7th Circuit judges ask about Indiana voters in vote by mail case

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During oral argument in the dispute over Indiana’s restrictions on absentee voting, the 7th Circuit Court of Appeals panel focused on Hoosier voters by asking which of the proposed remedies would cause the least confusion and what remedies are currently available to the electorate.

The case has been moving through the courts as Tully v. Okeson, 20-2605, but the link to the oral argument audio on the 7th Circuit’s website identifies it as Indiana Vote by Mail, Inc. v. Paul Okeson.

This is one of a handful of Indiana election lawsuits filed this year arguing that different provisions in Indiana’s election laws are unconstitutional. In August, the Southern Indiana District Court upheld the state’s limits on mail-in voting, finding that implementing no-excuse absentee balloting this close to the Nov. 3 general election could jeopardize the ability to produce accurate and timely results.

With Election Day less than five weeks away, the appeal was accelerated with briefing and oral arguments completed just over a month since the district court’s decision.

Plaintiffs-appellants want the state to allow all eligible Hoosier voters vote by mail just as they were able to do for the June 2 primary. They claimed in their reply brief to the 7th Circuit that Indiana’s prohibitions on absentee balloting prevent some Hoosiers from the voting, in violation of the 14th and 26th amendments.

However, Indiana asserted the plaintiffs are trying to use the court system to overturn the state election laws. In its brief to the 7th Circuit, Indiana said the restrictions on absentee balloting were lifted for the primary because the state was under stay at home order due to the COVID-19 pandemic. Now, the state is returning to its principal form of voting, which is having Hoosiers cast their ballots in person at the polling place.

Oral arguments were held remotely. The plaintiffs-appellants were represented by Jed Wolf Glickstein of Mayer Brown LLP in Chicago. The state was represented by Indiana Solicitor General Thomas Fisher. Judges Kenneth Ripple, Michael Kanne and Michael Scudder sat on the panel.

Glickstein argued the public health crisis that inspired the no-excuse absentee balloting for the primary still exists. The coronavirus is still prevalent in the state, having spread to every county with new confirmed cases and deaths daily. Even though the state has progressed to the final stage of its reopening plan, there is no guarantee that COVID will be under control when voters go to polls in November.

Scudder asked about the exchange in the briefs regarding the remedy for this dispute. The plaintiffs are pushing for a “leveling up” with all the restrictions lifted on absentee balloting while the state asserts it would “level down” by removing the age-based exception so that no one, including seniors 65 and over, could use their age as an excuse for absentee voting.

Although he described the state as making a “pretty decent argument” for leveling down, Scudder said he was thinking about Purcell v. Gonzalez, 549 U.S. 1 (2006). This per curiam decision established the “Purcell principle” that courts should not change election rules in the period just before the election since this would create confusion among the voters and election officials.

“If I’m not mistaken, people in Indiana have started to mail in votes,” Scudder said. “And if they’re talking about a leveling down remedy, it sure seems that there’s a real risk for chaos and confusion.”

Glickstein agreed, saying there would be much less confusion with a leveling up remedy.

“What we are seeking is exactly the regime the state put in place for the primary,” he continued, noting Republican National Committee et al. v. Common Cause Rhode Island, et al., 20-1753, where the U.S. Supreme Court held that when the status quo is that a rule was not enforced the previous election, then the risk of voter confusion is far less. “… (I)t’s a very simple administrative rule. If you were permitted to request a ballot in the primary, you’re permitted to do it now.”

Fisher opened his argument by addressing Scudder’s leveling down question.

The Solicitor General said Indiana has an electoral system where, in general, everyone votes in-person with some exceptions, including for those 65 and over. In determining the proper remedy, precedent calls for the state to delete exemptions and, in this situation, declare the age exception invalid.

Because mail-in voting has already started for the 2020 presidential election in Indiana, making such a change would cause all kinds of problems and confusion, Fisher said.

“Better, I think, if there is a serious question of the 26th Amendment, to let that be sorted out on summary judgment, let it go through the normal litigation process so that any remedy, no matter what the court ultimately determines the remedy to be, … that can be implemented in due course,” he said. “Not on the eve of an election, not after voting has already begun, which is exactly the problem that Purcell is worried about.”

Scudder engaged Fisher in a series of “practical questions”, posing hypothetical scenarios in order to understand how Indiana’s absentee application process works.

The judge asked, “Suppose you have an individual under 65 that is immunocompromised. Could they check the box on the state form that indicates the have an illness?

Fisher replied, “No. In fact, in our review the illness exception by text, I think, requires you to be confined to your home. There is a broader exception for disability but we don’t read that to include immunocompromised status without something more.”

Scudder quired again, “So, if a doctor said to a registered voter under 65 because of the situation with your immune system, you really need to avoid going out including on voting day. They couldn’t in good faith check that box that they have an illness then sign it and get an absentee ballot?”

Fisher responded, “I think that may be different if the doctor is saying you need to be confined to your home and that is a consequence of something like that, that may be different, I think. But we don’t have any of the plaintiffs in this case that describe their situation that way.”

At this point, Ripple jumped in and asked about the ability for individuals to go to the Indiana Election Commission and request a special permission to vote by absentee.

“That seems to be black and white in the statute that there’s a safety value at the state level where an individual can go and say look, ‘I’ve got a real problem here, specific to me. I want to vote, can you give me an exception for the absentee ballot?’ and the commission can decide that matter,” Ripple said.

Scudder posed another hypothetical and Fisher explained individuals with unique circumstances can appeal to the commission, but the permission might not be granted.

“I think that upon a proper showing that might be something the commission could do,” Fisher said. “Now, I don’t mean suggest that they necessarily would. I suggest the process is there, the procedure is there. It seems to me they would have the capability to work the word ‘emergency’ in that circumstance to come up with a solution if they thought that was appropriate. That’s the thing, of course, about the commission, you know, they have their own discretion, they have their own way of addressing these issues.”

In his rebuttal, Glickstein disputed voters have the “safety value” option that Ripple described.

“One problem is the commission won’t deal with these issues,” Glickstein said. “They met only once after we filed our lawsuit and they said that they wanted to defer to the courts. They didn’t want to make a determination about when voters could cast ballots in these emergency circumstances.”

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