Legislature may set up machinery for the conduct of elections, 

and delegate to ministerial or executive agencies the duty of 

conducting elections, and may prescribe the procedure by which 

elections may be contested, so long as they stay within their 

constitutional powers, and such procedure conforms to the law, 

such steps and procedure will be governed by the legislative rules 

prescribed. 

State ex rel. Nicely v. Wildey, 209 Ind. 1, 197 N.E. 844, 847 (1935). We presume that state 

legislation is constitutional. Matter of Tina T., 579 N.E.2d 48, 56 (Ind. 1991) (“Legislation . . . is 

clothed in a presumption of constitutionality.”). Thus, our standard of review where a trial court 

finds an Indiana statute unconstitutional is even less deferential than de novo. Ind. Dep’t of 

Waste Mgmt. v. Chem. Waste Mgmt., 643 N.E.2d 331, 336 n.2 (Ind. 1994). “Since statutes are 

presumed to be constitutional, if there are any grounds for reversing the trial court’s judgment we 

will do so.” Id.

 There are three types of absentee ballots included in Indiana Code section 3-12-1-13: the 

Walk-in voter, the Mail-in voter, and the Shut-in voter.4

 The Walk-in voter goes to the county 

 

4

 The Brief of Appellee/Cross Appellant mistakenly reports that Shut-in voters are excluded from the 

scope of section 13. The trial court apparently relied upon this assertion and did not address Shut-in 

voters. We include Shut-in voters in our discussion. 

8
clerk’s office and casts his ballot in person. The Mail-in voter mails in his ballot from home or 

from another location. The Shut-in voter receives a visit from an absentee voter board and casts 

a ballot pursuant to the requirements of any absentee voter voting before the absentee voter 

board. Regular ballots (not absentee) are, of course, cast in person at designated polls on 

Election Day. The statute at issue reads in full: 

Sec. 13. (a) This section applies only to absentee ballots. 

(b) The whole ballot may not be counted unless the ballot is 

endorsed with the initials of: 

 (1) the two (2) members of the absentee voter board in 

the office of the circuit court clerk under IC 3-11-4-19 

or IC 3-11-10-26; or 

(2) the two (2) appointed members of the county election 

board (or their designated representatives) under IC 3-

11-4-19. 

Ind. Code § 3-12-1-13. 

 Indiana Code section 3-12-1-12 permits a recount for votes not counted due to clerical 

error (except in cases of fraud and the like).5

 However, the section excludes absentee ballots. In 

other words, an absentee ballot may not be recounted in situations where clerical error by an 

election officer rendered it invalid. In this way, the statute treats absentee voters differently from 

the way it treats Election Day voters. 

 Based on this differentiated treatment, the trial court found the statute unconstitutional 

under Article 1, Section 23 of the Indiana Constitution, also known as the Equal Privileges and 

Immunities Clause. This section reads, “The General Assembly shall not grant to any citizen, or 

 

5

 Indiana Code section 3-12-1-12 reads in full: 

 Sec. 12. (a) This section applies to votes cast by any method. 

 (b) Except as provided in section 13 of this chapter, a ballot that has been marked and cast by a 

voter in compliance with this title but may otherwise not be counted solely as the result of the act 

or failure to act of an election officer may nevertheless be counted in a proceeding under IC 3-12-

6, IC 3-12-8, or IC 3-12-11 unless evidence of fraud, tampering, or misconduct affecting the 

integrity of the ballot is presented by a party to the proceeding. 

(c) The act or failure to act by an election officer is not by itself evidence of fraud, tampering, 

or misconduct affecting the integrity of the ballot. 

(Emphasis added). 

9
class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong 

to all citizens.” Claims asserted under this section are subject to a two-part test: 

First, the disparate treatment accorded by the legislation must be 

reasonably related to inherent characteristics which distinguish the 

unequally treated classes. Second, the preferential treatment must 

be uniformly applicable and equally available to all persons 

similarly situated. Finally, in determining whether a statute 

complies with or violates Section 23, courts must exercise 

substantial deference to legislative discretion. 

Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994). 

 The trial court found that the legislature was not justified in treating all absentee ballots 

differently from Election Day ballots. Specifically, it recognized no characteristics of Walk-in 

absentee voters that make them inherently different from Election Day voters: 

[T]he law prescribes different standards for persons who vote in 

person at their precinct polling place and those who vote by 

absentee ballot, even if they also vote in person. Under Section 

12, a regular voter will not lose their [sic] vote unless there is 

evidence of fraud, even if an election official fails to act or makes a 

mistake. But absentee voters do lose their vote merely because of 

the mistake or failure of a clerk, under Section 13, even when there 

is no evidence of fraud and the voter has done everything the law 

requires to enter their vote. Under Collins v. Day, such different 

treatment of absentee voters is only allowed if it is reasonably 

related to “inherent characteristics,” not “mere characteristics,” 

that supposedly make absentee voters different than the regular 

voter. Such different treatment must be justified by substantial 

considerations, not arbitrary or capricious. 

Destroying one’s fundamental right to vote because of a clerk’s 

mistake is totally unjustified. It is not reasonably related to any 

inherent characteristic of absentee voters that is different than a 

regular voter, especially those who vote absentee in person at the 

Clerk’s own office just like regular voters at their neighborhood 

polling places. Clerks are human and will always make mistakes. 

But why kill an absentee vote, but not the regular vote? There is 

no reason, and Section 13 accordingly violates Article 1, Section 

23 of the Constitution of Indiana. 

