The plaintiffs in a Marion County suit involving how challenged mail-in absentee ballots are counted have filed a verified appellate Rule 56(a) motion for the Indiana Supreme Court to accept jurisdiction over their appeal.

Raymond J. Schoettle, Erica Pugh, and the Marion County Republican Party filed the motion Oct. 31 after Marion Circuit Judge Theodore M. Sosin ordered in Raymond J. Schoettle, et al. v. Marion County Election Board, 49C01-0810-PL-049131, that the Marion County Election Board is to treat all challenged mail-in absentee votes as provisional ballots and set them aside for future resolution by the election board pursuant to Indiana Code Section 3-11.7. The order also required the election board to instruct all inspectors and precinct board members to follow the procedures outlined in the Indiana Election Day Handbook.

The Marion County Election Board filed an emergency motion for stay pending appeal Oct. 31 to the Indiana Court of Appeals, arguing the trial court's order is "internally contradictory" and "vague," so the election board can't be sure what it requires. The election board also argues the injunction requires it to use certain procedures relating to the counting of absentee ballots that violate Indiana law and the federal Help America Vote Act. They want the emergency stay because they say the injunction is unsupported by law and will require hundreds of poll workers to be retrained before Election Day.

Schoettle and other plaintiffs believe the Supreme Court should take the appeal because the Court of Appeals will effectively become the court of last resort because the courts are closed tomorrow in observance of Election Day. The plaintiffs argue if the election board doesn't have to comply with the trial court's mandate, then challenged ballots will be scanned into the ballot box on Election Day and there is no way to remove a ballot to determine its validity once it's been scanned. Also, if the election board isn't required to comply with Indiana law, its handling of challenged mail-in absentee ballots will differ from what every other Indiana county does, violating the mandate in Bush v. Gore, 531 U.S. 98 (2000).