U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:20-cv-01271-JPH-DLP

TULLY et al v. OKESON et al Assigned to: Judge James Patrick Hanlon Referred to: Magistrate Judge Doris L. Pryor Case in other court: 7th Circuit, 20-02605 Cause: 42:1983 Civil Rights Act

Date Filed: 04/29/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff

BARBARA TULLY

represented by Brett E. Legner MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 (312) 701-8090 Fax: (312) 706-9364 Email: blegner@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED

Gary A. Isaac MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 (312) 701-7025 Fax: (312) 706-8643 Email: gisaac@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jed W. Glickstein MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606 (312) 701-8704 Fax: (312) 706-8460 Email: jglickstein@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey M. Strauss MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606

Plaintiff KATHARINE BLACK

312-701-7324 Fax: 312-706-8213 Email: jstrauss@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman FINDLING PARK CONYERS WOODY & SNIDERMAN, PC 151 N. Delaware St. Suite 1520 Indianapolis, IN 46204 (317) 361-4700 Fax: (317) 231-1106 Email: msniderman@findlingpark.com ATTORNEY TO BE NOTICED
Michael Anthony Scodro MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 (312) 701-8886 Fax: (312) 706-8191 PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth MACEY SWANSON LLP 445 North Pennsylvania Street Suite 401 Indianapolis, IN 46204 317-637-2345 Fax: 317-637-2369 Email: wgroth@fdgtlaborlaw.com ATTORNEY TO BE NOTICED
represented by Brett E. Legner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE

Plaintiff MARC BLACK

ATTORNEY TO BE NOTICED
Jed W. Glickstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED
represented by Brett E. Legner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jed W. Glickstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff DAVID CARTER

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED
represented by Brett E. Legner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jed W. Glickstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff REBECCA GAINES
Plaintiff ELIZABETH KMIECIAK

represented by Brett E. Legner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jed W. Glickstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED
represented by Brett E. Legner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jed W. Glickstein

Plaintiff CHAQUITTA MCCLEARY

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED
represented by Brett E. Legner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jed W. Glickstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff DAVID SLIVKA
Plaintiff DOMINIC TUMMINELLO

Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED
represented by Brett E. Legner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jed W. Glickstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED
represented by Brett E. Legner (See above for address)

Plaintiff
INDIANA VOTE BY MAIL, INC. individually, and on behalf of those similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jed W. Glickstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED
represented by Brett E. Legner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gary A. Isaac (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jed W. Glickstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant PAUL OKESON

Jeffrey M. Strauss (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Scodro (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William R. Groth (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Lyn Abshire INDIANA ATTORNEY GENERAL Indiana Government Center South, 5th Floor 302 West Washington St. Indianapolis, IN 46204-2770 317-234-7019 Email: courtney.abshire@atg.in.gov ATTORNEY TO BE NOTICED
Jefferson S. Garn INDIANA ATTORNEY GENERAL Indiana Government Center South, 5th Floor 302 West Washington St. Indianapolis, IN 46204-2770 (317) 232-6292 Fax: (317) 232-7979 Email: Jefferson.Garn@atg.in.gov ATTORNEY TO BE NOTICED
Kian J. Hudson INDIANA ATTORNEY GENERAL Indiana Government Center South,

Defendant S. ANTHONY LONG

5th Floor 302 West Washington St. Indianapolis, IN 46204-2770 317-232-0709 Email: kian.hudson@atg.in.gov ATTORNEY TO BE NOTICED
Parvinder Kaur Nijjar INDIANA ATTORNEY GENERAL Indiana Government Center South, 5th Floor 302 West Washington St. Indianapolis, IN 46204-2770 317-234-2339 Email: parvinder.nijjar@atg.in.gov ATTORNEY TO BE NOTICED
Thomas M. Fisher INDIANA ATTORNEY GENERAL Indiana Government Center South, 5th Floor 302 West Washington St. Indianapolis, IN 46204-2770 (317) 232-6255 Fax: (317) 232-7979 Email: tom.fisher@atg.in.gov ATTORNEY TO BE NOTICED
represented by Courtney Lyn Abshire (See above for address) ATTORNEY TO BE NOTICED
Jefferson S. Garn (See above for address) ATTORNEY TO BE NOTICED
Kian J. Hudson (See above for address) ATTORNEY TO BE NOTICED
Parvinder Kaur Nijjar (See above for address) ATTORNEY TO BE NOTICED
Thomas M. Fisher

Defendant SUZANNAH WILSON OVERHOLT
Defendant ZACHARY E. KLUTZ in their official capacity as members of the Indiana Election Commission
Defendant

(See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Lyn Abshire (See above for address) ATTORNEY TO BE NOTICED
Jefferson S. Garn (See above for address) ATTORNEY TO BE NOTICED
Kian J. Hudson (See above for address) ATTORNEY TO BE NOTICED
Parvinder Kaur Nijjar (See above for address) ATTORNEY TO BE NOTICED
Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Lyn Abshire (See above for address) ATTORNEY TO BE NOTICED
Jefferson S. Garn (See above for address) ATTORNEY TO BE NOTICED
Kian J. Hudson (See above for address) ATTORNEY TO BE NOTICED
Parvinder Kaur Nijjar (See above for address) ATTORNEY TO BE NOTICED
Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

CONNIE LAWSON in her official capacity as the Indiana Secretary of State
Amicus DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC

represented by Courtney Lyn Abshire (See above for address) ATTORNEY TO BE NOTICED
Jefferson S. Garn (See above for address) ATTORNEY TO BE NOTICED
Kian J. Hudson (See above for address) ATTORNEY TO BE NOTICED
Parvinder Kaur Nijjar (See above for address) ATTORNEY TO BE NOTICED
Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED
represented by Bridget A. Clarke 456 Boyton Avenue Berkeley, CA 94707 (510) 528-7755 Email: baclarke@comcast.net PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 04/29/2020 04/29/2020
04/29/2020

# Docket Text

COMPLAINT for Declaratory and Injunctive Relief against All

1

Defendants, filed by All Plaintiffs. (Filing fee $400, receipt number

0756-5973629) (Attachments: # 1 Civil Cover Sheet, # 2 Proposed

Summons)(Sniderman, Mark) (Entered: 04/29/2020)

2 NOTICE of Appearance by Mark W. Sniderman on behalf of Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Sniderman, Mark) (Entered: 04/29/2020)

3 NOTICE of Appearance by William R. Groth on behalf of Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK,

04/30/2020 04/30/2020 05/04/2020 05/04/2020

CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Groth, William) (Entered: 04/29/2020)

4 Summons Issued as to ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT. (REO) (Entered: 04/30/2020)

MAGISTRATE JUDGE's NOTICE of Availability to Exercise

5

Jurisdiction issued. (REO) (Entered: 04/30/2020)

AMENDED COMPLAINT for Declaratory and Injunctive

6

Relief, against All Defendants, filed by All Plaintiffs.(Sniderman,

Mark) (Entered: 05/04/2020)

NOTICE of Service of Amended Complaint, filed by Plaintiffs

7

KATHARINE BLACK, MARC BLACK, SHELLY BROWN,

DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY

MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK,

CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID

SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO, re 6

05/06/2020 05/06/2020 05/11/2020
05/13/2020 05/17/2020

Amended Complaint. (Sniderman, Mark) (Entered: 05/04/2020)

NOTICE of Appearance by Jefferson S. Garn on behalf of Defendants

8

ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG,

PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Garn,

Jefferson) (Entered: 05/06/2020)

9 NOTICE of Appearance by Courtney Lyn Abshire on behalf of Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Abshire, Courtney) (Entered: 05/06/2020)

SCHEDULING ORDER: Initial Pretrial Conference set for 6/23/2020

10

02:00 PM (Eastern Time) in Telephonic before Magistrate Judge Doris

L. Pryor. The information needed to participate in this telephonic

conference will be provided by a separate notification. No fewer than

seven (7) days before the IPTC, counsel must file a Proposed CMP.

See Order for additional details. Signed by Magistrate Judge Doris L.

Pryor on 5/11/2020.(SWM) (Entered: 05/13/2020)

11 RETURN of Service by CMRRR, filed by All Plaintiffs. ZACHARY E. KLUTZ served on 5/4/2020; CONNIE LAWSON served on 5/4/2020; S. ANTHONY LONG served on 5/4/2020; PAUL OKESON served on 5/4/2020; SUZANNAH WILSON OVERHOLT served on 5/4/2020. (Groth, William) (Entered: 05/13/2020)

NOTICE of Parties' First Extension of Time, filed by Defendants

12

ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG,

PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Garn,

Jefferson) (Entered: 05/17/2020)

06/08/2020 13
06/08/2020 14
06/09/2020 15

MOTION for Preliminary Injunction , filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO.
(Attachments: # 1 Exhibit Declaration of Barbara Tully, # 2
Exhibit Declaration of David Carter, # 3 Exhibit
Declaration of Elizabeth Kmieciak, # 4 Exhibit Declaration of
Janice Johnson, # 5 Exhibit Declaration of Marc Black, # 6
Exhibit Declaration of Katharine Black, # 7 Exhibit
Declaration of Shelly Brown, # 8 Exhibit Declaration of
Chaquitta McCreary, # 9 Exhibit Declaration of Dominic
Tumminello, # 10 Exhibit Declaration of Rebecca Gaines, # 11
Exhibit Declaration of Katherine Paolacci, # 12 Exhibit
Declaration of David Slivka, # 13 Exhibit Declaration of Jeffrey
G. Jones, M.D., M.P.H., # 14 Exhibit Declaration of Gregory Shufeldt, Ph.D.)(Sniderman, Mark) (Entered: 06/08/2020)
BRIEF/MEMORANDUM in Support re 13 MOTION for Preliminary Injunction , filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Sniderman, Mark) (Entered: 06/08/2020) SCHEDULING ORDER-TELEPHONIC Status Conference set for 6/18/2020 at 3:30 PM (Eastern) before Magistrate Judge Doris L. Pryor. The purpose of the conference is to discuss a briefing schedule
regarding the Motion for Preliminary Injunction 13 . Signed by Magistrate Judge Doris L. Pryor on 6/9/2020.(CBU) (Entered: 06/10/2020)

06/12/2020 06/16/2020
06/16/2020
06/16/2020 06/18/2020 06/22/2020

16 NOTICE of Appearance by Parvinder Kaur Nijjar on behalf of Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Nijjar, Parvinder) (Entered: 06/12/2020)

MOTION to Certify Class , filed by Plaintiffs KATHARINE BLACK,

17

MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA

GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON,

ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY,

KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY,

DOMINIC TUMMINELLO. (Attachments: # 1 Exhibit Declaration of

William R. Groth, # 2 Exhibit Declaration of Mark W.

Sniderman)(Sniderman, Mark) (Entered: 06/16/2020)

18

BRIEF/MEMORANDUM in Support re 17 MOTION to Certify

Class , filed by Plaintiffs KATHARINE BLACK, MARC BLACK,

SHELLY BROWN, DAVID CARTER, REBECCA GAINES,

INDIANA VOTE BY MAIL, INC., JANICE JOHNSON,

ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY,

KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY,

DOMINIC TUMMINELLO. (Sniderman, Mark) (Entered:

06/16/2020)

Joint CASE MANAGEMENT PLAN TENDERED, filed by Plaintiffs

20

KATHARINE BLACK, MARC BLACK, SHELLY BROWN,

DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY

MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK,

CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID

SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO .

(Sniderman, Mark) (Entered: 06/16/2020)

21

ANSWER to 6 Amended Complaint , filed by All

Defendants.(Garn, Jefferson) (Entered: 06/18/2020)

PRELIMINARY INJUNCTION SCHEDULING ORDER - The

23

parties appeared by counsel telephonically for a telephonic status

conference on June 18, 2020 pursuant to Rule 16 of the Federal Rules

of Civil Procedure regarding the Plaintiffs' Motion for Preliminary

06/29/2020

Injunction, Dkt. [ 13 ]. The Court establishes the following schedule to prepare this matter for a hearing on that motion (see Order for established deadlines and addition details). Signed by Magistrate Judge Doris L. Pryor on 6/22/2020.(SWM) (Entered: 06/23/2020)
24 MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: The parties appeared by counsel for an Initial Pretrial Conference on June 23, 2020. The Court will approve the Case Management Plan, by separate order, with the changes to which the

06/29/2020

parties have agreed.This matter is scheduled for a telephonic status conference on June 29, 2020 at 11:30 a.m. (Eastern) to discuss case status. Counsel shall attend the statusconference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system.This matter is scheduled for a telephonic settlement conference on July 14, 2020 at 10:00 a.m. (Eastern) before Magistrate Judge Doris L. Pryor. The parties shall attend the conference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 06/29/2020)
26 Unopposed MOTION for Extension of Time to File Response to

06/29/2020 06/29/2020 06/29/2020 06/30/2020
07/01/2020

7/24/2020 re 17 MOTION to Certify Class , filed by Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Attachments: # 1 Text of Proposed Order)(Garn, Jefferson) (Entered: 06/29/2020)

27 ORDER: CASE MANAGEMENT PLAN APPROVED AS AMENDED. Dispositive Motions due by 4/29/2021. Discovery due by 2/26/2021. Signed by Magistrate Judge Doris L. Pryor on 6/29/2020.(SWM) (Entered: 06/30/2020)

ORDER Regarding Discovery Disputes. See Order. Signed by

28

Magistrate Judge Doris L. Pryor on 6/29/2020.(SWM) (Entered:

06/30/2020)

ORDER REGARDING PROTECTIVE ORDERS. See Order. Signed

29

by Magistrate Judge Doris L. Pryor on 6/29/2020.(SWM) (Entered:

06/30/2020)

MINUTE ORDER for proceedings held before Magistrate Judge Doris

30

L. Pryor: The parties appeared by telephone for a Status Conference

on June 29, 2020. The parties discussed the status of and future plans

for discovery. The parties also discussed the telephonic Settlement

Conference scheduled for July 14, 2020. The call was held and

concluded. Signed by Magistrate Judge Doris L. Pryor. (CAG)

(Entered: 07/01/2020)

31 ORDER granting Defendants' 26 Motion for Extension of Time to File

07/07/2020 32

Response to 7/24/2020 re 17 MOTION to Certify Class . Signed by Magistrate Judge Doris L. Pryor on 7/1/2020. (SWM) (Entered: 07/01/2020)
MOTION to Excuse Individual Plaintiffs from Personal Attendance at July 14, 2020 Telephonic Settlement Conference, filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN,

07/08/2020
07/17/2020 07/17/2020 07/20/2020

DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 07/07/2020)

33 ORDER granting Plaintiffs' 32 Motion to Excuse Individual Plaintiffs from Personal Attendance at July 14, 2020 Telephonic Settlement Conference. The individual Plaintiffs are excused from personal attendance of the July 14, 2020 settlement conference. Barbara Tully shall attend the settlement conference on behalf of all Plaintiffs and shall have full and final settlement authority. Signed by Magistrate Judge Doris L. Pryor on 7/8/2020. (MAC) (Entered: 07/09/2020)

STIPULATION of Dismissal Only, as to Plaintiffs JANICE

36

JOHNSON, SHELLY BROWN, KATHERINE PAOLACCI, filed by

All Plaintiffs. (Sniderman, Mark) (Entered: 07/17/2020)

MINUTE ORDER for proceedings held before Magistrate Judge Doris

38

L. Pryor: The parties appeared in person and by counsel for a

settlement conference on July 14, 2020. This matter is CONTINUED

to July 22, 2020 at 9:00 a.m. (Eastern) by telephone. Counsel shall

attend the status conference by calling thedesignated telephone

number, to be provided by the Court via email generated by the

Court's ECF system. Signed by Magistrate Judge Doris L. Pryor.

(CAG) (Entered: 07/20/2020)

MOTION for Protective Order , filed by Defendants ZACHARY E.

37

KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL

OKESON, SUZANNAH WILSON OVERHOLT. (Attachments: # 1

07/21/2020 39
07/21/2020 40

Exhibit Protective Order)(Garn, Jefferson) (Entered: 07/20/2020)
Unopposed MOTION to Vacate Settlement Conference, filed by Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Attachments: # 1 Text of Proposed Order)(Garn, Jefferson) (Entered: 07/21/2020)
ORDER - This matter comes before the Court on the Unopposed
Motion to Vacate Settlement Conference, Dkt. [ 39 ]. The Court, having considered the same and being duly advised, hereby GRANTS said motion. The telephonic settlement conference is CONVERTED to a telephonic status conference on July 22, 2020 at 9:00 a.m. (Eastern). Counsel shall attend the status conference by calling the designated telephone number, to be provided by the Court via email generated by

07/21/2020 07/22/2020 07/22/2020 07/24/2020 07/24/2020 07/24/2020

the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor on 7/21/2020.(SWM) (Entered: 07/21/2020)

42

ORDER Acknowledges Parties' 36 Stipulation of Dismissal. The

Clerk is DIRECTED to dismiss ONLY Shelly Brown, Janice Johnson,

and Katherine Paolacci from the docket. (Marginal Notation). Signed

by Judge James Patrick Hanlon on 7/21/2020. (MAC) (Entered:

07/22/2020)

MINUTE ORDER for proceedings held before Magistrate Judge Doris

43

L. Pryor: The parties appeared by telephone for a Status Conference

on July 22, 2020. The parties discussed the status of the case.This

matter is scheduled for a telephonic status conference on October 14,

2020 at 11:30 a.m. (Eastern) to discuss case status. Counsel shall

attend the status conference by calling the designated telephone

number, to be provided by the Court via email generated by the

Court's ECF system. Signed by Magistrate Judge Doris L. Pryor.

(CAG) (Entered: 07/23/2020)

44

STIPULATED PROTECTIVE ORDER 37 So ordered. Signed

by Magistrate Judge Doris L. Pryor on 7/22/2020.(SWM) (Entered:

07/23/2020)

45 MOTION for Attorney(s) Jed W. Glickstein to Appear pro hac vice (Filing fee $100, receipt number 0756-6096438), filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Attachments: # 1 Exhibit Certification for Jed W. Glickstein, # 2 Text of Proposed Order)(Sniderman, Mark) (Entered: 07/24/2020)

46 MOTION for Attorney(s) Gary A. Isaac to Appear pro hac vice (Filing fee $100, receipt number 0756-6096464), filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Attachments: # 1 Exhibit Gary A. Isaac Certification, # 2 Text of Proposed Order)(Sniderman, Mark) (Entered: 07/24/2020)

47 MOTION for Attorney(s) Brett E. Legner to Appear pro hac vice (Filing fee $100, receipt number 0756-6096480), filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK,

07/24/2020
07/24/2020
07/24/2020 07/24/2020 07/24/2020 07/24/2020

CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Attachments: # 1 Exhibit Brett E. Legner Certification, # 2 Text of Proposed Order)(Sniderman, Mark) (Entered: 07/24/2020)
48 MOTION for Attorney(s) Michael A. Scodro to Appear pro hac vice (Filing fee $100, receipt number 0756-6096501), filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Attachments: # 1 Exhibit Michael A. Scodro Certification, # 2 Text of Proposed Order)(Sniderman, Mark) (Entered: 07/24/2020)
49 MOTION for Attorney(s) Jeffrey M. Strauss to Appear pro hac vice (Filing fee $100, receipt number 0756-6096509), filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Attachments: # 1 Exhibit Jeffrey M. Strauss Certification, # 2 Text of Proposed Order)(Sniderman, Mark) (Entered: 07/24/2020)

50

RESPONSE in Opposition re 17 MOTION to Certify Class , filed

by Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S.

ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON

OVERHOLT. (Garn, Jefferson) (Entered: 07/24/2020)

51 NOTICE of Appearance by Thomas M. Fisher on behalf of Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Fisher, Thomas) (Entered: 07/24/2020)

52 NOTICE of Appearance by Kian J. Hudson on behalf of Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Hudson, Kian) (Entered: 07/24/2020)

53

RESPONSE in Opposition re 13 MOTION for Preliminary

Injunction , filed by Defendants ZACHARY E. KLUTZ, CONNIE

LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH

WILSON OVERHOLT. (Attachments: # 1 Exhibit 1 Angerman

declaration, # 2 Exhibit 2 Hoskins declaration, # 3 Exhibit 3 Williams

declaration, # 4 Exhibit 4 Clifton declaration, # 5 Exhibit 5 EO 20-02,

# 6 Exhibit 6 EO 20-07, # 7 Exhibit 7 EO 20-08, # 8 Exhibit 8 IEC

07/27/2020 54

order 2020-37, # 9 Exhibit 9 Pl. interrogatory responses)(Garn, Jefferson) (Entered: 07/24/2020)
MOTION for Attorney(s) Bridget A. Clarke to Appear pro hac vice for Interested/Amicus Party, Disability Rights Education and Defense Fund, Inc. (Filing fee $100.00, receipt number IP070087).

(Attachments: # 1 Text of Proposed Order, # 2 Copy of

07/28/2020 07/28/2020 07/28/2020 07/28/2020

Receipt, # 3 Envelope)(DWH) (Entered: 07/27/2020)

ORDER granting 45 Motion to Appear pro hac vice. Attorney Jed W.

55

Glickstein for BARBARA TULLY, KATHARINE BLACK, MARC

BLACK, DAVID CARTER, REBECCA GAINES, ELIZABETH

KMIECIAK, CHAQUITTA MCCLEARY, DAVID SLIVKA,

DOMINIC TUMMINELLO and INDIANA VOTE BY MAIL, INC

added. Applicant shall register for electronic filing, as required by

Local Rule 5-3, within ten (10) days of the entry of this Order. Copy

to Jed W. Glickstein via US Mail. Signed by Magistrate Judge Doris

L. Pryor on 7/28/2020. (SWM) (Entered: 07/28/2020)

56 ORDER granting 46 Motion to Appear pro hac vice. Attorney Gary A. Isaac for BARBARA TULLY, KATHARINE BLACK, MARC BLACK, DAVID CARTER, REBECCA GAINES, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, DAVID SLIVKA, DOMINIC TUMMINELLO and INDIANA VOTE BY MAIL, INC. added. Applicant shall register for electronic filing, as required by Local Rule 5-3, within ten (10) days of the entry of this Order. Copy to Gary A. Isaac via US Mail. Signed by Magistrate Judge Doris L. Pryor on 7/28/2020. (SWM) (Entered: 07/28/2020)

57 ORDER granting 47 Motion to Appear pro hac vice. Attorney Brett E. Legner for BARBARA TULLY, KATHARINE BLACK, MARC BLACK, DAVID CARTER, REBECCA GAINES, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC. added. Applicant shall register for electronic filing, as required by Local Rule 5-3, within ten (10) days of the entry of this Order. Copy to Brett E. Legner via US Mail. Signed by Magistrate Judge Doris L. Pryor on 7/28/2020. (SWM) (Entered: 07/28/2020)

58 ORDER granting 48 Motion to Appear pro hac vice. Attorney Michael Scodro for BARBARA TULLY, KATHARINE BLACK, MARC BLACK, DAVID CARTER, REBECCA GAINES, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, DAVID SLIVKA, DOMINIC TUMMINELLO and INDIANA VOTE BY MAIL INC. added. Applicant shall register for electronic filing, as required by Local Rule 5-3, within ten (10) days of the entry of this Order. Copy

07/28/2020 07/31/2020 07/31/2020

to Michael A. Scodro via US Mail. Signed by Magistrate Judge Doris L. Pryor on 7/28/2020. (SWM) (Entered: 07/29/2020)
59 ORDER granting 49 Motion to Appear pro hac vice. Attorney Jeffrey M. Strauss for BARBARA TULLY, KATHARINE BLACK, MARC BLACK, DAVID CARTER, REBECCA GAINES, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, DAVID SLIVKA, DOMINIC TUMMINELLO and INDIANA VOTE BY MAIL, INC. added. Signed by Magistrate Judge Doris L. Pryor on 7/28/2020. (SWM) (Entered: 07/29/2020)

60

REPLY in Support of Motion re 17 MOTION to Certify Class ,

filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY

BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE

BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK,

CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID

SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO.

(Sniderman, Mark) (Entered: 07/31/2020)

61 Appendix of Exhibits in Support of Reply in Support of Motion re 13

07/31/2020 62

MOTION for Preliminary Injunction , filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Attachments: # 1 Exhibit Exhibit 1: Tribune Star Op-Ed, July 28, 2020, # 2 Exhibit Exhibit 2: Journal Gazette Editorial, July 26, 2020, # 3 Exhibit Exhibit 3: Statement of Indiana Advisory Committee to U.S. Commission on Civil Rights, July 23, 2020, # 4 Exhibit Exhibit 4: N.Y. Times Coronavirus Tracker, last updated July 31, 2020 9:01 AM, # 5 Exhibit Exhibit 5: State of Indiana, Executive Order 20-37, July 24, 2020, # 6 Exhibit Exhibit 6: Journal Gazette Article, May 15, 2020, # 7 Exhibit Exhibit 7: Indiana COVID-19 Dashboard, results as of July 29, 2020, 11:59 PM, # 8 Exhibit Exhibit 8: Consolidated CDC guidance and press releases, # 9 Exhibit Exhibit 9: Indianapolis Star Article, July 16, 2020, # 10 Exhibit Exhibit 10: Declaration of Myla Eldridge, July 30, 2020, # 11 Exhibit Exhibit 11: Declaration of Michelle Fajman, July 31, 2020, # 12 Exhibit Exhibit 12: National Vote at Home Institute, Applying for a Mailed-out Ballot: A State-byState Guide (updated March 2020), # 13 Exhibit Exhibit 13: Indiana 2016 General Election Turnout and Registration)(Sniderman, Mark) (Entered: 07/31/2020)
REPLY in Support of Motion re 13 MOTION for Preliminary Injunction , filed by Plaintiffs KATHARINE BLACK, MARC

08/06/2020 63
08/11/2020 64
08/14/2020 65
08/16/2020 66
08/18/2020 67

BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Sniderman, Mark) (Entered: 07/31/2020)
ORDER - granting 54 Motion to Appear pro hac vice. Attorney Bridget A. Clarke for DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC added. Applicant shall register for electronic filing, as required by Local Rule 5-3, within ten (10) days of the entry of this Order. Additionally, the Clerk is instructed to add to the docket Disability Rights Education and Defense Fund, Inc. as an Amicus Party. Signed by Magistrate Judge Doris L. Pryor on 8/6/2020. Copy Mailed. (CKM) (Entered: 08/06/2020)
MOTION for Leave to File Amici Curiae Brief, filed by Amicus DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.
(Attachments: # 1 Exhibit Amici Curiae Brief)(Clarke, Bridget) (Entered: 08/11/2020)
NOTICE of Supplemental Authority, filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY,
DOMINIC TUMMINELLO, re 13 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit Ex A - Common Cause Rhode Island v Gorbea - 1st Circuit, # 2 Exhibit Ex B - Journal Gazette Article, # 3 Exhibit Ex C - RNC v Common Cause - Sup Ct) (Sniderman, Mark) (Entered: 08/14/2020)
NOTICE of Supplemental Filing, filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY,
DOMINIC TUMMINELLO, re 13 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit Ex A - Indianapolis Star Article, # 2 Exhibit Ex B - NWI Times Article, # 3 Exhibit Ex C WTHR Article) (Sniderman, Mark) (Entered: 08/16/2020)
MOTION to Consolidate Cases , filed by Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL

08/18/2020 08/19/2020
08/19/2020 08/20/2020

OKESON, SUZANNAH WILSON OVERHOLT. (Garn, Jefferson) (Entered: 08/18/2020)

68 COURT NOTICE: Any response to Defendants' Motion to Consolidate, dkt. 67, must be filed by Friday, August 21, 2020. *** TEXT ONLY ENTRY *** (PKP) Modified on 8/18/2020 (PKP). (Entered: 08/18/2020)

69 RESPONSE in Opposition re 67 MOTION to Consolidate Cases , filed by Plaintiffs KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Sniderman, Mark) (Entered: 08/19/2020)

70 RESPONSE in Opposition re 67 MOTION to Consolidate Cases , filed by Miscellaneous COMMON CAUSE INDIANA, INDIANA STATE CONFERENCE OF THE NAACP. (Sniderman, Mark) (Entered: 08/19/2020)

ORDER DENYING MOTION TO CONSOLIDATE - Defendants

71

have filed a motion to consolidate Common Cause Indiana et al. v.

Election Commission Members et al., No. 1:20-cv-2007-SEB-TAB,

with this case. Dkt. 67. They argue that this Court should exercise its

discretion to consolidate the cases to "ensure judicial efficiency and

avoid potential confusion by separate rulings." The motion to

08/21/2020 72

consolidate is DENIED. Dkt. 67 (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge James Patrick Hanlon on 8/20/2020. Copies distributed pursuant to distribution list. (DWH) (Entered: 08/20/2020)
ORDER DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION - As the Supreme Court has noted, allowing broader voting by mail may be wise policy. See McDonald, 394 U.S. at 811 (noting Illinois' "consistent and laudable state policy of adding, over a 50-year period, groups to the absentee coverage"). Some states have chosen "no-excuse" voting by mail for all. See dkt. 62 at 14. Indiana has decided otherwise. The question here, however, is not whether the policy is wise, but whether it is constitutional. For the reasons explained above, Plaintiffs have not shown a reasonable likelihood of success in showing that the policy is unconstitutional. Plaintiffs' motion for a preliminary injunction is therefore DENIED.

Dkt. 13 . Amicus Disability Rights Education and Defense Fund's motion for leave to file amici curiae brief is GRANTED. Dkt. 64

08/24/2020
08/24/2020 08/24/2020

. The motion to certify class remains pending. Dkt. 17. The parties shall file a status update by August 28, 2020 (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge James Patrick Hanlon on 8/21/2020. (DWH) (Entered: 08/21/2020)

73

NOTICE OF APPEAL as to 72 Order on Motion for Leave to

FileOrder on Motion for Preliminary Injunction, filed by Plaintiffs

KATHARINE BLACK, MARC BLACK, SHELLY BROWN,

DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY

MAIL, INC., JANICE JOHNSON, ELIZABETH KMIECIAK,

CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID

SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Filing

fee $505, receipt number 0756-6145085) (Sniderman, Mark) (Entered:

08/24/2020)

74 PARTIES' SHORT RECORD re 73 Notice of Appeal Instructions for Attorneys/Parties attached. (LBT) (Entered: 08/24/2020)

75 Transmission of Notice of Appeal and Docket Sheet to US Court of

08/25/2020
08/28/2020 08/31/2020 09/08/2020

Appeals re 73 Notice of Appeal. - for Court of Appeals Use Only. (LBT) (Entered: 08/24/2020)

76

USCA Case Number 20-2605 for 73 Notice of Appeal filed by

DOMINIC TUMMINELLO, MARC BLACK, JANICE JOHNSON,

BARBARA TULLY, INDIANA VOTE BY MAIL, INC., DAVID

SLIVKA, SHELLY BROWN, REBECCA GAINES, KATHERINE

PAOLACCI, DAVID CARTER, KATHARINE BLACK,

CHAQUITTA MCCLEARY, ELIZABETH KMIECIAK. (LBT)

(Entered: 08/25/2020)

STATUS REPORT , Joint, by All Plaintiffs. (Sniderman, Mark)

77

(Entered: 08/28/2020)

78 NOTICE of Service of Initial Disclosures , filed by Plaintiffs KATHARINE BLACK, MARC BLACK, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Sniderman, Mark) (Entered: 08/31/2020)

79 Witness List Preliminary, filed by Plaintiffs KATHARINE BLACK, MARC BLACK, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO, Exhibit List Preliminary, filed by Plaintiffs

09/14/2020

KATHARINE BLACK, MARC BLACK, DAVID CARTER, REBECCA GAINES, INDIANA VOTE BY MAIL, INC., ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, DAVID SLIVKA, BARBARA TULLY, DOMINIC TUMMINELLO. (Sniderman, Mark) (Entered: 09/08/2020)
80 Witness List preliminary, filed by Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT, Exhibit List preliminary, filed by Defendants ZACHARY E. KLUTZ, CONNIE LAWSON, S. ANTHONY LONG, PAUL OKESON, SUZANNAH WILSON OVERHOLT. (Garn, Jefferson) (Entered: 09/14/2020)

 
 Case 1:20-cv-01271-JPH-DLP Document 1 Filed 04/29/20 Page 1 of 19 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-1271 ) ) ) ) ) ) ) ) ) )

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Come now Plaintiffs, by counsel, and for their Complaint for declaratory and injunctive

relief against Defendants, state as follows:

INTRODUCTION

1. This is an action for declaratory and injunctive relief against Indiana election

officials who have failed to take necessary actions to protect Indiana voters against having to

make a choice between their personal safety and exercising their right to vote on Election Day,

November 3, 2020.

2. The citizens of Indiana are in the midst of the worst pandemic in modern history.

Because of a novel coronavirus, and the disease it causes known as COVID-19, federal, state,

Case 1:20-cv-01271-JPH-DLP Document 1 Filed 04/29/20 Page 2 of 19 PageID #: 2
county and city officials have ordered various limitations statewide, the central feature of which is to limit contact between persons, commonly known as "social distancing."
3. Public health officials warn that government-ordered “social distancing” will probably be in effect for a number of weeks and possibly months and, even after such order is lifted in Indiana, life in the public square will need to be conducted cautiously; with additional restrictions and loosening likely to be re-imposed at additional intervals, until an effective vaccine is discovered and is broadly available and distributed. Experts estimate this timeframe to be between twelve (12) to eighteen (18) months before an effective vaccine will be ready for public use. https://www.webmd.com/lung/covid-19-vaccine#1 (last visited April 27, 2020).
4. On April 21, 2020, the director of the Centers for Disease Control and Prevention warned that a second wave of the novel coronavirus this fall will be even more lethal than the one that is currently ravaging the nation. This wave that may coincide with the November 3, 2020 general election. https://www.washingtonpost.com/health/2020/04/21/coronavirussecondwave-cdcdirector/ (last visited April 27, 2020).
5. On April 22, 2020, Anthony S. Fauci, M.D., an immunologist who is head of the National Institute of Allergy and Infectious Diseases, stated with even greater certainty that “[w]e will have coronavirus in the fall. I am convinced because of the degree of transmissibility that it has, the global nature. What happens with that will depend on how we’re able to contain it when it occurs.” https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dranthony-fauci-says-i-am-convinced-second-wave/3009131001/ (emphasis added) (last visited April 27, 2020).
6. On April 23, 2020, Dr. Michael T. Osterholm, Director of the Center for Infectious Disease, Research, and Policy at the University of Minnesota, predicted that the Coronavirus will still be spreading well into 2021 and will not stop until 60-70% of people have
2

Case 1:20-cv-01271-JPH-DLP Document 1 Filed 04/29/20 Page 3 of 19 PageID #: 3
been infected. In his words, we are currently in the “second inning of a nine-inning game.” https://www.cnn.com/2020/04/21/opinions/bergen-osterholm-interview-two-opinion/index.html (last visited April 27, 2020).
7. The individual Plaintiffs seek to vote safely in the November 2020 general election; and to do so by casting an absentee ballot, by mail, in precisely the same manner in which they are allowed to vote in the June 2020 primary election. The Indiana law that allows other voters to vote by mail, but denies the same privilege to Plaintiffs, arbitrarily discriminates between categories of qualified voters, denies Plaintiffs any reasonable alternative means of voting that does not endanger their own or others' health, safety, and lives; and violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution, and the Equal Privileges and Immunities Clause of the Indiana Constitution.
JURISDICTION, VENUE & CAUSE OF ACTION 8. This Court has subject matter jurisdiction of the federal questions presented herein pursuant to 28 U.S.C. §§ 1331 (federal question jurisdiction), 1343 (civil rights cases), 2201 and 2202 (declaratory relief). 9. Venue is appropriate in this Court because Defendants have their principal offices in Indianapolis and "reside" in this District. 28 U.S.C. § 1391(b)(1). 10. Plaintiffs set forth claims under the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983, and under state law. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
PARTIES 11. Plaintiff Barbara Tully is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She objects to being forced to choose between her health and her right to vote. She is severely limiting her exposure to anyone else, and has
3

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reduced her activities outside of her home. She does not want to be forced into close proximity to other people in order to vote in the November 2020 general election. She has worked as a poll inspector over the past several years but will not be doing so this year specifically because of the danger posed by COVID-19.
12. Plaintiff Katharine Black is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. Her husband has a compromised immune system and she cannot risk exposing him to COVID-19. She therefore needs to vote by absentee ballot in the November 2020 General Election.
13. Plaintiff Marc Black is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. He has a compromised immune system and cannot risk being exposed to others in order vote in the November 2020 General Election. He therefore needs to vote by absentee ballot in the November 2020 General Election.
14. Plaintiff Shelly Brown is a resident of Hamilton County, State of Indiana, and will be under 65 years of age on November 3, 2020. She wants to vote by mail in the November 3, 2020 election. She is fearful of voting in person because of the risk of being infected by COVID19 and then infecting her husband, who is 71 years-old, and a cancer survivor as well as a former smoker. She therefore needs to vote by mail in the November 3, 2020, general election.
15. Plaintiff David Carter is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. Mr. Carter is concerned that it is impossible for inperson voters and poll workers to stay safe and maintain social distancing during the 2020 November elections. According to science and history, he believes COVID-19 will likely surge again this fall. For these reasons, he desires to vote by mail in the November 3, 2020 general election.
4

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16. Plaintiff Rebecca Gaines is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She was exposed to COVID-19 at her job and became extremely sick. She does not want to have to go to the polls and be exposed again to COVID-19, and thus desires to cast an absentee ballot in the November 3, 2020 general election.
17. Plaintiff Janice Johnson is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She believes COVID-19 poses an unmitigated safety and health threat to every voter and poll worker participating in the November 2020 election; and has a fear for her personal health and safety if she has no alternative to in-person voting in the November 3, 2020 general election, in which she wishes to vote by mail.
18. Plaintiff Elizabeth Kmieciak is a resident of St. Joseph County, State of Indiana, and will be under 65 years of age on November 3, 2020. She usually works at the polls on election day, but is unwilling to do so this year due to the threat of COVID-19. Because of her concern for her health and safety, she wishes to vote by absentee ballot in the November 3, 2020, general election.
19. Plaintiff Chaquitta McCleary is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She is healthy, but her daughter has significant asthmatic issues, and she is concerned that if she is forced to vote in person she may contract the virus and potentially expose her daughter. She thus desires to vote by mail in the November 3, 2020 general election so she may vote without risking her health and that of her daughter.
20. Plaintiff Katherine Paolacci is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She believes it is imperative that contact in large groups be limited as much as possible until the pandemic is no longer a massive threat. She
5

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works an unpredictable schedule at a public institution, where she encounters people who are members of at-risk populations. Limiting her presence in large groups is important to her welfare, and that of those with whom she works. Accordingly, she wishes to vote by mail in the November 3, 2020 general election.
21. Plaintiff David Slivka is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. He is a respiratory therapist, and thus knows the importance of social distancing because COVID-19 can be transferred through a cough or sneeze, or just by breathing within six feet of another person. At a vote center or polling place it would be difficult, if not impossible, for him (or anyone) to maintain proper social distancing. To ensure that no one gets sick or dies from this serious disease, Mr. Slivka believes that he, and everyone, should have the option of voting by mail in the November 3, 2020 general election. Mr. Slivka would not feel safe voting in person.
22. Plaintiff Dominic Tumminello is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. He is concerned about having to choose to vote or risk his health and the health of his family. He does not have underlying health conditions, but his parents (both 84 years-old) and mother-in-law (91 years-old) are at high risk if they contract COVID-19. He believes citizens should not have to risk their life or the lives of their family members or others in order to exercise their right to vote, and he thus desires to vote by mail in the November 3, 2020 general election.
23. Each and every individual plaintiff is eligible and qualified to vote in the November 3, 2020, general election in the State of Indiana.
24. None of the individual plaintiffs currently anticipates satisfying any of the statutory criteria of Indiana Code § 3-11-10-24(a)(1), (2), or (5) - (13), which would entitle them to vote by mail.
6

