Petition for Writ of Certiorari — Barbara Tully, et al., Petitioners v. Paul Okeson, et al.

No.

In the Supreme Court of the United States

BARBARA TULLY ET AL.,

Petitioners,

v.

PAUL OKESON, S. ANTHONY LONG, SUZANNAH WILSON

OVERHOLT, ZACHARY E. KLUTZ, AND CONNIE LAWSON,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

JED W. GLICKSTEIN

GARY A. ISAAC

MICHAEL A. SCODRO

BRETT E. LEGNER

JEFFREY M. STRAUSS

Mayer Brown LLP

71 South Wacker Dr.

Chicago, IL 60606

(312) 782-0600

WILLIAM R. GROTH

Vlink Law Firm LLC

445 N. Pennsylvania St.

Suite 425

Indianapolis, IN 46204

(317) 353-9363

ANDREW J. PINCUS

Counsel of Record

CHARLES A. ROTHFELD

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

MARK W. SNIDERMAN

Findling Park Conyers

Woody & Sniderman, PC

151 N. Delaware Street,

Ste. 1520

Indianapolis, IN 46204

(317) 953-2292

Counsel for Petitioners

QUESTIONS PRESENTED

Indiana’s absentee voting laws expressly distinguish between voters based on age by giving all voters

age 65 or older an entitlement to cast an absentee ballot by mail. Indiana chose to allow all voters to vote by

mail for the June 2020 primary election but subsequently enforced its age-based rules in the November

2020 general election.

The questions presented are:

1. Whether Indiana violates the Twenty-Sixth

Amendment to the U.S. Constitution by giving voters

age 65 and older the right to cast an absentee ballot

by mail while requiring otherwise identical voters age

18 to 64 to cast their ballots in-person; and

2. Whether, in circumstances where in-person voting presents special dangers, Indiana’s absentee voting scheme violates the Fourteenth Amendment to the

U.S. Constitution by burdening the right to vote of

voters age 18 to 64.

ii

PARTIES TO THE PROCEEDINGS

Petitioners, plaintiffs-appellants below, are Barbara Tully, Katharine Black, Marc Black, David

Carter, Rebecca Gaines, Elizabeth Kmieciak, Chaquitta McCleary, David Slivka, Dominic Tumminello,

and Indiana Vote By Mail, Inc. The nine individual

petitioners are Indiana voters who are all under 65

years of age. Indiana Vote By Mail, Inc. is a nonprofit,

non-partisan 501(c)(3) organization that advocates for

measures that increase the availability of mail-in voting and safe and secure elections.

Respondents, defendants-appellees below, are

Paul Okeson, S. Anthony Long, Suzannah Wilson

Overholt, and Zachary E. Klutz, all members of the

Indiana Election Commission; and Connie Lawson,

the Indiana Secretary of State. Respondents are

named in their official capacity.

CORPORATE DISCLOSURE STATEMENT

Indiana Vote By Mail, Inc. has no corporate parent, and no publicly held corporation owns 10 percent

or more of its stock.

RELATED PROCEEDINGS

United States District Court (S.D. Ind.):

 Tully v. Okeson, No. 1:20-cv-01271 (Aug. 21,

2020) (order denying motion for a preliminary

injunction)

United States Court of Appeals (7th Cir.):

 Tully v. Okeson, No. 20-2605 (Oct. 6, 2020) (affirming denial of preliminary injunction)

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................i

PARTIES TO THE PROCEEDINGS ........................ ii

CORPORATE DISCLOSURE STATEMENT .......... ii

RELATED PROCEEDINGS ..................................... ii

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................... 1

STATEMENT ............................................................. 2

A. Indiana’s absentee voting rules ...................... 2

B. Procedural history ........................................... 4

C. The district court’s preliminary injunction

ruling ................................................................ 5

D. The decision below ........................................... 6

E. The TDP litigation ........................................... 9

REASONS FOR GRANTING THE PETITION ...... 12

I. The Seventh Circuit’s decision conflicts with

the holdings of other courts of appeals and

state courts .......................................................... 14

A. The decision below aggravates a split in

authority over the meaning of the TwentySixth Amendment .......................................... 15

B. The decision below aggravates a related split

over McDonald ............................................... 20

iv

II. The decision below is wrong on the merits ........ 23

A. The decision misconstrues the Twenty-Sixth

Amendment.................................................... 24

B. The decision misconstrues McDonald .......... 26

III.This case presents an ideal vehicle to resolve

the important questions presented .................... 29

CONCLUSION ......................................................... 32

Appendix A – Opinion of the Court of Appeals

(Oct. 6, 2020) ....................................................... 1a

Appendix B – Final Judgment of the Court of

Appeals (Oct. 6, 2020) ....................................... 22a

Appendix C – Order of the District Court denying

plaintiffs’ motion for preliminary injunction

(Aug. 21, 2020) .................................................. 24a

Appendix D – Order of the Indiana Election

Commission (Mar. 25, 2020) ............................. 41a

Appendix E – Statutes Involved ............................ 54a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Anti-Defamation League

Austin, Sw., & Texoma Regions,

610 S.W.3d 911 (Tex. 2020) (per

curiam) ................................................................. 23

American Party of Texas v. White

415 U.S. 767 (1974) .............................................. 21

Anderson v. Celebrezze,

460 U.S. 780 (1983) ................................ 8, 9, 13, 27

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020) .......................................... 12

Brown v. Post,

279 F. Supp. 60 (W.D. La. 1968) ......................... 24

Burdick v. Takushi,

504 U.S. 428 (1992) ...................................... passim

Colorado Project-Common Cause

v. Anderson, 495 P.2d 220 (Colo.

1972) (en banc) ..................................................... 17

Common Cause Indiana v. Lawson,

977 F.3d 663 (7th Cir. 2020) ................................ 31

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008) .............................................. 21

vi

Fisher v. Hargett,

604 S.W.3d 381 (Tenn. 2020) ......................... 22, 23

Frisby v. Schultz,

487 U.S. 474 (1988) .............................................. 30

Goosby v. Osser,

409 U.S. 512 (1973) .............................................. 20

Harman v. Forssenius,

380 U.S. 528 (1965) .............................................. 24

Hill v. Stone,

421 U.S. 289 (1975) .............................................. 20

Husted v. A. Philip Randolph Inst.,

138 S. Ct. 1833 (2018) .......................................... 30

Jolicoeur v. Mihaly,

488 P.2d 1 (Cal. 1971) .................................... 17, 19

Jones v. Governor of Fla.,

975 F.3d 1016 (11th Cir. 2020) ............................ 18

Lane v. Wilson,

307 U.S. 268 (1939) .............................................. 24

League of Women Voters of Fla., Inc. v.

Detzner, 314 F. Supp. 3d 1205 (N.D.

Fla. 2018) .............................................................. 15

Lubin v. Panish,

415 U.S. 709 (1974) .............................................. 25

Luft v. Evers,

963 F.3d 665 (7th Cir. 2020) .......................... 11, 18

vii

McDonald v. Board of Election

Commissioners of Chicago,

394 U.S. 802 (1969) ...................................... passim

Nashville Student Org. Comm.

v. Hargett,

155 F. Supp. 3d 749 (M.D. Tenn.

2015) ..................................................................... 15

O’Brien v. Skinner,

414 U.S. 524 (1974) .............................................. 20

Obama for America v. Husted

697 F.3d 423 (6th Cir. 2012) .......................... 21, 22

Ohio State Conference of NAACP v.

Husted, 768 F.3d 524 (6th Cir. 2014),

vacated on other grounds, 2014 WL

10384647 (6th Cir. Oct. 2, 2014) ......................... 22

Oregon v. Mitchell,

400 U.S. 112 (1970) .................................. 12, 25, 26

Price v. N.Y. State Board of Elections

540 F.3d 101 (2d Cir. 2008) ................................. 22

Purcell v. Gonzalez,

549 U.S. 1 (2006) (per curiam) ............................ 30

Reno v. Bossier Parish School,

528 U.S. 320 (2000) .................................. 11, 18, 24

Republican Nat’l Comm. v.

