TULLY et al v. OKESON et al

Filing 6

AMENDED COMPLAINT for Declaratory and Injunctive Relief, against All Defendants, filed by All Plaintiffs.(Sniderman, Mark)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BARBARA TULLY, KATHARINE BLACK,
MARC BLACK, SHELLY BROWN, DAVID CARTER,
REBECCA GAINES, JANICE JOHNSON,
ELIZABETH KMIECIAK, CHAQUITTA MCCLEARY,
KATHERINE PAOLACCI, DAVID SLIVKA,
DOMINIC TUMMINELLO, and
INDIANA VOTE BY MAIL, INC., individually,
and on behalf of those similarly situated,
Plaintiffs,
-vsPAUL OKESON, S. ANTHONY LONG,
SUZANNAH WILSON OVERHOLT, and
ZACHARY E. KLUTZ, in their official
capacity as members of the Indiana
Election Commission, and
CONNIE LAWSON, in her official
capacity as the Indiana Secretary of State,
Defendants.

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Case No. 1:20-cv-01271-JPH-DLP

AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
Come now Plaintiffs, by counsel, pursuant to Federal Rule of Civil Procedure 15(a)(1), and
for their Amended Complaint for declaratory and injunctive relief against Defendants, state as
follows:
INTRODUCTION
1.

This is an action for declaratory and injunctive relief against Indiana election officials

who have failed to take necessary actions to protect Indiana voters against having to make a choice
between their personal safety and exercising their right to vote on Election Day, November 3, 2020.
2.

The citizens of Indiana are in the midst of the worst pandemic in modern history.

Because of a novel coronavirus, and the disease it causes known as COVID-19, federal, state, county

and city officials have ordered various limitations statewide, the central feature of which is to limit
contact between persons, commonly known as "social distancing."
3.

Public health officials warn that government-ordered “social distancing” will probably

be in effect for a number of weeks and possibly months and, even after such order is lifted in Indiana,
life in the public square will need to be conducted cautiously; with additional restrictions and
loosening likely to be re-imposed at additional intervals, until an effective vaccine is discovered and
is broadly available and distributed. Experts estimate this timeframe to be between twelve (12) to
eighteen (18) months before an effective vaccine will be ready for public use.
https://www.webmd.com/lung/covid-19-vaccine#1 (last visited April 27, 2020).
4.

On April 21, 2020, the director of the Centers for Disease Control and Prevention

warned that a second wave of the novel coronavirus this fall will be even more lethal than the one that
is currently ravaging the nation. This wave that may coincide with the November 3, 2020 general
election. https://www.washingtonpost.com/health/2020/04/21/coronavirus-secondwave-cdcdirector/
(last visited April 27, 2020).
5.

On April 22, 2020, Anthony S. Fauci, M.D., an immunologist who is head of the

National Institute of Allergy and Infectious Diseases, stated with even greater certainty that “[w]e will
have coronavirus in the fall. I am convinced because of the degree of transmissibility that it has, the
global nature. What happens with that will depend on how we’re able to contain it when it occurs.”
https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthony-fauci-says-i-amconvinced-second-wave/3009131001/ (emphasis added) (last visited April 27, 2020).
6.

On April 23, 2020, Dr. Michael T. Osterholm, Director of the Center for Infectious

Disease, Research, and Policy at the University of Minnesota, predicted that the Coronavirus will still
be spreading well into 2021 and will not stop until 60-70% of people have been infected. In his
words, we are currently in the “second inning of a nine-inning game.”
2

https://www.cnn.com/2020/04/21/opinions/bergen-osterholm-interview-two-opinion/index.html (last
visited April 27, 2020).
7.

The individual Plaintiffs seek to vote safely in the November 2020 general election;

and to do so by casting an absentee ballot, by mail, in precisely the same manner in which they are
allowed to vote in the June 2020 primary election. The Indiana law that allows other voters to vote by
mail, but denies the same privilege to Plaintiffs, arbitrarily discriminates between categories of
qualified voters, denies Plaintiffs any reasonable alternative means of voting that does not endanger
their own or others' health, safety, and lives; and violates the Equal Protection clause of the
Fourteenth Amendment to the United States Constitution, the Twenty-Sixth Amendment to the
United States Constitution, and the Equal Privileges and Immunities Clause of the Indiana
Constitution.
JURISDICTION, VENUE & CAUSE OF ACTION
8.

