Stafford: Hoosiers may yet vote by mail; lawyers will vote by email

Our lawmakers have gone home for the time being, praise be, and while some were up to their usual gimmicks — inventing new culture wars and nursing old ones — at least they didn’t criminalize giving food and water to someone waiting long hours in a voting line. We missed out on that one, Georgia.

But our state’s voting laws — particularly regarding absentee voting — do have the U.S. Supreme Court at least a little curious.

Indiana Vote By Mail and several other citizen groups suggest that if one Hoosier can cast an absentee ballot, that ought to be good for another. But our state powers can’t abide that. Our old-timey laws define a select few who may use this right. History’s dustbin contains all sorts of laws like that.

Advocates for no-excuse absentee voting in Indiana have pushed their fight to the nation’s highest court, which hasn’t yet taken the case, but did signal something last week.

The state, treating this as a pesky nuisance lawsuit rather than a civil-rights action, had waived its right to respond — the legal equivalent of “nah, we’re good.” But the court replied with the legal equivalent of “you’re not as good as you think,” sending Solicitor General Thomas Fisher a letter requesting the state reply.

Fisher said the state would make its case about why people 65 and older should be given special status under the law, a question he said “is not even worth the court’s attention.” Which is an odd thing to say after the court personally sent you a letter indicating your law has their attention. It’s an even odder thing to say when the 26th Amendment says, “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.

Paying attention to the U.S. Constitution has never the state’s strong suit, though, and enabling full voting rights is contrary to the Statehouse Republican supermajority’s interests. That’s less an opinion than a fact: Senate Bill 117 would have allowed any Hoosier to cast an absentee vote. That bill never got a hearing, which is a scandalous dereliction of public service after the last election.

Hoosiers tacitly broke the law in homebound droves to cast an absentee ballot last year because they didn’t want to stand in a shamefully long election line during a deadly virus outbreak. Nearly 1.9 million Hoosiers cast absentee votes in the general election, well more than half the number of the almost 3.1 million who voted.

When lawmakers ignore the will of the people long enough, courts must intervene. And the U.S. Supreme Court should in this case.

Indiana has no legitimate excuse to require “excuses” for registered voters who wish to cast an absentee ballot. The state is not our parent, and in the last vote, plenty of us determined that as grown adults we shouldn’t have to go through a ridiculous exercise of asking their permission. The last thing that ought to be is a law.

Lawyers to vote by email

Attorneys voting for lawyer members of the Indiana Judicial Nominating Commission will for now do so by email, thanks to House Enrolled Act 1120, signed April 8 by Gov. Eric Holcomb. Three attorney members elected by regional members of the bar serve on the seven-member panel that recommends nominees for Indiana’s Court of Appeals, Supreme Court and Tax Court.

Authored by Rep. Greg Steuerwald, R-Avon, the new law changes the process for nominations to the commission and voting from regular mail to email. Ballots returned by email also will require a certification to be counted.

The next attorney vacancy on the commission will occur at the end of the year when the term of First District representative Stephen Williams of Terre Haute expires.•

Dave Stafford[email protected] — is editor of Indiana Lawyer. Opinions expressed are those of the author.

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