One hundred twenty-two ballots cast in last week’s election were not counted because they were improperly marked before they were given to voters, in violation of election law, the Brown County Election Board believes.

Who marked them and why has not been explained, and whether or not it is legally possible to count them is now under review.

The election board has scheduled a special meeting for Tuesday, June 9 at 6 p.m. to look over these ballots, with law enforcement present.

All 122 ballots have been turned over to the Brown County prosecutor’s office, along with the sworn testimony of all members of the Brown County clerk’s office staff which was given during the May 27 election board meeting via Zoom.

At that meeting, no members of the staff admitted to marking any ballots in a way that would make it look like election board representatives had initialed them.

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However, that’s what happened, Republican election board member Mark Williams alleged. He and Democrat election board proxy Michael Fulton identified one mail-in ballot in mid-May as containing initials that were not their own.

At the time, the election board was investigating how a local woman ended up receiving two absentee ballots in the mail on the same day, postmarked May 2. When those two absentee ballots were recovered, that’s when the initials were discovered.

On primary election day June 2, Williams and Democrat election board member Amy Kelso inspected all absentee ballots that had been voted by mail or early in person and weren’t disqualified for another reason, like having no voter signature on the envelope. In total, 1,395 absentee ballots were counted this election.

That day, Kelso and Williams found 122 more ballots with initials that did not match the way the board members actually write their initials, Williams announced at the June 4 election board meeting.

Those ballots were set aside and not counted. They went into an envelope which was sealed and signed by both Kelso and Williams, and that envelope was transferred to the custody of law enforcement.

On June 5, Prosecutor Ted Adams said he spent most of the day with a bipartisan team, trying to figure out a way to allow those votes to be counted, tallied and returned to the custody of law enforcement without compromising “potential evidence.”

The team wants to avoid disenfranchising voters, he said.

He’s also requested that the Indiana Secretary of State and her team do an audit of Brown County’s primary election, and has requested that the Indiana State Police Special Investigations Section do a full investigation, he said.

At the May 27 meeting, Brown County Clerk Kathy Smith had voted against the election board doing the additional review of absentee ballots on election day, which is when they found the 122 other initialing problems. The absentee board members would already be looking at them, she said.

“The perpetrator of these acts assumed that the ballots would not receive such heightened scrutiny,” Williams wrote in a report on behalf of the board, which was read into the record at the June 4 meeting.

“The perpetrator of the aforementioned acts knowingly and intentionally caused to be presented to voters non-conforming ballots — thereby creating events that would lead to those voters being denied their vote. … Such acts are antithetical to the purpose of the Election Code … and most importantly, the sacred foundations of representative democracy,” he wrote.

Williams said he and Kelso did not count how many of the 122 improperly initialed ballots were Democrat ballots and how many were Republican ballots. They were focused on looking at the initials.

“I will say I did look at many and it did not seem to be politically unbalanced. Both parties were affected,” Kelso said.

At the June 4 meeting, Smith also took issue with those ballots being removed and set aside. She said that “caused the chain of custody to be broken and therefore could jeopardize the verification of the election.”

By law, the board must certify election results by June 12.

Why do the initials matter?

“The initials signify that the ballot card is now ‘live’ and officials have reviewed and confirmed the voter to be a qualified voter of the precinct,” said Angela Nussmeyer, co-director of the Indiana Election Division. “Further, it’s a security measure to ensure the ballots are official and not a manufactured facsimile.”

Indiana Code 3-11-4-19 requires an absentee ballot to be marked by two members of the absentee voter board, the county election board or their designated representatives before it is given to a voter.

The election board includes one Republican, one Democrat and the county clerk as secretary. Absentee voter boards also contain one Democrat and one Republican.

Nussmeyer said that that procedure for reviewing ballots by a bipartisan team has existed since at least 1986.

“I hate to speculate the legislative intent here, but would assume it’s related to ensuring the bipartisan nature of our election procedures generally,” she said.

In not counting the 122 ballots, “the Board had no choice since (1) the Ballots were non-conforming to law; (2) the identity of the perpetrator was and is unknown; (3) the perpetrator’s motive and intent was and is unknown; and importantly (4) the scope of those involved is unknown,” Williams wrote in his report.

