Fultz v. Newkirk 475 N.E.2d 706 475 N.E.2d 706 (Cite as: 475 N.E.2d 706) Page 1 Court of Appeals of Indiana, First District. John D. FULTZ et al., Appellant, v. Frank E. NEWKIRK, Sr. et al., Appellee. No. 1-684A146. March 18, 1985. Unsuccessful mayoral candidate appealed from decision of the Circuit Court, Washington County, James Kleopfer, Special Judge, in election contest proceedings, declaring opponent to have been elected mayor. The Court of Appeals, Robertson, J., held that: (1) absentee ballots in three precincts were not to be counted, since they were not initialed by the poll clerks, and (2) trial court properly determined with respect to marks on contested ballots susceptible of more than one inference that irregularity of one mark resulted from voter's infirmity and was not prohibited distinguishing mark, X's made by blue pencil covered by X's made by ballpoint pen did not invalidate ballots, inadvertent marks or retracing were not prohibited distinguishing marks, and ballots marked with check mark rather than X were invalid under then-existing law. Judgment affirmed. West Headnotes [1] Elections 227(8) 144k227(8) Most Cited Cases Absentee ballots from three precincts could not be counted in mayoral election, since they were not initialed by the poll clerks. IC 3-1-22-12, 3-1-25- 1 (1982 Ed.). [2] Elections 180(2) 144k180(2) Most Cited Cases [2] Elections 186(4) 144k186(4) Most Cited Cases In mayoral election contest proceedings, trial court properly determined with respect to marks on contested ballots susceptible of more than one inference that irregularity of one such mark resulted from voter's infirmity and was not prohibited distinguishing mark, X's made by blue pencil covered by X's made by ballpoint pen did not invalidate ballots, inadvertent marks or retracing were not prohibited distinguishing marks, and ballots marked with check mark rather than X were invalid under then-existing law. IC 3-1-22-21, 3-1-25-1, 3-1-25-18 (1982 Ed.). *706 William T. Lawrence, Lawrence, Carter, Gresk, Leerkamp & Walsh, Indianapolis, for appellant. Andrew Wright, Salem, for appellee. ROBERTSON, Judge. The appellant John D. Fultz is appealing from a trial court decision declaring appellee Frank D. Newkirk, Sr. to be the elected Mayor of the City of Salem, Indiana. The counting of the ballots after the November, 1983, mayoral election for the City of Salem showed that Fultz received 1218 votes and Newkirk 1213 votes. Newkirk *707 sought a recount with Fultz cross-petitioning for a recount. The recount commission issued its certificate of recount with both parties receiving 1205 votes. Both parties sought a final hearing before the Washington Circuit Court. After receiving evidence on the matter, the special judge entered a lengthy judgment detailing why or why not numerous contested ballots should or should not be counted. It was determined that Fultz received 1072 votes and Newkirk received 1091 votes. Newkirk was declared elected with this appeal following. We find no reversible error raised in the fourteen issues presented by Fultz. [1] Fultz's first issue claims error in the trial court's finding that all the absentee ballots in three precincts were not to be counted because the ballots were not initialled by the poll clerks. In making his argument he relies upon three theories. The first is a series of older cases holding that the failure of poll clerks to initial a ballot, standing alone, does not invalidate a ballot. See: Lorch v. Lohmeyer, (1969) 252 Ind. 182, 247 N.E.2d 61. Fultz also argues that a 1976 legislative amendment to IND.CODE 3-1-22-12 deleting initialling requirements substantiates his position. It is also argued that the cases of Wright v. Gettinger, (1981) Ind., 428 N.E.2d 1212 and Schoffstall v. Kaperak, (1982) Ind., 457 N.E.2d © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 217