The Resolution of Election Disputes: Legal Principles that Control Election Challenges The court of appeals continued its analysis by saying that, on review, the appellate court cannot weigh the evidence—it will only review the lower court’s decision to determine whether it made errors of law.84 Still, as will be seen below, the court of appeals was able to address the errant marks on the ballots in Fultz. As described by the court, instead of making an X as required by state law, voters made: • • • • • Two parallel lines crossed by another line, A strung bow mark, A pronged ‘X’, A small ‘x’ made by a dull or broken pencil, and An ‘x’ with a distinct spur. At 708. The court of appeals said that it would not decide (1) whether certain marks were an X as required by the statute, (2) whether an imperfect X was allowed (as in an earlier case) because the mark had been made by an infirm hand or (3) whether another ballot had a distinguishing mark prohibited by another statute. Those decisions, the appellate court said, would be weighing the evidence, and so the appellate court said it would let the trial court’s decisions on those issues stand. But the court of appeals took a slightly different approach to achieve a somewhat similar end when it talked about those marks in the context of reviewing whether the trial court followed the law. Thus, the court of appeals, citing the decisions in various prior Indiana cases on similar issues: • • • • Affirmed the trial court’s decision to count the infirm person’s mark of two parallel lines crossed by a third line, Affirmed trial court’s decision to disallow three ballots where a blue penciled X was covered by an X made with a pen, following a case that said that two Xs in one box invalidated the ballot, Affirmed the trial court’s decision that a retraced X that contained some parallel lines was inad- vertent and not a distinguishing mark, and Affirmed the trial court’s decision to exclude ballots marked with a check instead of an X (given that a statute to allow check marks became effective after the date of the election). At the end of this non-review reviewing, the court of appeals said that the trial court did not err in declaring Mr. Newkirk as the winner. D. Summary: Fraud invalidates a ballot but the will of the voter will be respected. • • 84 An illegally cast vote cannot be counted. It cannot be included in determining the will of the electorate. A court will void a precinct’s election results if violations of statutory requirements are so flagrant, extensive and corrupt as to destroy the fairness and equality of the election. This includes fraud or gross negligence on the part of officials. This maxim will be discussed in detail in Chapter 6. 100