Advocates seek injunction to expand vote by mail in November election

An Indiana grassroots organization and 12 state residents are asking a federal court to order Hoosier election officials extend no-excuse absentee balloting for the 2020 general election in November because, they say, voters will still be at risk of contracting COVID-19.

Indiana Vote by Mail, a nonprofit, nonpartisan organization which advocates for accessible, secure, auditable and fiscally responsible voting practices, and the dozen named plaintiffs filed a motion for a preliminary injunction Monday in the U.S. District Court for the Southern District of Indiana. They filed a lawsuit April 29, 2020 to remove the state’s restrictions on absentee voting, and with the motion for preliminary injunction, the plaintiffs are imploring the court to require officials to begin the process to expand absentee voting.

“There is precious little time left between now and the general election, and election officials need to know at the earliest possible time what the rules will be, so they may prepare, order adequate supplies from vendors, and implement broader no-excuse absentee voting by mail,” the plaintiffs argued in their motion in Barbara Tully, et al. v. Paul Okeson, et al, 1:20-cv-01271.

The defendants in the case include Indiana Secretary of State Connie Lawson and members of the Indiana Election Commission.

Indiana delayed its primary to June 2 and expanded absentee voting across the state because of the dangers of COVID-19. Voters having to stand in line at polling places increased their potential exposure to the coronavirus, putting their health as well as the health of their family and friends at risk.

According to the Indiana Secretary of State, 24% of eligible Hoosiers voted in the June primary with 49% voting by absentee ballot. However, those statistics do not include results from 26 counties, including Marion, which mailed an absentee ballot application to all its voters.

The plaintiffs argue by not allowing all Indiana voters to cast a ballot by mail, the state is violating the 14th and 26th Amendments. Specifically, the suit alleges Indiana is running afoul of the 14th Amendment’s equal protection clause and the 26th Amendment’s prohibition against denying or abridging the right to vote of any U.S. citizen who is 18 years old or older.

Indiana Code section 3-11-10-24(a) extends absentee voting to certain state residents, such as those who are elderly, disabled or will be working the entire 12 hours the polls are open. The plaintiffs assert the pandemic puts all voters in danger and, under the equal protection requirements of the 14th Amendment, the state must administer evenhandedly the entitlement of voting by mail.

“Defendants’ failure to suspend the limitations on mail balloting and extend the operation of the vote-by-mail statute to all voters for the November 3, 2020, general election, as they previously did with respect to the delayed June 2, 2020, primary election, will impede and abridge the exercise of a voting right by granting to some Indiana voters, but not to Plaintiffs and others similarly situated, the right to vote by mail, even though the pandemic makes voting in person at typically crowded public polling places potentially life-threatening.”

Likewise, by not allowing all voters to cast an absentee ballot during the pandemic, Indiana is affording the protections of the 26th Amendment only to those Hoosiers 65 and older.

“Just as Indiana could not explicitly entitle only white voters to vote by mail without violating the Fifteenth Amendment, or expressly entitle only women voters to vote by mail without violating the Nineteenth Amendment, neither may it entitle only ‘elderly’ voters to vote by mail without facially violating the Twenty-Sixth Amendment,” the plaintiffs argued in their motion. “Because the challenged Indiana statute on its face discriminates ‘on account of age’ by conferring a categorical entitlement to vote by mail on those ages 65 and over but not voters under the age of 65, it violates the Twenty-Sixth Amendment’s prohibition against the denial or abridgment of the right to vote on account of age.”

Indiana has not responded to the lawsuit. The district court has set a status conference for June 18 to discuss a briefing schedule on the motion for preliminary injunction.

The Office of the Indiana Attorney General is representing the defendants. Attorneys William Groth of Macy Swanson and Mark Sniderman of Findling Park Conyers Woody and Sniderman are representing the plaintiffs.

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