Appeals court rules Indiana mail-in ballots must be received by noon on Election Day

CHICAGO (WISH) — A federal appeals court Tuesday reversed a federal judge’s ruling that all Indiana absentee ballots postmarked by Election Day and received on or before Nov. 13 must be counted.

The ruling from the U.S. Court of Appeals For the Seventh Circuit reinstates an Indiana law that says mail-in absentee ballots must be received by noon Election Day, Nov. 3, to be counted.

The decision came a day after Wisconsin Democrats and their allies said they will ask the U.S. Supreme Court to decide whether absentee ballots received up to six days after the election can be counted in the presidential battleground state. It’s a move being fought by Republicans who have opposed other attempts across the country to expand voting.

Judge Sarah Evans Barker of the Southern District of Indiana had ruled in September based on what she called an unprecedented number of mail-in ballots cast in Indiana’s coronavirus-delayed June primary. She also cited the possibility of Hoosier voters’ ballots not being counted “based largely on factors outside their control,” including the COVID-19 pandemic and documented delays within the U.S. Postal Service. Her ruling gave as examples 1,949 mail-in ballots in Marion and Hamilton counties’ June primaries that were postmarked on or before Election Day but rejected for not arriving by noon June 2.

The appeals court ruling says, “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.”

“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,” the appeals court ruling says.

For the June 2 primary, the Indiana Election Commission expanded eligibility to vote by mail 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” but did not extend that for the general election, the ruling says. The expanded eligibility was to curb the spread of the coronavirus pandemic.

Barker said in her September ruling that the expansion of mail-in absentee voting eligibility for the Indiana primary led to an unprecedented number of voters casting mail-in ballots, nearly 550,000. That led to “documented delays in the transmission of ballots to voters as well as from voters back to election officials,” the judge said. Those delays meant “thousands of otherwise valid ballots were rejected,” the ruling said.

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.

Statement

“Our system provides adequate opportunity for all Hoosiers to cast a ballot by Election Day, and the absentee ballot-receipt deadline as written by the Indiana General Assembly helps most races to be called on Election Day, and not days or weeks after. The U.S. Supreme Court has said repeatedly that courts should not issue election-related injunctions at the eleventh hour, and we are pleased that the court of appeals has implemented that directive.”

Indiana Attorney General Curtis Hill