Federal appeals court rejects request for ‘no-excuse’ absentee voting by mail in Indiana

INDIANAPOLIS (WISH) — A federal appeals court on Tuesday rejected a request to expand voting by mail to all Indiana voters, saying that Indiana’s absentee voting laws do not violate the Constitution.

The Tuesday ruling said that restrictions on Indiana’s absentee voting do not impact the fundamental right to vote, but instead “a claimed right to receive absentee ballots” and noted that Hoosiers can vote on “Election Day, or during the early-voting period, at polling places all over Indiana.”

• READ THE RULING

The ruling comes after a federal district court in Indianapolis rejected the request.

The Indiana Election Commission extended absentee-voting privileges to all registered and qualified Indiana voters for the June primary election but did not renew that order for the Nov. 3 general election, instead “allowing Hoosiers in all counties to vote during a twenty-eight-day period before the election” and “implementing safety guidelines and procuring protective equipment for election day,” the ruling said.

The June primary had been delayed a month due to the coronavirus pandemic.

To vote absentee-by-mail in Indiana, a voter must be able to personally mark their own ballot and sign their name to the completed ballot security envelope and have a reason to request an absentee vote-by-mail ballot:

1. You have a specific, reasonable expectation that you will be absent from the county on Election Day during the entire 12 hours that the polls are open (6 am until 6 pm).
2. You have a disability.
3. You are at least 65 years of age.
4. You will have official election duties outside of your voting precinct.
5. You are scheduled to work at your regular place of employment during the entire 12 hours that the polls are open.
6. You will be confined due to illness or injury or you will be caring for an individual confined due to illness or injury during the entire 12 hours that the polls are open.
7. You are prevented from voting because of a religious discipline or religious holiday during the entire 12 hours that the polls are open.
8. You are a participant in the state’s address confidentiality program.
9. You are a member of the military or a public safety officer.
10. You are a “serious sex offender” as defined in Indiana Code 35-42-4-14(a).
11. You are prevented from voting due to the unavailability of transportation to the polls.

The plaintiffs in the case argued that one of the qualifications for Indiana absentee voting — being at least 65 years old — violates the 26th Amendment, “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.” The appeals court ruled the qualification does not impact others’ fundamental right to vote.

And because states have the authority to regulate elections, “Indiana has an undeniably legitimate interest in preventing voter fraud and ‘other abuses’ that are ‘facilitated by absentee voting,’” the ruling said.

The ruling also cites the expiration of Gov. Eric Holcomb’s “stay at home” executive order and the state’s progress to Stage 5 of the coronavirus reopening plan, “alleviating some of Plaintiffs’ proposed justifications for universal voting by mail.”

The court says the state’s voting system must be assessed as a whole and not just on the basis of absentee-voting availability, citing that a “less-convenient feature does not an unconstitutional system make.”

“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,” the ruling said.

A federal judge on Sept. 29 ruled that all Indiana absentee ballots postmarked by Election Day and received on or before Nov. 13 must be counted, citing the unprecedented number of mail-in ballots cast in Indiana’s June primary and the possibility of voters’ ballots not being counted “based largely on factors outside their control,” including the coronavirus pandemic and documented delays within the U.S. Postal Service.