In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-2835 

BARBARA TULLY, et al., 

Plaintiffs-Appellants, 

v.

PAUL OKESON, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:20-cv-01271 — James P. Hanlon, Judge. 

____________________ 

ARGUED MAY 17, 2023 — DECIDED AUGUST 15, 2023 

____________________ 

Before RIPPLE, SCUDDER, and LEE, Circuit Judges. 

RIPPLE, Circuit Judge. Indiana law allows “elderly” voters—those sixty-five or older—to vote by mail. Indiana voters 

who are younger than sixty-five must fall within one of 

twelve other categories in order to vote by mail. Because of 

the COVID-19 pandemic, the Indiana Election Commission 

extended absentee-voting privileges to all registered Indiana 

voters for the June 2020 primary but did not renew that order 

for the November 2020 general election. 
2 No. 22-2835 

The plaintiffs are Indiana voters who were allowed to vote 

absentee in the primary, but who do not otherwise qualify for 

absentee voting. They initially sought a preliminary injunction requiring Indiana to permit unlimited absentee voting, 

claiming that the State’s failure to extend absentee voting to 

all eligible voters abridged the rights of younger voters in violation of the Twenty-Sixth Amendment and also infringed 

their fundamental right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment.1 The district 

court denied their request for a preliminary injunction. 

We heard the plaintiffs’ appeal less than six weeks before 

the 2020 general election, and after absentee voting already 

had begun. Mindful of the Supreme Court’s admonition “to 

exercise caution and restraint before upending state election 

regulations on the eve of an election,” we affirmed the denial 

of a preliminary injunction. Tully v. Okeson, 977 F.3d 608, 611–

12 (7th Cir. 2020) (“Tully I”) (citing Purcell v. Gonzalez, 549 U.S. 

1, 4 (2006)). Relevant to the present appeal, we concluded that 

the plaintiffs had not made a strong showing of likelihood of 

success on the merits in light of McDonald v. Board of Election 

Commissioners of Chicago, 394 U.S. 802 (1969), which held that 

“‘the right to vote’ does not include Plaintiffs’ ‘claimed right 

to receive absentee ballots.’” Tully I, 977 F.3d at 613 (quoting 

McDonald, 394 U.S. at 807). 

Back in the district court, the plaintiffs abandoned their 

Fourteenth Amendment claim, and both parties moved for 

summary judgment. The district court concluded that Tully I

established the law of the case, and that even if the law of the 

1 The plaintiffs named the individual members of the Indiana Election 

Commission, as well as the Indiana Secretary of State, as defendants.
No. 22-2835 3

case doctrine did not apply, our decision constituted controlling authority. The plaintiffs again sought review.

We now affirm the district court’s judgment, but on different grounds. Given the circumstances under which we issued 

Tully I, that decision does not constitute the law of the case; 

nor do we consider ourselves bound by its reasoning. Considering the merits anew, however, we hold that Indiana’s granting the opportunity to vote by mail to elderly voters does not 

abridge the right to vote of those under sixty-five. The provision does not violate the Twenty- Sixth Amendment. 

I.

BACKGROUND

Indiana law allows thirteen categories of voters to vote by 

mail. Ind. Code § 3-11-10-24. These categories include voters 

working the polls; voters confined in a hospital or other health 

care facility; voters with disabilities; voters who are caregivers; voters who do not have transportation to the polls; and 

voters who are “elderly,” among others. See id. For purposes 

of Indiana’s voting regulations, “‘[e]lderly’ means a voter 

who is at least sixty-five (65) years of age.” Id. § 3-5-2-16.5. 

Because of the COVID-19 pandemic, the Indiana Election 

Commission extended absentee-voting privileges to all registered Indiana voters for the June 2020 primary. For the November general election, however, the Commission did not 

renew its order. Instead, it sought to alleviate the effects of 

COVID-19 by implementing extensive safety protocols, issuing protective equipment for election day, and allowing voters in all counties to vote during a twenty-eight-day period 

before the election.
4 No. 22-2835 

The plaintiffs, voters in Indiana who were allowed to vote 

absentee in the primary but did not otherwise qualify for absentee voting in the general election, brought this action. Initially, they sought a preliminary injunction requiring Indiana 

to permit unlimited absentee voting in the general election.

They asserted that the State’s extension of absentee-voting 

rights to voters over sixty-five years of age abridged the rights 

of younger voters in violation of the Twenty-Sixth Amendment. Second, they contended that requiring some voters to 

vote in person during the pandemic infringed their fundamental right to vote in violation of the Equal Protection 

Clause of the Fourteenth Amendment. The district court denied their request for a preliminary injunction, and we affirmed that decision. Tully v. Okeson, 977 F.3d 608 (7th Cir. 

