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Thursday, October 30, 2008

Ind. Courts - Court of Appeals hears oral argument in the Lake County early voting case [Updated]

The argument in John B. Curley, et al vs. Lake County Board of Elections and Registration, et al commenced at 1:30 PM this afternoon. Judge Najam, heading the three-judge panel that includes Judges Robb and May, spoke at the conclusion of the argument to say that the panel had received the case assignment last Friday, Oct. 24th and has been working on it since that time. He said "We are aware of the date of the election and we will be working to issue a written opinion as soon as possible."

If you missed the webcast, it is archived here. If you have had an opportunity to listen to the arguments, you will recognize that it would be much easier for the public to understand the issues in this case if the briefs of the parties had been made available. (I'm still hoping to obtain copies.)

The interpretation of IC 3-11-10-28 ("a voter is entitled to cast an absentee ballot before an absentee voter board") and 28.3 (authorization of satellite offices) was at issue in the arguments. Access the statute here.

[3:33 PM] Here is the first report in, a brief item on the Gary Post-Tribune site:

INDIANAPOLIS -- A panel of three Court of Appeals judges heard arguments Thursday afternoon in the Lake County early voting case, and Judge Edward W. Najam Jr. said they would rule as quickly as possible on whether to allow voting in the three sites to continue.

"We are aware of the date, that the election is approaching," Najam said.

During his argument on behalf of the Lake County Republican Party that the voting sites are illegal, attorney Karl Mulvaney said his clients would not seek to have votes already cast in the three northern cities invalidated, as attorneys for the GOP had previously told other judges they would do.

What the ILB heard on this point was Judge Najam asking Mr. Mulvaney a question, to paraphase the Judge: Going back to the initial pleading in the Judge Hawkins Court: -- unless restrained, voters risk having their votes held for naught and disallowed. We are not hearing this on the merits today but what is the relief sought, to set aside votes of early voters on the merits? Mr. Mulvaney responded: My clients are asking for declaratory judgment. * * * asking that the court issue a stay or an opinion that would be certified immediately back because this will keep coming back, it is not moot.

[3:51] Here is Patrick Guinane's story in the NWI Times:

INDIANAPOLIS | Lake County Republicans are no longer asking the courts to throw out ballots cast at contested early voting sites in East Chicago, Gary and Hammond.

Appearing before the Indiana Court of Appeals on Thursday, a lawyer for Lake County Republican Chairman John Curley said he also has dropped his contention that opening the early voting sites would increase the likelihood of vote fraud.

The Republicans still are seeking to halt early voting in the three Democratic strongholds. Attorneys for the Democratic-controlled Lake County Board of Elections and Registration contend that the Republicans haven’t proven anyone would be harmed if the sites remain open.

At issue is whether the East Chicago, Gary and Hammond sites are satellite voting centers, which, under state law, can only be opened by a unanimous vote of the county election board. The board voted 3-2 along party lines to open the centers.

The Democrats argue that the state law allows them to open early voting centers at both the election board office in Crown Point and at the circuit clerk’s offices in East Chicago, Gary and Hammond.

Republicans say the statute spells out an either or scenario designed to accommodate Lake and Tippecanoe counties, where the election board has more control over the voting process than the clerk. In the 90 other counties, the clerk is in charge.

Early voting began Oct. 6 at the election board office in Crown Point. It started Oct. 14 in East Chicago, Gary and Hammond, after lower-court judges refused the Republicans’ request for an injunction to stop those offices from opening.

Appeals Court Judge Edward Najam, who presided over Thursday’s arguments, said the three-judge panel would do its best to issue a decision as soon as possible. Early voting ends at noon on Monday.

[Updated at 7:40 PM] Mike Smith of the AP reports this evening:
INDIANAPOLIS - An attorney for Lake County's Republican chairman urged the Indiana Court of Appeals to close three early voting centers that they say opened illegally but said they would not seek to have thousands of votes already cast thrown out.

Attorney Karl Mulvaney told the court's three judges today that the sites in Gary, East Chicago and Hammond should not have opened because state law requires a unanimous vote to open satellite voting centers. The Democrat-led Lake County election board voted 3-2 along party lines to open the centers.

Today's hearing was the latest in the nearly monthlong dispute that has taken on racial overtones in the heavily Democratic county, which also is the state's most diverse. * * *

Mulvaney said today that the GOP was no longer challenging the centers over voter fraud concerns but simply wanted the legalities addressed.

A special judge appointed by the Indiana Supreme Court ruled Oct. 22 that closing the voting centers could jeopardize people's fundamental right to vote and violate the federal Voting Rights Act.

Lake County Superior Court Judge Diana Kavadias Schneider acknowledged in that ruling that state law requires a unanimous vote to open satellite voting centers but said the three sites in Gary, East Chicago and Hammond were allowable under interpretation of Indiana law. She noted that Lake County's court system is unique, with clerk's offices in multiple locations.

Mulvaney, however, said the law requiring a unanimous vote was clear and that if people wanted it changed, they should take their case to the General Assembly.

Appeals Court Judge Edward Najam asked both sides what would best serve the public's interest.

Mulvaney said it was in the public's interest that state law be followed.

"Who draws the line in this kind of situation is the General Assembly," he said.

Attorney Jonathan Weissglass countered that the public's interest was in early voting. He said it was a historic election and that long lines at precinct polling places are expected on Election Day. Without early voting, many people won't be able to cast ballots, said Weissglass, representing unions and the Indiana chapter of the NAACP who joined the case on the side of the Lake County election board.

Weissglass said Republicans were trying to shutter the extra voting centers in Lake County for fear that too many people would get to vote.

"What they are trying to do is stop people voting who differ from them," he said.

Indiana has a record 4.5 million voters registered this year, and state election officials have encouraged early voting to ease congestion at the polls on Election Day. As of this morning, nearly 410,000 people had cast early ballots statewide, more than 27,000 of them in Lake County.

Najam said the court would try to rule soon. Early voting ends at noon on Monday.

Posted by Marcia Oddi on October 30, 2008 02:55 PM
Posted to Ind. App.Ct. Decisions