Indiana vote-by-mail appeal brief warns of ‘confusing and chaotic’ election scenario

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Plaintiffs in the battle to expand no-excuse absentee voting in Indiana before the Nov. 3 general election filed their reply brief Wednesday, arguing the state’s suggestion of requiring all Hoosiers to vote in-person, regardless of age, would create a “more confusing and chaotic outcome.”

The case, Tully v. Okeson, 20-2605, is challenging Indiana’s age restriction on absentee balloting as discriminatory in seeking to expand mail-in absentee voting to all eligible voters due to the pandemic. Currently, the state limits mail-in voting to individuals who meet one of 13 criteria, including not being in town on election day, having to work the entire 12 hours while the polls are open, and being 65 or older.

After the Southern Indiana District Court rejected the plaintiffs’ motion for a preliminary injunction, the case was appealed, and the 7th Circuit Court of Appeals has expedited the matter with oral arguments scheduled for Sept. 30.

Indiana Attorney General Curtis Hill filed the state’s brief Sept. 9.

In response, the plaintiffs reiterated the 26th Amendment, which allowed 18-year-olds to cast a ballot, prohibits age-based restrictions on voting. They argued a plain reading of text holds that the right to vote shall not be denied or abridged “on account of age.”

Banning any eligible voter from mailing in a ballot during the COVID-19 pandemic because they do not qualify under the state statute’s age restrictions, violates the 26th Amendment, the plaintiffs asserted.

“But whether or not it is an ‘abridgment’ to allow only elderly voters to vote by mail as a general matter, during a pandemic, it is plain that a 64-year(-)old who must expose herself to a potentially fatal illness to vote has less ‘opportunity to participate’ than a 65-year-old who can stay at home and vote by mail,” the plaintiffs’ reply brief stated, referencing Luft v. Evers, 963 F. 3d at 672. “… That is so even if some younger voters might be able to assert another excuse to vote absentee by mail or if election officials take precautions for in-person voting.”

Plaintiffs also countered Indiana’s argument that to remedy any age discrimination, the 7th Circuit should invalidate only the state provision allowing senior citizens to vote by mail.

“It is Defendants’ attempt to cut back on what they allowed during the recent primary — no-excuse absentee voting regardless of age — that is likely to cause ‘voter confusion and consequent incentive to remain away from the polls,’” the plaintiffs argued, citing Purcell v. Gonzalez, 549 U.S. 1 (2006). “One cannot image a more confusing and chaotic outcome than telling elderly voters they are no longer automatically entitled to vote by mail because defendants suddenly chose to deprive them of that right rather than continue to allow all Indiana voters the same choice.”

In addition, the plaintiffs disputed the state’s argument that they were slow to start this case. They filed their complaint April 29 and amended it one week later. Then they moved for a preliminary injunction and filed their opening appeal brief and motion to expedite in the 7th Circuit two business days after the district court’s decision.

“At every turn, Plaintiffs have acted to resolve this case as expeditiously as possible so that all Indiana voters can vote safely in November,” their brief stated. “Defendants, for their part, seem content to run out the clock.”

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