By Lauraann Wood

Law360 (September 30, 2020, 10:55 PM EDT) -- A group of Indiana voters told the Seventh Circuit on Wednesday that a lower court incorrectly rejected their request for the state to allow all eligible voters, not just those 65 and older, to cast mail-in ballots for the November general election.

The same COVID-19 safety concerns that prompted Indiana to allow voters of all ages to cast no-excuse absentee ballots during its June primary election are still present in the state, so that same group should be allowed to cast mail-in ballots for the Nov. 3 general election, the voters and nonprofit organization Indiana Vote By Mail Inc. told a three-judge panel during oral arguments.

Indiana's current statutory scheme contemplates that voters will cast their ballots in-person on Election Day but carves out an exception for voters aged 65 years or older, Jed Glickstein of Mayer Brown LLP, who represents the voters, told the panel.

Glickstein argued that the state should be preliminarily enjoined from enforcing that scheme, because every voter younger than 65 would be required to "trade off their rights to health and safety and the rights of their loved ones and family against the ability to cast a vote in November." 

Indiana officials have recognized that the novel coronavirus poses significant burdens on individuals' right to vote, because the state allowed voters of all ages to cast mail-in ballots in June, Glickstein argued. The officials also indicated in their latest order moving the state to its final phase of reopening that a public health emergency is still present in the state, he said.

"The state says there's going to be confusion here, but I don't see how that's the case where what we are seeking is exactly the regime the state put in place for the primary," Glickstein argued.

Thomas Fisher of the state attorney general's office urged the panel to keep the lower court's injunction rejection in place. The voting statute at issue was crafted to set up a system by which those eligible will vote in person in November, with some exceptions, but if the court determines the exception to be legally unsound, then the remedy would be to invalidate it, not expand it, Fisher argued.

The ongoing pandemic is a burden not just on individuals' voting rights but also on life, and "there are many burdens on life ... that make it very difficult, if not impossible, to make it to the polls every election," Fisher told the panel.

"That's just the nature of what we deal with when we deal with elections," he argued. There has to be an election structure, states have to adopt rules to ensure voting access while balancing security concerns "and sometimes somebody's going to be unable to vote as a result," he argued.

"That's just the way it is," Fisher said.

If there's a "serious" question about whether the state's current statutory voting scheme violates voters' 26th Amendment rights, it should proceed to summary judgment in its natural course of litigation so that any potential remedy from the court "can be implemented in due course, not on the eve of an election, [and] not after voting has already begun," Fisher argued.

The fact that Indiana's Election Commission decided in the pandemic's early stages to allow no-excuse absentee voting for all ages "doesn't bind it to do the same thing now," Fisher argued. And he said that because no one in the state thinks that mail-in voting is available to everyone in the state, an injunction that forces a change in the status quo has the potential to cause confusion. 

The voters launched their suit against members of the state's election commission and its secretary of state in April, claiming the decision to let some voters cast mail-in ballots for the general election but not others violates the fundamental right to vote and the equal protection clause of the 14th Amendment. The pandemic poses a risk to everyone, they said.

A district court in August denied the voters' request for an injunction to allow no-excuse absentee voting. 

U.S. Circuit Judges Michael Scudder, Kenneth Ripple and Michael Kanne sat on the panel for the Seventh Circuit.

The voters and nonprofit organization are represented by Jed Glickstein, Gary Isaac, Brett Legner, Michael Scodro and Jeffrey Strauss of Mayer Brown LLP, Mark Sniderman of Findling Park Conyers Woody & Sniderman PC and William Groth.

The state is represented by Thomas Fisher, Kian Hudson and Julia Payne of the Indiana attorney general's office.

The case is Indiana Vote by Mail Inc. et al. v. Paul Okeson et al., case number 20-2605, in the U.S. Circuit Court of Appeals for the Seventh Circuit.

--Editing by Nicole Bleier.

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