This Court has subject matter jurisdiction of the federal questions presented herein

pursuant to 28 U.S.C. §§ 1331 (federal question jurisdiction), 1343 (civil rights cases), 2201 and 2202
(declaratory relief).
9.

Venue is appropriate in this Court because Defendants have their principal offices in

Indianapolis and "reside" in this District. 28 U.S.C. § 1391(b)(1).
10.

Plaintiffs set forth claims under the Fourteenth and Twenty-Sixth Amendments to the

United States Constitution, pursuant to 42 U.S.C. § 1983, and under state law. Declaratory relief is
authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
PARTIES
11.

Plaintiff Barbara Tully is a resident of Marion County, State of Indiana, and will be

under 65 years of age on November 3, 2020. She objects to being forced to choose between her health
and her right to vote. She is severely limiting her exposure to anyone else, and has reduced her
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activities outside of her home. She does not want to be forced into close proximity to other people in
order to vote in the November 2020 general election. She has worked as a poll inspector over the past
several years but will not be doing so this year specifically because of the danger posed by COVID19.
12.

Plaintiff Katharine Black is a resident of Marion County, State of Indiana, and will be

under 65 years of age on November 3, 2020. Her husband has a compromised immune system and
she cannot risk exposing him to COVID-19. She therefore needs to vote by absentee ballot in the
November 2020 General Election.
13.

Plaintiff Marc Black is a resident of Marion County, State of Indiana, and will be

under 65 years of age on November 3, 2020. He has a compromised immune system and cannot risk
exposing himself to others in order vote in the November 2020 General Election. He therefore needs
to vote by absentee ballot in the November 2020 General Election.
14.

Plaintiff Shelly Brown is a resident of Hamilton County, State of Indiana, and will be

under 65 years of age on November 3, 2020. She wants to vote by mail in the November 3, 2020
election. She is fearful of voting in person because of the risk of being infected by COVID-19 and
then infecting her husband, who is 71 years-old, and a cancer survivor as well as a former smoker.
She therefore needs to vote by mail in the November 3, 2020, general election.
15.

Plaintiff David Carter is a resident of Marion County, State of Indiana, and will be

under 65 years of age on November 3, 2020. Mr. Carter is concerned that it is impossible for inperson voters and poll workers to stay safe and maintain social distancing during the 2020 November
elections. According to science and history, he believes COVID-19 will likely surge again this
fall. For these reasons, he desires to vote by mail in the November 3, 2020 general election.

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16.

Plaintiff Rebecca Gaines is a resident of Marion County, State of Indiana, and will be

under 65 years of age on November 3, 2020. She was exposed to COVID-19 at her job and became
extremely sick. She does not want to have to go to the polls and be exposed again to COVID-19, and
thus desires to cast an absentee ballot in the November 3, 2020 general election.
17.

Plaintiff Janice Johnson is a resident of Marion County, State of Indiana, and will be

under 65 years of age on November 3, 2020. She believes COVID-19 poses an unmitigated safety and
health threat to every voter and poll worker participating in the November 2020 election; and has a
fear for her personal health and safety if she has no alternative to in-person voting in the November 3,
2020 general election.
18.

Plaintiff Elizabeth Kmieciak is a resident of St. Joseph County, State of Indiana, and

will be under 65 years of age on November 3, 2020. She usually works at the polls on election day,
but is unwilling to do so this year due to the threat of COVID-19. Because of her concern for her
health and safety, she wishes to vote by absentee ballot in the November 3, 2020, general election.
19.

Plaintiff Chaquitta McCleary is a resident of Marion County, State of Indiana, and will

be under 65 years of age on November 3, 2020. She is healthy, but her daughter has significant
asthmatic issues, and she is concerned that if she is forced to vote in person she may contract the virus
and potentially expose her daughter. She thus desires to vote by mail in the November 3, 2020 general
election so she may vote without risking her health and that of her daughter.
20.

Plaintiff Katherine Paolacci is a resident of Marion County, State of Indiana, and will

be under 65 years of age on November 3, 2020. She believes it is imperative that contact in large
groups be limited as much as possible until the pandemic is no longer a massive threat. She works an
unpredictable schedule at a public institution, where she encounters people who are members of atrisk populations. Limiting her presence in large groups is important to her welfare, and that of those

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with whom she works. Accordingly, she wishes to vote by mail in the November 3, 2020 general
election.
21.