2020).

In affirming the district court’s denial of a preliminary injunction, the panel majority concluded that the plaintiffs had 

not made a strong showing of likelihood of success on the 

merits because “‘the right to vote’ does not include Plaintiffs’ 

‘claimed right to receive absentee ballots.’” Id. at 613. The 

panel’s decision relied on McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969). In that case, pretrial 

detainees in Illinois had argued that the State’s voting laws 

violated the Equal Protection Clause because it granted the 

right to vote absentee to voters who were “physically incapacitated,” but did not make the same provision for those who 

were “judicially incapacitated.” Id. at 805. The Court rejected 

that argument, explaining that at issue was “a claimed right 

to receive absentee ballots,” not the right to vote. Id. at 807. 

Given this conclusion, the panel majority in Tully I similarly 

concluded that Indiana’s absentee-voting rules did not impact 
No. 22-2835 5

the plaintiffs’ right to vote and therefore did not implicate the 

Twenty-Sixth Amendment.2 

In reaching this decision, the panel majority was 

“guide[d]” by “[t]wo other principles.” Tully I, 977 F.3d at 611. 

First, it noted that “the Constitution explicitly grants states 

the authority to prescribe the manner of holding federal elections.” Id. “Second, the Supreme Court’s Purcell principle 

counsels federal courts to exercise caution and restraint before 

upending state election regulation on the eve of an election.” 

Id. at 611–12. Because voting already was underway when the 

case was heard, the panel was “wary of turning the State in a 

new direction at this late stage.” Id. at 612. 

The concurring judge agreed that the plaintiffs had “made 

a weak case” that their right to vote had been abridged on the 

basis of age. Id. at 619 (Ripple, J., concurring). The definition 

of the elderly as sixty-five years or older was “a commonsense tool” that “relieve[d] the Commission of the insurmountable task of adjudicating ... which of its older citizens 

would be deterred in coming to the polls on a November day 

because of the physical and social conditions that invariably 

afflict senior citizens.” Id. The concurring judge specifically 

noted that “[a] November day in Indiana, at least in the northern regions of the State, can pose a significant obstacle to leaving one’s home.” Id. The concurrence also expressed a wariness of using McDonald’s definition of the right to vote in all 

circumstances, explaining: “McDonald antedates the 

2 The only issue in the current appeal is whether Indiana’s extension of 

absentee voting to “elderly” voters violates the Twenty-Sixth Amendment; therefore, the discussion of prior proceedings is limited to that issue 

as well.
6 No. 22-2835 

ratification of this Amendment, however, and it may well be 

that the day will come when the general rule articulated in 

McDonald will have to yield to the Twenty-Sixth Amendment 

when the values protected by that Amendment are clearly at 

stake.” Id.

Back in the district court, both parties moved for summary 

judgment. The district court determined that the panel’s decision on the preliminary injunction established the law of the 

case, and that, in any event, it was bound by the panel’s decision. It acknowledged that the opinion concerned only the 

question of whether a preliminary injunction should issue, 

and that decisions in the preliminary-injunction context did 

not necessarily implicate the law of the case. Nevertheless, the 

district court interpreted the majority decision as resting on a 

purely legal determination. Because the applicable law had 

not changed since the issuance of the panel’s opinion, it could 

not deviate from Tully I. The district court therefore granted 

summary judgment to the State defendants on the ground 

that the absentee-ballot provision did not violate the TwentySixth Amendment. The plaintiffs timely appealed.

II.

DISCUSSION

A. Law of the Case 

The State first maintains that the law of the case precludes 

us from revisiting our decision in Tully I. “The law of the case 

doctrine ‘is a rule of practice, based on [the] sound policy ... 

that, when an issue is once litigated and decided, that should 

be the end of the matter.’” Creek v. Vill. of Westhaven, 144 F.3d 

441, 445 (7th Cir. 1998) (quoting Gertz v. Robert Welch, Inc., 680 

F.2d 527, 532 (7th Cir. 1982)). “The consistency provided by 
No. 22-2835 7

the rule protects parties from the expense and vexation attending multiple lawsuits, conserves judicial resources, and 

fosters reliance on judicial action.” Id. (internal quotation 

marks omitted). “This doctrine advises against revisiting earlier rulings ‘absent a compelling reason, such as manifest error or a change in the law.’” Toliver v. Pollard, 688 F.3d 853, 861 

(7th Cir. 2012) (quoting Minch v. City of Chicago, 486 F.3d 294, 

301 (7th Cir. 2007)). 