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25. Plaintiff Indiana Vote By Mail, Inc. ("Indiana VBM”), is a non-profit corporation organized under the laws of the State of Indiana. One of its purposes and missions is to expand the right to vote by mail to all who prefer to vote by mail rather than in person, particularly during this national and state-wide public health emergency caused by the coronavirus.
26. Indiana VBM has organizational standing on its own behalf and associational standing on behalf of its members who are under the age of 65 and who are not otherwise entitled to vote by mail by virtue of Indiana law. The interests VBM seeks to protect are germane to its purpose, and the relief sought is declaratory and injunctive.
27. Defendants Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary E. Klutz, are members of the IEC, which is charged with administering Indiana election laws. Ind. Code § 3-6-4.1-14 (a)(1). This includes the responsibility to adopt rules to "[g]overn the fair, legal, and orderly conduct of elections." Id. It also includes the power to adopt, by unanimous vote of its entire membership, temporary emergency rules "to implement a court order requiring [it]...to administer an election in a manner not authorized by this title," id. at -16, or in cases of a "natural disaster or other emergency." Id. at -17 (a). Each has acted or will continue to act under color of state law. Each is sued in his or her official capacity only.
28. Defendant Connie Lawson is the Indiana Secretary of State and in that capacity is the chief election official of the State, whose primary office is in this judicial district. Ind. Code § 3-6-3.7-1. She is responsible for enforcing and implementing Indiana's election laws and her office routinely issues guidance to county election officials in each of Indiana's 92 counties on matters involving election administration. She is sued in her official capacity only.
FACTS 29. The Coronavirus is a highly-infectious virus that makes it extremely dangerous for people to gather in public, particularly in larger groups in confined spaces. As with other
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respiratory pathogens, the transmission is believed to occur through respiratory droplets from coughing and sneezing. Aerosol transmission is also possible in case of protracted exposure to elevated aerosol concentrations in closed spaces. Epidemiologists believe that individuals who remain asymptomatic can transmit the virus. The data suggests that the use of isolation is the best way to contain this pandemic, because no one is believed to be immune to the virus (until, possibly, they have been infected, and their immune systems have generated antibodies). Essentially, the entire population is at risk of contracting the disease.
30. Some experts also believe that as many as 88% of carriers of the disease may be asymptomatic, which frustrates efforts at detection and isolation. https://www.washingtonpost.com/outlook/2020/04/20/we-tested-all-our-patients-covid-19found-lots-asymptomatic-cases/ (last visited April 27, 2020).
31. The virus in serious cases causes respiratory failure, septic shock, and/or multiple organ dysfunction or failure. The disease it causes, COVID-19, has already killed over 56,000 Americans, including 901 Hoosiers, and infected more than 16,588 Hoosiers. https://coronavirus.jhu.edu/data/mortality (last visited April 28, 2020); and https://www.coronavirus.in.gov (last visited April 28, 2020).
32. Approximately 65.3% of infected Hoosiers, or over 10,815 people, are under 60 years of age. https://www.coronavirus.in.gov (last visited April 28, 2020.)
33. The foregoing numbers of deaths and infections are expected to continue to increase in the coming weeks and months. https://coronavirus.jhu.edu/data/cumulative-cases (last visited April 27, 2020)
34. On March 6, 2020, in response to the Coronavirus pandemic, Indiana Governor Eric Holcomb signed Executive Order (EO) 2020-02, declaring a public health disaster emergency to prevent the spread of the virus. Ten (10) days later, on March 16, Gov. Holcomb
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signed EO 2020-04, which among other things, banned public gatherings of more than fifty (50) persons.
35. On March 20, Gov. Holcomb signed EO 2020-07 postponing the Indiana primary election for four weeks, from May 5 to June 2. On March 23, Gov. Holcomb issued EO 2020-08 which banned public gatherings of more than ten (10) persons and ordered the shutdown of many businesses deemed non-essential. And on April 3, Gov. Holcomb signed EO 2020-17, renewing the declaration of a public health disaster emergency for an additional 30 days until May 5, 2020.
36. According to medical and scientific experts, the expected outcome of the various measures ordered by levels of government, if effective, will be to “flatten the curve.” Aggressive social distancing efforts won’t stop the virus but is intended to slow the spread to keep it from overwhelming health-care resources so fewer people would require hospital beds and ventilators at the same time. https://www.washingtonpost.com/nation/2020/04/01/lockdown-coronaviruscalifornia-data/ (last visited April 28, 2020).
37. South Korea, widely praised for its response to the pandemic, upon releasing its citizens from social distancing orders, experienced new emerging cases that have required reimposition of those measures. Other Asian and European nations have had similar experiences.
38. Most of the world, the nation, and the State of Indiana, can expect wave after wave of new infections until there is an effective treatment, a vaccine and/or greater than approximately 60% of the population survive the epidemic, thus creating a measure of “herd immunity.” For these reasons, along with the lack of adequate testing in Indiana, it is currently impossible to know for how long extreme social distancing measures will be necessary. https://www.forbes.com/sites/brucelee/2020/03/26/how-long-should-social-distancing-last-whenwill-covid-19-coronavirus-end/#65c2eb40429a (last visited April 17, 2020).
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39. With no vaccine or proven effective specific treatment for this virus available yet, keeping people physically separated by closing schools, restaurants, sporting and cultural venues, and workplaces, and having people stay at home to limit social contact, are the most effective measures to slow the spread of the virus.
40. These pandemic conditions will have a significant impact upon the upcoming elections in Indiana in 2020, as voters and poll workers will be anxious about appearing at a public polling location to vote in person because of fear they may contract the virus.
41. Because of the national and Indiana-declared health emergencies, Defendant members of the Indiana Election Commission ("IEC"), using their emergency powers granted by Indiana law, have already taken the unprecedented measure of postponing Indiana's primary election from May 5 to June 2, 2020. IEC Orders 2020-37 and 40.1
42. Indiana law entitles some but not all registered voters to vote by mail. In that regard, Ind. Code § 3-11-10-24(a) describes thirteen (13) categories of voters who are "entitled" to vote by mail.
43. One of those categories is a "voter with disabilities." Id. at (a)(4). Another is a voter confined on election day to their residence "because of an illness or injury..." Id. at (a)(3). Those statutes do not define what constitutes "confined on election day to the voter's residence because of an illness or injury," or "voter with disabilities."
44. On March 25, 2020, the IEC members suspended statutory restrictions on voting by mail. They accomplished this by ruling that the words "voter with disabilities" in Ind. Code § 3-11-10-24(a)(4) shall be construed to include any "voter who is unable to complete their ballot
1
https://www.in.gov/sos/elections/files/Indiana%20Election%20Commission%20Order%20202037.pdf and https://www.in.gov/sos/elections/files/Order%202020-40%20signed.pdf, last visited April 20, 2020.
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because they are temporarily unable to physically touch or be in safe proximity to another person." IEC Order 2020-37, Section 9A.
45. The IEC has not approved an order that would apply this definition to voters who vote in the November 3, 2020, general election, and the IEC's willingness to suspend restrictions on mail voting is highly uncertain, particularly in light of Secretary Lawson's April 16, 2020 letter to the U.S. Election Assistance Commission in which she requests $8 million for personal protective equipment and sanitation supplies for in-person early and in-person Election Day voting on November 3 and her declaration that Indiana is “not a vote by mail state” even though Indiana has used mail absentee voting for decades. https://www.eac.gov/sites/default/files/paymentgrants/cares/IN_CARES_Disbursement_Request Letter.pdf (last visited April 27, 2020).
46. Without an order from the IEC suspending the statutory restrictions on voting by mail, most, if not all, county election boards will be unwilling to provide absentee ballots to voters who are under 65 years of age and who do not fall within one of the categories of voters statutorily entitled to vote by mail, and who are not themselves physically ill from the coronavirus and confined to their residence.
47. It is reasonable to expect that COVID-19 will continue to be in circulation without a vaccine or effective treatment through the elections of 2020 and beyond.
48. It is reasonable to expect that some forms of social distancing will continue, especially with regards to large public gatherings as occur at polling places on a presidential election day.
49. Even if there is an easing of social distancing, there will continue to be a public and personal health risk attendant to large gatherings such as voting at polling places, because
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many persons, especially those with compromised immune systems or pre-existing underlying health issues, will remain susceptible to becoming infected.
50. Events surrounding Wisconsin's April 7, 2020, primary election provided a clear example of the disarray, confusion, danger, and disenfranchisement that is likely to result when an in-person election is held during a pandemic. Wisconsin state health officials have already identified as many as 40 people who appeared to have contracted the virus through activities relating to the April 7 election. https://talkingpointsmemo.com/news/wisconsin-covid-40election (last visited April 27, 2020); https://www.wuwm.com/post/40-coronavirus-casesmilwaukee-county-linked-wisconsin-election-health-official-says#stream/0 (last visited April 27, 2020).
51. On April 6, 2020, the United States Supreme Court issued an opinion that permitted the April 7, 2020, Wisconsin primary to proceed based on the narrow question presented to it. However, the Court also pointedly emphasized that it was not "expressing an opinion on the broader question of... whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.” Republican National Committee v. Democratic National Committee (Docket 19A1016), 589 U.S. ___ (2020) https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf.
52. It is critically important that election officials begin immediately to prepare for the November 3, 2020 general election where more ballots are cast in-person and turnout is expected to be extremely high.
53. Because of the fundamental nature of the right to vote, it is also critically important that the judicial branch intervene where appropriate when the political system fails to act in a manner consistent with protecting citizens' right to vote, the most precious right in a democracy.
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54. On April 16, 2020, during a press conference, both Defendant Lawson and Gov. Eric Holcomb rejected allegations by President Donald Trump that voting by mail is ripe for fraud. "We've long been voting by mail. I have a high level of confidence in the integrity of our election process," Holcomb said. "We'll have a safe and secure election." https://www.nwitimes.com/news/local/govt-and-politics/indiana-primary-election-to-featuremail-in-and-in-person-voting/article_fce4d801-a81e-567a-8f75-46cf7db1fd28.html (last visited April 27, 2020).
55. Until IEC Orders 2020-37 and -40, no Indiana court or administrative agency had issued an opinion or order construing a "voter with disabilities" as used in I. C. § 3-11-10-24 (a)(4) to include all voters who are physically unable to be in close proximity to another person. No Indiana court or administrative agency has ever construed the term "illness" as used in I.C § 3-11-10-24 (a)(3) to include an asymptomatic individual who fears contracting the virus and COVID-19 by venturing into a crowded public space with others such as a public polling place.
56. Pursuant to Ind. Code § 3-6-4.1-17 (b), emergency orders issued by the IEC expire not later than thirty (30) days after the order is issued. Consequently, those orders must be renewed one more time prior to the June 2 primary election. Even if the IEC chooses to renew those emergency orders, there is no similar order in place or currently being contemplated for the November 3, 2020 general election.
57. Pursuant to Ind. Code § 3-11-4-3(a) and (c), applications for an absentee ballot for the November 3, 2020, general election may be submitted now and "not later than noon, twelve (12) days before the election." Id. at (a)(4). Twelve days before the November 3, 2020 election is October 22, 2020.
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58. Absent a definitive judicial ruling, different county election boards may adopt potentially conflicting interpretations of who is a "voter with disabilities,” or who is confined to a voter's home on election day "because of an illness,” and who is thus entitled to vote by mail.
59. Moreover, most county clerks will likely not provide a voter who submits an application for an absentee ballot for the November 3, 2020 general election, but does not indicate on the application that the voter is entitled to vote by mail because he or she falls within one of the categories of voters set forth in Ind. Code § 3-11-10-24 (a).
Class action allegations 60. This case is appropriate for resolution with a Plaintiff class of Indiana voters because the prosecution of separate actions by or against individual members of the class would create a risk of: inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or, adjudications with respect to individual members of the class, that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; or the parties opposing the class have refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. 61. The class of plaintiffs is so numerous that joinder of all members is impracticable. 62. Questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 63. Plaintiffs’ claims are typical of the claims of the class. 64. Plaintiffs will fairly and adequately protect the interests of the class.
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LEGAL CLAIMS Count I
Violation of the 14th Amendment Brought Pursuant to 42 U.S.C. § 1983 against all Defendants 65. Plaintiffs incorporate by reference the allegations of paragraphs 1-64. 66. The right to vote is one of the most fundamental of all the rights conferred on citizens by the United States Constitution. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 (1964); Segovia v. United States, 880 F.3d 384, 390 (7th Cir. 2018) ("the right to vote 'is a fundamental matter in a free and democratic society.'") (quoting Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)). 67. The fundamental right to vote implicitly includes the right to equally participate in a trustworthy process that does not require a citizen to choose between endangering his or her health or safety and exercising the franchise. 68. Voting by mail in Indiana has been permitted for several decades and has always been, and remains, a safe, reliable, honest, and secure method of participating in the electoral system and exercising one's right to vote. 69. Absentee voting by mail without excuse is allowed in 34 states and the District of Columbia; and in the State of Indiana for the June 2, 2020 primary election. Sixteen (16) states impose prerequisite conditions for mail voting, but nearly half of those states already have made clear that COVID-19 provides a valid excuse, at least during 2020 primary elections. https://www.brennancenter.org/our-work/research-reports/covid-19-should-be-legitimate-excusevote-mail (last visited April 27, 2020).
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70. Ind. Code § 3-11-10-24 (a) entitles some but not all voters to vote by mail, including but not limited to a voter who has a specific and reasonable expectation to be out of the county on election day, is serving as an election worker in a precinct on election day, will be confined on election day due to illness or injury, is a voter with disabilities, is "elderly," is caring for a person confined to a private residence, is engaged in a religious observation on election day, is a public safety officer or member of the military, lacks transportation to the polls, or is a serious sex offender. Id. at (a) (1)-(13).
71. By entitling certain classes of voters to submit an absentee ballot by mail in the 2020 general election, but denying that same privilege to Plaintiffs and other similarly situated voters, I. C. § 3-11-10-24(a), as applied during the pandemic, violates the Equal Protection Clause of the Fourteenth Amendment.
72. Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and other similarly situated voters in such a manner to prohibit and/or exclude Plaintiffs and those similarly situated from voting by mail in the 2020 general election, arbitrarily discriminates between categories of qualified voters.
73. Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and other similarly situated voters, denies them any reasonable alternative means of voting that does not endanger their own or others' health, safety, and lives.
74. Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and the class of similarly situated qualified voters they represent, denies to them and all other persons who are practicing social distancing the same privileges already extended to voters age 65 and over and to the other classifications of voters expressly permitted by Indiana law to vote by mail.
75. Accordingly, Ind. Code § 3-11-10-24 (a), as applied during the pandemic, constitutes a significant and non-trivial burden on Plaintiffs' fundamental right to vote.
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76. These burdens on Plaintiffs' right to vote are no less than the burdens imposed on voters already entitled by I.C. § 3-11-10-24 (a) to vote by mail.
77. Pursuant to Burdick v. Takushi, 504 U.S. 428, 439 (1992), and Crawford v. Marion County Election Board, 553 U.S. 181, 203 (2008), this Court must consider the "precise interests" advanced by the challenged election statute, which allows other voters, but not the Plaintiffs and those similarly situated, to vote by mail. This involves determining the legitimacy and strength of the State's asserted interests that are served by the challenged statute, as well as "the extent to which those interests make it necessary to burden Plaintiffs' rights." Burdick, 504 U.S. at 434.
78. The individual Plaintiffs and organizational Plaintiff’s members are harmed because, absent this Court's intervention to permit them to vote by mail, all face a substantial and grave risk to their health, and the health of their loved ones, by exercising their right to vote.
79. At all times relevant to this action, Defendants have acted or failed to act under color of state law, and are persons within the meaning of 42 U.S.C. § 1983.
80. Any governmental interest served by denying Plaintiffs and other voters similarly situated the right to vote by mail is outweighed by the burdens placed on Plaintiffs' right to vote during the pandemic.
81. Granting a privilege to those voters who fall within one of the 13 categories set forth in I.C. § 3-11-10-24(a) but not to other voters such as Plaintiffs, for whom voting in person is equally difficult or impossible due to the pandemic, is sufficient disparate treatment of voters so as to warrant judicial extension of the privilege to vote by mail to all voters during the pandemic, rather than withdrawing the benefits of casting a vote by mail from the alreadyentitled categories of voters. Heckler v. Mathews, 465 U.S. 728, 740 (1984); Califano v. Westcott, 443 U.S. 76, 89 (1979).
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82. Absent this Court issuing a preliminary injunction, Plaintiffs will suffer irreparable harm; any remedies at law would provide no or inadequate relief; Plaintiffs have a reasonable likelihood of success on the merits; the balance of harms favors the Plaintiffs; and the public interest would be served by the issuance of preliminary injunctive relief Plaintiffs seek.
Count II Violation of the Indiana Constitution Brought Pursuant to State Law against all Defendants 83. Plaintiffs incorporate by reference the allegations of paragraphs 1-82. 84. The Equal Privileges and Immunities Clause of the Indiana Constitution, prohibits the granting "to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Art. 1, § 23. The Indiana Constitution also requires that all elections in Indiana be "free and equal." Art. 2, § 1. 85. There are no inherent differences between Plaintiffs and those voters already statutorily entitled to vote by mail by I.C. § 3-11-10-24 (a), as the pandemic makes voting for each equally difficult or impossible. Neither is this disparate treatment reasonably related to any distinguishing characteristics among those entitled to vote by mail and those, such as Plaintiffs, who are not. 86. The preferential treatment accorded to those already entitled to vote by mail is not equally available to all voters such as Plaintiffs and other similarly situated Hoosier voters who wish to maintain social distancing for as long as the virus is continuing to be transmitted, and absent an effective vaccine or treatment.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: (a) enter an order declaring that as applied during the pandemic, Ind. Code § 3-11-1024(a), insofar as it grants to some voters, but not to Plaintiffs and the class they purport to
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represent, the right to vote by mail in the November 3, 2020, violates the Equal Protection Clause of the Fourteenth Amendment and the Equal Privileges and Immunities Clause of the Indiana Constitution;
(b) preliminarily enjoin Defendants to extend the privilege of voting by mail during the pandemic to Plaintiffs and all Indiana voters in the November 3, 2020, general election;
(c) preliminarily enjoin Defendants to advise all county clerks in Indiana to permit noexcuse absentee voting by mail in the November 3, 2020;
(d) award Plaintiffs their reasonable costs and attorneys' fees pursuant to 42 U.S.C. § 1988; and
(e) grant Plaintiffs such other or further relief as may be warranted. Respectfully submitted,
s/ William R. Groth William R. Groth MACEY SWANSON LLP 445 N. Pennsylvania St., Suite 401 Indianapolis, IN 46204 Tel: (317) 637-2345, Ext. 132 E-mail: WGroth@fdgtlaborlaw.com
s/ Mark W. Sniderman Mark W. Sniderman FINDLING PARK CONYERS WOODY & SNIDERMAN, P.C. 151 N. Delaware Street, Ste. 1520 Indianapolis, IN 46204 Tel: (317) 231-1100 E-mail: msniderman@findlingpark.com Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK,

)

MARC BLACK, SHELLY BROWN, DAVID CARTER, )

REBECCA GAINES, JANICE JOHNSON,

)

ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, )

KATHERINE PAOLACCI, DAVID SLIVKA,

)

DOMINIC TUMMINELLO, and

)

INDIANA VOTE BY MAIL, INC., individually,

)

and on behalf of those similarly situated,

)

)

Plaintiffs,

)

)

-vs-

)

)

PAUL OKESON, S. ANTHONY LONG,

)

SUZANNAH WILSON OVERHOLT, and

)

ZACHARY E. KLUTZ, in their official

)

capacity as members of the Indiana

)

Election Commission, and

)

CONNIE LAWSON, in her official

)

capacity as the Indiana Secretary of State,

)

)

Defendants.

)

Case No. 1:20-cv-01271-JPH-DLP

AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Come now Plaintiffs, by counsel, pursuant to Federal Rule of Civil Procedure 15(a)(1), and

for their Amended Complaint for declaratory and injunctive relief against Defendants, state as

follows:

INTRODUCTION

1. This is an action for declaratory and injunctive relief against Indiana election officials

who have failed to take necessary actions to protect Indiana voters against having to make a choice

between their personal safety and exercising their right to vote on Election Day, November 3, 2020.

2. The citizens of Indiana are in the midst of the worst pandemic in modern history.

Because of a novel coronavirus, and the disease it causes known as COVID-19, federal, state, county

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and city officials have ordered various limitations statewide, the central feature of which is to limit contact between persons, commonly known as "social distancing."
3. Public health officials warn that government-ordered “social distancing” will probably be in effect for a number of weeks and possibly months and, even after such order is lifted in Indiana, life in the public square will need to be conducted cautiously; with additional restrictions and loosening likely to be re-imposed at additional intervals, until an effective vaccine is discovered and is broadly available and distributed. Experts estimate this timeframe to be between twelve (12) to eighteen (18) months before an effective vaccine will be ready for public use. https://www.webmd.com/lung/covid-19-vaccine#1 (last visited April 27, 2020).
4. On April 21, 2020, the director of the Centers for Disease Control and Prevention warned that a second wave of the novel coronavirus this fall will be even more lethal than the one that is currently ravaging the nation. This wave that may coincide with the November 3, 2020 general election. https://www.washingtonpost.com/health/2020/04/21/coronavirus-secondwave-cdcdirector/ (last visited April 27, 2020).
5. On April 22, 2020, Anthony S. Fauci, M.D., an immunologist who is head of the National Institute of Allergy and Infectious Diseases, stated with even greater certainty that “[w]e will have coronavirus in the fall. I am convinced because of the degree of transmissibility that it has, the global nature. What happens with that will depend on how we’re able to contain it when it occurs.” https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthony-fauci-says-i-amconvinced-second-wave/3009131001/ (emphasis added) (last visited April 27, 2020).
6. On April 23, 2020, Dr. Michael T. Osterholm, Director of the Center for Infectious Disease, Research, and Policy at the University of Minnesota, predicted that the Coronavirus will still be spreading well into 2021 and will not stop until 60-70% of people have been infected. In his words, we are currently in the “second inning of a nine-inning game.”
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https://www.cnn.com/2020/04/21/opinions/bergen-osterholm-interview-two-opinion/index.html (last visited April 27, 2020).
7. The individual Plaintiffs seek to vote safely in the November 2020 general election; and to do so by casting an absentee ballot, by mail, in precisely the same manner in which they are allowed to vote in the June 2020 primary election. The Indiana law that allows other voters to vote by mail, but denies the same privilege to Plaintiffs, arbitrarily discriminates between categories of qualified voters, denies Plaintiffs any reasonable alternative means of voting that does not endanger their own or others' health, safety, and lives; and violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution, the Twenty-Sixth Amendment to the United States Constitution, and the Equal Privileges and Immunities Clause of the Indiana Constitution.
JURISDICTION, VENUE & CAUSE OF ACTION 8. This Court has subject matter jurisdiction of the federal questions presented herein pursuant to 28 U.S.C. §§ 1331 (federal question jurisdiction), 1343 (civil rights cases), 2201 and 2202 (declaratory relief). 9. Venue is appropriate in this Court because Defendants have their principal offices in Indianapolis and "reside" in this District. 28 U.S.C. § 1391(b)(1). 10. Plaintiffs set forth claims under the Fourteenth and Twenty-Sixth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983, and under state law. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
PARTIES 11. Plaintiff Barbara Tully is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She objects to being forced to choose between her health and her right to vote. She is severely limiting her exposure to anyone else, and has reduced her
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activities outside of her home. She does not want to be forced into close proximity to other people in order to vote in the November 2020 general election. She has worked as a poll inspector over the past several years but will not be doing so this year specifically because of the danger posed by COVID19.
12. Plaintiff Katharine Black is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. Her husband has a compromised immune system and she cannot risk exposing him to COVID-19. She therefore needs to vote by absentee ballot in the November 2020 General Election.
13. Plaintiff Marc Black is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. He has a compromised immune system and cannot risk exposing himself to others in order vote in the November 2020 General Election. He therefore needs to vote by absentee ballot in the November 2020 General Election.
14. Plaintiff Shelly Brown is a resident of Hamilton County, State of Indiana, and will be under 65 years of age on November 3, 2020. She wants to vote by mail in the November 3, 2020 election. She is fearful of voting in person because of the risk of being infected by COVID-19 and then infecting her husband, who is 71 years-old, and a cancer survivor as well as a former smoker. She therefore needs to vote by mail in the November 3, 2020, general election.
15. Plaintiff David Carter is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. Mr. Carter is concerned that it is impossible for inperson voters and poll workers to stay safe and maintain social distancing during the 2020 November elections. According to science and history, he believes COVID-19 will likely surge again this fall. For these reasons, he desires to vote by mail in the November 3, 2020 general election.
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16. Plaintiff Rebecca Gaines is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She was exposed to COVID-19 at her job and became extremely sick. She does not want to have to go to the polls and be exposed again to COVID-19, and thus desires to cast an absentee ballot in the November 3, 2020 general election.
17. Plaintiff Janice Johnson is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She believes COVID-19 poses an unmitigated safety and health threat to every voter and poll worker participating in the November 2020 election; and has a fear for her personal health and safety if she has no alternative to in-person voting in the November 3, 2020 general election.
18. Plaintiff Elizabeth Kmieciak is a resident of St. Joseph County, State of Indiana, and will be under 65 years of age on November 3, 2020. She usually works at the polls on election day, but is unwilling to do so this year due to the threat of COVID-19. Because of her concern for her health and safety, she wishes to vote by absentee ballot in the November 3, 2020, general election.
19. Plaintiff Chaquitta McCleary is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She is healthy, but her daughter has significant asthmatic issues, and she is concerned that if she is forced to vote in person she may contract the virus and potentially expose her daughter. She thus desires to vote by mail in the November 3, 2020 general election so she may vote without risking her health and that of her daughter.
20. Plaintiff Katherine Paolacci is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. She believes it is imperative that contact in large groups be limited as much as possible until the pandemic is no longer a massive threat. She works an unpredictable schedule at a public institution, where she encounters people who are members of atrisk populations. Limiting her presence in large groups is important to her welfare, and that of those
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with whom she works. Accordingly, she wishes to vote by mail in the November 3, 2020 general election.
21. Plaintiff David Slivka is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. He is a respiratory therapist, and thus knows the importance of social distancing because COVID-19 can be transferred through a cough or sneeze, or just by breathing within six feet of another person. At a vote center or polling place it would be difficult, if not impossible, for him (or anyone) to maintain proper social distancing. To ensure that no one gets sick or dies from this serious disease, Mr. Slivka believes that he, and everyone, should have the option of voting by mail in the November 3, 2020 general election. Mr. Slivka would not feel safe voting in person.
22. Plaintiff Dominic Tumminello is a resident of Marion County, State of Indiana, and will be under 65 years of age on November 3, 2020. He is concerned about having to choose to vote or risk his health and the health of his family. He does not have underlying health conditions, but his parents (both 84 years-old) and mother-in-law (91 years-old) are at high risk if they contract COVID19. He believes citizens should not have to risk their life or the lives of their family members in order to exercise their right to vote, and he thus desires to vote by mail in the November 3, 2020 general election.
23. Each and every individual plaintiff is eligible and qualified to vote in the November 3, 2020, general election in the State of Indiana.
24. None of the individual plaintiffs currently anticipates satisfying any of the statutory criteria of Indiana Code § 3-11-10-24(a)(1), (2), or (5) - (13), which would entitle them to vote by mail.
25. Plaintiff Indiana Vote By Mail, Inc. ("Indiana VBM”), is a non-profit corporation organized under the laws of the State of Indiana. One of its purposes and missions is to expand the
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right to vote by mail to all who prefer to vote by mail rather than in person, particularly during this national and state-wide public health emergency caused by the coronavirus.
26. Indiana VBM has organizational standing on its own behalf and associational standing on behalf of its members who are under the age of 65 and who are not otherwise entitled to vote by mail by virtue of Indiana law. The interests VBM seeks to protect are germane to its purpose, and the relief sought is declaratory and injunctive.
27. Defendants Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary E. Klutz, are members of the IEC, which is charged with administering Indiana election laws. Ind. Code § 3-6-4.1-14 (a)(1). This includes the responsibility to adopt rules to "[g]overn the fair, legal, and orderly conduct of elections." Id. It also includes the power to adopt, by unanimous vote of its entire membership, temporary emergency rules "to implement a court order requiring [it]...to administer an election in a manner not authorized by this title," id. at -16, or in cases of a "natural disaster or other emergency." Id. at -17 (a). Each has acted or will continue to act under color of state law. Each is sued in his or her official capacity only.
28. Defendant Connie Lawson is the Indiana Secretary of State and in that capacity is the chief election official of the State, whose primary office is in this judicial district. Ind. Code § 3-63.7-1. She is responsible for enforcing and implementing Indiana's election laws and her office routinely issues guidance to county election officials in each of Indiana's 92 counties on matters involving election administration. She is sued in her official capacity only.
FACTS 29. The Coronavirus is a highly-infectious virus that makes it extremely dangerous for people to gather in public, particularly in larger groups in confined spaces. As with other respiratory pathogens, the transmission is believed to occur through respiratory droplets from coughing and sneezing. Aerosol transmission is also possible in case of protracted exposure to elevated aerosol
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concentrations in closed spaces. Epidemiologists believe that individuals who remain asymptomatic can transmit the virus. The data suggests that the use of isolation is the best way to contain this pandemic, because no one is believed to be immune to the virus (until, possibly, they have been infected, and their immune systems have generated antibodies). Essentially, the entire population is at risk of contracting the disease.
30. Some experts also believe that as many as 88% of carriers of the disease may be asymptomatic, which frustrates efforts at detection and isolation. https://www.washingtonpost.com/outlook/2020/04/20/we-tested-all-our-patients-covid-19-found-lotsasymptomatic-cases/ (last visited April 27, 2020).
31. The virus in serious cases causes respiratory failure, septic shock, and/or multiple organ dysfunction or failure. The disease it causes, COVID-19, has already killed over 67,682 Americans, including more than 1,132 Hoosiers, and infected more than 19,933 Hoosiers. https://coronavirus.jhu.edu/data/mortality (last visited May 4, 2020); and https://www.coronavirus.in.gov (last visited May 4, 2020).
32. Approximately 65.0% of infected Hoosiers, or over 12,956 people, are under 60 years of age. https://www.coronavirus.in.gov (last visited May 4, 2020.)
33. The foregoing numbers of deaths and infections are expected to continue to increase in the coming weeks and months. https://coronavirus.jhu.edu/data/cumulative-cases (last visited April 27, 2020)
34. On March 6, 2020, in response to the Coronavirus pandemic, Indiana Governor Eric Holcomb signed Executive Order (EO) 2020-02, declaring a public health disaster emergency to prevent the spread of the virus. Ten (10) days later, on March 16, Gov. Holcomb signed EO 2020-04, which among other things, banned public gatherings of more than fifty (50) persons.
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35. On March 20, Gov. Holcomb signed EO 2020-07 postponing the Indiana primary election for four weeks, from May 5 to June 2. On March 23, Gov. Holcomb issued EO 2020-08 which banned public gatherings of more than ten (10) persons and ordered the shutdown of many businesses deemed non-essential. And on April 3, Gov. Holcomb signed EO 2020-17, renewing the declaration of a public health disaster emergency for an additional 30 days until May 5, 2020.
36. According to medical and scientific experts, the expected outcome of the various measures ordered by levels of government, if effective, will be to “flatten the curve.” Aggressive social distancing efforts won’t stop the virus but is intended to slow the spread to keep it from overwhelming health-care resources so fewer people would require hospital beds and ventilators at the same time. https://www.washingtonpost.com/nation/2020/04/01/lockdown-coronavirus-californiadata/ (last visited April 28, 2020).
37. South Korea, widely praised for its response to the pandemic, upon releasing its citizens from social distancing orders, experienced new emerging cases that have required reimposition of those measures. Other Asian and European nations have had similar experiences.
38. Most of the world, the nation, and the State of Indiana, can expect wave after wave of new infections until there is an effective treatment, a vaccine and/or greater than approximately 60% of the population survive the epidemic, thus creating a measure of “herd immunity.” For these reasons, along with the lack of adequate testing in Indiana, it is currently impossible to know for how long extreme social distancing measures will be necessary. https://www.forbes.com/sites/brucelee/2020/03/26/how-long-should-social-distancing-last-when-willcovid-19-coronavirus-end/#65c2eb40429a (last visited April 17, 2020).
39. With no vaccine or proven effective specific treatment for this virus available yet, keeping people physically separated by closing schools, restaurants, sporting and cultural venues, and
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workplaces, and having people stay at home to limit social contact, are the most effective measures to slow the spread of the virus.
40. These pandemic conditions will have a significant impact upon the upcoming elections in Indiana in 2020, as voters and poll workers will be anxious about appearing at a public polling location to vote in person because of fear they may contract the virus.
41. Because of the national and Indiana-declared health emergencies, Defendant members of the Indiana Election Commission ("IEC"), using their emergency powers granted by Indiana law, have already taken the unprecedented measure of postponing Indiana's primary election from May 5 to June 2, 2020. IEC Orders 2020-37 and 40.1
42. Indiana law entitles some but not all registered voters to vote by mail. In that regard, Ind. Code § 3-11-10-24(a) describes thirteen (13) categories of voters who are "entitled" to vote by mail.
43. One of those categories is a "voter with disabilities." Id. at (a)(4). Another is a voter confined on election day to their residence "because of an illness or injury..." Id. at (a)(3). Those statutes do not define what constitutes "confined on election day to the voter's residence because of an illness or injury," or "voter with disabilities."
44. On March 25, 2020, the IEC members suspended statutory restrictions on voting by mail. They accomplished this by ruling that the words "voter with disabilities" in Ind. Code § 3-1110-24(a)(4) shall be construed to include any "voter who is unable to complete their ballot because they are temporarily unable to physically touch or be in safe proximity to another person." IEC Order 2020-37, Section 9A.
1 https://www.in.gov/sos/elections/files/Indiana%20Election%20Commission%20Order%20202037.pdf and https://www.in.gov/sos/elections/files/Order%202020-40%20signed.pdf, last visited April 20, 2020.
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45. The IEC has not approved an order that would apply the foregoing definition to voters who vote in the November 3, 2020, general election; and the IEC's willingness to suspend restrictions on mail voting is highly uncertain, particularly in light of Secretary Lawson's April 16, 2020 letter to the U.S. Election Assistance Commission in which she requests $8 million for personal protective equipment and sanitation supplies for in-person early and in-person Election Day voting on November 3 and her declaration that Indiana is “not a vote by mail state” even though Indiana has used mail absentee voting for decades. https://www.eac.gov/sites/default/files/paymentgrants/cares/IN_CARES_Disbursement_RequestLette r.pdf (last visited April 27, 2020).
46. Without an order from the IEC suspending the statutory restrictions on voting by mail, most, if not all, county election boards will be unwilling to provide absentee ballots to voters who are under 65 years of age and who do not fall within one of the categories of voters statutorily entitled to vote by mail, and who are not themselves physically ill from the coronavirus and confined to their residence.
47. It is reasonable to expect that COVID-19 will continue to be in circulation without a vaccine or effective treatment through the elections of 2020 and beyond.
48. It is reasonable to expect that some forms of social distancing will continue, especially with regards to large public gatherings as occur at polling places on a presidential election day.
49. Even if there is an easing of social distancing, there will continue to be a public and personal health risk attendant to large gatherings such as voting at polling places, because many persons, especially those with compromised immune systems or pre-existing underlying health issues, will remain susceptible to becoming infected.
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50. Events surrounding Wisconsin's April 7, 2020, primary election provided a clear example of the disarray, confusion, danger, and disenfranchisement that is likely to result when an inperson election is held during a pandemic. Wisconsin state health officials have already identified as many as 40 people who appeared to have contracted the virus through activities relating to the April 7 election. https://talkingpointsmemo.com/news/wisconsin-covid-40-election (last visited April 27, 2020); https://www.wuwm.com/post/40-coronavirus-cases-milwaukee-county-linked-wisconsinelection-health-official-says#stream/0 (last visited April 27, 2020).
51. On April 6, 2020, the United States Supreme Court issued an opinion that permitted the April 7, 2020, Wisconsin primary to proceed based on the narrow question presented to it. However, the Court also pointedly emphasized that it was not "expressing an opinion on the broader question of... whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.” Republican National Committee v. Democratic National Committee (Docket 19A1016), 589 U.S. ___ (2020) https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf.
52. It is critically important that election officials begin immediately to prepare for the November 3, 2020 general election where more ballots are cast in-person and turnout is expected to be extremely high.
53. Because of the fundamental nature of the right to vote, it is also critically important that the judicial branch intervene where appropriate when the political system fails to act in a manner consistent with protecting citizens' right to vote, the most precious right in a democracy.
54. On April 16, 2020, during a press conference, both Defendant Lawson and Gov. Eric Holcomb rejected allegations by President Donald Trump that voting by mail is ripe for fraud. "We've long been voting by mail. I have a high level of confidence in the integrity of our election process," Holcomb said. "We'll have a safe and secure election." https://www.nwitimes.com/news/local/govt-
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and-politics/indiana-primary-election-to-feature-mail-in-and-in-person-voting/article_fce4d801-a81e567a-8f75-46cf7db1fd28.html (last visited April 27, 2020).
55. Until IEC Orders 2020-37 and -40, no Indiana court or administrative agency had issued an opinion or order construing a "voter with disabilities" as used in I. C. § 3-11-10-24(a)(4) to include all voters who are physically unable to be in close proximity to another person. No Indiana court or administrative agency has ever construed the term "illness" as used in I.C § 3-11-10-24(a)(3) to include an asymptomatic individual who fears contracting the virus and COVID-19 by venturing into a crowded public space with others such as a public polling place.
56. Pursuant to Ind. Code § 3-6-4.1-17 (b), emergency orders issued by the IEC expire not later than thirty (30) days after the order is issued. Consequently, those orders must be renewed one more time prior to the June 2 primary election. Even if the IEC chooses to renew those emergency orders, there is no similar order in place or currently being contemplated for the November 3, 2020 general election.
57. Pursuant to Ind. Code § 3-11-4-3(a) and (c), applications for an absentee ballot for the November 3, 2020, general election may be submitted now and "not later than noon, twelve (12) days before the election." Id. at (a)(4). Twelve days before the November 3, 2020 election is October 22, 2020.
58. Absent a definitive judicial ruling, different county election boards may adopt potentially conflicting interpretations of who is a "voter with disabilities,” or who is confined to a voter's home on election day "because of an illness,” and who is thus entitled to vote by mail.
59. Moreover, most county clerks will likely not provide a voter who submits an application for an absentee ballot for the November 3, 2020 general election, but does not indicate on the application that the voter is entitled to vote by mail because he or she falls within one of the categories of voters set forth in Ind. Code § 3-11-10-24(a).
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Class action allegations 60. This case is appropriate for resolution with a Plaintiff class of Indiana voters because the prosecution of separate actions by or against individual members of the class would create a risk of: inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or, adjudications with respect to individual members of the class, that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; or the parties opposing the class have refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. 61. The class of plaintiffs is so numerous that joinder of all members is impracticable. 62. Questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 63. Plaintiffs’ claims are typical of the claims of the class. 64. Plaintiffs will fairly and adequately protect the interests of the class.
LEGAL CLAIMS Count I
Violation of the 14th Amendment Brought Pursuant to 42 U.S.C. § 1983, against all Defendants 65. Plaintiffs incorporate by reference the allegations of paragraphs 1-64. 66. The right to vote is one of the most fundamental of all the rights conferred on citizens by the United States Constitution. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other
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rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 (1964); Segovia v. United States, 880 F.3d 384, 390 (7th Cir. 2018) ("the right to vote 'is a fundamental matter in a free and democratic society.'") (quoting Reynolds v. Sims, 377 U.S. 533, 56162 (1964)).
67. The fundamental right to vote implicitly includes the right to equally participate in a trustworthy process that does not require a citizen to choose between endangering his or her health or safety and exercising the franchise.
68. Voting by mail in Indiana has been permitted for several decades and has always been, and remains, a safe, reliable, honest, and secure method of participating in the electoral system and exercising one's right to vote.
69. Absentee voting by mail without excuse is allowed in 34 states and the District of Columbia; and in the State of Indiana for the June 2, 2020 primary election. Sixteen (16) states impose prerequisite conditions for mail voting, but nearly half of those states already have made clear that COVID-19 provides a valid excuse, at least during 2020 primary elections. https://www.brennancenter.org/our-work/research-reports/covid-19-should-be-legitimate-excusevote-mail (last visited April 27, 2020).
70. Ind. Code § 3-11-10-24(a) entitles some but not all voters to vote by mail, including but not limited to a voter who has a specific and reasonable expectation to be out of the county on election day, is serving as an election worker in a precinct on election day, will be confined on election day due to illness or injury, is a voter with disabilities, is "elderly," is caring for a person confined to a private residence, is engaged in a religious observation on election day, is a public safety officer or member of the military, lacks transportation to the polls, or is a serious sex offender. Id. at (a) (1)-(13).
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71. By entitling certain classes of voters to submit an absentee ballot by mail in the 2020 general election, but denying that same privilege to Plaintiffs and other similarly situated voters, I. C. § 3-11-10-24(a), as applied during the pandemic, violates the Equal Protection Clause of the Fourteenth Amendment.
72. Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and other similarly situated voters in such a manner to prohibit and/or exclude Plaintiffs and those similarly situated from voting by mail in the 2020 general election, arbitrarily discriminates between categories of qualified voters.
73. Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and other similarly situated voters, denies them any reasonable alternative means of voting that does not endanger their own or others' health, safety, and lives.
74. Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and the class of similarly situated qualified voters they represent, denies to them and all other persons who are practicing social distancing the same privileges already extended to voters age 65 and over and to the other classifications of voters expressly permitted by Indiana law to vote by mail.
75. Accordingly, Ind. Code § 3-11-10-24(a), as applied during the pandemic, constitutes a significant and non-trivial burden on Plaintiffs' fundamental right to vote.
76. These burdens on Plaintiffs' right to vote are no less than the burdens imposed on voters already entitled by I.C. § 3-11-10-24(a) to vote by mail.
77. Pursuant to Burdick v. Takushi, 504 U.S. 428, 439 (1992), and Crawford v. Marion County Election Board, 553 U.S. 181, 203 (2008), this Court must consider the "precise interests" advanced by the challenged election statute, which allows other voters, but not the Plaintiffs and those similarly situated, to vote by mail. This involves determining the legitimacy and strength of the
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State's asserted interests that are served by the challenged statute, as well as "the extent to which those interests make it necessary to burden Plaintiffs' rights." Burdick, 504 U.S. at 434.
78. The individual Plaintiffs and organizational Plaintiff’s members are harmed because, absent this Court's intervention to permit them to vote by mail, all face a substantial and grave risk to their health, and the health of their loved ones, by exercising their right to vote.
79. At all times relevant to this action, Defendants have acted or failed to act under color of state law, and are persons within the meaning of 42 U.S.C. § 1983.
80. Any governmental interest served by denying Plaintiffs and other voters similarly situated the right to vote by mail is outweighed by the burdens placed on Plaintiffs' right to vote during the pandemic.
81. Granting a privilege to those voters who fall within one of the 13 categories set forth in I.C. § 3-11-10-24(a) but not to other voters such as Plaintiffs, for whom voting in person is equally difficult or impossible due to the pandemic, is sufficient disparate treatment of voters so as to warrant judicial extension of the privilege to vote by mail to all voters during the pandemic, rather than withdrawing the benefits of casting a vote by mail from the already-entitled categories of voters. Heckler v. Mathews, 465 U.S. 728, 740 (1984); Califano v. Westcott, 443 U.S. 76, 89 (1979).
82. Absent this Court issuing a preliminary injunction, Plaintiffs will suffer irreparable harm; any remedies at law would provide no or inadequate relief; Plaintiffs have a reasonable likelihood of success on the merits; the balance of harms favors the Plaintiffs; and the public interest would be served by the issuance of preliminary injunctive relief Plaintiffs seek.
Count II Violation of the 26th Amendment Brought Pursuant to 42 U.S.C. § 1983, against all Defendants 83. Plaintiffs incorporate by reference the allegations of paragraphs 1-82.
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84. In Indiana an "elderly voter" is "entitled to vote by mail." Ind. Code § 3-11-1024(a)(5).
85. "Elderly" is defined in the Indiana Election Code as a voter "who is at least sixty-five (65) years of age." I.C. § 3-5-2-16.5.
86. Voters under 65, however, are denied the entitlement to vote by mail unless they have a specific, reasonable expectation of being absent from the county on election day during the entire twelve hours that the polls are open, id. at (a)(1); will be absent because the voter is working in certain official capacities at the polls, (a)(2); will be confined to the voter's residence or health care facility due to illness or injury during the entire time the polls are open, (a)(3); is a voter with disabilities, (a)(4); is prevented from voting due to caring for an individual confined to private residence due to illness or injury during the entire time the polls are open, (a)(6); is scheduled to work at the voter's regular place of employment during the entire time the polls are open, (a)(7); is prevented from voting due to religious observation, (a)(9); is a participant in an address confidentiality program, (a)(1); is in the military or a public safety officer, (a)(11); is a serious sex offender, (a)(12); or is prevented from voting due to the unavailability of transportation to the polls, (a)(13).
87. As a result of these limited categories of voters entitled to vote by mail, the vast majority of Indiana voters ages 18-64 are prohibited from voting by mail, for no other reason than they have not yet reached their 65th birthday.
88. Though Indiana has waived the age limit for the June 2 primary, it has not done so with respect to the November 3 general election.
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89. The Twenty-Sixth Amendment to the U.S. Constitution prohibits a state from denying or abridging the right to vote of citizens who are eighteen years of age or older, "on account of age". See U.S. CONST., amend. XXVI, § 1 (“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged . . . by any State on account of age”).
90. The Twenty-Sixth Amendment guarantees younger, qualified voters a substantive right to participate equally with other qualified voters in the electoral process and broadly protects against both blatant and subtle forms of discrimination. See, e.g., Colo. Project-Common Cause v. Anderson, 495 P.2d 220, 223 (Colo. 1972) (holding based on “[h]istory and reason” that the TwentySixth Amendment’s “prohibition against denying the right to vote to anyone eighteen years or older by reason of age applied to the entire process involving the exercise of the ballot and its concomitants”).
91. State laws that have the purpose, at least in part, of denying or abridging the right to vote on account of age are unconstitutional. League of Women Voters v. Detzner, 314 F.Supp.3d 1205, 1222–23 (N.D. Fla. 2018) (holding plaintiffs were substantially likely to succeed on merits of Twenty-Sixth Amendment claim in challenge to restrictive state guidance “unexplainable on grounds other than age”).
92. Ind. Code § 3-11-10-24(a), which prohibits the majority of Indiana voters from voting by mail on account of their age, while allowing those sixty-five or older to do so, on its face violates the text of the Twenty-Sixth Amendment.
93. Having opted to make mail-in voting an entitlement for certain voters in Indiana, the State may not constitutionally choose to deny or abridge access to the franchise to voters for no other reason than the fact that they are not yet 65 years old and do not fit within one of the narrow categories of younger voters who are entitled to vote by mail.
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94. While Ind. Code § 3-11-10-24(a) would be unconstitutional under any set of circumstances because it denies voters ages 18-64 the same voting rights as those ages 65 and older, its application is particularly burdensome in light of the ongoing pandemic, as by denying Plaintiffs and the class they purport to represent an entitlement to vote by mail, Ind. Code § 3-11-10-24(a) will force millions of younger voters in the November 3, 2020 general election into the untenable position of choosing whether to forego their most fundamental right or having no choice but to vote in person, at what are likely to be understaffed and overcrowded polling locations.
Count III Violation of the Indiana Constitution Brought Pursuant to State Law against all Defendants 95. Plaintiffs incorporate by reference the allegations of paragraphs 1-94. 96. The Equal Privileges and Immunities Clause of the Indiana Constitution, prohibits the granting "to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Art. 1, § 23. The Indiana Constitution also requires that all elections in Indiana be "free and equal." Art. 2, § 1. 97. There are no inherent differences between Plaintiffs and those voters already statutorily entitled to vote by mail by I.C. § 3-11-10-24(a), as the pandemic makes voting for each equally difficult or impossible. Neither is this disparate treatment reasonably related to any distinguishing characteristics among those entitled to vote by mail and those, such as Plaintiffs, who are not. 98. The preferential treatment accorded to those already entitled to vote by mail is not equally available to all voters such as Plaintiffs and other similarly situated Hoosier voters who wish to maintain social distancing for as long as the virus is continuing to be transmitted, and absent an effective vaccine or treatment.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: (a) enter an order declaring that as applied during the pandemic, Ind. Code § 3-11-10-24(a): insofar as it grants to some voters, but not to Plaintiffs and the class they purport to represent, the right to vote by mail in the November 3, 2020, violates the Equal Protection Clause of the Fourteenth Amendment, and the Equal Privileges and Immunities Clause of the Indiana Constitution; (b) enter an order declaring that Ind. Code § 3-11-10-24(a) on its face violates the TwentySixth Amendment, because it denies Indiana voters under the age of sixty-five the right to vote by mail on account of their age, while allowing those sixty-five or older to do so; (c) preliminarily enjoin Defendants to extend the privilege of voting by mail during the pandemic to Plaintiffs and all Indiana voters in the November 3, 2020, general election; (d) preliminarily enjoin Defendants to advise all county clerks in Indiana to permit no-excuse absentee voting by mail in the November 3, 2020; (e) award Plaintiffs their reasonable costs and attorneys' fees pursuant to 42 U.S.C. § 1988; and (f) grant Plaintiffs such other or further relief as may be warranted.
Respectfully submitted,
s/ William R. Groth William R. Groth MACEY SWANSON LLP 445 N. Pennsylvania St., Suite 401 Indianapolis, IN 46204 Tel: (317) 637-2345, Ext. 132 E-mail: WGroth@fdgtlaborlaw.com
s/ Mark W. Sniderman Mark W. Sniderman FINDLING PARK CONYERS
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Case 1:20-cv-01271-JPH-DLP Document 6 Filed 05/04/20 Page 22 of 22 PageID #: 54 WOODY & SNIDERMAN, P.C. 151 N. Delaware Street, Ste. 1520 Indianapolis, IN 46204 Tel: (317) 231-1100 msniderman@findlingpark.com
22

 
 Case 1:20-cv-01271-JPH-DLP Document 13 Filed 06/08/20 Page 1 of 4 PageID #: 71

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCREARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

MOTION FOR PRELIMINARY INJUNCTION

Come Now Plaintiffs and the putative class, by counsel, and pursuant to Rule 65 of the

Federal Rules of Civil Procedure, respectfully request that this Court preliminarily enjoin Defendants

to (1) extend the privilege of voting by mail to the individual Plaintiffs, putative class members, and all

Indiana voters in the November 3, 2020 general election; and (2) advise all county clerks in Indiana to

permit no-excuse absentee voting by mail in the November 3, 2020 general election. In support of this

Motion, Plaintiffs state as follows:

1. Plaintiffs have brought this action for declaratory and injunctive relief against Indiana

election officials who have failed to take necessary actions to protect Indiana voters against having to

make a choice between their personal safety and exercising their right to vote on November 3, 2020.

Case 1:20-cv-01271-JPH-DLP Document 13 Filed 06/08/20 Page 2 of 4 PageID #: 72
2. The individual Plaintiffs seek to vote safely in the November 2020 general election by casting an absentee ballot, by mail, in precisely the same manner in which they were allowed to vote in the June 2020 primary election. The Indiana law that allows certain voters to vote by mail, but denies the same privilege to Plaintiffs, arbitrarily discriminates between categories of qualified voters; denies Plaintiffs any reasonable alternative means of voting that does not endanger their own or others' health, safety, and lives; and violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution, the Twenty-Sixth Amendment to the United States Constitution, and the Equal Privileges and Immunities Clause of the Indiana Constitution.
3. Plaintiffs are likely to prevail on the merits of their claim that the challenged statute violates the United States Constitution.
4. Absent a preliminary injunction, the plaintiffs will suffer irreparable harm for which there is no adequate remedy at law.
5. The balance of harms and the public interest weigh in favor of the issuance of a preliminary injunction.
6. The injunction should be issued without bond. 7. The plaintiffs attach to this Motion the following exhibits, which are incorporated herein by reference:
- Exh. 1: Declaration of Barbara Tully (Filing No. 13-1) - Exh. 2: Declaration of David Carter (Filing No. 13-2) - Exh. 3: Declaration of Elizabeth Kmieciak (Filing No. 13-3) - Exh. 4: Declaration of Janice Johnson (Filing No. 13-4) - Exh. 5: Declaration of Marc Black (Filing No. 13-5) - Exh. 6: Declaration of Katharine Black (Filing No. 13-6) - Exh. 7: Declaration of Shelly Brown (Filing No. 13-7)
2

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- Exh. 8:

Declaration of Chaquitta McCreary1 (Filing No. 13-8)

- Exh. 9: Declaration of Dominic Tumminello (Filing No. 13-9)

- Exh. 10: Declaration of Rebecca Gaines (Filing No. 13-10)

- Exh. 11: Declaration of Katherine Paolacci (Filing No. 13-11)

- Exh. 12: Declaration of David Slivka (Filing No. 13-12)

- Exh. 13: Declaration of Jeffrey G. Jones, M.D., M.P.H. (Filing No. 13-13)

- Exh. 14: Declaration of Gregory Shufeldt, Ph.D. (Filing No. 13-14)

8. Plaintiffs anticipate filing their Motion for Class Certification. In the event that a class

is certified, the preliminary injunction should extend to the members of the class as well.

9. Contemporaneously with this Motion, Plaintiffs file their memorandum of law, which

is also incorporated herein by reference.

WHEREFORE, Plaintiffs respectfully request that this Court enter the aforementioned

preliminary injunction, without bond, and grant all other proper relief.

Respectfully submitted,

s/ William R. Groth William R. Groth MACEY SWANSON LLP 445 N. Pennsylvania St., Suite 401 Indianapolis, IN 46204 Tel: (317) 637-2345, Ext. 132 E-mail: WGroth@fdgtlaborlaw.com

s/ Mark W. Sniderman Mark W. Sniderman FINDLING PARK CONYERS

1 Plaintiffs move to correct the spelling of Ms. McCreary’s surname in the caption, where it was incorrectly spelled “McCleary.”

3

Case 1:20-cv-01271-JPH-DLP Document 13 Filed 06/08/20 Page 4 of 4 PageID #: 74 WOODY & SNIDERMAN, P.C. 151 N. Delaware Street, Ste. 1520 Indianapolis, IN 46204 Tel: (317) 231-1100 E-mail: msniderman@findlingpark.com
4

Case 1:20-cv-01271-JPH-DLP Document 13-1 Filed 06/08/20 Page 1 of 4 PageID #: 75

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF BARBARA TULLY

I, Barbara Tully, after being duly sworn and subject to the penalties for perjury, declare I am

over the age of eighteen, have personal knowledge of the following matters, would so testify in open

court if called, and am competent to render this testimony:

1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”). I am a member and President of Indiana Vote

by Mail, Inc.

2. I have no underlying health issues, but I object to being forced to choose between my

health and my right to vote. I am severely limiting my exposure to anyone else, and have reduced my

activities outside of my home. I do not want to be forced into close proximity to other people for the

Case 1:20-cv-01271-JPH-DLP Document 13-1 Filed 06/08/20 Page 2 of 4 PageID #: 76
General Election. Given the predicted trajectory of COVID-19 and its expected resurgence in the fall, l believe Hoosier voters should be allowed to use a no-excuse absentee option. I have worked as a poll inspector in the past, but will not be doing so this year, or possibly for the foreseeable future, specifically because of the danger posed by COVID-19.
3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate being absent from my county of residence on that day, and I do not intend to work as a precinct election officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely
2

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vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.
7. I do not believe there is an actual or potential conflict of interest between members of the proposed class and myself and the other named Plaintiffs. Even if there were a potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe voting by mail for all in the General Election.
8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously represent me, all named individual Plaintiffs, and members of the certified Class, so that we will all be able to safely vote by mail in the General Election.
9. If a Class is certified in this lawsuit, I understand that I may be a representative of the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility.
10. If a Class is certified in this lawsuit, I understand that any settlement would have to be approved by the Court. I understand that I will be consulted about any settlement, and have a right to express my views about the settlement to the Court.
11. This Declaration does not contain all my anticipated testimony in this matter.
3

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Case 1:20-cv-01271-JPH-DLP Document 13-2 Filed 06/08/20 Page 1 of 4 PageID #: 79

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF DAVID CARTER

I, David Carter, after being duly sworn and subject to the penalties for perjury, declare I am over

the age of eighteen, have personal knowledge of the following matters, would so testify in open court if

called, and am competent to render this testimony:

1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”).

