Big Changes to Indiana Election Law: Curing Ballots and Private Funds
October 18, 2021
By all accounts and in unique ways, the 2020 election in Indiana was unprecedented. Like other states, Indiana faced impressive challenges and unexpected changes as a result of the ongoing pandemic, from the first postponement of a previously scheduled primary in Indiana’s two-hundred year history to staggering increases in absentee voting. Indiana legislators relied on both the lessons and the disputes of 2020 to make big changes to Indiana election law.
In 2021, Indiana State Senator Greg Walker introduced Senate Bill 398 and, following approval from the state legislature, Governor Holcomb signed the bill into law in April of this year. This post will focus on two interesting changes to Indiana election law brought about by this bill: new procedures for notifying and curing absentee ballots rejected due to signature mismatching, and private grants to fund local elections.
In Frederick v. Lawson, 481 F. Supp. 3d 774 (2020), plaintiffs from South Bend, Indiana, disputed the state practice of rejecting mail-in ballots due to signature discrepancies. At that time, election officials were permitted to reject absentee ballots without any notice to the voter of their right to rectify the official rejection. During the 2018 election, the plaintiffs only learned of their ballot’s rejection in February 2019, long after the polls had closed, and the winner announced. In the lead up to the 2020 Election, the plaintiffs argued such practice violated the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Ultimately, the U.S. District Court for the Southern District of Indiana agreed, noting that “[t]he challenged statutes under review here fail to provide notice to the voter at any stage in the process or a meaningful opportunity to cure before a mail-in absentee ballot is rejected based on a perceived signature mismatch,” holding that the signature verification requirement was thus facially violative of the Fourteenth Amendment, and enjoining any future rejection of an Indiana absentee ballot absent sufficient notice.
The state did not appeal this decision, but to align Indiana election law with this holding, Senate Bill 398 established a process for notifying the voter and rectifying the ballot. Now codified at Ind. Code § 3-11.5-4-13.5, when election officials reject a ballot due to a signature mismatch, they must notify the voter by mail (and phone or email, if available) within two days of the determination. Further, the officials must treat the ballot as a provisional ballot that can be cured by an affidavit also outlined in the law. The voter can submit this affidavit and cure the ballot no later than noon eight days after Election Day. As a result of this change, Indiana joins 20 other states with a ballot curing process.
Other changes in Indiana law focus on issues of election funding. There was cause for funding alarm in the lead up to the 2020 Election, but its execution ended up being one of the most secure in history. Efficient and secure elections cost money, and last year, private money often filled the gap. Not anymore in Indiana…
Election managers in 2020 faced a perfect storm: huge turnout, unprecedented use of mail-in ballots, and staffing uncertainty. Old problems, such as budgetary constraints, took on a new urgency. But throughout the lead up to the election, federal financial assistance was lacking, despite convincing arguments in favor of increased spending. With few options in local or state budgets, election directors turned to private grants to make up the financial difference. One nonprofit, the Center for Tech and Civic Life, gave more than 2,500 jurisdictions millions in financial grants. The capacity to give out millions largely came from charitable donations, for example, Facebook CEO Mark Zuckerberg and his wife, Priscilla Chan, gave $350 million to the nonprofit.
These donations, derided as “Zuckerbucks,” received intense scrutiny by Republican lawmakers, some of whom claimed the donations were improperly favoring Democrat precincts. While a federal statute preventing these private grants has failed, state efforts, such as Indiana’s, have been more successful. Following Senator Walker’s bill, Indiana election law commands that a political subdivision “may not receive or expend funds received from a [private] person . . . .” Ind. Code § 3-5-3-1(d) prevents private grants from “preparing, administering, or conducting elections, including registering voters,” requiring such actions to only be funded either by state or federal money. Should another unforeseen disaster strike an election year, local election budgets in Indiana will be entirely dependent on the foresight of state and federal officials.
It is easy to identify the changes brought about by Indiana Senate Bill 398, but their impact is harder to estimate. Still, some takeaways are already present. First, commentators argue that ballots rejected on signature mismatching largely affect the most disadvantaged of society: young voters, old voters, disabled voters, and voters of color. Prompted by legal action or not, Indiana voters who fall into these categories are likely better served by the procedural notice and opportunity to rectify their vote. Next, public data of private grants to Indiana election officials show that very little financial assistance went to the state. As such, it seems this ban on private funding of elections is a solution in search of a problem, making it unclear if the future ramifications for Indiana will be what the drafters originally expected. In any event, the ramifications of these changes, and others in the bill, will likely influence Indiana elections for years to come.