78 F.4th 377
7th Cir.2023Background
- Indiana law permits absentee voting for specified categories, including voters age 65 and older; younger voters must meet other criteria to vote absentee.
- During the 2020 primary, the Indiana Election Commission temporarily authorized absentee voting for all registered voters because of COVID-19; it did not renew that order for the November general election.
- Plaintiffs (younger voters who voted absentee in the primary but did not qualify for absentee voting in the general) sued, alleging the age-based absentee rule abridged their right to vote under the Twenty-Sixth Amendment and (initially) raised an Equal Protection claim; they sought a preliminary injunction to allow universal absentee voting for the general election.
- The district court denied the preliminary injunction; a Seventh Circuit panel (Tully I) affirmed the denial pre-election, relying on McDonald and Purcell guidance that the right to vote does not include a right to receive absentee ballots and urging caution before changing rules on the eve of an election.
- On remand the plaintiffs abandoned their Fourteenth Amendment claim; the district court granted summary judgment for the State, treating Tully I as law of the case. The Seventh Circuit now affirms the judgment on the merits, holding the elderly absentee accommodation does not abridge the Twenty-Sixth Amendment.
- Judge Lee concurred in part and would remand for further factual development on whether the age-based distinction imposes a materially onerous burden on non-elderly voters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tully I (preliminary-injunction opinion) is binding as law of the case on the merits | Tully I resolved the issue and should control the merits | Tully I was a preliminary ruling made on an expedited record and should not bind a full merits review | Not binding; preliminary-injunction rulings ordinarily do not establish law of the case where a full merits review is possible (court reconsidered the merits) |
| Whether Indiana’s absentee rule for voters age 65+ abridges the right to vote in violation of the Twenty-Sixth Amendment | The age-based absentee privilege abridges younger voters’ right to vote by denying them equal access to absentee voting during a pandemic | The Twenty-Sixth Amendment prohibits denying or abridging the franchise on account of age, but the absentee accommodation for the elderly does not impose a material burden on younger voters’ ability to register, vote in person, or have ballots counted | Held for State: no Twenty-Sixth Amendment violation — an "abridgement" requires a material, burdensome restriction on effective exercise of the franchise, and Indiana’s alternatives (in-person voting, early voting, traveling boards) prevent a material abridgement |
Key Cases Cited
- McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969) (distinguishes the right to vote from a claimed right to receive absentee ballots)
- Purcell v. Gonzalez, 549 U.S. 1 (2006) (federal courts should exercise caution before altering election rules close to an election)
- Tully v. Okeson, 977 F.3d 608 (7th Cir. 2020) (panel affirmed denial of preliminary injunction; applied McDonald to absentee-ballot claim)
- Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) (findings and conclusions in preliminary-injunction rulings are not binding on the merits)
- Harman v. Forssenius, 380 U.S. 528 (1965) (the Twenty-Fourth Amendment bars imposition of material or onerous procedural requirements that effectively handicap the franchise)
- Lane v. Wilson, 307 U.S. 268 (1939) (Fifteenth Amendment protects registration, casting, and counting of votes; laws that effectively deny registration/voting violate the Amendment)
- South Carolina v. Katzenbach, 383 U.S. 301 (1966) (Fifteenth Amendment invalidates discriminatory state voting qualifications or procedures)
- Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) (discusses meaning of “abridge” and the role of baselines in §5 retrogression inquiries)
- Texas Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020) (similar holding that an age-based absentee privilege for 65+ did not deny or abridge younger voters’ rights)