Plaintiff David Slivka is a resident of Marion County, State of Indiana, and will be

under 65 years of age on November 3, 2020. He is a respiratory therapist, and thus knows the
importance of social distancing because COVID-19 can be transferred through a cough or sneeze, or
just by breathing within six feet of another person. At a vote center or polling place it would be
difficult, if not impossible, for him (or anyone) to maintain proper social distancing. To ensure that no
one gets sick or dies from this serious disease, Mr. Slivka believes that he, and everyone, should have
the option of voting by mail in the November 3, 2020 general election. Mr. Slivka would not feel safe
voting in person.
22.

Plaintiff Dominic Tumminello is a resident of Marion County, State of Indiana, and

will be under 65 years of age on November 3, 2020. He is concerned about having to choose to vote
or risk his health and the health of his family. He does not have underlying health conditions, but his
parents (both 84 years-old) and mother-in-law (91 years-old) are at high risk if they contract COVID19. He believes citizens should not have to risk their life or the lives of their family members in order
to exercise their right to vote, and he thus desires to vote by mail in the November 3, 2020 general
election.
23.

Each and every individual plaintiff is eligible and qualified to vote in the November 3,

2020, general election in the State of Indiana.
24.

None of the individual plaintiffs currently anticipates satisfying any of the statutory

criteria of Indiana Code § 3-11-10-24(a)(1), (2), or (5) - (13), which would entitle them to vote by
mail.
25.

Plaintiff Indiana Vote By Mail, Inc. ("Indiana VBM”), is a non-profit corporation

organized under the laws of the State of Indiana. One of its purposes and missions is to expand the
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right to vote by mail to all who prefer to vote by mail rather than in person, particularly during this
national and state-wide public health emergency caused by the coronavirus.
26.

Indiana VBM has organizational standing on its own behalf and associational standing

on behalf of its members who are under the age of 65 and who are not otherwise entitled to vote by
mail by virtue of Indiana law. The interests VBM seeks to protect are germane to its purpose, and the
relief sought is declaratory and injunctive.
27.

Defendants Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary

E. Klutz, are members of the IEC, which is charged with administering Indiana election laws. Ind.
Code § 3-6-4.1-14 (a)(1). This includes the responsibility to adopt rules to "[g]overn the fair, legal,
and orderly conduct of elections." Id. It also includes the power to adopt, by unanimous vote of its
entire membership, temporary emergency rules "to implement a court order requiring [it]...to
administer an election in a manner not authorized by this title," id. at -16, or in cases of a "natural
disaster or other emergency." Id. at -17 (a). Each has acted or will continue to act under color of state
law. Each is sued in his or her official capacity only.
28.

Defendant Connie Lawson is the Indiana Secretary of State and in that capacity is the

chief election official of the State, whose primary office is in this judicial district. Ind. Code § 3-63.7-1. She is responsible for enforcing and implementing Indiana's election laws and her office
routinely issues guidance to county election officials in each of Indiana's 92 counties on matters
involving election administration. She is sued in her official capacity only.
FACTS
29.

The Coronavirus is a highly-infectious virus that makes it extremely dangerous for

people to gather in public, particularly in larger groups in confined spaces. As with other respiratory
pathogens, the transmission is believed to occur through respiratory droplets from coughing and
sneezing. Aerosol transmission is also possible in case of protracted exposure to elevated aerosol
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concentrations in closed spaces. Epidemiologists believe that individuals who remain asymptomatic
can transmit the virus. The data suggests that the use of isolation is the best way to contain this
pandemic, because no one is believed to be immune to the virus (until, possibly, they have been
infected, and their immune systems have generated antibodies). Essentially, the entire population is at
risk of contracting the disease.
30.

Some experts also believe that as many as 88% of carriers of the disease may be

asymptomatic, which frustrates efforts at detection and isolation.
https://www.washingtonpost.com/outlook/2020/04/20/we-tested-all-our-patients-covid-19-found-lotsasymptomatic-cases/ (last visited April 27, 2020).
31.

The virus in serious cases causes respiratory failure, septic shock, and/or multiple

organ dysfunction or failure. The disease it causes, COVID-19, has already killed over 67,682
Americans, including more than 1,132 Hoosiers, and infected more than 19,933 Hoosiers.
https://coronavirus.jhu.edu/data/mortality (last visited May 4, 2020); and
https://www.coronavirus.in.gov (last visited May 4, 2020).
32.

Approximately 65.0% of infected Hoosiers, or over 12,956 people, are under 60 years

of age. https://www.coronavirus.in.gov (last visited May 4, 2020.)
33.