However, the prosecutor’s team is now looking into what can be done under the law to not deny voters their right.

On election day, three bipartisan pairs from the absentee voter board checked the signatures on all absentee ballot envelopes against signatures on file from voter records. That review included the 122 ballots that were later flagged by the election board for the initial problems. In passing those ballots to the election board, the absentee voter board signified that those appeared to have been otherwise valid ballots.

No ‘mere clerical mistake’

Smith, as Brown County clerk, is in charge of the election process with the support of the election board. She ran as a Republican and was elected in 2018 over Democrat incumbent Brenda Woods. She has 2 1/2 years left in her term.

When asked if she had a comment after the June 4 meeting, Smith sent a brief written one: “I look forward to commenting at an appropriate time.”

Smith testified during the May 27 election board meeting that she had not trained her staff in election matters.

Deputy Clerk Laura Wert said she only got involved in the balloting process starting May 12 — which was the same day that an absentee voter board was brought in to help with the large volume of mail-in ballot requests.

Before then, only Smith was sending out ballots, Williams’ report said.

“Most of the rejected ballots bore initials made, in the opinion of Ms. Kelso and Mr. Williams, by the same hand and with the same type of pen as was Voter’s in-question ballot,” Williams wrote, referring to the duplicate ballot that was the focus of the initial investigation.

“Since at all times relevant to this investigation the absentee ballot application fulfillment process was under the control of Ms. Smith (save for the review and initialing of the ballots by Mr. Fulton and Mr. Williams) who and how did someone outside the Clerk’s office have access to the ballot and falsely mark the ballot with the initials of members of the Board?” Williams wrote.

“The initials placed on the Ballots could not have been a mere clerical mistake or an accident,” his report alleged.

“The Ballot’s indicated initials, falsely representing the initials of members of the Board, were knowingly and intentionally made; and they evidence an apparent pattern of deceit all in violation of IC-3-11-4-19. The motive is not completely clear, but such a pattern of deceit cannot be ignored.”

‘Regardless of political affiliation’

Prosecutor Adams, a Republican, took control of the investigatory materials after the meeting.

“This matter is no longer about county workers, Democrats and Republicans,” he said. “This investigation is needed to ensure the integrity of one of our most cherished and sacred foundations of our great Republic: a free, fair, and equal election. The Brown County Prosecutor’s Office has been and will continue to work with individuals striving to ensure the integrity of this election, regardless of political affiliation.”

The Brown County Republican Central Committee and the Indiana Republican Party have disavowed any association with Smith, Chairman Mark Bowman said a written statement released before the June 4 meeting. He said that a series of party votes happened in the fall of 2018, after Smith had won the Republican primary but before the general election.

“Ms. Smith initiated the process to file for the Brown County Clerk without the support or endorsement of the Republican Central Committee or the Indiana Republican Party,” Bowman wrote.

She would have been able to run as a Republican without the party’s endorsement if she voted Republican in the previous primary.

The local Republican Party does not consider Smith to be a member in good standing, Bowman wrote.

However, last week, Smith was one of the six candidates chosen by Republican voters to represent the party at the state convention, scoring the fourth-highest number of votes of the 10 candidates.

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For the 122 voters whose ballots were set aside and not counted in this election because of the ballot initialing problem, a revote is not possible.

One reason is because the election board does not know which voters were affected. They were looking at the ballots only, which had no marks on them that would identify voters, said election board member Mark Williams.

This means that, if you were a mail-in voter, there’s no way to check to see if your ballot was among the 122.

The ballot envelopes, which do have voter names on them, were separated from the actual ballots by a bipartisan team before they went to the election board’s table for this extra review.

“We were the last stop before the ballots were counted with all the rest,” Williams said, referring to himself and election board member Amy Kelso. They inspected the ballot initials and set aside ballots that were nonconforming. Typically, this step would not happen.

About a revote, “there is no opportunity once the election closes,” Williams said.

“As much as we would love to allow folks to revote, even if we knew who — and we do not — the law doesn’t allow for it,” Kelso added.

However, the prosecutor’s office and election board are looking at how they could still count these votes and not affect the integrity of these ballots, which are now being treated as evidence would. A special meeting has been set for this Thursday at 6 p.m. on Zoom.

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