Mail-in voting advocates alert 7th Circuit to dispute with state’s argument

Plaintiffs in Indiana’s vote by mail case are questioning the state’s assertion made this week in oral arguments to the 7th Circuit Court of Appeals that Hoosiers can request a special exemption from the Indiana Election Commission to cast an absentee ballot if they do not meet one of the law’s categories of who may vote by mail.

Attorney Jed Glickstein filed a letter Thursday with the clerk of the 7th Circuit Court of Appeals regarding his representation of plaintiffs in Indiana Vote by Mail, Inc., at el. v. Paul Okeson, et al., 20-2605. (At the Southern Indiana District Court, this case was called Tully v. Okeson.) Glickstein questioned Indiana Solicitor General Thomas Fisher’s assertion that Hoosiers who do not qualify for absentee voting under the statute still have an avenue to request permission to vote by mail.

The topic arose during oral arguments Wednesday. Under questioning from 7th Circuit judges Michael Scudder and Kenneth Ripple, Fisher said Indiana had a process for individual voters to appeal to the Indiana Election Commission. Fisher responded “the process is there, the procedure is there” for Hoosiers to get permission to mail in their ballots.

Glickstein’s letter stated the plaintiffs had searched the websites for the Indiana Secretary of State and the Indiana Election Commission as well as the Absentee Voter’s Bill of Rights and the Indiana Voter’s Bill of Rights. However, they were unable to find any procedures or direction for how voters could initiate a request. Also, they could not find any information on how the commission would evaluate such a request or the timeline for when the commission would decide.

The Indiana Lawyer reached out to the Attorney General, asking for information for how voters can themselves request an exemption. Fisher responded by pointing to Indiana Code 3-11-4-1(c). That provision states that the election commission, by unanimous vote, may make an exception and allow an individual to cast an absentee ballot if the commission finds that an emergency will prevent the voter from going to the polling place and voting in person. However, the statute does not provide any guidance on how the voter is to make the request to the commission.

The Indiana Lawyer also contacted the Indiana Secretary of State Connie Lawson’s office and the co-directors of the Secretary of State’s Indiana Election Division, Bradley King and Angela Nussmeyer. Lawson’s office declined to comment on ongoing litigation. Nussmeyer, like Fisher, pointed to the Indiana statute that allows for the commission to find an emergency. King did not respond.

Indiana Code 3-11-10-24 lists the permitted reasons for which an Indiana resident may vote by absentee. These include being 65 or older, being out of town or having to work the entire 12 hours the polls are open on Election Day and being confined to a private residence because of illness or injury. For the June 2 primary, Indiana lifted the restrictions because of the COVID-19 public health crisis and allowed all Hoosiers of voting age to cast a mail-in ballot.

However, the state has not extended no-excuse absentee voting to the Nov. 3 presidential election. Plaintiffs, led by the nonprofit Indiana Vote by Mail, are trying to keep no-excuse absentee balloting in place.    

The problem they highlight with the state’s assertions came during the oral arguments when Scudder presented Fisher with a series of “practical questions” to better understand how the absentee applications work in Indiana. He then gave a couple of hypothetical scenarios and asked whether the individuals in those situations would qualify to vote absentee.

Ripple joined in, asking, “Could an individual apply to the commission on an individual basis and say ‘I am immunocompromised, my doctor says under these particular situations I can’t go out. I would like an exception, I want a mail-in ballot.’”

Fisher responded, “Oh the state commission could, yes absolutely. In fact, the rationale for the primary order which permitted all mail-in voting was to make it an emergency determination for all voters. And I think if an individual voter made that kind of application, surely that’s within their authority.”

A short time later, Scudder presented another hypothetical situation. “So, Mr. Fisher would that in apply in your judgment if, hypothetically, I was a physician and I said I treat cancer patients or AIDS patients and I’ve got to be quadruplely careful, so I’m going to write a letter to the commission, explain my situation and conclude the letter by requesting permission to vote by mail,” he asked.

Fisher replied, “Well I think the statutory allowance that I’m familiar with speaks in terms of whether an emergency permits this and I think if we’re talking about a pandemic-related concern that is temporary, that pushes a sense of urgency on the situation, that’s what I understand Judge Ripple to be talking about.”

Scudder pressed, “In my hypothetical, I’m trying to cut it out of the same cloth. It’s not general that I, you know, it’s 100% pandemic-related in trying to be careful for the cancer patients that I treat.”

Fisher answered, “I think that upon a proper showing that might be something the commission could do. Now, I don’t mean suggest that they necessarily would. I suggest the process is there, the procedure is there. It seems to me they would have the capability to work the word ‘emergency’ in that circumstance to come up with a solution if they thought that was appropriate. That’s the thing, of course, about the commission, you know, they have their own discretion, they have their own way of addressing these issues.”

In a separate development after the announcement that President and first lady Donald and Melania Trump tested positive for COVID-19, Indiana Vote By Mail made an urgent appeal Friday to Indiana officials to allow no-excuse absentee balloting for the Nov. 3 election. The organization said many voters are fearful of contracting the virus and should have the option to vote by mail.

“It is unconscionable that the Governor, Secretary of State and the (Indiana Election Commission) continue to insist that hundreds of thousands of Hoosiers put their lives and health on the line to exercise their most important task as citizens: their right to vote,” Indiana Vote by Mail stated in a press release.