Here, it would not be “sound policy” to invoke the law of 

the case doctrine. Tully I concerned the issuance of a preliminary injunction. The Supreme Court has held that legal and 

factual rulings made as part of a preliminary-injunction analysis are not binding upon panels when they later consider the 

matter on the merits. See Univ. of Texas v. Camenisch, 451 U.S. 

390, 395 (1981). The Court has explained that

[t]he purpose of a preliminary injunction is 

merely to preserve the relative positions of the 

parties until a trial on the merits can be held. 

Given this limited purpose, and given the haste 

that is often necessary if those positions are to 

be preserved, 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. A party 

thus is not required to prove his case in full at a 

preliminary-injunction hearing[,] and the 

findings of fact and conclusions of law made by 

a court granting a preliminary injunction are not 

binding at trial on the merits. 

... 
8 No. 22-2835 

[W]here a federal district court has granted a 

preliminary injunction, the parties generally 

will have had the benefit neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the 

controversy. Thus when the injunctive aspects 

of a case become moot on appeal of a preliminary injunction, any issue preserved by an injunction bond can generally not be resolved on 

appeal, but must be resolved in a trial on the 

merits. 

Id. at 395–96 (citations omitted). 

Although Camenisch was not speaking directly to the contours of the law of the case doctrine, the factors identified by

the Court—a less-than-developed record, a short timeline, 

and a concomitant truncated legal analysis—usually counsel 

against invoking the law of the case doctrine in a way that 

would preclude a full merits determination. See 18B Charles 

Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal 

Practice and Procedure § 4478.5 (3d ed. 2019) (“Rulings—predictions—as to the likely outcome on the merits made for preliminary injunction purposes do not ordinarily establish the 

law of the case, whether the ruling is made by a trial court or 

by an appellate court.”). Of course, this general rule does not 

apply to “[a] fully considered appellate ruling on an issue of 

law made on a preliminary injunction appeal.” Id.; see also Fish 

v. Schwab, 957 F.3d 1105, 1141 (10th Cir. 2020) (using this guiding principle to determine that a preliminary-injunction 
No. 22-2835 9

analysis was law of the case); Howe v. City of Akron, 801 F.3d 

718, 740 (6th Cir. 2015) (same and collecting cases).3 

Here, although Tully I rested on a point of law, it also was 

made on the eve of the 2020 election. As we noted in Tully I, 

voting already was underway when we heard oral arguments 

on September 30, 2020. We were cognizant of the fact that any 

changes in voting methods would place additional burdens 

on State resources already taxed due to COVID-19. Even more 

importantly, last-minute changes in voting rules could have 

confused the electorate. Our ultimate decision was animated 

by these weighty concerns—ones the Supreme Court has authorized, and encouraged, us to consider. Purcell, 549 U.S. at 

4–5. However, at this point, the election has passed, and our 

decision will neither strain the electoral system nor jeopardize 

the integrity of the electoral process. We therefore now examine more critically the issue for decision. 

B. Abridgement of the Right to Vote

The Twenty-Sixth 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.” U.S. Const. amend. 

XXVI, § 1. Here, the plaintiffs do not allege that any citizens 

of Indiana were denied their right to vote. Rather, their claim 

is that the right to vote of those under sixty-five was abridged. 

We focus therefore on when there is an “abridgement” of “the 

right to vote” for purposes of the Twenty-Sixth Amendment.

3 Moreover, on at least one occasion, this court has followed a 

preliminary-injunction analysis as law of the case. See Pearson v. Thompson, 

No. 89-3248, 1992 WL 25349, at *2 (7th Cir. Feb. 13, 1992).
10 No. 22-2835 

1. 

In answering this question, we are, as our colleagues in the 

Fifth Circuit have observed, working, in essence, on a constitutional blank slate. See Texas Democratic Party v. Abbott, 978 

F.3d 168, 183 (5th Cir. 2020) (noting that the Twenty-Sixth 

Amendment “has yet to be interpreted in any significant 

depth”). The Supreme Court has not addressed the definition 

of the right to vote in the context of the Twenty-Sixth Amendment. 