2. I am concerned that it is impossible for in-person voters and poll workers to stay safe and

maintain social distancing during the 2020 November elections. According to science and past history

(1918 pandemic) we should assume that COVID-19 will surge again this fall. We would be reckless not

Case 1:20-cv-01271-JPH-DLP Document 13-2 Filed 06/08/20 Page 2 of 4 PageID #: 80
to prepare and protect fellow Hoosiers from the COVID-19 virus this coming November. For these reason I want a no excuse absentee vote by mail option for myself and all Hoosiers.
3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate being absent from my county of residence on that day, and I do not intend to work as a precinct election officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
2

Case 1:20-cv-01271-JPH-DLP Document 13-2 Filed 06/08/20 Page 3 of 4 PageID #: 81

6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.
7. I do not believe there is an actual or potential conflict of interest between members of the proposed class and myself and the other named Plaintiffs. Even if there were a potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe voting by mail for all in the General Election.
8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously represent me, all named individual Plaintiffs, and members of the certified Class, so that we will all be able to safely vote by mail in the General Election.
9. If a Class is certified in this lawsuit, I understand that I may be a representative of the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility.
10. If a Class is certified in this lawsuit, I understand that any settlement would have to be approved by the Court. I understand that I will be consulted about any settlement, and have a right to express my views about the settlement to the Court.
11. This Declaration does not contain all my anticipated testimony in this matter.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalties of perjury that the foregoing is true and correct.

_______________________ Date

_________________________ David Carter
3

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Case 1:20-cv-01271-JPH-DLP Document 13-4 Filed 06/08/20 Page 1 of 3 PageID #: 86

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF JANICE JOHNSON

I, Janice Johnson, after being duly sworn and subject to the penalties for perjury, declare I am

over the age of eighteen, have personal knowledge of the following matters, would so testify in open

court if called, and am competent to render this testimony:

1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”).

2. COVID-19 poses an unmitigated safety and health threat to every voter and poll worker

participating in the November 2020 election. I believe Indiana needs to be proactively concerned with

every citizen of our state by expanding vote by mail/no-excuse absentee ballots. There are no second

chances to getting this one right.

Case 1:20-cv-01271-JPH-DLP Document 13-4 Filed 06/08/20 Page 2 of 3 PageID #: 87
3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate being absent from my county of residence on that day, and I do not intend to work as a precinct election officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility
2

Case 1:20-cv-01271-JPH-DLP Document 13-4 Filed 06/08/20 Page 3 of 3 PageID #: 88

conffacting COVID-l9, may endanger rne, my family, poll workers and other people, and whiclr would expose :rll of us to a substantial risk of serious harm.
7. I do not believe there is an actual or potential conflict of interest tretween rnembers
ol'the proposed class ancl myself and the other named Plaintiffs. Even if there were a potential curflict, it would be dwarl'etl by our overwhelming comrnon goal of obtaining safe voting by mail for all in the Gcneral Election.
8. Il'a Class is certilie d in this lawsuit, I understanrl ttrat my lawyers will vigorously
reprcsent me, all named individual Plaintiffs, and mernbers of the certified Class, so that we rvill all be able to saf-ely vote by mail in the ()eneral Election.
9. If'a Class is certified in this lawsuit, I understand that I may tre a representative of
the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility.
10. II'a Class is certifie d in this lawsuit, I understand that any settlement would have to
be approved by the Cour[. I understand that I will be consulted about any settlement and have a
right to express my views about the settlement. to the Court.
11. 'fhis Declaration does not contain all my anticipated testimony in this matter.

Pursuant tcr 2fj I-l.S.Cl. S 1746, [ lrereby declare under penaltics of perjury that the lirrcgoing is tluc:
anrl correct.

ul4*ozc
DilJ--I-

.|aniceJohnson

(o)

Case 1:20-cv-01271-JPH-DLP Document 13-5 Filed 06/08/20 Page 1 of 4 PageID #: 89

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF MARC BLACK

I, Marc Black, after being duly sworn and subject to the penalties for perjury, declare I am over

the age of eighteen, have personal knowledge of the following matters, would so testify in open court if

called, and am competent to render this testimony:

1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”).

2. My immune system is compromised and I cannot take the risk of exposing myself to

others in order to vote in-person. I therefore need to vote by absentee ballot.

3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate

being absent from my county of residence on that day, and I do not intend to work as a precinct election

Case 1:20-cv-01271-JPH-DLP Document 13-5 Filed 06/08/20 Page 2 of 4 PageID #: 90
officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.
2

Case 1:20-cv-01271-JPH-DLP Document 13-5 Filed 06/08/20 Page 3 of 4 PageID #: 91

7. I do not believe there is an actual or potential conflict of interest between members of the proposed class and myself and the other named Plaintiffs. Even if there were a potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe voting by mail for all in the General Election.
8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously represent me, all named individual Plaintiffs, and members of the certified Class, so that we will all be able to safely vote by mail in the General Election.
9. If a Class is certified in this lawsuit, I understand that I may be a representative of the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility.
10. If a Class is certified in this lawsuit, I understand that any settlement would have to be approved by the Court. I understand that I will be consulted about any settlement, and have a right to express my views about the settlement to the Court.
11. This Declaration does not contain all my anticipated testimony in this matter.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalties of perjury that the foregoing is true and correct.

_______________________ Date

_________________________ Marc Black

3

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Case 1:20-cv-01271-JPH-DLP Document 13-6 Filed 06/08/20 Page 1 of 4 PageID #: 93

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF KATHARINE BLACK

I, Katharine Black, after being duly sworn and subject to the penalties for perjury, declare I am

over the age of eighteen, have personal knowledge of the following matters, would so testify in open

court if called, and am competent to render this testimony:

1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”).

2. My husband has a compromised immune system and I cannot risk exposing him to

COVID-19: I therefore need to vote by absentee ballot.

3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate

being absent from my county of residence on that day, and I do not intend to work as a precinct election

Case 1:20-cv-01271-JPH-DLP Document 13-6 Filed 06/08/20 Page 2 of 4 PageID #: 94
officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.
2

Case 1:20-cv-01271-JPH-DLP Document 13-6 Filed 06/08/20 Page 3 of 4 PageID #: 95

7. I do not believe there is an actual or potential conflict of interest between members of the proposed class and myself and the other named Plaintiffs. Even if there were a potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe voting by mail for all in the General Election.
8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously represent me, all named individual Plaintiffs, and members of the certified Class, so that we will all be able to safely vote by mail in the General Election.
9. If a Class is certified in this lawsuit, I understand that I may be a representative of the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility.
10. If a Class is certified in this lawsuit, I understand that any settlement would have to be approved by the Court. I understand that I will be consulted about any settlement, and have a right to express my views about the settlement to the Court.
11. This Declaration does not contain all my anticipated testimony in this matter.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalties of perjury that the foregoing is true and correct.

_______________________ Date

_________________________ Katharine Black

3

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF SHELLY BROWN

I, Shelly Brown, after being duly sworn and subject to the penalties for perjury, declare I am over

the age of eighteen, have personal knowledge of the following matters, would so testify in open court if

called, and am competent to render this testimony:

1. I am a registered voter in Hamilton County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”). I am a member of Indiana Vote by Mail, Inc.

2. I would like the opportunity to vote by mail in the General Election. I am fearful of

voting in person because of the risk of being infected by COVID-19 and then spreading it to my

husband who is 71, and a cancer survivor as well as a former smoker. I believe no one should need an

excuse to vote by mail in the election in November, as it is clear the pandemic will not be resolved by

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November. Making the decision months ahead of the election to allow no excuse absentee mail ballots will allow the election staff in each county to acquire the necessary equipment to enable an effective election in November. I previously filled out an absentee ballot request form for what was to be the May 5th primary because I was planning to work the polls, but I will not be working the polls for in-person voting on June 2. I have agreed to work as an election worker to process mail ballots because it does not involve close contact with the general public over an unknown period of time.
3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate being absent from my county of residence on that day, and I do not intend to work as a precinct election officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
2

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5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.
7. I do not believe there is an actual or potential conflict of interest between members of the proposed class and myself and the other named Plaintiffs. Even if there were a potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe voting by mail for all in the General Election.
8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously represent me, all named individual Plaintiffs, and members of the certified Class, so that we will all be able to safely vote by mail in the General Election.
9. If a Class is certified in this lawsuit, I understand that I may be a representative of the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility.
10. If a Class is certified in this lawsuit, I understand that any settlement would have to be approved by the Court. I understand that I will be consulted about any settlement, and have a right to express my views about the settlement to the Court.
11. This Declaration does not contain all my anticipated testimony in this matter.
3

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Pursuant to 28 U.S.C. § 1746, I hereby declare under penalties of perjury that the foregoing is true and correct.

_______________________ Date

_________________________ Shelly Brown

4

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF REBECCA GAINES

I, Rebecca Gaines, after being duly sworn and subject to the penalties for perjury, declare I am

over the age of eighteen, have personal knowledge of the following matters, would so testify in open

court if called, and am competent to render this testimony:

1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”).

2. I was exposed to COVID -19 at my job and got extremely sick. I don’t want to have to go

to the polls and be exposed again. I want to cast my vote with an absentee ballot in November.

3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate

being absent from my county of residence on that day, and I do not intend to work as a precinct election

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officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.
2

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF KATHERINE PAOLACCI

I, Katherine Paolacci, after being duly sworn and subject to the penalties for perjury, declare I

am over the age of eighteen, have personal knowledge of the following matters, would so testify in open

court if called, and am competent to render this testimony:

1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”).

2. I believe it is imperative that we limit contact in large groups as much as possible until the

pandemic is no longer a massive threat. I work an unpredictable schedule and at a public institution

where I come into contact with people who are members of at-risk populations. Whatever I can do to

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limit my presence in large groups is important to the welfare of those that I work with and myself. While my work is unavoidable, going to the polls could be if I were permitted to vote by mail.
3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate being absent from my county of residence on that day, and I do not intend to work as a precinct election officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
5. My overriding goal in this lawsuit is to obtain injunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
2

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6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.
7. I do not believe there is an actual or potential conflict of interest between members of the proposed class and myself and the other named Plaintiffs. Even if there were a potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe voting by mail for all in the General Election.
8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously represent me, all named individual Plaintiffs, and members of the certified Class, so that we will all be able to safely vote by mail in the General Election.
9. If a Class is certified in this lawsuit, I understand that I may be a representative of the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility.
10. If a Class is certified in this lawsuit, I understand that any settlement would have to be approved by the Court. I understand that I will be consulted about any settlement and have a right to express my views about the settlement to the Court.
11. This Declaration does not contain all my anticipated testimony in this matter.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalties of perjury that the foregoing is true and correct.

__0_6_/_0_4_/2_0_2_0_____________ Date

_________________________ Katherine Paolacci

3

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

DECLARATION OF DAVID SLIVKA

I, David Slivka, after being duly sworn and subject to the penalties for perjury, declare I am over

the age of eighteen, have personal knowledge of the following matters, would so testify in open court if

called, and am competent to render this testimony:

1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the

November 3, 2020 general election (“General Election”).

2. As a respiratory therapist, I know the importance of social distancing because COVID-19

can be transferred through a cough or sneeze, or just by breathing within six feet of another person. At a

voting center or polling place it would be difficult, if not impossible, to maintain proper social distancing.

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To ensure that no one gets sick or dies from this serious disease, everyone should have the option of voting by mail. I would not feel safe voting in person.
3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate being absent from my county of residence on that day, and I do not intend to work as a precinct election officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election. I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open. I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name.
5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity.
2

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6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.
7. I do not believe there is an actual or potential conflict of interest between members of the proposed class and myself and the other named Plaintiffs. Even if there were a potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe voting by mail for all in the General Election.
8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously represent me, all named individual Plaintiffs, and members of the certified Class, so that we will all be able to safely vote by mail in the General Election.
9. If a Class is certified in this lawsuit, I understand that I may be a representative of the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility.
10. If a Class is certified in this lawsuit, I understand that any settlement would have to be approved by the Court. I understand that I will be consulted about any settlement, and have a right to express my views about the settlement to the Court.
11. This Declaration does not contain all my anticipated testimony in this matter.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalties of perjury that the foregoing is true and correct.

_______________________ Date

_________________________ David Slivka
3

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Exhibit A

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JEFFREY GORDON JONES

ADDRESS:

4802 North Pennsylvania Street Indianapolis, Indiana 46205 (317) 528-8009(work)

EDUCATION
London School of Tropical Medicine and Hygiene
Degree: M.S., Infectious Diseases

Universidad Peruana Cayetano Heredia, Lima Peru Instituto de Medicina Tropical/University of Alabama at Birmingham Degree: Diploma, Tropical Medicine and Hygiene

University of Michigan, Ann Arbor, Michigan Degree: M.P.H., Occupational Medicine, August 1989
Honors/Activities: Dow Fellow, 1987- 1989; Certified in Occupational Medicine by American Board of Preventive Medicine 1990

St. Francis Hospital Center, Beech Grove, Indiana 46107 Degree: Completion of residency program in Family Practice,
July 1983. Diplomate, American Board of Family Physicians. Honors/Activities: Resident member of medical education committee 1982-1983

Indiana University, Indianapolis, Indiana 46202 Degree: M.S., Pharmacology, June 1982
Honors/Activities: Cumulative GPA 3.9; nominated to Sigma Xi; presentation of research to the National Society of Neurosciences, November 1980; Lecturer in clinical toxicology

Indiana University, Indianapolis, Indiana 46202 Degree: Doctor of Medicine, May 1979
Honors/Activities: Cumulative GPA 3.4; Research Fellowship Institute of Psychiatric Research, 1976

DePauw University, Greencastle, Indiana 46135 Degree: B.A., Chemistry, May, 1976
Honors: Graduated Magna Cum Laude, cumulative GPA 3.8; Phi Beta Kappa; Phi Eta Sigma; Honorary Rector Scholar

2001-2006 2-5\1997 1987-1989 1980-1983 1979-1982 1975-1979 1972-1975

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WORK EXPERIENCE

St. Francis Travel Well Health Center 747 E. County Line Road, Greenwood, IN 46143

1983-present

Position: Medical Director Duties and Responsibilities: I am responsible for the development of preventive protocols for travelers. This includes appropriate vaccines, antimalarial medications, and self-treatment protocols. I also treat sick ambulatory travelers upon their return. I am the medical director of multiple corporations and missionary organizations. I teach the sections on clinical tropical medicine to primary care resident physicians in the Indianapolis area.

St. Francis Hospital Center 8111 S. Emerson Avenue, Indianapolis, IN

1983-present

Position: Medical Director of Employee Health Duties and Responsibilities: I am responsible for overseeing the preventive care of hospital employees. I am also in charge of managing infectious exposures to employees. I oversee compliance with OSHA regulations. I am a member of the Infection Control committee.

PUBLICATIONS:
Jones, J.G.King, T.C., (2015) Letter to the Editor: Latent Mycobacterium tuberculosis infection. New England Journal of Medicine, 373:1178.
King TC, Upfal M, Gottlieb A, Adamo P, Bernachi E, Kadlecek CP, Jones JG, Humphrey-Carothers F, Rielly AF, Drewry P, Murray K, DeWitt M, Matsubara J, O’Dea L, Balser J. (2015) T-Spot.TB Interferon-gamma release assay performance in healthcare worker screening at nineteen US hospitals. Am J Respir Crit Care Med. 192:367-73.
Jones, J.G. (2010) Malaria Chemoprophylaxis and Travel Immunizations. American Family Physician, 82:583-4.
Jones, J.G. (2009) Letter to the Editor: A Pregnant Woman with Fever after a trip to Africa. New England Journal of Medicine, 360:2481-82.
Jones, J.G. (2007) Case Report of a Traveler with Leishmania Panamensis Treated with Miltefosine. American Journal of Tropical Medicine and Hygiene, 77:118-9.
Jones, J.G. (1991) The physiological cost of wearing disposable respirator. American Industrial Hygiene Association Journal, 52:219-225.

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Jones, J.G. (1991) Ulnar tunnel syndrome, American Family Physician, 44:497-502.
Jones, J.G. (1991) Chasing the Medical Literature (editorial) Family Practice Research Journal, 11 (3): 247-50.
Jones, J.G. (1990) Use of very-low-calorie diets in obesity (editorial) American Family Physician, 42:1254-56.
Elmore, M.F.; Gallagher, S.C.; Jones, J.G.; Koons, K.K.; Schmalhausen, A.W.; and Strange, P.S. (1989), Esophagogastric decompression and enteral feeding following cholecystectomy: a controlled, randomized prospective trial. Journal Perenteral Enteral Nutrition, 13:377-381.
Jones, J.G. and Kovalcik, E. (1988) Goal Setting, A method to help patients escape the negative effects of stress, Postgraduate Medicine, 83:257-261.
Jones, J.G. (1987) Chiggers. American Family Physician. 36:(2): 149-152.
Jones, J.G. (1985) Herpetic whitlow: an infectious occupational hazard. J. Occupational Medicine 27:725728.
Hochstetler, M. and Jones, J.G. (1985), Filing systems for medical reprints. Indiana Family Practice Residency Journal, 3: 16-18.
Jones, J.G. and Chevalier, R. (1985) Tachycardia in residents responding to cardiac arrests. Family Practice Research Journal, 5: 13-20.
Jones, J.G. and Richter, J.A. (1981), The site of action of naloxone in suppressing food and water intake in rats. Life Sciences, 28:2055-2064.
PUBLICATIONS, TEXTBOOK CHAPTERS
Jones, J.G. Pediculosis and Mite Infestations. In: Taylor’s Manual of Family Practice. R.B.Taylor, Editor. 4rd Edition. Wolters Kluwer, 2015.
Jones, J.G. Infectious Mononucleosis. In: Taylor’s Manual of Family Practice. R.B.Taylor, Editor. 3rd Edition. Lippincott Williams and Wilkins. 2008.
Jones, J.G. Helminthic Travel-Related Infections. In: Couturier’s Occupational and Environmental Infectious Diseases. W.E. Wright, Ed. 2nd Edition. OEM Press 2008.
Jones, J.G., Herip, D., Freedman, D. Principles of Travel Medicine. In: A Practical Approach to Occupational and Environmental Medicine, R.J. McCunney, ed. 3rd ed., Lippincott, Phil., 2003.
Jones, J.G., Poplin, E.D. Selected Disorders of the Musculoskeletal System chapter in Principles
and Practice of Family Medicine. R Taylor, ed. 6th ed., 2003

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Jones, J.G., Poplin, E.D., Fractures Requiring Special Consideration, Chapter in Manual of Family Practice, Robert B. Taylor, Ed., Little, Brown, and Company, Boston, 2001
Jones, J.G., Helminth Infections. In: Occupational and Environmental Infectious Diseases. Alain J. Couturier, Ed. OEM Press, Boston, 2000
PRESENTATONS, RECENT
Tropical Diseases in the Tropics, Series of lectures regarding practical treatment of patients in areas with limited resources, Chontapuna, Ecuador, Jan. 2017 to 2020. Fever in the Returning Traveler, Presentation at Community Hospital’s Global Health Conference Jan. 2017. Promiscuous Tropical Diseases in an Ecologically Changing World, Keynote speech, Alpha Association of Indiana Phi Beta Kappa Annual Meeting, May 2016. Update and Review of Tuberculosis, Grand Rounds, St. Francis Hospital, Aug. 2015. Diagnosis and Treatment of Tropical Diseases in Refugees, 15 Sept. 2011, IN Health Dept. Fever in the Returning Traveler, February 2011, Feb Fest, Indiana Academy of Physician Assistants, Butler University An Update in Travel Medicine and Vaccines. October 2010, Indiana Association of Occupational Nurses State Meeting A Personal View of Neglected Tropical Diseases, April 2009, Indiana University School of Medicine Extraction Techniques for Dermatobia hominis, May 2007, Conference of the International Society of Travel Medicine,
MEDICAL WRITING, VIDEO Latex Sensitivity, Jeffrey G. Jones, M.D., 1998
NATIONAL MEETINGS, RECENT
Wilderness and Humanitarian Medicine, Sante Fe, May 2016
Clinical Tropical Medicine in India, Velore, India, Jan-Feb 2012 American Society of Tropical Medicine and Hygiene, 2010, 12,13,14, 15, 16. 17, 18, 19. Case Management of the Complicated Tropical Medicine Patient, Atlanta Georgia 2010 Expedition Medicine National Conference, Washington DC 2010 International Society of Travel Medicine, Innsbruck, Austria 2001, New York 2003, Vancoover 2007 Medical Practice in Countries with Limited Resources, Ifakara, Tanzania, 6/2000 International Society of Travel Medicine Meeting, Montreal, 6/99 Gorgas Expert Course in Tropical Medicine, Lima, Peru, 1/99

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Certifications American Board of Family Practice, 1983, 1990, 1997, 2004 Certificate in Travel Health, 2003 American Board of Preventive Medicine, Occupational Medicine, 1990 Added Qualification in Sports Medicine, 1995 Medical Review Officer Certification Council, 1993, 1988, 2003 ASTMH Certificate in Traveler’s Health and Clinical Tropical Medicine, 1998
Memberships American College of Occupational and Environmental Medicine: Infectious Disease Committee International Society of Travel Medicine American Society of Tropical Medicine and Hygiene Examination Committee American Academy of Family Physicians
Awards 2019 Edward Micon, M.D. Teaching Award, Franciscan Family Medicine Residency 2017 Wine Scholar Guild, Bordeaux Master Level with Highest Honors 2012 Dr. Dillip Mathal Award for Excellence in Tropical Medicine, Christian Medical College, Velore, India
Personal Interests Wine Appreciation, Running, French, and Travel

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Exhibit A

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Gregory D. Shufeldt

Butler University

Department of Political Science

4600 Sunset Avenue, Jordan Hall 347 B

Indianapolis, IN 46208

gshufeld@butler.edu

(317)-940-9571

EDUCATION Ph.D. 2014

Department of Political Science, University of Notre Dame Primary Field: American Politics, Second: Comparative Politics

M.A. 2011

Department of Political Science, University of Notre Dame

M.S.W. 2005

School of Social Service, Saint Louis University Emphasis: Community Social Work

B.S.S.W. 2004

School of Social Service, Saint Louis University Magna Cum Laude Major: Social Work, Minor: Urban Affairs

ACADEMIC POSITIONS Assistant Professor

Butler University Department of Political Science (2016 – Current)

Assistant Professor

University of Arkansas at Little Rock Department of Political Science (2014 – 2016)

RESEARCH AND TEACHING INTERESTS American Politics, State Politics, Political Parties, Political Inequality

PUBLICATIONS Williams, C. and G. Shufeldt. 2020. “How Identity Influences Public Attitudes Towards the US Federal Government: Lessons from the European Union.” Acta Politica, forthcoming.

Flavin, P. and G. Shufeldt. 2020. “Explaining State Preemption of Local Laws: Political Institutional, and Demographic Factors.” Publius: The Journal of Federalism, 50(2): 280-309.

Rosalyn Cooperman, R., K. Conger, G. Shufeldt, G. Layman, K.O. Kalkan, R. Herrera, and J. Green. 2019. “Group Commitment among U.S. Party Factions: A Perspective from Democratic and Republican National Convention Delegates.” American Politics Research, forthcoming.

Flavin P. and G. Shufeldt. 2019. “Comparing Two Measures of Electoral Integrity in the American States.” State Politics & Policy Quarterly, 19(1): 83-100.

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Shufeldt, p. 2
Shufeldt, G. 2018. “Party-Group Ambivalence and Voter Loyalty: Results from Three Experiments.” American Politics Research, 46(1): 132-168.
Flavin, P. and G. Shufeldt. 2017. “The State of the Minimum Wage: Federalism, Economic Policy, and Workers’ Well-Being.” The Forum, 15(1): 167-188.
Flavin, P. and G Shufeldt. 2016. “Party Competition and Citizens’ Political Attitudes in the American States.” Electoral Studies, 44: 235-244.
Radcliff, B. and G. Shufeldt. 2016. “Direct Democracy and Subjective Well-Being: The Initiative and Life Satisfaction in the American States.” Social Indicators Research, 128(3): 1405-1423.
Flavin, P. and G. Shufeldt. 2016. “Labor Union Membership and Life Satisfaction in the United States.” Labor Studies Journal, 41(2): 171-184.
Flavin, P. and G. Shufeldt. 2015. “State Party Competition and Citizens’ Political Engagement.” Journal of Elections, Public Opinion, & Parties, 25(4): 444-462.
Javeline, D. and G. Shufeldt. 2014. “Scientific Opinion in Policymaking: The Case of Climate Change Adaptation.” Policy Sciences, 47(2):121-139.
Javeline, D., J. Hellman, R. Castro Cornejo, and G. Shufeldt. 2013. “Expert Opinion on Climate Change and Threats to Biodiversity.” BioScience, 63(8): 666-673.
Shufeldt, G. and P. Flavin. 2012. “Two Distinct Concepts: Party Competition in Government and Electoral Competition in the American States.” State Politics and Policy Quarterly, 12(3): 330-42.
Abram, F.Y., G. Shufeldt, and K. Rose. 2004. “Can Reverse Mission Internationalize Social Work Without the Hegemony of Religious, Social, or Intellectual Conversion?” Social Work & Christianity, 31(2): 136-161.
NON-PEER-REVIEWED PUBLICATIONS Shufeldt, G. 2017. “Trump tax plan hits Hoosiers hard.” Opinion-editorial published in The Journal Gazette. 3 October 2017.
Shufeldt, G. 2017. “Hoosiers would lose in Trump tax plan.” Opinion-editorial published in The Times of Northwest Indiana. 29 September 2017.
Shufeldt, G. 2017. “Trump tax reform a raw deal for Hoosiers.” Opinion-editorial published in The Tribune Star. 29 September 2017.
Shufeldt, G. 2017. “Tax plan raw deal for Indiana.” Opinion-editorial published in The Kokomo Tribune. 28 September 2017.

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Shufeldt, p. 3
Shufeldt, G. 2017. “Trump tax reform a raw deal for Hoosiers.” Opinion-editorial published in The Herald Bulletin. 28 September 2017.
Shufeldt, G. 2017. “Tax plan raw deal for Indiana: Most Hoosiers will see just $8 more a week.” Opinion-editorial published in The Rushville Republican. 28 September 2017.
Shufeldt, G. 2017. “Tax plan raw deal for Indiana: Most Hoosiers will see just $8 more a week.” Opinion-editorial published in The Greensburg Daily News. 28 September 2017.
Shufeldt, G. 2017. “Tax plan raw deal for Indiana: Most Hoosiers will see just $8 more a week.” Opinion-editorial published in The Flyer Group. 28 September 2017.
Shufeldt, G. 2017. “Tax plan raw deal for Indiana: Most Hoosiers will see just $8 more a week.” Opinion-editorial published in News and Tribune. 28 September 2017.
Shufeldt, G. 2017. “Trump’s tax reform shortchanges Hoosiers.” Opinion-editorial published in NUVO. 27 September 2017.
Shufeldt, G. and P. Flavin. 2017. “Why States Should Raise the Minimum Wage Right Now.” Opinion-editorial published in De Gruyter Conversations. 21 September 2017.
Shufeldt, G. and P. Flavin. 2017. “Minimum Wage an Issue of Satisfaction: Workers happier when states raise it.” Opinion-editorial published in the Journal Gazette (Fort Wayne, IN). 27 June 2017.
Shufeldt, G. and P. Flavin. 2017. “How to Make a Worker Happy? Give ‘Em a Raise.” Opinioneditorial published in The Star Press (Muncie, IN). 10 June 2017.
Shufeldt, G. and P. Flavin. 2017. “Raises Make for Happy Workers.” Opinion-editorial published in the South Bend Tribune. 9 June 2017.
Shufeldt, G. and P. Flavin. 2017. “Raising Minimum wage Makes Happier Populace.” Opinioneditorial published in The Times of Northwest Indiana. 8 June 2017.
Shufeldt, G. and P. Flavin. 2016. “Benefits of a boost: Rise more than dollars and cents.” Opinion-editorial published in the Arkansas Democrat-Gazette, 18 April 2016.
Flavin, P., A. Pacek, B. Radcliff, and G. Shufeldt. 2015. “Unhappy pursuit: Right-to-work laws imperil joy.” Opinion-editorial published in the Arkansas Democrat Gazette, 15 May 2015.
Shufeldt, G. 2014. “Mark Pryor makes the last stand for Democrats as Arkansas cements itself as a true red state.” Article appeared in The London School of Economics and Political Science’s United States American Politics and Policy Blog.” 27 October 2014.
Shufeldt, G. 2014. “The power of state: Policy decisions can help, hurt.” Opinion-editorial published in the Arkansas Democrat Gazette, 6 October 2014.

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Shufeldt, p. 4
Shufeldt, G. 2008. “Campaign Worker.” In 101 Careers in Social Work, eds. J. Ritter, H. Vakalahi, and M. Kiernan-Stern. New York: Springer Publishing Company, p. 200.
WORKING PAPERS “Teaching Hamilton: A Team-Taught, Interdisciplinary Honors Course.” Paper with Rusty Jones.
“The Political Roots of Variation in the Gender Pay Gap in the American States.” Paper with Claudia Vinci (undergraduate student).
“Prejudice among Party Elites: Party Convention Delegates and Intergroup Attitudes.” Paper with Kerem Ozan Kalkan.
“The Room Where it Happens: Party Activists and the 2016 Presidential Election.” Paper with Rosalyn Cooperman and Kimberly Conger.
PROFESSIONAL PRESENTATIONS Candidate Preferences, Electoral Context, and Delegate Attitudes in the 2016 Presidential Nomination” (with Caitlin Jewitt). Paper presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 2020. [Cancelled]
“The Room Where it Happens: Party Activists and the 2016 Presidential Election” (with Rosalyn Cooperman and Kimberly Conger). Paper presented at the annual meeting of the American Political Science Association in Washington, DC, August 2019.
“A Tale of Two CITLs: Cross-Discipline Collaboration to Promote Student Learning and Faculty Mentorship.” (with Susan Adams). Poster presented at the Celebration of Innovations in Teaching and Learning in Indianapolis, IN, April 2019.
“When and Why Do States Preempt Local Policymaking?” (with Patrick Flavin), Paper presented at the annual meeting of the American Political Science Association in Boston, MA, September 2018.
“The World Was Wide Enough: Two Hams Teaching Hamilton and Live To Tell Their Story.” (with Rusty Jones). Poster presented at the Celebration of Innovations in Teaching and Learning in Indianapolis, IN, April 2018.
“Party Convention Delegates, Policy Demanders, and the 2016 Election” (with Kimberly Conger, Rosalyn Cooperman, John Green, Richard Herrera, and Kerem Ozan Kalkan), Paper presented at the State of the Parties Conference held in Akron, OH, November 2017.
“State Electoral Integrity and Citizens’ Perceptions of American Democracy” (with Patrick Flavin), Paper presented at the annual meeting of the American Political Science Association in San Francisco, CA. September 2017.

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Shufeldt, p. 5
“State Electoral Integrity and Citizens’ Perceptions of American Democracy.” (with Patrick Flavin). Paper presented at the annual State Politics and Policy Conference in St. Louis, MO, June 2017.
“Crowdsourcing Research Methods.” Poster presented at the Celebration of Innovations in Teaching and Learning in Indianapolis, IN, April 2017.
“Prejudice among Party Elites: Party Convention Delegates and Intergroup Attitudes.” (with Kerem Ozan Kalkan). Paper presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 2017.
“Ameriskepticism? How Utilitarian Concerns and Identity Drive Attitudes Toward the Federal Government.” (with Christopher J. Williams). Paper presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 2017.
“Prejudice among Party Elites: Party Convention Delegates and Intergroup Attitudes.” (with Kerem Ozan Kalkan). Paper presented at the annual meeting of the Southern Political Science Association in New Orleans, LA, January 2017.
“The ‘Nativ’ Citizen: Political Attitudes, Outcomes and State Pride.” (with Paul A. Crutcher). Paper presented at the annual meeting of the Arkansas Political Science Association in Monticello, AR in February 2016. Paper received Best Faculty Paper Award.
“Group Commitment among Republican Factions: A Perspective from National Convention Delegates.” (with Kimberly Conger, Geoffrey Layman, Rosalyn Cooperman, John Green, Kerem Ozan Kalkan, and Richard Herrera). Paper presented at the annual meeting of the Southern Political Science Association in San Juan, PR, January 2016.
“Minimum Wage Increases and Workers’ Well-Being.” (with Patrick Flavin). Paper presented at the annual meeting of the Southern Political Science Association in San Juan, PR, January 2016.
“Office Seekers or Policy Demanders?” The Parties from the Perspective of National Convention Delegates.” (with Kimberly Conger, Geoffrey Layman, Rosalyn Cooperman, John Green, Kerem Ozan Kalkan, and Richard Herrera). Paper presented at the Georgetown Merthan Conference on Political Activists in a Polarized Age in Washington, DC, March 2015.
“Party Competition and Citizens’ Political Attitudes in the American States.” (with Patrick Flavin). Paper presented at the annual meeting of the Arkansas Political Science Association in Conway, AR, February 2015.
“Party Competition and Citizens’ Political Attitudes in the American States.” (with Patrick Flavin). Paper presented at the annual meeting of the Southern Political Science Association in New Orleans, LA, January 2015.
“Demanding Policy: Purposive Goals and American Party Elites.” (with Kimberly Conger, Geoffrey Layman, Rosalyn Cooperman, John Green, Kerem Ozan Kalkan, and Richard Herrera).

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Shufeldt, p. 6
Paper presented at the annual meeting of the Southern Political Science Association in New Orleans, LA, January 2015.
“Between the Promise and Reality of Democracy as a Panacea for Well-Being: Assessing the Consequences of Direct Democracy on Life Satisfaction.” (with Benjamin Radcliff). Paper presented at the German Institute for Japanese Studies international workshop. Tokyo, Japan, July 2014.
“Demanding Policy: Purposive Goals and American Party Elites.” (with Kimberly Conger, Geoffrey Layman, Rosalyn Cooperman, John Green, Kerem Ozan Kalkan, and Richard Herrera). Paper presented at the annual meeting of the American Political Science Association in Washington, DC, September 2014.
“The Effects of Party Competition on Citizens’ Political Engagement in the American States.” (with Patrick Flavin). Paper presented at the annual State Politics and Policy Conference in Bloomington, IN, May 2014.
“Income Inequality and Party Polarization in the Electorate.” (with Anne Baker). Paper presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 2014.
“Political Identities and Voter Loyalty: Results from Two Experiments.” Paper presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 2014.
“Political Identities and Voter Loyalty: Results from An Experiment.” Paper presented during the Rooney Center for the Study of American Democracy’s research workshop series at the University of Notre Dame, October 2013.
“Will Rogers and the 11th Commandment: Party Differences in Group Membership and Ideological Commitment.” Paper presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 2012.
“Party Building by Community Building: Results from Two Experiments.” (with David Nickerson). Paper presented during the Rooney Center for the Study of American Democracy’s research workshop series at the University of Notre Dame, February 2012.
“Will Rogers and the 11th Commandment: Party Differences in Group Membership and Ideological Commitment.” Poster presented at the annual meeting of the Southern Political Science Association in New Orleans, LA, January 2012.
“Reevaluating Two Measures of Inter-Party Competition in the American States.” (with Patrick Flavin). Paper presented at the annual meeting of the Western Political Science Association in San Antonio, TX, April 2011.
“Reevaluating Two Measures of Inter-Party Competition in the American States.” (with Patrick Flavin). Paper presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 2011.

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Shufeldt, p. 7
“Levels of Democratization in the American States and State Welfare Policy.” Paper presented at the annual meeting of the New England Political Science Association in Newport, RI, April 2010.
“Racial Inequality and Education Policy in the American States.” (with Michael Hartney and Patrick Flavin). Paper presented at the annual meeting of the Midwest Political Science Association in Chicago, IL, April 2010.
“Racial Inequality and Education Policy in the American States.” (with Michael Hartney and Patrick Flavin). Paper presented at the annual meeting of the New England Political Science Association in Newport, RI, April 2010.
“The Level of Democratization’s Impact on Welfare Efforts in the American States.” Paper presented during the Rooney Center for the Study of American Democracy’s research workshop series at the University of Notre Dame, February 2010.
“Mission Impossible? No, mission-in reverse for International Social Work Education and Practice at Home.” (with Faye Abram). Paper presented at the annual meeting of the National Association for Christians in Social Work Annual in Louisville, KY, October 2003.
TEACHING EXPERIENCE Department of Political Science, Butler University Introduction to U.S. Politics, Research and Analysis, Party Polarization in American Politics, State and Local Government and Politics, Alexander Hamilton: An American Revolutionary, The Presidency and the Congress, U.S. Parties and Politics, U.S. Presidential Nominations
Department of Political Science, University of Arkansas at Little Rock American National Government, State and Local Government, American Political Parties, Presidential Nominations, and Internship Seminar
Department of Political Science, University of Notre Dame Party Polarization in American Politics (Graduate Instructor), American Politics (Teaching Assistant), American Political Parties (Teaching Assistant), Religion in American Politics (Teaching Assistant), and Party Polarization in American Politics (Teaching Assistant)
School of Social Service, St. Louis University Social Work Practice IV: Organizations and Communities (Assistant Adjunct Professor), Social Justice: Human Liberation and Community Building (Assistant Adjunct Professor), and Diversity & Anti-Oppression Practice (Teaching Assistant)
Brown School of Social Work, Washington University in St. Louis Foundations of Social Work Practice II: Organizations & Communities (Assistant Adjunct Professor)

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HONORS AND AWARDS Butler University Dean’s Award for Teaching, College of Liberal Arts and Sciences, Butler University, April 2019 Holcomb Award, Travel to Present Grant AY 2019-2020, Butler University, $864
Holcomb Award, Travel to Present Grant AY 2018-2019, Butler University, $1,000
Holcomb Award, Travel to Present Grant AY 2017-2018, Butler University, $1,000
Holcomb Award, Travel to Present Grant AY 2016-2017, Butler University, $780
University of Arkansas at Little Rock Best Faculty Paper, Arkansas Political Science Association 2016 Annual Meeting
Southern Political Science Association Artinian Travel Award, $250
Presidential Studies Faculty Research Grant, University of Arkansas at Little Rock, $880
University of Notre Dame State Politics and Policy Conference Student Travel Grant, $250
Outstanding Graduate Student Teacher, Kaneb Center for Teaching and Learning, 2012-2013
Graduate Student Professional Development Award, Institute for Scholarship in the Liberal Arts, Summer 2011
Joseph F. Downes Memorial Professional Development Award, Graduate School of the University of Notre Dame, Summer 2011
Outstanding Graduate Student Teaching Assistant, Kaneb Center for Teaching and Learning, 2010-2011
Rooney Center for the Study of American Democracy, 2011 ICPSR Summer Fellowship
Rooney Center for the Study of American Democracy, 2010 ICPSR Summer Fellowship
ADDITIONAL RESEARCH AND TEACHING TRAINING The 20th Century Presidency seminar, Council of Independent Colleges and The Gilder Lehrman Institute of American History, Summer 2017
Quality Matters Certification, American National Government online course offering, Fall 2015
Distinguished Teaching Fellow, Academy for Teaching and Learning Excellence, University of Arkansas at Little Rock, Fall 2014- Spring 2015
Service Learning Academy, University of Arkansas at Little Rock, Spring 2015

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SafeZone Training, University of Arkansas at Little Rock, Spring 2015
Research Assistant, Benjamin Radcliff, Ph.D., University of Notre Dame, Summer 2014
Advanced Teaching Scholar, Kaneb Center for Teaching and Learning, University of Notre Dame, Fall 2013
Striving for Teaching Excellence Certificate. Kaneb Center for Teaching and Learning, University of Notre Dame, Spring 2012
Inter-University Consortium for Political and Social Research, Summer Program in Quantitative Methods of Social Research, Course: Network Analysis: An Introduction, Summer 2011
Research Assistant, Debra Javeline, Ph.D., Collaboratory for Adaptation to Climate Change, University of Notre Dame, Spring 2011-Summer 2011
Inter-University Consortium for Political and Social Research, Summer Program in Quantitative Methods of Social Research, Courses: Regression Analysis II, Maximum Likelihood Estimation, and Math for Social Science II (matrix algebra and calculus), Summer 2010
UNIVERSITY AND DEPARTMENT SERVICE Butler University Faculty Sponsor, Dawgs Vote, 2019 – Present
Faculty Sponsor, Peace and Political Science Student Association, 2019 - Present
Member, President’s Faculty Advisory Committee, 2018-2019
Social World Area Coordinator, Core Curriculum, 2018 - 2019
Faculty Senator, College of Liberal Arts & Science, 2017 - 2019
Faculty Advisory Committee, Butler Advance, 2017 - 2018
University of Arkansas at Little Rock Search Committee for Comparative Politics Faculty, Department of Political Science, 2015
Summer Core Curriculum Planning Committee, College of Social Sciences and Communication, 2015
Master of Arts in Interdisciplinary Studies Assessment Committee, 2015-2016
Assessment Committee, College of Social Sciences and Communication, 2014-2016
Awards Committee (Chair), College of Social Sciences and Communication, 2014-2016

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Elections Committee, Department of Political Science, 2014
Student Evaluations Committee, Department of Political Science, 2014-2016
Faculty Sponsor, Young Democrats of UALR, 2014-2016
University of Notre Dame Student Representative, Search Committee for Tenure Track Methodology Position, Fall 2011
Vice President for Social Affairs, Political Science Graduate Student Organization, 2010 – 2011
First Year Student Representative. Political Science Graduate Student Organization, 2009 – 2010
PROFESSIONAL MEMBERSHIP AND SERVICE Reviewer, American Journal of Political Science, American Politics Research, Electoral Studies, Environmental Politics, Journal of Public Policy, Legislative Studies Quarterly, The Midsouth Political Science Review, Party Politics, Political Behavior, Political Research Quarterly, Publius: The Journal of Federalism, Social Indicators Research, The Social Science Journal, Social Science Research, State Politics and Policy Quarterly, World Development
American Political Science Association, Member, 2010 – Present
Midwest Political Science Association, Member, 2011 - Present
Southern Political Science Association, Member, 2014 – 2016
Arkansas Political Science Association, Member, 2014 – 2016
At Large Member of Executive Board, Arkansas Political Science Association, 2015 – 2016
Women’s Wage and Wealth Gap Advisory Panel, Indiana Institute for Working Families, Member, 2017
Status of Working Families in Indiana Advisory Panel, Indiana Institute for Working Families, Member, 2018
RELATED WORK EXPERIENCE Worked in Missouri politics from 2003 – 2009. More information available upon request
Updated 6/5/2020

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCREARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Come Now Plaintiffs and the putative class, by counsel, and hereby file their

Memorandum of Law in support of their motion for preliminary injunction. [Filing No. 13.]

