A federal judge ruled Tuesday that mail-in ballots postmarked by Election Day can be received and counted through Nov. 13, “if otherwise valid,” according to court records.
After initial review of the injunction, Lake and Porter county election officials had different reactions, but they made one thing clear: It is very unlikely that results will be known on Election Night.
U.S. Judge Sarah Evans Baker issued the preliminary injunction, which stops the state from enforcing the noon deadline on Nov. 3 for mail-in ballots to be considered, according to court records.
The lawsuit filed by Common Cause Indiana and the Indiana State Conference of the NAACP said about 1,500 ballots in Marion County and 400 in Hamilton County were rejected for this year’s primary election because they arrived after the noon deadline.
Baker, from the Southern District of Indiana, said the COVID-19 pandemic has increased the number of mail-in absentee ballots, and “the well-publicized delays in USPS mail delivery,” could lead to absentee ballots coming in after election day.
In the primary – when the state allowed no-excuse vote by mail – there was a “surge in mail-in absentee voting, coupled with delays and disruptions in USPS mail delivery,” which meant delays in delivery of ballots to voters and completed ballots to the county election offices, according to the court record.
“As a results of these delays, Indiana voters can be – and in fact have been – disenfranchised by the noon Election Day receipt deadline, despite complying with the deadline imposed by Indiana law for requesting absentee ballots and promptly completing and returning their ballots upon receipt,” Baker wrote. “This evidence suggests that the burden on thousands of Indiana voters who are at risk of being disenfranchised in the Nov. 3, 2020 general election based on factors largely outside their control is very substantial.”
After the counties have finalized their election results, which needs to be completed within two weeks of the election, county officials have until noon on the second Monday following Election Day, which is Nov. 16, 2020, this year, to prepare a final statement on vote totals, according to court records.
The Nov. 16 certification date falls one business day after the 10-day post-Election Day deadline to receive overseas ballots, according to court records.
Because mail-in absentee ballots and mail-in ballots from overseas voters go through the same process to be counted and certified, Baker wrote that counting ballots received through Nov. 13 won’t require counties to “create a process for doing so out of whole cloth; rather they need only expand procedures already employed to process and count provisional ballots and mail-in ballots cast by overseas voters during the 10 days following an election.”
The state argued, in part, that there are options for voters who don’t believe a mail-in absentee ballot will be received by Election Day – “the voter may obtain a certificate to that effect from the county election board and then vote in-person at the appropriate polling place” – and that there are many options to cast a ballot, like early voting, according to court records.
But, Baker wrote, the problem with that argument is that it requires people “to go in person to a polling place or to the county clerk’s office.”
“Appearing in person is an option not available to many absentee voters, who may be disabled, seriously ill, homebound, out of the state, or remaining sequestered at home to avoid COVID-19’s devastation,” Baker wrote.
Lake County Election and Voter Registration Board Director Michelle Fajman said, after an initial review, the injunction was “consistent” with what other states – like Wisconsin – are doing ahead of the general election in anticipation of a record number of mail-in ballots.
“I like the fact that all voters are treated the same,” Fajman said, adding that the county already counts and certifies mail-in ballots from overseas voters within that time frame.
But, the challenge will be figuring out the logistics of how to count the mail-in absentee ballots with the extended deadline, given that the county is estimating 50,000 absentee mail-in ballots in the general election, Fajman said.
Counters and members of the Lake County Election Board will have to be available to count and certify the ballots, Fajman said. The board will have to establish a system to count the votes in time, she said.
While the board will ultimately decide how to move forward, Fajman said it would be easier to count all absentee mail-in ballots together. With that in mind, Fajman said Wednesday she is considering beginning to count the absentee mail-in ballots on either Nov. 12 or Nov. 13 to finish by the Nov. 16 certification deadline.
“We definitely won’t have a complete vote total on election day, which we didn’t think we’d have anyway,” Fajman said.
Porter County Clerk Jessica Bailey said the office is waiting on more information from the Indiana Election Commission on how to move forward, specifically how the change will impact the certification date.
After posting information about how to vote in the general election with deadlines and steps, it feels like “we’re back tracking,” Bailey said.
Bailey said she is concerned that the changes in deadlines will confuse voters, especially if appeals are filed.
“It’s a very hectic election,” Bailey said. “If they decide to appeal it, we’ll have to change. We’ll have to wait and see.”
