TULLY v. OKESON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

BARBARA TULLY, )

KATHARINE BLACK, )

MARC BLACK, )

DAVID CARTER, )

REBECCA GAINES, )

ELIZABETH KMIECIAK, )

CHAQUITTA MCCLEARY, )

DAVID SLIVKA, )

DOMINIC TUMMINELLO, )

INDIANA VOTE BY MAIL, INC. )

individually, and on behalf of those )

similarly situated, )

)

Plaintiffs, )

)

v. ) No. 1:20-cv-01271-JPH-DLP

)

PAUL OKESON, )

S. ANTHONY LONG, )

SUZANNAH WILSON OVERHOLT, )

ZACHARY E. KLUTZ in their official )

capacity as members of the Indiana )

Election Commission, )

CONNIE LAWSON in her official capacity )

as the Indiana Secretary of State, )

)

Defendants. )

)

)

DISABILITY RIGHTS EDUCATION AND )

DEFENSE FUND, INC, )

)

Amicus. )

ORDER DENYING PLAINTIFFS' MOTION FOR A

PRELIMINARY INJUNCTION

Plaintiffs ask the Court to enter a preliminary injunction that would

require the State of Indiana to allow all Indiana voters to vote by mail in the

November 3, 2020 general election. They argue that Indiana's absentee voting

law—which allows only some Hoosiers to vote by mail—unconstitutionally

burdens their right to vote. Defendants—the Indiana Secretary of State and

members of the Indiana Election Commission—respond that because Plaintiffs

may vote in person, they are not likely to be able to show that the absentee

voting law is unconstitutional and are not entitled to a preliminary injunction.

The question before the Court is not whether it would be wise for Indiana to

allow everyone to vote by mail; that's a policy choice. Rather, the legal issue is

whether Plaintiffs are likely to be able to show that the Constitution requires

Indiana to give all voters the right to vote by mail in the upcoming general

election. Plaintiffs have not made this showing so their motion for preliminary

injunction is DENIED. Dkt. [13].

I.

Facts and Background

The Court recites the undisputed facts for purposes of this preliminary

injunction motion. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)

(procedures are "less formal" and the evidence is "less complete" than at trial

because the "purpose of a preliminary injunction is merely to preserve the

relative positions of the parties until a trial on the merits can be held").

COVID-19 needs little introduction—it is a respiratory disease that

"readily spread[s] from person to person," dkt. 13-13 at 9 ¶ 18, and has caused

a pandemic. While COVID-19 has infected many Hoosiers, many more remain

vulnerable. Id. at 6 ¶ 11. One way they can minimize the risk of infection is by

spending time "in the best ventilated, least contaminated environment where

the fewest number of people are generating the fewest virus particles." Id. at 4

¶ 8.

In response to COVID-19, the Election Commission—which is charged

with administering Indiana's election laws—endorsed a broad reading of

Indiana's vote by mail statute for Indiana's primary election. See Indiana Code

§ 3-11-10-24(a). That statute provides that "a voter who satisfies any of the

following [13 categories] is entitled to vote by mail":

(1) The voter has a specific, reasonable expectation of

being absent from the county on election day during

the entire twelve (12) hours that the polls are open.

(2) The voter will be absent from the precinct of the

voter's residence on election day because of service as:

(A) a precinct election officer under IC 3-6-6;

(B) a watcher under IC 3-6-8, IC 3-6-9, or IC 3-6-

10;

(C) a challenger or pollbook holder under IC 3-6-7;

or

(D) a person employed by an election board to

administer the election for which the absentee

ballot is requested.

(3) The voter will be confined on election day to the

voter's residence, to a health care facility, or to a

hospital because of an illness or injury during the

entire twelve (12) hours that the polls are open.

(4) The voter is a voter with disabilities.

(5) The voter is an elderly voter.1

(6) The voter is prevented from voting due to the voter's

care of an individual confined to a private residence

because of illness or injury during the entire twelve

(12) hours that the polls are open.

