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Monday, November 03, 2008

Ind. Courts - Yet more on Marion County early voting case

The Court of Appeals has just issued this ruling:

HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:

APPELLEES' VERIFIED MOTION TO CONTINUE TO HOLD THE BOARD'S EMERGENCY STAY REQUEST IN ABEYANCE UNTIL THE INDIANA SUPREME COURT RULES ON APPELLEES' PENDING APPELLATE RULE 56(A) MOTION IS DENIED.

APPELLANT'S EMERGENCY MOTION FOR STAY PENDING APPEAL IS GRANTED.

JOHN G. BAKER, CHIEF JUDGE BAKER, C.J., MATHIAS, J., CONCUR. BROWN, J., DISSENTS WITH OPINION.

Here is the Order in Marion Co. Election Board v. Raymond J. Schoettle, Erica Pugh, et al. Chief Judge Baker writes:
As another panel of this court said just last week, "in interpreting Indiana's election laws, we respect the franchise: "In the absence of fraud, election statutes generally will be liberally construed to guarantee to the elector an opportunity to freely cast his ballot, to prevent his disenfranchisement and to uphold the will of the electorate," Curley v. Lake County Board of Elections and Registration. No. 45A03-08IO-CV-512. slip op. p. 17 (Ind. Ct. App. Oct 31. 2008) (quoting Brown v. Grzcskowiak. 230 Ind. 110. 128. 101 N.F.2d 639. 646 (1951 ). Thus. we must view the arguments before us with eyes that are lightly focused on the electorate and the franchise that are the heart of American government.

The statutes at issue contemplate a variety of problems that may arise with absentee ballots and explain how to resolve those problems. * * *

Before us now. however, are are the legislature's instructions on how to proceed if a written, emailed, or in-person absentee ballot is challenged prior to being placed in the ballot box on Election Day. Before Election Day. a challenge to the signature contained on the absentee ballot is resolved under Indiana Code sections 3-11-10-4. -5. -6. and -7. On Election Day, an absentee ballot challenge is made "for the reason that the absentee voter is not a legal voter of the precinct where the ballot is being cast. I.C. ยง 3-11-10-21. * * *

We hold that residency-based challenges to absentee ballots that occur on Election Day are to be resolved by the precinct boards according to the procedures outlined in Article 3-11.7: in other words, precinct boards are to take the same steps on Election Day regarding challenged absentee ballots as the county election board must take in the days following Election Day to determine whether a challenged provisional ballot is valid and must be counted or invalid and must be discarded. Thus. we conclude that the trial court erred by finding that the appellees are likely to succeed on the merits and entering a preliminary injunction in their favor.

For all of these reasons, we hereby order that the preliminary injunction issued by the trial court is dissolved. Furthermore, we order that the declaratory judgment entered by the trial court is stayed pending an appeal thereof. Should the parties wish to submit full briefs and further authority in support of their respective positions on the declaratory judgment, we direct the appellants to submit their materials within fifteen days of this order and the appellees to submit their materials vviihin fifteen days of the filing of the appellants" materials.

Posted by Marcia Oddi on November 3, 2008 04:21 PM
Posted to Indiana Courts