1. INTRODUCTION

This is an action for declaratory and injunctive relief against Indiana election officials

who have failed to take necessary actions to protect Indiana voters. Due to this inaction, many

voters will have to make a choice between their personal safety and health, and exercising their

right to vote in the general election held on November 3, 2020. The individual Plaintiffs seek to

vote safely in the November general election, and to do so by casting an absentee ballot, by mail,

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in precisely the same manner in which these same election officials have allowed in the June 2, 2020 primary election. Defendants could again direct that Indiana absentee ballot statutes, specifically Ind. Code § 3-11-10-24(a)(3) and (4), be broadly construed such that a voter who rightly fears contracting the highly infectious Coronavirus and the disease it causes, COVID-19, is a voter confined to his residence because of an illness or one “with disabilities” within the meaning of subsections (3) and/or (4).
But Defendants, although having done so in substance by allowing all voters to vote by mail in the June 2, 2020, primary election, have thus far failed to do the same for the November general election, despite the fact that the overwhelming consensus of scientists and medical professionals is that this deadly and highly transmissible virus will continue to be in our midst, wreaking havoc on our population and economy this fall. Because of Defendants’ failure and/or refusal to act responsibly to protect Indiana voters’ health and constitutional voting rights under the Fourteenth and Twenty-Sixth Amendments, they have left Plaintiffs with no choice but to beseech the judiciary to protect their constitutional rights to life and liberty, and right to vote in a free society. II. STATEMENT OF FACTS
A. Plaintiffs Plaintiffs are twelve (12) registered Indiana voters who have not reached the age of 65 and who are not otherwise entitled to vote by mail because they do not now and are not expected on Election Day to satisfy any of the categories of voters established by I.C. § 3-11-10-24(a) and thus be “entitled to vote by mail.” [Filing No. 6, p. 6, ¶¶ 23, 24; Filing Nos. 13-1 – 13-12, ¶¶ 3, 4.1]
1 Each of the individual Plaintiffs have executed a declaration, which were filed as exhibits to the Motion for Preliminary Injunction as follows: Declaration of Barbara Tully [Filing No. 13-1]; Declaration of David Carter [Filing No. 13-2]; Declaration of Elizabeth Kmieciak [Filing No. 13-3]; Declaration of Janice Johnson [Filing No. 13-4]; Declaration of Marc Black [Filing No.
2

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Each has serious concerns about being left with no alternative but to show up in person in what are reasonably expected to be crowded public polling places this fall to exercise their right to vote in what many believe will be one of the most momentous elections in history. Some, such as Plaintiffs Barbara Tully, David Carter, Elizabeth Kmieciak, and Janice Johnson, although in good health, have rigorously followed the recommendations of public health officials to stay at home and practice social distancing. [Filing Nos. 13-1 – 13-4, ¶ 2.] Others, such as Plaintiff Marc Black, have compromised immune systems. [Filing No. 13-5, ¶ 2.] Others, such as Plaintiffs Katharine Black, Shelly Brown and Chaquitta McCreary, live with an immune- or physicallycompromised spouse or child and fear infecting their family member or, in the case of Plaintiff Dominic Tumminello, his children and parents. [Filing No. 13-6 – 13-9, ¶ 2.] Others, such as Plaintiff Rebecca Gaines, have had COVID-19 and recovered, but fear contracting it again, as there is no scientific evidence that having had and recovered from the virus assures future immunity. [Filing No. 13-10, ¶ 2.] Still others, such as Plaintiff Katherine Paolacci, work at a public institution regularly encountering members of high-risk populations and fears contracting the virus and transmitting it to them. [Filing No. 13-11, ¶ 2.] And one, Plaintiff David Slivka, is a respiratory therapist who has seen first-hand the effects of the virus, knows how easily it is transmitted, and is acutely aware of the dangers of coming into contact with others who may be infected. [Filing No. 13-12, ¶ 2.] Each Plaintiff wishes to vote by mail but under current Indiana law is not entitled to do so. [Filing Nos. 13-1 – 13-12, ¶¶ 3, 4.]
13-5]; Declaration of Katharine Black [Filing No. 13-6]; Declaration of Shelly Brown [Filing No. 13-7]; Declaration of Chaquitta McCreary [Filing No. 13-8]; Declaration of Dominic Tumminello [Filing No. 13-9]; Declaration of Rebecca Gaines [Filing No. 13-10]; Declaration of Katherine Paolacci [Filing No. 13-11]; and Declaration of David Slivka [Filing No. 13-12].
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B. Defendants Defendants Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary E. Klutz, are members of the Indiana Election Commission (“IEC”), which is charged with administering Indiana election laws. Ind. Code § 3-6-4.1-14 (a)(1). This includes adopting rules to "[g]overn the fair, legal, and orderly conduct of elections." Id. It also includes the power to adopt, by unanimous vote of its entire membership, temporary emergency rules "to implement a court order requiring [it]...to administer an election in a manner not authorized by this title," id. at -16, or in cases of a "natural disaster or other emergency." Id. at -17 (a). On March 25, 2020, the IEC suspended statutory restrictions on voting by mail by entering an emergency order that the words "voter with disabilities" in Ind. Code § 3-11-10-24(a)(4) shall be construed to include any "voter who is unable to complete their ballot because they are temporarily unable to physically touch or be in safe proximity to another person." IEC Order 2020-37, Section 9A. [Filing No. 6, p. 10, ¶ 44.] However, despite having met most recently on May 12, 2020, the IEC has failed to reach a bipartisan agreement to extend this interpretation for the November 3, 2020, general election. Defendant Lawson is the Indiana Secretary of State and in that capacity is the chief election official of the State. Ind. Code § 3-6-3.7-1. She is responsible for enforcing and implementing Indiana's election laws and her office routinely issues guidance to county election officials in each of Indiana's 92 counties on matters involving election administration. C. Coronavirus and COVID-19 Jeffrey G. Jones, M.D., M.P.H., states that the “vast majority of Hoosiers are vulnerable” to COVID-19, a potentially fatal respiratory disease, which is “readily spread from person to person.” [Declaration of Jeffery G. Jones, M.D., M.P.H. Filing No. 13-13, p. 9, ¶ 18.] COVID19 is “highly likely” to be with us in November 2020, and the majority of Hoosiers will still be likely to be vulnerable to the disease. [Id.] In order to minimize the risk of the transmission,
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people need to “spend the shortest amount of time in the best ventilated, least contaminated environment, where the fewest number of people are generating the fewest virus particles.” [Id., p. 4, ¶ 8.] People are anxious about contracting the disease, and due to these fears, may refrain from entering polling places, which are not assured of meeting the recommended ventilation standards. [Id., p. 9, ¶ 18.].]
Gregory Shufeldt, Ph.D., notes that Hoosiers who wish to vote in the November election are “likely to face unprecedented impediments to casting a vote in person due to the continued transmission of COVID-19.” [Declaration of Gregory Shufeldt, Ph.D., Filing No. 13-14, p. 11, ¶ 58.] Even under conservative estimates, there are least tens of thousands of Indiana voters who do not qualify under the current statutory entitlement to cast their vote by mail. [Id., p. 10, ¶¶ 5053.] Voters like Plaintiffs, who are not currently entitled to vote by mail, will have to choose between protecting their health and safety, and fulfilling their civic duty. [Id., p. 12, ¶ 58.] Medical experts, including Anthony S. Fauci, M.D., an immunologist who is head of the National Institute of Allergy and Infectious Diseases, has stated that “[w]e will have coronavirus in the fall. I am convinced because of the degree of transmissibility that it has, the global nature. What happens with that will depend on how we’re able to contain it when it occurs.” [Filing No. 6, p. ¶ 5.] Additional facts will be discussed below. III. PRELIMINARY INJUNCTION STANDARDS
“A preliminary injunction is an extraordinary equitable remedy that is available only when the movant shows clear need." Turnell v. Centimark Corp., 796 F.3d 656, 661 (7th Cir. 2015). "To survive the threshold phase, a party seeking a preliminary injunction must satisfy three requirements.” Valencia v. City of Springfield, Illinois, 883 F.3d 959, 966 (7th Cir. 2018); Planned Parenthood of Indiana, Inc. v. Commissioner, 699 F.3d 962, 972 (7th Cir. 2012). To obtain a
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preliminary injunction, a plaintiff must show (1) a reasonable likelihood of success on the merits, (2) the absence of an adequate remedy at law, and (3) a threat of irreparable harm without the injunction. If the plaintiff makes this showing, the court weighs two additional factors: (4) the balance of harms—harm to the plaintiff if the injunction is erroneously denied versus harm to the defendant if the injunction is erroneously granted—and (5) the effect of the injunction on the public interest. Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937 F.3d 973, 980 (7th Cir. 2019); Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir. 1992). The higher the likelihood of success on the merits, the less decisively the balance of harms needs to tilt in the moving party's favor. This is known as the “sliding scale” approach. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008); Abbott Laboratories, 971 F.2d at 12. A reasonable likelihood of succeeding on the merits means a “greater than negligible chance of winning.” AM Gen. Corp. v. Daimlerchrysler Corp., 311 F.3d 796, 804 (7th Cir. 2002); C.Y. Wholesale v. Holcomb, 2019 WL 74971350 (S.D. Ind. 2019).
Even a lesser likelihood of success, i.e., a “better than negligible” chance of winning, will suffice if the balance of harms tips heavily in plaintiffs’ favor. Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 897 (7th Cir. 2001). In performing this sliding-scale analysis, “the court bears in mind that the purpose of a preliminary injunction is ‘to minimize the hardship to the parties pending the ultimate resolution of the lawsuit.’” AM Gen. Corp, 311 F.3d at 804 (quoting Platinum Home Mortgage Corp. v. Platinum Financial Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998)).
A. Evidentiary Considerations in Preliminary Injunction Proceedings A court may grant a preliminary injunction based on less formal procedures and on less extensive evidence than required at a trial on the merits. For example, courts may rely on hearsay affidavits. Goodman v. Ill. Dept. Of Financial and Professional Regulation, 430 F.3d 432, 439 (7th Cir. 2005). In a proceeding for preliminary relief, such as a preliminary injunction, courts have
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discretion to consider hearsay and various other normally-inadmissible materials, documents and statements because the Federal Rules of Evidence apply differently in a proceeding on a motion for a preliminary relief. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395(1981) ("[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits"); Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir. 1997) (affidavit that would be inadmissible at trial could be considered in a summary proceeding such as a proceeding on a preliminary injunction motion); S.E.C. v. Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991) (inadmissible hearsay can likewise be considered on a preliminary injunction). This is the reason findings and conclusions made in resolving a preliminary injunction motion are not binding on the merits. Camenisch, 451 U.S. at 395. IV. ARGUMENT
A. Plaintiffs are likely to prevail on the merits. 1. Plaintiffs are likely to prevail on the merits of their Fourteenth Amendment challenge to Indiana’s mail voting statute as applied during the pandemic.
Plaintiffs’ Fourteenth Amendment equal protection claims are evaluated under the framework established by the Supreme Court in Burdick v. Takushi, 504 U.S. 428, 434 (1992), and Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983). “The Supreme Court in Anderson explicitly imported the analysis used in equal protection cases to evaluate voting rights challenges brought under the First Amendment, thus creating a single standard for evaluating challenges to voting restrictions.” Obama for America v. Husted, 697 F.3d 423, 430 (6th Cir. 2012) (citations omitted). Under the Anderson-Burdick test, the Court must first consider “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments the plaintiff seeks to vindicate.” Burdick, 504 U.S. at 434. The Court must then identify and evaluate the precise interests put forward as justifications for the burden imposed by the challenged election practice,
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rule, or structure. Id. Finally, it must determine the legitimacy and strength of each of those interests and the extent to which those interests make it necessary to burden the Plaintiffs’ rights. Id.
The Anderson-Burdick test is a flexible standard, grounded in the First and Fourteenth Amendments, that establishes the constitutional rules that apply to challenges to state election regulations. Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019). It replaces traditional equal protection analysis (tiers of scrutiny, suspect classifications, etc.), and depends on the severity of the burden imposed by the challenged election law. Burdick, 504 U.S. at 434; see Harlan v. Scholz, 866 F.3d 754, 759 (7th Cir. 2017). Where an election law imposes only “reasonable, nondiscriminatory restrictions upon the rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id. at 760. Laws that impose severe burdens on voters’ rights must be narrowly drawn to advance a compelling state interest. Id. Most cases, however, fall in between the two extremes, including cases such as this one where it is alleged that an election law has burdened voting rights selectively and non-uniformly. See, e.g., Common Cause of Indiana v. Marion Co. Elect. Bd., 311 F.Supp.2d 949, 968 (S.D. Ind. 2018). But even a nondiscriminatory law must be justified “by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford v. Marion Co. Election Board, 553 U.S. 181,191 (2008) (quoting Norman v. Reed, 502 U.S. 279, 288-89 (1992)).
Under Burdick’s “flexible standard” the Court compares the burden on voters with the governmental interest and the means it has chosen to advance that interest. Harlan, 866 F.3d at 760; see also Obama for America, 697 F.3d at 429. There is no “litmus test” to separate valid from invalid voting regulations, and courts must “make the ‘hard judgments’ that our adversary system demands.” Crawford, 553 U.S. at 190. The question whether an election law or practice places an unacceptable or discriminatory burden on voters is “not a factual finding, but a legal
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determination.” Harlan, 866 F.3d at 760 (quoting Ohio Democratic Party v. Husted, 834 F.3d 620, 628 (6th Cir. 2016)). The Anderson/Burdick flexible test applies to all Fourteenth Amendment challenges to state election laws in this Circuit. Acevedo, 925 F.3d at 948; see also Common Cause Indiana v. Indiana Election Commission, 800 F.3d 913 (7th Cir. 2015) (in balancing the asserted injury to the plaintiff with the interests of the State, "the Court must not only determine the legitimacy and strength of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights,” citing Anderson) (emphasis added)).
Plaintiffs do not claim that absentee voting is accorded full constitutional protection. They acknowledge that the State could likely eliminate all absentee voting if it wished. McDonald v. Bd. of Elect. Comm'rs, 394 U.S. 802, 810-11 (1969) (state restrictions on absentee voting as a general matter do not violate a fundamental constitutional right); Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004) (rejecting contention that the Fourteenth Amendment required Illinois to allow all registered voters a blanket right to vote by mail). But Indiana has chosen to grant an entitlement to certain voters to vote by mail. At present, Indiana, the nation, and indeed the entire world are in the grips of a global pandemic involving a highly transmissible virus which is expected by doctors, scientists, and epidemiologists to continue for many, many more months. This pandemic, as the U.S. Supreme Court recently emphasized, will continue to raise serious questions whether certain “modifications in election procedures in light of COVID–19 are appropriate.” Republican National Committee v. Democratic National Committee, ___U.S. ___, 206 L. Ed 2d 452 (April 6, 2020).
Count I of Plaintiffs’ Complaint raises an as-applied rather than a facial challenge to Indiana’s vote-by-mail statute, and it is against the backdrop of this global pandemic that Plaintiffs’ request for preliminary injunctive relief must be evaluated. COVID-19 is an abbreviation for the novel coronavirus disease of 2019, a respiratory illness that spreads easily
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and sustainably in the community through respiratory droplets produced when an infected person coughs or sneezes. See Centers for Disease Control and Prevention Coronavirus Disease 2019 Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019ncov/faq.html#How-COVID-19-Spreads (last visited April 11, 2020). The novel coronavirus of 2019 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. While it is thought that people are most contagious when symptoms are present, the virus has also been detected in asymptomatic persons. See id. The incubation period is believed to be up to fourteen days in duration. Id.
There is no vaccine to prevent COVID-19, nor is there antiviral medication that can definitively treat it. [Id., and see Filing No 13-13, pp. 6-7, ¶ 13.] According to the CDC, "[t]he best way to prevent illness is to avoid being exposed to the virus." Centers for Disease Control and Prevention Coronavirus Disease 2019 Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-ncov/faq.html#How-COVID-19-Spreads (last visited April 11, 2020. The CDC recommends, among other things, that people clean their hands often or use hand sanitizer when soap is unavailable, avoid close contact with other people (at least six feet in distance), and clean and disinfect frequently touched surfaces daily, such as tables, doorknobs, light switches, and countertops. Id. The CDC also recommends that if an individual becomes sick, he or she should isolate from others by staying in a specific sick room and using a separate bathroom if possible. Id.
While it has been accepted that older adults are the most vulnerable, a March 18, 2020 CDC report noted that 38% of the 508 hospitalized patients were younger — between 20 and 54 years of age. See Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) United States, February 12 - March 16, 2020 (Mar. 18, 2020);
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https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm. An April 8, 2020 CDC report on hospitalization rates among COVID-19 patients notes that out of the 1,482 hospital patients studied, 74.5% were aged 50 years or older and 54.4% were male. See Centers for Disease Control, Morbidity and Mortality Weekly Report (April 8, 2020), Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 COVID-NET, 14 States, March 1-30, 2020, https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6915e3-H.pdf.
The State of Indiana has long offered the option of voting by mail to voters to make voting available to those for whom in-person voting would otherwise be “difficult or impossible.” League of Woman Voters of Indiana v. Rokita, 929 N.E.2d 758, 768 (Ind. 2010). However, it has limited that entitlement to the categories of voters specified in I.C. § 3-11-10-24(a).2 The pandemic now makes the principal alternative to voting by mail -- in-person voting at public polling locations -- both dangerous and difficult for Plaintiffs and indeed for all Indiana voters who do not currently qualify under Indiana law to vote by mail.
By creating a statutory entitlement to vote by mail for some but not all Indiana voters, the equal protection guarantees of the Fourteenth Amendment are implicated. 3 Having granted some of its citizens a categorical entitlement to vote by mail, thus extending a voting privilege or convenience to some but not all voters, the State must administer that right evenhandedly in
2 I. C. § 3-11-10-24(a) “entitles” thirteen (13) specific categories of voters, including voters who are “elderly," have “disabilities,” or are scheduled to work during the entire twelve hours the polls are open, to vote by mail. 3 Defendants waived compliance with the challenged statute for Indiana’s primary election after postponing it From May 5 to June 2, 2020. However, Defendants have thus far shown no willingness to make a similar adjustment for the November 3, 2020, general election, when the virus will with a reasonable degree of scientific certainty still be ravaging the nation. [See, e.g., Filing No. 13-13, p. 9, ¶ 18.]
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order to comply with equal protection requirements. “Once a unit of government has decided to administer a benefit or impose a burden, it must do so rationally and equitably, without offense to independent constitutional prohibitions.” Common Cause of Indiana, 311 F.Supp.3d at 965; see also, Bush v. Gore, 531 U.S. 98, 104-05 (2000) (“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another”); Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”); Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966) (“once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause”); One Wisconsin Inst., Inc. v. Thomsen, 198 F.Supp.3d 896, 933 (W.D. Wis. 2016) (rejecting argument that challenge to in-person absentee voting provisions did not implicate fundamental constitutional rights); Martin v. Kemp, 341 F.Supp.3d 1326, 1338 (N.D. Ga. 2018); Saucedo v. Gardner, 335 F.Supp.3d 202 (D.N.H. 2018) (holding that the privilege of voting by mail is deserving of constitutional protections); Zessar v. Helander, 2006 WL 642646, at *6 (N.D. Ill. 2006) rev’d on other grounds 536 F.3d 788 (7th Cir. 2008); Doe v. Walker, 746 F.Supp.2d 667, 681 (D. Md. 2010) (“where a state has authorized the use of absentee ballots, any restriction it imposes on the use of those absentee ballots which has the effect of severely burdening a group of voters must be narrowly tailored to further a compelling state interest.”); and Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F.Supp. 1354, 1358 (D. Ariz. 1990) (absentee voting is subject to constitutional protections afforded by the Fourteenth Amendment).
To demonstrate a likelihood of success on the merits, it is not necessary for Plaintiffs to show that the challenged vote-by-mail structure absolutely prohibits certain voters from voting, only that Plaintiffs’ ability to cast a ballot is impeded by the challenged practice or structure. Just six years after deciding McDonald, the Supreme Court limited McDonald’s holding to its facts,
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noting that “there was nothing in the record to indicate that the challenged Illinois statute had any impact on the appellants’ exercise of their right to vote.” Hill v. Stone, 429 U.S. 289, 300 n. 9 (1975); see also O’Brien v. Skinner, 409 U.S. 1240, 1241 (1972) (Marshall, J., in chambers) (the absence of proof precluded the McDonald plaintiffs from showing that the denial of absentee ballots was tantamount to a total deprivation of the franchise); and Goosby v. Osser, 409 U.S. 512, 520-22 (1973) (observing that in McDonald Court itself suggested a different result had plaintiffs shown that the lack of absentee voting had effectively precluded them from voting). The courts of appeal have also observed that McDonald was decided before the Supreme Court announced the Anderson/Burdick/Crawford flexible burden-shifting approach in lieu of the traditional three-tiered levels of review applied in ordinary equal protection cases. Price v. New York St. Bd. of Elections, 540 F.3d 101, 109 & n 9 (2nd Cir. 2008); see also, Obama for America, 697 F.3d at 430-31 (distinguishing McDonald and using Burdick balancing because plaintiffs had demonstrated the challenged Ohio law eliminating three days of early voting placed a burden on the right to vote that would preclude a significant number of voters from voting); and Ohio St. Conf. NAACP v. Husted, 768 F.3d 524, 541 (6th Cir. 2014), vacated on other grounds 2014 WL 10384647 (6th Cir. 2014) (holding that McDonald does not require proof that the challenged law absolutely precluded plaintiffs from voting, only that it would “impede” the exercise of the rights of a significant number of voters to exercise their franchise). The coronavirus pandemic is likely to impede in-person voting through the November 3, 2020, general election. [Filing No. 13-13, p. 9, ¶ 18; Filing No. 13-14, pp. 1112, ¶ 58.]
The impact of the ongoing pandemic upon the Anderson/Burdick/Crawford balancing test applicable to a challenge to state election law governing mail ballots was recently discussed in League of Woman Voters of Va. v. Va. St. Bd. of Elections, Cause No. 6:20-cv-0024 (E.D. Va. May 5, 2020). There the court (slip op. at 16), in approving a partial settlement agreement making
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changes to certain provisions of Virginia’s absentee balloting laws, stated that in “ordinary times, Virginia’s witness signature requirement may not be a significant burden on the right to vote.” However, at a time when all Americans have been instructed to practice social distancing due to the deadly and highly transmissible coronavirus, the signature requirement “will force a large class of Virginians to face the choice between adhering to guidance that is meant to protect not only their own health, but the health of those around them, and undertaking their fundamental right—and, indeed, their civic duty—to vote in an election. The Constitution does not permit a state to force such a choice on its electorate,” citing Harper, 383 U.S. at 670 (emphasis added). For other examples of court’s taking into account the special circumstances of the COVID-19 pandemic in the election law context, see Democratic Nat’l Comm. v. Bostelmann, 2020 U.S. Dist. LEXIS 57918 at **12-13 (W.D. Wis. 2020); and Garbett v. Herbert, 2020 U.S. Dist. LEXIS 75853 (D. Utah 2020) (each granting preliminary injunctions after applying Anderson/Burdick balancing); see also, Paher v. Cegavske, 2020 U.S. Dist. LEXIS 76597 (D. Nev. 4/30/20) (rejecting request for preliminary injunction by plaintiffs opposing Nevada secretary of state’s plan to implement an all-mail election to combat the spread of COVID-19, holding that the secretary’s interests in protecting the health and safety of Nevada's voters and safeguarding the voting franchise in light of the COVID-19 pandemic far outweighed any burden on plaintiffs' right to vote, particularly one premised on a wholly speculative claim of voter fraud resulting in dilution of votes).
Only a state election law or structure that does not burden (or accord special voting privileges to) similarly situated voters is entitled to the lowest tier of constitutional review, i.e., rational basis. Harlan, 866 F.3d at 760. However, an election law that restricts the rights of some voters but not others similarly situated, or which “dole[s] out special voting privileges” is subject to heightened judicial scrutiny and must be justified by “precise” governmental interests that are “sufficiently weighty.” Crawford, 553 U.S. at 190-91; Obama for America, 697 F.3d at 435-36 (Ohio
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limitation on early in person absentee voting on all non-military voters held to violate equal protection, noting the lack of any relevant distinction between military and non-military voters). There is similarly no relevant distinction during this pandemic between Indiana voters who, by operation of I.C. § 3-11-10-24(a), are entitled to vote by mail, and those such as Plaintiffs who are not. All voters, regardless of age or station, but particularly those with compromised immune systems, pre-existing health conditions, or physically-compromised family members with whom they are in regular contact will find in-person voting during this pandemic just as dangerous and difficult, if not impossible, without unnecessarily putting their health and even their lives at risk.4
Defendants’ failure to suspend the limitations on mail balloting and extend the operation of the vote-by-mail statute to all voters for the November 3, 2020, general election, as they previously did with respect to the delayed June 2, 2020 primary election, will impede and abridge the exercise of a voting right by granting to some Indiana voters, but not to Plaintiffs and others similarly situated, the right to vote by mail, even though the pandemic makes voting in person at typically crowded public polling places potentially life-threatening. These impediments impose more than a slight burden on the right to vote. Thus, Defendants should be required to put forth the “precise interests” in justification of their failure and/or refusal to extend no-excuse mail voting to all voting for the November 3, 2020, general election. Crawford, 553 U.S. at 203 (quoting Burdick, 504 U.S. at 434). This Court must not only determine the legitimacy and strength of each interest the Defendants put forth for their failure to act, Anderson, 460 U.S. at
4 As many as 40 Wisconsin voters and election workers who were recently required to choose between voting and their health were later found to have contracted the virus through activities relating to the April 7 election. https://talkingpointsmemo.com/news/wisconsin-covid-40election (last visited April 27, 2020); https://www.wuwm.com/post/40-coronavirus-casesmilwaukee-county-linked-wisconsin-election-health-official-says#stream/0 (last visited April 27, 2020).
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789, it must also "consider ‘'the extent to which those interests make it necessary to burden [Plaintiffs'] rights.'" Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789); see also, Obama for America, 697 F.3d at 430 (when a state regulation is found to treat voters differently in a way that burdens the fundamental right to vote, the Anderson-Burdick standard applies); and One Wisconsin Inst., Inc., 198 F.Supp.3d at 931-35.
Defendants cannot put forth precise interests that are sufficiently weighty to justify the burden imposed on Plaintiffs’ voting rights by withholding from them during the pandemic an entitlement extended to other voters, Crawford, 553 U.S. at 190-91; an entitlement they willingly extended to all voters for the primary election but not for the general election. On April 16, 2020, during a press conference, both Defendant Lawson and Gov. Eric Holcomb rejected allegations that voting by mail is ripe for fraud. "We've long been voting by mail. I have a high level of confidence in the integrity of our election process," Holcomb said. "We'll have a safe and secure election." https://www.nwitimes.com/news/local/govt-and-politics/indiana-primaryelection-to-feature-mail-in-and-in-person-voting/article_fce4d801-a81e-567a-8f7546cf7db1fd28.html
2. Plaintiffs are also likely to succeed on the merits of their facial TwentySixth Amendment challenge to Indiana’s mail voting statute.
Plaintiffs contend in Count II of the Amended Complaint that Ind. Code § 3-11-10-24(a) on its face also violates the Twenty-Sixth Amendment to the United State Constitution. That amendment provides that “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any state on account of age.” [Filing No. 6, pp. 18-20.] The amendment protects all citizens over the age of 18 (not just those ages 18, 19, and 20) from denial or abridgement of the right to vote on account of their age. Indiana could not explicitly entitle only white voters to vote by mail without facially
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violating the Fifteenth Amendment’s prohibition of denial or abridgement of the right to vote “on account of race.” It could not expressly entitle only women voters to vote by mail without facially violating the Nineteenth Amendment’s prohibition of denial or abridgement of the right to vote “on account of sex.” For the same reasons, Indiana may not entitle only “elderly” voters (defined by I.C. § 3-5-2-16.5 as voters age 65 and over), without facially violating the TwentySixth Amendment’s prohibition of denial or abridgement of the right to vote of voters age 18 and older “on account of age.”
The right to vote is foundational in our democratic system, Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626 (1969); Harper, 383 U.S. at 667; Reynolds v. Sims, 377 U.S. 533, 555 (1964); thus, any suggestion that the Twenty-Sixth Amendment should be read narrowly must be viewed with skepticism. Because protecting the franchise is "preservative of all rights," and the opportunity to participate in the formation of government policies defines and enforces all other entitlements, Yick Wo v. Hopkins, 118 U.S. 356, 370(1886), constitutional amendments that protect the right to vote, such as the Fifteenth, Nineteenth and Twenty-Sixth, must be read literally to strike down state enactments that on their face discriminate on account of race, sex, or age. The text of the Twenty-Sixth Amendment states broadly that the right "to vote" shall not be abridged or denied; it does not qualify or restrict the meaning of "vote" in any way.
Nor does the text of the Twenty-Sixth Amendment particularize its protections for a specific group of voters by age, such as youth, students, or military personnel; instead it simply provides broad and unqualified protections from age-based denial or abridgement of the right to vote for all citizens over the age of eighteen. Thus, the Twenty-Sixth Amendment’s protections on their face do not only apply to the newly-enfranchised class of voters between the ages of 18– 21. The textual similarities between the Twenty-Sixth Amendment and the Fifteenth and Nineteenth Amendments is instructive. For example, while the Nineteenth Amendment was born
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out of the suffragist movement, it is not so narrow as to confer the franchise only upon women, but broadly prohibits denial or abridgement of the right to vote “on account of sex,” just as the Twenty-Sixth Amendment prohibits the denial or abridgement5 of the right to vote of all citizens “on account of age.”
Though the Twenty-Sixth Amendment bears many textual similarities to the Fifteenth and Nineteenth Amendments, there is a paucity of case law regarding the standard to be used in deciding Twenty-Sixth Amendment claims. Nashville Student Org. Comm. v. Hargett, 155 F.Supp.3d 749, 757 (M.D. Tenn. 2015); One Wisconsin Inst., Inc., 198 F.Supp.3d at 925-26 (acknowledging the lack of clarity on what standard of review to apply but applying a Fifteenth Amendment intentional discrimination analysis to Twenty-Sixth Amendment claims due to the textual similarities of the amendments, and suggesting that doing so provides added protection to younger voters compared to a Fourteenth Amendment undue burden analysis); N.C. State Conference of the NAACP v. McCrory, 182 F.Supp.3d 320, 522 (M.D.N.C. 2016) rev’d on other grounds, 831 F.3d 204 (4th Cir. 2016) (expressing doubt that Fifteenth Amendment principles regarding intentional discrimination are applicable to the Twenty-Sixth Amendment, but doing so anyway based on the plaintiffs’ theories of the case); and Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016) (same).
One recent decision, League of Woman Voters of Fla. v. Detzner, 314 F.Supp.3d 1205, 1221 (N.D. Fla. 2018), despite this uncertainty notes that an “emerging consensus” points to the application of the intentional discrimination standard of Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 US. 252 (1977), as the “appropriate framework” because applying Anderson/Burdick
5 The core meaning of “abridge” is “shorten,” and it necessitates a comparison. Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 333-34 (2000) (citing Webster's New International Dictionary 7 (2d ed. 1950); American Heritage Dictionary 6 (3d ed. 1992)).
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“contributes no added protection to that already offered by the Fourteenth Amendment,” (quoting One Wisconsin Inst., Inc., 198 F.Supp.3d at 926). In Detzner a statute allowed for the placement of early voting sites in various locations, including convention centers and community centers. However, the defendant secretary of state interpreted the statute to categorically exclude facilities related to colleges and universities, even those akin to convention centers and community centers. Detzner thus involved a facially discriminatory law where a protected group was overtly and categorically singled out. And where a law discriminates categorically and facially, proof of discriminatory animus is not required. See, e.g., Int’l Union, United Auto. Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (a plaintiff need not prove discriminatory animus to make out a case of intentional discrimination where the prohibited discrimination is facial); Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995) (a plaintiff makes out a prima facie case of intentional discrimination merely by showing that a protected group has been subjected to explicitly differential treatment). Similarly, voting qualifications that, by their very terms, draw distinctions based on prohibited characteristics are prohibited by both the Fourteenth, Nixon v. Herndon, 273 U.S. 536, 541 (1927), and Fifteenth Amendments. South Carolina v. Katzenbach, 383 U.S. 301, 325 (1966). A law that is discriminatory “on its face is subject to strict scrutiny regardless of the government’s benign motive.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228 (2015); see also Lynch v. Donnelly, 465 U.S. 668, 687 n.13 (1984) (the Supreme Court “require[s] strict scrutiny of a statute or practice patently discriminatory on its face”); Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (explicit “racial classifications imposed by government must be analyzed by a reviewing court under strict scrutiny”) (quotation marks omitted).
Just as Indiana could not explicitly entitle only white voters to vote by mail without violating the Fifteenth Amendment, or expressly entitle only women voters to vote by mail
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without violating the Nineteenth Amendment, neither may it entitle only “elderly” voters to vote by mail without facially violating the Twenty-Sixth Amendment. Because the challenged Indiana statute on its face discriminates “on account of age” by conferring a categorical entitlement to vote by mail on those ages 65 and over but not voters under the age of 65, it violates the TwentySixth Amendment’s prohibition against the denial or abridgement of the right to vote on account of age.6
For the foregoing reasons, Plaintiffs are likely to prevail on the merits of their federal claims.
B. Plaintiffs have no adequate legal remedy. An injury is irreparable only if it cannot be undone through monetary remedies. The denial or abridgement of the right to vote is without redress; there is simply no way to recompense violations of this fundamental right after the fact. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014); accord Obama for America., 697 F.3d at 436; see also Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986); Dillard v. Crenshaw Cty., 640 F.Supp. 1347, 1363 (M.D. Ala. 1986) (an infringement of the right to vote cannot be remedied through monetary damages). No such damages remedy is sought or possible here, and if Plaintiffs are denied the right to safely vote by mail in the November 3, 2020, general election, they will have lost that right forever without legal recourse.
6 Regardless of the constitutional grounds on which the Court decides to declare the challenged vote by mail statutes unlawful, the Court should order Defendants to extend the entitlement to vote by mail to all qualified voters for the 2020 general election and beyond, rather than withdrawing the benefits of voting by mail from the already-entitled categories of voters, which is the preferred rule in the typical case. Sessions v. Morales-Santana, 198 L. Ed 2d 150, 175 (2017); Heckler v. Mathews, 465 U.S. 728, 740 (1984); Califano v. Westcott, 443 U.S. 76, 89-90 (1979).
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C. Plaintiffs will suffer irreparable harm to their right to equally participate in the electoral system.
Having demonstrated a strong likelihood of success on the merits of their federal constitutional claims and the lack of an adequate legal remedy, Plaintiffs must next demonstrate irreparable harm. For some kinds of constitutional violations, irreparable harm is presumed. Ezell v. City of Chicago, 651 F.3d 684, 699 (7th Cir. 2011). This presumption applies with equal protection violations. Baskin v. Bogan, 983 F.Supp.2d 1021, 1028 (S.D. Ind. 2014), aff’d F.3d 766 F.3d 648 (7th Cir. 2014), cert. denied 135 S. Ct. 316 (2014). It is well established that “[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Campbell v. Miller, 373 F.3d 834, 840 (7th Cir. 2004) (internal quotation marks and citation omitted); Planned Parenthood of IN & KY v. Comm’r IN Dept. of Health, 258 F.Supp.3d 929, 954-55 (S,D. Ind. 2017); Mich. State A. Philip Randolph Instit. v. Johnson, 833 F.3d 656, 669 (6th Cir. 2016) (“A restriction on the fundamental right to vote therefore constitutes irreparable injury.”); Montano v. Suffolk Cty. Legislature, 268 F.Supp.2d 243, 260 (E.D.N.Y. 2003) (“An abridgement or dilution of the right to vote constitutes irreparable harm”).
But even were this Court to conclude that Plaintiffs have not suffered a constitutional injury from which irreparable harm may be inferred, the Court is required to consider the irreparable harm issue in the context of the coronavirus pandemic, supra, at Sec. IV(A)(1), pp. 910. The harm they fear if they are required to vote in person at a public polling location is anything but speculative in the present and future circumstances.
A remedy for unsafe, life-threatening conditions “need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Forcing voters to choose between exercising the most precious right in a democracy and exposure to a highly transmissible virus that poses a real and immediate threat of serious health consequences or even death is not a choice the Constitution permits. and
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is more than adequate to establish irreparable harm required for preliminary injunctive relief. Irreparable harm exists where the parties seeking a preliminary injunction "face imminent risk to their health, safety, and lives."7 Coronel v. Decker, 2020 U.S. Dist. LEXIS 53954 *7 (S.D. N.Y. 2020) (citing Henrietta D. v. Giuliani, 119 F.Supp.2d 181, 214 (E.D.N.Y. 2000), aff'd sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003)), holding that due to their serious underlying medical conditions, civil immigration detainees faced a risk of severe, irreparable harm of contracting COVID-19.
If prison and immigration authorities may not constitutionally ignore a condition of confinement that is likely to cause serious illness and needless suffering weeks or months or even a year later, the Fourteenth Amendment must be deemed to impose a similar duty on election officials to offer an alternative to voters exposing themselves to a highly transmissible infectious disease at a public polling location, even though not all voters who vote in-person may become ill. Plaintiffs’ burden does not require them to show that they inevitably will be infected by the virus if they are required to vote in person, only that the dangerous conditions and the possibility of harm they will face if required to vote in person are real and likely to persist through the general election. See Hutto v. Finney, 437 U.S. 678, 682 (1978) (noting that even though it was not alleged that the likely harm would occur immediately and although the possible infection might not affect all those exposed, a prison inmate was not required to wait for an attack of dysentery before seeking equitable relief against exposure to unsafe conditions).
7 In Helling, the health risk was to environmental tobacco smoke. Recently, federal courts have rejected the government’s claims that the risk of infection by the coronavirus is too speculative to meet the irreparable harm requirement for injunctive relief. See, e.g., Cristian A.R. v. Decker, 2020 U.S. Dist. LEXIS 66658 (D.N.J. April 12, 2020); Fofana v. Albence, 2020 U.S. Dist. LEXIS 65941 (E.D. Mich. April 15, 2020).
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This Court should reject any argument that the risk of harm to these Plaintiffs during this pandemic is either too remote or speculative to establish the requisite irreparable harm to their fundamental right to vote.
D. The balance of harms favors the issuance of injunctive relief. While the harm to Plaintiffs from the denial of an injunction is concrete, substantial, and irreparable, the harm to the Defendants, if any, by granting an injunction is not. As previously noted, the Defendants have already waived the excuse requirement for the primary election in the face of the pandemic. They are, therefore, hard-pressed to claim that not doing so for the general election will cause them greater harm than the harm denying injunctive relief would cause to the Plaintiffs. Moreover, a mandatory preliminary injunction is appropriate where the harm is substantial and maintaining the status quo would mean further harm and possibly make a final determination on the merits futile. Ferry-Morse Seed. Co. v. Food Corp., Inc. 729 F.2d 589, 593 (8th Cir. 1984) (citing cases). There is precious little time left between now and the general election, and election officials need to know at the earliest possible time what the rules will be, so they may prepare, order adequate supplies from vendors, and implement broader no-excuse absentee voting by mail. Lastly, although the Seventh Circuit has “warned . . . against federal judicial micromanagement of state regulation of elections,” Stevo v. Keith, 546 F.3d 405, 409 (7th Cir. 2008) (citing Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 954 (7th Cir. 2007)), it has also made clear that a district court has broad equitable authority to fashion appropriate relief when a state election law violates the Constitution: [T]he district court has the power to order the state to take steps to bring its election procedures into compliance with rights guaranteed by the federal Constitution, even if the order requires the state to disregard provisions of state law that otherwise might ordinarily
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apply to cause delay or prevent action entirely. . . . To the extent that Illinois law makes compliance with a provision of the federal Constitution difficult or impossible, it is Illinois law that must yield. Judge v. Quinn, 624 F.3d 352, 355-56 (7th Cir. 2010). E. The public interest will be served by the entry of a preliminary
injunction granting the right to vote by mail to all qualified voters. Finally, the public interest is served by a preliminary injunction mandating that Defendants extend the right to vote by mail to Plaintiffs and all qualified voters to the November 3, 2020, general election. The public has a strong interest in preventing the rapid spread of COVID-19, whether in prisons, immigration detention facilities, or public polling sites, so as to avoid placing further strain on an already taxed healthcare system. Thakker v. Doll, 2020 U.S. Dist. LEXIS 59459, at *27 (M.D. Pa. 2020) ("Efforts to stop the spread of COVID-19 and promote public health are clearly in the public's best interest."); Coronel v. Decker, 2020 U.S. Dist. LEXIS 53954 (S.D. N.Y. 2020). Moreover, injunctions protecting constitutional freedoms are always in the public interest, Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006), and “the public has a strong interest in exercising the fundamental political right to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Because Plaintiff’s proposed preliminary injunction would “eliminate[ ] a risk of individual disenfranchisement without creating any new substantial threats to the integrity of the election process,” it is in the public interest and the Court should grant it. U.S. Student Assoc. Found v. Land, 546 F.3d 373, 388-89 (6th Cir. 2008). Lastly, it is important for this Court to make a decision about absentee voting for the November general election. Delay may mean supplies become scarce to accommodate unprecedented increases in mail voting, thus forcing voters to show up in person and risk their health and even their lives, or not vote at all.
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(https://www.npr.org/2020/05/03/848347895/ballot-printers-increase-capacity-to-preparefor-mail-voting-surge
F. The Injunction Should be Issued Without Bond. Finally, Rule 65(c) of the Federal Rules of Civil Procedure states that no preliminary injunction should issue except until security is given in an amount deemed proper by the Court. However, the amount of security, and whether it should be required at all, rests in the sound discretion of the trial court. Sherr v. Volpe, 466 F.2d 1027, 1035 (7th Cir. 1972). Thus, despite the language of the federal rule, appropriate circumstances excuse the issuance of a preliminary injunction without a bond. See, e.g., Wayne Chemical, Inc. v. Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977). In determining whether a bond should be required, courts look to the possible loss to the enjoined party; the hardship a bond would impose on the applicant; and the impact of a bond on the enforcement of federal rights. See Smith v. Bd. of Election Comm’rs for the City of Chicago, 591 F.Supp.70, 72 (N.D. Ill. 1984) (citing Crowley v. Local No. 82, 679 F.3d 978, 1000 (1st Cir. 1982). Plaintiffs challenge an Indiana law which they assert violates the Equal Protection Clause of the Fourteenth Amendment during the pandemic, because it discriminates by entitling some but not all voters to vote by mail, when social distancing is being practiced in order to slow the transmission of this deadly and highly-infectious virus. By permitting more voters to vote by mail and to eschew in-person voting, the injunction Plaintiffs seek would benefit both public health and participation rates in the civic duty of voting. To require a bond in this case would condition the exercise of plaintiff’s right to vote safely during this national health emergency. Courts have regularly dispensed with the bond requirement under similar circumstances. See Common Cause IN v. Lawson, 327 F.Supp.3d 1139, 1156 (S.D. Ind. 2018) (no bond required where issuance of a preliminary injunction will not impose any monetary injuries on defendants). Here, even though
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there may be some costs, permitting more voters to vote by mail will save money because paper-
based voting is less expensive than the use of machines, and will, additionally, provide a paper
trail in the majority of Indiana counties that use paperless voting machines, enhancing public
confidence in the accuracy of the count. [Filing No. 13-14, pp. 7-8, ¶¶ 35, 36; see also, Bontrager v.
Indiana FSSA, 829 F.Supp.2d 688, 705 (N.D. Ind. 2011); K.G. ex rel. Garrido v. Dudek, 839
F.Supp.2d 1106, 1123 (N.D. Cal. 2009).] No bond should be required here.
V. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their request
for a preliminary injunction, enjoin Defendants from enforcing the requirements of I.C. § 3-11-10-
24(a) in connection with the November 3, 2020, general election, and order that Defendants
instruct all county election boards that all voters must be allowed to apply for and receive an
absentee ballot without regard to their age and without excuse, and be permitted to vote by mail,
in the November 3, 2020, general election.
Respectfully submitted,
s/ William R. Groth William R. Groth MACEY SWANSON LLP 445 N. Pennsylvania St., Suite 401 Indianapolis, IN 46204 Tel: (317) 637-2345, Ext. 132 E-mail: WGroth@fdgtlaborlaw.com
s/ Mark W. Sniderman Mark W. Sniderman FINDLING PARK CONYERS WOODY & SNIDERMAN, P.C. 151 N. Delaware Street, Ste. 1520 Indianapolis, IN 46204 Tel: (317) 231-1100 E-mail: msniderman@findlingpark.com
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 Case 1:20-cv-01271-JPH-DLP Document 17 Filed 06/16/20 Page 1 of 4 PageID #: 198

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCREARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

MOTION FOR CLASS CERTIFICATION

Come Now Plaintiffs and the putative class, by counsel, and pursuant to Rule 23 of the

Federal Rules of Civil Procedure, respectfully move the Court certify this case as a class action,

appoint the named individual Plaintiffs as class representatives, and appoint undersigned counsel as

class counsel. In support thereof, Plaintiffs state as follows:

1. Plaintiffs have brought this action for declaratory and injunctive relief against Indiana

election officials who have failed to take necessary actions to protect Indiana voters against having to

make a choice between their personal safety and exercising their right to vote on November 3, 2020.

2. The individual Plaintiffs seek to vote safely in the November 2020 general election by

casting an absentee ballot, by mail, in precisely the same manner in which they were allowed to vote

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in the June 2020 primary election. The Indiana law that allows certain voters to vote by mail, but denies the same privilege to Plaintiffs, arbitrarily discriminates between categories of qualified voters; denies Plaintiffs any reasonable alternative means of voting that does not endanger their own or others' health, safety, and lives; and violates the Fourteenth Amendment to the United States Constitution, the Twenty-Sixth Amendment to the United States Constitution, and the Equal Privileges and Immunities Clause of the Indiana Constitution.
3. The named Plaintiffs bring this action on their own behalf and on behalf of a class of persons similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
4. The proposed class is defined as follows: All people who are or may subsequently become qualified to vote in the November 3, 2020, general election in Indiana, and who are not entitled to vote by mail because they do not satisfy any of the criteria of Ind. Code § 3-11-10-24(a)(1) - (13).
5. As defined, the Class is so numerous that the joinder of all members is impracticable. 6. There are questions of law and fact common to the class, specifically:
a. whether a voter is entitled to vote in the 2020 general election; b. whether a voter is entitled to vote absentee by mail in the 2020 general election; c. whether voters are in danger of contracting or spreading the Coronavirus by
the act of in-person voting; d. whether Coronavirus will still be spreading in the fall of 2020; and e. whether Indiana law and Defendants’ actions or omissions violate the
Fourteenth Amendment, the Twenty-Sixth Amendment, or the Indiana Constitution. 7. The claims of the individual Plaintiffs are typical of those of the class. 8. The individual Plaintiffs will fairly and adequately represent the class.
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9. Undersigned counsel are skilled and experienced, know the applicable law, and will vigorously represent the interests of the class, and should therefore be appointed as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.
10. The additional requirements of Rule 23(b)(2) are met because the parties opposing class certification have at all times acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole.
11. Members of the proposed class are ascertainable by reference to wholly objective criteria.
12. Plaintiffs attach to this Motion the following exhibits, which are incorporated herein by reference:
- Exh. 1: Declaration of William R. Groth (Filing No. 17-1) - Exh. 2: Declaration of Mark W. Sniderman (Filing No. 17-2) 13. The grounds for this Motion are more fully set forth in the accompanying memorandum of law, which is also incorporated herein by reference. WHEREFORE, Plaintiffs pray that this cause be certified as a class action with the Class as defined above; that the named Plaintiffs be appointed as class representatives; that undersigned counsel be appointed as class counsel; and for all other proper relief.
Respectfully submitted,
s/ William R. Groth William R. Groth MACEY SWANSON LLP 445 N. Pennsylvania St., Suite 401 Indianapolis, IN 46204 Tel: (317) 637-2345, Ext. 132 E-mail: WGroth@fdgtlaborlaw.com
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s/ Mark W. Sniderman Mark W. Sniderman FINDLING PARK CONYERS WOODY & SNIDERMAN, P.C. 151 N. Delaware Street, Ste. 1520 Indianapolis, IN 46204 Tel: (317) 231-1100 E-mail: msniderman@findlingpark.com Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, MARC BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCREARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated,
Plaintiffs,
-vs-
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) )

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Come Now Plaintiffs and the putative class, by counsel, and hereby file their

Memorandum of Law in support of their motion for class certification. [Filing No. 17.]