(7) The voter is scheduled to work at the person's

regular place of employment during the entire twelve

(12) hours that the polls are open.

(8) The voter is eligible to vote under IC 3-10-11 or IC

3-10-12.

(9) The voter is prevented from voting due to

observance of a religious discipline or religious holiday

during the entire twelve (12) hours that the polls are

open.

(10) The voter is an address confidentiality program

participant (as defined in IC 5-26.5-1-6).

(11) The voter is a member of the military or public

safety officer.

(12) The voter is a serious sex offender (as defined in

IC 35-42-4-14(a)).

(13) The voter is prevented from voting due to the

unavailability of transportation to the polls.

For Indiana's June 2020 primary election, the IEC ordered that any voter

"unable to physically touch or be in safe proximity to another person" could

vote by mail under subsection (4) as a voter with disabilities. Dkt. 6 at 10

(citing IEC Order 2020-37 § 9A). For the upcoming general election in

November, the Election Commission has not renewed that order. See dkt. 66.

1 An elderly voter is "a voter who is at least sixty-five years of age." Ind. Code § 3-5-2-

16.5.

Plaintiffs are nine Indiana voters who do not expect to qualify to vote by

mail in the general election under Indiana Code § 3-11-10-24. Dkt. 14 at 2

(citing declarations). They have filed a motion for preliminary injunction. Dkt.

13. Specifically, they ask the Court to enter an order requiring Indiana to

implement "no-excuse absentee voting" that would allow any voter to vote by

mail with an absentee ballot in the November 3, 2020 general election. Dkt. 62

at 5-6.

II.

Applicable Law

Parties may move under Federal Rule of Civil Procedure 65 for the

issuance of a preliminary injunction. Determining whether a preliminary

injunction is required involves a two-step inquiry, with a threshold phase and a

balancing phase. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858

F.3d 1034, 1044 (7th Cir. 2017). At the threshold phase, the moving party

must show that: (1) without the requested relief, it will suffer irreparable harm

during the pendency of its action; (2) traditional legal remedies would be

inadequate; and (3) it has "a reasonable likelihood of success on the merits."

Id. If the movant satisfies these requirements, the court proceeds to the

balancing phase "to determine whether the balance of harms favors the moving

party or whether the harm to other parties or the public sufficiently outweighs

the movant's interests." Id.

III.

Discussion

"A preliminary injunction is an extraordinary remedy. . . . never to be

indulged in except in a case clearly demanding it." Id. (quoting Girl Scouts of

Manitou Council, Inc. v. Girl Scouts of United States of Am., Inc., 549 F.3d 1079,

1085 (7th Cir. 2008). To be entitled to a preliminary injunction, Plaintiffs must

first meet their threshold burden to show a reasonable likelihood of success on

the merits, irreparable harm, and that traditional legal remedies would be

inadequate. Id.

A. Likelihood of success on the merits

Plaintiffs argue that they are likely to succeed on the merits of their

Fourteenth Amendment and Twenty-Sixth Amendment challenges because

Indiana has not consistently allowed voting by mail.2 Dkt. 14 at 7–20.

Defendants respond that Indiana has made reasonable distinctions in its vote-

by-mail accommodations. Dkt. 53 at 9–19.

1. The right to vote does not include the right to vote by mail

The right to vote is a fundamental right central to our democracy.

Harper v. Va. State Bd. of Educ., 383 U.S. 663, 667 (1966). Less clear is

whether that right is at stake here, so that's where the Court's analysis begins.

Plaintiffs correctly "acknowledge that [Indiana] could likely eliminate all

absentee voting if it wished." Dkt. 14 at 9. That's because unless a restriction

2 Plaintiffs also allege a violation of Article 1 § 23 of the Indiana Constitution, dkt. 6 at

20, but they do not seek a preliminary injunction on that basis, see dkt. 13; dkt. 14.

on absentee voting "absolutely prohibit[s]" someone from voting, the right to

vote is not at stake. McDonald v. Bd. of Election Comm'rs of Chi., 394 U.S. 802,

807 (1969).

