Voting hours lawsuit highlights change in tactics for Common Cause

In its latest lawsuit seeking to overturn an amended state law that limits the extension of voting hours on Election Day, Common Cause Indiana said it is again having to go to court to fight voter suppression efforts that have increased since Republican supermajorities took control of both chambers of the Statehouse.

The lawsuit filed Wednesday, Common Cause Indiana v. Connie Lawson, in her official capacity as Indiana Secretary of State, et al., 1:20-cv-1825, is challenging changes made to the state’s election code during the 2019 legislative session, which limits who can petition for an extension of voting hours and when a court can act. Common Cause Indiana argues the two amendments to the Indiana law are unconstitutional and should be tossed before the November general election “before they infringe citizens’ fundamental right to vote.”

Attorneys from the Chicago Lawyers’ Committee for Civil Rights, the law firm of Eimer Stahl LLP and the national Lawyers’ Committee for Civil Rights Under Law are representing Common Cause Indiana. The complaint was filed Wednesday in the U.S. District Court for the Southern District of Indiana.

“We have brought this lawsuit because we believe that Indiana voters who face problems voting on Election Day, through no fault of their own, should have a right to petition courts to extend polling place hours,” Julia Vaughn, policy director of Common Cause Indiana, said. “No law should limit an eligible voter’s ability to address Election-Day problems that may prevent them from casting their ballot.”

Indiana Secretary of State Connie Lawson’s office did not respond to a request for comment.

Common Cause Indiana has had to litigate more matters, Vaughn said, since “two-party rule has vanished” from the Legislature. It has tallied a “pretty good record” in the courts by carefully reviewing the issues and only filing lawsuits when it is confident it can win, she said.

The organization joined the Indianapolis Branch 3053 of the NAACP in getting more early voting sites in Marion County. Also along with the Indiana State Conference of the NAACP and the League of Women Voters of Indiana, it also was successful in blocking the state’s use of the flawed Crosscheck system to purge voter rolls.

Currently, Common Cause Indiana is challenging the process Indiana uses to validate absentee ballots. It has filed a response in opposition to the state’s motion for summary judgment, but the Southern Indiana District Court has not issued a ruling.

“I wish we weren’t having to be so active in the courts,” Vaughn said. “We would prefer to fight these battles in the Legislature and stop these voter-suppression tactics there, but that’s not what happened and thankfully the courts will remain an option for us to fight these battles.”

The voting hours complaint focuses on two amendments to the state’s election law that were included in Senate Enrolled Act 560.

Under an amended Indiana Code section 3-11.7-7-2, individual voters may no longer petition a state court to extend voting hours at their polling place. Now only a unanious local county election board comprised of Republican and Democratic members can file a petition to keep the polling places open beyond 6 p.m.

If a petition is submitted, the remedies amendment, Indiana Code sections 3-11.7-7-3 and 3-11.7-7.4, allows the court to extend the voting hours only if the polling site was either delayed in opening or closed at some point during the day.

Common Cause Indiana asserts the two amendments place undue burdens on the fundamental right to vote in violation of the First and 14th amendments. In addition, the organization argues the amendments violate the procedural due process under the 14th Amendment and the Supremacy Clause of the Constitution.

Attorneys representing Common Cause Indiana said voters can be disenfranchised on Election Day by more than a closed precinct. Long lines, voting equipment malfunction, insufficient paper ballots, too few poll workers and even traffic congestion around the polling place can increase waiting times to the point where some voters have to leave before casting a ballot because they have to get to work or school or to take care of their children.

Ezra Rosenberg, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, said Hoosiers are already having to wait longer in Election-Day lines than voters in other states. In addition, he said, Indiana closes its polling places at 6 p.m. which is one of the earliest in the country, and the state does not give workers the time off to vote.

“We are fighting to ensure that all voters have the opportunity to vote in November because without the ability to petition courts to extend voting hours, thousands of Hoosiers may lose that right,” Rosenberg said.

In November 2018, voters filed petitions to extend voting hours in Johnson and Monroe counties and the Democratic Central Committee filed a suit on behalf of voters in Porter County. They were successful in Porter County where “a large number of polling locations” failed to open at 6 a.m. and in Monroe County, where heavy voter turnout created a shortage of ballots in “up to half the polling places.” However, voters were unable to get relief in Johnson County, where problems with the voting machines and server created waiting times “as long as four hours.”

Vaughn noted during the June 2020 primary in Marion County, she and Ami Gandhi, senior counsel at the Chicago Lawyers’ Committee for Civil Rights, considered trying to get the local election board to file a petition for extending voting hours with the courts. Voters were having trouble getting to polling place at Broad Ripple High School when a traffic accident blocked the road.

Ultimately, Vaughn said they decided the hoops they would have to jump through to get the election board to petition the court were too much. She and her colleagues did their best to direct traffic and help those who could not wait in the hours-long hour line find another polling location.

“Certainly, I think here in Marion County, if voters and their advocates had had the opportunity to go to court, we may very well have used that option,” Vaughn said.

Moreover, Gandhi said the Chicago Lawyers’ Committee fielded hundreds of calls from Hoosiers during the June primary. Indiana voters had problems with last-minute changes to the voting process, long lines, intimidation, confusing rules for absentee ballots and inaccessible polling places.

The complaint offered a detailed scenario of what voters now have to do to get voting hours extended. Essentially, the standing amendment puts the voter in the position of waiting and hoping for others to act.

If the voter is able to identify and figure out how to contact the members of the election board, he or she must present the relevant information and convince the board to convene. Should the board agree to meet, the voter has to wait for the members to arrive then wait for a decision and hope the board unanimously decides to petition the court. If the board moves to file a petition, the voter will have to wait for an attorney to prepare the document and then wait for the court to receive, review and rule on the petition. In case the court denied the petition, the voter will have to hope the election board appeals.

Greg Schweizer, shareholder with Eimer Stahl LLP in Chicago, pointed out the standing amendment codifies a conflict of interest. Voters are forced to outsource their right to seek an extension to the county election board, which is in charge of running the election itself.

“When it comes to our fundamental rights,” Schweizer said, “the Constitution does not sanction the fox guarding the hen house.”

The remedies amendment restricts the courts to granting an extension only at the locations where the closure occurred and only for the time the polls were closed.

Common Cause Indiana highlights in its complaint that minorities are disproportionally affected by long lines and unreasonable wait times. The lawsuit cited a study by the Brennan Center for Justice that found in the 2018 general election, Latino voters waited 46% longer and Black voters waited 45% longer than white voters across the country.

Barriers to voting are particularly harmful to communities of color and have long been part of American democracy, Gandhi said. Poll taxes, literacy tests and arbitrary registration requirements have kept people from voting.

“… (I)n the 21^st century, barriers look different but often have the same effect of discouraging or preventing eligible voters from making their voices heard,” Gandhi said. “… Without the ability to petition courts to remove such barriers and extend hours, eligible voters and particularly voters of color are at risk of disenfranchisement.”