The plaintiffs start by inviting our attention to the language of the Twenty-Sixth Amendment and note that it mirrors the language employed in the Fifteenth4 and TwentyFourth Amendments.5 The cases interpreting those Amendments, the plaintiffs submit, therefore should guide our interpretation of the identical language of the Twenty-Sixth 

Amendment. According to the plaintiffs, the plain language 

4 Section 1 of the Fifteenth Amendment states: “The right of citizens of the 

United States to vote shall not be denied or abridged by the United States 

or by any State on account of race, color, or previous condition of servitude ... .” 

5 The Twenty-Fourth Amendment provides in relevant part: “The right of 

citizens of the United States to vote in any primary or other election for 

President or Vice President, for electors for President or Vice President, or 

for Senator or Representative in Congress, shall not be denied or abridged 

by the United States or any State by reason of failure to pay any poll tax 

or other tax.” 

 The Nineteenth Amendment also employs the same language. See U.S. 

Const. amend. XIX (“The right of citizens of the United States to vote shall 

not be denied or abridged by the United States or by any State on account 

of sex.”). However, as with the Twenty-Sixth Amendment, there is a 

dearth of case law interpreting the Nineteenth Amendment.
No. 22-2835 11

of the Fifteenth Amendment, and by extension the TwentySixth Amendment, “has been understood to ‘secure[] freedom 

from discrimination’ in all ‘matters affecting the franchise.’” 

This broad understanding of the right to vote, the plaintiffs 

insist, encompasses absentee voting.

We agree with the plaintiffs that the Supreme Court’s interpretation of the equivalent language in the Fifteenth and 

Twenty-Fourth Amendments is a good starting place for our 

analysis. However, to reach the plaintiffs’ endpoint—that the 

Amendment must be read as requiring no distinction on the 

basis of age in any matter related to voting—we must ignore 

the understanding of the right to vote at the time of the 

Twenty-Sixth Amendment’s ratification. 

We begin with some foundational principles. Although an 

immediate purpose for the enactment of the Twenty-Sixth 

Amendment was to lower the voting age in state and local 

elections to eighteen, the language of the Amendment “transcend[s] the particular controversy which was the immediate 

impetus for its enactment.” Rice v. Cayetano, 528 U.S. 495, 512 

(2000). As with the Fifteenth, Nineteenth, and Twenty-Fourth 

Amendments, the Twenty-Sixth Amendment “provide[s] an 

individual right to be free from the denial or abridgement of 

the right to vote based on the classification described in the 

Amendment.” Abbott, 978 F.3d at 184. Thus, “the TwentySixth Amendment confers an individual right to be free from 

the denial or abridgment of the right to vote on account of 

age.” Id. 

To determine the contours of that right, we look first at the 

language of the Amendment and the way that language was 

understood at the time the Twenty-Sixth Amendment was 

adopted. See District of Columbia v. Heller, 554 U.S. 570, 579–95 
12 No. 22-2835 

(2008) (reviewing how the terms of the Second Amendment 

were understood at the time of ratification). At the time the 

Twenty-Sixth Amendment was ratified, “[i]n-person voting 

was the rule, absentee voting the exception.” Abbott, 978 F.3d 

at 188. Indeed, the Supreme Court’s decision in McDonald v. 

Board of Election of Commissioners of Chicago, 394 U.S. 802, 807 

(1969), handed down only two years before the Twenty-Sixth 

Amendment was ratified, clearly distinguishes the right to 

vote from “a claimed right to receive absentee ballots.” As we 

have explained, McDonald involved a class of pretrial detainees at the Cook County jail who were unable to vote absentee 

because they were not “physically incapacitated.” Id. at 805. 

They brought an action claiming that the distinction between 

those who were “physically incapacitated” and “judicially incapacitated” violated the Equal Protection Clause. See id. The 

Court initially considered the level of scrutiny that should be 

applied and noted that,

while the “States have long been held to have 

broad powers to determine the conditions under which the right of suffrage may be exercised,” we have held that once the States grant 

the franchise, they must not do so in a discriminatory manner. More importantly, however, we 

have held that because of the overriding importance of voting rights, classifications “which 

might invade or restrain them must be closely 

scrutinized and carefully confined” where those 

rights are asserted under the Equal Protection 

Clause. And a careful examination on our part 

is especially warranted where lines are drawn 

on the basis of wealth or race, two factors which 

would independently render a classification 
No. 22-2835 13

highly suspect and thereby demand a more exacting judicial scrutiny. 

Id. at 807 (citations omitted). However, the Court did not have 

to apply “[s]uch an exacting approach” because the absentee 

ballot provisions had not been drawn on the basis of a suspect 

category, nor did they “ha[ve] an impact on appellants’ ability 

to exercise the fundamental right to vote.” Id. The Court explained that it was “not the right to vote that [wa]s at stake” 

but rather “a claimed right to receive absentee ballots.” Id. The 

Court specifically noted that “the record [wa]s barren of any 

indication that the State might not ... possibly furnish the jails 

with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates.” Id. at 808 n.6. 

