COMMON CAUSE INDIANA et al v. MARION COUNTY ELECTION BOARD et al

Filing 92

ORDER - denying 89 Motion to Alter or Amend Judgment *** SEE ORDER ***. Signed by Judge Sarah Evans Barker on 8/9/2018. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
COMMON CAUSE INDIANA, et al.

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)
Plaintiffs,
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v.
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MARION COUNTY ELECTION BOARD, et )
al.
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Defendants.
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No. 1:17-cv-01388-SEB-TAB

ORDER DENYING STATE OF INDIANA’S MOTION TO ALTER OR AMEND
JUDGMENT (DKT. 89)
In this voting rights case, Plaintiffs sought and obtained a preliminary injunction
requiring Defendants to establish two satellite offices for early in-person voting for the
November 2018 general election in Marion County, Indiana. Common Cause Ind. v.
Marion Cty. Election Bd., 311 F. Supp. 3d 949 (S.D. Ind. 2018) (Barker, J.). On July 3,
2018, the parties submitted a proposed consent decree requiring Defendants to establish
five satellite offices for the 2018 general election, and for each primary and general
election thereafter, two and five satellite offices, respectively. Dkt. 85. We approved and
entered the consent decree on July 10, 2018. Dkt. 86.
On its motion, Dkt. 26, we previously granted the State of Indiana (“the State”)
limited intervention rights to “(1) attend and observe [a] September 26, 2017 settlement
conference; (2) challenge in a fairness hearing before us any settlement agreement
reached between Plaintiff[s] and [Defendants] on the grounds that it is allegedly contrary
to the public interest or violative of state statute(s); and (3) if any such settlement is
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approved, seek permission to appeal that decision.” Dkt. 40, at 1–2. No fairness hearing
was necessary and therefore none was conducted. The State has now filed a motion to
alter or amend the judgment under Federal Rule of Civil Procedure 59(e), seeking vacatur
of the consent decree. Dkt. 89. The State argues that the consent decree is contrary both
to state law as well as the public interest.
Neither objection has merit. As to the first, the State argues that Indiana Code § 311-10-26.5, requiring a county election board’s unanimous decision to establish satellite
offices for early in-person voting, has been impermissibly overridden by the consent
decree, allowing a majority of Defendant Election Board’s members to contract their way
out from under the requirements of state law by means of an agreed injunction in federal
court. Contra Perkins v. City of Chicago Heights, 47 F.3d 212, 217 (7th Cir. 1995);
Evans v. City of Chicago, 10 F.3d 474, 480 (7th Cir. 1993) (en banc); People Who Care
v. Bd. of Educ., 961 F.2d 1335, 1339 (7th Cir. 1992); Kasper v. Bd. of Election Comm’rs,
814 F.2d 332, 342 (7th Cir. 1987).
The State is incorrect. The consent decree was tendered jointly by all parties, that
is, by all Plaintiffs and all Defendants, who are the Election Board “and its three
members in their official capacities.” Dkt. 85, at 2. See Lawyer v. U.S. Dep’t of Justice,
521 U.S. 567, 572, 574 (1997). If this were not enough (though it is), Defendants have
responded in opposition to the State’s motion by showing the “additional steps”
Defendants have taken in unanimous support of the consent decree, Dkt. 91, at 2,
including unanimous official ratification of the consent decree by Defendant Election
Board. Id. at 3. And even if all this were not true (though it is), the consent decree was
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necessary to remedy a probable violation of federal law for the reasons laid out in our
order on Plaintiffs’ preliminary injunction motion. The Supremacy Clause of the
Constitution requires no more here. Perkins, 47 F.3d at 217; Kasper, 814 F.2d at 342.
As its second objection, the State argues in conclusory fashion that “it is not in the
public interest for a federal court to enter, enforce, and monitor a consent decree that
dictates the operation of state-run elections.” Dkt. 89, at 6. That is not a cogent objection
to the consent decree; it is the expression of a preference by the Attorney General for
federal noninterference in voting rights cases generally. The State’s lawyers may
entertain what preferences they will, but violations of federal rights justify the imposition
of federal remedies. If conditions change such that the remedies agreed to and ordered in
this case are no longer justified, the consent decree may be modified or vacated.
The State also argues that the public interest is “jeopardized by the removal of
[Defendant Election Board’s] minority leverage in the political process.” Id. The State’s
meaning is not pellucid. But to the extent the State wishes to protect the interests of “both
political parties,” “bipartisan support,” and “the ability [of all members of the Election
Board] to be heard” with respect to early in-person voting at satellite offices, id., the
consent decree is the product of precisely that, as we have explained.

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Order
For the reasons explained above, we DENY the State’s motion to alter or amend
the judgment.
IT IS SO ORDERED.

Date:

8/9/2018

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Daniel Bowman
FILLENWARTH DENNERLINE GROTH & TOWE LLP
[e-mail]
Anthony Scott Chinn
FAEGRE BAKER DANIELS LLP (Indianapolis)
[e-mail]
Bryan Findley
INDIANA ATTORNEY GENERAL
[e-mail]
Jefferson S. Garn
INDIANA ATTORNEY GENERAL
[e-mail]
William R. Groth
FILLENWARTH DENNERLINE GROTH & TOWE LLP
[e-mail]
Vilda Samuel Laurin, III
BOSE MCKINNEY & EVANS, LLP (Indianapolis)
[e-mail]

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Andrew J. Mallon
OFFICE OF CORPORATION COUNSEL
[e-mail]
Tyler John Moorhead
BOSE MCKINNEY & EVANS LLP
[e-mail]
Donald Eugene Morgan
OFFICE OF CORPORATION COUNSEL
[e-mail]
Aleksandrina Penkova Pratt
INDIANA ATTORNEY GENERAL
[e-mail]
Daniel E. Pulliam
FAEGRE BAKER DANIELS LLP (Indianapolis)
[e-mail]
Anne Kramer Ricchiuto
FAEGRE BAKER DANIELS LLP (Indianapolis)
[e-mail]
Kelly Suzanne Thompson
INDIANA ATTORNEY GENERAL
[e-mail]

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