By Celeste Bott

Law360 (October 7, 2020, 4:49 PM EDT) -- The Seventh Circuit said Tuesday that the coronavirus pandemic "does not undermine" but rather "reinforces" its decision to deny an injunction that would allow all eligible Indiana voters to cast mail-in ballots, saying it's not the court's place to second-guess state officials on the eve of the November election.

Calling the COVID-19 pandemic "the most severe public health crisis of the past century," a panel of the appellate court acknowledged that there may be difficulties with in-person voting in November's general election, but "it's the pandemic, not the state" that will affect voters' determination to cast a ballot. Indiana's absentee-voting laws are not to blame, the panel said.

"We are mindful of the difficulties that so many Hoosiers, and other Americans, face as a result of COVID-19. We also fully grasp the gravity of our national elections and the sincere desires of plaintiffs and other Hoosiers to participate in one of the most central aspects of our republic — choosing our representatives," the panel said. "But it is precisely because of the gravity of this situation that we should not, and will not, 'judicially legislate so radical a reform [as unlimited absentee voting] in the name of the Constitution' where the state has infringed on no one's right to vote."

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 the three-judge panel last month.

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. The plaintiffs claim that regime limiting the practice to elderly voters violates the Twenty-Sixth Amendment by curtailing younger Hoosiers' right to vote and infringes their fundamental right to vote in violation of the Fourteenth Amendment's Equal Protection Clause.

The U.S. Supreme Court answered their question in McDonald v. Board of Election Commissioners of Chicago , in which the high court determined that the fundamental right to vote does not extend to a claimed right to cast an absentee ballot by mail, and that unless a state's actions make it harder to cast a ballot at all, the right to vote is not at stake, according to the opinion.

"If Indiana's law granting absentee ballots to elderly voters changed or even disappeared tomorrow, all Hoosiers could vote in person this November, or during Indiana's twenty-eight-day early voting window, just the same," the panel said. "Consequently, 'at issue [i]s not a claimed right to vote," but a "claimed right to an absentee ballot.'"

And under the rational-basis review required by the McDonald decision, the voters' equal protection claim is also unlikely to succeed, the court said.

"Plaintiffs assert that their inability to vote by mail under Indiana's absentee-voting laws forces each voter to make a choice between personal health and safety and exercising the right to vote. There is no question that Indiana's eligibility requirements for absentee voting inconvenience some voters who would prefer, but do not qualify, to vote by mail," the panel said. "But we cannot assess Indiana's absentee voting provisions in isolation and instead must consider Indiana's electoral scheme as a whole."

Indiana lawmakers' decision to open absentee voting only to those most likely to benefit from it "bears a clearly rational relationship to that interest in curbing the dangers of unfettered absentee voting," the panel said.

"Indiana has identified several factors that guided its decision to allow some, but not all, Hoosiers to vote absentee: discouraging fraud, ensuring that the maximum number of ballots are deemed valid, managing administrative capacity to process ballots, and permitting voters to receive timely information about candidates up to election day," the panel said.

Representatives of the parties could not be immediately reached for comment on Wednesday.

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.

--Additional reporting by Lauraann Wood. Editing by Peter Rozovsky.

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