In McDonald, pretrial detainees in Illinois sought the ability to vote

absentee. Id. at 803. Illinois allowed absentee voting for four classes of people,

but the detainee plaintiffs did not fall into any of them. Id. at 803–04. The

Supreme Court rejected the detainees' argument that Illinois' absentee voting

privileges violated the Fourteenth Amendment's Equal Protection Clause. Id. at

806. The Court explained that "because of the overriding importance of voting

rights, classifications 'which might invade or restrain them must be closely

scrutinized and carefully confined.'" Id. at 807 (quoting Harper, 383 U.S. at

670). But Illinois' absentee voting provisions did not require that "exacting

approach" because the detainees had not shown that they were absolutely

prohibited from voting on election day. Id. at 808, 808 n.6. So it was "not the

right to vote that [was] at stake . . . but a claimed right to receive absentee

ballots." Id. at 807.

Plaintiffs argue that the Supreme Court has "limited McDonald's holding

to its facts." Dkt. 14 at 12–13. In Goosby v. Osser, however, the Court

confronted a different factual situation because the plaintiffs had alleged that

"the Pennsylvania statutory scheme absolutely prohibit[ed] them from voting."

409 U.S. 512, 521 (1973). The Court's limited holding at the preliminary stage

of that case was only that—because of that allegation—the plaintiffs' claim was

not "wholly insubstantial" or "obviously frivolous" under McDonald. Id. at 518,

521–22. Similarly, in Hill v. Stone, the Court did not cabin McDonald, but

summarized it as addressing "whether pretrial detainees in Illinois jails were

unconstitutionally denied absentee ballots" when "there was nothing in the

record to indicate that the challenged Illinois statute had any impact on the

appellants' exercise of their right to vote." 421 U.S. 289, 300 n.9 (1975). Those

cases therefore did not overrule McDonald or limit it to its facts.

Moreover, in Griffin v. Roupas, working mothers sought expanded voting

options "that would allow people [to vote] who find it hard for whatever reason

to get to the polling place on election day." 385 F.3d 1128, 1129–30 (7th Cir.

2004). The Seventh Circuit found no equal protection violation because,

among other reasons, "unavoidable inequalities in treatment, even if intended

in the sense of being known to follow ineluctably from a deliberate policy, do

not violate equal protection." Id. at 1132.

The same is true here. Plaintiffs do not contend that they are absolutely

prohibited from voting. Rather, they contend that the constitution requires the

state to allow all voters to vote by mail. Dkt. 14 at 11. Since Plaintiffs really

seek an expansion of absentee voting privileges, dkt. 6 at 21; dkt. 13, it is "not

the right to vote that is at stake here but a claimed right to receive absentee

ballots." McDonald, 394 U.S. at 807. When, as here, the fundamental right to

vote is not at stake, Indiana has "wide leeway . . . to enact legislation that

appears to affect similarly situated people differently." Id.

2. Plaintiffs are not likely to succeed on their equal protection

claim

Plaintiffs contend that, under the Constitution, all voters must be

allowed to vote by mail in the general election because of COVID-19. Dkt. 6 at

21; dkt. 13. They argue that their equal protection claim should be evaluated

under the Anderson–Burdick framework, which balances the burdens on the

right to vote against the state's interests that may justify those burdens. Dkt.

14 at 7; see Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze,

460 U.S. 780 (1983). Defendants respond that the decision not to expand

voting by mail does not implicate the right to vote, so the Anderson–Burdick

framework does not apply. Dkt. 53 at 16.

