Attorney General Curtis Hill this week asked a federal appellate court to uphold a lower court’s denial of a preliminary injunction that would have allowed “unlimited absentee voting” in Indiana for the Nov. 3 general election.
In April, the plaintiffs in Tully v. Okeson filed a motion for a preliminary injunction that would have allowed all registered voters in Indiana to vote by mail with an absentee ballot in the November election. They argued that Indiana’s absentee voting law unconstitutionally burdens their right to vote.
Judge James Patrick Hanlon of the U.S. District Court for the Southern District of Indiana denied the motion, writing that the plaintiffs did not show a reasonable likelihood of success in making a case that Indiana’s rule is unconstitutional. The plaintiffs have appealed that ruling.
In a brief filed with the U.S. Court of Appeals for the Seventh Circuit, Attorney General Hill says the appeals court should affirm the lower court’s decision.
“Not only is universal mail-in voting not required by the Twenty-Sixth and Fourteenth Amendments, but such a drastic change to Indiana’s voting laws is especially inappropriate now, just weeks before a major election,” Attorney General Hill writes in the brief.
In addition to Election Day voting, Hoosiers may cast a ballot at various early-voting locations for 28 days prior to Election Day. Indiana also permits mail-in absentee voting in 13 different circumstances, including when voters are disabled or elderly, or when voters expect to be away from their home counties on Election Day.
Furthermore, the brief states, Indiana strictly regulates the mail-in voting process. Indiana law, for example, restricts who may handle printed or completed absentee ballots, deeming it a level 6 felony for anyone other than a select group of individuals to possess absentee ballots.
These rules strike a balance between encouraging turnout and discouraging voter fraud, Attorney General Hill said.
“Courts permitting unlimited absentee voting in Indiana would not only run counter to Supreme Court precedent, but would cause the state to alter its long-established procedures less than two months before this historic election,” Attorney General Hill said. “Any Hoosier who wants to vote in the upcoming election has adequate opportunity to do so, and drastic changes to our rules this close to Election Day would create chaos.”
Attorney General Hill notes in the brief that the Indiana Election Commission issued an emergency order in March that allowed all registered voters in Indiana to vote by mail for the June 2 primary election. This order, however, was issued in accordance with a directive from the governor that ordered Indiana residents to stay at home and leave only for essential purposes.
Because of the commission’s order, the June primary election saw a higher volume of mail-in ballots than usual. Hamilton County, for example, reported sending about 40,000 absentee-by-mail ballots to voters, compared to about 3,000 for the 2016 primary election. Lake County sent voters nearly 10 times more absentee-by-mail ballots for this year’s primary election than it did the 2016 primary election.
Many counties had to incur additional, unintended costs due to the surge of mail-in absentee ballots, Attorney General Hill explains in the brief. Numerous absentee-by-mail ballots were also not counted in the June primary election due to human error that could have been avoided through in-person voting.
Attorney General Hill also noted that, “of course, the United State Postal Service’s unpredictable processing caused many ballots to arrive late, both to the voter and, then, on return to the local election board.”