I. INTRODUCTION

Plaintiffs are Indiana residents eligible to vote in the 2020 general election: they want to

exercise their constitutional right, and civic duty, to vote, but to not get sick or die, or infect

others as a result of doing so. Plaintiffs submit this memorandum in support of their motion to

certify a class under Federal Rule of Civil Procedure 23(b)(2). Plaintiffs seek declaratory and

injunctive relief on behalf of the proposed class under Rule 23(b)(2) to remedy the violations of

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their rights they hold under the Fourteenth and Twenty-Sixth Amendments to the United States Constitution, and the Indiana Constitution. Plaintiffs seek damages neither for themselves, nor for members of the class. Rule 23(b)(2) certification is appropriate because Plaintiffs seek only injunctive and declaratory relief on behalf of a class of individuals with respect to a general course of conduct: Defendants’ maintenance of unlawful policies or practices for voting in the time of a pandemic. This action, like many civil rights actions challenging courses of conduct by state officials, is especially appropriate for Rule 23(b)(2) treatment because of the potential for common resolution.
Thus, the Court should grant Plaintiffs’ motion for class certification. II. BACKGROUND
A. Indiana Law Indiana law entitles some, but not all, registered voters to vote by mail. Ind. Code § 3-1110-24(a) describes thirteen (13) categories of voters who are "entitled" to vote by mail. One of those categories is a "voter with disabilities." Id. at (a)(4). Another is a voter confined on election day to their residence "because of an illness or injury..." Id. at (a)(3). Those statutes do not define what constitutes "confined on election day to the voter's residence because of an illness or injury," or "voter with disabilities." On March 25, 2020, the members of the Indiana Election Commission members (“IEC”), suspended statutory restrictions on voting by mail. They did so by ruling that the words "voter with disabilities" in Ind. Code § 3-11-10-24(a)(4) shall be construed to include any "voter who is unable to complete their ballot because they are temporarily unable to physically touch or be in safe proximity to another person." IEC Order 2020-37, Section 9A, https://www.in.gov/sos/elections/files/Indiana%20Election%20Commission%20Order%2020 20-37.pdf, last visited April 20, 2020.
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The IEC has not approved an order that would apply the foregoing definition to voters who vote in the November 3, 2020, general election; and the IEC's willingness to suspend restrictions on mail voting is highly uncertain, particularly in light of Secretary Lawson's April 16, 2020 letter to the U.S. Election Assistance Commission in which she requests $8 million for personal protective equipment and sanitation supplies for in-person early and in-person Election Day voting on November 3 and her declaration that Indiana is “not a vote by mail state” even though Indiana has used mail absentee voting for decades. https://www.eac.gov/sites/default/files/paymentgrants/cares/IN_CARES_Disbursement_Req uestLetter.pdf (last visited June 15, 2020).
B. The Coronavirus Pandemic Jeffrey G. Jones, M.D., M.P.H., states that the “vast majority of Hoosiers are vulnerable” to COVID-19, a potentially fatal respiratory disease, which is “readily spread from person to person.” [Declaration of Jeffery G. Jones, M.D., M.P.H., Filing No. 13-13, p. 9, ¶ 18.] COVID19 is “highly likely” to be with us in November 2020, and the majority of Hoosiers will still be likely to be vulnerable to the disease. [Id.] In order to minimize the risk of the transmission, people need to “spend the shortest amount of time in the best ventilated, least contaminated environment, where the fewest number of people are generating the fewest virus particles.” [Id., p. 4, ¶ 8.] People are anxious about contracting the disease, and due to these fears, may refrain from entering polling places, which are not assured of meeting the recommended ventilation standards. [Id., p. 9, ¶ 18.].] Gregory Shufeldt, Ph.D., notes that Hoosiers who wish to vote in the November election are “likely to face unprecedented impediments to casting a vote in person due to the continued transmission of COVID-19.” [Declaration of Gregory Shufeldt, Ph.D., Filing No. 13-14, p. 11, ¶ 58.] Even under conservative estimates, there are least tens of thousands of Indiana voters who
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do not qualify under the current statutory entitlement to cast their vote by mail. [Id., p. 10, ¶¶ 5053.] Voters who are not currently entitled to vote by mail will have to choose between protecting their health and safety, and fulfilling their civic duty. [Id., p. 12, ¶ 58.]
Medical experts, including Anthony S. Fauci, M.D., an immunologist who is head of the National Institute of Allergy and Infectious Diseases, has stated that “[w]e will have coronavirus in the fall. I am convinced because of the degree of transmissibility that it has, the global nature. What happens with that will depend on how we’re able to contain it when it occurs.” [Filing No. 6, p. ¶ 5.]
C. Plaintiffs and the Proposed Class Named Plaintiffs include twelve (12) registered Indiana voters who have not reached the age of 65 and who are not otherwise entitled to vote by mail because they do not now, and are not expected on Election Day to, satisfy any of the categories of voters established by Indiana Code § 3-11-10-24(a), and thus be “entitled to vote by mail.”1 [Filing No. 6, p. 6, ¶¶ 23, 24; Filing Nos. 13-1 – 13-12, ¶¶ 3, 4.2] Each has serious concerns about being left with no alternative but to show up in person in what are reasonably expected to be crowded public polling places this fall to exercise their right to vote. Each individual Plaintiff wishes to vote by mail but under current Indiana law is not entitled to do so. [Filing Nos. 13-1 – 13-12, ¶¶ 3, 4.] The named Plaintiffs seek certification of a class of similarly situated persons, defined as:
1 Indiana Vote By Mail, Inc., a corporate entity, is the only Plaintiff not eligible to vote. 2 Each of the individual Plaintiffs have executed a declaration, which were filed as exhibits to the Motion for Preliminary Injunction [Filing No. 13], as follows: Declaration of Barbara Tully [Filing No. 13-1]; Declaration of David Carter [Filing No. 13-2]; Declaration of Elizabeth Kmieciak [Filing No. 13-3]; Declaration of Janice Johnson [Filing No. 13-4]; Declaration of Marc Black [Filing No. 13-5]; Declaration of Katharine Black [Filing No. 13-6]; Declaration of Shelly Brown [Filing No. 13-7]; Declaration of Chaquitta McCreary [Filing No. 13-8]; Declaration of Dominic Tumminello [Filing No. 13-9]; Declaration of Rebecca Gaines [Filing No. 13-10]; Declaration of Katherine Paolacci [Filing No. 13-11]; and Declaration of David Slivka [Filing No. 13-12].
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All people who are or may subsequently become qualified to vote in the November 3, 2020, general election in Indiana, and who are not entitled to vote by mail because they do not satisfy any of the criteria of Ind. Code § 3-11-10-24(a)(1)-(13). D. Defendants Defendants Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary E. Klutz, are the members of the IEC, which is charged with administering Indiana election laws. Ind. Code § 3-6-4.1-14 (a)(1). This includes adopting rules to "[g]overn the fair, legal, and orderly conduct of elections." Id. It also includes the power to adopt, by unanimous vote of its entire membership, temporary emergency rules "to implement a court order requiring [it]...to administer an election in a manner not authorized by this title," id. at -16, or in cases of a "natural disaster or other emergency." Id. at -17 (a). On March 25, 2020, the IEC suspended statutory restrictions on voting by mail by entering an emergency order that the words "voter with disabilities" in Ind. Code § 3-11-10-24(a)(4) shall be construed to include any "voter who is unable to complete their ballot because they are temporarily unable to physically touch or be in safe proximity to another person." IEC Order 2020-37, Section 9A. [Filing No. 6, p. 10, ¶ 44.] However, despite having met most recently on May 12, 2020, the IEC has failed to reach a bipartisan agreement to extend this interpretation for the November 3, 2020, general election. Defendant Lawson is the Indiana Secretary of State and in that capacity, is the chief election official of the State. Ind. Code § 3-6-3.7-1. She is responsible for enforcing and implementing Indiana's election laws and her office routinely issues guidance to county election officials in each of Indiana's 92 counties on matters involving election administration. E. The Instant Litigation Plaintiffs filed this putative class action for claims arising out of federal and Indiana law, and Defendants’ failure to take action to allow them to safely vote in the 2020 general election.
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Plaintiffs assert the foregoing violates their rights guaranteed by the Fourteenth and TwentySixth Amendments to the United States Constitution, as well as the Indiana Constitution, which prohibits the granting "to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens," (Art. 1, § 23), and which requires that all elections in Indiana be "free and equal." Art. 2, § 1.
Named Plaintiffs seek injunctive and declaratory relief. [Filing No. 6, pp. 1, 14, 17, 21.] As Plaintiffs move for class certification pursuant to Fed. R. Civ. P. 23(b)(2), they seek only injunctive and declaratory relief for the class as well. Plaintiffs assert Count I, violation of their Fourteenth Amendment rights, pursuant to 42 U.S.C. § 1983, against all Defendants in their official capacities. [Id., pp. 14-17.]
Count II is predicated on the violation of Plaintiffs’ Twenty-Sixth Amendment rights, which prohibits a state from denying or abridging the right to vote of citizens who are eighteen years of age or older, “on account of age.” [Id. at 17-20.]
Count III asserts a violation of the Privileges and Immunities Clause of the Indiana Constitution, which prohibits granting privileges or immunities to any citizen which do “not equally belong to all citizens”; and Article 2, § 1 of the Indiana Constitution, which requires that all elections in Indiana be “free and equal.” [Id. at 20.] III. ARGUMENT
A. The Standard for Class Certification A court may certify a class if all four requirements of Rule 23(a) – numerosity, commonality, typicality, and adequacy of representation – are satisfied, and at least one of the provisions of Rule 23(b) is met. Fed. R. Civ. P. 23(a) and 23(b); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006).
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Under Rule 23(b)(2), Plaintiffs must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) “applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360, 131 S. Ct. 2541, 2557 (2011).
Lastly, the party must show that the class is identifiable as a class. Oshana, 472 F.3d at 513. As demonstrated below, all the necessary requirements of Rule 23 are met in this case and the Class should accordingly be certified.
B. The Class Meets All the Requirements of Rule 23(a) i. Rule 23(a)(1) is Satisfied Because Joinder of All Members is Impracticable.
The proposed class satisfies Rule 23(a)(1) because joinder of all class members is impracticable based on the number of class members, the geographic diversity of Class members and the inability of many class members to bring individual suits.
In order to satisfy the numerosity element, a plaintiff is not required to specify the exact number of persons in the class. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). Nonetheless, it has been held that “generally, a class of at least forty members will satisfy the requirement.” McGarry v. Betcher, No. 4:08-cv-0146, 2010 WL 1257446, at *3 (S.D. Ind. Mar. 24, 2010) (Young, J.) (citing cases). See also, e.g., EEOC v. Printing Indus. of Metro. D.C., Inc., 92 F.R.D. 51, 53 (D.D.C. 1981) (“[A]s few as 25-30 class members should raise a presumption that joinder would be impracticable and that the class should be certified”) (citing Newburg, Class Actions § 1105(b), at 174 (1977)); Newberg on Class Actions § 25:4 (4th ed.) (“Courts have taken a common-sense approach in assessing impracticability of joinder,” including in “[c]riminal justice
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class action suits… involv[ing] issues of concern common to inmate populations of particular institutions or institutional systems which are subject to general conditions and policies”) (citation omitted).
Plaintiffs estimate there are at least 387,868 members of the proposed class. Professor Shufeldt has estimated the approximate number of Indiana voters who will be unable to vote by mail in the 2020 general election. [Filing No. 13-14, pp. 9-10.] Starting with Marion County alone, Professor Shufeldt conservatively began with the average votes cast over the last four presidential general elections, 297,207 (as opposed to using the average number of registered voters). [Id., p. 9, ¶¶ 43-44.] After deducting the number of voters who are 65 or over, or who have a disability, he was left with 228,849 voters. [Id., pp. 9-10, ¶¶ 45-47.] Estimating the remaining voters who satisfy the other statutory criteria is less straightforward, but even if 50% of them meet the criteria to vote absentee, there are still approximately 114,424 voters in Marion County alone who would not be eligible to cast an absentee ballot. [Id., p. 10, ¶ 48.] Professor Shufeldt performed the same analysis for the State of Indiana, except using an even more conservative estimate: after estimating the number of voters who are 65 or over, or who have a disability, and then assuming 75% of the remaining voters do meet another statutory criteria, there would still be 387,868 likely voters in Indiana who would not be eligible to cast an absentee ballot. [Id., p. 10, ¶¶ 49-52.]
Although this estimated number of class members is substantial, even “[a] relatively small group may form a class if other considerations make joinder impracticable.” Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D. Ill. 1996) (quoting Patrykus v. Gomilla, 121 F.R.D. 357, 361 (N.D. Ill. 1988)). The proposed class is unwieldy in ways that satisfy Rule 23(a)(1) requirements. Class members are widely scattered throughout the State of Indiana. See Markham v. White, 171 F.R.D. 217, 221 (N.D. Ill. 1997) (impracticality of joinder is increased by fact that class members reside
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in five different states). See also Newberg on Class Actions § 25:4 (4th ed.) (“the geographic dispersion and difficulty with which class members would be identified supported a finding of joinder impracticability”) (citation omitted).
The proposed class also includes persons whose identities are currently unknown because they are not yet registered to vote but will be in the future. See Postawko v. Missouri Dept. of Corrections, 2:16-CV-04219-NKL, 2017 WL 3185155 at *5 (W.D. Mo. July 26, 2017) (“[j]oinder of all members may be impracticable where the class includes individuals who may become members in the future but who are currently unidentifiable.”) (citation and quotation omitted). See also Newberg on Class Actions § 25:4 (4th ed.) (“Even a small class of fewer than 10 actual members may be upheld if an indeterminate number of individuals are likely to become class members in the future”) (citation omitted). Because the population of registered voters is constantly changing, so too are members of the proposed class. See Postawko, 2017 WL 3185155 at *6 (numerosity satisfied by, inter alia, “the inherently fluid nature of this class”).
It is likely that many individual class members may not have the ability and/or financial resources to institute individual suits to seek their own injunctive relief. See, e.g., Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (other “[r]elevant considerations include… financial resources of class members [and] the ability of claimants to institute individual suits…”)
Given the size of the proposed class, the geographic diversity of its members, the yet-tobe-known identities of future members, the fluidity of its membership, and the many challenges that individual class members face in bringing individual suits, Rule 23(a)(1)’s numerosity requirement is satisfied.
ii. Rule 23(a)(2) is Satisfied Because There are Questions of Law and Fact Common to the Class.
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A class action requires that there be “questions of law or fact common to the class.” Fed. R. Civ. Pro. 23(a)(2). Commonality is satisfied when there is a “common nucleus of operative fact” that is, a “common question which is at the heart of the case.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (citation omitted). All questions of fact or law need not be identical; rather, the requirement is satisfied as long as the class claims arise out of the same legal or remedial theory. In re Ready–Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 167 (S.D. Ind. 2009). An important factor in commonality is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2015) (citing Wal–Mart Stores v. Dukes, 131 S.Ct. at 2551).
Commonality is satisfied here because of the multiple questions of fact and law common to the class. Common questions of fact include, but are not limited to: (1) whether a voter is entitled to vote in the 2020 general election; (2) whether a voter is entitled to vote absentee by mail in the 2020 general election; (3) whether voters are in danger of contracting or spreading the Coronavirus by the act of in-person voting; and (4) whether Coronavirus will still be spreading in the fall of 2020. Common questions of law include, but are not limited to, whether Indiana law and Defendants’ actions or omissions violate the Fourteenth Amendment, the Twenty-Sixth Amendment, or the Indiana Constitution.
If the answer to one or more of these questions is “yes,” the Court may resolve the case by requiring Defendants to enact a policy for voters that does not violate the Fourteenth Amendment, the Twenty-Sixth Amendment, or the Indiana Constitution. Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426, 434 (7th Cir. 2015).
iii. Plaintiffs Satisfy Rule 23(a)(3) Because Their Claims are Typical of those in the Class.
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Rule 23(a) also requires the representative parties' claims or defenses to be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The typicality prerequisite is met if the named plaintiffs' claims “arise[ ] from the same ... practice or course of conduct that gives rise to the claims of other class members and ... are based on the same legal theory.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (quotation omitted); Estate of VanDam ex rel. Horizon Tr. & Inv. Mgt., N.A. v. Daniels, 278 F.R.D. 415, 424 (S.D. Ind. 2011). Although the named plaintiffs' claims need not be identical to all class members' claims, they must be “substantially similar” so that the interests of the class and its representatives may be aligned. In re Ready–Mixed Concrete Antitrust Litig., 261 F.R.D. at 168.
Plaintiffs’ claims satisfy Rule 23(a)(3). Their claims — that Indiana law and the Defendants’ actions or omissions regarding absentee voting violate the Fourteenth Amendment, the Twenty-Sixth Amendment, and/or the Indiana Constitution– are identical to the claims of the class that they seek to represent. Plaintiffs’ claims turn on the same legal theory as the class claims. See Estate of VanDam, 278 F.R.D. at 425 (granting in part motion to certify class consisting of persons allegedly injured by stage collapse at 2011 Indiana State Fair, where Rule 23(a)(3) typicality requirement was satisfied for the limited purpose of determining the constitutionality of Indiana's damages cap for tort claims). If Plaintiffs establish that the challenged Indiana statute, and/or the actions or omissions of Defendants are unconstitutional, and that they are entitled to injunctive and declaratory relief, the claims of the class will necessarily succeed and the class members will reap the benefits of the same injunctive and declaratory relief.
iv. Plaintiffs Satisfy Rule 23(a)(4) Because They Are Members of the Class with Common Interests to the Unnamed Class Members and Will Vigorously Prosecute the Class’ Interests.
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). A class is not fairly and adequately represented
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if class members have antagonistic or conflicting claims. Rosario v. Livaditis, 963 F.2d at 1018 (citation omitted).
The individual Plaintiffs are members of the proposed class. [Filing Nos. 13-1 – 13-12, at ¶¶ 1, 3, 4.] They seek the same injunctive relief for themselves and class members alike. Tefel v. Reno, 972 F. Supp. 608, 617 (S.D. Fla. 1997); Newberg on Class Actions § 3:59 (5th ed.). Because Plaintiffs’ voting rights are at stake, they have the highest incentive to vigorously litigate this case to achieve favorable relief from the Court. The individual Plaintiffs’ goals in this action are to gain injunctive relief for themselves and class members. [Filing Nos. 13-1 – 13-12, at ¶ 5.] They share a goal with each other and all members of the proposed class: “to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.” [Id., at ¶ 6.] Plaintiffs identify no actual or potential conflict of interest between themselves and class members, and understand that, should a class be certified, they “will have the responsibility to fairly and adequately represent the class and to stay engaged with the lawsuit,” and have sworn they “will honor and fulfill that responsibility.” [Id., at ¶¶ 7, 9.]
Plaintiffs’ counsel are unaware of any interests of Plaintiffs or Plaintiffs’ counsel adverse to, or in conflict with those of the class. [Declaration of William R. Groth, Filing No. 17-1 at 2, ¶ 4; Declaration of Mark W. Sniderman, Filing No 17-2 at 2, ¶ 4.]
The requirement of adequacy of representation is also met by the qualifications of the proposed class counsel. Attorney William R. Groth has extensive experience litigating complex civil rights matters in federal courts. [Filing No. 17-1 at 1-2, ¶ 2.] He frequently represents plaintiffs in § 1983 cases, especially those involving voting rights. [Id. at 2, ¶ 2.] Attorney Mark W. Sniderman also has extensive experience litigating complex civil rights matters in federal
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courts. [Filing No. 17-2 at 1-2, ¶ 2.] He frequently represents plaintiffs in § 1983 cases involving excessive force, jail or prison conditions, and voting rights, and was appointed co-class counsel in the matter styled Michael Ray Stafford, et al. v. Robert E. Carter, Jr., et al., No. 1:17-cv-00289-JMSMJD, United States District Court for the Southern District of Indiana. [Id. at 2, ¶ 2.] Attorneys Groth and Sniderman also served as co-counsel, with others, for plaintiffs in Lee v. Abbott, Case No. 14-2388, U.S. District Court for the Southern District of Indiana, which was consolidated on appeal with Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (cert. denied). [Filing No. 17-2 at 2, ¶ 2.]
Counsel will vigorously represent the proposed class to secure appropriate relief for all its members. [Filing No. 17-1 at 2, ¶ 4; Filing No. 17-2 at 2, ¶ 4.] This is demonstrated by, inter alia, the work Plaintiffs’ counsel have done to date in identifying, investigating, and litigating the Plaintiffs’ and proposed class’ claims in the instant action. See Eirhart v Libbey-Owens-Ford Co., 89 F.R.D. 424, 428 (N.D. Ill. 1981) (proposed class counsel can adequately represent the class under Rule 23(a)(4) where, inter alia, counsel “has demonstrated a great deal of perseverance and vigor in her pursuit of this action”).
C. Plaintiffs Satisfy the Requirements of Rule 23(b)(2) Because Injunctive and Declaratory Relief Would Provide Relief to All Class Members.
Rule 23(b)(2) authorizes a class action if Rule 23(a) is satisfied and “the party opposing the class has acted or refused to act on grounds generally applicable to the class” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” Fed. R. Civ. P. 23(b)(2). “23(b)(2) is the appropriate rule to enlist when the plaintiffs' primary goal is not monetary relief, but rather to require the defendant to do or not do something that would benefit the whole class.” Chicago Teachers Union, Local No. 1, 797 F.3d at 441; Estate of VanDam, 278 F.R.D. at 426 (“[t]he primary limitation imposed by this [Rule 23(b)(2)] is that injunctive or declaratory relief must predominate as the class's desired remedy”) (citation omitted).
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Plaintiffs here challenge Indiana law and Defendants’ statewide policies or omissions for voting safely. Plaintiffs satisfy the requirements of Rule 23(b)(2) because the final injunctive and declaratory relief they seek would apply to class members as a whole. If Plaintiffs show Defendants have violated their or the class members’ rights under the Fourteenth Amendment, the Twenty-Sixth Amendment, or the Indiana Constitution, then favorable injunctive and declaratory relief would provide appropriate relief to all class members simultaneously. Chicago Teachers Union, Local No. 1, 797 F.3d at 442-43 (23(b)(2) (class action maintainable where plaintiffs seek the same declaratory and injunctive relief for everyone in proposed class). For example, this Court could compel the Defendants to allow all class members to vote absentee, so as to not violate the Fourteenth Amendment, the Twenty-Sixth Amendment, or the Indiana Constitution.
D. Members of the Proposed Class are Ascertainable by Reference to Wholly Objective Criteria.
In addition to the above requirements, the party seeking to certify a class must show “that the class is indeed identifiable as a class.” Oshana, 472 F.3d at 513; followed by Lindh v. Warden, Fed. Correctional Inst., Terre Haute, Ind., 2:14-CV-00142-JMS-WGH, 2014 WL 7334745, at *1 (S.D. Ind. Dec. 19, 2014), class decertified on other grounds, 2015 WL 5009244 (S.D. Ind. Aug. 20, 2015). Rule 23 requires that a class be defined “clearly and based on objective criteria.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015) (classes must not be vague, defined by subjective criteria, or defined in terms of success on the merits). The proposed class meets this requirement.
The members of Plaintiffs’ proposed class are ascertainable by reference to objective criteria, namely, whether: (a) a person is registered and eligible to vote in the state of Indiana; and (b) whether they are not entitled to vote by absentee ballot. See Lau v Arrow Fin. Services, LLC, 245 F.R.D. 620, 624 (N.D. Ill. 2007) (proposed class was defined by objective criteria, namely,
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whether a claimant: (a) had received a certain debt collection letter, and (b) had his or her debt discharged in bankruptcy). Cf. De Bremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (proposed class consisting of “residents of this State active in the ‘peace movement’…” is not adequately defined and its members are not clearly ascertainable given, inter alia, “the patent uncertainty of the meaning of ‘peace movement’ in view of the broad spectrum of positions and activities which could conceivably be lumped under that term…”), cited with approval by Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981).
This clear definition of the putative class is enough. To administer this case, it is “not necessary to define the class with greater precision,” than that proposed by the Plaintiffs’ class definition. See Frank v. Walker, 196 F.Supp.3d 893, 902 (E.D. Wis. 2016). Neither does the decision to certify the proposed class require the Court to assess subjective criteria such as class members’ state of mind. Cf. Simer, 661 F.2d at 669-670 (case was not appropriate for class action where putative class consisted of persons who: (a) were aware that they qualified for certain assistance to pay their energy bills, but; (b) were discouraged from applying for such assistance because of the existence of the invalid regulation).
Nor is the class vague: it is neither “amorphous” or “imprecise.” Mullins, 795 F.3d at 659 (internal citations omitted). Because certification is sought pursuant to 23(b)(2), the distribution of damages to putative class members will not be at issue: instead, if Plaintiffs are successful on the merits and the relief sought, every registered voter eligible to vote in the 2020 general election will be entitled to vote by mail. The State and its voters make the distinction on the criteria suggested here every election, in determining who may and may not vote absentee by mail. And the class is not defined in terms of success on the merits.
Here, proposed class members have been, or will be, registered and eligible to vote, and on the voting rolls maintained by the Defendants. Members of the proposed class are and can be
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ascertained by using objective criteria, and the proposed class is fully and readily identifiable as a class. IV. CONCLUSION
For all the foregoing reasons, the Court should grant Plaintiffs’ Motion for Class Certification, certify the class proposed by Plaintiffs, appoint the named individual Plaintiffs as class representatives and appoint undersigned counsel as class counsel.
Respectfully submitted,
s/ William R. Groth William R. Groth MACEY SWANSON LLP 445 N. Pennsylvania St., Suite 401 Indianapolis, IN 46204 Tel: (317) 637-2345, Ext. 132 E-mail: WGroth@fdgtlaborlaw.com
s/ Mark W. Sniderman Mark W. Sniderman FINDLING PARK CONYERS WOODY & SNIDERMAN, P.C. 151 N. Delaware Street, Ste. 1520 Indianapolis, IN 46204 Tel: (317) 231-1100 E-mail: msniderman@findlingpark.com Attorneys for Plaintiffs
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 Case 1:20-cv-01271-JPH-DLP Document 64 Filed 08/11/20 Page 1 of 4 PageID #: 698

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHERINE

)

BLACK, MARC BLACK, DAVID

)

CARTER, REBECCA GAINES,

)

ELIZABETH KMIECIAK, CHAQUITTA )

MCCLEARY, DAVID SLIVKA,

)

DOMINIC TUMMINELLO, and INDIANA )

VOTE BY MAIL, INC., individually, and )

on behalf of those similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL OKESON, S. ANTHONY LONG, )

SUZANNAH WILSON OVERHOLT, and )

ZACHARY E. KLUTZ, in their official )

Capacity as members of the Indiana

)

Election Commission, and CONNIE

)

LAWSON, in her official capacity as the )

Indiana Secretary of State,

)

)

Defendants.

)

Cause No. 1:20-cv-01271-JPH-DLP

MOTION OF INDIANA DISABILITY RIGHTS, INDIANA STATEWIDE INDEPENDENT LIVING COUNCIL, AMERICAN DIABETES ASSOCIATION, DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC., AND THE DISABILITY RIGHTS LEGAL CENTER FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

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Indiana Disability Rights, Indiana Statewide Independent Living Council, American Diabetes Association, Disability Rights Education and Defense Fund, Inc., and the Disability Rights Legal Center (together, the Organizations), by and through undersigned counsel, respectfully request leave to file a brief as amici curiae in the above captioned case. The brief is relevant to Plaintiffs’ Motion for Preliminary Injunction [Filing No. 13] but is not in support of or in opposition to any party. The proposed amici curiae brief is attached to this motion.
As described in detail on pages 2 through 5 of the attached brief, the five Organizations are Indiana and national organizations that are dedicated to protecting and advancing the rights of people with disabilities. The Organizations have extensive knowledge of the unique needs and experiences of people with disabilities, as well as expertise in the laws protecting their rights, including their voting rights. This case is about whether Indiana voters will have safe and adequate access to voting during a general election happening in the midst of a pandemic. Given the vulnerability of people with disabilities when it comes to COVID-19, ensuring this access is an issue of special concern to the Organizations. They submit the attached brief in an effort to ensure that people with disabilities, as well as the people who live with or care for them, will have meaningful and safe access to voting during that election.
Although the vote-by-mail statute at issue in this case purports to allow “voter[s] with disabilities” to vote by mail, the statute does not define that phrase. See Ind. Code § 3-11-10-24(a)(4). The Court may create confusion if it were to accept the parties’ representations on the issue of who is a “voter with disabilities” and thus would be aided by consideration of the attached brief. Consistent with federal laws covering Indiana elections, the proposed brief asserts that the phrase “voter[s] with disabilities” includes any voter with a disability under the Americans with Disabilities Act (ADA), as amended in 2008. Some of the named Plaintiffs and members of the putative class in this case are “voter[s] with disabilities” under the ADA, even though they may not be considered to be so under the Indiana vote-by-mail statute at issue.
The proposed amici curiae brief explains that, under the ADA, individuals who are substantially
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limited in interacting with others due to a physical or mental impairment have a covered “disability.” During COVID-19, this includes any Indiana voter who is advised to avoid contact with others due to any pre-existing condition. Restricting access for these voters to Indiana’s vote-by-mail program would violate the ADA. Similarly, given the manner in which the coronavirus is spread, Hoosiers who live with people with disabilities, as well as those who do not live them but who provide care for them, have the same need to vote by mail as disabled voters. Those voters are similarly situated during the pandemic to Hoosiers with disabilities because of the imperative to safeguard the health of the Hoosiers with disabilities with whom they live or for whom they provide care.
There are no provisions governing amicus briefs in either the Federal Rules of Civil Procedure or the Local Rules of this Court. Consequently, this Court “has broad discretion in deciding whether to permit amicus curiae participation” in this case. McCarthy v. Fuller, No. 1:08-CV-994-WTL-DML, 2012 U.S. Dist. LEXIS 43701, at *3 (S.D. Ind. Mar. 29, 2012). The Court should exercise its discretion to grant this motion because the Organizations have “unique information [and] perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997) (Posner, C.J., in chambers).
The proposed amici curiae brief provides information not yet provided in this case about federal laws applicable to the voting rights of people with disabilities that are relevant to application of Indiana’s vote-by-mail statute during the pandemic. The brief also provides the unique perspective of people with disabilities, describing their needs as voters and drawing on the Organizations’ extensive experience with protecting and promoting the rights of individuals with disabilities in Indiana and nationally.
Mindful of the pressing nature of the motion for a preliminary injunction and given that the November general election is fast approaching, the Organizations do not seek to intervene as parties, nor do they seek to participate in any oral argument on Plaintiffs’ pending motion for a preliminary injunction. The only participation they seek in this case is the Court’s consideration of the attached brief.
Finally, it should be noted that no counsel for a party authored the attached amici curiae brief in whole or in part. No such counsel or party made a monetary contribution to fund the preparation or
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submission of this brief. No person other than the Organizations and their counsel made any such monetary contribution.
WHEREFORE, the Organizations respectfully move the Court for leave to file the attached amici curiae brief.
Respectfully submitted,

Date: August 11, 2020

/s/ Bridget A. Clarke
BRIDGET A. CLARKE (Cal. Bar #161320) 456 Boynton Avenue Berkeley, CA 94707 (510) 528-7755 baclarke@comcast.net
Attorney for Proposed Amici Curiae Indiana Disability Rights, Indiana Statewide Independent Living Council, American Diabetes Association, Disability Rights Education and Defense Fund, Inc., and the Disability Rights Legal Center

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHERINE

)

BLACK, MARC BLACK, DAVID

)

CARTER, REBECCA GAINES,

)

ELIZABETH KMIECIAK, CHAQUITTA )

MCCLEARY, DAVID SLIVKA,

)

DOMINIC TUMMINELLO, and INDIANA )

VOTE BY MAIL, INC., individually, and )

on behalf of those similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL OKESON, S. ANTHONY LONG, )

SUZANNAH WILSON OVERHOLT, and )

ZACHARY E. KLUTZ, in their official )

Capacity as members of the Indiana

)

Election Commission, and CONNIE

)

LAWSON, in her official capacity as the )

Indiana Secretary of State,

)

)

Defendants.

)

Cause No. 1:20-cv-01271-JPH-DLP

BRIEF OF AMICI CURIAE INDIANA DISABILITY RIGHTS, INDIANA STATEWIDE INDEPENDENT LIVING COUNCIL, AMERICAN DIABETES ASSOCIATION, DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC., AND THE DISABILITY RIGHTS LEGAL
CENTER

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INTEREST OF AMICI CURIAE1 I. Amici Curiae Are Indiana and National Organizations that Advocate for the Rights of
People with Disabilities. Amicus curiae Indiana Disability Rights (IDR) is the federally-mandated and state-designated protection and advocacy organization for the state of Indiana. Located in Indianapolis, IDR’s mission is to protect and promote the rights of individuals with disabilities through empowerment and advocacy. IDR provides advocacy services to individuals with all types of disabilities in support of their personal and civil rights, serving as their partner in rights issues and providing them with resources for selfadvocacy. IDR also endeavors to bring awareness to society in order to eliminate discrimination. IDR works under several federal programs including the Protection and Advocacy for Voting Access (PAVA) program, authorized by the federal Help America Vote Act (HAVA). HAVA acknowledges the unique obstacles people with disabilities face at the polls and, through PAVA, charges protection and advocacy organizations with helping to ensure the full participation of individuals with disabilities in the entire electoral process. IDR represents Hoosiers with disabilities in voting access matters, and regularly trains Indiana county clerks on poll accessibility. IDR also provides feedback to the Indiana Secretary of State about election access, including recently submitted comments in April 2020 to the Indiana Election Commission regarding necessary accommodations to the primary election for voters with disabilities. See infra notes 25, 28. Amicus curiae Indiana Statewide Independent Living Council (INSILC), was established by the Rehabilitation Act of 1973, as amended. INSILC is a federally and state mandated, governorappointed council, that is independent and autonomous from the State of Indiana. INSILC is a nonprofit organization led and directed by a majority of its peers with disabilities from all regions of Indiana with
1 No counsel for a party authored this brief in whole or in part. No such counsel or party made a monetary contribution to fund the preparation or submission of this brief. No person other than amici and their counsel made any such monetary contribution. Amici are non-profit corporations or, in the case of Indiana Disability Rights, a governmental agency. They have no parent corporations and, as they have no stock, no publicly held company owns 10 percent or more of their stock.
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different backgrounds and experiences, and is tasked with promoting the philosophy of Independent Living. This philosophy is deeply engrained in the belief that people with disabilities should have the same civil rights, choices, options, and control over their lives as do people without disabilities. INSILC’s mission is to “empower our peers with disabilities to lead and control their own lives.”
To ensure its Hoosier peers with disabilities are empowered to vote and to have control over the exercise of their right to vote, INSILC has stressed the importance of providing accommodations for the Hoosier disability community to remove unnecessary barriers to this right. Voting by mail is one such accommodation. INSILC believes voting by mail would eliminate barriers to the voting process for its peers with disabilities while protecting their health and safety during the COVID-19 public health emergency. Extending voting by mail to informal family caretakers and formal paid supports, such as direct support professionals or personal care attendants who provide services to Hoosiers with disabilities, would also lessen the exposure risk to Hoosiers with disabilities. Mitigating the exposure risk to these caretakers and paid supports could play a major role in the State of Indiana’s efforts to reduce the transmission of the novel coronavirus to people with disabilities in their own homes and in the healthcare facilities where the majority of the COVID-19 related deaths have occurred in Indiana.
Amicus curiae the American Diabetes Association (Association) is a nationwide, nonprofit, voluntary health organization founded in 1940 made up of persons with diabetes, healthcare professionals who treat persons with diabetes, research scientists, and other concerned individuals. The Association’s mission is to prevent and cure diabetes and to improve the lives of all people affected by diabetes. The Association is the largest non-governmental organization that deals with the treatment and impact of diabetes.2 The Association reviews and authors the most authoritative and widely followed
2 The Association has over 485,000 general members, over 15,000 health professional members and over 1,000,000 volunteers.
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clinical practice recommendations, guidelines, and standards for the treatment of diabetes3 and publishes the most influential professional journals concerning diabetes research and treatment.4
Among the Association’s principal concerns is the equitable and fair treatment of people with diabetes. Over 650,000 Hoosiers have diabetes, 146,000 of whom have undiagnosed diabetes,5 greatly increasing their health risk. In most cases, disenfranchisement is the result not of malice toward those with diabetes, but rather, is a product of misinformation, stereotypes, or lack of attention. Thus, the Association adds to the collective discussion aimed at bringing to this Court’s attention the particular impacts of COVID-19 on the disability community, which includes those with diabetes, and to advocate for its Indiana members and their ability to vote without endangering their health.
Amicus curiae Disability Rights Education and Defense Fund, Inc. (DREDF) is a national nonprofit law and policy center dedicated to protecting and advancing the civil rights of people with disabilities. Founded in 1979 by people with disabilities and parents of children with disabilities, DREDF remains board- and staff-led by members of the disability community. DREDF pursues its mission through education, advocacy and law reform efforts, and is nationally recognized for its expertise in the interpretation of federal disability civil rights laws.
DREDF has significant experience with voting rights access issues over decades. DREDF was involved in the legislative process leading to the federal National Voter Registration Act of 1993, which authorized expanded voter registration options. DREDF provided party representation in the consolidated

3 American Diabetes Association: Standards of Medical Care in Diabetes 2020, Diabetes Care 43: Supp. 1 (2020).

4 The Association publishes five professional journals with widespread circulation: (1) Diabetes (original scientific research about diabetes); (2) Diabetes Care (original human studies about diabetes treatment); (3) Clinical Diabetes (information about state-of-the-art care for people with diabetes); (4) BMJ Open Diabetes Research & Care (clinical research articles regarding type 1 and type 2 diabetes and associated complications); and (5) Diabetes Spectrum (review and original articles on clinical diabetes management).

5 Centers for Disease Control and Prevention (CDC), U.S. Diabetes Surveillance System, Diagnosed

Diabetes,

Total,

Adults

with

Diabetes,

Number,

Indiana,

https://gis.cdc.gov/grasp/diabetes/DiabetesAtlas.html# (last visited Aug. 10, 2020); Timothy M. Dall et

al., The Economic Burden of Elevated Blood Glucose Levels in 2017: Diagnosed and Undiagnosed

Diabetes, Gestational Diabetes Mellitus, and Prediabetes, 42 DIABETES CARE 1661, 1666 (Sept. 2019).

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cases American Association of People with Disabilities (AAPD) v. Shelley, Civ. No. 04-1526 (C.D. Cal.), and AAPD v. Benevidez, Civ. No. 04-3318 (C.D. Cal), which catalyzed the State of California’s decision to prioritize acquisition of voting technology that offered safe and independent access for voters with visual and manual dexterity impairments. From 2004 to 2010, DREDF participated in the California Voter Empowerment Circle (CalVEC), an ad hoc coalition of organizations committed to encouraging full civic participation by historically disenfranchised communities. The AAPD party litigation and CalVEC work was undertaken in collaboration with the Disability Rights Legal Center, which also joins this amicus brief. While past work was undertaken in California, it involved voting access issues of relevance throughout the United States. Such issues now include ensuring full and safe access to voting during the COVID-19 pandemic.
Amicus curiae the Disability Rights Legal Center (DRLC) is a non-profit legal organization founded in 1975 to represent and serve people with disabilities. Individuals with disabilities continue to struggle against ignorance, prejudice, insensitivity, and lack of legal protection in their endeavors to achieve fundamental dignity and respect. The DRLC assists people with disabilities in attaining the benefits, protections, and equal opportunities guaranteed to them under the Rehabilitation Act of 1973, the Americans with Disabilities Act, the Individuals with Disabilities Education Act, and other state and federal laws. Its mission is to champion the rights of people with disabilities through education, advocacy, and litigation. The DRLC is a recognized expert in the field of disability rights.
The DRLC was previously known as the Western Law Center for Disability Rights, and past voting access work under that name included party counsel participation in the consolidated AAPD party litigation and the CalVEC work that is detailed in the statement of interest for DREDF, which also joins this amicus brief. The DRLC’s nondiscrimination work includes advocacy to ensure that voters with disabilities, including disproportionately vulnerable seniors and those with underlying medical conditions, are not forced to risk their health in order to cast a ballot.
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II. Amici Seek to Ensure that Hoosiers with Disabilities, and Those Who Live with and Provide Care to Them, Have Meaningful and Safe Access to the Vote during the Pandemic. This case is about whether Indiana voters will have safe and adequate access to voting during a
general election happening in the midst of a pandemic. Ensuring this access is an issue of special concern to the amicus parties joining this brief. No Hoosier should have to choose between risking infection with a potentially deadly virus and casting their ballot. And Hoosiers with disabilities are particularly vulnerable to the virus.
As 501(c)(3) organizations, the amici joining this brief do not support or oppose any political party or any candidates for political office.6 Indeed, people with disabilities tend to split their votes between the political parties.7 Nor do amici support the Plaintiffs or the Defendants in this litigation. Amici’s interest in this matter is limited to ensuring that people with disabilities, as well as the people who live with or care for them, have meaningful and safe access to the vote during the pandemic. The lives and votes of Hoosiers with disabilities are equally valuable to those of Hoosiers without disabilities. Given the unique vulnerability of people with disabilities when it comes to COVID-19, their lives and votes should be considered in this case.
ARGUMENT The vote-by-mail statute at issue in this case allows “voter[s] with disabilities” to vote by mail, but does not define that phrase. See Ind. Code § 3-11-10-24(a)(4). The parties to this litigation appear to agree that the individual Plaintiffs and putative class members do not qualify to vote by mail as voters “with disabilities” as that phrase is used in the statute. But the Court may create confusion if it were to accept the parties’ representations on the issue of who is a “voter with disabilities” and should thus take care. Consistent with federal laws covering Indiana elections, this Court should consider “voter[s] with
6 Amicus curiae IDR is not a 501(c)(3) organization; it is an agency of the State of Indiana. As such, it likewise does not support or oppose any political party or any candidates for political office. 7 Abigail Abrams, Voter Turnout Surged Among People with Disabilities Last Year. Activists Want to Make Sure that Continues in 2020, TIME (July 10, 2019), https://time.com/5622652/disability-voterturnout-2020/.
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disabilities” to include any voter with a disability under the Americans with Disabilities Act (ADA), as amended in 2008.
Under the ADA, individuals who are substantially limited in interacting with others due to a physical or mental impairment have a covered “disability.” During COVID-19, this includes any Indiana voter who is advised to avoid contact with others due to any pre-existing condition. Restricting access for these voters to Indiana’s vote-by-mail program would violate the ADA. Similarly, given the manner in which the coronavirus is spread, Hoosiers who live with people with disabilities, as well as those who do not live them but who provide care for them, have the same need to vote by mail as disabled voters. Those voters are similarly situated during the pandemic to Hoosiers with disabilities because of the imperative to safeguard the health of the Hoosiers with disabilities with whom they live or for whom they provide care. It does little for disabled voters to permit them to vote safely by mail, but to require their household members or caregivers to vote in unsafe settings and then return to the homes of disabled voters. Extending absentee voting to all registered Indiana voters, as was done during the June primary election, will avoid legal pitfalls and help protect the lives and votes of Hoosiers with disabilities. I. Hoosiers with Disabilities Are at Increased Risk for Serious Illness and Death as a Result of
COVID-19. a. Certain Health Conditions Greatly Increase the Risk of Serious Illness and Death from COVID-19.
Everyone is at risk for getting COVID-19 if they are exposed to the virus that causes it. But some people are more likely than others to become severely ill, which means that they may require hospitalization, intensive care, or a ventilator to help them breathe, or they may even die. Examples include people with lung disease, asthma, heart conditions, diabetes, kidney disease, or liver disease, people who are immunocompromised, and higher weight people.8
8 CDC, People With Certain Medical Conditions, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html (updated July 30, 2020) (listing conditions that increase the risk of severe illness from COVID-19).
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It is now well established that for people with these and other health conditions, the risk of
serious illness and death from the virus that causes COVID-19 is much higher than for the general U.S.
population. In the United States, people with underlying health conditions are six times more likely to be
hospitalized and 12 times more likely to die as a result of infection with the virus.9 More than four out of
five people under age 65 who died in the U.S. from COVID-19 had one or more of these conditions.
Among COVID-19 decedents of all ages, 60.9 percent had cardiovascular disease, 39.5 percent had
diabetes, 20.8 percent had chronic kidney disease, and 19.2 percent had chronic lung disease. Half of
COVID-19 decedents under 65 had diabetes (either type 1 or type 2), which is more than twice the
prevalence of diabetes in the general U.S. population.10
b. These Health Conditions Are Themselves Disabilities under the ADA.
“Disability” is construed very broadly under the ADA. See 42 U.S.C. § 12102(4)(A) (the
definition of disability in the ADA “shall be construed in favor of broad coverage of individuals under
this Act, to the maximum extent permitted by the terms of this Act”); see also Makeda-Phillips v. Ill.
Sec’y of State, No. 12-3312, 2014 U.S. Dist. LEXIS 15971, at *18 (C.D. Ill. Feb. 10, 2014) (although
their “impairment must ‘substantially limit’ a major activity for an individual to be considered disabled”
under the ADA, that term “should be broadly construed in favor of expansive coverage”).11 For example,
9 CDC, Coronavirus Disease 2019 Case Surveillance – United States, January 22–May 30, 2020, Morbidity and Mortality Weekly Report (MMWR) (June 19, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6924e2.htm. 10 CDC, Characteristics of Persons Who Died with COVID-19 — United States, February 12–May 18, 2020, Morbidity and Mortality Weekly Report (MMWR) (July 17, 2020) https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6928e1-H.pdf. The list of relevant health conditions and how they interrelate with COVID-19 is constantly evolving in response to new medical information regarding the disease. See Busby v. Bonner, No. 20-cv-2359-SHL, 2020 U.S. Dist. LEXIS 102132, at *16, n.7 (W.D. Tenn. June 10, 2020); CDC, supra note 8 (“We are learning more about COVID-19 every day, and as new information becomes available, CDC will update [its] information”). 11 In 2008, in response to restrictive appellate and high court decisions, Congress clarified the intended broad scope of the federal civil rights definition of “disability.” See ADA Amendments Act of 2008, Pub. L.110-325, 122 Stat. 3553 (Sept. 25, 2008) (an express legislative override of Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184 (2002), Sutton v. United Airlines, 527 U.S. 471 (1999) and companion cases). The ADAAA specified that “it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their
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disability under the ADA is to be assessed without regard to mitigating measures such as medications, prosthetics, hearing aids, or other devices (42 U.S.C. § 12102(4)(E)(i); 29 C.F.R. § 1630.2(j)(1)(vi)), and for conditions that are episodic or in remission, disability is assessed in the condition’s active state, when the symptoms are at their worst (42 U.S.C. § 12102(4)(D); 29 C.F.R. § 1630.2(j)(1)(vii)). Moreover, “[m]ultiple impairments that combine to substantially limit one or more of an individual’s major life activities also constitute a disability.” 29 C.F.R. Pt. 1630, app. § 1630.2(j)(I)(ii).
Under this expansive federal civil rights definition of “disability,” all of the health conditions increasing the risk of serious illness or death from COVID-19 (including all of those described in Part I.a., supra) are – in and of themselves – “disabilities” for purposes of the ADA and similar laws.12 More than 25 percent of Hoosiers have disabilities, including many who have conditions that make them COVID-vulnerable.13 Among those are 512,000 Hoosiers who have diagnosed diabetes, and an

obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis . . ..” Pub. L. 110-325, § 2(b)(5), 122 Stat. 3554.

12 See Busby v. Bonner, No. 20-cv-2359-SHL, 2020 U.S. Dist. LEXIS 102132, at **17-18, 25-26 (W.D.

Tenn. June 10, 2020) (finding that the following COVID-vulnerable people are individuals with

disabilities under federal law: people with chronic lung disease or moderate to severe asthma (including

chronic obstructive pulmonary disease (COPD) (including emphysema and chronic bronchitis),

idiopathic pulmonary fibrosis and cystic fibrosis); people with serious heart conditions (including heart

failure, coronary artery disease, congenital heart disease, cardiomyopathies and pulmonary

hypertension); people who are immunocompromised (including cancer treatment, smoking, bone marrow

or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of

corticosteroids and other immune weakening medications); people with diabetes; people with chronic

kidney disease undergoing dialysis; people with chronic liver disease, including cirrhosis; and people

with hemoglobin disorders, including sickle cell disease and thalassemia); Faour Abdallah Fraihat v.

United States Immigration & Customs Enf’t, No. EDCV 19-1546 JGB (SHKx), 2020 U.S. Dist. LEXIS

72015, at **50-51 & n.21, 78 (C.D. Cal. Apr. 20, 2020) (certifying class, granting injunctive relief, and

finding that that people with the following medical conditions posing COVID risks are likely individuals

with disabilities under the Rehabilitation Act: cardiovascular disease (congestive heart failure, history of

myocardial infarction, history of cardiac surgery); high blood pressure; chronic respiratory disease

(asthma, chronic obstructive pulmonary disease including chronic bronchitis or emphysema, or other

pulmonary diseases); diabetes; cancer; liver disease; kidney disease; autoimmune diseases (psoriasis,

rheumatoid arthritis, systemic lupus erythematosus); severe psychiatric illness; history of transplantation;

and HIV/AIDS).

13 CDC, Disability & Health U.S. State Profile Data for Indiana (Adults 18+ years of age), Disability

and

Health

Promotion

(Sept.

12,

2019),

https://www.cdc.gov/ncbddd/disabilityandhealth/impacts/indiana.html.