McDonald’s conception of “the right to vote” as the effective 

exercise of the franchise is also consistent with the Court’s interpretations of the right to vote under the Fifteenth Amendment. Lane v. Wilson, 307 U.S. 268 (1939), is a case in point. 

Lane involved concerted efforts by the Oklahoma legislature 

to deny its black citizens the right to vote. Initially, the Oklahoma legislature imposed a literacy test for voting “from 

which white voters were in effect relieved through the operation of a ‘grandfather clause.’” Id. at 269. The Court struck this 

provision in 1915. See Guinn v. United States, 238 U.S. 347 

(1915). To try to minimize the effects of the Guinn decision, 

the Oklahoma legislature passed a law that automatically registered individuals who had voted in the election of 1914 

(while the discriminatory literacy law was in effect) but required any new voter to register within a twelve-day time 

frame in 1916 or forever lose their right to vote. In 1934, a 

black voter, who, by operation of the statute, had 
14 No. 22-2835 

“permanently lost the right to register and hence the right to 

vote,” challenged this statutory scheme. Lane, 307 U.S. at 271. 

Noting that “[t]he Fifteenth Amendment secures freedom 

from discrimination on account of race in matters affecting 

the franchise,” id. at 274, the Court concluded that the legislature’s efforts to preclude black citizens from registering—and 

therefore voting—violated the Amendment.

Similarly, South Carolina v. Katzenbach, 383 U.S. 301 (1966), 

involved a facial challenge to the Voting Rights Act of 1965. 

In considering whether the Fifteenth Amendment provided 

authority for Congressional action, the Court stated:

Section 1 of the Fifteenth Amendment declares 

that “(t)he right of citizens of the United States 

to vote shall not be denied or abridged by the 

United States or by any State on account of race, 

color, or previous condition of servitude.” This 

declaration has always been treated as selfexecuting and has repeatedly been construed, 

without further legislative specification, to 

invalidate state voting qualifications or procedures 

which are discriminatory on their face or in practice. 

Id. at 325 (emphasis added). The Court then listed a number 

of cases, which concerned registration, physical casting of ballots, or disenfranchisement through district line drawing. See, 

e.g., id. (citing, among other cases, Lane, 307 U.S. at 274; Smith 

v. Allwright, 321 U.S. 649 (1944) (addressing denial of right to 

cast a ballot in a primary election); Gommillion v. Lightfoot, 364 

U.S. 339 (1960) (addressing the redrawing of municipal 

boundaries to exclude minority voters)). After listing these examples of “state voting qualifications or procedures which are 

discriminatory on their face or in practice,” the Court in 
No. 22-2835 15

Katzenbach reaffirmed that “States have broad powers to determine the conditions under which the right of suffrage may 

be exercised.” 383 U.S. at 325 (internal quotation marks omitted). Thus, when referencing “state voting qualifications or 

procedures which are discriminatory on their face or in practice,” the Court was focused on the right to register, the right 

to cast a ballot, and the right to have that ballot counted. It 

was not concerned with peripheral matters typically left to the 

States.

While the Court’s Fifteenth Amendment cases shed light 

on the nature of “the right to vote,” the Court’s seminal 

Twenty-Fourth Amendment case helps us understand the 

term “abridge.” In Harman v. Forssenius, 380 U.S. 528 (1965), 

the Court considered the constitutionality of a Virginia law 

that required qualified citizens to either pay a poll tax or file 

an annual certificate of residence in order to vote. The Court 

had little difficulty in concluding that this choice violated the 

Twenty-Fourth Amendment’s absolute ban of the poll tax. 

The Court explained that 

[i]t has long been established that a State may 

not impose a penalty upon those who exercise a 

right guaranteed by the Constitution. ... Significantly, the 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.

Id. at 540 (citation omitted). In explaining when the right is 

“abridged,” the Court stated that, “like the Fifteenth Amendment, the Twenty-fourth ‘nullifies sophisticated as well as 
16 No. 22-2835 

simple-minded modes’ of impairing the right guaranteed.” Id.

at 540–41. Specifically, “[i]t hits onerous procedural requirements

which effectively handicap exercise of the franchise by those 

claiming the constitutional immunity.” Id. at 541 (internal 

quotation marks and citations omitted) (emphasis added). 

