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Federal Judge, Fearing a ‘False Sense of Security for Voters,’ Reverses Course on Absentee Ballots

A federal court in Indiana postponed its own order on Tuesday in an unusual instance of judicial maneuvering over hotly contested absentee ballot deadlines in the Hoosier State.

In late September, U.S. District Judge for the Southern District of Indiana Sarah E. Barker entered an order which directed elections authorities throughout the state to accept mail-in ballots until 10 days after the upcoming general election on November 3, 2020.

On Tuesday, Barker upended her own order–in what she described as an effort to allow the Seventh Circuit Court of Appeals some time to fully evaluate and rule on the merits of the case and “in order to avoid providing absentee voters with a false sense of security.”

The judge’s calculation here is novel and bears explanation.

According to Barker, the voting rights-focused plaintiffs–nonprofit government watchdog organization Common Cause–are likely to win their case on the merits. Attorneys for Common Cause have argued an Indiana law that mandates absentee ballots must be received by noon on Election Day to be counted is unconstitutional.

“This law disenfranchises thousands of Hoosiers who timely request and promptly fill out and mail back their ballots, only for them to arrive after the Noon Election Day Receipt Deadline—through no fault of their own,” the group’s complaint notes. “While even in the best of times the Noon Election Day Receipt Deadline disenfranchises voters, this is not the best of times.”

“The ongoing COVID-19 pandemic has created a number of new and significant challenges for voters and election officials, including serious health risks to in-person voting and significant delays in mail-in ballot delivery,” the original petition continues. “The availability of voting by mail is essential to conducting a safe and accessible election during the pandemic. However, the pandemic has also created conditions that make it more difficult—or even impossible—for Indiana voters to successfully comply with the Noon Election Day Receipt Deadline for mail-in ballots.”

In granting the voting rights plaintiffs a preliminary injunction, the court put Indiana’s noon ballot receipt deadline on ice, at least temporarily. The defendants, led by Indiana Secretary of State Connie Lawson (R), requested a stay pending their appeal in the Seventh Circuit a few days later and the court’s latest order favors the defendants–again, only temporarily.

Barker notes that she still believes the plaintiffs are bound to have the upper-hand in the litigation–even before the appellate court.

“Here, in granting plaintiffs’ request for a preliminary injunction, we found that plaintiffs made a strong showing that they are likely to succeed on the merits of their claim that the noon Election Day receipt deadline is unconstitutional as applied in the context of the COVID-19 pandemic,” the order notes. “Nothing raised in defendants’ motion to stay persuades us otherwise.”

But, citing the “critical time period” the litigation is likely being decided during–the final days of the 2020 election–Judge Barker is putting her own order on hold for a week in order to protect against a potentially confusing and contradictory series of competing orders regarding the ultimate ballot return deadline.

The judge also offered some voting advice [emphasis in original]:

[A]s the Seventh Circuit has this appeal under review, we hereby STAY our order granting Plaintiffs’ request for preliminary injunctive relief for one week to allow the Seventh Circuit to consider Defendants’ appeal and determine whether an additional stay is warranted. In the interim, “lest they effectively lose their right to do so by the vagaries of COVID-19, mail processing, or other, unforeseen developments leading up to the November election,” Indiana voters eligible to and desirous of voting by absentee ballot are encouraged to submit their applications well in advance of Indiana’s October 22, 2020 deadline, and, upon receipt, to promptly complete and return their absentee ballots without delay.

Read the court’s full order below:

Common Cause Indiana v. Lawson (Stay) by Law&Crime on Scribd

[image via Scott Olson/Getty Images]

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