IndyBar: Elections and the Rule of Law: Indiana and the Nation in 2024

By A. Scott Chinn, Faegre Drinker Biddle & Reath LLP

What do contiuning legal education, the lawyer’s role in the promoting the rule of law, and bi-partisanship in election administration all have in common? They are alive and well when the IndyBar is the forum for them. That is the message to take away from the seminar held at the Indy Bar headquarters on April 2, which I was privileged to moderate.

The 90-minute seminar was conceived by the joint hosts, the Masters Division and the Government Practice Section, as something more than just an election-law update. It also provided a forum for discussion from lawyers deeply knowledgeable about the Republican and Democratic perspectives on elections and the rule of law. As we approach what it is sure to be a contentious and impactful election season this year – at least on the national stage, the biggest picture question posed by the very fact of this seminar is: can lawyers be part of a bulwark that safeguards the rule of law in those elections?

But first things first. The lead off presenter was Stephanie Gutwein of Faegre Drinker Biddle & Reath, who gave an overview of major national election issues. If you are a casual follower of election law, you might be surprised how much has been going on of late. Election year litigation around the country is always measured in the hundreds of cases, but the number of cases in the 2024 cycle would be reasonably expected to surpass the 543 cases brought in 2020. Many of those will undoubtedly be post-election challenges, but there are many contexts for election litigation, including redistricting/reapportionment, ballot access, election administration, vote-by-mail issues, voter indentification, and ballot measures.

Cases of major national signifance include the U.S. Supreme Court’s decision in Moore v. Harper, which invalidated at least in the context of redistricting the independent state legislature theory – the idea that the Constitution vests only state legislative branches with the power to make final decisions about election administration rules. In a rule-of-law promoting decision, the Court held that election administration decisions of states are subject to the normal processes of judicial review. Stephanie also reviewed the hot-off-the-presses decision in Trump v. Anderson, noting that the Supreme Court unanimously (with more than slightly relectant-sounding concurrences) overturned Colorado’s decision to remove candidate Donald Trump from the 2024 presidential election ballot under the 14th Amendment’s language that can disqaulify those who have engaged or supported an insurrection against the United States.

Tom John of Ice Miller next led the attendees through Indiana election law updates. Tom reviewed both legislative action over the past four years and cases of note. On the legislative front, Indiana in 2022 focused its energy on electronic voting advancements and on the requirements for redistricting, including reconciling processes in light of the many lawyers of map drawing that occurs after each decennial census and at other critical times. In 2023, the legisaltive focus was on absentee voting requirements – also an issue of national conversation, of course, and something that would come up again in the seminar from a partisan perspective. In 2024, the Indiana General Assembly took on the very interesting issue of artificial intelligence and its role is digitally altering media related to campaigns.

On the case law front, Tom noted several cases of significance including the Indiana Supreme Court’s decision in Morales v. Rust, which upheld recently enhanced party affiliation requirements for a candidate’s access to the ballot, which will have the effect of denying access for a Republican candidate for United States Senate. Another very interesting development is the federal district court’s decision in City of Hammond v. Lake County Judicial Nominating Commission, which although denying a challenge to the judicial selection system in Lake County, cast doubt on the constitutional legitimacy of a system that prevents direct election of judges only in counties with the highest percentages of black voters.

The seminar then turned to hearing from lawyers who are deeply involved in the intersection of law and politics. Ali Bartlett of Bose McKinney and Evans provided a Republican perspective on elections and the rule of law. She emphasized that rules should (1) promote the idea that people who should be voting are the ones actually voting, (2) ensure elections and all surrounding processes are safe and secure to produce accurate outcomes in an efficient manner, and (3) restore faith in our election systems. Ali discussed the principle of “voter integrity,” which is an oft-used touchstone for Republicans as a way to promote those three points. Ali also described why voters should take responsibility to ensure their eligibility, take time to learn what is on the ballot, and know their rights.

Karen Celestino-Horseman, who is of counsel with Austin and Jones, is also a Democratic member of the Indiana Election Commission. She initially noted that the Indiana Constitution imposes few regulations of registration and voting and yet the Indiana election code is a thick volume of about 1,000 pages. Karen argued that plethora of election-related regulations had the impact and, in some cases perhaps the design, of deterring voters who are reliable Democratic voters. This is what Democrats in part label “voter suppression.” Karen also questioned whether the minimal incidence of proven voter fraud over many elections could reasonably justify the intensity of the regulatory efforts and energy from those who advance voter fraud as a serious concern.

A brief panel discussion involving Ali and Karen revealed distinct differences in view about the affect of laws such as voter identification and registration requirements, including as applied to college students and low-income voters. Another topic of discussion was measuring the significance of undocumented persons on allegations or perceptions of voter fraud. With questions from the audience and some input from the moderator and other panelists, questions were raised whether controversies over national issues are the best guide for how to think about election issues in Indiana.

As the seminar concluded, the moderator thanked all the presenters and observed that the modern history of elections in Marion County has experienced a demonstrably bi-partisan approach. As just one example, after years of disagreement, the political parties and the Marion County Election Board agreed that Marion County should become a vote center county and engage in expansive early voting. Today dozens of party-affiliated election workers from both sides of the aisle work together to staff election-day vote counting and operations at the Marion County Service Center. And the Election Board has for many years maintained an Election Hotline center staffed by many lawyers who dedicate themselves to solving myriad election-day issues – a great example of how lawyers promote the rule of law in elections.•

A. Scott Chinn is a partner at Faegre Drinker Biddle and Reath LLP and represents businesses, governments, and non profit organizations in transactions, policymaking, and disputes. He also provides advice on public sector legal matters and constitutional law. Chinn is a past president of IndyBar and is an at large member of IndyBar’s Masters Division.