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A Jenner & Block team filed an amicus brief asking the US Supreme Court to grant certiorari in Tully v. Okeson, a case over the State of Indiana’s vote-by-mail rules. Indiana permits all voters 65 years or older to vote absentee by mail on account of their age, while requiring voters age 18 to 64 to give some other excuse to do so. In March 2020, in light of the COVID-19 pandemic, Indiana announced that it would make mail-in voting available to all voters without excuse, but only for the state’s June 2020 primary. Indiana refused to make similar accommodations for the general election in November.
In April 2020, several Indiana voters and an organizational plaintiff filed suit, challenging Indiana’s vote-by-mail rules under the Twenty-Sixth Amendment, the Fourteenth Amendment, and a parallel state constitutional provision. The district court denied the plaintiffs’ motion for a preliminary injunction in late August, and on October 6, the Seventh Circuit denied the plaintiffs’ appeal, and the plaintiffs petitioned the US Supreme Court.
The amicus brief is on behalf of professors of law and history who have written and published on the meaning of the Twenty-Sixth Amendment. According to the brief, the Court has never interpreted the Twenty-Sixth Amendment and, without its guidance, lower courts have interpreted the amendment in divergent and often incorrect ways. “Read in light of its text and history, however, the Twenty-Sixth Amendment provides robust protection to all adults against even subtle forms of age discrimination in voting,”the brief argues.