It is not necessary for the Court to decide whether the Anderson–Burdick

framework applies here because Plaintiffs have not shown a reasonable

likelihood of success on the merits under either Anderson–Burdick or

McDonald.3 While election laws "invariably impose some burden on individual

voters," those burdens do not necessarily "compel close scrutiny." Burdick, 504

3 The Supreme Court has applied Anderson–Burdick when "a challenged regulation

burdens First and Fourteenth Amendment rights," Burdick, 504 U.S. at 434, and the

Seventh Circuit has explained that it applies "to all First and Fourteenth Amendment

challenges to state election laws," Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d

944, 948 (7th Cir. 2019). Defendants argue that under McDonald, Anderson–Burdick

does not apply to this equal protection challenge, dkt. 53 at 16–18, and as explained,

the Court need not resolve this question at this stage of this case. Cf. Mays v. LaRose,

951 F.3d 775, 783 n.4 (6th Cir. 2020) ("It's unclear whether the Supreme Court ever

intended Anderson–Burdick to apply to Equal Protection claims. That Court has only

applied the framework in the context of generally applicable laws."). Under Anderson–

Burdick, any burden on the right to vote would be analyzed under McDonald—which,

as explained above, the Supreme Court has not limited to its facts or overruled—and

Griffin. See Tex. Democratic Party v. Abbott, 961 F.3d 389, 393–94 (5th Cir. 2020)

("[McDonald] squarely governs the equal-protection issue.").

U.S. at 433. Instead, the rigor of the inquiry "depends upon the extent to

which a challenged regulation burdens First and Fourteenth Amendment

rights." Id. at 434. Here, Plaintiffs have not alleged or shown that the State—

through either Defendants' actions or Indiana's laws—has absolutely

prohibited them from voting. See McDonald, 394 U.S. at 809 (because nothing

showed that plaintiffs were "absolutely prohibited" from voting, Illinois'

absentee voting decisions appeared "quite reasonable"). And as explained

above, the privilege of voting by mail does not implicate the fundamental right

to vote. See id. at 807. Plaintiffs therefore have not shown a substantial

burden on the fundamental right to vote, leaving them with only their equal

protection argument that Indiana does not evenhandedly grant a statutory

entitlement to vote by mail. Dkt. 14 at 11–12.

But Plaintiffs have not shown a reasonable likelihood of success on that

argument. To start, voting by mail is not a right but a privilege that "make[s]

voting easier." Luft v. Evers, 963 F.3d 665, 672 (7th Cir. 2020). Nonetheless,

under an equal protection analysis, the statutory distinctions must at least

"bear some rational relationship to a legitimate state end." McDonald, 394 U.S.

at 809. In this context, the legitimate state end is the "consistent and laudable

state policy of adding . . . groups to the [vote by mail] coverage." Id. at 811.

And Indiana is not required to all at once add every conceivable group who

could benefit. Id.

For these reasons, "unavoidable inequalities in treatment, even if

intended in the sense of being known to follow ineluctably from a deliberate

policy, do not violate equal protection." Griffin, 385 F.3d at 1132. That is the

case here. Indiana drew distinctions about who may vote by mail, knowing

that some would not be able to enjoy that privilege. See Ind. Code § 3-11-10-

24. That legislative judgment is one that Indiana is generally entitled to make,

see Griffin, 385 F.3d at 1131, and Plaintiffs have not shown a likelihood that it

was merely an "arbitrary scheme," McDonald, 394 U.S. at 811. Moreover,

"electoral provisions cannot be assessed in isolation," looking only at voting

restrictions while ignoring voting privileges. Luft, 963 F.3d at 675.

Indiana provides several alternatives to voting in-person on November 3,

2020: (1) early in-person voting is available between October 6, 2020 and

November 2, 2020; (2) voters who meet the requirements may vote by mail with

an absentee ballot; and (3) eligible voters may have poll workers bring them a

ballot so they may vote at home. See How to Vote Early in Indiana,

https://www.in.gov/idr/voteearly.htm (last visited Aug. 20, 2020). These

provisions of Indiana's voting laws make it easy to vote. The vote by mail

absentee ballot provision, Indiana Code § 3-11-10-24(a), grants vote by mail

privileges to any voter who falls into any one of thirteen categories, many of

which are sweepingly broad. This "cut[s] in [Indiana's] favor." Luft, 963 F.3d at

675. A few less-convenient effects "does not an unconstitutional system make."

Id.; see McDonald, 394 U.S. at 810.