The foregoing numbers of deaths and infections are expected to continue to increase in

the coming weeks and months. https://coronavirus.jhu.edu/data/cumulative-cases (last visited April
27, 2020)
34.

On March 6, 2020, in response to the Coronavirus pandemic, Indiana Governor Eric

Holcomb signed Executive Order (EO) 2020-02, declaring a public health disaster emergency to
prevent the spread of the virus. Ten (10) days later, on March 16, Gov. Holcomb signed EO 2020-04,
which among other things, banned public gatherings of more than fifty (50) persons.

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35.

On March 20, Gov. Holcomb signed EO 2020-07 postponing the Indiana primary

election for four weeks, from May 5 to June 2. On March 23, Gov. Holcomb issued EO 2020-08
which banned public gatherings of more than ten (10) persons and ordered the shutdown of many
businesses deemed non-essential. And on April 3, Gov. Holcomb signed EO 2020-17, renewing the
declaration of a public health disaster emergency for an additional 30 days until May 5, 2020.
36.

According to medical and scientific experts, the expected outcome of the various

measures ordered by levels of government, if effective, will be to “flatten the curve.” Aggressive
social distancing efforts won’t stop the virus but is intended to slow the spread to keep it from
overwhelming health-care resources so fewer people would require hospital beds and ventilators at
the same time. https://www.washingtonpost.com/nation/2020/04/01/lockdown-coronavirus-californiadata/ (last visited April 28, 2020).
37.

South Korea, widely praised for its response to the pandemic, upon releasing its

citizens from social distancing orders, experienced new emerging cases that have required reimposition of those measures. Other Asian and European nations have had similar experiences.
38.

Most of the world, the nation, and the State of Indiana, can expect wave after wave of

new infections until there is an effective treatment, a vaccine and/or greater than approximately 60%
of the population survive the epidemic, thus creating a measure of “herd immunity.” For these
reasons, along with the lack of adequate testing in Indiana, it is currently impossible to know for how
long extreme social distancing measures will be necessary.
https://www.forbes.com/sites/brucelee/2020/03/26/how-long-should-social-distancing-last-when-willcovid-19-coronavirus-end/#65c2eb40429a (last visited April 17, 2020).
39.

With no vaccine or proven effective specific treatment for this virus available yet,

keeping people physically separated by closing schools, restaurants, sporting and cultural venues, and

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workplaces, and having people stay at home to limit social contact, are the most effective measures to
slow the spread of the virus.
40.

These pandemic conditions will have a significant impact upon the upcoming elections

in Indiana in 2020, as voters and poll workers will be anxious about appearing at a public polling
location to vote in person because of fear they may contract the virus.
41.

Because of the national and Indiana-declared health emergencies, Defendant members

of the Indiana Election Commission ("IEC"), using their emergency powers granted by Indiana law,
have already taken the unprecedented measure of postponing Indiana's primary election from May 5
to June 2, 2020. IEC Orders 2020-37 and 40.1
42.

Indiana law entitles some but not all registered voters to vote by mail. In that regard,

Ind. Code § 3-11-10-24(a) describes thirteen (13) categories of voters who are "entitled" to vote by
mail.
43.

One of those categories is a "voter with disabilities." Id. at (a)(4). Another is a voter

confined on election day to their residence "because of an illness or injury..." Id. at (a)(3). Those
statutes do not define what constitutes "confined on election day to the voter's residence because of an
illness or injury," or "voter with disabilities."
44.

On March 25, 2020, the IEC members suspended statutory restrictions on voting by

mail. They accomplished this by ruling that the words "voter with disabilities" in Ind. Code § 3-1110-24(a)(4) shall be construed to include any "voter who is unable to complete their ballot because
they are temporarily unable to physically touch or be in safe proximity to another person." IEC Order
2020-37, Section 9A.

1

https://www.in.gov/sos/elections/files/Indiana%20Election%20Commission%20Order%20202037.pdf and https://www.in.gov/sos/elections/files/Order%202020-40%20signed.pdf, last visited April
20, 2020.
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45.

The IEC has not approved an order that would apply the foregoing definition to voters

who vote in the November 3, 2020, general election; and the IEC's willingness to suspend restrictions
on mail voting is highly uncertain, particularly in light of Secretary Lawson's April 16, 2020 letter to
the U.S. Election Assistance Commission in which she requests $8 million for personal protective
equipment and sanitation supplies for in-person early and in-person Election Day voting on
November 3 and her declaration that Indiana is “not a vote by mail state” even though Indiana has
used mail absentee voting for decades.
https://www.eac.gov/sites/default/files/paymentgrants/cares/IN_CARES_Disbursement_RequestLette
r.pdf (last visited April 27, 2020).
46.

