Indiana’s prohibition against no-excuse absentee voting goes before the 7th Circuit Court of Appeals on Wednesday afternoon, with the plaintiffs trying to convince the appellate panel to reverse the district judge’s ruling and allow all registered Hoosier voters to cast their ballots by mail in the Nov. 3 presidential election.
The case, Tully v. Okeson, 20-2605, is scheduled for oral arguments at 3 p.m. Eastern Time and will be live streamed on the 7th Circuit’s YouTube channel. The attorneys and judges will be participating remotely.
Lead by the grassroots organization Indiana Vote by Mail, the plaintiffs argue Indiana’s restrictions on who may cast a ballot by mail violate the 14th and 26th amendments. Voters, the plaintiffs asserted, are going to have to choose between voting in person and risking contracting the COVID-19 virus or not voting at all.
However, the U.S. District Court for the Southern District of Indiana blocked the attempt to expand no-excuse absentee balloting little more than a month ago. The court found the limitations on mail-in voting did not hinder Hoosiers’ fundamental right to vote.
As part of an expedited appeal, the Indiana Attorney General asserted the plaintiffs were trying to legislate by lawsuit. In turn, the plaintiffs argued that reversing course and requiring Hoosiers to vote in person for the general election after the state allowed no-excuse absentee voting for the primary election would create confusion and chaos.
The absentee ballot case is one of a handful of lawsuits filed this year challenging Indiana voting laws. Plaintiffs have been successful in stopping the state from rejecting absentee ballots that arrive after noon on Election Day and from rejecting ballots on the basis of a perceived signature mismatch.
In Frederick v. Lawson, 1:19-cv-01959, the Southern Indiana District Court ruled the state’s practice of rejecting ballots because the voter’s signature on the ballot did not match the signature was unconstitutional. Primary concern was that the voter was never given an opportunity to fix the ballot which, the court held, violated due process and equal protection rights. Plaintiffs have been given to Oct. 30 to file a petition for attorneys fees.
Tuesday, plaintiffs also scored a victory in Common Cause Indiana et al. v. Connie Lawson, et al. 1:20-cv-02007. The Southern Indiana District Court issued a preliminary injunction against the enforcement of the state’s deadline of noon Election Day for mail-in ballots to be counted.
In the case, Senior Judge Sarah Evans Barker was not persuaded by the state’s arguments that voters have alternatives to dropping their ballots into the mail and that pushing the deadline beyond noon would erode the public’s confidence in the electoral system.
The judge found the voters who are able to learn their mail-in ballots were not received by the statutory deadline would have great difficulty remedying the situation. They would have to get to the election office, obtain the necessary certification that their ballot was not received on time then travel to their precinct polling location to vote in-person by 6 p.m. Moreover, the court pointed out that accommodating a later deadline would only require election officials and county elections boards to expand the procedures they already have in place rather than creating entirely new processes.
“Election Day is set by law as November 3 — all day on November 3 until the polls officially close,” Barker wrote. “Any voter casting a ballot has the right to do so within that time frame. The noon Election Day receipt deadline disadvantages — indeed, disenfranchises — voters who vote by mail-in ballot by cutting short the time period within which they are permitted to exercise this right even though, due to the COVID-19 pandemic, ensuring the timely delivery of their ballots is outside of their control.
“To do so without sufficiently weighty state interest constitutes an undue burden on the fundamental right to vote in violation of the First and Fourteenth Amendments,” Baker continued.
Two of the plaintiffs’ victories have been appealed.
The Indiana Attorney General Curtis Hill’s office is appealing the decisions in Common Cause Indiana v. Connie Lawson, et al., 1:20-cv-01825, and in Indiana State Conference of the NAACP et al. v. Lawson, et al., 1:17-cv-02897.
In the former case, the Southern Indiana District Court issued a preliminary injunction against the enforcement of an amendment to the state’s election laws, Indiana Code sections 3-11.7-7.2, 3-11.7-7-3 and 3.11.7-7-4. The new provisions would have allowed only election officials to petition the courts to extend the polling hours beyond 6 p.m. Also, along with the appeal, the Attorney General filed a motion for a stay, arguing the last minute change would create confusion.
The latter case challenged the state’s practice of purging voter rolls. After review, the Southern Indiana District Court found Indiana’s process of removing voters’ names without either getting written confirmation from the individuals or following federal procedures violated the National Voting Rights Act.
In a statement Wednesday afternoon, Indiana Senate Minority Leader Tim Lanane, D-Anderson, applauded Barker’s ruling blocking the noon Election Day law for absentee ballots.
“This is a big win for our state. We saw in the June primary over 500,000 Hoosiers attempt to vote absentee in the mail. Unfortunately, the arbitrary noon deadline forced many to have to vote in person, causing unsafe crowding during a public health crisis,” Lanane said. “… Counting absentee ballots that are postmarked by Election Day is a smart step to maintaining our constitutional right to vote while allowing all Hoosiers to protect their health.”