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additional 146,000 Hoosiers with undiagnosed diabetes – together, almost 13 percent of the Indiana
population.14 For these Hoosiers with disabilities, reducing contact with people outside their households
and otherwise limiting possible exposure to the virus are the only effective means to avoid serious
illness.15 Indeed, they and the people who live with them are advised to “limit [their] interactions with
other people as much as possible.”16
Given the risk of infection from being in close proximity with another person, there is a new
interplay between a disabled person’s pre-existing impairments – which may greatly increase their risk of
severe illness or death from the virus – and the circumstances of everyday life. For people with
disabilities, there are now greater limitations on their major life activities and consequently a need for
new types of accommodations. As explained in Harry B Silver v. City of Alexandria, No. 1:20-CV-
00698, 2020 U.S. Dist. LEXIS 119359 (W.D. La. July 6, 2020), the realities of COVID-19 shape the
analysis:
We find easily that [the plaintiff] has a qualifying disability. That results, in substantial part, from the existence of the COVID-19 pandemic in our nation, and the existence of his obvious co-morbidities [advanced age plus aortic valve disease and systolic heart failure]. Defendants argue that he is not entitled to claim those disabilities BECAUSE they are only COVID-related. In other words, because his disabilities are only situational, he cannot avail himself of the accommodations provided for by the ADA/RA. Such an argument fails, however, because of the simple and logical explanation of things the way they are. Neither the ADA nor the Rehabilitation Act contain any language to limit application to certain environmental or health-related situations. It makes complete sense to say that any application of these laws to these facts must be based upon a factual analysis that considers the totality of [the plaintiff’s] health circumstances in conjunction with one’s social circumstances. Call it a totality of the circumstances evaluation. The determination of a qualifying disability in this case cannot be looked at in a vacuum. . .. In sum, consideration of [the plaintiff’s] documented serious underlying medical situation, in light of the pandemic’s existence, is the proper way to make the disability determination here.
14 Dall, supra note 5 at p. 1666 (Table 2, “State-level prevalence of diabetes and prediabetes, 2017, in thousands (prevalence rate %)”). 15 CDC, How to Protect Yourself and Others, Coronavirus 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fneed-extra-precautions%2Fwhat-you-can-do.html (updated July 31, 2020) (“The virus is thought to spread mainly from person-to-person.”). 16 CDC, supra note 8.
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Id. at **1, 3, 9-10, 17-18 (emphasis in original; granting plaintiff’s requested accommodations). II. Indiana Voters with Disabilities Are Entitled to Modifications to Indiana’s Voting Program
that Address the Realities of Voting during the Pandemic. The ADA and other federal laws guarantee voters with disabilities full and equal opportunities to vote.17 Title II of the ADA applies to any “public entity” (42 U.S.C. § 12132), which includes any state or local government, and any of their departments, agencies or instrumentalities. 42 U.S.C. § 12131(1). Under Title II, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such an entity.” 42 U.S.C. § 12132. As a program or activity of a state or local entity, voting is covered by Title II. Cal. Council of the Blind v. County of Alameda, 985 F. Supp. 2d 1229, 1234-35, 1238 (N.D. Cal. 2013). If a public entity denies people with disabilities meaningful access to its voting program, then it must make modifications or accommodations to its program accordingly. See 28 C.F.R. § 35.130(b)(7)(i) (requiring a public entity to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability”); Disabled in Action v. Bd. of Elections, 752 F.3d 189, 197, 199 (2d Cir. 2014) (Title II requires a public entity to provide people with disabilities with “meaningful access” to its voting program, which may in turn require “‘reasonable accommodations’” in the program). Under this body of law, voters with disabilities are entitled to receive voting-related accommodations that address the realities of the COVID-19 pandemic. See Drenth v. Boockvar, No. 1:20-CV-00829, 2020 U.S. Dist. LEXIS 92046, at **1, 14-15 (M.D. Pa. May 27, 2020) (blind plaintiffs seeking accessible ballots, enabling them to vote privately and independently from home, established the requisite irreparable injury because the absence of appropriate accommodations during the pandemic would burden their constitutional right to vote). Simply put, during this pandemic, voting policies cannot 17 See generally U.S. Department of Justice, Civil Rights Division, Disability Rights Section, The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities (Sept. 2014), https://www.ada.gov/ada_voting/ada_voting_ta.htm.
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place anyone with disabilities in the “‘impossible bind’ of either forfeiting their right to vote privately and independently or risking their health and safety by traveling to a polling place to vote in person.” See id. at **5, 15; see also People First of Ala. v. Merrill, No. 2:20-CV-00619-AKK, 2020 U.S. Dist. LEXIS 104444, at **69-72 (N.D. Ala. June 15, 2020); stay denied by People First of Ala. v. Merrill, No. 2012184, 2020 U.S. App. LEXIS 19850 (11th Cir. June 25, 2020); stay granted by Merrill v. People First of Ala., No. 19A1063, 2020 U.S. LEXIS 3541 (U.S. July 2, 2020) (in finding “a prima facie case of disability discrimination relating to” an Alabama law requiring voters to submit a copy of their photo ID with their absentee ballot “as applied in the COVID-19 pandemic,” noting that although “the interplay between the COVID-19 public health emergency and voting requirements is novel, district courts who have considered the issue have found that requiring a voter to risk her health . . . presents a ‘nearly insurmountable hurdle’”).
An opportunity to vote that requires people with disabilities, who as a group are more vulnerable to the coronavirus, to risk their health is not “as effective as” or “equal to” the same opportunity granted to others without disabilities who are not as vulnerable. 28 C.F.R. §§ 35.130(b)(1)(ii) (a public entity providing an aid, benefit or service may not “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded others”), 35.160(b)(1) (“A public entity shall furnish appropriate auxiliary aids and services when necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program or activity”).
Even when steps are taken to reduce the risk of infection, in person voting increases the likelihood of coming into contact with the virus: voters wait in line, they communicate with election officials, and they use shared objects.18 Aware of these risks, people with disabilities may choose to skip
18 CDC, Considerations for Election Polling Locations and Voters: Interim Guidance to Prevent Spread of Coronavirus Disease 2019 (COVID-19), Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html (updated June 22, 2020).
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voting altogether unless action is taken to make voting safe and accessible for them. See Paher v. Cegavske, No. 3:20-CV-00243-MMD-WGC, 2020 U.S. Dist. LEXIS 76597, at **6, 21 (D. Nev. Apr. 30, 2020) (without a plan to mail absentee ballots to all active registered voters during the pandemic, “voters worried about risks to their health or unsure about how to obtain an absentee ballot may very well be discouraged from exercising the right to vote all together”). III. Plaintiffs and Members of the Putative Class Include People with Disabilities Who Are
Entitled to Vote by Mail or to Other Accommodations that Ensure Safe Access to the Vote during the Pandemic. On its face, Ind. Code § 3-11-10-24(a)(4) purports to allow voters with disabilities to vote by mail.19 And the parties appear to agree that the individual Plaintiffs and the putative class that they represent are not voters “with disabilities” for purposes of that statute. Each of the Plaintiffs states that they “do not suffer from any condition that disables [them] from performing most of the activities of daily living.” [Filing Nos. 13-1–13-3; 13-5; 13-6; 13-8–13-10; 13-12 (¶ 4 of each individual plaintiff’s declaration).] The class is defined to include only those voters “who are not entitled to vote by mail because they do not satisfy any of the criteria of Ind. Code § 3-11-10-24(a)(1)-(13),” which includes the “voter with disabilities” provision of that statute. [Filing No. 18, p. 5.] Defendants apparently do not consider Plaintiff Marc Black, who is immunocompromised and has sarcoidosis and polycystic kidney disease [Filing Nos. 13-5, ¶ 2; 53-9, p. 16], to be a “voter with disabilities” under Ind. Code § 3-11-1024(a)(4). [See Filing No. 50, pp. 5-6 (Defendants’ opposition to the motion for class certification, indicating that the “Plaintiffs who are immunocompromised” are members of the putative class that is defined as Indiana voters “who are not entitled to vote by mail because they do not satisfy any of the criteria” of Ind. Code § 3-11-10-24(a) (1)-(13)).]
19 The phrase “voter with disabilities” is not defined in Ind. Code § 3-11-10-24(a)(4). Amici are not aware of any Indiana decision interpreting that phrase for purposes of that statute. However, Ind. Code § 3-5-2-50.2 defines the phrase to mean “a voter who has a permanent or temporary physical disability, as set forth in 52 U.S.C. 20107.” See 52 U.S.C. 20107(4) (provision of the 1984 Voting Accessibility for the Elderly and Handicapped Act defining “handicapped” as “having a temporary or permanent disability”).
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Nonetheless, as discussed supra in Part I.b., given the ADA’s very broad definition of “disability” as well as the realities of the pandemic, some of the Plaintiffs and putative class members are voters “with disabilities” under laws protecting the rights of people with disabilities even if they are not considered to be so under Indiana’s vote-by-mail statute. [See, e.g., Filing Nos. 13-5, ¶ 2 (Plaintiff Marc Black has a compromised immune system), 13-10, ¶ 2 (Plaintiff Rebecca Gaines is a COVID-19 survivor).] As “qualified individual[s] with a disability,” these Plaintiffs and putative class members cannot “be excluded from participation in or be denied the benefits of” voting by mail in the November 2020 general election even if they may not qualify to vote by mail under Ind. Code § 3-11-10-24(a). See 42 U.S.C. § 12132 (“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity”).
It is not enough for Indiana to provide some Hoosiers with disabilities with some access to voting. Instead, Indiana must provide “equal” and “meaningful access to private and independent voting” and must do so for all of its voters with disabilities. Cal. Council of the Blind, 985 F. Supp. 2d at 1238; see also Reyes v. Dart, No. 17 C 9223, 2019 U.S. Dist. LEXIS 71320, at *22 (N.D. Ill. Apr. 29, 2019) (the public entity must allow “not just some access, but ‘equal’ access . . . to the service, program or activity in question” and “‘meaningful access to a public entity’s services, not merely limited participation’”); Dunmore v. Shicker, No. 3:16-CV-171-MAB, 2020 U.S. Dist. LEXIS 2155, at *38 (S.D. Ill. Jan. 7, 2020) (Title II “imposes an obligation to provide ‘reasonable accommodations’ or ‘reasonable modifications’ for the disabled to ensure they have meaningful access to the benefits of the programs, service, and activities that such entities provide”). Even if Indiana state law “does not require the State” to allow these voters not covered by its statute to vote by mail, that “does not mean that” allowing them to do so “cannot be a reasonable accommodation under the ADA.” See Reed v. Illinois, 119 F. Supp. 3d 879, 884 (N.D. Ill. 2015).
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IV. People who Live with or Care for Hoosiers with Disabilities Are Also Entitled to Vote by Mail. The Plaintiffs and putative class members include people who live with or care for Hoosiers with
disabilities and who are concerned (or should be concerned) about infecting them. [Filing Nos. 13-6, ¶2 (Decl. of Plaintiff Katharine Black; “My husband has a compromised immune system and I cannot risk exposing him to COVID-19”); 13-8, ¶2 (Decl. of Plaintiff Chaquitta McCreary; “I have a daughter with significant asthmatic issues. It would not be advisable for me to be in a large group and potentially expose my daughter.”).] Ind. Code § 3-11-10-24 does not address the situation of voters such as these who are not permitted to vote by mail under the terms of that statute but who nonetheless live with or care for COVID-vulnerable people with disabilities.20
During the pandemic, it is not enough to provide all Hoosiers who have disabilities with access to Indiana’s vote-by-mail program. The people who come into close contact with those Hoosiers on a daily basis, i.e., the members of their households and their caregivers, must also be given access to voting by mail. In addition to the people with whom they live, people with disabilities often are in frequent contact with caregivers such as Direct Support Professionals (DSPs), who commonly assist people with intellectual and developmental disabilities, or with Personal Care Attendants (PCAs), who assist people
20 In addition to allowing “a voter with disabilities” to vote by mail, the statute affords certain other groups this option. None of these other categories of voters include healthy and young or middle-aged people who live with or care for people with disabilities who are not themselves sick or injured on election day. See Ind. Code § 3-11-10-24(a)(3) (a voter who “will be confined on election day to the voter’s residence, to a health care facility, or to a hospital because of an illness or injury during the entire twelve (12) hours that the polls are open”), § 3-11-10-24(a)(5) (a voter who “is an elderly voter”), § 311-10-24(a)(6) (a voter who “is prevented from voting due to the voter’s care of an individual confined to a private residence because of illness or injury during the entire twelve (12) hours that the polls are open.”).
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with other types of disabilities.21 Without absentee voting, household members, DSPs, PCAs and other caregivers increase their risk of infecting people with disabilities with the coronavirus.22
Hoosiers with disabilities who are at high risk of severe illness or death from the virus commonly
share households with healthy Hoosiers who are at low risk for severe illness or death from the virus.
Similarly, many at-risk Hoosiers with disabilities have daily contact with caregivers who are low-risk and
healthy. By not providing access to absentee voting to low-risk Hoosiers who live in the same household
or to low-risk caregivers, Indiana’s vote-by-mail statute is under-inclusive even in its purported goal of
protecting “voter[s] with disabilities.” Ind. Code § 3-11-10-24(a)(4). Additionally, healthy Hoosiers who
contract COVID-19 and do not suffer severe complications, as well as asymptomatic carriers of the
disease, will routinely come into contact with Hoosiers with disabilities and place them at risk of
infection. The Indiana vote-by-mail program is under-inclusive by failing to include all Hoosier voters.
Doing so would slow community spread of the virus. That omission imperils the health of all Hoosiers.
Cf. Young v. UPS, 575 U.S. 206, 229-30 (2015) (plaintiff may create a genuine issue of material fact
regarding a disparate treatment discrimination claim with evidence that the employer accommodates a
large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant
workers).
Not extending voting by mail to the people who live with or care for people with disabilities
raises at least three legal issues. First, during the pandemic, it is an inadequate accommodation for voters
21 “Direct Service Providers (DSPs) include personal care attendants, direct support professionals, paraprofessionals, therapists, and others. They provide a wide variety of home and community-based, health-related services that support people with disabilities. Services provided may include personal care, activities of daily living, access to health services, and more. DSPs have close and consistent contact with people with disabilities and those providing healthcare support services in day and residential programs for people with disabilities.” CDC, Guidance for Direct Service Providers: What do Direct Service Providers for people with disabilities need to know about COVID-19?, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/direct-service-providers.html (updated June 28, 2020). 22 See CDC, supra note 8 (“It is especially important for people at increased risk, and those who live with them, to protect themselves from getting COVID-19” and the best way to do so is to “[l]imit your interactions with other people as much as possible”; emphasis added).
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with disabilities to only extend voting by mail to them and not also to the nondisabled voters who come into close daily contact with them. See Disabled in Action, 752 F.3d at 197, 199, 202 (for there to be “meaningful access” to a voting program, there may need to be reasonable accommodations made in such program); Reed, 119 F. Supp. 3d at 883 (a “reasonable modification” provides the person “‘with disabilities meaningful access to the program or services sought’”). The goal of enabling disabled voters to cast their ballots without risking infection with the coronavirus is not achieved if they can still be infected by nondisabled voters who lack access to absentee voting.
Second, it burdens the fundamental right to vote of those household members and caregivers. They are left in a similar bind to the one faced by people with disabilities: either skip voting altogether or vote in person and risk infecting not only yourself but also the people with disabilities with whom you have regular, close contact. See Thomas v. Andino, No. 3:20-CV-01552-JMC, 2020 U.S. Dist. LEXIS 90812, at *46, n.20 (D. S.C. May 25, 2020) (“[D]uring this pandemic, absentee voting is the safest tool . . . voters can use to effectuate their fundamental right to vote. To the extent that access to that tool is unduly burdened, then no matter the label, ‘denial of the absentee ballot is effectively an absolute denial of the franchise [and fundamental right to vote].’”; emphasis in original).
Third, it may violate laws prohibiting discrimination against individuals who are associated with people with disabilities. See 42 U.S.C. §§ 12182(b)(1)(E) (“It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”), 12112(b)(4) (“the term ‘discriminate against a qualified individual on the basis of disability’ includes . . . excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association”); 28 C.F.R. § 35.130(g) (“A public entity shall not exclude or otherwise deny equal services, programs or activities to
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an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”).
If a household member or caregiver, who is not otherwise qualified to vote by mail under Indiana law, makes the rational decision to forgo voting in person because they do not want to risk catching and spreading the virus to the person with disabilities with whom they have frequent contact, then that person is in effect being excluded from the voting programs offered by Indiana because of their “relationship or association” with an individual with disabilities. Besides harming that person, this type of de facto exclusion also harms the disability community by imposing a significant extra burden on the loved ones and caregivers of people with disabilities. See Schneider v. County of Will, 190 F. Supp. 2d 1082, 1091 (N.D. Ill. 2002) (warning of the damage caused by associational discrimination to individuals with disabilities and of the chilling effect it has on commerce benefiting the disability community). V. Expanding Voting by Mail as Well as Other Safe Voting Options During the Pandemic Will
Especially Benefit Hoosiers with Disabilities. a. Removing Barriers to Voting by Mail Will Encourage Voting by Hoosiers with Disabilities and Protect Those Unaware that They Are Disabled.
Pre-pandemic, voters with disabilities throughout the U.S. were already 45 percent more likely to vote by mail than voters without disabilities.23 Voting by mail helps people with disabilities for whom it is challenging to travel to the polls, who need extra time to understand the issues, and who, in general, benefit from having alternative ways to vote.24 With the pandemic, the lives of people with disabilities are at stake, and the imperatives of preventing infection and spread of the virus can be added to that list. For these reasons, there is widespread agreement within the Indiana and national disability communities that expanding vote-by-mail opportunities during this pandemic is crucial – both to protect the health and
23 Rachel Orey, Don’t Leave Voters with Disabilities Behind in the COVID-19 Response, Bipartisan Policy Center (Mar. 31, 2020), https://bipartisanpolicy.org/blog/dont-leave-voters-with-disabilitiesbehind-in-covid-19-response/. 24 Jason Harris, Voting Accessibility: Responsibilities & Rights, ADA 30 Years: Americans with Disabilities Act (Feb. 6, 2020) https://www.adaanniversary.org/blog/2020-02-voting-accessibility.
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well-being of people with disabilities and to ensure access to the ballot.25
Moreover, many Hoosiers with disabilities do not realize that they are disabled. They may have
an undiagnosed condition or may not understand the legal implications of their impairments (e.g., the
146,000 Hoosiers with undiagnosed diabetes). To protect the health and well-being of these Hoosiers, the
prudent course is to make absentee voting available to all registered Hoosiers.
b. Increasing Voting by Mail Will Help Voters with Disabilities Who Vote in Person.
Increasing the overall number of eligible Hoosiers who vote by mail, rather than in person at the
polls, will benefit Indiana voters with disabilities who vote in person. For a significant number of people
with disabilities, voting in person is the best option given their particular needs and the voting methods
currently available to them in Indiana. For example, paper absentee ballots are not accessible to many
Hoosiers with visual disabilities. Currently, the only option for these Hoosiers to privately cast a ballot is
to vote in person. As a result, people with these types of disabilities can be particularly disenfranchised in
the voting process.26
As is obvious, Hoosiers with disabilities who vote in person are at increased risk of contracting
the virus as compared with those who vote remotely.27 Reducing the overall number of in-person voters
25 See IDR, Letter to the Indiana Election Commission Re: Accommodations for Voters with Disabilities (Apr. 20, 2020) https://www.in.gov/idr/files/IDR%20Letter%20to%20Election%20Commission%20%202020-04-20.pdf (“permitting voters to utilize ‘No Excuse/No Fault’ absentee voting” during the pandemic “will positively impact voters with disabilities”); National Disability Rights Network, Statement on Elections Accessibility during the COVID-19 Pandemic (March 17, 2020), https://www.ndrn.org/resource/statement-on-elections-accessibility-during-the-covid-19-pandemic/ (advocating for extension of “the opportunity to cast an absentee ballot to all eligible voters, without restriction”). 26 Sarah Jones, Privacy concerns with mail-in ballots for thousands of Hoosiers who are blind: Advocates say the pandemic has brought the issue of absentee voting equality to the forefront, 13 WTHR (June 16, 2020), https://www.wthr.com/article/news/politics/privacy-concerns-for-blind-voters/5313bb66d49-6d90-4483-81e9-0d935bf83b6d (last visited July 27, 2020). 27 Sabrina Gonzalez, Vote by Mail Is One of Many Ways to Ensure the Disability Community Is Included in the Next Election, Center for American Progress (May 19, 2020), https://www.americanprogress.org/issues/disability/news/2020/05/19/485218/vote-mail-one-many-waysensure-disability-community-included-next-election/ (“If proper precautions are not taken, in-person voting can be incredibly harmful to communities – and particularly dangerous for disabled individuals,” which “highlights the importance of coupling in-person voting with expansion of vote by mail”).
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will reduce crowding at polling places, which will in turn shorten wait times and allow for more social

distancing – all of which will encourage voting while reducing the risk of infection for Hoosiers with disabilities who vote in person.28

CONCLUSION

During the COVID-19 pandemic, decisions affecting access to the vote should take into account

the specific and diverse needs of all voters, including those with disabilities and the people with whom

they come into close contact. Ensuring that all registered Indiana voters have the option to vote by mail,

as well as to vote safely in person and via other accessible options, would protect the voting rights and

health of all Hoosiers, and especially those with disabilities, who are particularly vulnerable to the

coronavirus.

Respectfully submitted,

Date: August 11, 2020

/s/ Bridget A. Clarke

BRIDGET A. CLARKE (Cal. Bar #161320) 456 Boynton Avenue Berkeley, CA 94707 (510) 528-7755 baclarke@comcast.net
Attorney for Amici Curiae Indiana Disability Rights, Indiana Statewide Independent Living Council, American Diabetes Association, Disability Rights Education and Defense Fund, Inc., and the Disability Rights Legal Center

28 See CDC, supra note 18 (the CDC recommends that election officials “offer alternative voting methods that minimize direct contact and reduce crowd size at polling locations”).
Although this litigation concerns a vote-by-mail statute, it bears emphasis that in-person voting and remote accessible vote options should be widely available and meaningfully accessible during pandemic elections. For many people with disabilities (e.g., blind voters and voters with low literacy), traditional mail-in voting systems are not accessible. See IDR, supra note 25 (advocating “curbside voting” and “electronic ballots” during pandemic voting as accommodations for Hoosiers with disabilities); see also American Foundation for the Blind, Congress Must Protect the Voting Rights of People with Disabilities (Apr. 10, 2020), https://www.afb.org/blindness-and-low-vision/your-rights/voting-accessibility/jointletter-acb-voting-rights (letter to Congressional leaders from AFFTB and numerous disability rights organizations explaining the barriers presented by paper ballots and urging that “accessible, secure online” options be required in COVID-19 relief legislation so that “people with disabilities may privately and independently mark, cast, and verify their ballots”).
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 Case 1:20-cv-01271-JPH-DLP Document 50 Filed 07/24/20 Page 1 of 10 PageID #: 343

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHERINE BLACK, )

MARK BLACK, SHELLY BROWN,

)

DAVID CARTER, REBECCA GAINES,

)

JANICE JOHNSON, ELIZABETH

)

KMIECIAK, CHAQUITTA MCCLEARY, )

KATHERINE PAOLACCI, DAVID

)

SLIVKA, DOMINIC TUMMINELLO,

)

and INDIANA VOTE BY MAIL, INC.,

)

individually, and on behalf of those

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL OKESON, S. ANTHONY LONG,

)

SUZANNAH WILSON OVERHOLT, and )

ZACHARY E. KLUTZ, in their official

)

Capacity as members of the Indiana

)

Election Commission,

)

and CONNIE LAWSON, in her official

)

capacity as the Indiana Secretary of State, )

)

Defendants.

)

Case No. 1:20-cv-01271-JPH-DLP

RESPONSE IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION

Defendants, by counsel, respectfully submit this response in opposition to

Plaintiffs’ Motion for Class Certification [Dkt. 17.] This Court should deny

Plaintiffs’ Motion for Class Certification because the proposed class does not satisfy

the requirements of Federal Rule of Civil Procedure 23(a).

INTRODUCTION

Plaintiffs argue that they do not meet the definition of those entitled to vote

by absentee ballot under Indiana Code §3-11-10-24(a), and that their rights under

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the Fourteenth amendment, Twenty-Sixth amendment, and the Indiana Constitution will be violated. Plaintiffs’ proposed class is defined as: “All people who are or may subsequently become qualified to vote in the November 3, 2020, general election in Indiana, and who are not entitled to vote by mail because they do not satisfy any of the criteria of Ind. Code § 3-11-10-24(a)(1)–(13).” Plaintiffs’ prospective class is expansive as it includes any eligible voter qualified to vote by November 3, 2020, but does not satisfy the criteria laid out in Indiana Code §3-1110-24(a).
LEGAL STANDARD To certify a class, the four requirements of FRCP 23(a) must be satisfied: numerosity, commonality, typicality, and adequacy of representation. Additionally, the party seeking class certification must also satisfy one of the provisions of FRCP 23(b). Fed. R. Civ. P. 23; Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000). Plaintiffs assert that they meet the requirement of FRCP 23(b)(2). [Dkt. 18 at 7.] Under FRCP 23(b)(2), Plaintiffs must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Finally, the putative class must be identifiable “clearly and based on objective criteria.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).
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ARGUMENT I. Plaintiffs have not established numerosity
While federal courts do not require plaintiffs to provide an exact number of members in a proposed class, Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989), there must be more proof than “a conclusory allegation that a class is so numerous that joinder is impracticable,” Valentino v. Howelett, 528 F.2d 975, 978 (7th Cir. 1976) (per curiam). And because Plaintiffs have offered nothing more than conclusory allegations to establish numerosity, class certification should be denied.
In Valentino, the plaintiff filed suit, individually and on behalf of a class, alleging that Illinois violated the Constitution by refusing to issue restricted driving permits to individuals whose licenses were revoked for driving without proof of financial responsibility while granting such restricted permits to persons whose licenses had been revoked for other violations. Id. at 976. The Seventh Circuit denied class certification because the plaintiff merely “presented a speculative estimate of the size of the alleged class.” Id. at 979. It explained that the plaintiff’s conjecture that thousands of individuals “may lose their licenses under the financial responsibility law,” was both unsupported and irrelevant, because “the class at issue is much smaller than this”—to establish numerosity, the plaintiff would have to supply relevant “figures relating to the number of persons who [like the plaintiff] would be unable to post security at a later time, and who would qualify to apply for restricted driving permits on the ground of undue hardship.” Id.
Here, the evidence Plaintiffs say establish numerosity is similarly unsupported and inapposite. Plaintiffs estimate that at least 387,868 Indiana voters
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will be ineligible to vote by mail under Indiana Code § 3-11-10-24(a), but this figure is premised on unsubstantiated speculation regarding many voters’ ability to comply with the various statutory criteria. This figure is also irrelevant because the class is not simply all Hoosiers who will be ineligible to vote absentee, but all registered Indiana voters who will be ineligible to vote absentee and will nevertheless wish to vote by mail. Like the plaintiff in Valentino, Plaintiffs have presented no evidence at all regarding how many other voters, during the 2020 General Election, will fall into this category. Because Plaintiffs have not sufficiently established how many people fall into their proposed class, they cannot satisfy the numerosity requirement. II. The Plaintiffs have not established a commonality of law and facts
among the class members Nor can Plaintiff satisfy Rule 23(a)(2)’s commonality requirement. In addition to requiring common facts and questions of law to a proposed class, Rule 23(a)(2) requires proof that all class members “have suffered the same injury.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982)). In Wal-Mart the Court explained that plaintiffs cannot satisfy commonality merely because all class members “have suffered a violation of the same provision of law.” Id. at 350. In that case, employees of the same company claimed a Title VII violation but failed to prove that the statutory violation occurred in the same manner for every class member. Id. The Court held that to establish commonality, the plaintiff must identify a common
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contention that is “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.
Commonality is not satisfied here because Plaintiffs have not proven the proposed class members have suffered the same injury or even that any such injury will actually take place. Put another way, Plaintiffs’ proposed class is overly inclusive. The proposed class is “All people who are or may subsequently become qualified to vote in the November 3, 2020, general election in Indiana, and who are not entitled to vote by mail because they do not satisfy any of the criteria of Ind. Code § 3-11-10-24(a)(1)-(13).” The burdens placed on the Plaintiffs will differ greatly based on the individual – for instance, the named Plaintiffs currently range vastly in their claims and affected interests. Plaintiffs who are immunocompromised would not suffer the same alleged injury as those unwilling to vote in person for fear of contracting COVID-19, nor would an individual who works in the healthcare industry, and would differ greatly from an individual who fears contracting the virus and exposing others. While Plaintiffs allege a violation of their constitutional rights, this is not enough. The Supreme Court in Wal-Mart held that class members suffering from a violation of the same provision of law is not enough to prove commonality.
Because Plaintiffs cannot prove that the proposed class members all suffer from the same injury, a resolution in the current litigation cannot resolve each member’s grievance in one stroke. More important, Plaintiffs assume injury without
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providing evidence that any such individuals will be injured at all. Foregoing voting in person for fear of contracting the virus as compared to those who are unable to vote in person because they are immunocompromised does not constitute the same injury. Plaintiffs cannot adequately show a commonality of fact and law of potential registered voters who are ineligible or unwilling to vote by mail. Plaintiffs have failed to show the prospective class members would suffer any injury at all, let alone the same injury – the constitutional rights of registered voters in Indiana who choose to vote in person or not at all would not fit the proposed class, nor would they seek the relief that the Plaintiffs seek in this lawsuit. Plaintiffs have not satisfied the commonality requirement. III. The proposed class members’ claims are not typical of those of the
proposed class. Plaintiffs also cannot satisfy the typicality requirement, which requires that the representative parties’ claims be “typical of the claims . . . of the [proposed] class.” Fed. R. Civ. P. 23(a)(3). The Seventh Circuit has concluded that this provision requires the named plaintiffs to have the “same essential characteristics as the claims of the class.” De La Fuente v. Stokely–Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983); accord Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). The “same essential characteristics” means that the named plaintiffs’ claims arise “from the same event . . . or course of conduct that gives rise” to other members’ claims, and that all claims are “based on the same legal theory.” Id. (citation omitted).
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In Frank v. Walker, the court found typicality because the claims of the named plaintiffs and other class members arose from the same two characteristics —eligible voter could not vote because of the lack of a qualifying photo ID, and Wisconsin law created a high hurdle to obtaining a qualifying photo ID. 196 F. Supp. 3d 893, 902 (E.D. Wis. 2016), aff'd in part, rev'd in part sub nom., Luft v. Evers, No. 16-3003, 2020 WL 3496860 (7th Cir. June 29, 2020).
Unlike the named plaintiffs in Frank, however, Plaintiffs here have not proven that their claims and those of other members arise from the same event or course of conduct. Plaintiffs’ proposed class improperly includes all Indiana voters who are not eligible to vote by mail in the proposed class. The specifically cited criteria for “voters with disabilities”, Ind. Code § 3-11-10-24(a)(4), and for voters with “illness or injury,” id. at (a)(3), are not and cannot be typical of all voters ineligible to vote by mail. Voters who are unwilling to vote in person due to personal concerns do not have the same claims as those who are unable to risk entering a poll due to medical reasons. Voter’s preference to vote by mail due to personal concerns and preferences is not reflective of those who are unable to enter a polling place due to medical reasons – Plaintiffs proposed class presents varying circumstances, showing no evidence of typicality among the proposed class. Such members of the class would have conflicting and antagonistic claims with the class representatives and thus are not typical of the claims represented by the class representatives.
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Even if the challenged statute were updated in light of the COVID-19 pandemic concerns, some voters will remain ineligible. Plaintiffs’ alleged injury are specific to their situations and are not proven to be substantially similar to those of other members in the proposed class of Indiana voters. Defendants do not challenge that the claims of the proposed class are related to the same legal theory. IV. The plaintiffs cannot fairly and adequately protect the interests of
the proposed class The fourth requirement of Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Plaintiffs cannot fairly and adequately protect the interests of the proposed class because the proposed class likely has divergent interests, as described above, contrary to Plaintiffs’ assertion that all members of the proposed class share a goal of having the option to safely vote by mail and avoid voting in person. Due process concerns “require that a court undertake a stringent and continuing examination of the adequacy of representation by the named class representatives at all stages of the litigation where absent members will be bound by the court's judgment.” Susman v. Lincoln American Corp., 561 F.2d 86, 90–91 (7th Cir. 1977). Adequacy of representation is analyzed in two parts: (1) “the adequacy of the named plaintiff’s counsel” and (2) “the adequacy of representation provided in protecting the different, separate, and distinct interest” of the class members. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993). If “class members have antagonistic or conflicting claims,” then the “class is
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not fairly and adequately represented.” Id.; see also Sec. of Labor v. Fitzsimmons, 805 F.2d 682, 688–89 (7th Cir. 1986) (holding that class certification was improper when some members of the class sought to increase the number of members eligible for pension benefits and others sought to narrow pension benefit rules); see also Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (district court did not err in denying class certification when the class representative sought to certify a class that included anyone who purchased a fountain Diet Coke, because the class representative’s claim about Coca-Cola’s failing to disclose the use of saccharin was not sufficiently typical to qualify her for class representation when the proposed class would include persons who knew that Diet Coke contained saccharin and chose to purchase and drink it anyway).
Because Plaintiffs’ proposed class is over-inclusive for the reasons described above, the class representatives will not fairly or adequately protect the interests of all class members. The expansive nature of Plaintiffs’ proposed class will capture Indiana residents not eligible to vote by mail who do not agree that voting by mail should be available, who have vastly different circumstances and interests, and who intend to visit their polling location to vote in person on November 3, 2020. Plaintiffs make the assertion that the class representatives share a goal with “all members of the proposed class” to “have the option to safely vote by mail and to avoid voting in person” by assuming that all Indiana residents who will be eligible to vote in the upcoming general election will have their concerns adequately addressed through the claims as those raised by the class representatives.
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Because the class representatives will not adequately and fairly represent the interests of all class members, this Court should deny Plaintiff’s motion for class certification.
CONCLUSION Accordingly, this Court should consider the scope of the relief sought in reference to the putative class.
Respectfully submitted, OFFICE OF THE INDIANA ATTORNEY GENERAL
By: Jefferson S. Garn Deputy Attorney General Attorney No. 29921-49 Parvinder Nijjar Deputy Attorney General Attorney No. 33811-41 Courtney Abshire Deputy Attorney General Attorney No. 35800-49
Office of the Indiana Attorney General Indiana Government Center South, 5th Floor 302 West Washington Street Indianapolis, IN 46204-2770 Phone: (317) 234-7019 Fax: (317) 232-7979 Jefferson.Garn@atg.in.gov
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHERINE BLACK, MARK BLACK, SHELLY BROWN, DAVID CARTER, REBECCA GAINES, JANICE JOHNSON, ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY, KATHERINE PAOLACCI, DAVID SLIVKA, DOMINIC TUMMINELLO, and INDIANA VOTE BY MAIL, INC., individually, and on behalf of those similarly situated
Plaintiffs,
v.
PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON OVERHOLT, and ZACHARY E. KLUTZ, in their official capacity as members of the Indiana Election Commission, and CONNIE LAWSON, in her official capacity as the Indiana Secretary of State;
Defendants.

) ) ) ) ) Case No.: 1:20-cv-01271-JPH-DLP ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs ask for a preliminary injunction that would invalidate the absenteeballot requirements set forth in Indiana Code § 3-11-10-24(a) and would require the State to allow anyone to vote absentee for any reason in the November 3, 2020, general election. Plaintiffs’ argument, in other words, is “that the Constitution requires

