By Marilyn Odendahl

The Indiana Citizen

May 22, 2023

Indiana’s limitations on absentee voting were again before the 7th Circuit Court of Appeals May 17 with the plaintiffs asserting the restrictions on voters under age 65 violates the 26th Amendment of the U.S. Constitution while the state countered the right to vote does not mean the right to cast a ballot “in the voter’s preferred manner.”

During the oral argument, the panel of three judges probed whether voting by absentee ballot is actually protected by the 26th Amendment and whether Indiana’s absentee voting statute abridges the rights of Hoosiers who are younger than 65.  The nearly 40-minute proceeding included some fireworks when Senior Judge Kenneth Ripple became angry and charged Indiana Deputy Solicitor General James Barta with implying the opinions handed down by “old guys” who sat on the bench in previous decades were not worth considering.

This lawsuit was originally filed in April 2020 by the nonprofit Indiana Vote by Mail and nine Hoosiers who did not qualify to vote by absentee ballot but wanted to do so for the general election in November 2020. Although Indiana had allowed all eligible voters to cast a mail-in ballot during the 2020 primary because of the dangers of the COVID-19 pandemic, the state did not extend the exemption to the November election.

The plaintiffs argued the Indiana laws that prohibit Hoosiers younger than 65 from voting absentee by mail unless they meet certain criteria are unconstitutional. They asserted the “disparate treatment of older and younger voters” violates the 26th Amendment by “abridging the right to vote on account of age.”

Before the 7th Circuit, the plaintiffs’ attorney Jed Glickstein of Mayer Brown in Chicago said in the voting rights cases that have gone before the U.S. Supreme Court, the justices looked at whether some voters had more difficulty accessing the polls than others.

“In this case, we, too, are reviewing an absentee voting statute that makes voting more available to some groups, namely voters over 65 and that is kind of the heart of the constitutional violation,” Glickstein told the appellate panel. “A state cannot make voting more available to some groups on the basis of race, sex, age or ability to pay a poll tax. That’s just in the plain text of the Constitution.”

Barta emphasized the plaintiffs are not being prevented from casting a ballot.

“Let me be clear at the outset that this is not a case where the plaintiffs have said that Indiana law prohibits them from voting. This November, all can vote in person or during early voting,” Barta said. “Plaintiffs merely, as they put it in their summary judgment papers, would ‘prefer to vote by mail.’”

Barta told the panel that under the precedent established by the Supreme Court in the 1969 case, McDonald v. Board of Elections Commissioners of Chicago, the “Constitution doesn’t protect preference.”

However, the deputy solicitor general angered Ripple when he cautioned the panel in applying the reasoning from earlier decisions. Barta said the courts back then used a “much looser analytical framework than usually courts take to constitutional questions today.”

That invoked a strong reaction in Ripple, who was confirmed to one of the Indiana seats on the 7th Circuit in 1985 and took senior status in 2008. He peppered Barta with a series of rapid-fire questions, accusing the attorney of saying the constitutional analysis can be disregarded because the judges of previous generations did not know what they were doing.

Barta repeatedly denied the accusation by saying, “No, your honor” multiple times but Ripple was not convinced.

“It’s nasty,” Ripple told Barta. “What you just did is suggest to us those old guys, they had a different way to interpreting the Constitution.”

Barta replied, “No, your honor, I don’t think at all we should forget about it. It’s merely a matter of … making sure that it is indeed consistent with the text.”

Second appeal

Under Indiana law, eligible Hoosiers can vote in person on Election Day or prior to the election at an early voting site. However, to vote absentee by mail, voters must meet strict criteria such as being at least 65, disabled, ill or having to work the entire 12 hours the polls are open.

During the Indiana General Assembly’s 2023 session, lawmakers passed a bill adding more limitations on absentee voting. House Enrolled Act 1334, which was signed by Gov. Eric Holcomb May 1, requires absentee voters to provide additional identification when submitting their ballots.

Wednesday’s hearing was the second time the plaintiffs in the absentee ballot lawsuit presented their arguments to the 7th Circuit.

In the original complaint, the plaintiffs asserted Indiana’s restrictions on absentee voting by mail violate both the 14th Amendment by creating an undue burden on the right to vote and the 26th Amendment by limiting the right to vote based on age. They then asked the Southern Indiana District Court for a preliminary injunction to enable all eligible Hoosiers to vote by mail in the November 2020 general election.

But the district court denied the request in an August 2020 order, finding the plaintiffs had not demonstrated they would succeed in showing the absentee voting law was unconstitutional. Citing McDonald, the lower court held “a few less-convenient effects ‘does not an unconstitutional system make.’”

A split 7th Circuit affirmed in October 2020 the district court’s ruling and the U.S. Supreme Court subsequently turned down the petition to review the decision. The case returned to the district court where it continued with the opposing parties eventually filing cross motions for summary judgment. Again, the district court ruled against the plaintiffs and this second appeal was made to the 7th Circuit.

Judge John Lee quizzed Glickstein about the return of this matter to the appellate court.

“Aren’t we just bound to follow what we previously did in Tully under the law of case doctrine,” Lee asked. “Doesn’t that circumscribe our ability to reexamine these issues that you now ask us to reexamine?”

Glickstein replied the law of case doctrine does not apply because the court did not make an “unequivocal legal ruling on the merits” of the plaintiffs’ arguments.

“Even if the law of case doctrine was applied,” Glickstein continued, “I think that there would be reasons why the panel with the passage of time and the ability to consider this …more fully briefed record … is perfectly entitled and ought to revisit that constitutional question.”

The state countered the 7th Circuit should adhere to its 2020 ruling in this case and, again, affirm the district court’s decision in favor of the defendants.

“This court has already rejected the plaintiffs’ 26th Amendment theory holding that Indiana did not abridge the right to vote by letting the elderly vote by mail,” Barta said. “That change made voting easier for the elderly, not harder for the plaintiffs….”

On rebuttal, Glickstein pushed back by asserting Indiana’s law unconstitutionally interferes with the plaintiffs’ right to vote.

“The fact that plaintiffs can vote in person is immaterial to our claim in this case,” he told the appellate court. “This is not a case about the denial of the right to vote. The 26th Amendment separately prohibits abridgement of the right to vote and that is the source of the plaintiffs’ claim.”

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