Twenty-Sixth Amendment-Voting Rights

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7^th Circuit Court of Appeals

Case Name: Barbara Tully v. Paul Okeson

Case No.: 22-2835

Officials: Ripple, Scudder, and Lee, Circuit Judges.

Focus: Twenty-Sixth Amendment-Voting Rights

Indiana law allows “elderly” voters—those sixty-five or older—to vote by mail. Indiana voters who are younger than sixty-five must fall within one of twelve other categories in order to vote by mail. Because of the COVID-19 pandemic, the Indiana Election Commission extended absentee-voting privileges to all registered Indiana voters for the June 2020 primary but did not renew that order for the November 2020 general election

Indiana voters who were allowed to vote absentee in the primary, but who do not otherwise qualify for absentee voting, unsuccessfully sought a preliminary injunction requiring Indiana to permit unlimited absentee voting, citing the Twenty-Sixth Amendment and the Equal Protection Clause. Weeks before the 2020 general election, the Seventh Circuit (Tully I) affirmed, finding that the plaintiffs had not made a strong showing of likelihood of success on the merits in light of Supreme Court precedent holding that the right to vote does not include a claimed right to receive absentee ballots.

Returning to the district court, the plaintiffs abandoned their Fourteenth Amendment claim. The court concluded that Tully I constituted controlling authority. The Seventh Circuit affirmed on different grounds. Given the circumstances under which Tully I was issued, that decision does not constitute the law of the case and is not binding. Considering the merits anew, the court held that Indiana’s granting the opportunity to vote by mail to elderly voters does not abridge the right to vote of those under 65 and does not violate the Twenty-Sixth Amendment.

Affirmed.

Decided 08/15/23

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