Pre-election appeals

November 3, 2008
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From IL reporter Michael Hoskins:

Election Day is less than 24 hours away, but that isn’t stopping the litigation and court filings. An emergency appeal is happening with the Indianapolis ruling that came from Marion Circuit Judge Ted Sosin late Friday, which ordered that the local election board follow state statute relating to challenged, mail-in absentee ballots. Indianapolis attorney Robbin Stewart also has asked the 7th Circuit Court of Appeals today to weigh in on his request to stop the state from enforcing the photo identification requirement on Election Day.

But not everyone is asking for appellate aid. There isn’t any new appellate action in the Lake County early voting case, which drew a significant ruling from the Indiana Court of Appeals late Friday. That decision kept the early voting sites open on an issue of first impression, and pointed out ambiguity in state statute. The appellate ruling affirms the trial court decision. A staff member for Special Judge Diane Kavadias Schneider said at 11 a.m. today that no further proceedings were scheduled and none would happen unless specifically requested.

A footnote from appellate author Judge Edward Najam notes in declining to order an entry of final judgment, “We believe the better course is for the parties to present their arguments to the trial court and for the trial court to enter its final judgment interpreting the relevant statutes.”

Appellate attorney Timothy Sendak in Crown Point says there’s no rush, given that early voting ends today and no ruling will likely affect that. “The next step legally is still being weighed, but let me go this far and say that we don’t think the (Court of Appeals) ruling is stare decisis.”

If that’s the case, it’s interesting that something that seems to be an appellate lawyer’s dream – first impression, ambiguity, and a pressing issue of public importance – wouldn’t be taken to a higher level. Maybe that’s what is being decided behind the scenes – that this could go from an early voting case to a post-election challenge depending on who wins.
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