Without an order from the IEC suspending the statutory restrictions on voting by mail,

most, if not all, county election boards will be unwilling to provide absentee ballots to voters who are
under 65 years of age and who do not fall within one of the categories of voters statutorily entitled to
vote by mail, and who are not themselves physically ill from the coronavirus and confined to their
residence.
47.

It is reasonable to expect that COVID-19 will continue to be in circulation without a

vaccine or effective treatment through the elections of 2020 and beyond.
48.

It is reasonable to expect that some forms of social distancing will continue, especially

with regards to large public gatherings as occur at polling places on a presidential election day.
49.

Even if there is an easing of social distancing, there will continue to be a public and

personal health risk attendant to large gatherings such as voting at polling places, because many
persons, especially those with compromised immune systems or pre-existing underlying health issues,
will remain susceptible to becoming infected.

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50.

Events surrounding Wisconsin's April 7, 2020, primary election provided a clear

example of the disarray, confusion, danger, and disenfranchisement that is likely to result when an inperson election is held during a pandemic. Wisconsin state health officials have already identified as
many as 40 people who appeared to have contracted the virus through activities relating to the April 7
election. https://talkingpointsmemo.com/news/wisconsin-covid-40-election (last visited April 27,
2020); https://www.wuwm.com/post/40-coronavirus-cases-milwaukee-county-linked-wisconsinelection-health-official-says#stream/0 (last visited April 27, 2020).
51.

On April 6, 2020, the United States Supreme Court issued an opinion that permitted

the April 7, 2020, Wisconsin primary to proceed based on the narrow question presented to it.
However, the Court also pointedly emphasized that it was not "expressing an opinion on the broader
question of... whether other reforms or modifications in election procedures in light of COVID–19 are
appropriate.” Republican National Committee v. Democratic National Committee (Docket 19A1016),
589 U.S. ___ (2020) https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf.
52.

It is critically important that election officials begin immediately to prepare for the

November 3, 2020 general election where more ballots are cast in-person and turnout is expected to
be extremely high.
53.

Because of the fundamental nature of the right to vote, it is also critically important

that the judicial branch intervene where appropriate when the political system fails to act in a manner
consistent with protecting citizens' right to vote, the most precious right in a democracy.
54.

On April 16, 2020, during a press conference, both Defendant Lawson and Gov. Eric

Holcomb rejected allegations by President Donald Trump that voting by mail is ripe for fraud. "We've
long been voting by mail. I have a high level of confidence in the integrity of our election process,"
Holcomb said. "We'll have a safe and secure election." https://www.nwitimes.com/news/local/govt-

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and-politics/indiana-primary-election-to-feature-mail-in-and-in-person-voting/article_fce4d801-a81e567a-8f75-46cf7db1fd28.html (last visited April 27, 2020).
55.

Until IEC Orders 2020-37 and -40, no Indiana court or administrative agency had

issued an opinion or order construing a "voter with disabilities" as used in I. C. § 3-11-10-24(a)(4) to
include all voters who are physically unable to be in close proximity to another person. No Indiana
court or administrative agency has ever construed the term "illness" as used in I.C § 3-11-10-24(a)(3)
to include an asymptomatic individual who fears contracting the virus and COVID-19 by venturing
into a crowded public space with others such as a public polling place.
56.

Pursuant to Ind. Code § 3-6-4.1-17 (b), emergency orders issued by the IEC expire not

later than thirty (30) days after the order is issued. Consequently, those orders must be renewed one
more time prior to the June 2 primary election. Even if the IEC chooses to renew those emergency
orders, there is no similar order in place or currently being contemplated for the November 3, 2020
general election.
57.

Pursuant to Ind. Code § 3-11-4-3(a) and (c), applications for an absentee ballot for the

November 3, 2020, general election may be submitted now and "not later than noon, twelve (12) days
before the election." Id. at (a)(4). Twelve days before the November 3, 2020 election is October 22,
2020.
58.

Absent a definitive judicial ruling, different county election boards may adopt

potentially conflicting interpretations of who is a "voter with disabilities,” or who is confined to a
voter's home on election day "because of an illness,” and who is thus entitled to vote by mail.
59.

