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Courts leave election law questions unanswered

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In the days leading up to an Election Day where thousands of Hoosier voters had already cast ballots before polls even opened, Indiana's appellate judges issued a pair of election law rulings that leave more questions than answers and will likely lead to further review.

That review may evolve into post-election review, as parties get through today's historic presidential election and examine the next legal steps in cases of first impression arising from two of Indiana's most populated counties.

The state's Supreme Court and Court of Appeals issued rulings on Friday and Monday in one or both of these cases - Marion County Election Board v. Raymond J. Schoettle, et al.,  49S00-0811-CV-586, that involved the process of reviewing absentee ballot challenges; and John B. Curley, et al. v. Lake County Board of Elections and Registration, et al.,  45A03-0810-CV-512, that left early voting locations open.

Both decisions pointed to uncertainties and ambiguity in state statutes on those issues, but the public importance and limited timeframe before the election left the courts with little recourse other than upholding the local judges' decisions.

"These provisions are at least ambiguous and at most simply irreconcilable," Justice Robert Rucker wrote in Schoettle. "We are of course constrained by the emergency nature of these proceedings from providing a more thorough analysis of apparently conflicting Indiana election law statutes."

In Schoettle, Marion Circuit Judge Theodore M. Sosin on Friday ordered 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 county election board filed an emergency motion for stay pending appeal, arguing that the order was vague and contradictory and would require hundreds of poll workers to be retrained before Election Day.

A Court of Appeals decision came about 4 p.m. Monday, dissolving the preliminary injunction with a 2-1 vote. The appellate panel found that Judge Sosin erred in finding the appellees were likely to succeed on the merits. But within two hours of that decision, the justices handed down their own ruling that reinstated Judge Sosin's original order.

The unanimous order itself contained no rationale, but two concurring opinions outlined what at least two justices think about the issue.

Justice Rucker wrote that he had reservations about concurring because of ambiguity in the statutory scheme, but the constrained timeframe of only hours before Election Day arrived left him with little choice.

In agreeing to uphold Judge Sosin's order, Justice Rucker cited a chapter of an Election Day handbook distributed statewide by the Indiana Election Division that details guidelines to challenging an absentee ballot consistent with the trial court injunction.

Justice Frank Sullivan also wrote separately, noting that he too finds ambiguity in the statutes but that he expects this decision to affect few ballots, if any, because no allegation of fraudulent absentee ballots has been made.

A Court of Appeals panel offered similar rationale on Friday in Curley, which presented an issue of first impression for the court. In that decision, the court supported the election board's conclusion that a Circuit Court clerk's office is not a satellite location for purposes of in-person absentee voting and isn't subject to a unanimous election board vote. However, that decision came despite what it described as conflicting and ambiguous state statutes.

"In sum, we do hesitate to conclude that the meaning of these critical statutory provisions are subject to more than one reasonable and plausible interpretation and are, therefore, ambiguous," Judge Edward Najam wrote in the opinion, noting that even if the court found a violation of law, that the public interest weighs heavily in affirming the decision.

Now, the two sets of legal questions may present post-election arguments for those parties - they could ask for rehearings or further review and election results could be used in making the arguments.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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