The effort to allow all Hoosiers to vote by absentee ballot in the November presidential election has been blocked by the 7th Circuit Court of Appeals which, in an echo of the state’s argument, found Election Day is too close to make any changes now.
In a separate case, a judge temporarily stayed, pending appeal, an order blocking an Indiana law that requires absentee ballots be received by noon to be counted.
Indiana Vote by Mail and other individual plaintiffs had challenged Indiana’s prohibition on no-excuse absentee balloting, arguing the restrictions were unconstitutional. The plaintiffs had sought a preliminary injunction preventing Indiana from enforcing the limitations so that all Indiana residents would have the option of mailing in their ballot Nov. 3 as they had been able to do for the June primary, when restrictions were lifted due to the pandemic.
In August, the U.S. District Court for the Southern District of Indiana denied the motion for preliminary injunction. The plaintiffs’ appeal was expedited with oral arguments held Sept. 30, and the 7th Circuit issuing its ruling Tuesday, affirming the lower court’s decision.
“The (U.S.) Supreme Court told us that the fundamental right to vote does not extend to a claimed right to cast an absentee ballot by mail,” Judge Michael Kanne wrote, citing McDonald v. Board of Election Commissioners of Chicago. “And unless a state’s actions make it harder to cast a ballot at all, the right to vote is not at stake.”
Indiana had argued, in part, the plaintiffs were calling for a significant change to the state’s electoral process with the general election just a short time away. Expanding absentee balloting at this stage would potentially confuse voters, the state asserted.
The appellate panel agreed. Citing Purcell v. Gonzalez (2006), the court said the federal courts had to exercise caution and restraint before changing procedures on the eve of an election.
“Given that voting is already underway in Indiana, we have crossed Purcell’s warning threshold and are wary of turning the State in a new direction at this late stage,” Kanne wrote.
The decision was unanimous, with Judge Kenneth Ripple writing a concurring opinion.
Meanwhile, in a separate election lawsuit, a federal judge on Tuesday temporarily stayed her earlier injunction that would have blocked enforcement of a law requiring absentee ballots be received by noon on Election Day. The state on Friday appealed the injunction to the 7th Circuit.
Senior Judge Sarah Evans Barker’s order issued Tuesday stayed her Sept. 29 injunction for one week to allow the 7th Circuit to consider the state’s appeal. But the judge also used the order to implore Hoosier voters who may opt to cast a mail-in ballot to request one soon and return it promptly, as the deadline for requesting absentee ballots is just over two weeks away.
Barker’s ruling gives the Chicago appeals court time to consider the state’s appeal and “determine whether an additional stay is warranted,” she wrote. “In the interim, ‘lest they effectively lose their right to do so by the vagaries of COVID-19, mail processing, or other, unforeseen developments leading up to the November election,’ … Indiana voters eligible to and desirous of voting by absentee ballot are encouraged to submit their applications well in advance of Indiana’s October 22, 2020 deadline, and, upon receipt, to promptly complete and return their absentee ballots without delay.”