Now that SJR-7 is dead in this year's session of the Indiana Legislature, one matter that won't have to be decided, at least not for now, is whether or not the first sentence of the amendment could have legitimately gone on to the November 2008 ballot by itself. If you want to review the issue, you can take a look here, and here. So far as I'm presently concerned I could have made the argument either way, and just as happy that it didn't have to be decided currently. In the meanwhile, here's a light legal fantasy that retired lawyers with nothing better to do in the current lull before the next storm tend to produce:
January 2005: The lone 2004 housefly that had managed to survive the winter by buzzing around in the thin upper layers of residual hot air at the Indiana Statehouse looked carefully for something upon which to leave evidence of its rapidly dwindling existence. On a desk two stories below rested a piece of typewritten paper, at the top of which were the words: "Senate Joint Resolution No. 7". That seemed like a suitable target.
The tiny winged insect began its final descent.......
The air-launched deposit landed between the 17th and 18th words of the proposed amendment's second sentence. Someone should probably have questioned why there was a punctuation mark between "legal" and "incidents". But nobody did. The spotted measure passed both houses of the General Assembly in 2005 and the Senate again in February 2007.
It might have stayed that way, but when the House Rules and Legislative Policy Committee was getting ready to vote on it after hearings, an alert staffer noticed the fly's attempts to influence the lawmaking process. Some thought it could be just dabbed away; others were petrified that its removal at this late date could keep the measure from the voters in the November 2008 Presidential election.
On a party line vote the committee removed the excretory dropping from the printed page. On second reading in the full House the proponents tried to re-insert it (an interesting physical feat in itself) it, but the cleaned-up version narrowly held. The result was the same on third reading and litigation ensued.
July 2008: The Indiana Supreme Court, in a case now widely cited as "In Re Flyspeck", was likewise split. Some justices favored a narrow reading of Article 16 of the Indiana Constitution, saying that an amendment must pass two successive sessions of the General Assembly in exactly the same form. Others said this was exalting form over organic substance and thought the measure was eligible for a popular referendum.
Finally, a coalition of the judges carved out a slim majority opinion. Yes, it said, the actual words of the proposed amendment had survived two sessions unaltered, and therefore would otherwise be entitled to be voted upon by Hoosiers in November 2008. But the fly had managed to impact things enough as to taint the entire meaning of the text, whatever it had been. So the words had to go, and only the little blotch remained, even though it had been in place during only three-quarters of the House/Senate sessions. That fractional presence of time was deemed "substantial compliance" so far as the Court was concerned.
Election Day, November 2008: An early morning voter somewhere in middle Indiana opened his ballot and saw the little spot, magnified some 500 times, and exclaimed: "What does this mean? How could anybody even think about putting this piece of s- - t into the Constitution? Who could possibly understand it?"
I'm not allowed to post what he would have said about the words themselves.