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By granting older voters the right to vote by mail, Indiana is not abridging the right to vote of those under the age of 65 and does not violate the 26th Amendment, the 7th Circuit Court of Appeals ruled Tuesday in affirming a district court decision.
Indiana law allows “elderly” voters — those 65 or older — to vote by mail.
Indiana voters who are younger than 65 must fall within one of 12 other categories in order to vote by mail.
Because of the COVID-19 pandemic, the Indiana Election Commission extended absentee-voting privileges to all registered Indiana voters for the June 2020 primary but did not renew that order for the November 2020 general election.
The plaintiffs in the instant case — Indiana voters who were allowed to vote absentee in the primary, but who do not otherwise qualify for absentee voting — filed suit when the extended absentee-voting privileges weren’t renewed.
They initially sought a preliminary injunction requiring Indiana to permit unlimited absentee voting, claiming that the state’s failure to extend absentee voting to all eligible voters abridged the rights of younger voters in violation of the 26th Amendment and also infringed their fundamental right to vote in violation of the equal protection clause of the 14th Amendment.
The United States District Court for the Southern District of Indiana denied their request for a preliminary injunction.
The 7th Circuit Court of Appeals heard the plaintiffs’ appeal less than six weeks before the 2020 general election, and after absentee voting already had begun.
Mindful of the Supreme Court’s admonition “to exercise caution and restraint before upending state election regulations on the eve of an election,” the appellate court affirmed the denial of a preliminary injunction in Tully v. Okeson, 977 F.3d 608, 61112 (7th Cir. 2020) (“Tully I”).
The 7th Circuit concluded that the plaintiffs had not made a strong showing of likelihood of success on the merits in light of McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), which held that “‘the right to vote’ does not include Plaintiffs’ ‘claimed right to receive absentee ballots.’”
Back in the district court, the plaintiffs abandoned their 14th Amendment claim, and both parties moved for summary judgment.
The district court concluded that Tully I established the law of the case, and that even if the law of the case doctrine did not apply, the 7th Circuit’s decision constituted controlling authority.
The plaintiffs appealed.
The appellate court affirmed the district court’s ruling, but on different grounds.
The court found that Indiana’s granting the opportunity to vote by mail to elderly voters does not abridge the right to vote of those under the age of 65 and does not violate the 26th Amendment.
Senior Judge Kenneth Ripple wrote the opinion for the appellate court.
Ripple wrote that Indiana provides myriad ways for registered voters to exercise their right to vote.
According to Ripple, even a cursory reading of Indiana’s voting laws reveals full protections of the right to vote for all registered voters. Not only may all voters vote in person in their precinct on Election Day, but for 28 days prior to the election, they also may vote at various other locations.
Absentee voting is available for individuals who, because of vocation, occupation or physical condition, cannot get to the polls on election day, Ripple noted.
“Indiana has included ‘elderly’ voters among this group — and with good reason. It represents a sound legislative judgment that these individuals encounter special barriers in exercising their right to vote. Eliminating those barriers hardly creates a material burden on the exercise of the franchise by other citizens,” he wrote.
Ripple added that Indiana imposes no requirements, much less material requirements, on the exercise of the franchise through this accommodation of the elderly.
“The extension of absentee voting to the elderly does not impose any unconstitutional burden on the right of those under sixty-five to exercise the franchise. Consequently, there is no abridgement as that term is understood in the Supreme Court’s case law,” Ripple concluded.
Judge Michael Scudder concurred.
Judge John Lee concurred in part and dissented in part.
Lee wrote that he agreed with most of the majority opinion, including that the law of the case doctrine does not apply to Tully I in light of the particular circumstances of the case at that time.
According to Lee, he also agreed with the majority opinion’s articulation of the legal principles underlying the appellants’ 26th Amendment claim.
Lee wrote that he would remand the case to the district court so that the parties may further develop the factual record based upon the standard the 7th Circuit articulated.
“It is undisputed that some Indiana voters — including appellants — are prohibited from voting absentee and are required to cast their ballots in person, solely because of their age. I am unprepared to declare that appellants cannot possibly prove that this legislative distinction imposes an onerous procedural requirement from which the elderly are exempt,” Lee wrote.
The case is Barbara Tully, et al. v. Paul Okeson, et al., 22-2835.
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