Class Action Claims Indiana Polling Hours Amendments Place Significant, Unconstitutional Burden on Voters

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A proposed class action lawsuit aims to challenge amendments to Indiana’s election code that an advocacy group alleges has placed a “severe and unconstitutional burden” on voters, particularly in light of the challenges posed by the COVID-19 pandemic.

Filed by Common Cause Indiana, a group that advocates in favor of ethics, good government, constitutional law, and the elimination of voting barriers, the 33-page complaint centers on Public Law 278-2019, an election code amendment the plaintiff says has stripped voters of standing to petition state courts to extend voting hours at polling places where voters face barriers to cast their ballots. Additionally, Public Law 278-2019 placed significant limitations on the ability of state courts to extend polling place hours at locations hampered by “long lines, ballot shortages, equipment malfunctions, or other conditions” that interfere with Indiana residents’ fundamental right to vote, the lawsuit says.

According to the case, shutting the courthouse doors to voters and implementing a cumbersome, multi-step process to extend polling place hours significantly burdens Indiana voters, particularly in counties with five-member, rather than three-member, election boards. Per the case, the “Standing Amendment” under Public Law 278-2019 provides only county election boards, i.e. the officials tasked with administering elections, standing to request an extension on polling place hours from a state court. The complaint says a county election board may only petition a state court if it decides to do so unanimously, a roadblock the plaintiff argues gives disenfranchised voters no option at all to seek redress from their county election board.

Another shortcoming of the Standing Amendment, the lawsuit says, is its failure to explain how polling place hours can be extended in the event a county election board’s unanimous approval cannot be obtained for logistical reasons or due to “political or other improper influence.” The restrictions set by the amendment to extend polling place hours unconstitutionally require disenfranchised voters to jump through hoops possibly too large and too varied to clear, according to the case. 

“Instead, in order to extend polling-place hours, the standing Amendment requires disenfranchised voters to run the gauntlet of contacting and convincing their entire county election boards to agree unanimously to seek such a court order, retain counsel, file a petition, and obtain a ruling before the 6:00 p.m. poll closing time,” the complaint reads. 

In the same vein, the second prong of Public Law 278-2019, referred to in the suit as the Remedies Amendment, is also unconstitutionally burdensome on Indiana voters in that even if a county election board unanimously requests an extension on polling place hours, a court is permitted to grant such relief only if a polling location is closed during normal polling hours. Essentially, the Remedies Amendment precludes a court from extending polling hours should a polling location be hampered by “other disenfranchising conditions,” such as malfunctioning equipment, insufficient ballots or extra-long wait times, the lawsuit says, noting that such problems afflicted Indiana polling sites during the November 2018 general election.

Stressed in the complaint is that voting barriers “are not borne equally” given they historically disparately impact polling places in communities of color. The lawsuit says a combination of factors ranging from wealth to transportation to employment to education, among others, means voters of color are less likely to be able to overcome delays stemming from longer wait times at polling places.

By granting the governmental entity responsible for administering elections with the sole authority to seek an extension of polling place hours in state court, Indiana’s election law amendments deprive residents of their constitutional right to procedural due process, the lawsuit alleges. Moreover, the Standing Amendment ultimately cedes the regulation of polling place hours to county election boards who may have “a self-interest in avoiding the political and reputational impact associated with acknowledging problems with their administration of an election,” the plaintiff charges, summarizing that voters are left with no mechanism by which to prolong voting hours. 

Broader still, the lawsuit claims Indiana’s polling hours amendments violate the Supremacy Clause of the U.S. Constitution, which forbids the elimination of jurisdiction for lawsuits brought against state government employees and others acting “under color of state law” for civil rights violations, especially where the result would immunize would-be defendants from litigation in state court. From the complaint:

“The Standing Amendment violates this principle by stripping Indiana courts of authority to consider voters’ claims against state and county election officials under Section 1983 when such claims specifically seek prospective injunctive relief in the form of an extension of polling place hours. Likewise, the Remedies Amendment contravenes the Supremacy Clause by withdrawing from state courts the authority otherwise available under Section 1983 to extend polling-place hours where voters face disenfranchising conditions other than the physical closure of their polling place.”

The suit aims for the Standing and Remedies Amendments of Indiana’s election code to be declared unconstitutional and enjoined statewide before they infringe on citizens’ right to vote during the November 3, 2020 general election, for which early in-person voting will begin on October 6. Common Cause Indiana argues additional urgency is necessary given the myriad problems plaguing in-person voting due to the COVID-19 pandemic.

“As a result of the continuing threat posed by the COVID-19 pandemic, it is highly likely that polling place closures, delays, and other issues that are likely to necessitate extensions of polling-place hours in Indiana will recur in the November 3, 2020 General Election,” the lawsuit says.

Named as defendants in the lawsuit are, in their official capacities, Indiana Secretary of State Connie Lawson, four members of Indiana’s Election Commission, the co-directors of the Indiana Election Division, and four other election officials and representatives of the state’s county election boards.

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