Tag Archives: absentee ballots

Why Judges Matter

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Here in Indiana, in recognition of the pandemic, the state’s Election Commission authorized mail-in voting without excuse for the recent primary election. Thus far, they are refusing to allow no-excuse voting by mail in November.

Hey, we’re a Red state, and–in defiance of available data that says neither party benefits from voting by mail–the GOP is convinced that making it easier to vote will help the Democrats. (Besides–as I pointed out recently–mail-in ballots make it impossible to play the minority-vote-suppressing games Republicans have long played in this state.)

Given this official intransigence, several individuals and Indiana Vote By Mail have filed suit in federal court, asserting that the denial violates the constitutional rights of voters, and asking that the judge order the Election Commission and Secretary of State to authorize no-excuse mail ballots.

The complaint notes that these officials “have failed to take necessary actions to protect Indiana voters” and that as a result, many voters will have to make a choice between their personal safety and health, and exercising their right to vote. They want the court to rule that they can cast an absentee ballot “in precisely the same manner in which these same election officials have allowed in the June 2 primary election.”

The pleading points out that a majority of Hoosiers are vulnerable to COVID-19, that the disease is potentially fatal, and that it is readily spread from person to person. They offer medical testimony to the effect that it is “highly likely” to be with us in November, and that  minimizing the risk requires people to “spend the shortest amount of time in the best ventilated, least contaminated environment, where the fewest number of people are generating the fewest virus particles.”

The pleadings identify a variety of ways in which the refusal to allow absentee voting under these circumstances violates the constitution–especially Equal Protection–and cite dozens of cases in support of that argument. (Interestingly, they also cite the 26th Amendment, which prohibits abridging the right to vote due to age. Data suggests that refusal to allow no-excuse absentee voting disproportionately harms the elderly.)

It’s been quite awhile since I was a practicing lawyer, but as I read the pleadings, the plaintiffs make a strong–even conclusive– case. And here’s the “teachable moment,” as we in academic life like to say:

  • The right to vote is one of the most important rights Americans (presumably) enjoy. Every other right ultimately depends upon the conduct of fair elections in which the voice of the people–all of the people–is reflected and honored.
  • When government officials representing the executive or legislative branches act in ways that threaten American liberties–not just our right to cast ballots, but the other rights guaranteed by the Constitution–the courts are our only redress  short of violence. If the judiciary is corrupted, we’re up that creek without a paddle.

For the past three and a half years, Mitch McConnell and the GOP have been intent on corrupting the federal judiciary, confirming ideologues and partisans to lifetime positions, despite the fact that many of them aren’t qualified to be on the bench and have demonstrated no commitment to the rule of law.

Politically, arguments about the importance of the judiciary have tended to be about reproductive rights, but overturning Roe v. Wade is just a minuscule part of the damage that can be done when the courts can’t be counted on to restrain nakedly partisan infringements of the Constitution.