BOONE COUNTY, Ind. (WXIN) — An Indiana man in jail awaiting trial in the death of his wife has won the Republican primary for a seat on a township board.

Andrew Wilhoite, of Boone County, received 60 votes (21.74%) in the GOP race for the Clinton Township board. He is one of three winners in the primary race along with Bradley J. Smith (39.86%) and Michael Young (38.41%).

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Unless Wilhoite is convicted of a felony or withdraws before November, voters in Boone County can expect to see his name on the ballot in the upcoming general election.

In March, Wilhoite was charged with murder in connection with the death of his wife, Elizabeth “Nikki” Wilhoite.

Nikki Wilhoite had been reported missing by friends on March 25. When police initially showed up at the Wilhoite home to investigate, Andrew Wilhoite told them they had gotten into a fight the night before and Nikki was probably at her sister’s, according to court documents.

Police said they found blood in the master bedroom and bathroom and learned Nikki Wilhoite, who had recently successfully undergone chemo treatment, had filed for divorce on March 17.

After being questioned by Indiana State Police, a probable cause affidavit shows, Andrew Wilhoite confessed to fatally striking Nikki in the face with a gallon-sized cement flower pot and then throwing her body in a nearby creek.

Andrew Wilhoite (photo provided by Boone County Sheriff’s Office), Nikki Wilhoite (photo provided by Indiana State Police)

Still, because Wilhoite has only been charged with a felony, not convicted, there is nothing that legally prevents him from being on the ballot.

“It’s really important for people to understand in Indiana and all states in the United States is the fact that being accused of a crime is very different than being convicted of a crime. A person loses ballot access in Indiana, in other words, the right to run for or serve in public access, if they are convicted of a felony. This is very different than being accused because there is a presumption of innocent, which means that person very well may be found innocent and, therefore, be able to serve in office,” said Elizabeth Bennion, Chancellor’s Professor of Political Science at Indiana University South Bend.

County GOP officials said Wilhoite met the deadline to declare his candidacy for a party nomination, in February, prior to his arrest.

“For the primary election, a candidate has approximately 30 days and that begins about the second week of January and ends in February,” said Debbie Ottinger, Boone County Republican Chairwoman.

According to the State’s Election Division, a candidate who chooses to withdraw from the primary election would need to submit that request by Feb. 11, also prior to Wilhoite’s arrest.

“In this situation, his arrest came after that, so he remained on the ballot,” said Ottinger, who said the options were, and still are, limited.

“You can’t remove him. We could not go in and say, ‘We want to remove this individual.’ A normal voter or resident in Boone County cannot go in and request that,” Ottinger explained.

Nobody else can remove Wilhoite from the ballot besides himself.

According to the Indiana Secretary of State’s Election Division, if nominated at the primary election, convention or by petition of nomination, a candidate has until noon on July 15 to submit their withdrawal.

Since Clinton Township only has one precinct, when an office holder resigns or a candidate chooses to withdraw their name from the ballot, the office holder’s party can choose a replacement. In that event, the new individual would assume the space on the ballot to be voted on in November.

Unless withdrawing is a move he decides to make, Wilhoite’s name would remain on the ballot as long as he is not convicted of a felony, in which case, there would be an automatic disqualification, officials said.

“It may be something of everything that has to be dealt with, that this would be the least important thing and there’s a very easy way to solve that, if he would choose to do that. I would not be the one to approach him about that, it would be people who know them, or he may see this and say, ‘Give me the paper’ or ‘I don’t have time to worry about that,'” said Ottinger. “It has to be his decision at this point in time as far as that’s concerned if nothing changes as far as the court system, so he’ll be the one to make that decision.”

In the event that a candidate is found guilty of a felony crime after the withdrawal deadline and ahead of the election, Ottinger explained how that would work.

“There’s another form that he would need to file. Now, if he chose not to do it and anyone just said, ‘I’m done, I don’t want to file anything else,’ then there could be a court action taken, asking the judge to remove that individual from the ballot, and if ballots had already been printed, according to Brad King at the State Election Division, you would have to go back and re-print your ballots,” Ottinger said.

“It would be a huge situation for that to happen because you’ve already had people vote, so then you would not be able to count that vote for that one, but you would add the new name on, then you would have to have new ballots printed and that’s what the future voters would use up through election day in November,” said Ottinger.

In her role, Ottinger said she’s never had a situation like this occur, and so she reached out to the state’s Election Commission to be sure of everything that needs to be done to ensure they are following the law, and if a change is required, that they take the correct steps.

“It certainly is understandable if you’re in jail, why people would think, ‘How do you get to be an elected official? How do you get to serve?’ You can be in jail for a number of issues, reasons and different charges, but until you are convicted of a felony offense, you remain on the ballot,” said Ottinger.

So, with three positions available and only three GOP candidates on the ballot during the primary, was Wilhoite an automatic shoo-in to earn a spot on the ballot in the November general election?

The simple answer is no.

“When you have three positions available and you only have three individuals file for those positions and they receive at least one vote, they automatically go to the November election,” said Ottinger.

Ottinger said, if any of the candidates received no votes during the primary, they would not automatically move to the November ballot.

“I think sometimes people believe if there are three individuals on there and it says vote for three. I think some people feel like if they don’t vote for all three people, then maybe their ballot won’t count,” said Ottinger.

“For some of these races like a township advisory board, the top three vote-getters will be selected. That doesn’t mean that voters necessarily need to cast three votes. They could vote for one person or the two people they like best. Similarly, voters will not spoil their ballot by leaving some races blank,” said Bennion. “They can pick and choose which races to vote in and those that they record are the ones that actually then are counted in terms of how many votes each person got.”

“That doesn’t change the fact that a person that got one or two votes could potentially go through to the general election because it is the top three,” Bennion added.

In this case, there were only three candidates, so it only took a single vote to put any of the three through.

During the primary election, there were no Democratic candidates on the ballot to pursue a seat on the Clinton Township Board, but that could change by November if candidates in other parties elect to run for vacant slots.

“If there were challenges on the other side, then it would be left to the court of public opinion to decide how much that particular accusation would weigh in their mind when they vote, because in the general election, even if you’re a Republican, you can vote for a combination of Republicans and Democrats. Similarly, if you’re a Democrat, and so some people might split their ticket if this was something that was particularly troubling to them,” said Bennion.

According to court records, Wilhoite’s next hearing is scheduled for May 27 in Boone Superior Court and a jury trial has been preliminarily scheduled for Aug. 29.

By law in Indiana, a person charged with murder must be held without bond until trial, so if the date of his trial is moved back, no verdict is reached by November, and Wilhoite never filed a request to withdraw by the July deadline, he could win the general election if he receives enough votes, even while behind bars.

If this scenario occurs and an oath of office needs to be administered, Ottinger said, it would be the first time she’s ever been aware of a clerk administering an oath to a person behind bars.

“Never in the history of anything, and I’ve been involved with our party for a long time and knew people before I became involved, and I’ve never been aware of anyone getting their oath of office at the jail.”