### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 22-2835
B ARBARA T ULLY , et al. , Plaintiffs -Appellants
,

v.

P AUL O KESON , 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

.

____________________
A RGUED M AY 17, 2023

— D ECIDED A UGUST 15, 2023

____________________

Before R IPPLE , S CUDDER , and L EE , Circuit Judges

. R IPPLE , 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 C ommission 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 forabsentee voting. They initially sought a preliminary injunction requiring Indiana to permit unlimited absentee voting, claiming that the State’s failure to extend absentee voting toall eligible voters abridged the rights of younger voters in violation of the Twenty

- Sixth Amendment and also infringedtheir fundamental right to vote in violation of the Equal Protection Clause of the Fourte enth 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 admon ition “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. Gonzale z , 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 h eld 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, a nd 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 th e 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.
BACKGR OUND
Indiana law a llows 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 healthcare 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.” I d. § 3-5-2-16.5.
Because of the COVID

- 19 pand emic, 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 ef fects 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 allowe d to voteabsentee 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 ProtectionClause 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 plaintiff s had not made a strong showing of likelihood of success on the merits because “‘the right to vote’ does not in clude 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 theright 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

- votin g rules did not impactNo. 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 statesthe 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 regulat ion 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 “m ade 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 common

sense 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] Nov ember 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 clear ly at stake.” Id. Back in the district court, both parties moved for summaryjudgment. 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 distric t 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 judg ment to the State defendants on the ground that the absentee

- ballot provision did not violate the Twenty

Sixth Amendment. The plaintiffs timely appealed.
II.
DISCUSSIO N
A. Law of the Case
The State first maintain s 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.’” C reek 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 byNo. 22-2835 7

the rule protects parties from the expense and vexation attending multiple lawsuits, conser ves judicial resources, and fosters reliance on judicial action.” Id. (internal quotationmarks omitted). “This doctrine advises against revisiting earlier rulings ‘absent a compelling reason, such as manifest error or a change in the law.’” Toliver v. Pol lard , 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 Supr eme 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 expl ained 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 prel iminary 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 th e 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 generallywill 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 aspectsof a case become moot on appeal of a preliminary injunction, any issue preserved by an inju nction 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, Arthu r 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

- injunctionNo. 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 jeopardizethe integrity of the electoral process. We therefore now examine m ore 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 Unite d 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. 8 9- 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 theFifth 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 Fifteenth 4 and Twenty

Fourth 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 pre vious 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 S tates or any State by reason of failure to pay any poll tax or other tax.”

T he 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 Twenty

Sixth Amend ment, “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 Twent y- Sixth Amendment was to lower the voting age in state and localelections 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). A s 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 Twenty

Sixth 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

– 9512 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 d etainees 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 betweenthose who were “physically incapacitated” and “judicially incapacit ated” 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 havebroad powers to determine the conditions under which the right of suffrage may be exercised,” we have held that once the States grantthe franchise, they must not do so in a discriminatory manner. More importan tly, however, wehave 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 Claus e. 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 classificationNo. 22-2835 13

highly suspect and thereby demand a more exacting judicial scrutiny.
Id. a t 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 tha t the State might not ... possibly furnish the jailswith 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 th e effectiveexercise 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 legislatu reto deny its black citizens the right to vote. Initially, the Oklahoma legislature imposed a literacy test for voting “fromwhich white voters were in effect relieved through the operation of a ‘grandfather clause.’” Id. at 269. The Court struck this pro vision 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 discrimi natory 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, had14 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 l egislature’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 self

executing and has repeatedly been construed, without further legislative specification, to invalidate state voting qualifications or proc edures which are discriminatory on their face or in practice

. Id. at 325 (emphasis added). The Court then listed a numberof 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 boundarie s 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 inNo. 22-2835 15

Katzenbach reaffirmed that “States have broad powers to determine the conditions under which the right of suffrage maybe exercised.” 383 U.S. at 325 (internal quotation marks omitted). Thus, when referencing “state voting qualifications orprocedures 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 aright 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 expre ssly guarantees that the right to voteshall 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 sophisti cated as well as16 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[] t hat 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 “erec t[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 intervalending six months before the election, a notarized or witnessed certificate attesting t hat 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 re

registration which Virginia officials have sharply contrasted with the ‘simple’ poll tax system.” Id. at 542. Based on this evidence, the Court was “cons trained 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, th e poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed. Any material requirement imposed upon thefederal voter solely because of his refusal to waive the constitutional immunity subverts the e ffectiveness of the Twenty

fourth 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 abri dgement 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 retr ogression 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)

— necessarilyentails a comparison. It makes no sense to suggest that a voting practice “abridges” the right to vote without some baseline with which tocompare the practice. In § 5 preclearance proceedings

— which uniquely deal only and specifically with changes in voting procedures

— the baseline is the statu s quo that is proposed to be changed: If the change “abridges the right to vote” relative to the status quo, preclearance isdenied, and the status quo (however discriminatory it may be) remains in effect.
Id. at 333

– 34. However, this was not the case wit h proceedingsunder § 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 bechanged. 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. 7 We certainly agree with the plaintiffs in principle. Whether section 3-11-10- 24(a)(5) of the Indiana Cod e 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 re ly 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 Righ ts Act from its origins when it “closely tracked the language of the [Fifteenth] Amendment” to the adoption of the “effects” test in 1982). Moreover, theCourt has made it clear that “abridgement” for purposes of § 2 has no application outside of the conte xt 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 otherwi se 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 b allots 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 thepolls 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 pe rson 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 votin g 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 tha t 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 im poses 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 Conseq uently, there is no abridgement as that term is understood in the Supreme Court’s case law.
ConclusionFor 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

L EE , 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. I n 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 “t he 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 r ights 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 th e 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, likeNo. 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 ab ridgement 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, 1 90– 91 (5th Cir. 2020) ( holding that an a bridgment 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 onerous24 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

— in cluding appellants

— are prohibited from voting absentee and are required to cast their ballots in person, solely because of theirage. I am unprepared to declare that appellants cannot possibly prove that this legislative distinction imposes an onerous proc edural 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 requi rement 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 a s 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 whichthe 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.