By Emma Merrill

Many Indiana voters were alarmed by Indiana’s voting procedures during the state’s June 2, 2020 primary election—Indiana’s first attempt at a statewide election during the COVID-19 pandemic. “I just got completely disenfranchised,” one voter reported after confronting a polling place that lacked the resources to deal with unprecedent mail-in voter turnout. Another Hoosier described Indiana’s election system as “completely overwhelmed.”

Indiana state law mandates that mail-in ballots must be received by noon on Election Day to be counted. Ind. Code § 3-11.5-4-3. In the run-up to Indiana’s primary, Indiana Democrats lobbied the Republican state administration to extend Indiana’s noon deadline for absentee ballots—to no avail. While Republican Governor Eric Holcomb did issue an Executive Order that shifted the primary date from May 3 to June 2, state Republicans refused to change the absentee ballot deadline’s noon requirement. Ultimately, over ten times as many Indiana voters used mail-in absentee ballots compared to the 2016 presidential primary. The surge in absentee voting resulted in processing and delivery delays for approximately 1800 voters’ mail-in ballots in Marion County, home to a significant community of minority voters. The state election system failed to cope with the pandemic, and voters were disenfranchised as a result.

Election officials were prepared for the increase in absentee voting on Election Day. Experts expected absentee voting rates to increase significantly due to voters’ fear of contracting COVID-19 at the polls. Foreseeing this uptick in absentee voters, Common Cause Indiana and the Indiana State Conference of the NAACP challenged the noon election day deadline in the federal Southern District Court of Indiana on July 30, 2020. Common Cause and the NAACP argued that Indiana’s law risks disenfranchising thousands of voters, violating their First and Fourteenth Amendment rights. Even worse, the plaintiffs argued, the noon deadline could disproportionately disenfranchise minority voters. Their remedy: require Indiana to count absentee ballots postmarked by Election Day and received within ten days.

On September 29, the district court sided with the plaintiffs, holding that Indiana’s noon ballot deadline was unconstitutional in light of the ongoing pandemic. The district court focused on the substantial burden that the noon deadline would place on voters who have no control over whether their mail-in ballots arrive on time. The district court concluded that the burden on voters’ rights outweighs the state’s interests in increasing voter participation, preventing voter fraud, promoting public confidence in elections, and preventing strain on its election system.

On October 13, the Seventh Circuit reversed the district court and reinstated the noon deadline. Writing on behalf of a three-judge panel, Judge Easterbrook criticized the district court’s premise that absentee voters have a right to be free of the risk that their votes will not count. The appeals court relied on a recent case, Tully v. Okeson, in which the court had held that “as long as the state allows voting in person, there is no constitutional right to vote by mail.” In Tully, the Seventh Circuit concluded that COVID-19-related difficulties do not require the state to change election rules. People worried that their ballots would not arrive on time could vote early or in-person. Finally, Judge Easterbrook invoked the oft-cited principle that courts should not change election rules close in time to elections.

After the Seventh Circuit’s decision, Julia Vaughn, Common Cause’s policy director, advocated for the Elections Commission and Governor Eric Holcomb to declare a state of emergency and change the law. Governor Holcomb did not end up intervening to alter Indiana’s ballot deadline.

Fortunately, Indiana’s election system appears to have weathered the storm of absentee voting. As expected, Indiana voters encountered long lines and and wait times at polling places. Voters cast a record 1.7 million early ballots across the state. In Marion County, the election board had asked for 150 people from both the state Republican and Democratic Parties to help count absentee ballots. The county also enlisted help from volunteers that had worked with early in-person and Election Day Voting. As expected, counting took several days—Marion County did not finish tallying the absentee votes until Friday. In total, officials counted 215,912 mail-in ballots in Marion County. In neighboring Hamilton county, officials reported a total of 44,331 absentee mail-in ballots, remarkably close to the 53,144 people who chose to vote in-person on Election Day.

The counting process took a long time, but Indiana’s election officials and volunteers met the challenge. The Associated Press called Indiana for President Trump and called the gubernatorial race for Governor Holcomb. More importantly, the high turnout and number of absentee votes indicates that Indiana voters were not disenfranchised by the noon ballot deadline.

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