CHICAGO (CN) — Opponents of Indiana’s mail-in voting restrictions returned to the Seventh Circuit on Wednesday, arguing the rules discriminate against voters based on their age.
The underlying lawsuit was filed in April 2020 during the early days of the Covid-19 pandemic and sought to give all Indiana voters the right to cast their ballot by mail.
Spearheaded by several voters and voting rights groups, the lawsuit claimed universal mail-in voting should be allowed for two reasons: the Covid-19 presented serious risks to in-person voters and the age requirement of 65 or older to vote by mail is discriminatory.
The case reached the Seventh Circuit later that year. In October 2020, the Chicago-based appeals court handed down a ruling that denied all Indiana voters the right to mail in their ballots.
“Indiana’s absentee-voting regime does not affect plaintiffs’ right to vote and does not violate the Constitution. In the upcoming election, all Hoosiers, including plaintiffs, can vote on Election Day, or during the early-voting period, at polling places all over Indiana,” wrote U.S. Circuit Judge Michael Kanne, a Ronald Reagan appointee.
The unfavorable ruling did not end the lawsuit, and on Wednesday the case was back before the Seventh Circuit, this time focusing solely on the age discrimination claim.
Indiana allows voting by mail in 11 instances, chief among them disability, illness, work or religious conflicts, or if a voter is at least 65 years old.
Attorney Jed Glickstein spoke on behalf of the voting rights advocates and argued to the three-judge panel that the age restriction is unconstitutional.
“Our claim in this case flows from the plain language of the Constitution’s voting amendments. Indeed, if Indiana had used race or sex in its mail-in voting laws there would be little question how to resolve the claim in this case,” Glickstein said.
Glickstein went on to say that when it comes to voting, the U.S. Constitution puts age on par with categories like race and sex.
U.S. Circuit Judges Kenneth Ripple, a Reagan appointee, and Michael Scudder, a Donald Trump appointee, were both part of the 2020 ruling and returned for Wednesday’s hearing. They were joined this time by U.S. Circuit Judge John Lee, who asked Glickstein if the judges were bound by the court’s earlier ruling.
“Doesn’t that circumscribe our ability to reexamine these issues that you have now asked us to reexamine?" asked Lee, who was appointed to the court by President Joe Biden.
Glickstein responded by saying the court would only be bound to the previous findings if it had made an unequivocal legal ruling on the merits.
“But that’s not, respectfully, what the panel did,” Glickstein said.
Representing the state election officials named as defendants in the case was Indiana Deputy Solicitor General James Barta, who argued that the preference to vote by mail is not protected by the Constitution.
“This court has already rejected plaintiffs’ 26th Amendment theory holding that Indiana did not abridge their right to vote by letting the elderly vote by mail. That change made voting easier for the elderly, not harder for plaintiffs,” Barta said. “As both this court and the Fifth Circuit have recognized, the Constitution does not require states to indulge citizens' preference of voting from home when they have ample opportunities to vote in person.”
The 26th Amendment lowered the voting age from 21 to 18 in 1971, and declared that one’s right to vote will not be “denied or abridged by the United States or any State on account of age.”
Barta argued that the court should only consider whether the Indiana law has an impact on one’s ability to cast a ballot in general, which he said it does not.
Scudder asked Barta about the anti-discriminatory language of the 26th Amendment.
“We can argue about the content as we are here, but it does contain an anti-discrimination mandate, in the form of the language 'deny or abridge,'” the judge said.
“I don’t know if I would describe it as anti-discrimination, because I think discrimination can often be used to mean no distinction,” Barta said. “But it does definitely contain an anti-abridgement mandate.”
Glickstein argued in his rebuttal that his clients' claims are not about the basic right to vote, but rather that they are being denied the right to vote in a manner that is afforded to others based upon age.
The panel judges did not indicate when they would issue a ruling.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
