U.S. Supreme Court justices want Indiana to justify its absentee voting restrictions and have formally requested the Indiana Attorney General’s Office to respond to a constitutional challenge after the state previously waived its right to reply.
The formal request came in a Wednesday letter to Indiana Solicitor General Thomas M. Fisher from the clerk of the U.S. Supreme Court regarding a high-profile voting-rights suit pending potential high court review. A petition for writ of certiorari is pending before SCOTUS in the case, Tully, et al. v. Okeson, et al., 20-1244, which argues for no-excuse absentee voting in the Hoosier State.
“Although your office has waived the right to file a response to the petition for a writ of certiorari in the above case, the Court nevertheless has directed this office to request that a response be filed,” the letter says, setting a response deadline of May 21.
The AG’s office responded to a request for comment with this statement attributed to Fisher: “We look forward to providing our views as to why the question whether states may permit voters 65 and over to vote by mail — which has not even generated disagreement among lower courts — is not worth the Court’s attention.”
The plaintiffs argue, among other things, that one of the law’s excuses permitting absentee voting is being over 65 and is unconstitutional. Plaintiffs assert this violates the 26th Amendment: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”
Plaintiffs are represented in the suit by Indianapolis lead counsel William Groth.
Barbara Tully, Indiana Vote by Mail and other plaintiffs sued Indiana over its absentee voting limits in the November 2020 general election after the state had allowed all Hoosiers to cast absentee ballots by mail in last year’s primary election due to the COVID-19 pandemic.
The 7th Circuit Court of Appeals in October affirmed Indiana’s absentee ballot laws that require voters to meet one of several conditions to cast an absentee vote by mail or in advance at a polling place. The court found it was too close to the election to entertain efforts to expand voting rights.
The opinion affirmed an August ruling by Southern District of Indiana Judge James P. Hanlon, who found the laws did not deny Hoosiers the fundamental right to vote.
Regardless of the state of the law, a record-shattering number of Hoosiers cast absentee ballots in November. According to the Indiana Secretary of State’s Office, 1,867,530 absentee ballots were cast, roughly twice the 934,403 absentee votes cast in the 2016 general election.
Editor’s note: This article has been updated with comment from the Indiana Attorney General’s Office.