Thus, the Court continued, to demonstrate the law’s invalidity, the plaintiffs only needed to “show[] that it imposes a material requirement solely upon those who refuse to surrender 

their constitutional right to vote in federal elections without 

paying a poll tax.” Id. (emphasis added). 

The Court went on to describe how the certification requirement “erect[ed] a real obstacle to voting in federal elections.” Id. Specifically, those who opted not to pay the tax had 

to 

file in each election year, within a stated interval 

ending six months before the election, a notarized or witnessed certificate attesting that they 

have been continuous residents of the State 

since the date of registration (which might have 

been many years before under Virginia’s system 

of permanent registration) and that they do not 

presently intend to leave the city or county in 

which they reside prior to the forthcoming election. 

Id. “In effect,” the certification “amount[ed] to annual reregistration which Virginia officials have sharply contrasted 

with the ‘simple’ poll tax system.” Id. at 542. Based on this 

evidence, the Court was “constrained to hold that the 

requirement imposed upon the voter who refuses to pay the 

poll tax constitutes an abridgment of his right to vote by 

reason of failure to pay the poll tax.” Id.
No. 22-2835 17

The Court did note that the alternative need not be as onerous as the certification requirement: “The requirement imposed upon those who reject the poll tax method of qualifying 

would not be saved even if it could be said that it is no more 

onerous, or even somewhat less onerous, than the poll tax.” 

Id. The plaintiffs seize on this language as suggesting that any

imposition—however minor—is constitutionally prohibited. 

But context is key. The sentences immediately following state: 

“For federal elections, the poll tax is abolished absolutely as a 

prerequisite to voting, and no equivalent or milder substitute 

may be imposed. Any material requirement imposed upon the 

federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twentyfourth Amendment and must fall under its ban.” Id. (emphasis added). In short, the Court is clear that an “abridgement” 

must involve the imposition of a “material requirement.”

The plaintiffs urge that this interpretation of abridgement 

cannot be reconciled with the Court’s later pronouncements 

in Reno v. Bossier Parish School Board, 528 U.S. 320, 333–34 

(2000). In Bossier Parish, the Court considered “the question 

whether § 5 of the Voting Rights Act of 1965, ... 42 U.S.C. 

§ 1973c, prohibits preclearance of a redistricting plan enacted 

with a discriminatory but nonretrogressive purpose.” 528 

U.S. at 322–23.6 The Court first reiterated that the meaning of 

“‘abridging the right to vote on account of race or color’ refers 

only to retrogression in § 5.” Id. at 333. It stated: 

The term “abridge,” however—whose core 

meaning is “shorten,” see Webster’s New International Dictionary 7 (2d ed.1950); American 

6 This provision has been moved to 52 U.S.C. § 10304.
18 No. 22-2835 

Heritage Dictionary 6 (3d ed.1992)—necessarily 

entails a comparison. It makes no sense to suggest that a voting practice “abridges” the right 

to vote without some baseline with which to 

compare the practice. In § 5 preclearance proceedings—which uniquely deal only and specifically with changes in voting procedures—the 

baseline is the status quo that is proposed to be 

changed: If the change “abridges the right to 

vote” relative to the status quo, preclearance is 

denied, and the status quo (however discriminatory it may be) remains in effect. 

Id. at 333–34. However, this was not the case with proceedings 

under § 2 of the Voting Rights Act or the Fifteenth Amendment: 

In § 2 or Fifteenth Amendment proceedings, by 

contrast, which involve not only changes but 

(much more commonly) the status quo itself, 

the comparison must be made with a hypothetical alternative: If the status quo “results in [an] 

abridgement of the right to vote” or “abridge[s] 

[the right to vote]” relative to what the right to 

vote ought to be, the status quo itself must be 

changed. Our reading of “abridging” as referring only to retrogression in § 5, but to discrimination more generally in § 2 and the Fifteenth 

Amendment, is faithful to the differing contexts 

in which the term is used.

