Common Cause Indiana v. Indiana State Conference of th ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2911
COMMON CAUSE INDIANA and INDIANA STATE CONFERENCE OF
THE NAACP,
Plaintiffs-Appellees,
v.
CONNIE LAWSON, Indiana Secretary of State, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:20-cv-02007-SEB-TAB — Sarah Evans Barker, Judge.
____________________
SUBMITTED OCTOBER 13, 2020 — DECIDED OCTOBER 13, 2020
____________________
Before SYKES, Chief Judge, and EASTERBROOK and
BRENNAN, Circuit Judges.
EASTERBROOK, Circuit Judge. Indiana counts an absentee
ballot only if it is received by noon on Election Day. Ind.
Code §§ 3-11.5-4-3, 3-11.5-4-10. A district court held this rule
unconstitutional on the ground that the SARS-CoV-2 pan-
demic, which has led to more use of mail-in voting nation-
wide, creates a risk that ballots mailed close to Election Day
2 No. 20-2911
will not be received on time. Common Cause Indiana v. Law-
son, 2020 U.S. Dist. LEXIS 179161 (S.D. Ind. Sept. 29, 2020).
The judge issued an injunction requiring the state to count
all absentee ballots received by November 13, 2020, ten days
after Election Day.
The district court’s premise is that the Constitution enti-
tles all persons who cast absentee ballots to be free of any
risk that the ballot will not count, even if they mail their bal-
lots 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 unconstitu-
tional. But a recent decision of this court holds that the
premise is not correct—that as long as the state allows vot-
ing in person, there is no constitutional right to vote by mail.
Tully v. Okeson, No. 20-2605 (7th Cir. Oct. 6, 2020). Tully adds
that difficulties adributable to the virus do not require
change in electoral rules—not, at least, as a constitutional
mader. That some people are unwilling to vote in person
does not make an otherwise-valid system unconstitutional. It
is for states to decide what sort of adjustments would be
prudent. The SARS-CoV-2 pandemic has caused great loss
but is not a good reason for the federal judiciary to assume
tasks that belong to politically responsible officials.
As long as it is possible to vote in person, the rules for
absentee ballots are constitutionally valid if they are sup-
ported by a rational basis and do not discriminate based on a
forbidden characteristic such as race or sex. Tully, slip op. 9–
11, relying on McDonald v. Chicago Board of Election Commis-
sioners, 394 U.S. 802 (1969). It is rational to require absentee
votes to be received by Election Day, just as in-person voting
No. 20-2911 3
ends on Election Day. Deadlines are essential to elections, as
to other endeavors such as filing notices of appeal or tax re-
turns. That some ballots are bound to arrive after any dead-
line does not justify judicial extensions of statutory time lim-
its. See Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004).
Counting the votes, and announcing the results, as soon as
possible after the polls close serves a civic interest.
Other courts of appeals recently have held that laws
seding an Election-Day deadline for receipt of all ballots are
valid during a pandemic, as they are valid without one. See,
e.g., New Georgia Project v. Raffensperger, 2020 U.S. App. LEXIS
31405 (11th Cir. Oct. 2, 2020); Arizona Democratic Party v.
Hobbs, 2020 U.S. App. LEXIS 31677 (9th Cir. Oct. 6, 2020). We
agree with that conclusion.
People who worry that mail will be delayed during the
pandemic can protect themselves by using early in-person
voting or posting their ballots early. As the Supreme Court
observed in Republican National CommiNee v. Democratic Na-
tional CommiNee, 140 S. Ct. 1205, 1207 (2020), those who act at
the last minute assume risks even without a pandemic. Cf.
United States v. Locke, 471 U.S. 84 (1985). A state satisfies all
constitutional requirements by devising a set of rules under
which everyone who takes reasonable steps to cast an effec-
tive ballot can do so. See Frank v. Walker, 819 F.3d 384, 386–87
(7th Cir. 2016); Luft v. Evers, 963 F.3d 665, 679 (7th Cir. 2020);
Democratic National CommiNee v. Bostelmann, No. 20-2835 (7th
Cir. Oct. 8, 2020). During a pandemic a reasonable person
entitled to vote by mail transmits the ballot earlier than
normal or uses another approved method. Indiana allows
voting from overseas, or by a member of the uniformed ser-
vices, by fax or email. See Ind. Code §3-11-4-6(h). It also al-
4 No. 20-2911
lows voting in person during the four weeks before Election
Day. See Ind. Code §3-11-10-26(f). The district court did not
find that anyone entitled to vote in Indiana would be unable
to cast an effective ballot by acting ahead of the deadline or,
if necessary, voting in person on November 3.
There is another problem with the district court’s injunc-
tion. The Supreme Court insists that federal judges not
change electoral rules close to an election. In addition to Re-
publican National CommiNee see, e.g., Andino v. Middleton, No.
20A55 (U.S. Oct. 5, 2020). We explained in Democratic Nation-
al CommiNee:
The Justices have deprecated but not forbidden all change close
to an election. A last-minute event may require a last-minute re-
action. But it is not possible to describe COVID-19 as a last-
minute event. The World Health Organization declared a pan-
demic seven months ago, the State of Wisconsin closed many
businesses and required social distancing last March, and the
state has conducted two elections (April and August) during the
pandemic. If the judge had issued an order in May based on
April’s experience, it could not be called untimely. By waiting
until September, however, the district court acted too close to the
election.
…
Voters have had many months since March to register or obtain
absentee ballots; reading the Constitution to extend deadlines
near the election is difficult to justify when the voters have had a
long time to cast ballots while preserving social distancing. The
pandemic has had consequences (and appropriate governmental
responses) that change with time, but the fundamental proposi-
tion that social distancing is necessary has not changed since
March. The district court did not find that any person [author-
ized to vote by mail] who wants to avoid voting in person on
Election Day would be unable to cast a ballot in Wisconsin by
planning ahead and taking advantage of the opportunities al-
lowed by state law. The problem that concerned the district
No. 20-2911 5
judge, rather, was the difficulty that could be encountered by
voters who do not plan ahead and wait until the last day that
state law allows for certain steps. Yet, as the Supreme Court ob-
served last April [in Republican National CommiNee], voters who
wait until the last minute face problems with or without a pan-
demic.
Slip op. 4–5. That observation is equally apt in this suit. Sub-
stitute “Indiana” for “Wisconsin” and the essential point re-
mains.
The state’s motion for a stay is granted. Because recent
decisions such as Tully and Democratic National CommiNee do
not leave room for ongoing debate about the issue in this
case, the injunction issued by the district court is summarily
reversed.