Appeals Court Recall Election Ruling Imminent? (*9/13/10 Update)

We are not in the habit of raising expectations but rumblings out of the Second District Court of Appeals yesterday may indicate a decision on the recall election is imminent and we are not alone in our assessment. To review, Circuit Court Judge Edward Nicholas’ September 3rd order sealed last Tuesday’s recall election results and prevented Supervisor of Elections Bob Sweat from counting and certifying the vote.

A subsequent emergency appeal (HERE) argued that the ballots are public record and must be opened and counted. And while there may not be agreement on the legal nuances, Richard Harrison and his client Commissioner Harry Stoltzfus, state in writing that they do not object to unsealing the vote (no matter what the courageously anonymous Facebook punks may spew with such adolescent sophistication). It is assumed that recall candidate Gene Aubry also has no objection. We talked about the possible scenarios HERE last week. Everyone, therefore, seems to be in agreement that the vote should be counted "in the sunshine."

*City Clerk Alice Baird has filed a response this morning. Read it after the break...

What remains in question though is whether the Second District will continue to delay certification (the Supervisor of Elections' legal stamp of approval, so to speak) of the vote, though delay would appear to be the only supportable option. Even the public records zealots agree delaying certification is within the sound discretion of the court so there is really no one arguing against it, yet. Indeed, as suggested by City Attorney Jim Dye, to rule otherwise would invite municipal chaos.

But, to the point of this post, on Friday the Second District issued an order requiring responses, "by 10:00 a.m. on Monday," to the emergency motion to unseal the ballots, a most unusual and telling deadline. You can read the order HERE. Stoltzfus and Sweat have previously complied with the order HERE and HERE. No response has been docketed from Recaller Robert Carter but one would expect his capable attorney Fred Moore to file a response prior to the deadline Monday morning.

*(Pursuant to the Second District's order, City Attorney Jim Dye filed City Clerk Alice Baird's response this morning [September 13th] prior to the court's 10:00 a.m. deadline. You can read it HERE. Of note, Dye does not argue to lift the stay as to certification, only as to sealing the ballots. If Mr. Carter has filed a response, it has not yet been made available to us.)

Now, it may be conjecture but we and others believe it is reasonable to assume the Court has invoked the unusual Monday morning deadline to allow for a final review of all responses and, importantly, the issuance of an order soon thereafter, perhaps even that day.

But “soon” is relative, of course. Then Bob Sweat's office will still have to count the vote. So check back here often. We’ll let you know when we know.

Stay informed.

Bill Yanger