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.