Attorney General Curtis Hill’s office is appealing a judge’s ruling that absentee ballots postmarked by Nov. 3 must be counted. Meanwhile, the state acknowledged in its filing that election officials are taking steps to count those ballots if the judge’s order stands.
Hill’s office on Friday filed a notice of appeal and asked the 7th Circuit Court of Appeals to stay the injunction issued Sept. 29 by Southern Indiana District Court Senior Judge Sarah Evans Barker in a lawsuit filed by Common Cause Indiana and the Indiana Conference of the NAACP.
Barker blocked enforcement for the Nov. 3 general election of the state law codified at I.C. §§ 3-11.5-4-3 and 3-11.5-4-10, which requires that absentee ballots must be received by election officials by noon on Election Day to be counted. Plaintiffs Common Cause and NAACP, who sued the state in July, asserted that enforcement of the law could void potentially tens of thousands of otherwise valid absentee ballots. The suit noted absentee voting will rise to unprecedented levels due to the pandemic, potentially slowing mail delivery and resulting in delayed delivery of ballots through no fault of a voter who cast a ballot on or before Election Day.
In staying the law, Barker rejected the state’s contention that failing to enforce the deadline would upend election rules on the eve of an election, confuse voters and strain the system.
In ruling against the state, the judge concluded the law’s harms would weigh heavily against voters. She ordered otherwise valid ballots postmarked by Nov. 3 to be counted through Nov. 13.
“(R)ather than undermining the public’s confidence in the election results, ensuring that all otherwise valid absentee ballots cast by Election Day are counted should instead strengthen the public’s confidence in the legitimacy of the final results,” Barker wrote in her order.
In Friday’s filing on behalf of Indiana Secretary of State Connie Lawson and the Indiana Election Commission, Hill’s office argued that a “stay pending appeal is necessary to mitigate the potential damage that may occur given the impending election, which will arrive in just over a month, well before Defendants’ appeal can be resolved.”
The filing noted the 7th Circuit last week stayed a district court injunction in a somewhat similar Wisconsin case before vacating that stay a few days later. In its ruling vacating the stay, the three-judge panel noted its holding was limited to finding that a political party that sought to intervene in the case lacked standing.
Indiana argues in support of the noon deadline law that “the Constitution does not secure to voters a right to have their absentee ballots counted if received after Election Day, especially when multiple other methods of voting are available or voters have multiple options for timely submitting their absentee ballot,” according to the state’s filing. “Because this Court’s preliminary injunction rests on recognition of a right that does not exist, Defendants are likely to succeed on appeal.
“… Furthermore, voters in Indiana are used to county officials announcing unofficial election results on Election Day and generally have confidence in the finality of those results,” the filing says. “With an unprecedented number of voters expected to vote absentee by mail in the general election, and in light of the preliminary injunction order requiring county officials to count ballots postmarked by Election Day and received on or before November 13, it is likely that many races will not be resolved on Election Day, leading to voter confusion and undermining the public’s faith in the electoral process.”
The AG’s filing indicated, however, that the state is taking steps to comply with Barker’s ruling, should it stand. “The Election Commission has announced a public meeting for October 19, 2020, where, if the Court’s order is not stayed, the Commission will vote on emergency rules necessary to implement the order,” the filing says.
The filing also asks the 7th Circuit to decide the motion “expeditiously so that the Commission members can know by that date, following inevitable consideration by higher courts, whether the Court’s order will remain in effect through Election Day.”
The plaintiffs had not replied to the state’s filings as of Monday, nor had the appellate court in Chicago made any substantive rulings. The state’s appeal docketed Monday at the 7th Circuit is Common Cause Indiana, et al. v. Connie Lawson et al., 20-2911.
The case is one of several election-related lawsuits pending before the courts less than a month before the election. Perhaps most significantly, the 7th Circuit heard oral arguments last week in an expedited appeal seeking to expand absentee voting by mail to any registered Indiana voter.
In another suit, a federal judge last month struck down an Indiana law restricting who may go to court to seek an extension of polling hours.
In August, federal judges in Indianapolis struck down Indiana voting laws that required signature-matching on absentee ballots and the state’s method of purging Indiana voters from the rolls. The state has not appealed either of those rulings.