Common Cause R.I.,

141 S. Ct. 206 (2020) (Mem.) ............................... 19

viii

Republican Nat’l Comm. v.

Democratic Nat’l Comm.,

140 S. Ct. 1205 (2020) .......................................... 30

Republican Party of Pa. v.

Degraffenreid,

2021 WL 666401 (U.S. Feb. 22, 2021) ................. 31

Rice v. Cayetano,

528 U.S. 495 (2000) ........................................ 12, 28

South Carolina v. Katzenbach,

383 U.S. 301 (1966) .............................................. 11

In re State,

602 S.W.3d 549 (Tex. 2020) ................................. 19

Storer v. Brown,

415 U.S. 724 (1974) ........................................ 31, 32

Symm v. United States,

439 U.S. 1105 (1979) ...................................... 15, 26

Tex. League of United Latin Am.

Citizens v. Hughs,

978 F.3d 136 (5th Cir. 2020) ................................ 23

Texas Democratic Party v. Abbott,

140 S. Ct. 2015 (2020) .......................................... 10

Texas Democratic Party v. Abbott,

961 F.3d 389 (5th Cir. 2020) ...................... 9, 10, 15

Texas Democratic Party v. Abbott,

978 F.3d 168 (5th Cir. 2020),

cert. denied, 2021 WL 78479 (Jan.

11, 2021) ....................................................... passim

ix

United States v. James Daniel Good

Real Property,

510 U.S. 43 (1993) ................................................ 28

United States v. Mississippi,

380 U.S. 128 (1965) .............................................. 12

United States v. Texas,

445 F. Supp. 1245 (S.D. Tex. 1978) ............... 15, 26

Walgren v. Howes

482 F.2d 95 (1st Cir. 1973) ...................... 16, 22, 28

Walgren v. Bd. of Selectmen of Town of

Amherst,

519 F.2d 1364 (1st Cir. 1975) ........................ 17, 28

Worden v. Mercer Cnty. Bd. of Elections,

294 A.2d 233 (N.J. 1972)...................................... 26

Statutes and Constitutional Provisions

U.S. Const. amend. XXVI, § 1 ................................... 13

28 U.S.C. § 1254(1) ...................................................... 1

52 U.S.C. § 10502(a)(1) ............................................. 26

Pub. L. No. 91-285, 84 Stat. 314 (1970) .................... 25

Ind. Code § 3-5-2-16.5 ............................................. 1, 3

Ind. Code § 3-11-8-2 .................................................... 3

Ind. Code § 3-11-10-1 .................................................. 3

Ind. Code § 3-11-10-24 ...................................... passim

x

Ind. Code § 3-11-10-25 ................................................ 4

Ind. Code § 3-11-10-26 ................................................ 3

Ind. Code § 3-11-10-26.3 ............................................. 3

Ind. Code § 3-11-18.1 ................................................... 3

Ky. Rev. Stat. § 117.085 .............................................. 3

La. Stat. § 18:1303....................................................... 3

Miss. Code Ann. § 23-15-715 ....................................... 3

S.C. Code § 7-15-320.................................................... 3

Tenn. Code Ann. § 2-6-201 .......................................... 3

Tex. Elec. Code § 82.003.............................................. 3

W.V. Code § 3-3-1 ........................................................ 3

Other Authorities

116 Cong. Rec. 6877 (1970) ....................................... 26

S. Rep. No. 92-26 (1971) ............................................ 26

Dan Carden, NORTHWEST INDIANA

TIMES, Indiana House rejects call for

no-excuse mail-in voting (Feb. 4,

2021), https://bit.ly/3bcRCb5 ............................... 31

BRENNAN CENTER FOR JUSTICE, Voting

Laws Roundup: February 2021 (Feb.

8, 2021), https://bit.ly/37sAuNp ........................... 29

xi

Eric S. Fish, The Twenty-Sixth

Amendment Enforcement Power, 121

Yale L.J. 1168 (2012) ........................................... 25

Ind. Sec’y of State, General Election

Turnout and Registration (2016),

https://bit.ly/3rjc3d6 ............................................... 4

Ind. Sec’y of State, General Election

Turnout and Registration (2020),

https://bit.ly/3rftmM5 ............................................ 4

Lazaro Gamio et al., N.Y. TIMES, Record-Setting Turnout: Tracking Early

Voting in the 2020 Election (updated

Nov. 12, 2020),

https://nyti.ms/3tZBtyn.......................................... 4

Nat’l Conf. of State Legislatures, Voting

Outside the Polling Place: Absentee,

All-Mail and Other Voting at Home

Options (Sept. 24, 2020),

https://bit.ly/3dh59ks ............................................. 3

Stanley Dunlap, GPB, Ga. Senate Panel

Advances Bill To End No-Excuse Absentee Voting, Require ID (Feb. 17,

2021), https://bit.ly/37qPsDw .............................. 29

Stephen M. Shapiro, SUPREME COURT

PRACTICE (11th ed. 2019) ..................................... 30

1

PETITION FOR A WRIT OF CERTIORARI

Barbara Tully, Katharine Black, Marc Black, David Carter, Rebecca Gaines, Elizabeth Kmieciak,

Chaquitta McCleary, David Slivka, Dominic Tumminello, and Indiana Vote By Mail, Inc. respectfully

petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Seventh

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a21a) is reported at 977 F.3d 608. The opinion of the

district court (Pet. App. 24a-40a) is reported at

481 F. Supp. 3d 816.

JURISDICTION

The court of appeals entered judgment on October

6, 2020. Pet. App. 22a-23a. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment provides

that “[n]o State shall * * * deny to any person within

its jurisdiction the equal protection of the laws.”

Section 1 of the Twenty-Sixth Amendment provides that “[t]he 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.”

Sections 3-5-2-16.5 and 3-11-10-24(a)(5) of the Indiana Code provide that a voter who “is an elderly

voter”—that is, “a voter who is at least sixty-five (65)

years of age”—is “entitled to vote by mail.”

2

STATEMENT

The State of Indiana permits all voters 65 years of

age or older to vote absentee by mail on account of

their age, while requiring voters age 18 to 64 to satisfy

some other requirement. In the decision below, the

Seventh Circuit held that this disparate treatment of

older and younger voters does not violate either the

Fourteenth or the Twenty-Sixth Amendment to the

U.S. Constitution. Relying principally on McDonald v.

Board of Election Commissioners of Chicago, 394 U.S.

802 (1969)—a Fourteenth Amendment case decided

before the adoption of the Twenty-Sixth Amendment

in 1971—the court concluded that the “privilege” of

mail-in voting is not part of the constitutional “right

to vote.” As the court put it, both the Fourteenth

Amendment and the Twenty-Sixth Amendment are

concerned only with “the ability to cast a ballot,” not

“the right to do so in a voter’s preferred manner.” Pet.

App. 6a-7a.

The decision below deepens two existing splits

among state high and federal appellate courts over the

application of this Court’s voting rights precedents,

and the Seventh Circuit’s interpretation of the

Twenty-Sixth Amendment finds no support in that

Amendment’s text, history, or structure. Particularly

as dozens of states consider revisions to their voting

laws in advance of the 2022 election cycle, the decision

threatens to create significant uncertainty and disruption for voters, legislators, and election officials.

This Court should review, and set aside, the Seventh

Circuit’s decision.

A. Indiana’s absentee voting rules

The State of Indiana allows registered voters to

cast ballots in several ways. First, a registered voter

3

may vote in person on election day, typically in his or

her precinct of residence, Ind. Code § 3-11-8-2, or in

some cases at county vote centers. Ind. Code § 3-1118.1. Second, a registered voter may vote by absentee

ballot. Absentee ballots may be returned in person to

the county clerk or (if approved) satellite voting sites.

