Frederick v. Lawson

• Decision Date: 20 August 2020
• Docket Number: No. 1:19-cv-01959-SEB-MJD,1:19-cv-01959-SEB-MJD
• Citation: 481 F.Supp.3d 774
• Parties: Mary J. FREDERICK, et al., Plaintiffs, v. Connie LAWSON, in her official capacity as Secretary of State of Indiana, Defendant.
• Court: U.S. District Court — Southern District of Indiana

481 F.Supp.3d 774

Mary J. FREDERICK, et al., Plaintiffs,

v.Connie LAWSON, in her official capacity as Secretary of State of Indiana, Defendant.

No. 1:19-cv-01959-SEB-MJD

United States District Court, S.D. Indiana, Indianapolis Division.

Signed August 20, 2020

Mark W. Sniderman, Findling Park Conyers Woody & Sniderman, PC, William R. Groth, Macey Swanson LLP, Indianapolis, IN, for Plaintiffs.

Aleksandrina Penkova Pratt, Jefferson S. Garn, Parvinder Kaur Nijjar, Rebecca L. McClain, Robert Austin Rowlett, Indiana Attorney General, Courtney Lyn Abshire, Indianapolis, IN, for Defendant.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

SARAH EVANS BARKER, JUDGE

This lawsuit is one of several actions¹ recently filed in our district challenging various Indiana election laws and voting regulations in advance of the upcoming November 3, 2020 general election. The specific issue presented in this case is whether Indiana's signature-match requirement for mail-in absentee ballots violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because affected voters are not given notice or an opportunity to cure before their ballots are rejected based on a perceived signature mismatch.

Now before the Court are Defendant's Motion for Summary Judgment [Dkt. 63] and Plaintiffs' Cross Motion for Summary Judgment [Dkt. 67], filed on February 4, 2020 and March 3, 2020, respectively. Plaintiffs, Mary J. Frederick, John Justin Collier, William L. Marks, Jr., Minnie Lee Clark, and Common Cause Indiana, have brought this action against Defendant, Connie Lawson, in her official capacity as Secretary of State of Indiana, seeking both declaratory and injunctive relief, alleging that Indiana Code §§ 3-11-10-4, 3-11.5-4-4, and 3-11.5-4-13(a)(2), which set forth Indiana's signature-match requirement for mail-in absentee ballots, violate the Fourteenth Amendment's Due Process Clause and Equal Protection Clause, both facially and as-applied to the individual Plaintiffs. For the reasons detailed below, we DENY Defendant's Motion and GRANT Plaintiffs' Motion.

Factual Background

I. Indiana Mail-In Absentee Voting Procedures

This case involves the provisions of Indiana law setting forth the signature verification process for mail-in absentee voting. See generally , IND. CODE § 3-11-10-1 et seq. Under Indiana law, a person who cannot be physically present to vote at the polls or is age 65 or older on election day and is otherwise qualified to vote may participate in the electoral process by, among other methods, submitting an absentee ballot by mail. Specifically, a registered voter has a statutory right to vote by mail-in absentee ballot if the voter meets one of several statutory qualifications, including if:

1) The voter has a specific, reasonable expectation of being absent from the county on election day during the entire twelve (12) hours that the polls are open.

...

4) The voter is a voter with disabilities.

5) The voter is an elderly voter [elsewhere defined as being a voter at least 65 years of age, Ind. Code § 3-5-2-16.5 ]. ...

7) The voter is scheduled to work at the person's regular place of employment during the entire twelve (12) hours that the polls are open.

IND. CODE § 3-11-10-24(a) ; see also id. § 3-11-10-25.²

A voter who wishes to submit an absentee ballot by mail must first make a timely application on a state-approved form for a mail-in absentee ballot, which application must be received by the circuit court clerk or other designated office not earlier than the date the registration period resumes following an election, and, if the application is mailed, emailed, faxed, or hand-delivered, not later than 11:59 p.m. (prevailing local time) twelve (12) days before election day. IND. CODE § 3-11-4-3(a)(4). An application for an absentee ballot received by the election division in compliance with these deadlines "is considered to have been timely received for purposes of processing by the county" and the election division is then required to "immediately transmit the application to the circuit court clerk, or the director of the board of elections and registration, of the county where the applicant resides." Id. § 3-11-4-3(b).

