concurring.
The parties dispute the procedures that Indiana law requires be followed when a challenge is made at the polls to an absentee ballot.
Although I find some ambiguity in the statutory scheme, I think it is best read to require that when an absentee voter is challenged at the polls for the reason that the absentee voter is not a legal voter of the precinct where the ballot is being cast, the absentee ballot is from that point forward treated as a provisional ballot and counted by the county election board using the procedures for counting a provisional ballot under IC 3-11.7. I.C. 3-11-10-21. At the time the county election board determines the validity of a challenged absentee ballot under IC 3-11.7, it is to give effect to the provisions of I.C. 3-11-10-22.
For there to be a “challenge” under I.C. 3-11-10-21, Indiana law requires that “the person challenging the voter [must] reduce the challenge to affidavit form, setting forth succinctly the reasons for the challenge.” I.C. 3-11-8-20. “The affidavit ... must set forth under oath or affirmation the following: (1) The name of the challenger. (2) The name of the person being challenged. (3) The reasons the challenger believes the person being challenged is not a legal voter in the precinct. (4) The source of the information provided under subdivision (3).(5) A statement that the challenger understands that making a false statement on the affidavit is punishable under the penalties of perjury.” I.C. 3-11-8-21.
Given that there has been no allegation in this case of any fraudulent absentee voting taking place, that tendering a fraudulent absentee ballot is a crime, and that falsely challenging an absentee ballot is perjury, I expect few if any ballots to be implicated by this decision.