Ind. Code §§ 3-11-10-1, 3-11-10-26, 3-11-10-26.3.

Certain categories of voters are permitted to return absentee ballots by mail. Among these are “elderly voter[s].” Ind. Code § 3-11-10-24(a)(5); see also

Ind. Code § 3-5-2-16.5 (defining “[e]lderly” to mean “a

voter who is at least sixty-five (65) years of age”).

Other categories of voters entitled to vote by mail include disabled voters, members of the military, and

voters who will be absent from their precinct on election day. See generally Ind. Code § 3-11-10-24(a).1

In addition to mail-in voting, a smaller set of voters may—and certain voters with disabilities must—

Currently, seven states besides Indiana offer elderly voters

(typically defined to mean persons age 65 or older) some type of

entitlement to vote absentee by mail: Kentucky, Ky. Rev. Stat.

§ 117.085(1)(a)(8); Louisiana, La. Stat. § 18:1303(J); Mississippi,

Miss. Code Ann. § 23-15-715(b); South Carolina, S.C. Code § 715-320(B)(8); Tennessee, Tenn. Code Ann. § 2-6-201(5)(A); Texas,

Tex. Elec. Code § 82.003; and West Virginia, W.V. Code § 3-31(b)(1)(B). The remaining states do not treat age as a relevant

criterion for mail-in voting, either because those states conduct

all-mail elections or offer “no-excuse” absentee voting to all voters regardless of age (34 states and D.C.), or because those states

require all voters to have an “excuse” to vote absentee but do not

treat age as an “excuse” (8 states). See generally Nat’l Conf. of

State Legislatures, Voting Outside the Polling Place: Absentee,

All-Mail and Other Voting at Home Options tbl. 1–tbl. 3 (Sept.

24, 2020), https://bit.ly/3dh59ks (this website, and all others

cited in this petition, were last visited Mar. 2, 2021).

1

4

vote before a traveling absentee voter board. Ind. Code

§§ 3-11-10-24(b), 3-11-10-25(b).

In the 2016 general election, 33% of Indiana voters cast absentee ballots. In the 2020 general election,

that proportion increased to 61% of all ballots cast (approximately 1.8 million votes). Roughly 30% of absentee votes cast in November 2020—approximately

506,000—reportedly were cast by mail.2

B. Procedural history

On March 25, 2020, in response to the COVID-19

pandemic, the Indiana Election Commission exercised

its authority to implement no-excuse absentee voting

by mail for all Indiana voters—regardless of age—for

the state’s upcoming primary election. See Ind. Election Comm’n Order No. 2020-37 (Pet. App. 41a-53a).

Citing the Governor’s declaration of a public health

disaster emergency, the Commission’s Order stated

that “[a]ll registered and qualified Indiana voters are

afforded the opportunity to vote no-excuse absentee by

mail” and that “the qualifications set forth in IC 3-1110-24(a) are expanded to include all otherwise registered and qualified Indiana voters.” Pet. App. 43a.

The Commission refused to make similar accommodations for the November general election. Accordingly, petitioners filed suit on April 29.

2 See Ind. Sec’y of State, General Election Turnout and Registra-

tion (2020), https://bit.ly/3rftmM5; Ind. Sec’y of State, General

Election Turnout and Registration (2016), https://bit.ly/3rjc3d6;

Lazaro Gamio et al., N.Y. TIMES, Record-Setting Turnout: Tracking Early Voting in the 2020 Election (updated Nov. 12, 2020),

https://nyti.ms/3tZBtyn.

5

Petitioners’ Amended Complaint brought two federal claims.3 First, petitioners alleged that, as applied

during the COVID-19 pandemic, Indiana’s refusal to

make mail-in voting generally available to voters under age 65 for the general election violated the Fourteenth Amendment, which prohibits unjustified burdens on the right to vote. Am. Compl. ¶¶ 65-82. In particular, petitioners alleged that, as applied during a

pandemic, the state’s absentee voting laws constituted a significant and non-trivial burden on the fundamental right to vote of younger voters, and that

these burdens were not justified by any relevant governmental interest.

Second, petitioners alleged that Indiana violated

the Twenty-Sixth Amendment by drawing an express

distinction on the basis of age with respect to mail-in

voting. Am. Compl. ¶¶ 83-94. Petitioners noted that

the COVID-19 pandemic made application of these

age-based voting rules “particularly burdensome” to

voters under 65 years of age. Id. ¶ 94. But petitioners

also alleged that Indiana Code § 3-11-10-24(a) “would

be unconstitutional under any set of circumstances

because it deni[ed] voters age 18-64 the same voting

rights as those ages 65 and older.” Ibid.

C. The district court’s preliminary injunction

ruling

Soon after filing the Amended Complaint, petitioners moved for a preliminary injunction. The district court denied that motion on August 21, 2020 on

3 Petitioners also brought a state law claim not at issue in this

petition.

6

the grounds that petitioners had not shown a reasonable likelihood of success on either federal claim. Pet.

App. 39a.4

As to the Twenty-Sixth Amendment claim, the

court held that mail-in voting restrictions do not “absolutely prohibit” voters under age 65 from casting a

ballot, and therefore that the Amendment’s prohibition on the denial or abridgment of the right to vote

on account of age was not implicated by Indiana’s absentee voting scheme. Pet. App. 38a. As to the Fourteenth Amendment claim, the district court held that

petitioners did not establish a substantial burden on

the right to vote, and that it was therefore appropriate

to defer to the State’s asserted interests. Id. at 33a.

On August 25, two business days after the district

court’s decision, petitioners filed their opening appeal

brief in the Seventh Circuit. That court subsequently

expedited the briefing and scheduled argument.

D. The decision below

On October 6, the Seventh Circuit affirmed the

district court’s denial of the request for a preliminary

injunction. The court’s decision turned on the merits

of the claims, which it found foreclosed by this Court’s

4 On August 14, 2020, the Commission met virtually to discuss

whether to allow no-excuse voting by mail, regardless of age, for

the general election. Chairman Okeson said that it would be

“premature to take any action by voting today until the courts

have a chance to hand down a ruling,” and the Commission declined to expand mail-in voting by a 2-2 vote. The Commission

did not meet publicly between August 14 and the general election. News articles discussing the August 14 meeting are in the

record at ECF No. 66-1, 66-2, and 66-3 of the district court

docket. A recording of the meeting previously was available at

https://www.in.gov/sos/elections/2404.htm, although at the time

of filing of this petition, the link to the video was not functional.

7

precedents—in particular, by this Court’s decision in

McDonald. Pet. App. 5a-6a.

As to the Twenty-Sixth Amendment claim, the

majority determined that the core question was

whether restrictions on the availability of absentee

voting implicate the “right to vote” or “merely affect[]

a privilege to vote by mail.” Pet. App. 6a. The majority

concluded that McDonald “answered” this question.

Ibid. According to the Seventh Circuit, McDonald provided that “the fundamental right to vote means the

ability to cast a ballot, but not the right to do so in a

voter’s preferred manner, such as by mail.” Id. at 6a7a.

The majority acknowledged that this logic would

apply equally to the Constitution’s other voting

amendments—the Fifteenth, Nineteenth, and

Twenty-Fourth Amendments—and that these

Amendments similarly would provide no protection if

a state sought to “restrict[] the ability of African

Americans or women or the poor to vote by mail.” Pet.

App. 8a. But, the court said, concern over this limitation “b[ore] no weight” because such laws could be

challenged separately under the Equal Protection

Clause of the Fourteenth Amendment. Id. at 9a.

The majority’s analysis of the Fourteenth Amendment claim proceeded similarly. In recent decades,

this Court has explained that “[e]ach provision” of

state election codes, ranging from “the registration

and qualifications of voters” to “the selection and eligibility of candidates” to “the voting process itself,”

“inevitably affect[]—at least to some degree—the individual’s right to vote”; challenges to such provisions

are evaluated with a sliding-scale test. Anderson v.