The cases that Plaintiffs cite do not counsel otherwise. Dunn v.

Blumstein was about whether citizens were entirely foreclosed from exercising

their fundamental right to vote. 405 U.S. 330, 336 (1972). The same is true of

Harper, because it involved a poll tax which denied voters the right to vote

altogether if they did not pay the tax. 383 U.S. at 666–68. Nor are any of the

cited district court opinions on point, so Plaintiffs have not established a

likelihood of success on the merits in light of McDonald and Griffin. See, e.g.

League of Women Voters of Va. v. Va. State Bd. of Elections, --- F. Supp. 3d. ----,

No. 6:20-cv-24 (W.D. Va. May 5, 2020) (addressing—in the consent decree

context—an as-applied constitutional challenge to a witness-signature

requirement for absentee ballots); Doe v. Walker, 746 F. Supp. 2d 667 (D. Md.

2010) (addressing a deadline for the receipt of absentee ballots from uniformed

services and overseas voters).4

Plaintiffs also attempt to distinguish McDonald and Griffin by arguing

that nothing in those opinions suggests "that the Constitution would have no

application to claims seeking to expand absentee voting in the face of a historic

pandemic." Dkt. 62 at 15–16. While COVID-19 undisputedly presents new

and serious challenges, Plaintiffs have not explained why those challenges

trigger constitutional protections when the challenges of working mothers,

medical personnel, and those working two jobs do not. See Griffin, 385 F.3d at

1130. In short, there have long been classes of people "for whom voting may be

extremely difficult, if not practically impossible." McDonald, 394 U.S. at 809–

10. Yet Plaintiffs do not identify any case in which that has been enough to

4 Plaintiffs also cite One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d. 896

(W.D. Wisc. 2016), which has since been reversed in part and vacated in part on

appeal, Luft, 963 F.3d 665.

show "unconstitutional incompleteness" of absentee voting privileges. Id. at

810.

Plaintiffs are therefore unlikely to be able to show that COVID-19's

challenges entitle them to constitutional relief. When it comes to this virus,

"[l]ocal officials are working tirelessly to 'shap[e] their response to changing

facts on the ground,' knowing that the appropriate response is 'subject to

reasonable disagreement.'" Tex. Democratic Party, 961 F.3d at 393–94 (quoting

S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614 (2020)

(Roberts, C.J., concurring in the denial of injunctive relief)). For the federal

courts to step in and decide what measures are necessary would "allow[ ] a

political question—whether a rule is beneficial, on balance—to be treated as a

constitutional question and resolved by the courts rather than by legislators."

Luft, 963 F.3d at 671. "Burdick forecloses that sort of substitution of judicial

judgment for legislative judgment." Id.

Indeed, Indiana enjoys double deference in this case. First, the

Constitution "confers on the states broad authority to regulate the conduct of

elections, including federal ones." Griffin, 385 F.3d at 1130 (citing U.S. Const.

Art. I § 4); accord Burdick, 504 U.S. at 433; Crawford v. Marion Cty. Election

Bd., 553 U.S. 181, 208 (2008) (Scalia, J., concurring). So courts do "not

interfere unless strongly convinced that the legislative judgment is grossly

awry." Griffin, 385 F.3d at 1131. Second, in a pandemic "[o]ur Constitution

principally entrusts '[t]he safety and the health of the people' to the politically

accountable officials of the States 'to guard and protect.'"

