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Friday, September 18, 2009
Ind. Decisions - Re the question of when the voter ID decision is applicable
Re the proposition that the COA election ruling has no practical effect until it is certified, I asked Joel Schumm, IU-Indy law professor, who responded:
The certification rule refers to action by the trial court in the particular case. For example, if the court of appeals reverses a custody determination, the children would not be yanked from the losing parent immediately. The trial court must wait until certification of the opinion to act. This is a good idea; the COA is potentially just an intermediate stop in the appellate process.
I think it plays out a little differently in the election context. If the COA opinion has not been vacated, what should each of the county clerks around the state do in administering the election? Following the COA decision would seem like the best bet and would not violate the certification rule. If this were a general election with party candidates, I suspect there would be injunctions and other litigation. I doubt proponents or opponents of the Wishard or school measures would be as concerned or motivated to litigate voter IDs.
There is an easy solution in this case, though. The AG could file a petition to transfer in the next week, along with a motion to expedite, asking that the response time be shortened from twenty days to one week for the other side and for an expedited decision on transfer from the Indiana Supreme Court. This would almost certainly be granted, and there would be a decision on transfer within three weeks--and in plenty of time for training of election officials. The Indiana Supreme Court can move very quickly, as it did in the toll road case. The direct appeal was briefed and decided in a few weeks. Here, a transfer petition could easily be litigated in less time. All the arguments have been researched and argued in the COA; they just need to be repackaged a bit for transfer.
I think there is a 99% chance transfer would be granted, the COA decision vacated, and the election would proceed under the existing law.
Posted by Marcia Oddi on September 18, 2009 12:50 PM
Posted to Ind. App.Ct. Decisions