Indiana is urging the 7th Circuit Court of Appeals to apply the brakes to the challenge to the state’s restrictions on absentee balloting, arguing in part that the plaintiffs are seeking to overturn decades-old election laws without allowing time for proper consideration of the merits.
However, in an order issued Tuesday, the 7th Circuit granted the plaintiffs’ motion to expedite the appeal. The appellate court also set a Sept. 9 deadline for the state’s brief and a Sept. 16 deadline for the plaintiffs’ response. No extensions of time will be granted and oral arguments will be scheduled in a separate order.
The state’s opposition brief in Tully, et al. v. Okeson, et al., 20-2605, was filed Monday. In particular, the state asserts the plaintiffs are asking for a rushed decision only because they waited too long to raise their arguments and file their motion for preliminary injunction.
“Plaintiffs could have filed a preliminary injunction months earlier, and could have raised their Twenty-Sixth Amendment claim—which now occupies center stage in their briefing—decades ago,” the state argued in its brief. “The court should not rescue Plaintiffs from their own choices.”
Indiana Vote by Mail and other plaintiffs filed the lawsuit after the state did not expand no-excuse absentee balloting to the November 2020 general election as it did for the June 2 primary. The plaintiffs claim Indiana’s restrictions on who can vote by mail violate the Constitution and, during the COVID-19 emergency, put Hoosiers’ health in danger.
In an expedited schedule, the state submitted a 17-page brief opposing the plaintiffs’ motion for injunction pending appeal or expedited appeal. Indiana argued the court should deny the motion and permit briefing to move forward on a normal schedule.
Plaintiffs are requesting an injunction to enjoin the state from enforcing Indiana Code § 3-11-10-24(a), which identifies 13 circumstances under which Hoosiers could qualify to vote by mail. These circumstances include being out of town on Election Day, having to work the 12 hours the polls are open or being 65 or older.
The state countered that the plaintiffs’ motion for an injunction fails to comply with Federal Rule of Appellate Procedure 8. The rule provides that a party seeking a stay pending appeal must first file a motion with the district court or show that doing so is impractical.
“Plaintiffs identify nothing special or different about this situation that allows them to avoid Rule 8 but would not also permit the State to have done the same thing had the district court granted the injunction, or indeed permit the State to ignore rule 8 anytime a district court grants a preliminary injunction against enforcement of a state statute,” the state argued.
Moreover, Indiana contends granting the injunction would be equivalent to resolving the merits of the appeal in the plaintiffs’ favor without full briefing from the opposing side. Citing numerous precedents, the state argued the purpose on an injunction pending appeal is to preserve the status quo or delay the enforcement of a judgment that would cause irreparable harm or prevent appellate adjudication.
“Here, however, Plaintiffs seek not to preserve the status quo or delay execution of a judgment, but to change the rules of an election—rules that have stood for decades, even centuries,” the state argued. “And their now-principal argument—that permitting the elderly to cast mail-in absentee ballots violates the Twenty-Sixth Amendment—has no expiration date.”
The state countered the request for a speedy resolution by pointing to the pace of the plaintiffs’ response.
On March 25, the Indiana Election Commission issued an order permitting all eligible voters to cast mail-in absentee ballots only for the state’s primary. More than a month later, the plaintiffs filed a lawsuit to expand the mail-in voting to the general election. A month after that, they filed a motion for a preliminary injunction and, from the amended complaint, advanced the argument that the 26th Amendment prohibits all age distinctions in election laws.
The state contends the plaintiffs are responsible for the delay and that the court should not fast-track a constitutional challenge to a law that has been in place for 27 years.
“Indeed, an expedited briefing schedule is especially unnecessary and unjustified here,” the state argued, noting the plaintiffs have self-expedited the appeal by filing their brief with their motion, and Indiana’s brief will be due in advance of the absentee ballot application deadline of Oct. 22. “… There is no practical or equitable reason to expedite this appeal.”