Indiana AG urges 7th Circuit to keep absentee voting restrictions in place

Less than two months before the November presidential election, the Indiana Attorney General is countering a push to remove the state’s restrictions on mail-in voting by telling the 7th Circuit Court of Appeals those restrictions guard against fraud and encourage voter turnout.

The arguments were included in the appellees’ brief the Indiana Attorney General filed Thursday on behalf of the state in Barbara Tully, et al. v. Paul Okeson, in his official capacity as Member of the Indiana Election Commission, et al., 20-2605.

Plaintiffs in the case are seeking to expand no-excuse absentee balloting in Indiana before the Nov. 3 general election. Asserting the state’s prohibition against allowing all Hoosier to vote by mail violates the Constitution, they sought a preliminary injunction but the Southern Indiana District Court denied the motion in August. They immediately appealed to the 7th Circuit and the appellate court has expedited the case.

However, the Indiana Attorney General argued states set the election laws and Indiana has chosen to make in-person voting the primary means of casting a ballot. Having people go to a polling site balances the state’s interests between discouraging fraud and encouraging turnout, the Attorney General asserted.

Indiana law allows voters who meet one of 13 criteria to cast an absentee ballot. Anyone who is out-of-town on Election Day or infirm is permitted to vote by mail, as is any Hoosier 65 or older. Plaintiffs contend the restriction of absentee voting on the basis of age violates the 26th Amendment.

The Indiana Attorney General countered the amendment only lowered the voting age to 18 and did not prohibit all age restrictions on election laws.

“…Plaintiffs are attempting to use the alleged invalidity of a single provision—first added in 1993—to overhaul Indiana’s entire voting system, contravening the Indiana legislature’s considered decision to allow only certain categories of voters to vote absentee by mail,” the Indiana Attorney General argued. “The Court should reject this attempt at legislation-by-lawsuit. If it determines that Plaintiffs are likely to succeed in establishing that the Twenty-Sixth Amendment bars States from allowing elderly voters to request to vote absentee-by-mail, this Court should do nothing more than invalidate that provision.”

Moreover, the Indiana Attorney General asserted the on the eve of an election, plaintiffs are challenging a longstanding state voting law that they could have sought to overturn years ago. Indiana expanded no-excuse absentee voting for the June 2020 primary because Gov. Eric Holcomb had issued a stay at home order to keep Hoosiers safe during the initial outbreak of COVID-19.

The Indiana Attorney General argued the plaintiffs have created the emergency for which they are now seeking relief. They did not file their motion for preliminary injunction until June 8, more than two months after absentee voting was expanded for the primary.

“In waiting to file, Plaintiffs apparently appreciated the authority of the Governor and the Commission to assess the rapidly evolving challenges presented by COVID-19 and respond accordingly,” the Attorney General stated. “Yet they now claim urgency based on their dissatisfaction with these officials’ decisions. Because Plaintiffs are responsible for the urgency they claim justifies this Court issuing a preliminary injunction, the Court should not overturn the district court’s decision.”

In the brief, the Indiana Attorney General did highlight some details about the state’s expanded mail-in voting during the primary. The Attorney General said the “surge” in mail-in ballots caused many counties to incur additional costs for hiring more people to help with processing the ballots and for postage. Lake County alone saw its postal charge increase $38,046 to get applications and ballots to its residents.

Also, in highlighting the number of ballots not counted, the Attorney General cited reasons for the rejections that had more to do with human error than with voter fraud.

“In addition, numerous absentee-by-mail ballots were not counted due to human error that could easily have been avoided in the in-person voting context: Sometimes election officials failed to initial the ballot before sending it to the voter, and many voters forgot to sign their ballot,” the Indiana Attorney General stated. “And, of course, the United State Postal Service’s unpredictable processing caused many ballots to arrive late, both to the voter and, then, on return to the local election board — meaning that many mail-in ballots arrived after the deadline and could not be counted.”

In its appeal, plaintiffs Vote By Mail urged the 7th Circuit to extend mail-in voting to all registered Hoosier voters. The appeal argues Southern Indiana District Judge James P. Hanlon abused his authority in denying an injunction.

“Forcing Indiana voters to vote in person during the COVID-19 pandemic places significant burdens on their right to vote,” the appeal says. It also quotes Gov. Eric Holcomb stating in published reports “that he was unaware ‘of any voter fraud with Indiana mail-in ballots.’”

Remote oral argument in the case has been set for Sept. 30.