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Friday, October 31, 2008

Ind. Courts - Still more on: Court of Appeals hears oral argument in the Lake County early voting case [Updated]

Updating this entry from this morning, the Court of Appeals panel has issued a 29-page opinion in John B. Curley, et al vs. Lake County Board of Elections and Registration, et al . But when, and where it is, I can't tell you right now. Here is what the docket says - I just checked it:

10/31/08 ISSUED THE ENCLOSED OPINION:
AFFIRMED AND REMANDED------NAJAM, J.
MAY, J. AND ROBB, J. CONCUR
29 PAGES KM
What was affirmed? Here is the 23-page opinion of Lake County Special Judge Diane Kavadias Schneider - see this ILB entry from Oct. 22nd for details.

[Update at 3:57PM] Okay, here it is, John B. Curley, et al. v. Lake Co. Board of Elections and Registration, et al, a 29-page, 3-0 opinion filed at 3:15 PM. Judge Najam writes:

The Curley Plaintiffs, the Appellees, and the State as amicus curiae raise numerous issues for our review, including issues under Indiana’s Constitution, the Voting Rights Act, and the Constitution of the United States. But this challenge to early voting—legally described as “in-person absentee voting”—presents the court, primarily, with a question of statutory interpretation. * * *

[I]t is unnecessary to address all the claims and defenses asserted before the trial court and this court in order to decide this case.5 In addressing the broad issue of whether the Board showed by a preponderance of the evidence that it met the four requirements for the issuance of a preliminary injunction, we focus on two questions of law:

1. Whether in-person absentee voting locations at offices of the circuit court clerk are “satellite offices” for purposes of Indiana Code Sections 3-11-10-26 and 3-11-10-26.3; and

2. Whether Indiana Code Section 3-11-10-26(a)(1) requires the Board to hold in-person absentee voting only in the Board’s office.

We hold that the trial court’s order was not clearly erroneous when the court determined that offices of the circuit court clerk are not “satellite offices” and that Indiana Code Section 3-11-10-26(a)(1) does not restrict the authority of the Board of Elections to conduct in-person absentee voting in the offices of the circuit court clerk. Thus, we affirm the Preliminary Injunction. * * *

Critical to the Curley Plaintiffs’ position on appeal is their allegation that the Board clearly violated Indiana law by opening the disputed in-person absentee voting locations. More specifically, the Curley Plaintiffs assert that the Board of Elections’ decision to open in-person absentee voting sites at the offices of the circuit court clerk in Gary, Hammond, and East Chicago violates Indiana Code Sections 3-11-10-26(a)(2) and 3-11-10-26.3. * * *

The Board’s conclusion that an office of the circuit court clerk is not a satellite office for purposes of in-person absentee voting is not clearly unlawful. See I.C. §§ 3-11-10-26, 3-11-10-26.3. The Board of Elections did not clearly misinterpret the law when, in exercising its general authority over local elections, it provided for early voting in the offices of the clerk. See I.C. §§ 3-6-5.2-6, 3-11-10-26. In sum, we hold that the Board did not clearly violate the law when it authorized in-person absentee voting in offices of the circuit court clerk in Gary, Hammond, and East Chicago.

Thus, the trial court did not abuse its discretion, and its order was not clearly erroneous, when the court granted the preliminary injunction prohibiting the Board from terminating early voting in the circuit court clerk’s offices in those locations. It was reasonable for the court to conclude that the office of the circuit court clerk is not equivalent to a temporary satellite voting site selected by the Board under Section 26.3, such as a school, church, or library, but is instead a permanent absentee voting location specifically identified in the statute. And the public interest in exercising the right to vote unquestionably weighs heavily on the side of the Board’s decision to open these early voting locations, especially when the Curley Plaintiffs have wholly failed to show that they have been harmed in any way. As such, the Curley Plaintiffs are unable to satisfy the demands of the per se rule, and they have not demonstrated that the trial court clearly abused its discretion in granting injunctive relief under the standard four-prong test. Walgreen, 769 N.E.2d at 169.

Under our standard of appellate review in an appeal from the grant of a preliminary injunction, we conclude that the trial court did not abuse its discretion and that the trial court’s determination is not clearly erroneous. The court’s findings are supported in the record, and the judgment is supported by the findings. Accordingly, we affirm the preliminary injunction.

Affirmed and remanded for proceedings not inconsistent with this opinion.

[Updated 11/1/08] Ken Kusmer of the AP has a story today on yesterday's COA's ruling. A quote:
The Court of Appeals rejected Republican arguments that state law required a unanimous decision by the election board to open the satellite centers.

The Indiana Republican Party had no comment on the ruling, spokesman Jay Kenworthy said. It was unclear whether the GOP would appeal the case to the Indiana Supreme Court with only one regular business day remaining before Election Day. * * *

Republican attorney Karl Mulvaney said Thursday, in oral arguments before the appeals court, that the GOP was no longer challenging the centers over voter fraud concerns but simply wanted the legalities addressed.

Up until then, Democrats had accused Republicans of using scare tactics by raising concerns about voter fraud and said the GOP was trying to suppress votes by the poor and minorities who would favor Obama. Many of those residents lack transportation to the county's other early voting site in predominantly white Crown Point and might not be able to cast ballots on Election Day, Democrats have argued.

Posted by Marcia Oddi on October 31, 2008 03:31 PM
Posted to Ind. App.Ct. Decisions