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all states to allow unlimited absentee voting, and the argument ignores a host of serious objections to judicially legislating so radical a reform in the name of the Constitution.” Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004).
Indeed, the Fifth Circuit recently rejected claims materially identical to the Fourteenth and Twenty-Sixth Amendment claims Plaintiffs advance here. See Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020). And rightly so: The Supreme Court has long held that the Constitution neither grants a right to vote absentee nor obligates States to design their elections laws to ensure all citizens—including those for whom voting “may be extremely difficult, if not practically impossible”—are able to vote. McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807–09 & n.8 (1969) (applying rational basis scrutiny, rather than strict scrutiny, to an Illinois law that limited who could vote absentee because it was “not the right to vote that is at stake here but a claimed right to receive absentee ballots”); see also Texas Democratic Party, 961 F.3d at 403, 408 (explaining that McDonald “squarely governs the equalprotection issue” and “applies equally to the Twenty-Sixth Amendment claim”). This case law precludes courts from “allow[ing] a political question—whether a rule is beneficial, on balance—to be treated as a constitutional question and resolved by the courts rather than by legislators.” Luft v. Evers, 963 F.3d 665 (7th Cir. 2020). Plaintiffs’ preliminary injunction motion should therefore be denied.
BACKGROUND 1. Indiana uses a variety of voting methods to ensure Hoosiers can exercise their right to vote, and that elections are reasonably secure from fraud. Indiana al-
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lows residents to vote in person both on Election Day and within 28 days prior (sometimes called “absentee in-person” voting), and to vote absentee by mail before Election Day. Through in-person voting, voters are able to vote in private and ensure accuracy of their voting. Absentee-by-mail voting introduces potential hurdles and difficulties in accurate voting as well as a greater potential for fraud.
Accordingly, Indiana has imposed limitations on absentee-voting to limit the problems inevitably posed by this method of balloting—problems that courts have consistently recognized. In rejecting a challenge to Illinois’s absentee-ballot law, the Seventh Circuit noted the “host of serious objections to judicially legislating” no-excuse absentee voting. Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004).
First, “[v]oting fraud is a serious problem in U.S. elections generally and . . . is facilitated by absentee voting.” Id. at 1130–31 (collecting sources); see also Prigmore v. Renfro, 356 F. Supp. 427, 432 (N.D. Ala. 1972), aff’d, 410 U.S. 919 (1973) (finding Alabama’s limitations on absentee-voting were “reasonably related to protection against fraud in the voting of absentee ballots”). Voting by mail introduces the potential of fraudulent voting, including through coercion that would not exist in the presence of election officials. That is why Indiana not only restricts who may cast an absentee-by-mail ballot, but also who may handle that ballot. See Ind. Code § 3-14-216(9)–(10); see also Pabey v. Pastrick, 816 N.E.2d 1138, 1149 (Ind. 2004) (invalidating mayoral election in light of pervasive fraud attendant to handling of absentee-by-mail ballots).
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Absentee voters also are more prone to cast invalid ballots than voters who, being present at the polling place, may be able to get assistance from the election judges if they have a problem with the ballot. Griffin at 1131. Voting in person ensures casting the accurate vote the voter casts. A voter may incorrectly mark more than the maximum allowed – invalidating the vote, a mistake easily avoided by voting in person. Voting by mail has proven to pose additional problems such as delayed delivery of the ballots causing voters to submit duplicate ballots or delayed delivery after the deadline causing voter’s vote to be discounted. [Dkt. 53-1 at ¶¶ 8-9, Dkt. 532 at 5-6, Dkt. 53-3 at ¶¶ 9–10.] To ensure voter confidence in absentee voting, the infrastructure must be thoroughly developed before it is implemented to ensure it is viable and the implications are understood and addressed.
2. On March 6, 2020, Indiana Governor Eric Holcomb declared a public health emergency for the novel coronavirus disease outbreak. [Dkt. 53-5 at 1.] Shortly thereafter, on March 20, 2020, Governor Holcomb exercised his public health emergency authority under Ind. Code § 10-14-3 to postpone the primary election, normally held on the first Tuesday of May, to June 2, 2020. [Dkt. 53-6.] On March 23, 2020, Governor Holcomb issued his directive for Hoosiers to Stay at Home, ordering Indiana residents to stay in their place of residence and prohibiting public or private gatherings of more than ten people, except for essential activities, essential governmental functions, or participating in essential businesses. [Dkt. 53-7.]
Following these orders, the Indiana Election Commission issued an emergency order, Order 2020-37, on March 25, 2020, moving the primary election date to June
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2, 2020. [Dkt. 53-8.] And, noting that Indiana law “permits the Commission, in an emergency, to allow a person who is otherwise qualified to vote in person the ability to vote by absentee ballot,” id. (citing Ind. Code § 3-11-4-1(c)), this Order further provided that “[a]ll registered and qualified Indiana voters are afforded the opportunity to vote no-excuse absentee by mail” for the primary election. [Dkt. 53-8.] As a result of the IEC’s Order 2020-37, all 92 counties in Indiana permitted voters to vote by mail, in addition to in-person voting, for the primary election on June 2, 2020.
In allowing no-excuse absentee-by-mail voting, many counties experienced challenges processing the larger-than-usual volume of absentee ballots—challenges that would not have arisen if the election had used the normal voting rules that generally require in-person voting. Local counties incurred unintended costs in hiring personnel to process and count the mail-in votes, in postages to mail out the ballots, and to install safety measures to securely store the absentee ballots. [Dkt. 53-2 at ¶¶ 4–5, 10.] In addition, numerous absentee-by-mail ballots were not counted due to human error that could easily be avoided by the electronic machines: many voters forgot to sign their ballots, and sometimes election officials failed to initial the ballot before sending it to the voter. [Dkt. 53-2 at ¶ 11.] And, of course, the United State Postal Service’s notorious unpredictability caused many ballots to arrive late to the voter and to be returned after the deadline to be counted. [Dkt. 53-1 at ¶ 8, Dkt. 53-2 at ¶ 5, Dkt. 53-3 at ¶ 9.]
If no-excuse absentee-by-mail voting is permitted for the general election in November, these problems would be far larger due to far greater voter participation.
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3. Indiana election officials are taking extraordinary precautions to protect voters from the COVID-19 pandemic. Before the primary election, the Secretary of State spent more than $1 million on media campaigns promoting voter awareness and participation before the 2020 primary election. [Dkt. 53-4 at ¶ 5]. Indiana also received $8 million in federal CARES Act funding to support safe 2020 elections. [Dkt. 53-4 at ¶ 4]. With the help of the Indiana National Guard, the Secretary of State procured and distributed personal protective equipment (PPE), including face masks, gloves, face shields, sneeze guards, hand sanitizer, and surface and equipment disinfectant, to all 92 counties to be used during the 2020 primary election. [Dkt. 53-4 at ¶ 7].
Of the $8 million received in CARES Act funding, $4.5 million remains available to fund safety efforts in the 2020 general election. [Dkt. 53-4 at ¶ 4.] The Secretary of State will again, with the assistance of the Indiana National Guard, procure and distribute over 1 million face masks, over 1.5 million gloves, 20,000 half-gallon bottles of hand sanitizer, 5,000 gallons of surface and equipment disinfectant, and other PPE supplies for voters and for poll workers. [Dkt. 53-4 at ¶ 8.] According to research done by an independent accounting firm, the amount of PPE the Secretary of State will procure should be sufficient to protect every poll worker throughout the state and up to 2 million in-person voters. [Dkt. 53-4 at ¶ 8.] Furthermore, the Secretary of State maintains an inventory of surplus PPE and will have the financial ability to procure and distribute additional PPE on an as-needed basis. [Dkt. 53-4 at ¶ 8.]
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The Secretary of State plans to spend an additional $1 million on media campaigns promoting voter awareness and participation before the 2020 general election. [Dkt. 53-4 at ¶ 6.] The Secretary of State also plans to provide all precincts with a manual on best safety practices for voters and poll workers based on CDC guidelines, posters on pandemic safety precautions, and social distancing markers to be used in the 2020 general election. [Dkt. 53-4 at ¶ 9.]
4. The ample precautionary measures being taken by Defendants and other Indiana election officials are above and beyond the precautionary measures Plaintiffs themselves claim they take when they leave their homes. Plaintiffs have stated that the precautionary measures they take upon leaving their homes includes wearing masks and observing social distancing. [Dkt. 53-9 at 5-11.] Plaintiffs have deemed that those precautionary measures are reasonable, both in necessary outings (such as for shopping for groceries), and clearly unnecessary outings, such as multiple trips to the hair salon/barber [Dkt. 53-9 at 5, 9], frequent casual dining at restaurants [Dkt. 53-9 at 5–7, 10], in-person socializing with friends [Dkt. 53-9 at 5, 9, 11], in-person socializing with family [Dkt. 53-9 at 8, 9, 11], attending yoga classes [Dkt. 53-9 at 5, 6], going out for drinks [Dkt. 53-9 at 5, 9], going to the hardware store [Dkt. 53-9 at 6, 7, 10], staying in a hotel [Dkt. 53-9 at 6], traveling interstate by plane [Dkt. 53-9 at 6], attending large family gatherings of thirteen people [Dkt. 53-9 at 6], going to the personal trainer [Dkt. 53-9 at 7], going to the gym [Dkt. 53-9 at 7, 9], going to the dentist [Dkt. 53-9 at 7], meeting with investors [Dkt. 53-9 at 7], and attending rallies and demonstrations. [Dkt. 53-9 at 8, 11.]
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Despite Plaintiffs’ position that casting their votes in person is so dangerous it threatens their right to vote, some Plaintiffs went to voting sites in person for the June 2020 primary elections, despite having the option to vote by mail visiting voting sites [Dkt. 53-9 at 5, 11.] Plaintiffs’ position that they are unable to cast their votes in person due to the dangers presented by COVID-19 are undermined by the frequency that they have ventured out of their homes for unnecessary purposes. Plaintiffs’ reliance on wearing masks and social distancing as sufficient precautionary measures against COVID-19 when going out for drinks, visiting with friends, and going to the gym, undermines their arguments that they will feel unsafe attending the polls in-person for the November 2020 general election. The methods Plaintiffs utilized to avoid the spread of COVID-19 are measures they are able to take when voting in person in the November 2020 general election, in addition to the aforementioned precautionary measures Defendants and the State are taking to further mitigate the risks posed by COVID-19.
LEGAL STANDARD FOR PRELIMINARY INJUNCTIONS “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129–130 (2d ed.1995) (emphasis added by Mazurek court). To obtain a preliminary injunction, a party must show that it: (1) has a reasonable likelihood of success on the merits; (2) lacks an adequate remedy at law; and (3)
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will suffer irreparable harm if the preliminary injunction is not awarded. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). See also Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). In Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) the Seventh Circuit has also weighed whether the public interest would be served by entering the preliminary injunction.
When evaluating whether a preliminary injunction is appropriate, “[i]t is not enough that the chance of success on the merits be ‘better than negligible.’” Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Sofinet v. INS, 188 F.3d 513, 514 (7th Cir. 1999)). Rather, “likelihood of success remains a prerequisite.” United States v. Transocean Deepwater Drilling, Inc., 537 F. App’x 358, 361 (5th Cir. 2013) (per curiam) (quoting Ruiz v. Estelle, 666 F.2d 854, 856-57 (5th Cir. 1982)). This rule is especially important where a plaintiff seeks to preliminarily enjoin state officials from enforcing state laws, for “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. Of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977).
ARGUMENT I. Plaintiffs Have Failed to Show a Reasonable Likelihood of Success
on the Merits of Their Fourteenth Amendment or Twenty-Sixth Amendment Claims Plaintiffs seek a preliminary injunction on the basis of their claim that Indiana law’s limitations on who may vote by absentee ballot, Ind. Code § 3-11-10-24(a), is unconstitutional “as applied during the pandemic” under the Fourteenth and Twenty-
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Sixth Amendments. (Plaintiffs’ complaint also raises a claim under the Indiana Constitution’s Immunities Clause, but their preliminary injunction motion does not rely on this claim.) Plaintiffs have failed to show a likelihood of success on the merits of these claims, so the Court should deny their preliminary injunction motion.
A. Plaintiffs have failed to show a likelihood of success on the merits of their Fourteenth Amendment claims
1. Plaintiffs’ Fourteenth Amendment claims are directly foreclosed by the Supreme Court’s decision in McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), which squarely rejected an analogous Equal Protection Clause challenge to a state law limiting absentee voting. The claims at issue in McDonald were materially identical to the claims Plaintiffs press here. In McDonald the plaintiffs argued that the Equal Protection Clause prohibited Illinois from permitting absentee voting for some groups—“(1) those who are absent from the county of their residence for any reason whatever; (2) those who are ‘physically incapacitated’ . . . ; (3) those whose observance of a religious holiday precludes attendance at the polls; and (4) those who are serving as poll watchers in precincts other than their own”— but not others, in particular the plaintiff class of “unsentenced inmates . . . who . . . cannot readily appear at the polls either because they are charged with nonbailable offenses or because they have been unable to post the bail imposed by the courts of Illinois.” Id. at 803–04.
The Court observed that “underlying” the plaintiffs’ claim was “the assertion that since voting rights are involved, there is a narrower scope for the operation of
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the presumption of constitutionality than would ordinarily be the case with state legislation challenged in this Court.” Id. at 806. And the Court flatly rejected that assertion: Strict scrutiny was “not necessary” because Illinois law did not draw distinctions “on the basis of wealth or race” and because “there is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote,” id. at 807, “[s]ince there is nothing in the record to show that [the plaintiffs were] in fact absolutely prohibited from voting by the State,” id. at 808 n.7 (emphasis added). Because it was “thus not the right to vote that is at stake here but a claimed right to receive absentee ballots,” id. at 807, the Illinois law’s “distinctions” were merely required to “bear some rational relationship to a legitimate state end,” id. at 809. And the Court concluded they did: While “Illinois could, of course, make voting easier for all concerned by extending absentee voting privileges to” the plaintiffs, “[i]ts failure to do so, however, hardly seems arbitrary, particularly in view of the many other classes of Illinois citizens not covered by the absentee provisions, for whom voting may be extremely difficult, if not practically impossible.” Id. at 809–10.
McDonald thus stands for the proposition that the Constitution does not confer a right to vote by absentee ballot. See Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627 n.6 (1969) (“In McDonald . . . we were reviewing a statute which made casting a ballot easier for some who were unable to come to the polls . . . at issue was not a claimed right to vote but a claimed right to an absentee ballot.”); Crawford v.
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Marion Cty. Election Bd., 553 U.S. 181, 209 (2008) (Scalia, J., concurring in the judgment) (“That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence—not a constitutional imperative that falls short of what is required.”); Mays v. LaRose, 951 F.3d 775, 792 (6th Cir. 2020) (“There is no constitutional right to an absentee ballot.”). Rational-basis scrutiny therefore applies to distinctions States draw in crafting their absentee-ballot rules so long as States do not “absolutely prohibit[],” McDonald, 394 U.S. at 809, voting by other means (such as in-person voting).
And it was for precisely this reason that the Fifth Circuit recently rejected a parallel Equal Protection Clause challenge to Texas’s absentee-voting law, which also specifically permits elderly citizens to vote absentee. See Texas Democratic Party v. Abbott, 961 F.3d 389, 406 (5th Cir. 2020) (“Because the plaintiffs’ fundamental right is not at issue, McDonald directs us to review only for a rational basis”).
Indeed, Plaintiffs readily admit that the Constitution does not confer a right to vote absentee and that the State could therefore likely eliminate all absentee voting if it wished. [Dkt. 14 at 9.] They attempt to sidestep McDonald by challenging Indiana’s absentee-voter law on an “as applied” basis, contending—like the plaintiffs in McDonald—that because the State has “granted some of its citizens a categorical entitlement to vote by mail,” its decision not to allow all voters to vote by mail violates the Equal Protection Clause. [Dkt. 14 at 11.] McDonald, however, establishes that “a state’s refusal to provide a mail-in ballot does not violate equal protection unless . . .
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the state has ‘in fact absolutely prohibited’ the plaintiff[s] from voting.” Texas Democratic Party, 961 F.3d at 404 (internal citation omitted).
Confronting the trouble McDonald spells for their claims, Plaintiffs also contend that the decision has been “limited . . . to its facts.” [Dkt. 14 at 12.] (citing Hill v. Stone, 429 U.S. 289, 300 n. 9 (1975); O’Brien v. Skinner, 409 U.S. 1240, 1241 (1972) (Marshall, J., in chambers); Goosby v. Osser, 409 U.S. 512, 520–22 (1973)). Every case Plaintiffs cite on this score, however, merely reiterates the uncontroversial point— which McDonald itself made—that heightened scrutiny applies only when a citizen is “in fact absolutely prohibited from voting by the State.” McDonald, 394 U.S. at 808 n.7. Hill, which involved a law that categorically denied the vote to citizens who failed to list property with the local tax assessor, explained that McDonald did not control because the Illinois absentee-voting law at issue in McDonald did not have “any impact on the appellants’ exercise of their right to vote”; it merely limited one form of voting and did not “actually restrain[ ] the fundamental right to vote.” 429 U.S. at 300 n.9 (emphasis added). O’Brien and Goosby make the same point: Heightened scrutiny is appropriate only where “the State has rejected alternative means by which applicants might exercise their right to vote” (such as in-person voting). O’Brien, 409 U.S. at 1241 (Marshall, J., in chambers); see also Goosby, 409 U.S. at 521–22 (explaining that McDonald did not bar the plaintiffs’ claims because they “allege[d] that, unlike the appellants in McDonald, the Pennsylvania statutory scheme absolutely prohibits them from voting” (emphasis added)).
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And in any case, the Supreme Court has consistently reiterated that it—not lower courts—has the sole power to overturn its precedents, which is not something the Court normally does “sub silentio.” Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000). Because the Court has not overturned McDonald, the decision remains good law. After all, Burdick itself “cites it favorably.” Texas Democratic Party, 961 F.3d at 406 (citing Burdick v. Takushi, 504 U.S. 428, 434 (1992)). “McDonald lives.” Id.
Accordingly, McDonald requires that the distinctions drawn by Indiana’s absentee-voter law be subject to merely rational-basis review. And here Plaintiffs’ principal objections seems to be to the Indiana legislature’s decision to allow elderly Hoosiers to vote absentee while not allowing all Hoosiers to vote absentee for any reason. But “because an age classification is presumptively rational, the individual challenging its constitutionality bears the burden of proving that the ‘facts on which the classification is apparently based could not reasonably be conceived to be true by the governing decisionmaker.’” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000) (quoting Vance v. Bradley, 440 U.S. 93 (1979); see also Massachusetts Bd. Of Retirement v. Murgia, 427 U.S. 307, 314 (“Even if the statute could be said to impose a penalty upon a class defined as the aged, it would not impose a distinction sufficiently akin to those classifications that we have found suspect to call for strict judicial scrutiny.”). “[W]here rationality is the test, a State ‘does not violate the Equal Protection Clause merely because the classifications made by its law are imperfect.’” Id. at 316. Rational-basis review “‘is not a license for courts to judge the wisdom, fairness, or
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logic of legislative choices.’” Johnson v. Daley, 339 F.3d 582, 587 (7th Cir. 2003) (quoting Heller v. Doe, 509 U.S. 312, 319 (1993)).
Despite the circumstances created by COVID-19 and the implications they have on life in the public square, elected officials are better-equipped to assess the public health issues at play and appropriately address them. In particular, age-based considerations are commonplace in election laws, and Indiana’s decision to allow all elderly voters to vote absentee fits squarely in the realm of “rationally related to a legitimate state interest,” for the State has a clear and direct interest in encouraging elderly citizens—who are more likely to encounter obstacles to getting to the polls— to vote. See McDonald, 394 U.S. at 809. Eight States, including Indiana, have identified an interest in encouraging elderly citizens to vote by allowing such citizens to vote absentee-by-mail. See Ind. Code § 3-11-10-24(a)(5); Ky. Rev. Stat. Ann. § 117.085(1)(a)(8); La. Stat. Ann. § 18:1303(J); Miss. Code Ann. § 23-15-715(b); S.C. Code Ann. § 7-15-320(B)(8); Tenn. Code Ann. § 2-6-201(5)(A); Tex. Election Code Ann. § 82.003; W. Va. Code § 3-3-1(d)(3). And many of these laws have been place for decades. Kentucky, Tennessee, and Texas, for example, have allowed elderly citizens to vote by absentee ballot for nearly fifty years. See Act of June 19, 1976, ch. 247, 1976 Ky. Acts 527; Act of May 3, 1973, ch. 399, 1973 Tenn. Pub. Acts 1411–12; Act of June 20, 1975, ch. 682, 1975 Tex. Gen. Laws 2082.
Indiana’s willingness to make accommodations for that vulnerable population does not constitutionally obligate the State to throw the door open to statewide absentee voting. See McDonald, 394 U.S. at 810 (“Ironically, it is Illinois’ willingness to
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go further than many States in extending the absentee voter privileges . . . that has provided appellants with a basis for arguing that the provisions operate in an invidiously discriminatory fashion to deny them a more convenient method of exercising the franchise.”).
For this reason alone, Plaintiffs have failed to show a likelihood of success on the merits of their Fourteenth Amendment claim. McDonald is itself sufficient to foreclose this claim, particularly given the nearly identical theories and relevant facts between this case and McDonald.
2. Even if the Court were to accede to undertake the “Anderson-Burdick” analysis Plaintiffs request, moreover, Plaintiffs have still failed to show a likelihood of success on the merits. As the Seventh Circuit recently explained, the Anderson-Burdick test is deferential to state legislative judgments: It does not “allow the judiciary to decide whether any given election law is necessary” on the ground that unnecessary laws are “by definition an excessive burden.” Luft v. Evers, 963 F.3d 665 (7th Cir. 2020). On the contrary, the Supreme Court’s decisions “foreclose[ ] that sort of substitution of judicial judgment for legislative judgment.” Id.
In addition, courts applying this test “must not evaluate each clause [of a State’s election law] in isolation.” Id. Instead, “[c]ourts weigh these burdens against the state’s interests by looking at the whole electoral system. Only when voting rights have been severely restricted must states have compelling interests and narrowly tailored rules.” Id. (internal citations omitted).
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Plaintiffs fail even to attempt such a system-wide analysis. They have instead directed their arguments specifically at the distinctions Indiana’s absentee-voting law draws, particularly its authorization of absentee voting by elderly Hoosiers. Luft makes absolutely clear that Anderson/Burdick does not license such fine-grained second-guessing. “In isolation, any rule reducing” the number of opportunities to vote “seems like an unjustified burden. But electoral provisions cannot be assessed in isolation. . . . One less-convenient feature does not an unconstitutional system make.” Id. Because Plaintiffs have only identified a single, “less-convenient feature” of Indiana’s voting system, their Anderson/Burdick theory fails from the get-go.
And even if the Court were to consider whether Indiana’s voting system as a whole “severely restrict[s]” voting rights under Anderson/Burdick, id., it plainly does not. Like Wisconsin, Indiana “has lots of rules that make voting easier.” Id. For example, Indiana has empowered counties to create “vote centers” that provide voters additional places to cast a ballot regardless of their precinct. Ind. Code § 3-11-18.113. Indiana also enables online voter registration and provides assistance to voters with disabilities and those unable to understand English. Ind. Code §§ 3-11-9-2; 3-726.7-5.
The “net effect” of Indiana’s voting rules has led to a turnout rate well in line with other States; according to the Census Bureau, approximately 85% of Indiana registered voters voted in the November 2016 general election, for example. See U.S. Census Bureau, Voting and Registration in the Election of November 2016 (May 10, 2017), Table 4a, https://www.census.gov/data/tables/time-series/demo/voting-and-
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registration/p20-580.html (reporting approximately 3.3 million registered voters and approximately 2.8 million votes cast in Indiana).
Finally, as noted, Plaintiffs concede that the Constitution allows Indiana to do away with absentee voting entirely; their objection, at bottom, is that the State allows only some voters to vote absentee. But this argument sounds in rational-basis review, not Anderson/Burdick. Allowing certain groups to vote by mail cannot fairly be said to burden the voting rights of anyone, much less severely restrict them.
For these reasons, Indiana’s absentee-voting law satisfies rational-basis review, and Plaintiffs are thus not likely to succeed on their Fourteenth Amendment challenge to the statute.
B. Plaintiffs have failed to show a likelihood of success on the merits of their Twenty-Sixth Amendment claims
The Twenty-Sixth Amendment states, in relevant part, “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” U.S. Const. amend. XXVI, § 1. Plaintiffs claim that Indiana Code § 3-11-10-24(a) violates the Twenty-Sixth Amendment’s prohibition against the denial or abridgement of the right to vote on account of age because it categorically authorizes all registered voters ages 65 and older to vote by mail, but allows voters under the age of 65 to vote by mail only if they meet any one of the statute’s twelve other vote-by-mail qualifications. [Dkt. 14 at 16–17.] Plaintiffs’ Twenty-Sixth Amendment claim fails, however, because this statute does not “deny or abridge” Plaintiffs’ (or any other voters’) right to vote. As explained above, the Constitution confers a right to vote, not a right to
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vote absentee. Because Indiana Code § 3-11-10-24(a) merely limits who may vote absentee, it does not run afoul of the Twenty-Sixth Amendment.
McDonald forecloses Plaintiffs’ Twenty-Sixth Amendment claim for the same reasons it forecloses their Fourteenth Amendment claim. As the Fifth Circuit explained in addressing Twenty-Sixth Amendment arguments strikingly similar to those put forth by Plaintiffs here “[t]he well-respected logic of McDonald applies equally to the Twenty-Sixth Amendment claim” challenging Texas’s absentee-voter law. Texas Democratic Party, 961 F.3d at 408. The Fifth Circuit explained that “employing McDonald’s logic leads inescapably to the conclusion that rational-basis review applies” to both Fourteenth Amendment and Twenty-Sixth Amendment challenges to absentee-voting laws. Id. at 409. “If a state’s decision to give mail-in ballots only to some voters does not normally implicate an equal-protection right to vote”— which, as explained above, is precisely what McDonald holds—“then neither does it implicate ‘[t]he right ... to vote’ of the Twenty-Sixth Amendment.” Id. “McDonald’s logic applies neatly to the Twenty-Sixth Amendment’s text—which was ratified two years after McDonald—because the Amendment similarly focuses on whether the state has “‘denied or abridged’ the right to vote.” Id.
Accordingly, the Twenty-Sixth Amendment does not prohibit a State from using age as a criterion for absentee voting because such a distinction does not deny or abridge the right to vote. It instead merely limits the “claimed right to receive absentee ballots.” Id. (quoting McDonald, 394 U.S. at 807). Indiana’s absentee-voter law thus does not implicate the Twenty-Sixth Amendment at all.
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II. The Balance of Harms and the Public Interest Weigh Against the Motion Defendants have a fundamental interest in equal, fair, and consistent enforce-
ment of its election laws. Precisely because “[v]oting is of the most fundamental significance under our constitutional structure,” Burdick, 504 U.S. at 433, states must have in place a system that balances election security with access to the ballot box. See Crawford v. Marion County Election Bd., 553 U.S. 181, 196-97 (2008) (“There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters;” “public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.”) Too little security, and legitimate votes are diluted by fraudulent ones. Too little access, and voter participation suffers unnecessarily. No magic formula exists, and legislatures, election commissions, and other officials must account for an infinite variety of circumstances when calibrating, as a matter of public policy, competing demands for security and access. See Bailey v. S.C. State Election Comm'n, No. 2020-000642, 2020 WL 2745565 at *1 (S.C. May 27, 2020) (“whether [the] law should allow all general election voters vote absentee” in response to the coronavirus outbreak is a non-justiciable political question).
In assessing whether to permit no-excuse absentee-by-mail voting, the Commission members use their statutory authority and 50+ years of combined election experience to consider and weigh, in a public forum, voluminous, conflicting scientific reports, highly technical election administration laws and practices, reports from local election administrators, input from voters, candidates, campaigns and political
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parties. To do so they hold public meetings, deliberate in public, and make a record. Commissioners will explain their rationale and be accountable to the public for their decisions, which are subject to judicial review under the state’s Administrative Orders and Procedures Act (Ind. Code § 4-21.5 et sec.).
For the June 2020 primary election, the Commission, using the above-outlined process, concluded that the burdens of the COVID-19 pandemic, combined with the generally modest voting rates attendant to a primary election, weighed in favor of adopting an emergency resolution permitting no-excuses absentee-by-mail voting.
Plaintiffs insist that election law is a one-way ratchet, such that, having thereby expanded voting opportunities and loosened election security, the Commission cannot refuse to do the same for the November general election. But neither the Commission nor the General Assembly, having adopted a particular mix of voter access and election security for one election, or forbidden from recalibrating that mix in future elections. Defendants’ insight and understanding of COVID-19 and how it impacts life in the public forum is growing and evolving with each passing day. The precautionary measures known to be effective in the June 2020 primary election are different from those known now, and the knowledge about combatting and containing COVID-19 will only grow between now and the November 2020 general election.
Furthermore, based on experience, Defendants anticipate much higher voter turnout in the November general election than occurred during the primary election. Indiana’s voting systems are equipped to handle that higher turnout when the bulk of it occurs for in-person voting, whether on Election Day or before (i.e., during the 28
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days prior to Election Day when voters can cast their ballot through what is called “absentee-in-person” voting). Permitting no-excuse absentee-by-mail voting, however, would shift vast numbers of voters to an entirely different system. The Commission must consider, among many other factors, whether the Indiana election system—meaning not only state officials, but county officials, volunteers, equipment and facilities, to say nothing of the United States Postal Service—can handle such a dramatic shift in the logistics of collecting and tabulating ballots. During the primary, many counties already experienced problems with undelivered and overdelivered ballots, facially defective ballots, and late returned ballots that were never counted. The Commission must consider whether such problems, plus the cost of building and staffing the infrastructure necessary to facilitate exponentially greater numbers of absentee ballots, may overwhelm the integrity of the vote-counting system in place in Indiana—and whether the time remaining between now and the November 3, 2020 general election is sufficient to procure the resources (including millions of ballots, envelopes, and funding) necessary for statewide absentee-by-mail voting.
Following the 2020 primary election, many counties saw a significant increase in the time required to open, process, and tally the vastly increased number of absentee-by-mail ballots. This time consuming endeavor caused many counties to delay finalizing their vote tallies and the certification of election results. With a controversial and hotly contested presidential race and other important and vigorously contested races, the 2020 general election requires state and local officials to provide final vote tallies as quickly as possible. The Commission must consider whether a
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delay in county reporting occasioned by massive numbers of absentee-by-mail ballots, and accompanying uncertainty regarding election outcomes—or, for that matter, massive numbers of absentee-by-mail ballots that are disqualified because late or defective—could foreseeably result in escalated civil unrest akin to what the Nation has experienced in recent months.
What Defendants and local officials can accomplish between now and Election Day, however, is to establish reasonable precautions against the spread of COVID-19 at the polls. For every election, the Secretary of State, in her capacity as the state’s chief Election Officer, coordinates development of election emergency preparedness and contingency plans. She holds meetings with planners and emergency responders, produces and distributes a handbook and a list with emergency contact information. Her office has for the November election, prepared plans to contend for all sorts of emergencies impacting individual polling locations, counties or the entire state. The Secretary of State is assisting counties and the Election Commission with a steady stream of high-level expertise, data and analysis on factors impacting election administration, the voting process and likely to impact voter turnout, as well as estimations of voter turnout and resources needed to conduct efficient and trusted elections.
The Secretary of State implemented numerous safety precautions in advance of the 2020 primary election. With the help of the Indiana National Guard and with the use of CARES Act funding, the Secretary of State provided personal protective equipment (PPE), including face masks, gloves, face shields, sneeze guards, hand sanitizer, and surface and equipment disinfectant, to all 92 counties to be used during
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the 2020 primary election, and engaged in media campaigns to promote voter awareness and participation. [Dkt. 53-4 at ¶7.] The Secretary of State again plans to undertake extensive precautions in preparation for the 2020 general election, including distributing over 1 million face masks, over 1.5 million gloves, 20,000 half-gallon bottles of hand sanitizer, 5,000 gallons of surface and equipment disinfectant, and other PPE supplies for voters and for poll workers with the help of the Indiana National Guard, and the Secretary of State will have the financial ability to procure and distribute additional PPE as necessary. [Dkt. 53-4 at ¶8.] The Secretary of State also plans to provide all precincts with a manual on best safety practices for voters and poll workers based on CDC guidelines, posters on pandemic safety precautions, and social distancing markers to be used in the 2020 general election. [Dkt. 53-4 at ¶9.]
On the other hand, Plaintiffs’ position that they are unable to cast their votes in person due to the dangers presented by COVID-19 are undermined by the frequency that they have ventured out of their homes for unnecessary purposes. See [Dkt. 53-9 at 5-11.] Plaintiffs’ reliance on wearing masks and social distancing as being sufficient precautionary measures against COVID-19 for going out for drinks, visiting with friends, and going to the gym, but not for voting in person in the 2020 general election is inconsistent.
Under these circumstances, where the Commission must exercise fact-dependent judgment balancing a host of competing concerns—judgment for which it is politically accountable—and where plaintiffs have well-recognized, reasonable options for safely voting in-person (whether on Election Day or during the 28 days before), the
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balance of equities disfavors an injunction straightjacketing the Commission into a single solution.
CONCLUSION A preliminary injunction is an extraordinary and drastic remedy, and should only be granted in instances where Plaintiffs, by a clear showing, carry the burden of persuasion for all of the conditions. Plaintiffs have failed to carry that burden, and as such, Plaintiffs’ motion for preliminary injunction should be denied.
Respectfully submitted, Curtis T. Hill, Jr. Attorney General of Indiana

Date: July 24, 2020

By:

Jefferson S. Garn Deputy Attorney General

Thomas M. Fisher Solicitor General

Kian J. Hudson Deputy Solicitor General

Courtney Abshire Deputy Attorney General

Parvinder Nijjar Deputy Attorney General

Counsel for Defendants Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary E. Klutz, and Connie Lawson

Office of Indiana Attorney General Indiana Government Center South, 5th Floor 302 West Washington Street Indianapolis, IN 46204-2770 Phone: (317) 234-7019 Fax: (317) 232-7979
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 Case 1:20-cv-01271-JPH-DLP Document 62 Filed 07/31/20 Page 1 of 24 PageID #: 672

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY, KATHARINE BLACK, )

MARC BLACK, DAVID CARTER, REBECCA )

GAINES, ELIZABETH KMIECIAK,

)

CHAQUITTA MCCLEARY, DAVID SLIVKA, )

DOMINIC TUMMINELLO, and

)

INDIANA VOTE BY MAIL, INC., individually, )

and on behalf of those similarly situated,

)

)

Plaintiffs,

)

)

-vs-

)

)

PAUL OKESON, S. ANTHONY LONG,

)

SUZANNAH WILSON OVERHOLT, and

)

ZACHARY E. KLUTZ, in their official

)

capacity as members of the Indiana

)

Election Commission, and

)

CONNIE LAWSON, in her official

)

capacity as the Indiana Secretary of State,

)

)

Defendants.

)

Case No. 1:20-cv-01271-JPH-DLP

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION

Gary A. Isaac (pro hac vice) Jeffrey M. Strauss (pro hac vice) Brett E. Legner (pro hac vice) Jed W. Glickstein (pro hac vice) MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606 (312) 782-0600 Email: gisaac@mayerbrown.com Email: jstrauss@mayerbrown.com Email: blegner@mayerbrown.com Email: jglickstein@mayerbrown.com
Of Counsel

William R. Groth, Of Counsel MACEY SWANSON LLP 445 N. Pennsylvania St., Suite 401 Indianapolis, IN 46204 Tel: (317) 637-2345, Ext. 132 Email: WGroth@fdgtlaborlaw.com
Mark W. Sniderman, 26599-49 FINDLING PARK CONYERS WOODY & SNIDERMAN, P.C. 151 N. Delaware Street, Ste. 1520 Indianapolis, IN 46204 (317) 231-1100 Tel (317) 231-1106 Fax Email: msniderman@findlingpark.com

Dated: July 31, 2020

Counsel for Plaintiffs

Case 1:20-cv-01271-JPH-DLP Document 62 Filed 07/31/20 Page 2 of 24 PageID #: 673 TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 I. Plaintiffs Have Shown A Strong Likelihood Of Success On The Merits..................................6
A. Plaintiffs Are Likely To Succeed On Their Fourteenth Amendment Claim .......................6 1. The State’s Restrictions On Voting By Mail Fail Under Anderson-Burdick..............7 2. McDonald Is Not To The Contrary...........................................................................11
B. Plaintiffs Are Likely To Succeed On Their Twenty-Sixth Amendment Claim.................13 II. Plaintiffs Have Satisfied Their Burden For A Preliminary Injunction ....................................18 CONCLUSION ..............................................................................................................................20
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TABLE OF AUTHORITIES
Cases
Acevedo v. Cook Cnty. Officers Electoral Bd., 925 F.3d 944 (7th Cir. 2019) .........................................................................................6
Burdick v. Takushi, 504 U.S. 428 (1992)...............................................................................................6, 7, 8
Carrington v. Rash, 380 U.S. 89 (1965).......................................................................................................19
Common Cause R.I. v. Gorbea, 2020 WL 4365608 (D.R.I. July 30, 2020) .....................................................................7
Common Cause Ind. v. Indiv. Members of the Ind. Election Comm’n, 800 F.3d 913 (7th Cir. 2015) .....................................................................................6, 8
Cook Cnty. v. Wolf, 962 F.3d 208 (7th Cir. 2020) .......................................................................................19
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008)...................................................................................................6, 8
Fisch v. Schwab, 957 F.3d 1105 (10th Cir. 2020) .....................................................................................9
FTC v. Credit Bureau, LLC, 937 F.3d 764 (7th Cir. 2019) .......................................................................................19
Gill v. Scholz, 962 F.3d 360 (7th Cir. 2020) .........................................................................................6
Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004) .....................................................................................11
Harman v. Forssenius, 380 U.S. 528 (1965)...................................................................................14, 15, 17, 20
Jolicoeur v. Mihaly, 488 P.2d 1 (Cal. 1971) ...........................................................................................15, 17
Jones v. McGuffage, 921 F. Supp. 2d 888 (N.D. Ill. 2013) ...........................................................................18

Page(s)

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TABLE OF AUTHORITIES (CONTINUED)
Lane v. Wilson, 307 U.S. 268 (1939)...................................................................................14, 15, 16, 17
League of Women Voters of Va. v. Va. State Bd. of Elections, 2020 WL 2158249 (W.D. Va. May 5, 2020) ...................................................7, 8, 9, 19
Luft v. Evers, 963 F.3d 665 (7th Cir. 2020) .....................................................................10, 11, 16, 17
McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802 (1969)............................................................................................. passim
Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012) .......................................................................................12
People First of Ala. v. Merrill, 2020 WL 3207824 (N.D. Ala. June 15, 2020).......................................................7, 8, 9
Price v. N.Y. State Bd. of Elections, 540 F.3d 101 (2d Cir. 2008).........................................................................................12
Reno v. Bossier Par. Sch. Bd., 528 U.S. 320 (2000).....................................................................................................17
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) .................................................................................................19
Schmitz v. Marion Cnty. Bd. of Elections, 2019 WL 4243196 (S.D. Ind. Sept. 5, 2019) .................................................................6
In re State, 2020 WL 2759629 (May 20, Tex. 2020) .....................................................................13
Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020) .....................................................................12, 13, 15, 16
Thomas v. Andino, 2020 WL 2617329 (D.S.C. May 25, 2020)..............................................................7, 12
Walgren v. Bd. of Selectmen of Town of Amherst, 519 F.2d 1364 (1st Cir. 1975) ......................................................................................16

Page(s)

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INTRODUCTION Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction, Dkt. 53 (“Resp.”), fails to acknowledge both the narrowly tailored relief sought by Plaintiffs and the extraordinary circumstances under which we are all living in this time of global pandemic. Defendants begin their Response by stating that “Plaintiffs’ argument . . . is ‘that the Constitution requires all states to allow unlimited absentee voting.’” Resp. 1-2. That is simply false. Plaintiffs are not asking this Court to hold that all voters in all states at all times have a constitutional right to vote by mail. Rather, Plaintiffs contend that during this unprecedented pandemic, Indiana voters under age 65 must be afforded the same choice for the November election that voters 65 and older already have—to vote by mail, rather than in person, to reduce their risk of contracting COVID-19.1 To grant Plaintiffs’ motion for a preliminary injunction, the Court need not adopt a novel interpretation of the Indiana Election Code or make any extraordinary factual findings. As discussed in our opening brief, the Defendant members of the Indiana Election Commission (“IEC”) have already found that “Indiana Code 3-11-4-1(c) permits the Commission, in an emergency, to allow a person who is otherwise qualified to vote in person the ability to vote by absentee ballot.” See Dkt. 14 (“Pls. Mem.”) at 4; Dkt. 53-8 (IEC Order 2020-37, dated March 25, 2020) at 1. Those same Defendants—citing, among other things, Governor Holcomb’s declaration of “a public health disaster emergency” and President Trump’s declaration of a “national emergency” due to the COVID pandemic—recognized that Indiana was in the midst of just such an emergency. Id. Thus far, over 4.4 million people in the United States have
1 It is not only Plaintiffs that have urged Defendants, in light of the worsening COVID situation, to take appropriate steps immediately to implement no-excuse absentee voting by mail for the November general election. See, e.g., Dkt 61-1, Ex. 1 (July 28, 2020 op-ed in Terre Haute Tribune-Star by John Mutz, former Indiana Republican lieutenant governor; Lee Hamilton, former Democratic representative for Indiana’s 9th Congressional District; Paul Helmke, former three-term Republican mayor of Fort Wayne and former president and CEO of the Brady Center; and Pierre M. Atlas, professor of political science at Marian University); Dkt. 61-2, Ex. 2 (July 26, 2020 editorial in Fort Wayne Journal Gazette); and Dkt. 61-3, Ex. 3 (July 23, 2020 Statement of Indiana Advisory Committee to the U.S. Commission on Civil Rights).
1

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been infected with COVID and more than 152,000 have died from it. Dkt. 61-4, Ex. 4, N.Y. Times, Coronovarius in the U.S.: Latest Map and Case Count, https://www.nytimes.com/interactive/ 2020/us/coronavirus-us-cases.html (visited July 31, 2020).
In adopting no-excuse absentee balloting for the June 2 Indiana primary, Defendants construed the governing statute (Indiana Code § 3-11-10-24) so that “voter with disabilities” includes “a voter who is unable to complete their ballot because they are temporarily unable to physically touch or be in safe proximity to another person.” Dkt. 53-8 at 4. Having already decided that the pandemic conditions warranted allowing no-excuse absentee voting by mail for the primary, there is no legitimate basis for Defendants to change course now. The public health emergency that existed on March 25 when the IEC adopted no-excuse absentee balloting for the primary, and that existed on June 2 when the State held that primary, continues today. If anything, it is only getting worse.
Indeed, on July 24, 2020—the same day that Defendants filed their Response in this Court— Governor Holcomb issued a new Executive Order, reiterating that “a public health emergency exists throughout the State of Indiana as a result of the coronavirus disease 2019 (COVID-19) outbreak,” noting that President Trump has “declared a national emergency with respect to this dangerous virus,” and warning of the worsening conditions in Indiana. Dkt. 61-5, Ex. 5, Executive Order 20-37, at 1. Governor Holcomb’s Executive Order states:
• “as of the date of this Executive Order, the virus has now spread to every county in our State, with over 60,000 confirmed cases and over 2,600 deaths”;
• “throughout many areas across the United States including Indiana, there are signs of increased coronavirus spread and evidence of resurgence”;
• “there has been a rise in COVID-19 positivity across the state from a low of 3.6% a month ago to nearly double that percentage now”;
• “our overall hospitalization census has increased from approximately 600 a day near the end of June to approximately 800 now”;
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• “some counties which early on had minimal positive cases, in some instances are now reporting regular double-digit COVID-19 positive cases”; and,
• “our surrounding states are all experiencing increases in positive cases.” Id. at 1-2. “[B]ased upon” those conditions, Governor Holcomb ordered that “every individual within the State of Indiana shall wear a face covering over the nose and mouth” when “inside a business, public building, or other indoor space open to the public.” Id. at 2.2
There is a complete disconnect between Governor Holcomb’s Executive Order 20-37 and the position taken by Defendants in this litigation. During this public health emergency, Defendants should be doing everything within their power to protect Hoosiers’ practical ability to vote while also safeguarding citizens’ health to the greatest degree possible. They plainly are not.
Defendants say that “Indiana election officials are taking extraordinary precautions to protect voters from the COVID-19 pandemic.” Resp. 6. It is good that Defendants plan to make PPE and hand sanitizer available, and to try to enforce social distancing, in polling places in November. But the best protection would be to allow all Hoosiers to choose to vote by mail, and to avoid public gatherings— including polling stations—to the maximum extent possible. In the run-up to the June primary, Indiana Secretary of State Connie Lawson—a Defendant in this case—stated that “the safest way to vote is by absentee mail-in ballot” and “encouraged everyone to do so.” Dkt. 61-6, Ex. 6, Niki Kelly, Journal Gazette, Secretary of State buys, distributes PPE to make primary election safer (May 15, 2020), https://www.journalgazette.net/article/20200515/WEB/200519907.
2 The Indiana figures have continued to worsen since July 24, when Governor Holcomb issued Executive Order 2037. According to the State’s “COVID-19 Dashboard,” as of July 29, Indiana has had over 65,000 COVID cases and almost 2,750 deaths, and has an 8.9% positivity rate among those tested. Dkt. 61-7, Ex. 7, Indiana COVID-19 Data Report, https://www.coronavirus.in.gov/2393.htm (last visited July 31, 2020). Approximately 74% of the Hoosiers that have contracted COVID are under the age of 60. Id. (“Statewide Demographics For Positive Cases,” by “age”).
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Defendants’ decision to deprive most Hoosier voters of the choice to vote by mail and to force them—if they are to vote at all—to place themselves in harm’s way by going into a public polling place to vote is cavalier, to the point of being reckless. In choosing to put Indiana voters at increased risk, Defendants wholly ignore the very CDC guidance they purport to rely on, which expressly advises “elections officials in advance of election day” to “[e]ncourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations” and “[e]ncourage mail-in methods of voting if allowed in the jurisdiction.” Dkt. 53-4 at 28 (emphasis added); see also Resp. 7 (citing CDC guidelines). The IEC has already recognized, in adopting no-excuse absentee voting by mail for the June 2 primary, that in light of the COVID emergency, no-excuse voting by mail is, in the CDC’s words, “allowed in the jurisdiction.” If Defendants truly wish to follow the science and CDC guidelines, they should allow no-excuse voting by mail in November.3
Defendants also say that “[i]n allowing no-excuse absentee-by-mail voting” during the primary, “many counties experienced challenges processing the larger-than-usual volume of absentee ballots— challenges that would not have arisen if the election had used the normal voting rules that generally require
3 As reflected in Dkt. 61-8, Ex. 8, the CDC has also stated that: • “It’s not just those over the age of 65 who are at increased risk for severe illness . . . Everyone, especially older adults and others at increased risk of severe illness, should take steps to protect themselves from getting COVID-19”, https://www.cdc.gov/media/releases/2020/p0625-update-expands-covid-19.html; • “An estimated 60 percent of American adults have at least one chronic medical condition”—including common health conditions like asthma, high blood pressure, and pregnancy—that may put them at an increased risk of “severe COVID-19 illness,” https://www.cdc.gov/media/releases/2020/p0625-updateexpands-covid-19.html; • “The best way to protect yourself and to help reduce the spread of the virus that causes COVID-19 is to” “[l]imit your interactions with other people as much as possible,” https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/older-adults.html; and, • “In general, the more people you interact with, the more closely you interact with them, and the longer that interaction, the higher the risk of COVID-19 spread,” https://www.cdc.gov/coronavirus/2019-ncov/dailylife-coping/deciding-to-go-out.html.
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in-person voting.” Resp. 5. And according to Defendants, “[i]f no-excuse absentee-by-mail voting is permitted for the general election in November, these problems would be far larger due to far greater voter participation.” Id. But we are not living in “normal” times, and the fact that many Indiana voters of all ages would want to vote by mail is precisely the point. Voters are understandably concerned for their health, and their lives, if they are forced to vote in person during this pandemic. That is why the State can expect a large number of requests for absentee ballots. And that is why Defendants must prepare now to accommodate those requests. Voters do not wish to put their lives in jeopardy to exercise one of their most fundamental rights. And there is no good reason for the State to force them to do so.
As shown in Plaintiffs’ opening brief and below, in the midst of a global pandemic, limiting noexcuse absentee voting by mail to those 65 and older violates the Fourteenth and Twenty-Sixth Amendments to the United States Constitution. Time to make the preparations necessary to allow all Hoosier voters to vote absentee-by-mail in November is fast running out. This lawsuit was filed on April 29. The preliminary injunction motion was filed five weeks later. All the evidence indicates that the pandemic will continue into the fall, and may well get worse. Earlier this month, Indiana State Health Commissioner Dr. Kristina Box warned that the State should prepare for a surge in COVID-19 cases this fall. See Dkt. 61-9, Ex. 9, Indianapolis Star, State prepares for fall surge of COVID cases (July 16, 2020), http://indianapolisstar.in.newsmemory.com/?publink=29f30879f. Yet Defendants have done nothing to prepare for the possibility of significant mail-in voting, and now complain that doing so would be timeconsuming and cost money. Defendants have abdicated their responsibility to provide safe and effective voting for all of Indiana’s citizens. They must now be required to act. The Constitution requires no less.
Accordingly, Plaintiffs ask the Court to order Defendants to immediately (i) instruct all county election boards that all voters must be allowed to apply for and receive an absentee ballot without regard to their age and without excuse, and be permitted to vote by mail, in the November 3, 2020 general election,
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and (ii) take whatever additional administrative actions are necessary and appropriate to implement noexcuse absentee voting by mail for the November 3, 2020 general election. I. Plaintiffs Have Shown A Strong Likelihood Of Success On The Merits.
A. Plaintiffs Are Likely To Succeed On Their Fourteenth Amendment Claim. Plaintiffs’ Fourteenth Amendment challenge is assessed under the Anderson-Burdick balancing test, which the Seventh Circuit has held “applies to all First and Fourteenth Amendment challenges to state election laws.” Acevedo v. Cook Cnty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019) (emphasis in original); see also Common Cause Ind. v. Indiv. Members of the Ind. Election Comm’n, 800 F.3d 913, 922 n.12 (7th Cir. 2015); Schmitz v. Marion Cnty. Bd. of Elections., 2019 WL 4243196, at *4 (S.D. Ind. Sept. 5, 2019). The Anderson-Burdick test balances the “character and magnitude of the asserted injury” to voting rights against the strength of the state’s particular interests in the restriction. Burdick v. Takushi, 504 U.S. 428, 433-34 (1992). Defendants have no real answer under this test because they already decided—for Indiana’s June 2 primary—that the ongoing COVID public health emergency justified construing state law to allow all Indiana voters to vote absentee by mail. They thus try to change the subject, contending that McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), makes this an open-and-shut case. This attempt to short-circuit the inquiry flies in the face of established doctrine. As the Seventh Circuit said last month, the Anderson-Burdick test is “not automatic” and “requires courts to conduct factintensive analyses when evaluating state electoral regulations.” Gill v. Scholz, 962 F.3d 360, 365 (7th Cir. 2020). Courts cannot “apply a ‘litmus test’ that would neatly separate valid from invalid restrictions.” Id. (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190 (2008)). As shown below, a host of courts have applied Anderson-Burdick to uphold challenges to absentee voting procedures, even though those procedures did not literally (in McDonald’s words) “absolutely prohibit” the challengers from voting.
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1. The State’s Restrictions On Voting By Mail Fail Under Anderson-Burdick. Defendants devote barely two pages to their argument that Plaintiffs are unlikely to succeed if the Court “accedes to undertake” the Anderson-Burdick analysis. Resp. 16-18. This cursory discussion does not come close to rebutting the showing in Plaintiffs’ opening brief (at 7-16) that they have a sufficient likelihood of success at this juncture to support their request for a preliminary injunction. a. The first step of the Anderson-Burdick test is to assess the burden that Indiana’s restrictions on absentee voting-by-mail place on voters in the context of the COVID-19 pandemic. Burdick, 504 U.S. at 434. As the IEC recognized when it issued its emergency orders permitting no-excuse absentee voting for the June 2 primary, requiring voters who are concerned with exposing themselves, their families, or others to COVID-19 to go to the polls for an election places a burden on voting that is undeniable and severe. Case law, and common sense, overwhelmingly support this conclusion. See People First of Ala. v. Merrill, 2020 WL 3207824, at *2, *14-15 (N.D. Ala. June 15, 2020) (recognizing “the burdens imposed by the challenged election laws on voters at high risk of severe complications or death from COVID-19”); Thomas v. Andino, 2020 WL 2617329, at *17 (D.S.C. May 25, 2020) (recognizing the “undu[e]” burdens “during this pandemic”); League of Women Voters of Va. v. Va. State Bd. of Elections, 2020 WL 2158249, at *8 (W.D. Va. May 5, 2020) (similar). Just yesterday, a district court in Rhode Island agreed that restrictions on mail-in voting, “as applied during the COVID-19 pandemic,” violate the Fourteenth Amendment because they “place[] an unconstitutional burden on the right to vote.” Common Cause R.I. v. Gorbea, 2020 WL 4365608, at *4 (D.R.I. July 30, 2020).4 Defendants do not even mention, let alone make any attempt to distinguish, People First, Thomas, and League of Women Voters. To the extent Defendants discuss burden at all, it is only to focus on what
4 Common Cause R.I., People First, Thomas, and League of Woman Voters addressed—and preliminarily enjoined or approved consent decrees suspending—requirements that absentee voters obtain a witness signature in order for the mail-in ballot to be counted. Such rules necessarily impose far lighter burdens on voters than a blanket prohibition on absentee mail-in voting that applies to all except groups mentioned in Ind. Code § 3-11-10-24.
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Defendants cast as Plaintiffs’ decision to “venture[] out of their homes” for “unnecessary purposes.” Resp. 24; see also id. at 7-8. That aside is not just unfair, but irrelevant. As their discovery responses make clear (see Dkt. 53-9), Plaintiffs have complied fully with all public health recommendations when leaving their homes, including wearing masks and social distancing, to a degree that likely will not be possible in polling places crowded with strangers in November. See Dkt. 61-10, Ex. 10 (Eldridge Decl.) ¶ 7 (declaration from Marion County Clerk explaining that “[n]either my staff nor our volunteer poll workers have any means of enforcing the face covering or social distancing requirements”); Dkt. 61-11, Ex. 11, Fajman Decl. ¶¶ 4, 10 (same from Director of Lake County Board of Elections and Registration, noting that “[m]any voters will refuse to wear facial covering because of the strong philosophical and in some instances political objections to doing so, and the lack of penalties severe enough to deter noncompliance”). In any event, as Justice Scalia noted in Crawford, the Equal Protection Clause ultimately is not concerned with particular plaintiffs but with the groups that are disfavored by the State’s classification more broadly. Especially here, where the risks of in-person voting apply to every member of society, the burden of the State’s refusal to make no-excuse absentee mail-in voting available should be assessed “categorically” rather than “consider[ing] the peculiar circumstances of individual voters.” 553 U.S. at 206-207. As Defendants’ orders pertaining to the June 2 primary recognize, it is undeniable that these are “not ordinary times,” League of Women Voters, 2020 WL 2158249, at *8, and that COVID poses a substantial burden for Indiana’s electorate.
b. The second step of the Anderson-Burdick test is to consider “the precise interests put forward by the State as justifications for the burden imposed by its rule.” Burdick, 504 U.S. at 434. If, as here, the burdens on voters are significant, the Court should apply something approaching strict scrutiny to assess whether the State’s interests justify the restriction. Common Cause, 800 F.3d at 917. Yet even an election requirement that “imposes only a slight burden on the right to vote” still “must be justified by relevant
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and legitimate state interests ‘sufficiently weighty to justify the limitation.’” People First, 2020 WL 3207824, at *15 (citing Crawford, 553 U.S. at 191). Defendants fail to identify—and offer no real evidence to establish—any sufficiently “weighty” interests to justify their refusal to adopt no-excuse absentee voting by mail for the upcoming general election.
First, Defendants allude to an interest in combating voter fraud, stating in their Background section (at 3) that “[v]oting by mail introduces the potential of fraudulent voting.” However, Plaintiffs have submitted an uncontroverted declaration from a voting expert who explains that fraud is “as uncommon” during vote-by-mail elections as “during in-person voting,” with Americans “more likely” to be “struck by lightning.” Dkt. 13-14 at ¶¶ 27-32. That is consistent with the experience of the Marion County Clerk and the Director of the Lake County Board of Elections and Registration, who have observed no evidence of fraud in the mail-in absentee balloting process. Dkt. 61-10, Ex. 10 ¶ 8; Dkt. 61-11, Ex. 11 ¶ 11. For their part, Defendants do not cite any evidence that their adoption of no-excuse absentee voting by mail for the primary led to any fraud or explain why this speculative risk outweighs the inevitable disenfranchisement of Indiana voters if a similar rule is not adopted for the general election. A purported interest in protecting against fraud “in the abstract” is not enough if there is no “evidence that such an interest made it necessary to burden voters’ rights here.” Fisch v. Schwab, 957 F.3d 1105, 1133 (10th Cir. 2020); see also League of Women Voters, 2020 WL 2158249, at *9 (there is “no evidence in the record at this time” to suggest that accommodating voters’ need to vote by mail during the pandemic “would increase voter fraud in a meaningful way”); People First, 2020 WL 3207824, at *16-17 (same).
Second, also in the Background section, Defendants contend that absentee voters are “more prone to cast invalid ballots” than those who visit the polls in person. Resp. 4. There are steps Defendants can take to ameliorate these problems.5 Regardless, the concern that some voters might cast an invalid ballot
5 For example, certain of Defendants’ declarants note that some ballots were not counted during the primary because they were delivered after the noon deadline for mail-in ballots on election day. Dkt. 53-1 ¶ 7; Dkt. 53-2 ¶ 6. As the
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makes no sense as a basis for refusing to permit all voters to vote by mail during the pandemic if they choose. After all, the Hoosiers most burdened by the State’s restrictions on mail-in voting likely will not go to a polling place because of fears about COVID. For those voters, the choice is not between voting by mail and voting in-person. It is between voting by mail and not voting at all.
Finally, in discussing the balance of harm if an injunction should issue, Defendants say that “noexcuse absentee-by-mail voting” will shift “vast numbers” of voters from in-person to by-mail voting. Resp. 22. This cuts squarely against Defendants, not in their favor. The reason so many voters sought to vote by mail during the primary is that many voters did not feel safe going to polling places and exposing themselves, their families, and their communities to risks from the coronavirus. And Defendants’ expectation that many more voters will want to vote by mail in the general election shows that now the public’s demand for expanded mail-in voting is even greater. There is no reason to think that Indiana will face greater logistical challenges than the thirty-plus states that already allow no-excuse mail-in voting in general elections. See Dkt. 61-12, Ex. 12, National Vote at Home Institute, Applying for a Mailed-out Ballot: A State-by State Guide (Mar. 2020 update), https://perma.cc/L9X8-SVC8. And of course, to the extent there is legwork to do to ensure that the November election goes as smoothly as possible, the time to do it is right now, which makes Defendants’ delay all the more irresponsible.
c. Defendants’ principal argument under the Anderson-Burdick test rests on Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), a case that did not involve the pandemic and does not help Defendants’ position. Luft explains that Anderson-Burdick directs courts to “weigh” the burden on voters “against the state’s interests by looking at the whole electoral system.” Id. at 671-72. Defendants themselves, however, have already concluded that the “whole electoral system” warranted an extension of mail-in voting when they
Marion County Clerk observes, however, those numbers “could have been substantially reduced had the members of the Indiana Election Commission used their emergency powers to suspend a rigid application of that deadline.” Dkt. 61-10, Ex. 10 ¶ 5; see also Dkt. 61-11, Ex. 11 ¶ 7 (noting that “as a percentage of total absentee ballots received,” there was no increase in the number of late-arriving mail ballots in Lake County in the primary).
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allowed all Hoosiers to vote by mail during the primary. Nothing has changed since then to make the burdens for Indiana voters any less severe. Consideration of Wisconsin’s voting rules “as a whole” made particular sense in Luft, moreover, given that the case involved challenges to “more than a dozen” different statutory provisions, “each contested under a number of theories.” Id. at 670.6
Likewise, Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004), does not control here. While Plaintiffs agree that there is no constitutional right to vote by mail generally, Pls. Mem. 9, nothing in Griffin suggested that the Constitution would have no application to claims seeking to expand absentee voting in the face of a historic pandemic. Nor do Plaintiffs seek “unlimited” absentee voting. Id. at 1030. Rather, they seek to vote by mail—as Indiana voters were permitted to do in the June 2020 primary—in the upcoming general election.
2. McDonald Is Not To The Contrary. Defendants also claim (Resp. 10) that the Supreme Court rejected a “materially identical” challenge to absentee voting laws in a pre-Anderson-Burdick case, McDonald v. Board of Election Commissioners of Chicago. That is flatly incorrect. McDonald is materially different from this case in a number of ways. It held—at summary judgment—that it was not a denial of equal protection for Illinois to allow “medically incapacitated” persons to vote by mail without allowing incarcerated persons to do the same. But the Court stressed that there was “nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote” because the inmates
6 Defendants also seize on Luft’s observation that Wisconsin has “lots of rules that make voting easier,” 963 F.3d at 672, claiming that the same is true for Indiana. But the two features they identify will not help those worried about COVID to cast their vote safely in November. Resp. 17 (discussing the statutory allowance for in-person voting centers and the availability of online voter registration and assistance). Defendants also assert that Indiana saw 85% registered voter turnout in the general election in November 2016. Resp. 17-18. But the Secretary of State’s own webpage says that turnout in that election was 58%. See Dkt. 61-13, Ex. 13, General Election Turnout and Registration, https://www.in.gov/sos/elections/files/2016_General_Election_Turnout.pdf. In any event, Plaintiffs do not challenge Indiana’s voting rules in 2016. Turnout in that election says nothing about the burden voters will face if they are required to go into polling places in November 2020 during an unprecedented pandemic.
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had not adduced evidence that the State refused to provide other means, short of mail-in ballots, to alleviate their burden. 394 U.S. at 807. The Court therefore applied “traditional standards for evaluating appellants’ equal protection claims” and concluded that it was reasonable for the Illinois Legislature to treat unsentenced inmates differently from other classes of voters. Id. at 808-809.
This case is fundamentally different from McDonald. The State’s refusal to permit no-excuse mailin voting in the general election forces Hoosiers to choose between risking their health or giving up their right to cast a ballot. For those voters, there are no alternatives to mail-in voting that will adequately address their legitimate safety concerns. Thus, in the context of the COVID pandemic, it is undeniable that Indiana’s statutory scheme has an impact on the right to vote. The refusal to apply the same mail-in voting rules the State applied during the June primary forces voters to trade off their health against their right to vote—a trade-off no prisoner in McDonald had to make. The Constitution does not permit States to impose such a burden absent a compelling justification, which is wholly lacking here.7
Defendants point out that Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020), reached the opposite conclusion, but that case was incorrectly decided. As an initial matter, Abbott arose in a very different state-law context. The Texas State Attorney General had issued an opinion construing Texas’s statute allowing voters with a “disability” to vote by mail as not authorizing all voters who lack immunity to COVID-19—i.e., voters generally—to do the same. Id. at 394-95. Subsequently, the Texas Supreme
7 Defendants mischaracterize later authority interpreting McDonald, which they say “reiterates . . . that heightened scrutiny applies only when a citizen is ‘in fact absolutely prohibited from voting by the State.” Resp. 13 (emphasis in original). But the Sixth Circuit has held that “Plaintiffs [do] not need to show that they were legally prohibited from voting,” “only that ‘burdened voters have few alternate means of access to the ballot.’” Obama for America v. Husted, 697 F.3d 423, 431 (6th Cir. 2012). And the Second Circuit has found it sufficient that “there is at least some burden on the voter-plaintiffs’ rights” that made it “difficult to vote in person.” Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 109 & n.9 (2d Cir. 2008). Recently, in Thomas v. Andino, supra, the court explicitly rejected Defendants’ reading of McDonald, explaining that “the standard does not require this court to find that the state has ‘absolutely prohibited voting’” and that it is enough that “[i]n-person voting, while still technically an available option, forces voters to make the untenable and illusory choice between exercising their right to vote and placing themselves at risk of contracting a potentially terminal disease.” 2020 WL 2617329, at *17 n.20.
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Court affirmed the Attorney General’s interpretation. In re State, 2020 WL 2759629 (Tex. May 20, 2020). Here, the IEC has already interpreted the term “voter with disabilities” in Indiana’s statute providing for mail-in voting to encompass voters who are unable to vote safely due to the pandemic. Dkt. 53-8 at 4.
In any event, the Fifth Circuit misunderstood McDonald to require rational-basis review unless a plaintiff could show that he or she has been “absolutely prohibited” from voting. That reading is incompatible with Anderson-Burdick’s sliding-scale rule. See supra n.7. Further, in a footnote, the Fifth Circuit conceded that elsewhere in McDonald the Supreme Court “state[d] the rule a bit differently,” referring to whether the “statutory scheme has an impact” on the plaintiffs’ ability to vote. Abbott, 961 F.3d at 405 n.30. While the Fifth Circuit said there was no difference between the two formulations— because “Texas’s decision to allow those aged sixty-five and older to vote by mail does not ‘impact’ the plaintiffs’ ability to vote,” id.—that blinks reality. For purposes of the Fourteenth Amendment, what impacts Plaintiffs’ and other Hoosiers’ ability to vote during a global pandemic is not the State’s decision to allow 65 year-olds to vote by mail, but the decision not to allow others to vote by mail too.
B. Plaintiffs Are Likely To Succeed On Their Twenty-Sixth Amendment Claim. Plaintiffs’ challenge to Indiana’s absentee voting scheme is likely to succeed for a second, independent reason. Indiana allows those 65 and older to vote by mail with no excuse but withholds that right from those 64 and younger. The Twenty-Sixth Amendment is unambiguous: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” U.S. Const. amend. XXVI § 1. Plaintiffs’ opening brief explains why Defendants’ refusal to grant voters under age 65 the right to vote by mail without excuse, while permitting those 65 and older to do so, “abridge[s]” Plaintiffs’ right to vote “on account of age” in violation of the plain language of the Twenty-Sixth Amendment. Pls. Mem. 16-20. Mischaracterizing Plaintiffs’ facial challenge as an “as applied” challenge, Resp. 9, Defendants’ perfunctory two-page response tries to sidestep Plaintiffs’ argument by relying on two
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erroneous propositions.8 Resp. 18-19. First, Defendants suggest that the Supreme Court’s decision in McDonald—applying the rational basis standard of the Equal Protection Clause of the Fourteenth Amendment—governs challenges to age-based voting classifications under the Twenty-Sixth Amendment. That is obviously wrong. McDonald cannot possibly control the Twenty-Sixth Amendment analysis because the Twenty-Sixth Amendment had not been adopted when McDonald was decided, and in any case McDonald did not implicate a voting restriction based on a criterion expressly prohibited by one of the other “voting amendments” (the Fifteenth, Nineteenth, and Twenty-Fourth). Defendants’ second error is to treat an “abridgment” of the right to vote as no different from an outright “denial” of the right to vote, even though both terms are used in the Twenty-Sixth Amendment (and the other voting amendments) and cannot mean the same thing.
1. McDonald. As discussed above, in McDonald, the Supreme Court refused to apply “exacting judicial scrutiny” to Illinois’s absentee-voting provisions because “the distinctions made by Illinois’[s] absentee provisions are not drawn on the basis of wealth or race” (classifications that are impermissible under the Twenty-Fourth and Fifteenth Amendments) and because “there is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote.” 394 U.S. at 807. But while the extent of the burden on voting may be relevant in an analysis under the Fourteenth Amendment, cases involving voting rights under the Constitution’s specific voting amendments make clear that those amendments prohibit any burden “on account of” race, sex, poll-tax payment, or age. See Harman v. Forssenius, 380 U.S. 528, 542 (1965) (“Any material requirement” based “solely” on declining to pay a poll tax “subverts the effectiveness of the Twenty-Fourth Amendment and must fall under its ban”) (emphasis added); Lane v. Wilson, 307 U.S. 268, 275 (1939) (the Fifteenth Amendment bars “onerous procedural requirements which effectively handicap exercise of the
8 Plaintiffs challenge the age-based restrictions on mail-in balloting contained in Ind. Code § 3-11-10-24(a) as unconstitutional on their face, Am. Compl. ¶ 92, and as applied during the ongoing COVID-19 pandemic, id. ¶ 94.
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franchise”—in that case, by black voters—“although the abstract right to vote may remain unrestricted as to race”); Jolicoeur v. Mihaly, 488 P.2d 1, 2 (Cal. 1971) (“treat[ing] minor citizens differently from adults for any purpose related to voting” violates the Twenty-Sixth Amendment). McDonald’s Fourteenth Amendment analysis of restrictions on prisoners’ ability to vote—and its use of the “rational basis” standard—does not apply to the Twenty-Sixth Amendment, which establishes that no “abridg[ment]” of the right to vote “on account of age” is permitted.9
Defendants’ reliance on the Fifth Circuit’s decision in Abbott is likewise misplaced. Relying on McDonald, the Court in Abbott concluded that Texas’s decision “to give only some of its citizens the option to vote by mail . . . does not itself ‘deny’ the plaintiffs ‘the exercise of the franchise.’” 961 F.3d at 403-404 (quoting McDonald). Thus, according to the court, “[b]ecause the plaintiffs’ fundamental right is not at issue, McDonald directs us to review only for a rational basis[.]” Id. at 406. That analysis does not take into account that the plain language of the Twenty-Sixth Amendment prohibits both an outright denial of the right to vote and any abridgment of that right. Like the Twenty-Sixth Amendment, each of the other so-called “voting amendments” expressly applies both to a denial of the right to vote and an abridgment of that right.10 As Harman, Lane, and Jolicoeur make clear, state requirements that abridge, but do not completely deny, the voter’s ability to cast a ballot based on criteria proscribed by the voting amendments are unconstitutional. See, e.g., Harman, 380 U.S. at 540-541 (“[T]he Twenty-fourth Amendment does not merely insure that the franchise shall not be ‘denied’ by reason of failure to pay the poll tax; it expressly guarantees that the right to vote shall not be ‘denied or abridged’ for that reason. Thus, like the Fifteenth
9 Unlike voting restrictions based on race, sex, wealth, or age, there is no express constitutional prohibition on abridgment of a prisoner’s right to vote. 10 See U.S. Const. amend. XV (“The right . . . to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude”); id. amend. XIX (“The right . . . to vote shall not be denied or abridged . . . on account of sex”); id. amend. XXIV (”The right . . to vote . . . shall not be denied or abridged . . . by reason of failure to pay any poll tax or other tax”).
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Amendment, the Twenty-fourth ‘nullifies sophisticated as well as simple-minded modes’ of impairing the right guaranteed.”) (quoting Lane, 307 U.S. at 275).
Defendants rely (Resp. 19) on the Fifth Circuit’s unsupported assertion in Abbott that, even though McDonald was decided before the Twenty-Sixth Amendment, the “logic” of McDonald’s Fourteenth Amendment analysis—in particular its use of the rational basis test—“applies equally to the Twenty-Sixth Amendment claim” challenging Texas’s absentee-voter law. See Abbott, 961 F.3d at 408. But that conclusion cannot be squared with the very different language of the voting amendments, which specifically identify classifications that cannot be used to deny or abridge the right to vote. There would have been no need for a constitutional amendment forbidding discrimination in voting “on account of age” if the Equal Protection Clause could be read to protect the voting rights of those 18 or older from such discrimination. See Walgren v. Bd. of Selectmen of Town of Amherst, 519 F.2d 1364, 1367 (1st Cir. 1975) (it is “difficult to believe” that the Twenty-Sixth Amendment “contributes no added protection to that already offered by the Fourteenth Amendment” with respect to voting).
In short, by virtue of the Twenty-Sixth Amendment, for purposes of voting, “age” is now a classification like race or sex: a state can no more adopt classifications that discriminate against a voter over the age of 18 on the basis of “age” than it can discriminate against her on the basis of “race, color, or previous condition of servitude” (amend. XV § 1), “sex” (amend. XIX), or failure to pay a poll tax (amend. XXIV). The Fourteenth Amendment’s rational basis test is not applicable to determine if the “right to vote” has been “denied or abridged” under the Twenty-Sixth Amendment by Indiana’s decision that only voters 65 or older may avail themselves of no-excuse voting by mail. Abbott thus is wrong, and Defendants’ reliance on it is misplaced.11
11 In Luft, the Seventh Circuit appeared to approve of the district court’s “treat[ing] arguments under the Twenty-Sixth Amendment (for age) the same as those under the Fifteenth Amendment (for race).” 963 F.3d at 673. The Seventh Circuit thus would likely hold that a facial age-based restriction is
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2. Abridgment. The voting amendments prohibit the “abridgment” of the right to vote based on certain criteria, including age. To “abridge” is to “shorten” or “reduce in scope.” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/abridge (visited July 26, 2020). An abridgment of the right to vote occurs when a state imposes “procedural requirements, which effectively handicap exercise of the franchise,” even if “the abstract right to vote” remains “unrestricted.” Jolicoeur, 488 P.2d at 4 (noting that the Twenty-Sixth Amendment mirrors the language of the “Twenty-Fourth, Nineteenth, and Fifteenth before it”) (quoting Lane, 307 U.S. at 275). Defendants nevertheless contend that Indiana does not “abridge” Plaintiffs’ right to vote, only the right to vote by absentee ballot. Resp. 19.
Abridgment “necessarily entails a comparison.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000). Compared to the right to vote that Indiana provides its citizens 65 and older, the right it provides to younger voters is less robust—voters under 65 need a specific excuse to vote by mail, while older voters do not. In other words, the right of younger voters is “abridged” solely on account of the voters’ age, a criterion that is expressly forbidden by the Twenty-Sixth Amendment. See Harman, 380 U.S. at 542 (construing the Twenty-Fourth Amendment). If Indiana permitted men to vote by mail, but required women to meet certain requirements before they could vote by mail, no one would doubt that that scheme would constitute an unconstitutional abridgment under the Nineteenth Amendment. Likewise if the distinction were based on race under the Fifteenth Amendment. Because Indiana’s mail-in ballot restrictions are expressly based on age—like race and sex, a forbidden criterion that cannot be used as a basis for differential treatment under the voting amendments—Indiana’s age-based voting restrictions for mail-in ballots violate the Twenty-Sixth Amendment on its face.
unconstitutional, or at least subject to the strictest scrutiny. Luft found no Fifteenth Amendment violation based on discriminatory impact theories, id. at 670-71, 674, but that is because the Wisconsin voting statutes—reducing the times available for early voting, for example—were all formally race (and age) neutral. Here, by contrast, the Indiana voting restriction is age-based on its face.
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They also violate the Twenty-Sixth Amendment as applied. Even if Indiana’s scheme does not constitute a facial violation of the Twenty-Sixth Amendment (and it surely does), there can be no serious question that requiring voters under age 65 to risk life-threatening infection by appearing at crowded polling places during a pandemic “reduces in scope”—and thus abridges—their right to vote. As McDonald itself made clear, an “exacting” standard of review is necessary when a distinction is based on classifications that are impermissible under the voting amendments. 394 U.S. at 807 (referring to the Twenty-Fourth and Fifteenth Amendments).
We have explained above how the burdens placed on Indiana voters by Indiana’s age-based distinctions vastly outweigh any inconvenience to the State in permitting no-excuse mail voting for the general election, as it did for the primary. As the CDC has recognized, COVID poses serious risks to voters of all ages, not just those over 65. See supra n.3. Simply put, the State is forcing thousands of its citizens to choose between their health and their right to vote in a presidential election. Some may choose to take that risk; but none should be required to do so to exercise a fundamental right protected in a specific voting amendment. Whatever justification Defendants might assert in support of their discriminating against younger voters during a pandemic, at this preliminary stage Plaintiffs have shown that they are likely to prevail on their as-applied challenge under the Twenty-Sixth Amendment. II. Plaintiffs Have Satisfied Their Burden For A Preliminary Injunction.
As shown above, Plaintiffs have established a strong likelihood of success on the merits. Once a plaintiff has established a likelihood of success, the analysis turns to a “sliding scale,” where even a “lesser likelihood of success” can be “made sufficient by a greater predominance of the balance of harms.’” Jones v. McGuffage, 921 F. Supp. 2d 888, 895 (N.D. Ill. 2013). Here, the balance tips decisively in Plaintiffs’ favor. Defendants do not dispute that Plaintiffs will suffer an irreparable injury if they are denied the right to vote safely in the general election. Pls. Mem. 21-23. The IEC has already recognized that the balance favors “no excuse” mail-in voting, and none of the supposed issues Defendants raise with using that
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approach in the November election change that conclusion. Indeed, the situation is going from bad to worse. Indiana’s health commissioner has warned of a surge in cases this fall, and Governor Holcomb has acknowledged the worsening conditions by issuing a statewide mask order. See supra pp. 2-3 & 5.
On the other side of the ledger, Defendants posit a parade of horribles were this Court to grant an injunction. Opp. 20-24. These putative burdens fit generally under the rubric of administrative convenience; but no State may deprive citizens of their constitutional right to vote “because of some remote administrative benefit,” Carrington v. Rash, 380 U.S. 89, 95 (1965), particularly where the challenged rule is not “in any sense necessary to the proper administration of its election laws.” Harman, 380 U.S. at 542-43. Further, in cases involving significant public interest, courts may consider the balance of the equities and the public interest together, as “courts of equity may go to greater lengths to give ‘relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.’” FTC v. Credit Bureau, LLC, 937 F.3d 764, 784 (7th Cir. 2019) (quoting Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552 (1937)). We are not living in normal times, and the public interest in this matter must be assessed through the prism of what has been called the “worst pandemic” the “planet has seen in over a century.” League of Women Voters, 2020 WL 2158249, at *10. The extraordinary burdens caused by this pandemic may require court-ordered “reforms or modifications” in election procedures. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1208 (2020). Moreover, the public interest is clearly served by a preliminary injunction that not only upholds constitutional rights but also helps safeguard public health by eliminating unnecessary in-person contacts and preventing COVID-19 transmission in public locations. Cf. Cook Cnty. v. Wolf, 962 F.3d 208, 234 (7th Cir. 2020) (affirming preliminary injunction against enforcement of a rule with potentially dire health consequences).
Finally, the claim that Defendants must be free to “recalibrat[e]” their approach to mail-in voting based on their “experience” and an “evolving” insight into how COVID-19 “impacts life in the public
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forum” is empty rhetoric. Resp. 21. All of the relevant considerations that led the IEC to allow all voters

