7th Circuit upholds Indiana’s process for extending polling hours

The 7th Circuit Court of Appeals has upheld the amended Indiana election law that prohibits individual voters from asking state courts to extend voting hours on Election Day.

Common Cause Indiana had filed a lawsuit to block the 2019 amendments to Indiana Code § 3-11.7-2 and §§ 3-11.7-3 and 3-11.7-4 that created a new process for extending polling hours.

Previously, voters could go directly to state courts to seek an extension of polling place hours when they encountered barriers to casting their ballots. The amended statutes now allow only a county election board to file a petition to keep polling locations open beyond 6 p.m. Also, getting an extension is limited to the specific circumstances where the polling site was delayed in opening or closed during the normal voting hours.

In September, the U.S. District Court for the Southern District of Indiana granted the plaintiff’s motion for a preliminary injunction. District Judge Richard Young found Common Cause was likely to succeed on its claim that the amendments unconstitutionally burdened the right to vote.

However, the 7th Circuit reversed the lower court by issuing a stay of the injunction. The Oct. 23 per curiam ruling in Common Cause Indiana v. Connie Lawson et al., 20-2877, found the district court had abused its discretion and agreed with the Indiana defendants that the injunction will cause irreparable harm.

Indiana Attorney General Curtis Hill applauded the appellate panel’s ruling. In a press release, he maintained the Indiana General Assembly limited the law’s reach in order to avoid “inundating courts with demands for extended polling hours.” Also, he asserted Hoosiers have “ample opportunity” to vote before Election Day and voters still can file claims under federal law.

“Fortunately, we are seeing federal appeals courts nationwide recognizing states’ legitimate authority to enact and enforce reasonable election laws,” Hill said in a Monday statement. “Taken as a whole, election regulations must exist for elections to be fair, meaningful and legitimate.”

Common Cause also noted voters who encounter problems voting can seek relief under federal law.

“Judge Young’s injunction restored important protections for Indiana voters who face disenfranchising conditions at polling places on Election Day,” said Julia Vaughn, Common Cause Indiana policy director. “While we are disappointed by the Seventh Circuit’s ruling, the Court’s decision does make clear that Indiana voters may seek to extend voting hours using Section 1983 claims in state and federal court.”

In addition, she alerted Hoosiers that they can seek help from Common Cause on Election Day.

“We stand ready to help voters who may need to pursue that relief on November 3 and encourage anyone who faces obstacles to voting to report them to the 1-866-OUR-VOTE Election Protection hotline,” Vaughn said.”

Common Cause had argued the amendments created a “functionally insurmountable” multiple-step process that would prevent voters from petitioning the courts to extend the polling hours. The state defendants countered that under the Anderson-Burdick test – described in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992) – courts cannot evaluate each clause of a state’s election code in isolation but must look at the whole electoral system.

The 7th Circuit panel of Chief Judge Diane Sykes and Judges Frank Easterbrook and Michael Brennan agreed with the state defendants. The panel found that Indiana’s election rules and their burdens on voters remained essentially unchanged by these amendments to state law.

“(Common Cause Indiana), in support of its claim that the amendments burden Indiana citizens’ right to vote, points to evidence that unforeseen circumstances on election day would disenfranchise voters unless they obtain an extension of polling hours,” the appellate panel wrote. “What plaintiff desires – and what the district court held is essential – is a private right of action to enforce the amendments. But we are not aware that the (U.S.) Supreme Court or any court of appeals has held that the Constitution requires a state to provide a private right of action to enforce any state law.”

Also in the ruling, the 7th Circuit pointed to federal law, 42 U.S.C. § 1983, as providing a way for Hoosier voters to invoke their federal rights to seek an extension of voting hours.

In its complaint, Common Cause had argued the amended election law violated the Supremacy Clause because the amended state laws limited voters’ ability to use Section 1983. The organization argued the amendment to I.C. 3.11.7-2 stripped Indiana courts of the authority to consider voters’ claims against state and county election officials under Section 1983.

However, the 7the Circuit agreed with the state defendants that the plaintiff misread the amendments.

“The amendments describe a state-law cause of action to obtain an extension of polling hours, with specific limitations on who may sue, the available justifications, and the scope of the remedy,” the 7th Circuit wrote. “Those limits on standing remedies are reasonably read to apply only to the claim described in the amendments, not otherwise.”

The ruling is the third setback for challenges to Indiana election law. In Common Cause Indiana et al. v. Connie Lawson, et al., 20-2911, the 7th Circuit upheld state law prohibiting election officials from counting mail-in ballots received after noon on Election Day. Also, in Tully et al. v. Okeson et al., 20-2605, the appellate court affirmed a state law limiting absentee voting to particular categories of voters.

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