7th Circuit upholds noon Election Day deadline for receipt of absentee ballots

Editor’s note: This article has been updated.

Absentee ballots received by local election officials after noon on Election Day will not be counted, the 7th Circuit Court of Appeals has ruled, reversing a lower court that had issued an injunction in light of likely mail slowdowns caused by a surge in mail-in voting due to the pandemic.

The ruling by a three-judge panel upholds provisions of Indiana election law found at I.C. 3-11.5-4-3 and 3-11.5-4-10 that require noon receipt of absentee ballots for those ballots to count. Southern Indiana District Senior Judge Sarah Evans Barker had issued an injunction to plaintiffs Common Cause Indiana and the Indiana State Conference for the National Association of the Advancement of Colored People, which she stayed pending this appeal.

“The district court’s premise is that the Constitution entitles all persons who cast absentee ballots to be free of any risk that the ballot will not count, even if they mail their ballots close to Election Day,” Judge Frank Easterbrook wrote.

“Because the pandemic has made additional demands on the Postal Service and increased the probability that a ballot mailed near Election Day will arrive afterward, the judge deemed the state’s system unconstitutional. But a recent decision of this court holds that the premise is not correct — that as long as the state allows voting in person, there is no constitutional right to vote by mail,” Easterbrook wrote, citing the court’s opinion eight days ago upholding Indiana’s limitations on who may cast an absentee ballot, Tully v. Okeson, 20-2605 (7th Cir. Oct. 6, 2020).

“People who worry that mail will be delayed during the pandemic can protect themselves by using early in-person voting or posting their ballots early. … During a pandemic a reasonable person entitled to vote by mail transmits the ballot earlier than normal or uses another approved method,” Easterbrook wrote.

The ruling in the noon deadline case, Common Cause Indiana, et al. v. Connie Lawson, et al., 20-2911, aligns with a ruling by a separate 7th Circuit panel days earlier in a similar Wisconsin case that affirmed an 8 p.m. Election Day deadline for the receipt of absentee ballots in the Badger State. Democrats who filed the Wisconsin challenge to the absentee ballot receipt deadline said Tuesday they will ask the U.S. Supreme Court to review the ruling.

Meanwhile, Tully v. Okeson, the appeal of Indiana’s restrictions on who may vote by absentee ballot, was remanded to the Southern District after the 7th Circuit affirmed denial of the injunction, thus for now upholding the restrictions.

The two Indiana cases are among five challenges of state voting laws filed this year.

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