Tully v. Okeson

• Decision Date: 06 October 2020
• Docket Number: No. 20-2605,20-2605
• Citation: 977 F.3d 608
• Parties: Barbara TULLY, Katharine Black, Marc Black, David Carter, Rebecca Gaines, Elizabeth Kmieciak, Chaquitta McCleary, David Slivka, Dominic Tumminello, and Indiana Vote By Mail, Inc., individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Paul OKESON, S. Anthony Long, Suzannah Wilson Overholt, Zachary E. Klutz, and Connie Lawson, in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

977 F.3d 608

Barbara TULLY, Katharine Black, Marc Black, David Carter, Rebecca Gaines, Elizabeth Kmieciak, Chaquitta McCleary, David Slivka, Dominic Tumminello, and Indiana Vote By Mail, Inc., individually and on behalf of all others similarly situated, Plaintiffs-Appellants,

v.Paul OKESON, S. Anthony Long, Suzannah Wilson Overholt, Zachary E. Klutz, and Connie Lawson, in their official capacities, Defendants-Appellees.

No. 20-2605

United States Court of Appeals, Seventh Circuit.

Argued September 30, 2020

Decided October 6, 2020

Mark Sniderman, Attorney, Findling, Park, Conyers, Woody & Sniderman, PC, Indianapolis, IN, Jed Wolf Glickstein, Attorney, Gary A. Isaac, Brett E. Legner, Brett E. Legner, Michael Anthony Scodro, Jeffrey M. Strauss, Attorneys, Mayer Brown LLP, Chicago, IL, William R. Groth, Attorney, Fillenwarth, Dennerline, Groth & Towe, LLP, Indianapolis, IN, for Plaintiffs-Appellants.

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

Bridget A. Clarke, Andrew J. Dhuey, Attorney, Andrew J. Dhuey, Attorney At Law, Berkeley, CA, for Amici Curiae.

Before Ripple, Kanne, and Scudder, Circuit Judges.

Kanne, Circuit Judge.

Relying on the unprecedented challenges posed by the COVID-19 pandemic, Plaintiffs seek a preliminary injunction requiring Indiana to permit unlimited absentee voting in the upcoming general election. To attain this goal, they challenge Indiana's absentee-voting regime on two grounds. First, Plaintiffs assert that Indiana's extension of absentee ballots to elderly Hoosiers violates the Twenty-Sixth Amendment by abridging younger Hoosiers’ right to vote. Second, Plaintiffs contend that requiring some voters, such as themselves, to cast ballots in person during the ongoing COVID-19 pandemic infringes on their fundamental right to vote and thus violates the Fourteenth Amendment's Equal Protection Clause.

These claims hinge on one question: what is "the right to vote"? In McDonald v. Board of Election Commissioners of Chicago , the Supreme Court told us that the fundamental right to vote does not extend to a claimed right to cast an absentee ballot by mail. 394 U.S. 802, 807, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). And unless a state's actions make it harder to cast a ballot at all, the right to vote is not at stake. Id.

Considering that definition, Indiana's absentee-voting regime does not affect Plaintiffs’ right to vote and does not violate the Constitution. In the upcoming election, all Hoosiers, including Plaintiffs, can vote on election day, or during the early-voting period, at polling places all over Indiana. The court recognizes the difficulties that might accompany in-person voting during this time. But Indiana's absentee-voting laws are not to blame. It's the pandemic, not the State, that might affect Plaintiffs’ determination to cast a ballot.

Two other principles guide our decision in this case. First, the Constitution explicitly grants states the authority to prescribe the manner of holding federal elections. U.S. Const. art. I, § 4. Recognizing that authority, our court has acknowledged that balancing the interests of discouraging fraud and mitigating elections-related issues with encouraging voter turnout is a judgment reserved to the legislature. See Griffin v. Roupas , 385 F.3d 1128, 1131 (7th Cir. 2004). Second, the Supreme Court's Purcell principle counsels federal courts to exercise caution and restraint before upending state election regulations on the eve of an election. See Purcell v. Gonzalez , 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006). 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.

We therefore affirm the district court's decision denying Plaintiffs’ request for a preliminary injunction.

I. BACKGROUND

Indiana voters who fall into any of thirteen statutorily enumerated categories can vote by mail. Ind. Code § 3-11-10-24 (2020). One of those categories encompasses voters aged sixty-five and older. Id. § 3-11-10-24(a)(5). Others encompass, for example, disabled or homebound voters, voters who lack transportation, and voters who expect to be absent from the county on election day. Id. § 3-11-10-24(a).