In the absentee-ballot application, the voter must identify the reason the individual is qualified to vote by absentee ballot as well as provide basic biographical information, including name, voting registration address, mailing address, and date of birth. See id. § 3-11-4-2. Except in cases of disability, "the voter must sign the absentee ballot application." Id. § 3-11-4-2(a). If a voter with disabilities is unable to sign the absentee ballot application, "the voter may designate an individual eligible to assist the voter ... to sign the application on behalf of the voter and add the individual's name to the application." Id. § 3-11-4-2(b). There is also a section on the application for the designated individual assisting the voter to sign their own name.

Upon receipt of an application for absentee ballot, the county election board or the absentee voter board in the office of the circuit court clerk is required to review the application to ensure it has been properly executed, including whether "the signature of the voter on the application substantially conforms with the signature of the voter on the voter registration record, or that any substantial difference between the signatures can be accounted for by age or disability of the voter ...." IND. CODE § 3-11-4-17.5(a). If the members of the absentee voter board, which is comprised of two voters of each political party who are appointed and trained by the county election board, are unable to agree about this determination, the issue is referred to the county election board for resolution. Id. The statute is silent regarding the applicable procedure(s) if the members of the county election board cannot agree whether the voter's signature on the application substantially conforms with the voter's signature on the voter registration record, but in other circumstances in which the approval or denial of an absentee ballot application is referred to the county election board, the applicant must be provided due notice and an opportunity for a hearing. Id. § 3-11-4-18.5; § 3-6-5-31.

Upon receipt of a properly executed application for a mail-in absentee ballot, the voter is provided an absentee ballot, an affidavit envelope, and a return envelope. IND. CODE § 3-11-4-20. Voters whose absentee ballot applications are approved also receive a copy of what is known as the Absentee Voter's Bill of Rights. Id. § 3-5-8-2.5. That document does not inform a voter who is eligible to cast a mail-in absentee ballot that election officials are required to perform a signature comparison or that an absentee ballot may be rejected because election officials find that the voter's signature on the application or in the State's voter database does not match the signature on the absentee ballot affidavit. See Dkt. 67-9.

Upon receipt of the absentee ballot, the voter is required to mark the ballot in the presence of no other person, fold the ballot so the markings are concealed, and enclose the ballot in the provided envelope. The voter must execute the affidavit printed on the face of the affidavit envelope, which requires the voter to affirm that they personally marked the ballot and that they are a qualified voter and then to sign and date the form under the penalties of perjury. IND. CODE § 3-11-4-21. Once securely sealed in the return envelope, the mail-in ballot must then be delivered to the county election board.

A security envelope containing a mailed-in absentee ballot may be opened and the ballot removed only if the counters find, inter alia , that the "signature on the application corresponds to the signature on the absentee ballot affidavit." Id. § 3-11.5-4-12(b)(2). Indiana law provides that "[u]pon receipt of an absentee ballot, a county election board (or the absentee voter board in the office of the circuit court clerk) shall immediately examine the signature of the absentee voter to determine its genuineness." Id. § 3-11-10-4(a) ; see also id. § 3-11.5-4-11(a)(3) (absentee ballot counters in the presence of the county election board shall "compare the signature upon the application or electronic poll book with the signature upon the affidavit on the ballot envelope ... or voter registration record"). To do so, "[t]he board shall compare the signature as it appears upon the envelope containing the absentee ballot [or on the affidavit transmitted with the voter's absentee ballot] with the signature of the voter as it appears upon the application for the absentee ballot. The board may also compare the signature on the ballot envelope [or on the affidavit] with any other admittedly genuine signature of the voter." Id. § 3-11-10-4(b), (c). "[T]he signature review process ... may be conducted at any time after receipt of an absentee ballot by the county election board." Id. § 3-11.5-4-12(a).

If the county election board or absentee voter board performing the signature review immediately upon receipt of the absentee ballot "unanimously finds that the signature on a ballot envelope or transmitted affidavit is genuine, the board shall enclose immediately the accepted and unopened ballot envelope, together with the voter's application for the absentee ballot, in a large or carrier envelope" in which all absentee ballot envelopes and applications for the same precinct may be kept. IND. CODE § 3-11.5-4-5(a). The envelope is then "securely sealed and endorsed with the name and official title of the circuit court clerk and the following words: ‘This envelope contains an absentee ballot and must be opened only on election day under IC 3-11.5.’ " Id. § 3-11.5-4-5(b). Each circuit court clerk keeps all accepted ballot envelopes securely sealed in the clerk's office until the ballot envelopes are opened by absentee ballot counters on...