8

Celebrezze, 460 U.S. 780, 788-789 (1983); Burdick v.

Takushi, 504 U.S. 428, 433 (1992).

Citing this Court’s 1969 decision in McDonald,

however, the Seventh Circuit held that because petitioners’ challenge was directed at Indiana’s absentee

voting scheme, their challenge did not implicate the

right to vote and only rational-basis review applied.

Pet. App. 12a. Despite earlier stating that the Fourteenth Amendment did protect voters’ right to equal

treatment with respect to absentee voting, id. at 9a,

the court declared that the Anderson-Burdick test

“cannot apply” to such restrictions, because that test

turns on the injury to “the rights protected by the

First and Fourteenth Amendments that the plaintiff

seeks to vindicate.” Id. at 11a & n.6. The court also

stated that it would reject petitioners’ claim under the

Anderson-Burdick test because Indiana’s electoral

scheme “as a whole” did not unduly burden the right

to vote. Id. at 13a-14a.

Judge Ripple concurred in a separate opinion, rejecting the notion that McDonald “establishes a rigid

rule that the fundamental right to vote does not include a right to cast an absentee ballot.” Pet. App. 19a.

As Judge Ripple explained, “McDonald antedates the

ratification of [the Twenty-Sixth] Amendment” and

“[w]e well may see someday a more direct attempt to

manipulate the electoral process by altering the absentee ballot program to disfavor a specific age group.”

Id. at 19a-20a. Although he noted that “the State may

well have created a category that is both over- and under-inclusive,” Judge Ripple did not believe Indiana

had used age as “an invidious irrebuttable presumption” in this case. Ibid. He saw no Twenty-Sixth

9

Amendment violation because Indiana employed age

“only in a tangential way.” Id. at 18a.

Judge Ripple found the Fourteenth Amendment

claim “somewhat stronger” than the Twenty-Sixth

Amendment claim and would have applied intermediate scrutiny under Anderson-Burdick. Pet. App. 20a.

Nevertheless, he found that plaintiffs had not shown

a “realistic jeopardy of losing the right to vote,” and

thought Indiana’s interests in limiting the number of

voters seeking to vote by mail were sufficient to defer

to what he called the State’s “careful weighing of the

competing considerations.” Id. at 20a-21a.

E. The TDP litigation

While petitioners’ motion for a preliminary injunction in this case was pending before the district

court in Indiana, a motions panel of the Fifth Circuit

stayed an injunction in a Texas case bringing similar

Fourteenth and Twenty-Sixth Amendment challenges

to age-based restrictions on mail-in voting in that

state. See Texas Democratic Party v. Abbott, 961 F.3d

389, 406 (5th Cir. 2020) (“TDP I”). Because the Fifth

Circuit used different and inconsistent reasoning than

the Seventh Circuit, petitioners discuss these decisions in some detail here.

The motions panel’s decision to stay the Texas district court’s injunction pending appeal was supported

by three opinions. Similar to the majority opinion in

Tully, the lead opinion, by Judge Smith, concluded

that the “logic” of this Court’s decision in McDonald

precluded both Fourteenth Amendment and TwentySixth Amendment claims based on the disparate

availability of mail-in voting. TDP I, 961 F.3d at 406,

408.

10

Judge Ho concurred. He agreed that McDonald

barred the Fourteenth Amendment claim, but observed that this Court “has said little to date about

the Twenty-Sixth Amendment.” 961 F.3d at 416-417.

Although Judge Ho concluded that the “closest analogy available under current precedent is the McDonald approach to the Fourteenth Amendment,” he ultimately rested his Twenty-Sixth Amendment conclusion on remedial grounds. Ibid. Unlike the majority in

Tully, moreover, Judge Ho questioned the proposition

that the voting amendments were not concerned with

absentee voting. Ibid. (“The text of the Fifteenth

Amendment closely tracks the text of the TwentySixth Amendment. And it would presumably run

afoul of the Constitution to allow only voters of a particular race to vote by mail.”).

Judge Costa concurred in the judgment only. He

would have applied Pullman abstention and not

reached the merits of the constitutional claims. 961

F.3d at 419.

Following TDP I, the plaintiffs applied to this

Court to vacate the stay. The Court denied the application. Texas Democratic Party v. Abbott, 140 S. Ct.

2015 (2020). As Justice Sotomayor noted, however,

the challenge to the Texas law raised “weighty but

seemingly novel questions regarding the TwentySixth Amendment,” and she urged the Fifth Circuit to

“consider the merits of the legal issues in this case

well in advance of the November election.” Ibid.

(statement of Sotomayor, J.).

The appeal in TDP then proceeded to a decision on

the merits, where the plaintiffs defended the district

court injunction solely on a Twenty-Sixth Amendment

theory. Texas Democratic Party v. Abbott, 978 F.3d

11

168, 174 (5th Cir. 2020) (“TDP II”) (“plaintiffs defend

the injunction at this stage of the proceedings only on

the basis that the vote-by-mail privilege for older voters is unconstitutional under the Twenty-Sixth

Amendment[]”), cert. denied, — S. Ct. —, 2021 WL

78479 (Jan. 11, 2021). On September 10, 2020, a different Fifth Circuit panel reversed the district court’s

injunction. See TDP II, 978 F.3d at 174.5

Although the merits panel reached the same result as the motions panel on the Twenty-Sixth

Amendment claim, the merits panel took a very different route to get there. Instead of hinging its decision on McDonald, the merits panel held that “an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it

makes voting more difficult for that person than it was

before the law was enacted or enforced.” Id. at 190191. The court expressly “declare[d] that the holdings

in the motions panel opinion as to McDonald are not

precedent.” Id. at 194.

Judge Stewart dissented in part. He agreed that

McDonald did not control the Twenty-Sixth Amendment claim. 978 F.3d at 199. But he departed from the

majority’s interpretation of the Amendment. As Judge

Stewart explained (id. at 196-197), an anti-retrogression standard was incompatible with Reno v. Bossier

Parish School, 528 U.S. 320 (2000), and South Carolina v. Katzenbach, 383 U.S. 301 (1966)—and with

Seventh Circuit precedent in Luft v. Evers, 963 F.3d

5 The Fifth Circuit withdrew and reissued the TDP II opinion on

October 14, following the Seventh Circuit’s decision in this case.

The Fifth Circuit’s new opinion contains non-substantive

changes, particularly with respect to threshold standing and immunity issues not at issue in this petition.

12

665, 672 (7th Cir. 2020). Judge Stewart concluded

that “the options granted to voters to cast their vote

are part of ‘the right to vote’ under the Twenty-Sixth

Amendment” and that “[b]y giving younger voters

fewer options, especially in the context of a dangerous

pandemic where in-person voting is risky to public

health and safety, their voting rights are abridged in

relation to older voters who do not face this burden.”

978 F.3d at 199.

REASONS FOR GRANTING THE PETITION

The Constitution’s four voting amendments provide that no State shall “den[y]” or “abridge[]” the

right of citizens to vote on account of certain criteria:

race, color, or previous servitude (Fifteenth); sex

(Nineteenth); ability to pay a poll tax (TwentyFourth); and age (Twenty-Sixth).

The last of these Amendments was enacted in the

wake of this Court’s decision in Oregon v. Mitchell,

400 U.S. 112 (1970), which invalidated Congress’s attempt to lower the voting age to 18 for state and local

elections in the Voting Rights Act Amendments of

1970. But the Twenty-Sixth Amendment is cast in the

same “fundamental terms” as its predecessors—terms

that “transcend[] the particular controversy which

was the immediate impetus for [their] enactment.”