to cast mail-in ballots in the primary still exist and have, if anything, grown more urgent. Meanwhile, the

IEC has held no public meetings since May 12, 2020, has not met once since the June 2 primary, and has

scheduled no meeting even to consider whether to extend its adoption of no-excuse absentee mail-in voting

to the general election. Having refused to bring their “experience” to bear upon these matters, and with

the number of days between now and the election dwindling rapidly, Defendants cannot credibly claim

that there is some injustice in requiring them to act to ensure that all Indiana voters who want to safely

cast their ballot in November are able to do so.

In light of the strength of Plaintiffs’ case, Defendants’ decision to allow no-excuse voting by mail

for the primary, and the worsening pandemic, Plaintiffs have made a more than sufficient showing to

warrant a preliminary injunction.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for preliminary injunction should be granted.

Dated: July 31, 2020

Respectfully submitted,

Gary A. Isaac (pro hac vice) Jeffrey M. Strauss (pro hac vice) Brett E. Legner (pro hac vice) Jed W. Glickstein (pro hac vice) MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606 (312) 782-0600 Email: gisaac@mayerbrown.com Email: jstrauss@mayerbrown.com Email: blegner@mayerbrown.com Email: jglickstein@mayerbrown.com
Of Counsel

s/ William R. Groth William R. Groth, Of Counsel MACEY SWANSON LLP 445 N. Pennsylvania St., Suite 401 Indianapolis, IN 46204 Tel: (317) 637-2345, Ext. 132 Email: WGroth@fdgtlaborlaw.com
s/ Mark W. Sniderman Mark W. Sniderman, 26599-49 FINDLING PARK CONYERS WOODY & SNIDERMAN, P.C. 151 N. Delaware Street, Ste. 1520 Indianapolis, IN 46204 (317) 231-1100 Tel (317) 231-1106 Fax Email: msniderman@findlingpark.com

Counsel for Plaintiffs

20

 
 Case 1:20-cv-01271-JPH-DLP Document 71 Filed 08/20/20 Page 1 of 4 PageID #: 776

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY,

)

KATHARINE BLACK,

)

MARC BLACK,

)

DAVID CARTER,

)

REBECCA GAINES,

)

ELIZABETH KMIECIAK,

)

CHAQUITTA MCCLEARY,

)

DAVID SLIVKA,

)

DOMINIC TUMMINELLO,

)

INDIANA VOTE BY MAIL, INC.

)

individually, and on behalf of those

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL OKESON,

)

S. ANTHONY LONG,

)

SUZANNAH WILSON OVERHOLT,

)

ZACHARY E. KLUTZ in their official

)

capacity as members of the Indiana

)

Election Commission,

)

CONNIE LAWSON in her official capacity )

as the Indiana Secretary of State,

)

)

Defendants.

)

)

)

DISABILITY RIGHTS EDUCATION AND )

DEFENSE FUND, INC,

)

)

Amicus.

)

)

COMMON CAUSE INDIANA,

)

INDIANA STATE CONFERENCE OF THE )

NAACP,

)

)

Miscellaneous.

)

No. 1:20-cv-01271-JPH-DLP

1

Case 1:20-cv-01271-JPH-DLP Document 71 Filed 08/20/20 Page 2 of 4 PageID #: 777
ORDER DENYING MOTION TO CONSOLIDATE Defendants have filed a motion to consolidate Common Cause Indiana et al. v. Election Commission Members et al., No. 1:20-cv-2007-SEB-TAB, with this case. Dkt. 67. They argue that this Court should exercise its discretion to consolidate the cases to "ensure judicial efficiency and avoid potential confusion by separate rulings." Id. at 1. Plaintiffs in this case and in 1:20-cv2007 oppose the motion, arguing that the "different plaintiffs, different counsel, different questions of both law and fact, different constitutional claims, and . . . distinct procedural postures" make consolidation inappropriate. Dkt. 69; see dkt. 70. Federal Rule of Civil Procedure 42 grants the Court discretion to consolidate actions that "involve a common question of law or fact." See Blue Cross Blue Shield of Mass. v. BCS Ins., 671 F.3d 635, 640 (7th Cir. 2011). Mere "similarities" between cases do "not render the district court's denial of consolidation an abuse of discretion." Star Ins. Co. v. Risk Mktg. Grp., 561 F.3d 656, 660 (7th Cir. 2009). Here, the similarities that Defendants identify are primarily superficial— some parties are the same, some counsel are the same, some discovery may overlap, and both cases involve constitutional issues surrounding COVID-19 and Indiana's general election. See dkt. 67. Defendants have not shown that many of the same facts will be relevant in both cases, or that the legal issues are substantially the same. See id. So, regardless of whether consolidation is permissible, it does not warrant the exercise of the Court's discretion. See
2

Case 1:20-cv-01271-JPH-DLP Document 71 Filed 08/20/20 Page 3 of 4 PageID #: 778
Owner–Operator Ind. Drivers Ass'n v. Mayflower Trans., No. 1:98-cv-457-SEBJMS, 2007 WL 9770410 at *1–2 (S.D. Ind. Oct. 26, 2007).
The motion to consolidate is DENIED. Dkt. [67]. SO ORDERED. Date: 8/20/2020
Distribution: Courtney Lyn Abshire INDIANA ATTORNEY GENERAL courtney.abshire@atg.in.gov Bridget A. Clarke baclarke@comcast.net Thomas M. Fisher INDIANA ATTORNEY GENERAL tom.fisher@atg.in.gov Jefferson S. Garn INDIANA ATTORNEY GENERAL Jefferson.Garn@atg.in.gov Jed W. Glickstein MAYER BROWN LLP jglickstein@mayerbrown.com William R. Groth MACEY SWANSON LLP wgroth@fdgtlaborlaw.com Kian J. Hudson INDIANA ATTORNEY GENERAL kian.hudson@atg.in.gov Gary A. Isaac
3

Case 1:20-cv-01271-JPH-DLP Document 71 Filed 08/20/20 Page 4 of 4 PageID #: 779
MAYER BROWN LLP gisaac@mayerbrown.com Brett E. Legner MAYER BROWN LLP blegner@mayerbrown.com Parvinder Kaur Nijjar INDIANA ATTORNEY GENERAL parvinder.nijjar@atg.in.gov Michael Anthony Scodro MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Mark W. Sniderman FINDLING PARK CONYERS WOODY & SNIDERMAN, PC msniderman@findlingpark.com Jeffrey M. Strauss MAYER BROWN LLP jstrauss@mayerbrown.com
4

 
 Case 1:20-cv-01271-JPH-DLP Document 72 Filed 08/21/20 Page 1 of 19 PageID #: 780

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BARBARA TULLY,

)

KATHARINE BLACK,

)

MARC BLACK,

)

DAVID CARTER,

)

REBECCA GAINES,

)

ELIZABETH KMIECIAK,

)

CHAQUITTA MCCLEARY,

)

DAVID SLIVKA,

)

DOMINIC TUMMINELLO,

)

INDIANA VOTE BY MAIL, INC.

)

individually, and on behalf of those

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL OKESON,

)

S. ANTHONY LONG,

)

SUZANNAH WILSON OVERHOLT,

)

ZACHARY E. KLUTZ in their official

)

capacity as members of the Indiana

)

Election Commission,

)

CONNIE LAWSON in her official capacity )

as the Indiana Secretary of State,

)

)

Defendants.

)

)

)

DISABILITY RIGHTS EDUCATION AND )

DEFENSE FUND, INC,

)

)

Amicus.

)

No. 1:20-cv-01271-JPH-DLP

ORDER DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

Plaintiffs ask the Court to enter a preliminary injunction that would

require the State of Indiana to allow all Indiana voters to vote by mail in the

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November 3, 2020 general election. They argue that Indiana's absentee voting law—which allows only some Hoosiers to vote by mail—unconstitutionally burdens their right to vote. Defendants—the Indiana Secretary of State and members of the Indiana Election Commission—respond that because Plaintiffs may vote in person, they are not likely to be able to show that the absentee voting law is unconstitutional and are not entitled to a preliminary injunction. The question before the Court is not whether it would be wise for Indiana to allow everyone to vote by mail; that's a policy choice. Rather, the legal issue is whether Plaintiffs are likely to be able to show that the Constitution requires Indiana to give all voters the right to vote by mail in the upcoming general election. Plaintiffs have not made this showing so their motion for preliminary injunction is DENIED. Dkt. [13].
I. Facts and Background The Court recites the undisputed facts for purposes of this preliminary injunction motion. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (procedures are "less formal" and the evidence is "less complete" than at trial because the "purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held"). COVID-19 needs little introduction—it is a respiratory disease that "readily spread[s] from person to person," dkt. 13-13 at 9 ¶ 18, and has caused a pandemic. While COVID-19 has infected many Hoosiers, many more remain vulnerable. Id. at 6 ¶ 11. One way they can minimize the risk of infection is by
2

Case 1:20-cv-01271-JPH-DLP Document 72 Filed 08/21/20 Page 3 of 19 PageID #: 782
spending time "in the best ventilated, least contaminated environment where the fewest number of people are generating the fewest virus particles." Id. at 4 ¶ 8.
In response to COVID-19, the Election Commission—which is charged with administering Indiana's election laws—endorsed a broad reading of Indiana's vote by mail statute for Indiana's primary election. See Indiana Code § 3-11-10-24(a). That statute provides that "a voter who satisfies any of the following [13 categories] is entitled to vote by mail":
(1) The voter has a specific, reasonable expectation of being absent from the county on election day during the entire twelve (12) hours that the polls are open. (2) The voter will be absent from the precinct of the voter's residence on election day because of service as:
(A) a precinct election officer under IC 3-6-6; (B) a watcher under IC 3-6-8, IC 3-6-9, or IC 3-6-
10; (C) a challenger or pollbook holder under IC 3-6-7;
or (D) a person employed by an election board to
administer the election for which the absentee ballot is requested. (3) The voter will be confined on election day to the voter's residence, to a health care facility, or to a hospital because of an illness or injury during the entire twelve (12) hours that the polls are open. (4) The voter is a voter with disabilities.
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Case 1:20-cv-01271-JPH-DLP Document 72 Filed 08/21/20 Page 4 of 19 PageID #: 783
(5) The voter is an elderly voter.1
(6) The voter is prevented from voting due to the voter's care of an individual confined to a private residence because of illness or injury during the entire twelve (12) hours that the polls are open.
(7) The voter is scheduled to work at the person's regular place of employment during the entire twelve (12) hours that the polls are open.
(8) The voter is eligible to vote under IC 3-10-11 or IC 3-10-12.
(9) The voter is prevented from voting due to observance of a religious discipline or religious holiday during the entire twelve (12) hours that the polls are open.
(10) The voter is an address confidentiality program participant (as defined in IC 5-26.5-1-6).
(11) The voter is a member of the military or public safety officer.
(12) The voter is a serious sex offender (as defined in IC 35-42-4-14(a)).
(13) The voter is prevented from voting due to the unavailability of transportation to the polls.
For Indiana's June 2020 primary election, the IEC ordered that any voter
"unable to physically touch or be in safe proximity to another person" could
vote by mail under subsection (4) as a voter with disabilities. Dkt. 6 at 10
(citing IEC Order 2020-37 § 9A). For the upcoming general election in
November, the Election Commission has not renewed that order. See dkt. 66.
1 An elderly voter is "a voter who is at least sixty-five years of age." Ind. Code § 3-5-216.5.
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Plaintiffs are nine Indiana voters who do not expect to qualify to vote by mail in the general election under Indiana Code § 3-11-10-24. Dkt. 14 at 2 (citing declarations). They have filed a motion for preliminary injunction. Dkt. 13. Specifically, they ask the Court to enter an order requiring Indiana to implement "no-excuse absentee voting" that would allow any voter to vote by mail with an absentee ballot in the November 3, 2020 general election. Dkt. 62 at 5-6.
II. Applicable Law Parties may move under Federal Rule of Civil Procedure 65 for the issuance of a preliminary injunction. Determining whether a preliminary injunction is required involves a two-step inquiry, with a threshold phase and a balancing phase. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). At the threshold phase, the moving party must show that: (1) without the requested relief, it will suffer irreparable harm during the pendency of its action; (2) traditional legal remedies would be inadequate; and (3) it has "a reasonable likelihood of success on the merits." Id. If the movant satisfies these requirements, the court proceeds to the balancing phase "to determine whether the balance of harms favors the moving party or whether the harm to other parties or the public sufficiently outweighs the movant's interests." Id.
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III. Discussion "A preliminary injunction is an extraordinary remedy. . . . never to be indulged in except in a case clearly demanding it." Id. (quoting Girl Scouts of Manitou Council, Inc. v. Girl Scouts of United States of Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008). To be entitled to a preliminary injunction, Plaintiffs must first meet their threshold burden to show a reasonable likelihood of success on the merits, irreparable harm, and that traditional legal remedies would be inadequate. Id. A. Likelihood of success on the merits Plaintiffs argue that they are likely to succeed on the merits of their Fourteenth Amendment and Twenty-Sixth Amendment challenges because Indiana has not consistently allowed voting by mail.2 Dkt. 14 at 7–20. Defendants respond that Indiana has made reasonable distinctions in its voteby-mail accommodations. Dkt. 53 at 9–19. 1. The right to vote does not include the right to vote by mail The right to vote is a fundamental right central to our democracy. Harper v. Va. State Bd. of Educ., 383 U.S. 663, 667 (1966). Less clear is whether that right is at stake here, so that's where the Court's analysis begins. Plaintiffs correctly "acknowledge that [Indiana] could likely eliminate all absentee voting if it wished." Dkt. 14 at 9. That's because unless a restriction
2 Plaintiffs also allege a violation of Article 1 § 23 of the Indiana Constitution, dkt. 6 at 20, but they do not seek a preliminary injunction on that basis, see dkt. 13; dkt. 14.
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on absentee voting "absolutely prohibit[s]" someone from voting, the right to vote is not at stake. McDonald v. Bd. of Election Comm'rs of Chi., 394 U.S. 802, 807 (1969).
In McDonald, pretrial detainees in Illinois sought the ability to vote absentee. Id. at 803. Illinois allowed absentee voting for four classes of people, but the detainee plaintiffs did not fall into any of them. Id. at 803–04. The Supreme Court rejected the detainees' argument that Illinois' absentee voting privileges violated the Fourteenth Amendment's Equal Protection Clause. Id. at 806. The Court explained that "because of the overriding importance of voting rights, classifications 'which might invade or restrain them must be closely scrutinized and carefully confined.'" Id. at 807 (quoting Harper, 383 U.S. at 670). But Illinois' absentee voting provisions did not require that "exacting approach" because the detainees had not shown that they were absolutely prohibited from voting on election day. Id. at 808, 808 n.6. So it was "not the right to vote that [was] at stake . . . but a claimed right to receive absentee ballots." Id. at 807.
Plaintiffs argue that the Supreme Court has "limited McDonald's holding to its facts." Dkt. 14 at 12–13. In Goosby v. Osser, however, the Court confronted a different factual situation because the plaintiffs had alleged that "the Pennsylvania statutory scheme absolutely prohibit[ed] them from voting." 409 U.S. 512, 521 (1973). The Court's limited holding at the preliminary stage of that case was only that—because of that allegation—the plaintiffs' claim was not "wholly insubstantial" or "obviously frivolous" under McDonald. Id. at 518,
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521–22. Similarly, in Hill v. Stone, the Court did not cabin McDonald, but summarized it as addressing "whether pretrial detainees in Illinois jails were unconstitutionally denied absentee ballots" when "there was nothing in the record to indicate that the challenged Illinois statute had any impact on the appellants' exercise of their right to vote." 421 U.S. 289, 300 n.9 (1975). Those cases therefore did not overrule McDonald or limit it to its facts.
Moreover, in Griffin v. Roupas, working mothers sought expanded voting options "that would allow people [to vote] who find it hard for whatever reason to get to the polling place on election day." 385 F.3d 1128, 1129–30 (7th Cir. 2004). The Seventh Circuit found no equal protection violation because, among other reasons, "unavoidable inequalities in treatment, even if intended in the sense of being known to follow ineluctably from a deliberate policy, do not violate equal protection." Id. at 1132.
The same is true here. Plaintiffs do not contend that they are absolutely prohibited from voting. Rather, they contend that the constitution requires the state to allow all voters to vote by mail. Dkt. 14 at 11. Since Plaintiffs really seek an expansion of absentee voting privileges, dkt. 6 at 21; dkt. 13, it is "not the right to vote that is at stake here but a claimed right to receive absentee ballots." McDonald, 394 U.S. at 807. When, as here, the fundamental right to vote is not at stake, Indiana has "wide leeway . . . to enact legislation that appears to affect similarly situated people differently." Id.
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2. Plaintiffs are not likely to succeed on their equal protection claim
Plaintiffs contend that, under the Constitution, all voters must be
allowed to vote by mail in the general election because of COVID-19. Dkt. 6 at
21; dkt. 13. They argue that their equal protection claim should be evaluated
under the Anderson–Burdick framework, which balances the burdens on the
right to vote against the state's interests that may justify those burdens. Dkt.
14 at 7; see Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze,
460 U.S. 780 (1983). Defendants respond that the decision not to expand
voting by mail does not implicate the right to vote, so the Anderson–Burdick
framework does not apply. Dkt. 53 at 16.
It is not necessary for the Court to decide whether the Anderson–Burdick
framework applies here because Plaintiffs have not shown a reasonable
likelihood of success on the merits under either Anderson–Burdick or
McDonald.3 While election laws "invariably impose some burden on individual
voters," those burdens do not necessarily "compel close scrutiny." Burdick, 504
3 The Supreme Court has applied Anderson–Burdick when "a challenged regulation burdens First and Fourteenth Amendment rights," Burdick, 504 U.S. at 434, and the Seventh Circuit has explained that it applies "to all First and Fourteenth Amendment challenges to state election laws," Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019). Defendants argue that under McDonald, Anderson–Burdick does not apply to this equal protection challenge, dkt. 53 at 16–18, and as explained, the Court need not resolve this question at this stage of this case. Cf. Mays v. LaRose, 951 F.3d 775, 783 n.4 (6th Cir. 2020) ("It's unclear whether the Supreme Court ever intended Anderson–Burdick to apply to Equal Protection claims. That Court has only applied the framework in the context of generally applicable laws."). Under Anderson– Burdick, any burden on the right to vote would be analyzed under McDonald—which, as explained above, the Supreme Court has not limited to its facts or overruled—and Griffin. See Tex. Democratic Party v. Abbott, 961 F.3d 389, 393–94 (5th Cir. 2020) ("[McDonald] squarely governs the equal-protection issue.").
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U.S. at 433. Instead, the rigor of the inquiry "depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights." Id. at 434. Here, Plaintiffs have not alleged or shown that the State— through either Defendants' actions or Indiana's laws—has absolutely prohibited them from voting. See McDonald, 394 U.S. at 809 (because nothing showed that plaintiffs were "absolutely prohibited" from voting, Illinois' absentee voting decisions appeared "quite reasonable"). And as explained above, the privilege of voting by mail does not implicate the fundamental right to vote. See id. at 807. Plaintiffs therefore have not shown a substantial burden on the fundamental right to vote, leaving them with only their equal protection argument that Indiana does not evenhandedly grant a statutory entitlement to vote by mail. Dkt. 14 at 11–12.
But Plaintiffs have not shown a reasonable likelihood of success on that argument. To start, voting by mail is not a right but a privilege that "make[s] voting easier." Luft v. Evers, 963 F.3d 665, 672 (7th Cir. 2020). Nonetheless, under an equal protection analysis, the statutory distinctions must at least "bear some rational relationship to a legitimate state end." McDonald, 394 U.S. at 809. In this context, the legitimate state end is the "consistent and laudable state policy of adding . . . groups to the [vote by mail] coverage." Id. at 811. And Indiana is not required to all at once add every conceivable group who could benefit. Id.
For these reasons, "unavoidable inequalities in treatment, even if intended in the sense of being known to follow ineluctably from a deliberate
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policy, do not violate equal protection." Griffin, 385 F.3d at 1132. That is the case here. Indiana drew distinctions about who may vote by mail, knowing that some would not be able to enjoy that privilege. See Ind. Code § 3-11-1024. That legislative judgment is one that Indiana is generally entitled to make, see Griffin, 385 F.3d at 1131, and Plaintiffs have not shown a likelihood that it was merely an "arbitrary scheme," McDonald, 394 U.S. at 811. Moreover, "electoral provisions cannot be assessed in isolation," looking only at voting restrictions while ignoring voting privileges. Luft, 963 F.3d at 675.
Indiana provides several alternatives to voting in-person on November 3, 2020: (1) early in-person voting is available between October 6, 2020 and November 2, 2020; (2) voters who meet the requirements may vote by mail with an absentee ballot; and (3) eligible voters may have poll workers bring them a ballot so they may vote at home. See How to Vote Early in Indiana, https://www.in.gov/idr/voteearly.htm (last visited Aug. 20, 2020). These provisions of Indiana's voting laws make it easy to vote. The vote by mail absentee ballot provision, Indiana Code § 3-11-10-24(a), grants vote by mail privileges to any voter who falls into any one of thirteen categories, many of which are sweepingly broad. This "cut[s] in [Indiana's] favor." Luft, 963 F.3d at 675. A few less-convenient effects "does not an unconstitutional system make." Id.; see McDonald, 394 U.S. at 810.
The cases that Plaintiffs cite do not counsel otherwise. Dunn v. Blumstein was about whether citizens were entirely foreclosed from exercising their fundamental right to vote. 405 U.S. 330, 336 (1972). The same is true of
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Harper, because it involved a poll tax which denied voters the right to vote altogether if they did not pay the tax. 383 U.S. at 666–68. Nor are any of the cited district court opinions on point, so Plaintiffs have not established a likelihood of success on the merits in light of McDonald and Griffin. See, e.g. League of Women Voters of Va. v. Va. State Bd. of Elections, --- F. Supp. 3d. ----, No. 6:20-cv-24 (W.D. Va. May 5, 2020) (addressing—in the consent decree context—an as-applied constitutional challenge to a witness-signature requirement for absentee ballots); Doe v. Walker, 746 F. Supp. 2d 667 (D. Md. 2010) (addressing a deadline for the receipt of absentee ballots from uniformed services and overseas voters).4
Plaintiffs also attempt to distinguish McDonald and Griffin by arguing that nothing in those opinions suggests "that the Constitution would have no application to claims seeking to expand absentee voting in the face of a historic pandemic." Dkt. 62 at 15–16. While COVID-19 undisputedly presents new and serious challenges, Plaintiffs have not explained why those challenges trigger constitutional protections when the challenges of working mothers, medical personnel, and those working two jobs do not. See Griffin, 385 F.3d at 1130. In short, there have long been classes of people "for whom voting may be extremely difficult, if not practically impossible." McDonald, 394 U.S. at 809– 10. Yet Plaintiffs do not identify any case in which that has been enough to
4 Plaintiffs also cite One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d. 896 (W.D. Wisc. 2016), which has since been reversed in part and vacated in part on appeal, Luft, 963 F.3d 665.
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show "unconstitutional incompleteness" of absentee voting privileges. Id. at 810.
Plaintiffs are therefore unlikely to be able to show that COVID-19's challenges entitle them to constitutional relief. When it comes to this virus, "[l]ocal officials are working tirelessly to 'shap[e] their response to changing facts on the ground,' knowing that the appropriate response is 'subject to reasonable disagreement.'" Tex. Democratic Party, 961 F.3d at 393–94 (quoting S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614 (2020) (Roberts, C.J., concurring in the denial of injunctive relief)). For the federal courts to step in and decide what measures are necessary would "allow[ ] a political question—whether a rule is beneficial, on balance—to be treated as a constitutional question and resolved by the courts rather than by legislators." Luft, 963 F.3d at 671. "Burdick forecloses that sort of substitution of judicial judgment for legislative judgment." Id.
Indeed, Indiana enjoys double deference in this case. First, the Constitution "confers on the states broad authority to regulate the conduct of elections, including federal ones." Griffin, 385 F.3d at 1130 (citing U.S. Const. Art. I § 4); accord Burdick, 504 U.S. at 433; Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 208 (2008) (Scalia, J., concurring). So courts do "not interfere unless strongly convinced that the legislative judgment is grossly awry." Griffin, 385 F.3d at 1131. Second, in a pandemic "[o]ur Constitution principally entrusts '[t]he safety and the health of the people' to the politically accountable officials of the States 'to guard and protect.'"
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Pentecostal Church, 140 S. Ct. at 1613 (Roberts, C.J., concurring in the denial of injunctive relief) (quoting Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)). Indiana receives this deference because of its responsibility to protect Plaintiffs and other voters on election day. And indeed, for the general election Indiana is "procuring and distributing over 1 million face masks, over 1.5 million gloves, 20,000 half-gallon bottles of hand sanitizer, 5,000 gallons of surface and equipment disinfectant, and other PPE supplies for voters and poll workers." Dkt. 53-4 at 3 ¶ 8. Indiana also plans to distribute a manual on best safety practices, as well as posters and "social distancing markers." Id. at 4 ¶ 9.
While balancing the harms and public interest is not required because Plaintiffs have not shown a reasonable likelihood of success, it is worth noting several factors that weigh in Defendants' favor. It is in the interest of Defendants and the public that the manner of voting in the general election promote the accurate and timely counting and reporting of results. See Griffin, 385 F.3d at 1131 (explaining some "problems created by absentee voting" and acknowledging that balancing those problems against the benefits "is quintessentially a legislative judgment"). Expanding voting by mail again for the general election may jeopardize that interest. Dkt. 53 at 21–22.
Plaintiffs argue that Indiana should expand voting by mail for the general election as it did for the primary because it will enable more people to vote.5
5 Plaintiffs do not present an argument that Indiana's vote by mail expansion for the primary election itself constitutionally requires the same for the general election. See dkt. 14 at 15; dkt. 62 at 10.
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But general elections already have substantially higher numbers of voters than primaries do. Combining that increase with increased votes from vote by mail privileges—even if that privilege is not expanded, and certainly if it is—could easily strain Indiana's voting systems because those systems are instead equipped for in-person voting. Id.; dkt. 53-1 at 2; dkt. 53-2 at 2; dkt. 53-4 at 4. There is therefore greater risk of delayed results and the disqualification of voters for late or defective ballots for the general election than for the primary. See dkt. 53-2 at 2; dkt. 53-3 at 4; dkt. 53-4 at 4–5. It is within Indiana's discretion to consider and weigh the benefits of expanded voting by mail with the harm that could result from the potential disqualification of a high number of absentee ballots and the inability of county election boards to certify election results in a timely manner.
In sum, Plaintiffs seek "unlimited absentee voting," for the November 3, 2020 general election, but have not shown a reasonable likelihood of overcoming "a host of serious objections to judicially legislating so radical a reform in the name of the Constitution." Griffin, 385 F.3d at 1130.
3. Plaintiffs are not likely to succeed on their Twenty-Sixth Amendment claim
Plaintiffs argue that, because voters who are at least sixty-five years old are entitled to vote by mail for that reason, Indiana's voting by mail statute abridges younger voters' right to vote on account of age in violation of the Twenty-Sixth Amendment. That amendment provides: "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."
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Dkt. 14 at 16 (quoting U.S. Const. amend. XXVI § 1). Defendants respond that Indiana's provisions do not abridge the right to vote, which does not include a right to vote absentee. Dkt. 52 at 18–19.
Plaintiffs have not shown a likelihood of success on this claim for the same reasons they have not shown a likelihood of success on their equal protection claim. The text of the Twenty-Sixth Amendment shows that it protects "the right . . . to vote." And as explained above, under McDonald, a restriction on absentee voting does not endanger the right to vote unless it "absolutely prohibit[s]" someone from voting. McDonald, 394 U.S. at 807.
Plaintiffs argue that McDonald "cannot possibly control the Twenty-Sixth Amendment analysis because the Twenty-Sixth Amendment had not been adopted when McDonald was decided." Dkt. 62 at 18. But the Twenty-Sixth Amendment and McDonald are contemporaries, and both address the constitutional right to vote. See Tex. Democratic Party, 961 F.3d at 409. So, as the Fifth Circuit recognized, "McDonald's logic applies neatly to the TwentySixth Amendment's text." Id. There is also "plenty" of historical evidence "that the Amendment's most immediate purpose was to lower the voting age from twenty-one to eighteen." Id. at 408 (citing Eric S. Fish, Note, The Twenty-Sixth Amendment Enforcement Power, 121 Yale L.J. 1168, 1170 (2012)).
Moreover, because there are very few cases involving the Twenty-Sixth Amendment, Plaintiffs are unable to show that it "clearly demand[s]" the "farreaching power" of a preliminary injunction. Orr v. Schicker, 953 F.3d 490, 501 (7th Cir. 2020). At the least—focusing on the preliminary stage of this case—
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Plaintiffs have not shown a reasonable likelihood of success on the merits of this claim, so they are not entitled to a preliminary injunction.6
* * * For these reasons, Plaintiffs have not met their threshold burden to show a reasonable likelihood of success on the merits for either their equal protection or Twenty-Sixth Amendment claim. See Whitaker, 858 F.3d at 1044. They therefore are not entitled to a preliminary injunction and the Court does not proceed to balance each parties' interests. See id.
III. Conclusion As the Supreme Court has noted, allowing broader voting by mail may be wise policy. See McDonald, 394 U.S. at 811 (noting Illinois' "consistent and laudable state policy of adding, over a 50-year period, groups to the absentee coverage"). Some states have chosen "no-excuse" voting by mail for all. See dkt. 62 at 14. Indiana has decided otherwise. The question here, however, is not whether the policy is wise, but whether it is constitutional. For the reasons explained above, Plaintiffs have not shown a reasonable likelihood of success in showing that the policy is unconstitutional. Plaintiffs' motion for a preliminary injunction is therefore DENIED. Dkt. [13]. Amicus Disability Rights Education and Defense Fund's motion for leave
6 Because Plaintiffs have not met their threshold preliminary injunction burden to show a reasonable likelihood of success on the merits, so addressing the remaining threshold factors is unnecessary. See Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013) ("Here, the analysis begins and ends with the likelihood of success on the merits.").
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to file amici curiae brief is GRANTED. Dkt. [64].7 The motion to certify class remains pending. Dkt. 17. The parties shall file a status update by August 28, 2020. SO ORDERED. Date: 8/21/2020
Distribution: Courtney Lyn Abshire INDIANA ATTORNEY GENERAL courtney.abshire@atg.in.gov Bridget A. Clarke baclarke@comcast.net Thomas M. Fisher INDIANA ATTORNEY GENERAL tom.fisher@atg.in.gov Jefferson S. Garn INDIANA ATTORNEY GENERAL Jefferson.Garn@atg.in.gov Jed W. Glickstein MAYER BROWN LLP jglickstein@mayerbrown.com William R. Groth MACEY SWANSON LLP wgroth@fdgtlaborlaw.com
7 The Court is grateful for the amicus brief and its valuable insights into COVID-19's impact on Hoosier voters with disabilities. Dkt. 64-1.
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Kian J. Hudson INDIANA ATTORNEY GENERAL kian.hudson@atg.in.gov Gary A. Isaac MAYER BROWN LLP gisaac@mayerbrown.com Brett E. Legner MAYER BROWN LLP blegner@mayerbrown.com Parvinder Kaur Nijjar INDIANA ATTORNEY GENERAL parvinder.nijjar@atg.in.gov Michael Anthony Scodro MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Mark W. Sniderman FINDLING PARK CONYERS WOODY & SNIDERMAN, PC msniderman@findlingpark.com Jeffrey M. Strauss MAYER BROWN LLP jstrauss@mayerbrown.com
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