Common Cause Ind. v. Lawson
| Decision Date | 29 September 2020 |
| Docket Number | No. 1:20-cv-02007-SEB-TAB,1:20-cv-02007-SEB-TAB |
| Citation | 490 F.Supp.3d 1311 |
| Parties | COMMON CAUSE INDIANA, et al., Plaintiffs, v. Connie LAWSON, et al., Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Ami Gandhi, Pro Hac Vice, Aneel L. Chablani, Pro Hac Vice, Jennifer Terrell, Pro Hac Vice, Chicago Lawyers’ Committee for Civil Rights, Chicago, IL, Ezra D. Rosenberg, Pro Hac Vice, Ryan Snow, Pro Hac Vice, Lawyers’ Committee for Civil Rights under Law, Washington, DC, William R. Groth, Vlink Law Firm LLC, Mark W. Sniderman, Findling Park Conyers Woody & Sniderman, PC, Indianapolis, IN, for Plaintiffs.
Courtney Lyn Abshire, Jefferson S. Garn, Kian J. Hudson, Thomas M. Fisher, Julia Catherine Payne, Indiana Office of the Attorney General, Indianapolis, IN, for Defendants.
ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
This lawsuit is one of several that have been filed in our district and others around the country in the runup to the November 3, 2020 general election1 implicating the right to vote—"a fundamental matter in a free and democratic society." Reynolds v. Sims , 377 U.S. 533, 561–62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Here, Plaintiffs Common Cause Indiana ("CCI") and Indiana State Conference of the National Association for the Advancement of Colored People ("NAACP") have brought this action against Defendants Connie Lawson in her official capacity as Indiana Secretary of State, and Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary E. Klutz, all in their official capacities as members of the Indiana Election Commission, challenging the constitutionality of Indiana's requirement, codified at Indiana Code §§ 3-11.5-4-3 and 3-11.5-4-10, that mail-in absentee ballots, in order to be counted, be received by noon on Election Day. This issue, plaintiffs argue, takes on a heightened significance in the context of the ongoing devastations of the COVID-19 pandemic and the risks it presents to all citizens, constituting an undue burden on the fundamental right to vote, in violation of the First and Fourteenth Amendments to the United States Constitution.
Now before the Court is Plaintiffs’ request for preliminary injunctive relief [Dkt. No. 9], filed on August 17, 2020, but not fully briefed until September 23, 2020. Specifically, Plaintiffs seek an order from the Court enjoining Defendants, and all those acting in concert with them or at their direction, from enforcing or giving any effect to Indiana Code §§ 3-11.5-4-3 and 3-11.5-4-10 in the November 3, 2020 election, thereby obviating the noon deadline for receipt and processing of the mail-in absentee ballots. Plaintiffs also request that Defendants Okeson, Long, Wilson Overholt, and Klutz, in their official capacities as members of the Indiana Election Commission and pursuant to the powers and duties of the Indiana Election Commission, as defined in Indiana Code § 3-6-4.1-14, be directed to adopt rules, or emergency rules, requiring all county election boards and all those acting in concert with them or under their direction and control, not to reject mail-in ballots postmarked on or before November 3, 2020, and received on or before November 13, 2020, and to ensure that such ballots are counted, if otherwise valid. For the reasons detailed below, we GRANT Plaintiff's motion.
This case involves the requirement under Indiana law that mail-in absentee ballots be received by noon on Election Day to be counted. Indiana does not generally provide no-excuse mail-in absentee voting; rather, under Indiana law, eligibility to vote by mail is extended only to those voters who qualify under a list of specific circumstances.2 Specifically, a registered voter has a statutory right to vote by mail-in absentee ballot if the voter meets one of thirteen statutory qualifications, including, inter alia , if the voter has "a specific, reasonable expectation of being absent from the county" while the polls are open on Election Day; is confined to a residence or health care facility "because of an illness or injury" while the polls are open; is scheduled to work during the entire time the polls are open; is prevented from voting due to the unavailability of transportation to the polls; is disabled, or is an "elderly" voter, defined as a voter who is at least 65 years of age on Election Day. IND. CODE § 3-11-10-24(a) ; see also id. §§ 3-11-10-25, 3-5-2-16.5. In addition to these specified circumstances, Indiana has a separate set of rules authorizing mail-in absentee voting by voters who live overseas and voters who are absent from their places of residence by reason of active military duty. See id. §§ 3-5-2-1.5, 3-5-2-34.5, 3-11-4-5.7, 3-11-4-6.
