Common Cause IN v. Marion Co. Election Board

Since the mid-1980s Indiana law has permitted voters to cast a no-excuse, early in-person (EIP) absentee ballot at the office of the circuit court clerk as an alternative to voting absentee by mail. Absentee voting is limited to voters who are 65 or older or are willing to certify their inability to vote on Election Day falls within one of the statutorily prescribed reasons. Early in-person absentee voting begins on the 28^th day prior to and ends at noon on the day before Election Day. Counties must also allow this voting for at least seven hours on each of the two Saturdays preceding Election Day.

In 2001, the Indiana Legislature authorized county election boards to allow early absentee voting at “satellite offices,” or locations other than the clerk’s office. However, the law required that such a resolution could be adopted only by a unanimous vote of the election board’s bipartisan membership. Thus, a single representative of an election board’s three members could effectively veto such a resolution without giving a reason, as the law contained no criteria for election board members to use in approving or disapproving such a resolution.

Until 2010, Marion County as well as most other urban counties in Indiana routinely approved establishing satellite voting offices. For example, in 2008 the Marion County Election Board (MCEB) unanimously approved a resolution to establish two satellite offices for Marion County voters, one at North Central High School and the other at the Perry Township Government Center. These satellite sites proved to be hugely popular with voters. Over 73,000 voters, or 19.3 percent of all Indianapolis voters, cast an early in-person absentee ballot in the 2008 general election.

In 2008, and for the first time since 1964, the Democratic candidate for president, Barack Obama, carried the state. Beginning in 2010 and in every subsequent federal election through and including 2016, Republican appointees to the MCEB consistently withheld their support for satellite voting offices. Early in-person absentee voting dropped to 39,000 voters in 2012 (10.8 percent of the total number of ballots cast) and to 47,000 in 2016 (12.7 percent of the total votes cast).

Election boards in Republican-friendly counties adjacent to Democratic-leaning Marion County continued to enact resolutions establishing satellite voting locations. Hamilton County in 2016, with 231,000 registered voters, approved two satellite offices, a ratio of one early voting site for every 77,000 voters. By contrast, Marion County had nearly 700,000 registered voters in 2016, all of whom were limited to casting an EIP absentee ballot at the clerk’s office in the City-County Building. For many voters, this involved a long drive and paying $5-$10 to park, as adequate free parking near the City-County Building was unavailable.

On May 2, 2017, Common Cause Indiana (CCI), the state and local branches of the NAACP, and two Marion County registered voters filed suit in federal court alleging that the MCEB’s continued rejection of satellite voting locations violated Marion County voters’ rights to equal protection under the federal constitution. CCI moved for a preliminary injunction, asking federal Southern District Judge Sarah Evans Barker to order the MCEB to restore at least the two satellite locations for the 2018 general election that had been approved for the 2008 elections.

On April 25, 2018, the Court granted CCI’s motion, citing the reasons for denial of satellite locations as insufficient to justify the disparate impact of the election board’s decision. In response to the Court’s preliminary injunction, on July 10, 2018, the Court approved a consent decree ordering the elections board establish at least five (5) satellite offices for the 2018 general election. The board made this plan permanent in December 2018. By state law, the plan cannot be amended except by a unanimous vote of the bipartisan membership of the board.

The impact of the Court’s orders on the 2018 general election turnout is clear in retrospect. For example, at the Washington Township satellite site, nearly 12,000 voters cast in-person absentee ballots in the 10 days that the site was open. Similar turnout numbers were registered at the Lawrence Township satellite site. Both raw turnout and absentee voting, both in real numbers and as a percentage of voter participation, increased dramatically over the previous off-year election. Total turnout surged from just below 25 percent in 2014 to 48 percent in 2018, with the percentage of in-person absentee voters jumping from 9 percent in 2014 to 24 percent in 2018.