Lawsuit: Indiana election law on polling hours strips Hoosiers of Constitutional rights
Chris Sikich
An Indiana political watchdog group has filed a lawsuit to overturn a 2019 election law prohibiting voters, political parties and candidates from asking a court to keep polling locations open past the 6 p.m. closing time if they encounter voting problems.
Before the law took effect in July 2019, any Hoosier could ask a court to keep polls open for a variety of reasons, from long lines to malfunctioning equipment to ballot shortages. Under the new law, only county election boards, the very entities that oversee the elections, can ask a court to extend voting hours.
Common Cause Indiana filed the 33-page suit Wednesday in federal court in Indianapolis, largely arguing the 2019 law runs afoul of the First and Fourteenth amendments, causing an undue burden on voting, as well as the Supremacy Clause, which allows citizens to petition state courts for certain Constitutional reliefs available under federal law.
Hoosiers already face what is one of the earliest closing times in the nation at 6 p.m. And now, Common Cause Policy Director Julia Vaughn said, they'll have to jump through more hoops to keep those polls open when they encounter problems that crop up in Indiana counties nearly every election.
She thinks voters will face especially long lines in the Nov. 3 presidential election as counties navigate a shortage of election workers and limited polling places due to the Covid-19 pandemic. While Indiana law allows voters who are in line when the polls close at 6 p.m., no one can join the line at that point without a court order.
"Voters shouldn't be required to jump through multiple hoops," Vaughn said. "This new law erects not just hoops but a huge barrier as voters are facing real problems on Election Day."
Indiana Secretary of State Connie Lawson pushed the change in a wide-ranging election bill largely intended to offer clear legal guidance on a number of issues ranging from placing presidential candidates on the ballot, to annual training for election workers to how voters could cast provisional ballots.
Reached Wednesday, her office declined to comment on pending litigation.
Under the 2019 law, county election boards must vote unanimously in order to ask a judge to extend the hours. Smaller counties have 3-person boards and larger counties have 5-person boards, both including members of each major party.
Convincing those boards to act could take some doing, Vaughn said. Hoosiers who encounter problems will have to contact each member, get the Republicans and the Democrats on the board to agree there's a problem, and all in time to go to court on Election Day.
And that's not to mention the election boards are the very entities running the election, meaning they'll be policing themselves.
"We will be running the November election during a pandemic," Vaughn said. "We have good reason to believe voters will face a lot of challenges on Election Day and we want to make sure they have a full range of options in terms of being able to go to court to get those polling hours extended."
In 2018, voters successfully petitioned to keep polls open in both Porter County in northwest Indiana and Monroe County, which includes Bloomington, according to the lawsuit. Some polls in Porter County had opened late and some polls in Monroe County had experienced widespread ballot shortages amid heavy turnout.
In addition to restricting who can petition a court, the lawsuit alleges the law too narrowly defines reasons for which a court can intervene.
Under the 2019 law, courts can only extend hours if the polling location has completely closed at some point, regardless of whether there were other factors causing a delay such as malfunctioning equipment, insufficient ballots, poor staffing or generally long lines.
That means the court would not have been able to extend the polling hours in the Monroe County case, had the law been in effect then, even if the election board asked.
The lawsuit also notes that Black and Latino voters are more likely to face the types of long waits that may call for a court intervention. The lawsuit cites a national study from the Brennan Center for Justice that voters in predominately Latino and Black neighborhoods waited in line nearly twice as long in 2018 as voters in mostly white neighborhoods.
Vaughn said she testified to lawmakers in 2019 the change in law would be Unconstitutional. The Chicago Lawyers’ Committee for Civil Rights, the law firm of Eimer Stahl LLP and the national Lawyers’ Committee for Civil Rights Under Law is representing her group.
In researching the lawsuit, Common Cause could find no other state that has a law restricting court petitions in such a way.
Vaughn said Common Cause has filed and been successful in three cases involving election laws since Lawson took office in 2012, including a preliminary injunction in an ongoing case to stop the Secretary of State's office from purging voters from the rolls in certain situations.
The Secretary of State was listed as a party in the other two cases, which more directly involved Marion County's handling of early voting and judicial elections.
"We're batting 1.000," Vaughn said. "That's the standard. If we don't feel like we have an overwhelming chance of winning, we don't file lawsuits."
Contact IndyStar reporter Chris Sikich at Chris.Sikich@indystar.com. Follow him on Twitter: @ChrisSikich.