Due to the serious health risks associated with the COVID-19 pandemic, members of the Indiana Election Commission expanded eligibility to vote by mail in the rescheduled June 2, 2020 primary to include any "voter who is unable to complete their ballot because they are temporarily unable to physically touch or be in safe proximity to another person,"3 effectively allowing all Indiana voters to qualify to vote absentee. As a result, an unprecedented number of Indiana voters cast mail-in absentee ballots. Although state election officials recently voted to withhold a similar privilege for the 2020 general election,4 it is expected that a record number of Indiana voters eligible under the current statutory regime will cast mail-in absentee ballots in the November 3, 2020 general election in order to avoid the risks of contracting COVID-19 from engaging in in-person voting.
Indiana voters satisfying the eligibility requirements to vote by absentee ballot can apply online to vote by mail, by mailing or hand delivering a physical application form to their county election board, or by emailing an image of their completed application to county officials or the state. IND. CODE § 3-11-4-3(a)(4) ; Indiana Secretary of State, Absentee Voting: Absentee Voting by Mail , https://www.in.gov/sos/elections/2402.htm. Voters may apply as early as the conclusion of the previous election; in fact, Indiana has been accepting applications to vote by mail in the November 3, 2020 general election since the June 2, 2020 primary concluded. Under Indiana law, an application to vote via mail-in absentee ballot must be received by the proper county election board or other appropriate official by 11:59 p.m. on the twelfth day before election day, which is October 22, 2020 for the November 3, 2020 election. Id. § 3-11-4-3(a)(4)(A). For presidential elections, federal law requires states to allow voters "who may be absent from their election district or unit in such State on the day such election is held" to apply "not later than seven days immediately prior to such election," 52 U.S.C. § 10502(d), which is October 27, 2020 for the November 3, 2020 election.
No later than forty-five days prior to Election Day, county election officials must begin mailing ballots to voters whose applications have been approved as of that date. See IND. CODE § 3-11-4-15 (); id. § 3-11-4-18(c)(2) ().5 For voters applying within forty-five days of election day, Indiana law requires that county officials mail the ballot "on the day of the receipt of the voter's application." Id. § 3-11-4-18(c)(1). Thus, this year, on September 19, 2020, Indiana counties were required by law to send a mail-in ballot to every eligible voter whose application they had already received, and, going forward, are required to send eligible voters their mail-in ballots on the same day each application is received. The ballot must be mailed to the voter "postage fully prepaid." Id. § 3-11-4-18(a). If a voter has not received their ballot "after a reasonable time has elapsed for delivery of the ballot by mail," the ballot is "destroyed, spoiled, [or] lost," or the voter makes an error on their ballot, they may request that a replacement ballot be sent to them by filing a statement with their county election board. Id. § 3-11-4-17.7.
After a voter receives and completes their ballot, it can be returned by mail using the prepaid return envelope.6 Once the United States Postal Service ("USPS") takes custody of the completed ballot, the ballot is transported to a mail facility for processing, where it is marked with an official postmark or other marking indicating the date on which the USPS took custody of the ballot. In Indiana, for a mail-in absentee ballot to be counted, it must be received by the county election board "before noon on election day," regardless of the date on which it was cast and mailed by the voter.7 IND. CODE §§ 3-11.5-4-3 ; 3-11.5-4-10. Accordingly, the postmarked date of the ballot has no bearing on whether it will be deemed timely. If a voter misses the ballot-receipt deadline, the voter can vote in-person at the appropriate polling place on Election Day. Id. §§ 3-11.5-4-18, 3-11-10-31. But voters typically are not informed of whether their ballots arrived on or before the deadline.
Indiana law does provide that IND. CODE § 3-11-4-18(a) (emphasis added). Counties are not required , however, to make their ballot envelopes trackable, and, so far as we have been informed, no Indiana counties currently do so. Absentee voters are able to track the date the county clerk's office received their application for an...
To continue reading
Request your trial