7th Circuit fast-tracks appeal over noon Election Day deadline for receipt of absentee ballots

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The 7th Circuit Court of Appeals has given parties just days to file briefs in an expedited appeal over a state law requiring election officials to receive absentee ballots by noon on Election Day. The court’s fast track positions it to rule on the matter just weeks ahead of the Nov. 3 election, while it issued a sharply divided opinion Thursday upholding a somewhat similar law in a Wisconsin case.

The federal appeals court in Chicago issued an order Thursday in the lawsuit filed by Common Cause Indiana and the Indiana Conference of the National Association for the Advancement of Colored People against Indiana Secretary of State Connie Lawson and other state election officials.

The 7th Circuit gave the plaintiffs until noon Monday to reply to the state’s motion to stay a preliminary injunction issued last month by Southern Indiana District Senior Judge Sarah Evans Barker.

Barker on Tuesday stayed her injunction pending the state’s appeal. The 7th Circuit order keeps that stay in force until the court rules, but it gave plaintiffs only until noon Monday to reply to the state’s motion for stay pending appeal and gave the state only until noon Tuesday to file any reply.

Indiana Attorney General Curtis Hill issued a press release regarding the appeal Thursday. “The noon Election Day deadline set by the General Assembly is as reasonable as any other,” Hill said. “It ensures that the vast majority of ballots cast are counted on Election Day, thereby promoting public confidence in elections by allowing most races to be called on Election Day, not days or weeks later.”

The groups who sued projected that if the law is enforced, potentially tens of thousands of otherwise valid ballots could be thrown out in the upcoming election. In issuing her injunction, Barker found Common Cause and the NAACP had shown a reasonable likelihood of success on the merits, no adequate remedy at law and irreparable harm with an injunction.

Barker’s injunction ordered that all mail-in ballots postmarked on or before Election Day, Nov. 3, and received on or before Nov. 13 — 10 days after the election— must be counted, if otherwise valid. The injunction was limited only to the 2020 election, in which the number of absentee ballots being cast has soared due to the pandemic.

Barker previously rejected the state’s argument that not enforcing the deadline would harm public confidence in the election results. In granting an injunction, she wrote that counting all otherwise valid mail-in votes cast during a pandemic “should instead strengthen the public’s confidence in the legitimacy of the final results.”

The plaintiffs are represented in this case by the Indianapolis firms of Macey Swanson and Findling Park Conyers Woody & Sniderman, as well as the Chicago Lawyers’ Committee for Civil Rights and the Lawyers’ Committee for Civil Rights Under Law. The case before the 7th Circuit is Common Cause Indiana, et al. v. Connie Lawson, et al., 20-2911.

In a separate Indiana absentee voting case, the 7th Circuit this week upheld denial of an injunction that would have permitted any registered Hoosier voter to cast a ballot by mail, as the state permitted during the primary.

In the Wisconsin case Thursday, a divided panel of the 7th Circuit blocked a decision to extend the deadline for counting absentee ballots by six days in the battleground state, a win for Republicans who have fought attempts to expand voting across the country.

If the ruling stands, absentee ballots will have to be delivered to Wisconsin election clerks by 8 p.m. on Election Day if they are to be counted. The ruling makes it likelier that results of the presidential race in the pivotal swing state will be known within hours of polls closing.

Democrats almost certainly will appeal the decision to the U.S. Supreme Court. A spokesman and an attorney didn’t immediately respond to requests for comment.

Under Wisconsin law, absentee ballots are due in local clerks’ offices by 8 p.m. on election night. But Democrats and allied groups sued to extend the deadline after the April presidential primary saw long lines, fewer polling places, a shortage of poll workers and thousands of ballots mailed days after the election. Wisconsin, like much of the rest of the country, is already seeing massive absentee voting for November and the state expects as many as 2 million people to vote absentee.

U.S. District Judge William Conley ruled last month that any ballots that arrive in clerk’s offices by Nov. 9 will be counted, as long as they are postmarked by Nov. 3. In that ruling, Conley noted the heavy absentee load and the possibility that it could overwhelm election officials and the postal service.

The 7th Circuit judges initially upheld Conley’s ruling on Sept. 29, rejecting the Republicans’ standing to intervene. After the Wisconsin Supreme Court affirmed that standing, the same three-judge panel delivered Thursday’s ruling. 

Justices Frank Easterbrook and Amy St. Eve voted to stay the order while Ilana Rovner dissented.

“The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid,” the majority wrote. “We agree with both of those arguments.”

Rovner, in a blistering dissent, highlighted the coronavirus threat to citizens in Wisconsin, currently one of the nation’s worst hot spots. Conley came up with a “limited, reasonable set of modifications” to election rules to preserve “the precious right of each Wisconsin citizen to vote,” she wrote.

“Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices,” she wrote. “Good luck and G-d bless, Wisconsin. You are going to need it.”

All three judges were appointed by Republican presidents — Easterbrook by Ronald Reagan, St. Eve by Donald Trump and Rovner by George H.W. Bush.

Wisconsin Senate Majority Leader Scott Fitzgerald, part of the Republican leadership that successfully pressed the appeal of Conley’s ruling, called the reversal “a huge win for preserving the integrity of our election process in Wisconsin.” He called an extended counting period “a preposterous setup” that would undermine confidence in the election.

The Rev. Greg Lewis, whose Souls to the Polls group is among the plaintiffs, reacted by urging people to vote.

“Our votes matter,” Lewis said. “This is precisely why Republicans are trying so hard to keep us from voting.”

A state Democratic Party spokeswoman and an attorney for Democrats didn’t immediately respond to messages seeking comment.

President Donald Trump won Wisconsin by less than 1 percentage point — fewer than 23,000 votes — in 2016. Polls show Democratic challenger Joe Biden with a slight lead in the state, but both sides expect a tight race.

In the Indiana noon deadline appeal, plaintiff’s attorney Bill Groth said Friday, “We will do everything in our power to ensure that the end result in the Indiana case will be different” from the Wisconsin ruling. He noted Rovner in her dissent called the majority’s ruling a travesty “because it elevated legislative prerogatives over the fundamental right to vote during this unprecedented and worsening pandemic, thus effectively unmooring the right to vote from its constitutional protections. 

“This lawsuit and the district court’s intervention would not have been necessary had Governor Holcomb, his appointees to the Election Commission, Attorney General Hill, Secretary of State Lawson, and the state Legislature been more interested in protecting Hoosier voters than their own selfish political interests,” Groth said. “I have no doubt that history will judge them harshly for their willful refusal to protect Hoosiers’ fundamental constitutional right to vote.”

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