Moreover, most county clerks will likely not provide a voter who submits an

application for an absentee ballot for the November 3, 2020 general election, but does not indicate on
the application that the voter is entitled to vote by mail because he or she falls within one of the
categories of voters set forth in Ind. Code § 3-11-10-24(a).
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Class action allegations
60.

This case is appropriate for resolution with a Plaintiff class of Indiana voters because

the prosecution of separate actions by or against individual members of the class would create a risk
of: inconsistent or varying adjudications with respect to individual members of the class which would
establish incompatible standards of conduct for the party opposing the class; or, adjudications with
respect to individual members of the class, that, as a practical matter, would be dispositive of the
interests of the other members not parties to the individual adjudications or would substantially
impair or impede their ability to protect their interests; or the parties opposing the class have refused
to act on grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.
61.

The class of plaintiffs is so numerous that joinder of all members is impracticable.

62.

Questions of law or fact common to the members of the class predominate over any

questions affecting only individual members, and a class action is superior to other available methods
for the fair and efficient adjudication of the controversy.
63.

Plaintiffs’ claims are typical of the claims of the class.

64.

Plaintiffs will fairly and adequately protect the interests of the class.
LEGAL CLAIMS
Count I
Violation of the 14th Amendment
Brought Pursuant to 42 U.S.C. § 1983, against all Defendants

65.

Plaintiffs incorporate by reference the allegations of paragraphs 1-64.

66.

The right to vote is one of the most fundamental of all the rights conferred on citizens

by the United States Constitution. "No right is more precious in a free country than that of having a
voice in the election of those who make the laws under which, as good citizens, we must live. Other

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rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376
U.S. 1, 17 (1964); Segovia v. United States, 880 F.3d 384, 390 (7th Cir. 2018) ("the right to vote 'is a
fundamental matter in a free and democratic society.'") (quoting Reynolds v. Sims, 377 U.S. 533, 56162 (1964)).
67.

The fundamental right to vote implicitly includes the right to equally participate in a

trustworthy process that does not require a citizen to choose between endangering his or her health or
safety and exercising the franchise.
68.

Voting by mail in Indiana has been permitted for several decades and has always been,

and remains, a safe, reliable, honest, and secure method of participating in the electoral system and
exercising one's right to vote.
69.

Absentee voting by mail without excuse is allowed in 34 states and the District of

Columbia; and in the State of Indiana for the June 2, 2020 primary election. Sixteen (16) states
impose prerequisite conditions for mail voting, but nearly half of those states already have made clear
that COVID-19 provides a valid excuse, at least during 2020 primary elections.
https://www.brennancenter.org/our-work/research-reports/covid-19-should-be-legitimate-excusevote-mail (last visited April 27, 2020).
70.

Ind. Code § 3-11-10-24(a) entitles some but not all voters to vote by mail, including

but not limited to a voter who has a specific and reasonable expectation to be out of the county on
election day, is serving as an election worker in a precinct on election day, will be confined on
election day due to illness or injury, is a voter with disabilities, is "elderly," is caring for a person
confined to a private residence, is engaged in a religious observation on election day, is a public
safety officer or member of the military, lacks transportation to the polls, or is a serious sex offender.
Id. at (a) (1)-(13).

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71.

By entitling certain classes of voters to submit an absentee ballot by mail in the 2020

general election, but denying that same privilege to Plaintiffs and other similarly situated voters, I. C.
§ 3-11-10-24(a), as applied during the pandemic, violates the Equal Protection Clause of the
Fourteenth Amendment.
72.

Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and other

similarly situated voters in such a manner to prohibit and/or exclude Plaintiffs and those similarly
situated from voting by mail in the 2020 general election, arbitrarily discriminates between categories
of qualified voters.
73.

Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and other

similarly situated voters, denies them any reasonable alternative means of voting that does not
endanger their own or others' health, safety, and lives.
74.

Ind. Code § 3-11-10-24(a), as applied during the pandemic to Plaintiffs and the class

of similarly situated qualified voters they represent, denies to them and all other persons who are
practicing social distancing the same privileges already extended to voters age 65 and over and to the
other classifications of voters expressly permitted by Indiana law to vote by mail.
75.

Accordingly, Ind. Code § 3-11-10-24(a), as applied during the pandemic, constitutes a

significant and non-trivial burden on Plaintiffs' fundamental right to vote.
76.

