Suit: Challenged law may invalidate tens of thousands of Indiana mail-in ballots

An estimated 10,000 Hoosiers’ mail-in absentee ballots were rejected as “late” during Indiana’s 2020 primary election under a disputed Indiana law, suggesting multiple times more ballots may be thrown out in the Nov. 3 general election, groups challenging the law in federal court contend.

Those assertions are made in a brief filed on behalf of Common Cause Indiana and the Indiana Conference of the NAACP. The filing supports a request for an injunction that would block enforcement of an Indiana law requiring absentee ballots be received by election officials by noon on Election Day to be counted. Plaintiffs argue the postmark date, not the date a ballot was received, should determine whether a vote was timely cast.

Common Cause and NAACP sued in July, claiming the law unconstitutionally disenfranchises voters through no fault of their own who mailed their ballots on or before Election Day.

In Wednesday’s filing before Southern Indiana District Court Senior Judge Sarah Evans Barker, Common Cause and the NAACP pointed to a sampling of rejected ballots from the 2020 primary — when all registered voters were permitted to vote by mail due to the pandemic.

“Because Marion and Hamilton Counties rejected approximately, 2,000 mail-in ballots that were mailed before or on election day as ‘late,’ and those two counties account for nearly 20% of Indiana’s voting age population, it is reasonable to extrapolate that the application of the Noon Election Day Receipt Deadline resulted in the rejection of approximately 10,000 otherwise valid ballots statewide in the June 2, 2020, Indiana primary,” the filing says.

The brief suggests a far greater number of ballots may be tossed out in the Nov. 3 election if the law is not blocked. Multiple times more Hoosiers will vote in the general election, and an unprecedented number are expected to cast ballots by mail because of the pandemic.

In arguing against the injunction, the Office of Indiana Attorney General Curtis Hill asserted in a brief last week that “(g)ranting Plaintiffs the relief they seek would upend long-established election rules on the eve of an election, confusing voters and placing a significant strain on the system. Such results undermine, not further, the public interest.”

The state asserts that it requires most absentee ballots to be received by noon on Election Day to be counted, except for a small number from overseas voters. The deadline is extended 10 days to count overseas ballots that are postmarked by Election Day. Plaintiffs say any absentee ballot with a postmark on or before Election Day should be counted during that period — an argument Hill’s office rejects.

“The Court should refuse to do so for three reasons. First, Plaintiffs’ argument — that the COVID-19 pandemic means Indiana’s ballot-receipt deadline ‘imposes a very substantial burden on Indiana voters,’ … and is therefore unconstitutional … — fails at the starting line because it improperly focuses on the ballot-receipt deadline alone” rather than on whether the law unconstitutionally burdens one’s right to vote.

“… Second, Indiana’s ballot-receipt deadline is reasonable even considered in isolation. The election must end at some point, which means some deadline for receiving ballots must exist. A noon deadline on Election Day is as reasonable as any other,” the AG’s office argues. “… Third … plans for this November’s election are well underway and rely on longstanding, interconnected deadlines. It is far too late to change these deadlines now.”

The plaintiffs, represented in this case by the Indianapolis firms of Macey Swanson and Findling Park Conyers Woody & Sniderman as well as the Chicago Lawyers’ Committee for Civil Rights and the Lawyers’ Committee for Civil Rights Under Law, rejected the state’s claims that an injunction would confuse voters and undermine confidence in the election.

“The public’s faith in the electoral process is based primarily on the expectation that all eligible voters will be able to cast their ballot and have that ballot counted — without this basic guarantee, participation in elections becomes meaningless and the legitimacy of our institutions evaporates,” the plaintiffs’ reply brief says. “Contrary to Defendants’ assertions, enforcement of the Noon Election Day Receipt Deadline in the November 3, 2020, election, which Defendants concede will result in the rejection of thousands of eligible voters’ ballots through no fault of their own, will severely undermine public confidence in the integrity of Indiana’s electoral process and must be enjoined.”

The lawsuit is one of several challenging Indiana elections laws, including another filed by Common Cause in which a judge on Tuesday blocked a unique-in-the-nation Indiana law that restricted who may petition a court to extend polling hours when voters have been deprived an opportunity to cast a ballot.

Perhaps most significantly among the unsettled Indiana voting lawsuits is a challenge that seeks to permit any registered Indiana voter to cast a ballot by mail. A district court judge upheld Indiana’s restrictions on absentee balloting,  but the 7th Circuit Court of Appeals expedited the appeal, setting oral arguments for Sept. 30.

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