Rice v. Cayetano, 528 U.S. 495, 512 (2000); cf. Bostock

v. Clayton Cnty., 140 S. Ct. 1731, 1749 (2020) (a law’s

reach is determined by what “the text and our precedent indicate,” not whether a particular application

“reaches ‘beyond the principal evil’ legislators may

have intended or expected to address”).

Like the other voting amendments, the TwentySixth Amendment speaks in “plain, unambiguous language.” United States v. Mississippi, 380 U.S. 128, 140

13

(1965). “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.” U.S. Const. amend. XXVI,

§ 1. But that is what Indiana has done by expressly

providing that central aspects of the right to vote are

expanded or contracted (i.e., “denied or abridged”) on

account of age. Just as Indiana could not provide that

only “white” voters or “female” voters are entitled to

no-excuse absentee voting by mail under the Fifteenth

and Nineteenth Amendments, so too is Indiana prohibited from providing that only voters age 65 and

older are entitled to vote by mail without further excuse under the Twenty-Sixth Amendment.

With no textual or historical basis for doing so, the

decision in this case significantly curtails the reach of

the four voting amendments. It furthers existing confusion surrounding the Twenty-Sixth Amendment.

And it threatens to create widespread confusion in upcoming election cycles.

The Seventh Circuit’s decision also adds to growing disarray over the appropriate mode of analysis for

challenges to state absentee voting procedures under

the Fourteenth Amendment. Relying on this Court’s

decades-old decision in McDonald, which predated the

emergence of the modern Anderson-Burdick framework, the Seventh Circuit held that absentee voting

provisions are categorically subject to rational-basis

review. That is contrary to decisions from many other

courts and promises to create yet more confusion, especially because many state legislatures are currently

considering ways to expand or restrict the availability

of absentee voting in the wake of the recent election.

14

It is essential that these issues be resolved prior

to the nation’s next election cycle. This case offers an

opportunity to do that, determining the meaning of

McDonald and the Twenty-Sixth Amendment and ensuring the Constitution’s guarantee of an equal right

to vote regardless of age. There is no reason to delay

resolution of these critical issues. Review is therefore

warranted.6

I. The Seventh Circuit’s decision conflicts with

the holdings of other courts of appeals and

state courts

The Seventh Circuit’s decision in this case exacerbates two deep and related splits in state and lower

federal courts. First, the Seventh Circuit’s holding

that the Twenty-Sixth Amendment is not concerned

with laws that affect absentee voting is sharply at

odds with the interpretation of that Amendment

reached by other courts. Second, the Seventh Circuit’s

construction of McDonald (which did not just inform

that court’s Fourteenth Amendment analysis but also

formed the predicate for its erroneous Twenty-Sixth

Amendment conclusion) deepens a longstanding split

on the meaning of the McDonald decision. This

Court’s intervention is urgently needed to resolve

6 Petitioners’ claims are not limited to the 2020 election cycle.

The Twenty-Sixth Amendment claim includes a facial challenge

to Indiana Code § 3-11-10-24(a). In addition, both the Fourteenth

and Twenty-Sixth Amendment claims are based on the burdens

placed on the right to vote by in-person voting during the coronavirus pandemic. Although petitioners hope that the pandemic

will be fully controlled by the next election cycle, there is no guarantee that will be the case.

15

these conflicts, which turn on fundamental disagreements over the meaning of the Court’s prior decisions

and of constitutional text.

A. The decision below aggravates a split in

authority over the meaning of the TwentySixth Amendment

This Court has only once addressed a TwentySixth Amendment claim, in a case addressing a

county registrar’s use of a questionnaire to determine

whether college students living in the county intended

to remain in the community after graduation. In that

case, the United States alleged that the questionnaire—which did not itself deny any student the right

to vote—was used to “abridge[] the right of Prairie

View dormitory residents to vote in violation of their

rights under the 14th, 15th and 26th Amendments to

the Constitution of the United States.” United States

v. Texas, 445 F. Supp. 1245, 1247 (S.D. Tex. 1978). A

three-judge court held that the registrar’s actions

were unconstitutional, id. at 1261-1262, and this

Court summarily affirmed. Symm v. United States,

439 U.S. 1105 (1979).

Since Symm, lower courts have frequently observed the lack of “controlling caselaw * * * regarding

the proper interpretation of the Twenty-Sixth Amendment or the standard to be used in deciding claims

based on alleged abridgement or denial of the right to

vote.” Nashville Student Org. Comm. v. Hargett,

155 F. Supp. 3d 749, 757 (M.D. Tenn. 2015); see also,

e.g., Pet. App. 39a (observing that there are “very few

cases” involving the Twenty-Sixth Amendment);

League of Women Voters of Fla., Inc. v. Detzner, 314 F.

Supp. 3d 1205, 1221 (N.D. Fla. 2018) (noting the

“dearth of guidance on what test applies”); TDP I, 961

16

F.3d at 416 (Ho, J., concurring). The Seventh Circuit’s

decision greatly exacerbated this confusion.

1. There are now at least three different and

largely incompatible approaches used by the lower

courts to evaluate Twenty-Sixth Amendment claims

related to absentee voting classifications.

First, as explained above, the Seventh Circuit has

held that the Twenty-Sixth Amendment is simply inapplicable to laws governing the manner of casting a

ballot, even those that—like Indiana’s absentee voting

laws—draw facial age-based distinctions. On this

view, laws that merely affect a voter’s “preferred manner” of casting a ballot do not affect the “right to vote,”

and the Twenty-Sixth Amendment (and the other voting amendments) have nothing to say about such restrictions. Pet. App. 7a-9a.

Second, and in square conflict with this holding,

several federal and state courts have reasoned that

the Twenty-Sixth Amendment is broadly concerned

with unequal treatment of voters on account of age in

all facets of the election process, and that the Amendment subjects such age-based classifications to

heightened scrutiny.

In Walgren v. Howes, for example, the First Circuit held that the Town of Amherst’s decision to schedule special elections during a period in which many

college students would be required to vacate their residences raised a claim under the Twenty-Sixth

Amendment. 482 F.2d 95, 98-99 (1st Cir. 1973)

(“Walgren I”). That was so even though the students

had not been “totally denied the electoral franchise,”

for there was “no allegation that the town has improperly denied absentee ballots to residents requesting

17

them.” Id. at 99-100. Following trial, the court observed that it was “difficult to believe” that the

Twenty-Sixth Amendment “contributes no added protection to that already offered by the Fourteenth

Amendment.” Walgren v. Bd. of Selectmen of Town of

Amherst, 519 F.2d 1364, 1367 (1st Cir. 1975)

(“Walgren II”).

The California Supreme Court applied a similar

rule in Jolicoeur v. Mihaly, 488 P.2d 1 (Cal. 1971),

which addressed a law requiring college students to

vote at their parents’ residences. The court held that

the Twenty-Sixth Amendment invalidates a voting restriction if “[t]he burden placed on youth would be different than that placed on other absentee voters.” Id.

at 4. That was so even if voters would not be precluded

from voting. Ibid. (noting that young people could

“travel to their parents’ district to register and vote”

or “register and vote as absentees”). The California

Supreme Court thus reads “the Twenty-Sixth Amendment to the United States Constitution * * * [to] require respondent registrars to treat all citizens 18

years of age or older alike for all purposes related to

voting.” Id. at 12 (emphasis added).

