Editor’s note: This article has been updated with comment from the Indiana Attorney General’s Office.
A federal appeals court is being asked to take an expedited appeal of a ruling against no-excuse absentee voting in Indiana’s Nov. 3 general election, or to enter an immediate injunction that would permit all Hoosiers to vote by mail due to the pandemic.
Lawyers for Indiana Vote by Mail on Tuesday filed an appeal of a district court ruling four days earlier in which Southern District of Indiana Judge J.P. Hanlon denied a request for injunction that would have permitted no-excuse absentee balloting. Under state law that Hanlon affirmed, Hoosiers may vote by absentee ballot but first must affirm under threat of perjury that they are unable to get to the polls for one of several limited reasons.
“Some states have chosen ‘no-excuse’ voting by mail for all. … Indiana has decided otherwise,” Hanlon concluded in his order issued Friday. “The question here, however, is not whether the policy is wise, but whether it is constitutional. … Plaintiffs have not shown a reasonable likelihood of success in showing that the policy is unconstitutional.
Indiana Vote by Mail says in its appeal to the 7th Circuit Court of Appeals that the district court erred in its analysis under the 14th and 26th amendments. It asks the federal appeals panel in Chicago to order election officials in all 92 Indiana counties to allow no-excuse absentee balloting.
“(S)tate regulations that burden voting rights are assessed under a sliding scale that requires balancing the injury to voting rights against the particular state interests cited to support the rule,” the appeal says. It notes the state “already concluded that those interests warranted a relaxation of absentee mail-in voting rules for the primary, and they point to no new considerations that would warrant a different outcome for the general election.
“… Plaintiffs and all Indiana voters stand to suffer irreparable injury if their right to vote in the upcoming election is curtailed in violation of the Constitution, and the balance of harms cuts strongly in Plaintiffs’ favor. The district court accordingly abused its discretion in denying Plaintiffs’ motion for a preliminary injunction,” the appeal argues.
The Office of Indiana Attorney General Curtis Hill, which defends the state in this and other voting litigation, said in a statement that it was reviewing the appeal and would respond in court later. “We are pleased with the district court’s ruling and we are confident the district court reached the right decision,” a spokeswoman said.
Among other things, the suit contends Indiana’s absentee voting law that permits those over 65 to vote by mail is discriminatory on the basis of age, because those younger are not afforded the same right. The suit contends this violates the 26th Amendment.
Further, “Forcing Indiana voters to vote in person during the COVID-19 pandemic places significant burdens on their right to vote,” the appeal says. It also quotes Gov. Eric Holcomb stating in published reports “that he was unaware ‘of any voter fraud with Indiana mail-in ballots.’”
The appeal also notes the stasis that gripped the Indiana Election Commission, which deadlocked 2-2 over whether to offer no-excuses absentee balloting. The filing noted at least one member who voted against no-excuses absentee voting said he was deferring to the courts to work this out.
“All of the relevant considerations that led the Commission to allow all Indiana voters to cast mail-in ballots in the State’s primary if they wished to avoid voting in person still exist and have, if anything, grown more urgent,” the appeal says. “Having refused to bring their ‘experience’ to bear upon these matters, and with the number of days between now and the November election rapidly dwindling, Defendants cannot credibly claim that there is some injustice in ordering them to act to ensure that all Indiana voters who want to safely cast their ballot in November are able to do so.”
This appeal before the 7th Circuit is Indiana Vote By Mail, Inc., et al. v. Connie Lawson, et al., 20-2605. Plaintiffs are represented by the Indianapolis law firms of Macey Swanson LLP and Findling Park Conyers Woody & Sniderman P.C., and the Chicago law firm of Mayer Brown LLP.
The suit is one of multiple challenges to Indiana laws that advocates say impede the right to vote. Those issues have been elevated as a result of the pandemic and civil justice movements over systemic racism arising from the death of George Floyd and others at the hands of police.
In the 24 hours before Hanlon denied an injunction last week, two other federal court rulings in Indianapolis expanded voting rights.
First, Senior Judge Sarah Evans Barker halted enforcement of a state law allowing election workers to reject absentee ballots on the basis of a signature mismatch. Barker ruled the law’s lack of notice that would allow a voter to challenge election officials’ decision to invalidate a ballot violated the 14th Amendment. That case is Mary J. Frederick et al. v. Connie Lawson, 1:19-cv-01959.
Following that ruling, Judge Tanya Walton Pratt issued an order that blocked Indiana from purging voter rolls. The court permanently enjoined the state from implementing Senate Enrolled Act 334 and from removing voters without written confirmation from the voters or without following the procedures mandated in the National Voting Rights Act.
Pratt granted the plaintiffs’ motion for summary judgment in that case, Indiana State Conference of the NAACP, et al. v. Connie Lawson, et al., 1:17-cv-02897.