concurring.
With reservation, I concur in this order. As Justice Sullivan points out there is some ambiguity in the statutory scheme. I agree and would note at least one such ambiguity. Indiana Code § 3-ll-10-22(b) (2006), which applies to the challenge of absentee votes, says in relevant part, “[T]he challenge procedure under this section is the same as though the ballot was cast by the voter1 in person.” That procedure in turn requires the challenged voter to cast a provisional ballot. And the statute sets forth in some detail precisely how this is to be accomplished. At first blush the statute appears fairly straightforward. But, subsection (d) of the very same statute says, “If a proper affidavit is made that would entitle the absentee voter to vote if the absentee voter had personally *644appeared, then the absentee ballot shall be placed in the ballot box.” I.C. § 3-11-10-22(d). This provision too is fairly straightforward. For “write-in” absentee ballots the “affidavit” is the ballot application itself. See Ind.Code § 3-ll-10-22(a). And a proper affidavit is one which affirms under the penalty for perjury that the voter is a “legal voter of the precinct where the ballot is being cast.” I.C. § 3-11-10-21 (2006). Thus on the one hand the statutes suggest that a challenged absentee vote must be treated as a provisional ballot and counted later if at all, while on the other hand a challenged absentee vote must be counted at the precinct polling place so long as the affidavit shows the voter is legal voter of the precinct. These provisions are at least ambiguous and at most simply irreconcilable.
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. Ordinarily I would be inclined to err on the side of allowing challenged absentee votes to be counted at the precinct polling place on Election Day in accord with subsection (d).
However, the record before us shows that as it has done for all elections in Indiana since 1997, the bipartisan Indiana Election Division has provided an “Election Day Handbook” to the 5,000 precinct election boards across the State. This Handbook describes the relevant Indiana law that governs elections and is, to be used by precinct election boards to resolve issues that may arise on Election Day. Chapter 10 of the Handbook addresses “Absentee Ballots” and provides in relevant part:
Challenging an Absentee Ballot
• It is also possible to challenge an absentee ballot in the same manner that a voter can be challenged in person.
[ ] A challenged absentee ballot will be processed as a provisional ballot. The absentee ballot secrecy envelope must be marked as a provisional ballot.
• The challenged absentee ballot will be kept separate from the other absentee ballots processed by the precinct election board, and returned unopened to the county election board. The county election board will then determine whether this ballot will be counted.
Emergency Motion For Stay, Tab D, p. 6. It appears to me that the trial court’s preliminary injunction is consistent with the guidelines provided by the bipartisan Indiana Election Division. With the reservation expressed above, I agree the injunction should remain in place.