FORT WAYNE, Ind. (WANE) – How the third At-large seat on Allen County Council will be filled could still be up for debate. Republican Roy Buskirk was re-elected Tuesday night, but he died last Friday.

Head of the Allen County Democratic Party Jack Morris now says under Indiana law, all the votes for Buskirk are null and void and the fourth place candidate, Democrat Palermo Galindo, should win the seat.

“I think the democrats are trying to steal the election from the republicans with an argument based on a weak set of facts that are distorted and an incorrect application of the law,” Allen County Republican Party Chairman Steve Shine said.

Morris said Indiana Code states the death of a candidate creates a “late candidate vacancy” and the party chairman should appoint a candidate to fill the spot. Another section then states that “a vote cast for a candidate who ceases to be a candidate may not be counted as a vote for a successor candidate selected under IC 3-13-1 or IC 3-13-2.”

“Apply the law as it is. That’s not stealing, that’s just following the law,” Morris said. “

On Monday, the day before the election, the Election Board met and by unanimous vote determined no changes to the ballot needed to be or could be made.

“Because the death was so close to Election Day, we were not only not mandated to do anything, as a practical matter, there was no way to show Mr. Buskirk as deceased or replace his name,” Tom Hardin, the chairman and republican appointee to the Election Board, said.

After any election, the Election Board will compile all the results, come to final totals and then certify the votes.

“Because there was no ballot change, we would certify the top vote-getters,” Hardin said Wednesday.

But, fellow Election Board member and democratic appointee Tim Pape said based on his understanding of the law, they can’t certify the votes for Buskirk.

“The law is clear. It says when a candidate dies, the seat is vacant. Buskirk was not a candidate on Tuesday,” Pape said.

Morris said Shine just needed to name designated successor, not change the ballot.

“It’s our understanding that person is the recipient of Roy Buskirk’s votes then,” Morris said. “The law provides that the Republican Party could have named a person to be the recipient of those votes. It’s no different than if they caucus someone in. That person is still not the person voters are voting in. If you don’t have a valid candidate designated, then it’s a nullity and you ignore those [votes] and go on to the next.”

Shine said he goes back to the board’s original determination on Monday.

“It stated the ballot could not be changed and there was no vacancy,” Shine said. “Had I appointed someone, their name would not have appeared on the ballot and under Indiana law, the votes cast for Roy Buskirk prior to his death do not transfer to a successor and under those circumstances, it would have been a certain loss and it would be a democratic gain under some very unfortunate circumstances that have no legal foundation.”

The republicans will have a caucus in the next few weeks to replace Buskirk for the rest of his current term. If the election board certifies the top three vote-getters, they would have to have a second caucus to choose who would fill the position for the next four-year term.

“If we think they are wrong under the law, we will issue a challenge to that,” Morris said.

The debate is likely to end up in front of a judge whether the Election Board certifies the votes for Buskirk or not. No matter the decision, one side won’t agree and both sides are prepared to take their arguments to court.

“We are confident we are on sound legal footing and have already put together a legal team who will fight this tooth and nail should the democrats decide to pursue this issue,” Shine said.

Morris said he didn’t announce the party’s opposition to Buskirk’s votes until late Tuesday because he didn’t want to influence how people might vote.

“We don’t want in any way to disrespect Roy Buskirk. He was a great public servant. We may disagree on policy, but not on his dedication to serving our community,” Morris said.

Buskirk lost his battle with cancer Friday. He was 72. Buskirk’s funeral service is 2 p.m. Thursday at Nine Mile United Methodist Church at 6303 Winters Road in Fort Wayne.