The Colorado Supreme Court has also held that

“the prohibition against denying the right to vote to

anyone eighteen years or older by reason of age applies to the entire process involving the exercise of the

ballot and its concomitants.” Colorado Project-Common Cause v. Anderson, 495 P.2d 220, 223 (Colo. 1972)

(en banc).7

7 Consistent with these cases, three members of the Eleventh

Circuit recently concluded that the voting amendments do not

permit a state to discriminate on the basis of a prohibited category merely because the state acts with regard to voting matters

18

Third, and again contrary to the Seventh Circuit’s

position, the Fifth Circuit holds that age-based restrictions on mail-in voting “abridge” the right to vote

only if they make it harder for younger voters to cast

a ballot than before the restrictions were implemented. TDP II, 978 F.3d at 190-191. The Fifth Circuit has expressly rejected reliance on McDonald to

circumscribe the scope of the Twenty-Sixth Amendment. Id. at 194 (majority); id. at 199 (Stewart, J.).8

In addition to the three tests described above,

Judge Ripple has said that laws affecting “absentee

ballot privileges” might implicate the Twenty-Sixth

Amendment, but only where the “values protected by

that Amendment are clearly at stake.” Pet. App. 19a20a. And Judge Stewart would hold that “the options

granted to voters to cast their vote are part of the

that are an “act of grace.” Jones v. Governor of Fla., 975 F.3d

1016, 1040-1041 (11th Cir. 2020) (W. Pryor, Newsome, and Lagoa, JJ.). As these judges explained, the voting amendments “do[]

not subject race-based [or sex- or age-based] voter qualifications

to strict scrutiny” but rather deem such classifications to be “per

se unconstitutional”; a state may not “act[] in any way to make

race [or sex or age] relevant to voter qualifications.” Id. at 1043

(emphasis added).

8 The Fifth Circuit’s test in effect applies the “anti-retrogression”

standard from section 5 of the Voting Rights Act to the TwentySixth Amendment. See Bossier Parish, 528 U.S. at 334 (explaining that “[i]n § 5 preclearance proceedings * * * the baseline is

the status quo that is proposed to be changed”). That is inconsistent with the Seventh Circuit’s decision in Luft v. Evers, which

explains that similar “denial or abridgement” language in the

Voting Rights Act implements an “equal-treatment requirement”—the question is not whether a group has retrogressed

compared to the status quo, but whether the election system is

“equally open to participation” by members of the protected class.

Luft, 963 F.3d at 672; see also TDP II, 978 F.3d at 196-197 (Stewart, J.) (discussing this tension).

19

‘right to vote’ under the Twenty-Sixth Amendment,”

to which some form of heightened scrutiny should apply. TDP II, 978 F.3d at 199.

2. The different tests articulated by federal and

state courts do not just reflect differences in rationale.

They yield different outcomes. Under the Seventh Circuit’s test, for example, petitioners are not permitted

to show that disparity in the availability of absentee

mail-in voting has abridged their right to vote. But

under the California Supreme Court’s test in Jolicoeur, Indiana’s differential treatment of voters on

the basis of age presents a clear, perhaps even per se

Twenty-Sixth Amendment problem.

Even under the Fifth Circuit’s anti-retrogression

test, moreover, petitioners here would likely obtain relief. The State of Texas refused to expand mail-in voting for the 2020 primary, see In re State, 602 S.W.3d

549, 550 (Tex. 2020), so there was no retrogression in

that state in November 2020 compared to the earlier

“baseline.” By contrast, here, respondents chose to exercise their authority under the Election Code to allow

all voters to vote absentee by mail in Indiana’s June

2020 primary, Pet. App. 43a, but then enforced agebased rules in the general election. That made it

harder for younger voters to vote compared to the status quo. Cf. Republican Nat’l Comm. v. Common

Cause R.I., 141 S. Ct. 206 (2020) (Mem.) (“The status

quo is one in which the challenged requirement has

not been in effect, given the rules used in Rhode Island’s last election.”). In the event other states limit

the availability of mail-in voting in the coming years,

moreover, see infra p. 29, the Fifth Circuit’s anti-retrogression standard is poised to drive an even larger

20

wedge between that court’s approach and the Seventh

Circuit’s.

B. The decision below aggravates a related

split over McDonald

The Seventh Circuit’s decision did not just exacerbate confusion over the Twenty-Sixth Amendment. It

also exacerbated a related split in the Fourteenth

Amendment context. Petitioners argued that denying

them the ability to vote absentee by mail during a

pandemic unduly burdened their right to vote—a burden Indiana recognized when it chose to make mail-in

voting available to all voters regardless of age in the

June 2020 primary. The Seventh Circuit again relied

principally on McDonald to reject this claim, Pet. App.

11a-12a, but to do so it read that case squarely contrary to other state and federal courts and in a manner incompatible with this Court’s precedents.

In McDonald, pretrial detainees claimed that the

State of Illinois violated their right to equal protection

by denying them access to absentee voting while allowing the “medically incapacitated” to vote by mail.

394 U.S. at 805. The Court held, at summary judgment, that the detainees had shown “nothing in the

record to indicate that the Illinois statutory scheme

has an impact on appellants’ ability to exercise the

fundamental right to vote,” and that “the absentee

statutes * * * do not themselves deny appellants the

exercise of the franchise.” Id. at 807-808. Since issuing

McDonald, this Court has interpreted its holding narrowly, declaring that it “[e]ssentially * * * rested on

failure of proof.” O’Brien v. Skinner, 414 U.S. 524, 529

(1974); see also, e.g., Hill v. Stone, 421 U.S. 289, 300

n.9 (1975); Goosby v. Osser, 409 U.S. 512, 520-22

(1973).

21

In American Party of Texas v. White, this Court

rejected an absolutist reading of McDonald, holding

that “it is plain that permitting absentee voting by

some classes of voters and denying the privilege to

other classes of otherwise qualified voters in similar

circumstances, without affording a comparable alternative means to vote, is an arbitrary discrimination

violative of the Equal Protection Clause.” 415 U.S.

767, 795 (1974). And in Burdick, this Court cited

McDonald as support for the “more flexible standard”

that now applies to all “state election law[s].” 504 U.S.

at 433-34; see also Crawford v. Marion Cnty. Election

Bd., 553 U.S. 181, 204 (2008) (Scalia, J., concurring)

(“To evaluate a law respecting the right to vote—

whether it governs voter qualifications, candidate selection, or the voting process—we use the approach set

out in Burdick v. Takushi * * * .”). Under this slidingscale test, “the rigorousness of [the] inquiry into the

propriety of a state election law depends upon the extent to which a challenged regulation burdens First

and Fourteenth Amendment rights,” and “severe” restrictions on those rights may require strict scrutiny.

Burdick, 504 U.S. at 434.

The Seventh Circuit’s conclusion that McDonald

precludes any heightened scrutiny of absentee voting

provisions so long as a plaintiff is not totally denied

“the ability to cast a ballot” (Pet. App. 7a) cannot be

squared with the holdings of many other courts.

In Obama for America v. Husted, for example, voters challenged a provision of Ohio law precluding

some voters from casting in-person early ballots in the

November 2012 election. 697 F.3d 423 (6th Cir. 2012).

The Sixth Circuit held that, although the challenged

law merely governed one manner of voting, “Plaintiffs

22

[do] not need to show that they were legally prohibited

from voting” in other ways to trigger heightened scrutiny, and it concluded that the plaintiffs were entitled

to a preliminary injunction. Id. at 430-431, 437; see

also Ohio State Conference of NAACP v. Husted, 768

F.3d 524, 541 (6th Cir. 2014) (“We did not read

McDonald to require proof that there was no possibility that the plaintiffs would find a way to adjust and

vote through the remaining options.”), vacated on

other grounds, 2014 WL 10384647 (6th Cir. Oct. 2,

2014).

Likewise, in Price v. N.Y. State Board of Elections,

voters challenged a New York law prohibiting the use

of absentee ballots in elections for political party

county committees. 540 F.3d 101 (2d Cir. 2008). The

district court concluded that, under McDonald, “restrictions on access to absentee ballots do not severely

burden the right to vote, so long as the class of voters

to whom absentee ballots are denied are not thereby

deprived of their only method of voting.” Id. at 106.