These burdens on Plaintiffs' right to vote are no less than the burdens imposed on

voters already entitled by I.C. § 3-11-10-24(a) to vote by mail.
77.

Pursuant to Burdick v. Takushi, 504 U.S. 428, 439 (1992), and Crawford v. Marion

County Election Board, 553 U.S. 181, 203 (2008), this Court must consider the "precise interests"
advanced by the challenged election statute, which allows other voters, but not the Plaintiffs and those
similarly situated, to vote by mail. This involves determining the legitimacy and strength of the

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State's asserted interests that are served by the challenged statute, as well as "the extent to which those
interests make it necessary to burden Plaintiffs' rights." Burdick, 504 U.S. at 434.
78.

The individual Plaintiffs and organizational Plaintiff’s members are harmed because,

absent this Court's intervention to permit them to vote by mail, all face a substantial and grave risk to
their health, and the health of their loved ones, by exercising their right to vote.
79.

At all times relevant to this action, Defendants have acted or failed to act under color

of state law, and are persons within the meaning of 42 U.S.C. § 1983.
80.

Any governmental interest served by denying Plaintiffs and other voters similarly

situated the right to vote by mail is outweighed by the burdens placed on Plaintiffs' right to vote
during the pandemic.
81.

Granting a privilege to those voters who fall within one of the 13 categories set forth in

I.C. § 3-11-10-24(a) but not to other voters such as Plaintiffs, for whom voting in person is equally
difficult or impossible due to the pandemic, is sufficient disparate treatment of voters so as to warrant
judicial extension of the privilege to vote by mail to all voters during the pandemic, rather than
withdrawing the benefits of casting a vote by mail from the already-entitled categories of voters.
Heckler v. Mathews, 465 U.S. 728, 740 (1984); Califano v. Westcott, 443 U.S. 76, 89 (1979).
82.

Absent this Court issuing a preliminary injunction, Plaintiffs will suffer irreparable

harm; any remedies at law would provide no or inadequate relief; Plaintiffs have a reasonable
likelihood of success on the merits; the balance of harms favors the Plaintiffs; and the public interest
would be served by the issuance of preliminary injunctive relief Plaintiffs seek.
Count II
Violation of the 26th Amendment
Brought Pursuant to 42 U.S.C. § 1983, against all Defendants
83.

Plaintiffs incorporate by reference the allegations of paragraphs 1-82.

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84.

In Indiana an "elderly voter" is "entitled to vote by mail." Ind. Code § 3-11-10-

24(a)(5).
85.

"Elderly" is defined in the Indiana Election Code as a voter "who is at least sixty-five

(65) years of age." I.C. § 3-5-2-16.5.
86.

Voters under 65, however, are denied the entitlement to vote by mail unless they have

a specific, reasonable expectation of being absent from the county on election day during the entire
twelve hours that the polls are open, id. at (a)(1); will be absent because the voter is working in
certain official capacities at the polls, (a)(2); will be confined to the voter's residence or health care
facility due to illness or injury during the entire time the polls are open, (a)(3); is a voter with
disabilities, (a)(4); is prevented from voting due to caring for an individual confined to private
residence due to illness or injury during the entire time the polls are open, (a)(6); is scheduled to work
at the voter's regular place of employment during the entire time the polls are open, (a)(7); is
prevented from voting due to religious observation, (a)(9); is a participant in an address
confidentiality program, (a)(1); is in the military or a public safety officer, (a)(11); is a serious sex
offender, (a)(12); or is prevented from voting due to the unavailability of transportation to the polls,
(a)(13).
87.

As a result of these limited categories of voters entitled to vote by mail, the vast

majority of Indiana voters ages 18-64 are prohibited from voting by mail, for no other reason than
they have not yet reached their 65th birthday.
88.

Though Indiana has waived the age limit for the June 2 primary, it has not done so with respect

to the November 3 general election.

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89.

The Twenty-Sixth Amendment to the U.S. Constitution prohibits a state from denying

or abridging the right to vote of citizens who are eighteen years of age or older, "on account of age".
See U.S. CONST., amend. XXVI, § 1 (“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 any State on account of age”).
90.

The Twenty-Sixth Amendment guarantees younger, qualified voters a substantive

right to participate equally with other qualified voters in the electoral process and broadly protects
against both blatant and subtle forms of discrimination. See, e.g., Colo. Project-Common Cause v.
Anderson, 495 P.2d 220, 223 (Colo. 1972) (holding based on “[h]istory and reason” that the TwentySixth Amendment’s “prohibition against denying the right to vote to anyone eighteen
years or older by reason of age applied to the entire process involving the exercise of the ballot
and its concomitants”).
91.

