¶1dissenting.
¶2The majority has correctly observed that the statutory provisions for an election contest upon grounds of fraud or election board misconduct have been repealed. One can only speculate as to what may have been in the minds of the General Assembly in demonstrating its collective wisdom.
¶3It may be that our legislature desired that elections tainted by fraud or election board misconduct be attacked not by the election contest provisions of I.C. 3-12-8-1 et seq. but by the recount provisions of I.C. 3-12-6-1 et seq. (Burns Code Ed.Supp. 1991). In particular, a broad reading of *311I.C. 3-12-6-3(5) might permit inclusion of invalid votes among those “not correctly counted and returned.”
¶4In any event, I cannot agree that a candidate who has been denied public office through fraud or official misconduct is without recourse. Fraud has always been held to vitiate a result thus obtained. 37 Am.Jur.2d Fraud and Deceit, § 8, p. 28 (1968 & Supp.1991). It is the public policy of this state to prevent fraud, not to perpetuate it. Kingan & Co., Ltd. v. Silvers (1894) 13 Ind.App. 80, 37 N.E. 413.
¶5Kraft’s petition was adequate to withstand the Motion to Dismiss premised upon T.R. 12(B)(1) or 12(B)(6). Accordingly, I would reverse the the judgment and order reinstatement of the Petition, whether to be considered as a contest petition or a petition for recount.