Pentecostal Church, 140 S. Ct. at 1613 (Roberts, C.J., concurring in the denial

of injunctive relief) (quoting Jacobson v. Massachusetts, 197 U.S. 11, 38

(1905)). Indiana receives this deference because of its responsibility to protect

Plaintiffs and other voters on election day. And indeed, for the general election

Indiana is "procuring and distributing over 1 million face masks, over 1.5

million gloves, 20,000 half-gallon bottles of hand sanitizer, 5,000 gallons of

surface and equipment disinfectant, and other PPE supplies for voters and poll

workers." Dkt. 53-4 at 3 ¶ 8. Indiana also plans to distribute a manual on

best safety practices, as well as posters and "social distancing markers." Id. at

4 ¶ 9.

While balancing the harms and public interest is not required because

Plaintiffs have not shown a reasonable likelihood of success, it is worth noting

several factors that weigh in Defendants' favor. It is in the interest of

Defendants and the public that the manner of voting in the general election

promote the accurate and timely counting and reporting of results. See Griffin,

385 F.3d at 1131 (explaining some "problems created by absentee voting" and

acknowledging that balancing those problems against the benefits "is

quintessentially a legislative judgment"). Expanding voting by mail again for

the general election may jeopardize that interest. Dkt. 53 at 21–22.

Plaintiffs argue that Indiana should expand voting by mail for the general

election as it did for the primary because it will enable more people to vote.5

5 Plaintiffs do not present an argument that Indiana's vote by mail expansion for the

primary election itself constitutionally requires the same for the general election. See

dkt. 14 at 15; dkt. 62 at 10.

But general elections already have substantially higher numbers of voters than

primaries do. Combining that increase with increased votes from vote by mail

privileges—even if that privilege is not expanded, and certainly if it is—could

easily strain Indiana's voting systems because those systems are instead

equipped for in-person voting. Id.; dkt. 53-1 at 2; dkt. 53-2 at 2; dkt. 53-4 at

4. There is therefore greater risk of delayed results and the disqualification of

voters for late or defective ballots for the general election than for the primary.

See dkt. 53-2 at 2; dkt. 53-3 at 4; dkt. 53-4 at 4–5. It is within Indiana's

discretion to consider and weigh the benefits of expanded voting by mail with

the harm that could result from the potential disqualification of a high number

of absentee ballots and the inability of county election boards to certify election

results in a timely manner.

In sum, Plaintiffs seek "unlimited absentee voting," for the November 3,

2020 general election, but have not shown a reasonable likelihood of

overcoming "a host of serious objections to judicially legislating so radical a

reform in the name of the Constitution." Griffin, 385 F.3d at 1130.

3. Plaintiffs are not likely to succeed on their Twenty-Sixth

Amendment claim

Plaintiffs argue that, because voters who are at least sixty-five years old

are entitled to vote by mail for that reason, Indiana's voting by mail statute

abridges younger voters' right to vote on account of age in violation of the

Twenty-Sixth Amendment. That amendment provides: "The 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 United States or by any State on account of age."

Dkt. 14 at 16 (quoting U.S. Const. amend. XXVI § 1). Defendants respond that

Indiana's provisions do not abridge the right to vote, which does not include a

right to vote absentee. Dkt. 52 at 18–19.

Plaintiffs have not shown a likelihood of success on this claim for the

same reasons they have not shown a likelihood of success on their equal

protection claim. The text of the Twenty-Sixth Amendment shows that it

protects "the right . . . to vote." And as explained above, under McDonald, a

restriction on absentee voting does not endanger the right to vote unless it

"absolutely prohibit[s]" someone from voting. McDonald, 394 U.S. at 807.

Plaintiffs argue that McDonald "cannot possibly control the Twenty-Sixth

Amendment analysis because the Twenty-Sixth Amendment had not been

adopted when McDonald was decided." Dkt. 62 at 18. But the Twenty-Sixth

Amendment and McDonald are contemporaries, and both address the

constitutional right to vote. See Tex. Democratic Party, 961 F.3d at 409. So, as

the Fifth Circuit recognized, "McDonald's logic applies neatly to the Twenty-

Sixth Amendment's text." Id. There is also "plenty" of historical evidence "that

the Amendment's most immediate purpose was to lower the voting age from

twenty-one to eighteen." Id. at 408 (citing Eric S. Fish, Note, The Twenty-Sixth

Amendment Enforcement Power, 121 Yale L.J. 1168, 1170 (2012)).