But the Second Circuit held that such a showing was

unnecessary. In concluding that the plaintiffs were

entitled to summary judgment, the Second Circuit explained that it was sufficient that “there [was] at least

some burden on the voter-plaintiffs’ rights” that made

it “difficult to vote in person.” Id. at 109 & n.9; see also

Walgren I, 482 F.2d at 99 n.9 (rejecting argument that

students could not bring Fourteenth Amendment

claim because “absentee ballots are made available to

voters as a privilege”).

The Tennessee Supreme Court, too, has held that

reliance on McDonald to short-circuit challenges to

absentee voting restrictions is “misplaced.” Fisher v.

23

Hargett, 604 S.W.3d 381, 401 (Tenn. 2020). “Characterizing absentee voting by mail as a ‘privilege’ begs

the question of whether, under some circumstances,

limitations on this lawful method of voting can

amount to a burden on the right to vote itself. The answer to that question must be yes.” Ibid.

As indicated above, the Fifth Circuit’s approach

to McDonald has been all over the map. In TDP I, that

court concluded that McDonald effectively precluded

both Fourteenth Amendment claims and TwentySixth Amendment claims based on absentee voting restrictions—although one judge ultimately would have

resolved that issue on alternative grounds, and a third

would not have reached the merits at all. After argument on the merits, the Fifth Circuit abrogated that

holding, explaining in TDP II that McDonald should

not be read so broadly. See supra pp. 9-12.

More recently, the Fifth Circuit has used conflicting analyses. One month after TDP II, a different

Fifth Circuit panel called “persuasive” the argument

that restrictions on absentee voting options “do[] not

implicate the right to vote at all.” Tex. League of

United Latin Am. Citizens v. Hughs, 978 F.3d 136, 144

n.6 (5th Cir. 2020). Citing that decision, the Texas Supreme Court then signaled that it is inclined to agree

that restrictions on absentee voting “may well” not implicate the right to vote. Abbott v. Anti-Defamation

League Austin, Sw., & Texoma Regions, 610 S.W.3d

911, 919 n.9 (Tex. 2020) (per curiam).

II. The decision below is wrong on the merits

The Seventh Circuit’s interpretation does more

than add to growing divisions in the lower courts. It

also is contrary to the text, history, and purpose of the

voting amendments and to this Court’s precedent.

24

A. The decision misconstrues the TwentySixth Amendment

The Seventh Circuit’s decision ignores the

Twenty-Sixth Amendment’s plain language. By its

terms, that Amendment prohibits both the denial and

abridgment of the right to vote. Unlike “denial,” the

concept of “abridgment” “necessarily entails a comparison.” Bossier Parish, 528 U.S. at 333-334; see also id.

at 359 (Souter, J., concurring in part) (“[A]bridgment

necessarily means something more subtle and less

drastic than the complete denial of the right to cast a

ballot, denial being separately forbidden.”); TDP II,

978 F.3d at 193 (“The Twenty-Sixth Amendment prohibits age-based denials but also abridgments of the

right to vote.”). The Amendment’s guarantees thus extend beyond restrictions that completely prohibit voters from casting a ballot based on age.

As this Court held in 1965, an amendment which

“expressly guarantees that the right to vote shall not

be ‘denied or abridged’ * * * ‘nullifies sophisticated as

well as simple-minded modes’ of impairing the right

guaranteed.” Harman v. Forssenius, 380 U.S. 528,

540-541 (1965). The voting amendments sweep

broadly, “securing freedom from discrimination” not

just in casting a ballot but in all “matters affecting the

franchise.” Lane v. Wilson, 307 U.S. 268, 274 (1939)

(emphasis added).

The rights of minority voters would undeniably be

“abridged” if a state gave all white voters an entitlement to vote absentee by mail while requiring other

voters to provide a non-race-based excuse. Cf. Brown

v. Post, 279 F. Supp. 60, 63-64 (W.D. La. 1968) (holding that defendants violated Voting Rights Act’s prohibition of denial or abridgement of right to vote by

25

“making absentee ballots available” to white citizens

on different terms than black citizens). And it is no

answer that the Fourteenth Amendment might also

address such discrimination, for that would make the

Fifteenth Amendment—which specifically addresses

voting rights—superfluous.

The Seventh Circuit’s decision also is contrary to

the Twenty-Sixth Amendment’s history and purpose,

which reflect “an increasing pressure for broader access to the ballot.” Lubin v. Panish, 415 U.S. 709, 713

(1974); see also Eric S. Fish, The Twenty-Sixth

Amendment Enforcement Power, 121 Yale L.J. 1168,

1201-1202 (2012).

First, the decision in Mitchell, which prompted

Congress to enact the Twenty-Sixth Amendment, did

not just address age limits for voting. In addition to

striking down Title III of the Voting Rights Act of 1970

to the extent it sought to lower the voting age to 18 in

state and local elections, Mitchell also addressed—

and upheld—provisions in Title II of the same Act,

which created “uniform national rules for absentee

voting in presidential and vice-presidential elections”

to “insure a fully effective voice to all citizens in national elections.” 400 U.S. at 134 (Black, J.); id. at 236

(Brennan, J., concurring in part); see also TDP II, 978

F.3d at 187 (discussing absentee voting provisions of

1970 statute).

In amending the Voting Rights Act to add absentee voting provisions, Congress specifically found that

“the lack of sufficient opportunities for absentee registration and absentee balloting in presidential elections * * * denies or abridges the inherent constitutional right of citizens to vote for their President and

Vice President.” Pub. L. No. 91-285, 84 Stat. 314, 316

26

(1970) (codified at 52 U.S.C. § 10502(a)(1)). There is

no indication that, in constitutionalizing an age-neutrality principle in response to Mitchell, Congress intended to sever the link between the right to vote and

absentee voting it had recognized one year earlier.9

Second, the Senate Report accompanying the

Amendment recognized that requiring young voters to

use different procedures than older voters could directly implicate the interests the Amendment sought

to protect. Symm, 445 F. Supp. at 1254 (citing S. Rep.

No. 92-26 (1971)), aff’d, 439 U.S. 1105 (1979).

In sum, the history of the Twenty-Sixth Amendment “clearly evidences the purpose not only of extending the voting right to younger voters but also of

encouraging their participation by the elimination of

all unnecessary burdens and barriers.” Worden v.

Mercer Cnty. Bd. of Elections, 294 A.2d 233, 237 (N.J.

1972) (emphasis added). The conclusion that burdens

and barriers do not matter so long as younger voters

are not “absolutely prohibited” from casting a ballot

(Pet. App. 6a-8a) is incompatible with this purpose.

B. The decision misconstrues McDonald

The Seventh Circuit’s decision also misapplies the

Court’s decision in McDonald. Properly read, that

9 Senator Barry Goldwater, who introduced what would become

Section 202 of the Voting Rights Act of 1970 in the Senate, connected his absentee voting proposal with the goal of ensuring

that all Americans 18 years or older could participate fully in the

franchise regardless of age. His amendment sought to “spell[] out

the right of all citizens . . . to register absentee and to vote by

absentee ballot for President and Vice President,” and one “important facet” of this change was that “once the voting age is reduced to 18, the benefits of my amendment will be immediately

available to all our young Americans who are attending college

away from their homes.” 116 Cong. Rec. 6877, 6990 (1970).

27

case does not foreclose either petitioners’ Fourteenth

Amendment or Twenty-Sixth Amendment claim.

To begin, the Seventh Circuit’s reading of McDonald as validating state laws that do not entirely abrogate the right to vote departs from this Court’s instruction that election challenges are not subject to a

“litmus-paper test.” Anderson, 460 U.S. at 789. What

matters for purposes of the Fourteenth Amendment is

not the kind of election law at issue, but the burden

the law has on voting and the state interests offered

to support that restriction. Ibid.