10
Even if a reasonable argument can be made that absentee voting by 

mail is “inherently” different, Collins requires a showing that the 

“preferential” treatment, that is, upholding the right to vote despite 

clerk’s mistakes, must be available to everybody in the same 

group. Since Section 13 does not differentiate between absentee 

voting by mail, and absentee voting in person, it still must fail. 

App. at 59. 

 We disagree with the trial court’s evaluation of Indiana Code section 3-12-1-13 under 

Collins. First, we find that there are indeed inherent differences between all absentee voters and 

Election Day voters. By their very nature absentee ballots differ from Election Day ballots. See

Ind. Code § 3-11-4-1. Eligible voters may qualify to cast absentee ballots when faced with 

certain enumerated circumstances that make it impossible to vote at their polling places on 

Election Day. While it is true, as the trial court discussed, that some absentee ballots are given 

by voters directly to election officials, as in Election Day procedures, the “in person” aspect of 

the ballot-casting does not eradicate the inherent differences between these types of voting. 

Because the absentee voter is not present at the Election Day polling site, the absentee voter is 

not exposed to the extensive precautions followed by Election Day officials to guard the integrity 

of the ballots.6

 The fact that absentee ballots reach the hands of election officials outside of the 

confines of the Election Day polling place necessitate statutory procedures for receiving, 

verifying, storing, transporting, and counting these ballots. See, e.g., Ind. Code §§ 3-11-10-1, 3-

11-10-3 to -22. This is true for all absentee balloting, whether by Mail-in, Walk-in, or Shut-in 

voters. 

 Second, we find that the combined application of Indiana Code sections 3-12-1-12(b) and 

-13 reasonably relate to this difference. As we look for a reasonable relationship between the 

inherent difference between absentee and Election Day voters and the preferential treatment 

given to Election Day voters under these statutory provisions, we are extremely deferential to the 

legislature. Collins, 644 N.E.2d at 79-80 (“[T]he courts must accord considerable deference to 

the manner in which the legislature has balanced the competing interests involved.”) (citing 

 

6

 For information about polling site procedures and safeguards, see Indiana Election Division, 2004 

Indiana Election Day Handbook: A Guide for Precinct Election Boards and Poll Workers (2003), 

http://www.in.gov/sos/elections/pdfs/2004_Election_Day_Handbook.pdf. 

11
Johnson v. St. Vinc. Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585, 604 (1980)). Under Indiana law, 

an absentee ballot may be irrevocably invalidated by an election official’s failure to affix 

necessary endorsements to the ballot. Where an Election Day ballot lacks the necessary 

endorsements,7

 however, the language of Indiana Code section 3-12-1-12(b) permits its inclusion 

in a subsequent recount. As this Court has previously noted, “[t]he importance of having the poll 

clerks’ initials on the ballots . . . insures the integrity of the voting system.” Schoffstall v. 

Kaperak, 457 N.E.2d 550, 554 (Ind. 1984) (citing Wright v. Gettinger, 428 N.E.2d 1212, 1219 

(Ind. 1981)).8

 And “[i]n order to keep the integrity of the system it may happen that some 

individual voters will be disfranchised through no fault of their own, and in situations where they 

have made an honest effort to vote for the offices of their choice.” Wright, 428 N.E.2d at 1220. 

Although the legislature has included numerous provisions in our code meant to protect the 

integrity of absentee ballots cast,9

 those provisions cannot safeguard the ballots and the intent of 

the individual voters to the extent that provisions surrounding Election Day procedures can. For 

example, Election Day polling sites operate as closed environments. Only precinct elections 

officers (including the election sheriff, inspector, two judges, poll clerks, and assistant poll 

clerks), deputy election commissioners, authorized watchers, and precinct pollbook holders are 

permitted in the Election Day polling place except for voters casting ballots and their underage 

children. Ind. Code § 3-11-8-15; Ind. Election Day Handbook at 4. If a ballot originates from a 

particular precinct polling place, every election worker present is easily discerned. It is also 

known that each of those election workers (with the possible exception of the election sheriff) 

was present at the site for the entirety of Election Day. Ind. Code § 3-11-8-12; Ind. Election Day 

Handbook at 3. But absentee voters might encounter many other individuals while casting their 

ballots at home or in the clerk’s office, thus allowing greater opportunity for outside influences 

to impact their votes. And absentee voting may take place over a period of up to ninety days, 

creating situations in which completed ballots in a precinct are received by different county 

employees in the presence of a variety of individuals. Ind. Code §§ 3-11-4-4, 3-11-4-18. Thus it 

 

7 See Ind. Code § 3-12-1-2. 

8 Schoffstall discussed a previous code provision. 

9 See Ind. Code §§ 3-11-10-1, 3-11-10-3 to -22. 

12
is reasonable that the legislature believed it in the interests of Indiana voters to more stringently 

govern absentee balloting. 

 Finally, we note that the preferential treatment, i.e. access to recount procedures in cases 

of clerical error, is equally available to all Election Day voters. There is no contention 

otherwise. 

 Because we find that the preferential treatment given to Election Day voters under 

Indiana Code section 3-12-1-13 is reasonably related to the inherently different characteristics of 

Election Day voters and absentee voters and that all Election Day voters receive the same 

treatment under the statute, we hold that Indiana Code section 3-12-1-13 is constitutional under 

Article 1, Section 23 of the Indiana Constitution. 

Conclusion 

 We affirm that portion of the trial court’s judgment that concluded the Recount 

Commission’s findings of voter intent were non-appealable findings of fact. We reverse that 

portion of the trial court’s judgment declaring unconstitutional Indiana Code section 3-12-1-13. 

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur. 

13