Id. at 334. 
No. 22-2835 19

Based on this distinction, the plaintiffs maintain that, for 

purposes of the Fifteenth Amendment (and by extension the 

Twenty-Sixth Amendment), “abridge” must be something 

more than “retrogression” as that term is used in § 5.7We certainly agree with the plaintiffs in principle. Whether section 

3-11-10-24(a)(5) of the Indiana Code has a retrogressive effect, 

i.e., whether it renders the Plaintiffs “worse off,” is not the 

equivalent of asking whether their right to vote has been 

abridged. Focusing just on retrogression for purposes of the 

Fifteenth Amendment would preclude relief to individuals 

who, even before the passing of the act in question, had not 

enjoyed fully the right to vote. As the Court in Bossier Parish

explained, in order to determine whether the Fifteenth 

Amendment has been violated, the question is whether the 

right to vote—as it was intended to be exercised—has been 

abridged. Bossier Parish therefore sets the starting point for determining whether an “abridgement” has occurred as that 

7 In their brief, the plaintiffs rely heavily on cases interpreting § 2 of the 

Voting Rights Act. However, the Voting Rights Act does not employ the 

same language as the Twenty-Sixth Amendment. See Allen v. Milligan, 143 

S. Ct. 1487, 1499–1501 (2023) (tracking the history of the Voting Rights Act 

from its origins when it “closely tracked the language of the [Fifteenth] 

Amendment” to the adoption of the “effects” test in 1982). Moreover, the 

Court has made it clear that “abridgement” for purposes of § 2 has no application outside of the context of the Voting Rights Act. See Brnovich v. 

Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021) (stating that “[w]e need 

not decide” what “to deny or abridge the right ... to vote on account of 

race or color” “would mean if it stood alone because § 2(b) ... explains 

what must be shown to establish a § 2 violation”). Therefore, to the extent 

§ 2 cases speak directly to the Fifteenth Amendment, as in Bossier Parish, 

they provide guidance for our interpretation of the Twenty-Sixth Amendment. They are not otherwise helpful in resolving the issue currently before us.
20 No. 22-2835 

term was used in Harman. That starting point is the right to 

vote, which may or may not be secured by the status quo of 

state law. 

With this understanding of “abridgement” and “right to 

vote,” we turn to the facts of the present case.

2. 

Indiana provides myriad ways for registered voters to exercise their right to vote. They may cast ballots in person at 

their precinct polling places on election day. Ind. Code § 3-11-

8-2. They also may cast their ballots in person at various locations for the twenty-eight days prior to election day. Id. §§ 3-

11-4-1, 3-11-10-26. Additionally, voters who cannot vote in 

person on election day due to “illness or injury,” caring for 

someone at a private residence, or disability, may vote via a 

travelling voter board, which will bring a ballot to the voter’s 

house and then return it for counting. Id. § 3-11-10-25. Finally, 

Indiana allows mail-in voting for voters who fall into specific 

categories. See id. § 3-11-10-24(a)–(b). These include: individuals who have “a specific, reasonable expectation of being absent from the county on election day during the entire twelve 

(12) hours that the polls are open”; individuals scheduled to 

“work ... during the entire twelve (12) hours that the polls are 

open”; individuals “confined on election day ... because of an 

illness or injury during the entire twelve (12) hours that the

polls are open”; individuals who are disabled; and individuals who are “elderly,” among others. Id.

Even a cursory reading of Indiana’s voting laws reveals 

full protections of the right to vote for all registered voters. 

Not only may all voters vote in person in their precinct on 

election day, but for twenty-eight days prior to the election, 
No. 22-2835 21

they also may vote at various other locations. Provisions are 

made for those who are physically unable to get to the polls, 

and those who care for them. Absentee voting is available for 

individuals who, because of vocation, occupation, or physical 

condition, cannot get to the polls on election day. Indiana has 

included “elderly” voters among this group—and with good 

reason. It represents a sound legislative judgment that these 

individuals encounter special barriers in exercising their right 

to vote. Eliminating those barriers hardly creates a material 

burden on the exercise of the franchise by other citizens. 

Indiana imposes no requirements, much less material requirements, on the exercise of the franchise through this accommodation of the elderly. The extension of absentee voting 

to the elderly does not impose any unconstitutional burden 

on the right of those under sixty-five to exercise the franchise.8

Consequently, there is no abridgement as that term is understood in the Supreme Court’s case law.

Conclusion

For the reasons set forth in this opinion, Indiana’s extension of absentee voting to “elderly” voters does not violate the 

Twenty-Sixth Amendment. The judgment of the district court 

is therefore affirmed.

AFFIRMED

8 In Texas Democratic Party v. Abbott, 978 F.3d 168, 192 (5th Cir. 2020), the 

Fifth Circuit similarly concluded that “the Texas Legislature’s conferring 

a privilege to those at least age 65 to vote absentee did not deny or abridge 

younger voters’ rights”; however, it reached that conclusion by way of an 

alternate analytical path.
22 No. 22-2835 

LEE, Circuit Judge, concurring in part and dissenting in 

part. I find much to agree with in the majority opinion. First, 

I concur with my respected colleagues that the law of the case 

doctrine does not apply to Tully I in light of the particular circumstances of the case at that time. This is particularly true 

given that my colleagues were on the panel that issued that 

opinion.