McDonald is especially inapposite here because

the challenged regulations did have an “impact” (394

U.S. at 807) on the exercise of petitioners’ and other

Indiana citizens’ right to vote. Indiana’s refusal to permit no-excuse mail-in voting in the general election

forced voters to choose between risking their health

and potentially their lives or the lives of their loved

ones, and giving up their right to cast a ballot. For

these voters, there were no alternatives that would

adequately address their legitimate safety concerns.

No pretrial detainee in McDonald could make such a

showing.

In any event, whatever its implication for the

Fourteenth Amendment, McDonald certainly does not

foreclose petitioners’ challenge under the TwentySixth Amendment. McDonald did not concern abridgment. The opinion focused only on whether the challenged law “den[ied] appellants the exercise of the

franchise” (394 U.S. at 807-808) and did not mention

the Fifteenth, Nineteenth, or Twenty-Fourth Amendments—let alone the Twenty-Sixth, which was not

adopted until two years after McDonald was decided.

28

Since McDonald, this Court has rejected the suggestion that compliance with the Fourteenth Amendment “somehow excuses compliance” with the Fifteenth Amendment’s “race neutrality command”; the

Constitution’s voting amendments have “independent

meaning and force.” Rice, 528 U.S. at 522; see also

United States v. James Daniel Good Real Property,

510 U.S. 43, 49 (1993) (“We have rejected the view

that the applicability of one constitutional amendment preempts the guarantees of another.”). It is “difficult to believe” that the Twenty-Sixth Amendment

“contributes no added protection to that already offered by the Fourteenth Amendment.” Walgren II, 519

F.2d at 1367. It thus makes no sense to cabin the

Twenty-Sixth Amendment’s specific age-neutrality

command by importing general Fourteenth Amendment principles from McDonald.

Finally, McDonald itself acknowledged that absentee-ballot rules drawn on the basis of “suspect”

classifications “demand a more exacting judicial scrutiny.” 394 U.S. at 807. Age is not ordinarily a suspect

classification for purposes of general Fourteenth

Amendment analysis. For purposes of voting, however, age is treated analogously in the Constitution to

classifications like race or sex. See Walgren I, 482 F.2d

at 102 (the voting amendments “would seem to have

made the specially protected groups, at least for voting-related purposes, akin to a ‘suspect class’”). Accordingly, McDonald fully supports some form of

heightened scrutiny for voting laws that, like Indiana’s, discriminate on account of age.

29

III. This case presents an ideal vehicle to resolve

the important questions presented

1. This Court’s review is urgently needed because

absentee voting laws are likely to become more salient, not less, in the near future. In the wake of the

November 2020 election, legislators in at least nine

states have introduced bills to restrict mail-in voting,

either by eliminating “no-excuse” mail voting or narrowing the range of allowable “excuses.” BRENNAN

CENTER FOR JUSTICE, Voting Laws Roundup: February 2021 (Feb. 8, 2021), https://bit.ly/37sAuNp. The

number of election reform bills “vastly exceed[s] the

number of voting bills introduced by roughly this time

last year.” Ibid.

These proposals, if enacted into law, may result in

large numbers of voters losing their right to vote by

mail—including losing that right on account of their

age. A Georgia Senate subcommittee, for example, recently advanced a bill that would end at-will absentee

mail-in voting in the state and make the procedure

available only to those 75 years or older, with a doctor’s note, or who will be out of town on election day.

See Stanley Dunlap, GPB, Ga. Senate Panel Advances

Bill To End No-Excuse Absentee Voting, Require ID

(Feb. 17, 2021), https://bit.ly/37qPsDw.

Additional litigation in response to these types of

restrictions will be a virtual certainty. But it remains

completely unclear what constitutional standards

would apply.

It is far better that the Court address the questions presented now than in the midst of an election

season. Prompt resolution of these issues will give

much-needed guidance to legislators, election officials, and voters before states have passed legislation

30

or begun to implement new rules and regulations.

Whatever one’s view of the pros and cons of absentee

voting, it is essential that the governing rules be

clearly determined and uniformly applied in advance

of the next election cycle.

This Court has “repeatedly emphasized” concern

with “alter[ing] election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l

Comm., 140 S. Ct. 1205, 1207 (2020) (citing Purcell v.

Gonzalez, 549 U.S. 1 (2006) (per curiam)). No such

concerns are present here. Indiana’s next federal election is not scheduled until May 2022.

2. While this case arises from the denial of a preliminary injunction, that is no impediment to this

Court’s review. “[T]he interlocutory status of [a] case

may be no impediment to certiorari where the opinion

of the court below has decided an important issue, otherwise worthy of review, and Supreme Court intervention may serve to hasten or finally resolve the litigation.” Steven M. Shapiro et al., SUPREME COURT PRACTICE § 4.18 (11th ed. 2019).10

At this juncture, the outcome of petitioners’

Twenty-Sixth Amendment claim turns entirely on

pure questions of law, and if petitioners’ Fourteenth

Amendment claim is subject only to rational-basis review, as a practical matter there is nothing left to lit-

10 See, e.g., Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833

(2018) (reviewing the reversal and remand of the district court’s

injunction decision); cf. Frisby v. Schultz, 487 U.S. 474, 479

(1988) (“Because the question presented is of substantial importance, and because further proceedings below would not likely

aid our consideration of it, we choose to avoid the finality issue

simply by granting certiorari.”).

31

igate in the courts below. The Seventh Circuit has essentially said as much, stating that in that court’s

mind Tully and other recent cases “do not leave room

for ongoing debate” about challenges to absentee voting laws. Common Cause Indiana v. Lawson, 977 F.3d

663, 666 (7th Cir. 2020). Remanding so the district

court can enter a final judgment and the Seventh Circuit can reiterate its conclusions will merely waste judicial resources and delay resolution of the questions

presented. It will do nothing to facilitate this Court’s

review.

3. Finally, petitioners’ claims remain live after

the 2020 election.

Petitioners’ Twenty-Sixth Amendment claim is

not moot because it is based on a facial age-based classification that remains on the books. Indeed, the state

legislature recently rejected a proposed expansion of

mail-in voting to all Indiana voters. See Dan Carden,

NORTHWEST INDIANA TIMES, Indiana House rejects call

for no-excuse mail-in voting (Feb. 4, 2021),

https://bit.ly/3bcRCb5. Likewise, although “we may

hope that by next spring the pandemic will no longer

affect daily life,” that outcome “is uncertain.” Republican Party of Pa. v. Degraffenreid, 2021 WL 666401,

at *6 (U.S. Feb. 22, 2021) (Alito, J., dissenting from

denial of certiorari). It unfortunately is possible that

petitioners’ Fourteenth Amendment claim will recur

in 2022. See Storer v. Brown, 415 U.S. 724, 737 n.8

(1974) (“The ‘capable of repetition, yet evading review’

doctrine, in the context of election cases, is appropriate when there are ‘as applied’ challenges as well as

in the more typical case involving only facial attacks.”).

32

Not only are the claims not moot, but establishing

the constitutional limits on age-based absentee voting

restrictions will “simplify[] future challenges” and “increas[e] the likelihood that timely filed cases can be

adjudicated before [the next] election is held.” Storer,

415 U.S. at 737 n.8. Accordingly, there is no reason for

the Court to delay its review of these issues.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

JED W. GLICKSTEIN

GARY A. ISAAC

MICHAEL A. SCODRO

BRETT E. LEGNER

JEFFREY M. STRAUSS

Mayer Brown LLP

71 South Wacker Dr.

Chicago, IL 60606

(312) 782-0600

WILLIAM R. GROTH

Vlink Law Firm LLC

445 N. Pennsylvania St.

Suite 425

Indianapolis, IN 46204

(317) 353-9363

ANDREW J. PINCUS

Counsel of Record

CHARLES A. ROTHFELD

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

MARK W. SNIDERMAN

Findling Park Conyers

Woody & Sniderman, PC

151 N. Delaware Street,

Ste. 1520

Indianapolis, IN 46204

(317) 953-2292

Counsel for Petitioners

MARCH 2021