I wrote this for a diary at Daily Kos and am reposting it here. The fact that it was a non-Indiana audience is the reason for all the background material that might seem odd for consumption here.

Lake County Indiana, the second most populous Indiana county in the northwestern corner near Chicago, has been the location of a vigorous legal battle concerning early voting sites. Today, yesterday a trial court authorized early voting (pdf) at additional voting centers in Gary, East Chicago, and Hammond; and ordered that votes cast prior to the decision at these sites be counted.

Indiana allows in-person early voting as a matter of state law at the offices of the clerk of the county’s circuit court. Typically this means at the county seat. In Lake County, this happens to be the city of Crown Point. Indiana law allows county election boards to authorize additional satellite voting sites but only if it is done by unanimous vote. However, there is potential ambiguity in Lake County due to the presence of courts and offices of the circuit court clerk in cities other than Crown Point.

Prior History
Initially only Crown Point had an early voting site in the Lake County government center there. On September 23, the Lake County election board voted, along party lines, to also allow voting in Gary, Hammond, and East Chicago. The Republican members claimed that it required a unanimous decision of the election board to open voting in those offices. The Republicans on the election board who voted against opening up the offices declined to explain their vote but cried foul when the election board moved ahead with the voting sites for the more Democratically inclined Gary, East Chicago, and Hammond.

They filed suit in the county’s superior court (with a Republican friendly judge) when the statute pretty clearly states that the county’s circuit court (with a less Republican friendly judge) has jurisdiction. The superior court issued an order temporarily blocking the voting centers. Since then, the case has bounced from superior court to federal court to the circuit court to the Indiana supreme court.

The Republicans filed suit in the Lake County Superior Court requesting that the voting centers be enjoined. Superior Court judge Calvin Hawkins granted a temporary restraining order preventing the early voting in those largely Democratic cities. The Democrats removed the case to the federal court. In the meantime, a group of Democrats filed their own suit in the Lake County Circuit Court requesting that it enter an order requiring the vote centers to be open.

The federal court kicked the Superior case back down to the Superior judge. The circuit court entered an order requiring the centers to remain open. The superior court declined to intervene until the Indiana Supreme Court could take a look at the case.

The Indiana Supreme Court entered an order consolidating the circuit and superior court cases and putting them both back in the superior court. The Supreme Court specifically did not rule on whether the superior court had jurisdiction or on the merits of the case. It set forth an expedited procedure for the parties to exercise their right to an automatic change of the judge if they so desired. They did so desire, and Judge Diane Kavadias Schneider a Superior Court judge based in Hammond was selected as special judge.

The Opinion

The Indiana Law Blog has posted the opinion allowing voting at the satellite voting centers to continue and declaring that the votes previously cast at the site shall be counted.

The court entered 75 conclusions of fact concerning the operation of the satellite voting centers and concluded generally that it was the policy of Indiana to facilitate the ability of its citizens to vote and that the equities under the standards for granting injunctive relief (likelihood of success on the merits, harm of granting injunctive relief versus harm of denying it) weighed in favor of those seeking to keep the vote centers open.

Relevant statutes interpreted by the court are IC 3-11-10-26, IC 3-11-10-26.3, and IC 3-6-5.2-9

IC 3-11-10-26.3 allows satellite voting sites to be opened upon unanimous vote of the election board. This, the court held, did not happen. However, the court determined that there was ambiguity in IC 3-11-10-26(a)(1) which says:

As an alternative to voting by mail, a voter is entitled to cast an absentee ballot before an absentee voter board . . . in the office of the circuit court clerk (or board of elections and registration in a county subject to IC 3-6-5.2).

Lake County is a county subject to IC 3-6-5.2. However, the court determined that this provision could be interpreted to mean that a Lake County voter was entitled to cast a vote in the office of the circuit court clerk or the board of elections and registration, but not both. Hammond, Gary, and East Chicago are also have court facilities with offices of the clerk of the Lake County Circuit & Superior Courts and that is where the early voting is taking place. Therefore, the voting can be characterized as taking place under IC 3-11-10-26.3(a)(1) at the Circuit Court Clerk’s office and not under IC 3-11-10-26.3(a)(2) concerning satellite voting which requires a unanimous vote of the election board.

The court finds that resolving the ambiguity of the statute in favor of allowing voting in these areas is appropriate in light of Indiana’s policy for encouraging voting access to its citizens, in light of Constitutional considerations based on allowing easy access to voting in Crown Point and not Hammond, East Chicago, and Gary; particularly in light of the disparate income, access to transportation, and racial make up in those areas; and in the absence of any evidence of voter fraud or that the procedures put in place in those areas would lead to such fraud.

I particularly enjoyed this passage:

Curley Plaintiffs’ allegations of “vote dilution” have no merit because the votes of Mr. Curley and Mr. Brown will in no way be “diluted” by the casting of early ballots of other validly registered voters, any more than if they had cast those ballots on election day. The casting of ballots by other lawfully registered voters within the relevant jurisdiction is democracy, not vote dilution.

(emphasis in original).

Demographics
To give some idea of the numbers involved, Lake County, Indiana has a population of about 500,000, making it Indiana’s second largest county (after Marion County (Indianapolis)). Overall, the racial makeup of the county is 66.72% White, 25.33% Black or African American, 0.28% Native American, 0.82% Asian, 0.04% Pacific Islander, 4.96% from other races, and 1.85% from two or more races. 12.20% of the population were Hispanic or Latino of any race. However, for Crown Point, with a population of about 20,000, about 95% of the population is white. Meanwhile, Hammond has a population of 85,000 people, of whom 62% are white (non-Hispanic), 21% are Hispanic, and 15% are black. East Chicago has a population of 32,000 people of whom 12% are white (non-Hispanic), 51% Hispanic, and 36% black. Finally, Gary has a population of 102,000 people, of whom 84% are black, 12% are white, and 5% are Hispanic.

Lake County’s 500,000 people represent approximately 8% of Indiana’s total population and, as such, its vote can be expected to play a significant part in determining the fate of Indiana’s 11 electoral votes. In addition, it has a substantial black population, and it is very much in Chicago’s sphere of influence. As such, it can be expected to break heavily for Senator Obama. For low income citizens without good access to transportation, having to travel to Crown Point from one of the other cities represents a significant impediment. Early voting is an important tool to alleviate long lines for an insufficient number of voting machines, a phenomenon which seems to be more pronounced in low income urban areas. Given how close Indiana seems to be in the polls as between Obama and McCain, the availability of early voting in Lake County could very well be a determining factor in how those electoral votes are cast.