Indiana’s limits on absentee balloting upheld by federal court

An attempt to allow all eligible Hoosiers to vote by mail in the November general election has been thwarted by a federal judge who ruled the limits on absentee balloting do not deny state residents their fundamental right to vote.

A motion for a preliminary injunction that would expand no-excuse absentee balloting in Indiana was denied in a Friday ruling in the Southern Indiana District Court. Judge James Hanlon found the restrictions on absentee balloting do not absolutely prohibit state residents from voting.

“Since Plaintiffs really seek an expansion of absentee voting privileges, it is ‘not the right to vote that is at stake here but a claimed right to receive absentee ballots,’” Hanlon wrote, citing McDonald v. Bd of Election Comm’rs of Chi., 394 U.S. 807 (1969). “When, as here, the fundamental right to vote is not at stake, Indiana has ‘wide leeway … to enact legislation that appears to affect similarly situated people differently.’”

The case is Tully v. Okeson, 1:20-cv-01271.

Indiana Attorney General Curtis Hill applauded the decision.

“Free and fair elections are the lifeblood of a representative democracy,” Hill said. “Today’s decision helps affirm that Indiana’s election laws are set up to protect voters and ensure the integrity of our political process.”

“Though we strongly disagree with the court’s analysis, we haven’t yet made a final decision regarding an appeal,” said Macey Swanson attorney Bill Groth, who represents the plaintiffs. He said a decision is expected to be announced Monday after consultation with the legal team on the case.

The Southern Indiana District Court issued rulings Friday in two other challenges to Indiana’s voting laws. There, the court found the state’s law for verifying signatures on absentee ballots and the law for purging voter rolls without notifying the voters were unconstitutional.

Hill did not issue any statements in response to those earlier rulings.

In his decision, Hanlon also ruled that the expansion of mail-in voting might jeopardize the state’s and public’s interest in obtaining an accurate and timely counting of all the ballots.

“Plaintiffs argue that Indiana should expand voting by mail for the general election as it did for the primary because it will enable more people to vote. But general elections already have substantially higher numbers of voters than primaries do,” Hanlon wrote. “Combining that increase with increased votes from vote by mail privileges — even if that privilege is not expanded, and certainly if it is — could easily strain Indiana’s voting systems because those systems are instead equipped for in-person voting.

“There is therefore greater risk of delayed results and the disqualification of voters for late or defective ballots for the general election than for the primary,” Hanlon continued. “It is within Indiana’s discretion to consider and weigh the benefits of expanded voting by mail with the harm that could result from the potential disqualification of a high number of absentee ballots and the inability of county election boards to certify election results in a timely manner.”

In addition, Hanlon dismissed arguments about personal health and safety during the global coronavirus pandemic that has killed nearly 3,000 Hoosiers and more than 173,000 Americans to date.

“While COVID-19 undisputedly presents new and serious challenges, Plaintiffs have not explained why those challenges trigger constitutional protections when the challenges of working mothers, medical personnel and those working two jobs do not. In short, there have long been classes of people ‘for whom voting may be extremely difficult, if not practically impossible,’” Hanlon wrote, citing McDonald.

As the Supreme Court has noted, allowing broader voting by mail may be wise policy. … Some states have chosen “no-excuse” voting by mail for all. … Indiana has decided otherwise. The question here, however, is not whether the policy is wise, but whether it is constitutional. For the reasons explained above, Plaintiffs have not shown a reasonable likelihood of success in showing that the policy is unconstitutional,” Hanlon concluded in denying the injunction request.

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