Second, I also agree with the majority opinion’s thorough 

articulation of the legal principles underlying appellants’ 

Twenty-Sixth Amendment claim. In particular, I agree with 

the majority’s observation that the constitutional “right to 

vote,” as discussed in the Supreme Court’s decisions in 

McDonald, Lane, and Katzenbach, encompasses the right to the 

“effective exercise of the franchise,” including “the right to register, the right to cast a ballot, and the right to have that ballot 

counted.” Maj. Op. at 13–15. I believe that this correctly construes McDonald in the context of the Twenty-Sixth Amendment (which postdates McDonald) and the other voting rights 

amendments. See Tully v. Okeson, 977 F.3d 608, 619 (7th Cir. 

2020) (Ripple, J., concurring) (observing that “it may well be 

that the day will come when the general rule articulated in 

McDonald will have to yield to the Twenty-Sixth Amendment 

when the values protected by that Amendment are clearly at 

stake”). 

Third, I also join the majority in rejecting appellants’ contention that every age-based distinction in voting procedures 

constitutes an “abridgment” of the right to vote within the 

meaning of the Twenty-Sixth Amendment. As the majority 

opinion rightly notes, only those requirements that materially 

restrict one’s right to vote may be constitutionally suspect. See 

Harman v. Forssenius, 380 U.S. 528, 541 (1965) (noting that, like 
No. 22-2835 23 

the Fifteenth Amendment, the Twenty-Fourth “hits onerous 

procedural requirements which effectively handicap exercise 

of the franchise”) (quoting Lane v. Wilson, 307 U.S. 268, 275 

(1939)). 

Finally, I concur with the majority opinion’s rejection of 

appellees’ argument that a voting law can only “abridge” the 

Twenty-Sixth Amendment right to vote if it is “retrogressive,” 

i.e., it renders some voters “worse off” in their ability to exercise the franchise as compared to the status quo. Maj. Op. at 

19. As the majority acknowledges, the “starting point” from 

which to measure an abridgment is “the right to vote, which 

may or may not be secured by the status quo of state law.” Id. 

at 20; see Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 334 (2000)

(“If the status quo results in an abridgement of the right to vote 

or abridges the right to vote relative to what the right to vote 

ought to be, the status quo itself must be changed.”) (cleaned 

up); cf. Tex. Democratic Party v. Abbott, 978 F.3d 168, 190–91 (5th 

Cir. 2020) (holding that an abridgment only exists if a law 

makes voting “more difficult” for a person than it was before 

the law was enacted). 

In sum, the way I understand the majority opinion, we 

hold today that a voting law abridges the Twenty-Sixth 

Amendment right to vote if, on the basis of age, it imposes a 

materially onerous requirement that effectively handicaps an 

individual’s right to exercise the franchise. Furthermore, a 

law may abridge the right to vote even if it does not render 

anyone “worse off” but only makes it easier for some groups 

(in this case, the elderly) to vote. I agree with all of this.

I part ways with the majority opinion in a small but significant way. Rather than decide now, as a matter of law, that the 

statute in question does not impose a materially onerous 
24 No. 22-2835 

requirement upon non-elderly voters under Harman, I would 

remand this case to the district court so that the parties may 

further develop the factual record based upon the standard 

we articulate today. 

It is undisputed that some Indiana voters—including appellants—are prohibited from voting absentee and are required to cast their ballots in person, solely because of their 

age. I am unprepared to declare that appellants cannot possibly prove that this legislative distinction imposes an onerous 

procedural requirement from which the elderly are exempt. 

See Harman, 380 U.S. at 541–42; see also Abbott, 978 F.3d at 198 

(Stewart, J., concurring in part and dissenting in part) (describing Texas voting laws similar to Indiana’s as imposing “a 

material requirement to vote in person ... on younger voters”). The practical difficulties of casting a ballot in person in 

Indiana, including the challenges of locating and physically 

going to a polling place during regular hours and any costs 

related to doing so (such as lost wages or child care costs), to 

the extent they are imposed on appellants because of their 

age, may rise to such a level as to render that method of voting 

unconstitutionally “cumbersome,” Harman, 380 U.S. at 541, 

when compared to the absentee-voting procedure to which 

the elderly are entitled. I would give appellants an opportunity to make this showing before the district court, guided 

by our opinion here.

For these reasons, I respectfully concur in part and dissent 

in part.