Indiana election suit plaintiffs waiting for fees, watching voting statutes 

In the only election lawsuit the state did not appeal, the plaintiffs have filed a third request with the Southern Indiana District Court for more time in filing a petition for attorney fees.

The case, Frederick v. Lawson, 1:19-cv-01959, prohibited election officials from tossing mail-in ballots for mismatched signatures without giving voters the opportunity for to fix them. According to the lawsuit brought by Common Cause Indiana and several individual plaintiffs from St. Joseph County, election officials had been rejecting mail-in ballots when a voter’s signature on the envelope did not appear to match the signature on the voter registration record. Officials were not notifying the voters their ballots had not been counted.

Senior Judge Sarah Evans Barker of the Southern Indiana District Court found the practice unconstitutional in an order handed down Aug. 20. The court permanently enjoined Indiana election officials from excluding mail-in ballots on the basis of a signature mismatch without giving the affected voters adequate notice and a procedure for them to cure their ballots.

Indiana did not appeal the decision nor the federal court’s award of attorney fees.

Plaintiffs were granted extensions to Oct. 1 and Oct. 31. Their third motion for an extension of time was filed Oct. 27.

According to plaintiffs’ attorney Bill Groth of Vlink Law Firm LLC, he and his co-counsel, Mark Sniderman of Findling Park Conyers Woody & Sniderman P.C., have been trying to reach an agreement about fees with the deputy attorney general to avoid having to involve the court. They submitted their time records with what they consider a reasonable hourly rate to the state’s deputy attorney general in late October and they have obtained the deputy’s consent for another extension through the end of November.

“We believe our demands are reasonable and well documented, and we hope we are able to reach an agreement soon,” Groth said in an email. “However, we won’t shy away from litigating over our fees and costs if we deem it necessary.”

In another case, Indiana Vote by Mail along with several individuals were unsuccessful at getting Indiana to allow all registered Hoosier voters to cast ballots by mail. The plaintiffs in Tully v. Okeson, 20-2605, argued the state was violating the 14th and 26th amendments by limiting absentee balloting to certain classes of individuals. Both the Southern Indiana District Court and the 7th Circuit disagreed.

However, in October, Common Cause Indiana and the Indiana State Conference of the NAACP sent a letter to the Indiana Election Commission highlighting “inaccurate and inconsistent” information about mail-in balloting being given to voters. According the letter, both the Indiana Election Division and the Indiana Secretary of State have misinformed voters and election officials.

Indiana Secretary of State Connie Lawson’s office declined to comment.

In the first instance, the IED told election officials that voters who received a mail-in ballot were not allowed to change their minds and vote in-person. But the letter cited Indiana Code section 3-11.5-4-18, which states, “If a voter has not returned an absentee ballot, the voter may vote in person.” Common Cause and the NAACP assert the statute allows an absentee voter who has not returned an absentee ballot to vote in person as long as he or she returns the absentee ballot to the inspector.

The two organizations also pointed to another instance where the Secretary of State sent a letter to voters in Delaware County wrongly instructing those who received a mail-in ballot and wanted to vote in person to “rip your absentee ballot in half and take it to your polling location.”

Common Cause and the NAACP claim the Secretary of State’s letter tells voters they will then have to sign an ABS-5 form which they will then have to file with the county election board rather than filing it with their local polling place inspector.

However, the organizations assert Indiana law does not require voters who change their mind to spoil their ballot or sign an ABS-5. They also point to Indiana Code section 3-11-4-17.7 and state the spoilage requirement only applies when a voter with a mail-in ballot wants to replace that mail-in ballot for another mail-in ballot. It does not apply when the voter decides to vote in-person.

“The Secretary of State’s letter creates the risk that absentee voters who receive an otherwise effective absentee ballot will have to go through the ABS-5 process unnecessarily,” Common Cause and the NAACP wrote. “That concern is not just a theoretical one. ABS-5 requires the voter to file with the county election board rather than with the isnspector at a polling place before receiving a replacement ballot. This transforms a straightforward voting mechanism — in which the voter surrenders the absentee ballot and votes in person without additional forms — into an onerous one requiring multiple stops before an individual can vote.”