Lawsuit challenging constitutionality of Indiana’s age limit on absentee voting proceeding in IN Southern District

Of the three lawsuits filed in 2020 challenging Indiana’s voting laws, one remains on the Southern Indiana District Court’s docket, with plaintiffs now seeking summary judgment to enable any eligible Hoosier, regardless of age, to cast an absentee ballot.

The case, Barbara Tully, et al. v. Paul Okeson, et al., 1:20-cv-01271, argues that Indiana’s law limiting mail-in voting to Hoosiers who are 65 or older violates the 26th Amendment, which lowered the voting age to 18.

“Construing the Twenty-Sixth Amendment to merely guarantee that citizens age 18 or older shall have the right to vote also ignores the Amendment’s textual and historical context,” the plaintiffs argued in their brief in support of their motion for summary judgment. “In prohibiting both the denial and the abridgment of the right to vote, the Twenty-Sixth Amendment consciously echoes three of the Constitution’s earlier Amendments, which similarly provide that no state shall ‘den[y]’ or ‘abridge[]’ the right of citizens to vote on account of certain criteria: race, color, or previous servitude (Fifteenth); sex (Nineteenth); or ability to pay a poll tax (Twenty-Fourth).”

The case is one of three lawsuits challenging Indiana’s voting laws in the months prior to the November 2020 election.

The other two cases were Common Cause Indiana, et al. v. Connie Lawson, et al., 1:20-cv-02007, which sought to overturn the state law requiring absentee ballots be delivered by noon on Election Day, and Common Cause Indiana v. Connie Lawson, et al., 1:20-cv-01825, which attempted to remove the restriction that only election officials could petition the courts to extend polling hours beyond 6 p.m.

The Southern Indiana District Court granted the plaintiffs’ motions for preliminary injunctions, but the 7th Circuit Court of Appeals reversed those rulings.

A fourth lawsuit, Frederick v. Lawson, 1:19-cv-01959, was filed in May 2019. The Southern Indiana District Court issued a permanent injunction in August 2020, preventing election officials from rejecting mail-in ballots on the basis of a signature mismatch without adequately notifying the voter. Indiana did not appeal the decision.

Tully v. Okeson was the single case that lost at the district court level. The plaintiffs moved for a preliminary injunction, which was denied by the district court, and the 7th Circuit affirmed. The plaintiffs then petitioned the U.S. Supreme Court but were denied in June 2021.

Returning to the district court, the plaintiffs in Tully dropped their claims based on the 14th Amendment and the Indiana Constitution. They narrowed their arguments to the 26th Amendment claim and filed their motion for summary judgment on Dec. 10, 2021.

The plaintiffs argue the 26th Amendment, authored by the late Indiana Sen. Birch Bayh, not only lowers the voting age but gives all eligible voters equal access to the ballot box. They asserted that after Oregon v. Mitchell, 400 U.S. 112 (1970), struck down Title III of the Voting Rights Act Amendments of 1970, Congress passed the constitutional amendment, which prohibited both the denial and the abridgment of the right to vote.

Moreover, the plaintiffs pointed to the legislative history which, they argue, shows absentee voting is part of the right to vote.

“There is no indication that when Congress passed the Twenty-Sixth Amendment in the wake of Mitchell, it intended to sever the link between voting and absentee voting that it had recognized just one year earlier in the 1970 Amendments to the Voting Rights Act. Although in Mitchell the Supreme Court invalidated the 1970 Act’s voting age provisions in part, the Court separately upheld the 1970 Act’s absentee voting provisions as a constitutional exercise of Congress’s authority ‘to insure a fully effective voice to all citizens in national elections,’” the plaintiffs argued, citing Mitchell, 400 U.S. at 134.

The Southern Indiana District Court and the 7th Circuit denied the plaintiffs’ motion for a preliminary injunction, siding with the defendants’ contention that McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), holds that laws concerning absentee voting do not implicate the “right to vote.”

The plaintiffs countered by pointing to rulings from other federal courts that found absentee voting provisions are not outside the reach of the 26th Amendment. They cited rulings from the 6th and 2nd Circuit Courts as well as the state supreme courts of California, Colorado and Tennessee, which concluded absentee voting is part of the voting rights that were extended when the voting age was lowered.

Finally, the plaintiffs asserted the 5th Circuit’s interpretation of “abridgment” in Tex. Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020), is erroneous. The defendants in Tully have echoed that interpretation by arguing that giving older voters the right to vote by mail does not “abridge” the rights of younger voters because they are able to cast a ballot in other ways.

The plaintiffs characterized that argument as a retrogressive interpretation of the 26th Amendment that is contrary to binding Supreme Court authority.

“… (E)ven if Indiana’s absentee voting laws do not make it harder for younger voters to cast a ballot than before, those laws do violate the Twenty-Sixth Amendment, which requires states to ‘treat all citizen 18 years of age or older alike for all purposes related to voting,’” the plaintiffs argued, citing Jolicoeur v. Mihaly, 488 P.2d at 12 (Cal. 1971).

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