State laws that have the purpose, at least in part, of denying or abridging the right to

vote on account of age are unconstitutional. League of Women Voters v. Detzner, 314 F.Supp.3d
1205, 1222–23 (N.D. Fla. 2018) (holding plaintiffs were substantially likely to succeed on merits of
Twenty-Sixth Amendment claim in challenge to restrictive state guidance “unexplainable on grounds
other than age”).
92.

Ind. Code § 3-11-10-24(a), which prohibits the majority of Indiana voters from voting

by mail on account of their age, while allowing those sixty-five or older to do so, on its face violates
the text of the Twenty-Sixth Amendment.
93.

Having opted to make mail-in voting an entitlement for certain voters in Indiana, the

State may not constitutionally choose to deny or abridge access to the franchise to voters for no other
reason than the fact that they are not yet 65 years old and do not fit within one of the narrow
categories of younger voters who are entitled to vote by mail.

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94.

While Ind. Code § 3-11-10-24(a) would be unconstitutional under any set of

circumstances because it denies voters ages 18-64 the same voting rights as those ages 65 and older,
its application is particularly burdensome in light of the ongoing pandemic, as by denying Plaintiffs
and the class they purport to represent an entitlement to vote by mail, Ind. Code § 3-11-10-24(a) will
force millions of younger voters in the November 3, 2020 general election into the untenable position
of choosing whether to forego their most fundamental right or having no choice but to vote in person,
at what are likely to be understaffed and overcrowded polling locations.
Count III
Violation of the Indiana Constitution
Brought Pursuant to State Law against all Defendants
95.

Plaintiffs incorporate by reference the allegations of paragraphs 1-94.

96.

The Equal Privileges and Immunities Clause of the Indiana Constitution, prohibits the

granting "to any citizen, or class of citizens, privileges or immunities, which, upon the same terms,
shall not equally belong to all citizens." Art. 1, § 23. The Indiana Constitution also requires that all
elections in Indiana be "free and equal." Art. 2, § 1.
97.

There are no inherent differences between Plaintiffs and those voters already

statutorily entitled to vote by mail by I.C. § 3-11-10-24(a), as the pandemic makes voting for each
equally difficult or impossible. Neither is this disparate treatment reasonably related to any
distinguishing characteristics among those entitled to vote by mail and those, such as Plaintiffs, who
are not.
98.

The preferential treatment accorded to those already entitled to vote by mail is not

equally available to all voters such as Plaintiffs and other similarly situated Hoosier voters who wish
to maintain social distancing for as long as the virus is continuing to be transmitted, and absent an
effective vaccine or treatment.

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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
(a) enter an order declaring that as applied during the pandemic, Ind. Code § 3-11-10-24(a):
insofar as it grants to some voters, but not to Plaintiffs and the class they purport to represent, the
right to vote by mail in the November 3, 2020, violates the Equal Protection Clause of the Fourteenth
Amendment, and the Equal Privileges and Immunities Clause of the Indiana Constitution;
(b) enter an order declaring that Ind. Code § 3-11-10-24(a) on its face violates the TwentySixth Amendment, because it denies Indiana voters under the age of sixty-five the right to vote by
mail on account of their age, while allowing those sixty-five or older to do so;
(c) preliminarily enjoin Defendants to extend the privilege of voting by mail during the
pandemic to Plaintiffs and all Indiana voters in the November 3, 2020, general election;
(d) preliminarily enjoin Defendants to advise all county clerks in Indiana to permit no-excuse
absentee voting by mail in the November 3, 2020;
(e) award Plaintiffs their reasonable costs and attorneys' fees pursuant to 42 U.S.C. § 1988;
and
(f) grant Plaintiffs such other or further relief as may be warranted.
Respectfully submitted,
s/ William R. Groth
William R. Groth
MACEY SWANSON LLP
445 N. Pennsylvania St., Suite 401
Indianapolis, IN 46204
Tel: [phone], Ext. 132
E-mail: [e-mail]
s/ Mark W. Sniderman
Mark W. Sniderman
FINDLING PARK CONYERS
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WOODY & SNIDERMAN, P.C.
151 N. Delaware Street, Ste. 1520
Indianapolis, IN 46204
Tel: [phone]
[e-mail]

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