Common Cause Ind. v. Lawson

• Decision Date: 13 October 2020
• Docket Number: No. 20-2911,20-2911
• Citation: 977 F.3d 663
• Parties: COMMON CAUSE INDIANA and Indiana State Conference of the NAACP, Plaintiffs-Appellees, v. Connie LAWSON, Indiana Secretary of State, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

977 F.3d 663

COMMON CAUSE INDIANA and Indiana State Conference of the NAACP, Plaintiffs-Appellees,

v.Connie LAWSON, Indiana Secretary of State, et al., Defendants-Appellants.

No. 20-2911

United States Court of Appeals, Seventh Circuit.

Submitted October 13, 2020

Decided October 13, 2020

Aneel Lachman Chablani, Attorney, Ami D.Gandhi, Attorney, Jennifer S. Terrell, Attorney, Chicago Lawyers' Committee for Civil Rights Under Law, Chicago, IL, William R. Groth, Attorney, Fillenwarth, Dennerline, Groth & Towe, LLP, Indianapolis, IN, Mark Sniderman, Attorney, Findling, Park, Conyers, Woody & Sniderman, Indianapolis, IN, for Plaintiffs-Appellees.

Thomas M. Fisher, Attorney, Kian James Hudson, Attorney, Julia Catherine Payne, Esq., Attorney, Office of the Attorney General, Indianapolis, IN, for Defendant-Appellant

Mithun Mansinghani, Attorney, for State of Oklahoma, State of Alabama, State of Arizona, State of Arkansas, State of Georgia, Amicus Curiae

Alexandra M. Walsh, Attorney, for Election Law Scholars Amicus Curiae

Before Sykes, Chief Judge, and Easterbrook and Brennan, Circuit Judges.

Easterbrook, Circuit Judge.

Indiana counts an absentee ballot only if it is received by noon on Election Day. Ind. Code §§ 3-11.5-4-3, 3-11.5-4-10. A district court held this rule unconstitutional on the ground that the SARS-CoV-2 pandemic, which has led to more use of mail-in voting nationwide, creates a risk that ballots mailed close to Election Day will not be received on time. Common Cause Indiana v. Lawson , 2020 WL 5798148, 2020 U.S. Dist. LEXIS 179161 (S.D. Ind. Sept. 29, 2020). The judge issued an injunction requiring the state to count all absentee ballots received by November 13, 2020, ten days after Election Day.

The district court's premise is that the Constitution entitles all persons who cast absentee ballots to be free of any risk that the ballot will not count, even if they mail their ballots close to Election Day. Because the pandemic has made additional demands on the Postal Service and increased the probability that a ballot mailed near Election Day will arrive afterward, the judge deemed the state's system unconstitutional. But a recent decision of this court holds that the premise is not correct—that as long as the state allows voting in person, there is no constitutional right to vote by mail. Tully v. Okeson , No. 20-2605, 977 F.3d 608 (7th Cir. Oct. 6, 2020). Tully adds that difficulties adributable to the virus do not require change in electoral rules—not, at least, as a constitutional matter. That some people are unwilling to vote in person does not make an otherwise-valid system unconstitutional. It is for states to decide what sort of adjustments would be prudent. The SARS-CoV-2 pandemic has caused great loss but is not a good reason for the federal judiciary to assume tasks that belong to politically responsible officials.

As long as it is possible to vote in person, the rules for absentee ballots are constitutionally valid if they are supported by a rational basis and do not discriminate based on a forbidden characteristic such as race or sex. Tully , 977 F.3d at 615–16, relying on McDonald v. Chicago Board of Election Commissioners , 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). It is rational to require absentee votes to be received by Election Day, just as in-person voting ends on Election Day. Deadlines are essential to elections, as to other endeavors such as filing notices of appeal or tax returns. That some ballots are bound to arrive after any deadline does not justify judicial extensions of statutory time limits. See Griffin v. Roupas , 385 F.3d 1128, 1130 (7th Cir. 2004). Counting the votes, and announcing the results, as soon as possible after the polls close serves a civic interest.

Other courts of appeals recently have held that laws setting an Election-Day deadline for receipt of all ballots are valid during a pandemic, as they are valid without one. See, e.g., New Georgia Project v. Raffensperger , 976 F.3d 1278, 2020 U.S. App. LEXIS 31405 (11th Cir. Oct. 2, 2020) ; Arizona Democratic Party v. Hobbs , 976 F.3d 1081, 2020 U.S. App. LEXIS 31677 (9th Cir. Oct. 6, 2020). We agree with that conclusion.

People who worry that mail will be delayed during the pandemic can protect themselves by using early in-person voting or posting their ballots early. As the Supreme Court observed in Republican National Committee v. Democratic National Committee , ––– U.S. ––––, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020), those who act at the last minute assume risks even without a pandemic. Cf. United States v. Locke , 471 U.S. 84, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). A state satisfies all constitutional requirements by devising a set of rules under which everyone who takes reasonable steps to cast an effective ballot can do so. See Frank v. Walker , 819 F.3d 384, 386–87 (7th Cir. 2016) ; Luft v. Evers , 963 F.3d 665, 679 (7th Cir. 2020) ; Democratic National Committee v. Bostelmann , No. 20-2835, 977 F.3d 639 (7th Cir. Oct. 8, 2020). During a pandemic a reasonable person entitled to vote by mail transmits the ballot earlier than normal or uses another approved method. Indiana allows voting from overseas, or by a member of the uniformed services, by fax or email. See Ind. Code § 3-11-4-6(h). It also allows voting in person during the four weeks before Election Day. See Ind. Code § 3-11-10-26(f). The district court...