For purposes of the primary election held in June of this year, the Indiana Election Commission responded to the difficulties of voting during the COVID-19 pandemic by extending these absentee-voting privileges to all registered and qualified Indiana voters. For the general election coming up this November, however, the IEC did not renew its order. Instead, Indiana has by now taken steps to alleviate COVID-19's burden on voters by, for example, allowing Hoosiers in all counties to vote during a twenty-eight-day period before the election (see id. § 3-11-10-26(f)) and by implementing safety guidelines and procuring protective equipment for election day. This preparation also came as Indiana progressed to "Stage 5" of its public health and reopening plan late last month.¹

Plaintiffs include nine Indiana voters who do not expect to qualify for an absentee ballot in the fast-approaching general election.² Asserting claims under the Twenty-Sixth Amendment and the Equal Protection Clause, they moved for a preliminary injunction requiring Indiana to implement "no-excuse absentee voting" in the general election. The district court denied Plaintiffs’ motion. Plaintiffs now appeal that decision.

II. ANALYSIS

"A preliminary injunction is an extraordinary remedy." Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ ., 858 F.3d 1034, 1044 (7th Cir. 2017) (citing Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc ., 549 F.3d 1079, 1085 (7th Cir. 2008) ). "We review the grant of a preliminary injunction for the abuse of discretion, reviewing legal issues de novo , while factual findings are reviewed for clear error." Id. (internal citations omitted) (citing Jones v. Markiewicz-Qualkinbush , 842 F.3d 1053, 1057 (7th Cir. 2016) ; Fed. Trade Comm'n v. Advoc. Health Care Network , 841 F.3d 460, 467 (7th Cir. 2016) ).

To merit such relief, a movant "must make a threshold showing that: (1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits." Turnell v. CentiMark Corp. , 796 F.3d 656, 662 (7th Cir. 2015). Then, if the movant makes this threshold showing, the court proceeds to consider the balance of harms between the parties and the effect of granting or denying a preliminary injunction on the "public interest." Id. This case turns on the threshold inquiry and, more particularly, whether Plaintiffs have shown that they have a reasonable likelihood of success on the merits.

A movant's showing of likelihood of success on the merits must be "strong." Ill. Republican Party v. Pritzker , 973 F.3d 760, 762–63 (7th Cir. 2020). "A ‘strong’ showing ... does not mean proof by a preponderance .... But it normally includes a demonstration of how the applicant proposes to prove the key elements of its case." Id. Plaintiffs have not made this "strong" showing as to either of their claims because "the right to vote" does not include Plaintiffs’ "claimed right to receive absentee ballots." McDonald v. Bd. of Election Comm'rs of Chi . 394 U.S. 802, 807, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969).

A. Plaintiffs’ Twenty-Sixth Amendment Claim

The Twenty-Sixth Amendment provides, "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age." Plaintiffs argue that Indiana's law permitting Hoosiers who are sixty-five and older to vote absentee violates the Twenty-Sixth Amendment because it does not provide the same privilege to younger voters. The success of this claim depends on whether Indiana's age-based absentee-voting law abridges "the right ... to vote" protected by the Twenty Sixth Amendment or merely affects a privilege to vote by mail.

The Supreme Court answered this question in McDonald . 394 U.S. at 807, 89 S.Ct. 1404 ; see also Tex. Democratic Party v. Abbott , No. 20-50407, ––– F.3d ––––, ––––, 2020 WL 5422917, at *10 (5th Cir. Sept. 10, 2020) ("Understanding what the right to vote meant at the time the Twenty-Sixth Amendment was ratified in 1971 is certainly assisted by the 1969 McDonald decision."). There, pretrial detainees in Illinois argued that a state law granting absentee ballots to some individuals, but not to pretrial detainees, violated the Equal Protection Clause. McDonald , 394 U.S. at 803, 89 S.Ct. 1404. The Court rejected this argument because the detainees did not put forth evidence showing that the challenged law "impact[ed their] ability to exercise the fundamental right to vote" or that it "absolutely prohibited" them from voting. Id. at 807, 808 n.7, 89 S.Ct. 1404. Instead, the law "ma[de] voting more available to some groups." Id. at 807, 89 S.Ct. 1404. Therefore, it was "not the right to vote that [was] at stake ... but a claimed right to receive absentee ballots." Id. In short, the Court held that the fundamental right to vote means the ability to cast a ballot, but not the right to do so in a voter's preferred manner, such as by mail.³

In this case, we too are reviewing an absentee-voting statute that "make[s] voting more available to some groups"—namely, voters over sixty-five. Id. ; see also Luft v. Evers , 963 F.3d 665, 672 (7th Cir. 2020) (noting that Wisconsin's absentee-voting laws "make voting easier"). And even as applied right now, during a pandemic, the statute does not "impact[ Plaintiffs’] ability to exercise the fundamental right to vote" or "absolutely prohibit[ Plaintiffs] from voting"; only the pandemic is potentially guilty of those charges. McDonald ...