United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2835 BARBARA TULLY, et al., Plaintiffs-Appellants, v. PAUL OKESON, et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:20-cv-01271 — James P. Hanlon, Judge. ____________________

ARGUED MAY 17, 2023 — DECIDED AUGUST 15, 2023 ____________________

Before RIPPLE, SCUDDER, and LEE, Circuit Judges. RIPPLE, Circuit Judge. Indiana law allows “elderly” vot- ers—those sixty-five or older—to vote by mail. Indiana voters who are younger than sixty-five must fall within one of twelve other categories in order to vote by mail. Because of the COVID-19 pandemic, the Indiana Election Commission extended absentee-voting privileges to all registered Indiana voters for the June 2020 primary but did not renew that order for the November 2020 general election. 2 No. 22-2835

The plaintiffs are Indiana voters who were allowed to vote absentee in the primary, but who do not otherwise qualify for absentee voting. They initially sought a preliminary injunc- tion requiring Indiana to permit unlimited absentee voting, claiming that the State’s failure to extend absentee voting to all eligible voters abridged the rights of younger voters in vi- olation of the Twenty-Sixth Amendment and also infringed their fundamental right to vote in violation of the Equal Pro- 1 tection Clause of the Fourteenth Amendment. The district court denied their request for a preliminary injunction. We heard the plaintiffs’ appeal less than six weeks before the 2020 general election, and after absentee voting already had begun. Mindful of the Supreme Court’s admonition “to exercise caution and restraint before upending state election regulations on the eve of an election,” we affirmed the denial of a preliminary injunction. Tully v. Okeson, 977 F.3d 608, 611– 12 (7th Cir. 2020) (“Tully I”) (citing Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)). Relevant to the present appeal, we concluded that the plaintiffs had not made a strong showing of likelihood of success on the merits in light of McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), which held that “‘the right to vote’ does not include Plaintiffs’ ‘claimed right to receive absentee ballots.’” Tully I, 977 F.3d at 613 (quoting McDonald, 394 U.S. at 807). Back in the district court, the plaintiffs abandoned their Fourteenth Amendment claim, and both parties moved for summary judgment. The district court concluded that Tully I established the law of the case, and that even if the law of the 1 The plaintiffs named the individual members of the Indiana Election Commission, as well as the Indiana Secretary of State, as defendants. No. 22-2835 3 case doctrine did not apply, our decision constituted control- ling authority. The plaintiffs again sought review. We now affirm the district court’s judgment, but on differ- ent grounds. Given the circumstances under which we issued Tully I, that decision does not constitute the law of the case; nor do we consider ourselves bound by its reasoning. Consid- ering the merits anew, however, we hold that Indiana’s grant- ing the opportunity to vote by mail to elderly voters does not abridge the right to vote of those under sixty-five. The provi- sion does not violate the Twenty- Sixth Amendment. I. BACKGROUND Indiana law allows thirteen categories of voters to vote by mail. Ind. Code