Editor’s note: This article has been updated with reactions to the 7th Circuit ruling.
The effort to allow all Hoosiers to vote by absentee ballot in the November presidential election has been blocked by the 7th Circuit Court of Appeals which, in an echo of the state’s argument, found Election Day is too close to make any changes now. In a separate case, a judge temporarily stayed pending appeal an order blocking an Indiana law that requires absentee ballots be received by noon to be counted.
Indiana Vote by Mail and other individual plaintiffs had challenged Indiana’s prohibition on no-excuse absentee balloting, arguing the restrictions were unconstitutional. The plaintiffs had sought a preliminary injunction preventing Indiana from enforcing the limitations so that all Indiana residents would have the option of mailing in their ballot Nov. 3 as they had been able to do for the June primary, when restrictions were lifted due to the pandemic.
In August, the U.S. District Court for the Southern District of Indiana denied the motion for preliminary injunction. The plaintiffs’ appeal was expedited with oral arguments held Sept. 30 and the 7th Circuit issuing its ruling Tuesday, affirming the lower court’s decision in Tully et al v. Okeson et al., 20-2605.
“The (U.S.) Supreme Court told us that the fundamental right to vote does not extend to a claimed right to cast an absentee ballot by mail,” Judge Michael Kanne wrote, citing McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802,807 (1969). “And unless a state’s actions make it harder to cast a ballot at all, the right to vote is not at stake.”
Indiana had argued, in part, the plaintiffs were calling for a significant change to the state’s electoral process with the general election just a short time away. Expanding absentee balloting at this stage would potentially confuse voters, the state asserted.
The appellate panel agreed. Citing Purcell v. Gonzalez, 549, U.S. 1, 4 (2006), the court said the federal courts had to exercise caution and restraint before changing procedures on the eve of an election.
“Given that voting is already underway in Indiana, we have crossed Purcell’s warning threshold and are wary of turning the State in a new direction at this late stage,” Kanne wrote.
The decision was unanimous, with Judge Kenneth Ripple writing a concurring opinion.
Meanwhile, in a separate election lawsuit, a federal judge on Tuesday temporarily stayed her earlier injunction that would have blocked enforcement of a law requiring absentee ballots be received by noon on Election Day. The state on Friday appealed the injunction to the 7th Circuit.
Senior Judge Sarah Evans Barker’s order issued Tuesday stayed her Sept. 29 injunction for one week to allow the 7th Circuit to consider the state’s appeal. But the judge also used the order to implore Hoosier voters who may opt to cast a mail-in ballot to request one soon and return it promptly, as the deadline for requesting absentee ballots is just over two weeks away.
Barker’s ruling gives the Chicago appeals court time to consider the state’s appeal and “determine whether an additional stay is warranted,” she wrote. “In the interim, ‘lest they effectively lose their right to do so by the vagaries of COVID-19, mail processing, or other, unforeseen developments leading up to the November election,’ … Indiana voters eligible to and desirous of voting by absentee ballot are encouraged to submit their applications well in advance of Indiana’s October 22, 2020 deadline, and, upon receipt, to promptly complete and return their absentee ballots without delay.”
Indiana Attorney General Curtis Hill applauded the two rulings, saying the decisions are enforcing the state’s election laws as written by the Indiana General Assembly.
“The message is starting to get through that courts should not be tinkering with election laws within a month of Election Day, even during the pandemic” Hill said in a statement. “The U.S. Supreme Court has said that the courts should not issue election-related injunctions at the eleventh hour and perhaps that standard is starting to resonate.”
Indiana Vote by Mail issued a statement, saying it was “deeply disappointed” by the 7th decision. The grassroots organization said the appellate court’s decision to not expand absentee balloting would disenfranchise Hoosier voters. Indiana Vote by Mail did not immediately indicate whether the ruling will be appealed.
“Yesterday’s ruling is the latest in a growing number of federal court decisions in which judges have refused to acknowledge the substantial burdens imposed on voters by the pandemic or require the states to make adjustments in state election laws to alleviate those burdens and increase accessibility to the voting process,” Indiana Vote by Mail said. “The opinion blames the pandemic and ignores the fact that the Constitution and Indiana’s elected officials may and should protect Hoosiers, instead of endangering them.”
In Tully, the 7th Circuit held the provision in Indiana Code section 3-11-10-24(a)(5) which allows Hoosiers 65 and older to vote by mail, does not violate the 26th Amendment. Plaintiffs had argued the state statute violated the amendment by using the age of the voter to determine who could cast an absentee ballot.
The appellate panel found the restrictions Indiana places on absentee balloting do not inhibit Hoosiers’ “fundamental right to vote.” If the law allowing elderly voters to vote by mail was struck down tomorrow, all Indiana residents would still be able to vote in-person either on Election Day or during the 28 days of early voting in the state.
Also, the court acknowledged the plaintiffs’ concern about the risk of exposure to COVID-19 while voting in-person. Indiana Vote by Mail asserted Hoosiers were being forced to choose between putting their personal health in danger by going to the polls or staying home and not participating in the election.
Kanne’s opinion noted the Governor Eric Holcomb’s stay-at-home order had expired and twice he mentioned the state had progressed to Stage 5 of its reopening. On the latter point, he referred to an article published in the Indianapolis Star on Sept. 23 but which was not mentioned in either of the parties’ briefs to the court.
The court was hesitant to enter what it sees as the purview of the state Legislature. It noted the state has taken steps to “lighten COVID-19’s burden on voters” by allowing early voting, implementing safety guidelines and procuring protective equipment for Election Day.
“‘[T]he balance between discouraging fraud and other abuses,’ on the one hand, and ‘encouraging turnout’ and voter safety, on the other, ‘is quintessentially a legislative judgment,’” Kanne wrote citing, Griffin v. Roupas, 385, F.3d at 1131 (7th Cir. 2004).
He continued, “This court is ill equipped to second guess, let alone override, the rational policy judgments of Indiana’s elected officials ‘on the eve of an election,’” citing Republican Nat’l Comm. V. Democratic Nat’l Comm., 140 S.Ct. 1205, 1207 (2020).
Likewise, Indiana Vote by Mail pointed out the decision to not enable all Hoosier voters to vote absentee was made by elected officials.
“It’s important for Hoosier voters to bear in mind, as they stand in 3-hour lines in close proximity to strangers, that they are doing so only because Gov. Holcomb and Secretary of State (Connie) Lawson refused to allow every voter the option of voting safely from home in the general election during this unprecedented health emergency,” the organization said. “The failure of these elected officials to protect voters during this pandemic is appalling and unconscionable.”
The plaintiffs are represented by William Groth of Macey Swanson LLP; Mark W. Sniderman of Findling Park Conyers Woody & Sniderman P.C.; and Gary Isaac, Michael Scodro, Jeffrey Strauss, Brett Legner and Jed Glickstein of Mayer Brown LLP.
— Dave Stafford contributed to this report.