CHICAGO (CN) — The Seventh Circuit heard oral arguments Wednesday in a case that seeks to expand access to absentee voting to all Indiana residents who want to cast their ballots by mail in the November election.
Hoosier State residents and a group known as Indiana Vote by Mail filed the initial lawsuit in April, arguing all eligible voters in the state should be given the option to vote by mail because of the public health dangers of the ongoing Covid-19 pandemic.
During the June primary, Indiana did expand access to absentee ballots but the Republican-controlled Legislature and GOP Governor Eric Holcomb have repeatedly pushed back on doing so again for the general election.
Indiana currently has 11 valid reasons to request an absentee ballot, which include being 65 years or older, having a disability or not being able to vote in person on Election Day because of work schedules.
A federal judge ruled against the plaintiffs last month, prompting their appeal to the Seventh Circuit.
The panel hearing the case Wednesday consisted of U.S. Circuit Judges Kenneth Ripple and Michael Kanne, both Ronald Reagan appointees, and Michael Scudder, appointed by President Donald Trump.
Attorney Jed Glickstein argued on behalf of the voters and told the panel it is discriminatory to allow residents 65 years old and older to vote absentee while younger people afraid of the pandemic cannot.
“All voters under the age of 65 are required to trade off their rights to health and safety, and the rights of their loved ones and family against the ability to cast a vote in November,” Glickstein said. “Under Indiana’s scheme, that is a tradeoff that no 65-year old or older voter is required to make.”
The plaintiffs’ brief also argued that there is no additional burden on the state to implement universal vote by mail because election officials executed such a plan for the primary election.
“Particularly during a pandemic, in which in-person voting poses serious risks to all voters, this court not only can but should issue a preliminary injunction allowing all Indiana voters the choice to vote by mail—just as defendants concluded the Indiana Election Code permitted for the June primary,” the brief states.
The judges on the Chicago-based appeals court seemed interested in how, legally speaking, the Covid-19 pandemic’s unique circumstances are different than something like a blizzard on Election Day, which could also keep people at home because of safety concerns.
“This is foreseeable in a way that a blizzard or snowstorm is not. We knew back in March that Covid was going to be a significant issue,” Glickstein replied. “There is an opportunity for the state to make reasonable accommodations which will permit all Indiana voters, not just those 65 and older, to exercise the most basic right that they have in a democracy.”
In their brief, Indiana election commissioners argued that not only is the change unnecessary, but it will be problematic because the election is so close.
“Granting plaintiffs the relief they seek would upend long-established election rules on the eve of an election, confusing voters and placing a significant strain on the system—strain that officials experienced during the primary election,” the defendants’ brief states. “The court should not invite the confusion that would certainly result from altering the status quo so soon before the election, and should refuse to overturn the district court’s denial of the preliminary injunction.”
This sentiment was echoed during oral arguments by Indiana Solicitor General Thomas Fisher, who represented the state election commission.
“If you announce all of a sudden that there is going to be an injunction relating to whether the elderly can undertake mail-in voting, that will cause confusion,” Fisher told the judges.
He went on to say it would a better idea to, rather than granting an injunction, let the matter resolve itself through a normal court process.
Fisher also did not try to diminish the impact of the pandemic, but argued that there are lots of events that could keep someone from voting that are not granted an exception.
“The pandemic is a burden on life, it affects everything. There are many burdens on life, many burdens on life that make it very difficult, if not impossible for some people to get to the polls every election,” Fisher said.
He further argued that just because something is a burden to a voter, that does not entitle them to a specific method of casting their ballot.
The case made its way to the Seventh Circuit after U.S. District Judge James Hanlon in the Southern District of Indiana found last month that there was nothing unconstitutional about the state’s decision to not expand its vote-by-mail rules for the November election.
“Plaintiffs argue that Indiana should expand voting by mail for the general election as it did for the primary because it will enable more people to vote. But general elections already have substantially higher numbers of voters than primaries do,” Hanlon wrote. “Combining that increase with increased votes from vote by mail privileges—even if that privilege is not expanded, and certainly if it is—could easily strain Indiana's voting systems because those systems are instead equipped for in-person voting.”
This case is not the only one that has challenged Indiana’s absentee ballot rules. On Monday, a ruling in another case in the Southern District of Indiana now allows absentee ballots that are postmarked on or before Election Day to arrive up to 10 days later and still be counted.
That decision was handed down by Senior U.S. District Judge Sarah Barker, a Reagan appointee who found that the requirement that absentee ballots be received by noon on Election Day was arbitrary.
“Plaintiffs have further shown, at least on this preliminary record, that, as a result of these delays, Indiana voters can be—and in fact have been—disenfranchised by the noon Election Day receipt deadline,” Barker wrote.
She added, “In sum, the undisputed evidence, at least at this preliminary stage of these proceedings, establishes that the burden imposed by Indiana's noon Election Day receipt deadline, which threatens to disenfranchise thousands of eligible absentee voters for reasons that, because of the Covid-19 pandemic, are outside their control, is very substantial.”
That lawsuit was brought forth by two civil rights groups, Common Cause Indiana and the NAACP, who both championed the decision.
“This is a huge win for Hoosier voters,” said Julia Vaughn, policy director at Common Cause Indiana. “Indiana has seen a surge in requests for mail-in ballots and this ruling will help ensure all those voters who choose to vote by mail do not face the unnecessary barrier of an overly strict return deadline in making their voice heard.”
Barbara Bolling-Williams, president of the Indiana State Conference of the NAACP, said in a statement that Indiana voters “can now rest easier knowing that when they vote absentee by mail, their vote will be counted.”
“Before this ruling, if your ballot was delivered to the Election Office at say 12:10 pm instead of the noon deadline on Election Day, your ballot would have been rejected,” she said. “Voting absentee by mail is a safe and now certain option for voters.”
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