Moreover, because there are very few cases involving the Twenty-Sixth

Amendment, Plaintiffs are unable to show that it "clearly demand[s]" the "far-

reaching power" of a preliminary injunction. Orr v. Schicker, 953 F.3d 490, 501

(7th Cir. 2020). At the least—focusing on the preliminary stage of this case—

Plaintiffs have not shown a reasonable likelihood of success on the merits of

this claim, so they are not entitled to a preliminary injunction.6

* * *

For these reasons, Plaintiffs have not met their threshold burden to show

a reasonable likelihood of success on the merits for either their equal

protection or Twenty-Sixth Amendment claim. See Whitaker, 858 F.3d at 1044.

They therefore are not entitled to a preliminary injunction and the Court does

not proceed to balance each parties' interests. See id.

III.

Conclusion

As the Supreme Court has noted, allowing broader voting by mail may be

wise policy. See McDonald, 394 U.S. at 811 (noting Illinois' "consistent and

laudable state policy of adding, over a 50-year period, groups to the absentee

coverage"). Some states have chosen "no-excuse" voting by mail for all. See

dkt. 62 at 14. Indiana has decided otherwise. The question here, however, is

not whether the policy is wise, but whether it is constitutional. For the reasons

explained above, Plaintiffs have not shown a reasonable likelihood of success in

showing that the policy is unconstitutional.

Plaintiffs' motion for a preliminary injunction is therefore DENIED. Dkt.

[13]. Amicus Disability Rights Education and Defense Fund's motion for leave

6 Because Plaintiffs have not met their threshold preliminary injunction burden to

show a reasonable likelihood of success on the merits, so addressing the remaining

threshold factors is unnecessary. See Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.

2013) ("Here, the analysis begins and ends with the likelihood of success on the

merits.").

to file amici curiae brief is GRANTED. Dkt. [64].7 The motion to certify class

remains pending. Dkt. 17. The parties shall file a status update by August

28, 2020.

SO ORDERED.

Date: 8/21/2020

SJamu Patrick lbanlove

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

Courtney Lyn Abshire

INDIANA ATTORNEY GENERAL

courtney.abshire@atg.in.gov

Bridget A. Clarke

baclarke@comcast.net

Thomas M. Fisher

INDIANA ATTORNEY GENERAL

tom.fisher@atg.in.gov

Jefferson S. Garn

INDIANA ATTORNEY GENERAL

Jefferson.Garn@atg.in.gov

Jed W. Glickstein

MAYER BROWN LLP

jglickstein@mayerbrown.com

William R. Groth

MACEY SWANSON LLP

weroth@fdgtlaborlaw.com

7 The Court is grateful for the amicus brief and its valuable insights into COVID-19's

impact on Hoosier voters with disabilities. Dkt. 64-1.

18

Kian J. Hudson

INDIANA ATTORNEY GENERAL

kian.hudson@atg.in.gov

Gary A. Isaac

MAYER BROWN LLP

gisaac@mayerbrown.com

Brett E. Legner

MAYER BROWN LLP

blegner@mayerbrown.com

Parvinder Kaur Nijjar

INDIANA ATTORNEY GENERAL

parvinder.nijjar@atg.in.gov

Michael Anthony Scodro

MAYER BROWN LLP

71 South Wacker Drive

Chicago, IL 60606

Mark W. Sniderman

FINDLING PARK CONYERS WOODY & SNIDERMAN, PC

msniderman@findlingpark.com

Jeffrey M. Strauss

MAYER BROWN LLP

jstrauss@mayerbrown.com