Sunday, November 2, 2008

Judge rules challenged absentee ballots won't be counted

Judge rules for GOP on absentee ballots

By Jon Murray

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A Marion County judge ordered Friday that absentee ballots challenged at the polls on Election Day be set aside for review by bipartisan teams later in the week.

County Republicans said the ruling, issued in response to their lawsuit, is likely to end up affecting few ballots and would follow a process in place in Marion County under the previous clerk.

But it means that any ballots facing challenges won't be counted Tuesday or show up in election results that night.

Circuit Judge Theodore Sosin, a Republican, stressed after hearing four hours of arguments Friday that all valid ballots would eventually be counted.

At the center of the dispute are tens of thousands of early votes cast by mail or in person in an election drawing record interest.

Those ballots will be sent in sealed envelopes to the voters' precincts Tuesday to be counted. Republicans didn't like the way election officials, led by Democratic County Clerk Beth White, planned to advise poll workers to deal with any challenges of those votes, allowing some to be counted immediately.

A statement issued late Friday by White said the Election Board would comply with Sosin's order but planned to request an immediate review by the Indiana Court of Appeals. Sosin denied a motion by the Election Board to stay his ruling.

"The Marion County Election Board will do everything in its power to make sure all validly cast absentee ballots will be counted," White said.

Sosin's order said the process White and Election Director Andy Mallon planned to use for challenged absentees would violate Indiana law.

They had said a "precinct board" -- made up of one inspector and a judge from each party -- should address on the spot any challenge based on a voter's eligibility to vote in the precinct. If a majority agrees the ballot is valid, Mallon said, they should feed it into the counter.

But Sosin wrote that the process would provide no remedy if the voter turned out to be ineligible, since ballots fed into a machine can't be tracked.

He wrote that the order applied to mail-in ballots, but those are lumped in with absentee ballots cast early in person before they're sent to the precincts.

The judge agreed with Republican Party attorney David Brooks, who argued the law's intent was that absentee ballots drawing challenges be treated the same as challenges of in-person voters Tuesday.

If their residency or eligibility is in question, such voters' ballots are set aside as provisional. After Election Day, the Election Board convenes bipartisan teams to examine voter registrations and decide whether to count the ballots.

A handbook put out by the Indiana secretary of state and the Indiana Election Board advises treating challenged absentee ballots as provisional.

Former County Clerk Doris Anne Sadler, a Republican, said Marion County followed the same rule and set aside all challenged absentee ballots when she oversaw elections, through 2006. Sadler attended Friday's hearing.

Sosin's order said the Election Board should attempt to notify absentee voters whose ballots are set aside.

No mass-challenge efforts were planned by Republicans, said county GOP Chairman Tom John, adding that the ruling might affect few, if any, ballots.

"I just want a fair election," John said. "This may be much ado about nothing. It may end up (affecting) one ballot or no ballots," he added. "But we know that Clerk White was not going to follow the law."

County Democratic Chairman Ed Treacy, Marion County Sheriff Frank Anderson and former U.S. Rep. Andy Jacobs Jr., D-Indianapolis, spoke out against the GOP lawsuit, filed Wednesday, outside the City-County Building on Friday.

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