INDIANA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al v. LAWSON et al

Filing 63

ORDER - granting Plaintiffs' 41 Motion for Preliminary Injunction. Because each of the factors for the issuance of a preliminary injunction weighs in favor of Plaintiffs, the Court GRANTS Plaintiffs' Motion for Preliminary Injunction (Filing No. 41). Pursuant to Federal Rule of Civil Procedure 65(d), the Court ISSUES A PRELIMINARY INJUNCTION prohibiting the Defendants from taking any actions to implement SEA 442 until this case has been finally resolved. A similar ruling is issued in related case Common Cause Indiana v. Lawson et al., 1:17-cv-3936-TWP-MPB. Plaintiffs need not post a bond. (See Order.) Signed by Judge Tanya Walton Pratt on 6/8/2018. (NAD)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
INDIANA STATE CONFERENCE OF THE
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE
(NAACP), and LEAGUE OF WOMEN
VOTERS OF INDIANA,
Plaintiffs,
v.
CONNIE LAWSON, in her official capacity as
Secretary of State of Indiana, J. BRADLEY
KING, in his official capacity as Co-Director of
the Indiana Election Division, and ANGELA
NUSSMEYER, in her official capacity as CoDirector of the Indiana Election Division,
Defendants.

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Case No. 1:17-cv-02897-TWP-MPB

ORDER GRANTING PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION
This matter is before the Court on a Motion for Preliminary Injunction filed pursuant to
Federal Rule of Civil Procedure 65 by Plaintiffs Indiana State Conference of the National
Association for the Advancement of Colored People (“NAACP”) and League of Women Voters
of Indiana (“League”) (collectively, “Plaintiffs”) (Filing No. 41). The Plaintiffs challenge the
legality of Indiana Senate Enrolled Act 442 (2017) (“SEA 442”), codified at Indiana Code § 3-738.2-5(d)–(e), which amends Indiana’s voter registration laws. The National Voter Registration
Act of 1993, 52 U.S.C. §§ 20507–20511 (“NVRA”), established procedural safeguards to protect
eligible voters against disenfranchisement and to direct states to maintain accurate voter
registration rolls. The NVRA placed specific requirements on the states to ensure that these goals
were met. The Plaintiffs argue that SEA 442 violates the NVRA by circumventing its procedural

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safeguards. The Plaintiffs seek preliminary injunctive relief to prohibit the Defendants from
implementing or enforcing SEA 442. For the following reasons, the Court grants the Plaintiffs’
Motion for Preliminary Injunction.
I.

BACKGROUND

The NVRA was enacted to reduce barriers to applying for voter registration, to increase
voter turnout, and to improve the accuracy of voter registration rolls. Under the NVRA, a voter’s
registration may be removed from the rolls if the voter requests to be removed, if they die, because
of a criminal conviction or mental incapacity, or because of a change in residency. The NVRA
provides, “In the administration of voter registration for elections for Federal office, each State
shall . . . conduct a general program that makes a reasonable effort to remove the names of
ineligible voters from the official lists of eligible voters.” 52 U.S.C. § 20507(a)(4).
The NVRA further provides, “[a]ny State program or activity to protect the integrity of the
electoral process by ensuring the maintenance of an accurate and current voter registration roll for
elections for Federal office . . . shall be uniform [and] nondiscriminatory.” 52 U.S.C. §
20507(b)(1). Furthermore, the NVRA directs,
A State shall not remove the name of a registrant from the official list of eligible
voters in elections for Federal office on the ground that the registrant has changed
residence unless the registrant(A) confirms in writing that the registrant has changed residence to a place
outside the registrar's jurisdiction in which the registrant is registered; or
(B) (i) has failed to respond to a notice described in paragraph (2); and
(ii) has not voted or appeared to vote (and, if necessary, correct the registrar's
record of the registrant's address) in an election during the period beginning on
the date of the notice and ending on the day after the date of the second general
election for Federal office that occurs after the date of the notice.

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52 U.S.C. § 20507(d)(1). Paragraph (2) describes that the notice must be “a postage prepaid and
pre-addressed return card, sent by forwardable mail, on which the registrant may state his or her
current address.” 52 U.S.C. § 20507(d)(2).
Thus, in the context of removing voter registrations because of a change in residency,
Section 20507(d)(1) requires either (1) the voter confirms in writing their change in residency, or
(2) notice was mailed to the voter who then did not return the notice card and did not vote during
the next two federal general elections.
Plaintiff NAACP is a nonpartisan, nonprofit organization that was chartered in 1940 (Filing
No. 44). It has approximately 5,000 members in Indiana. Id. It was founded with the purposes of
assisting African-American citizens to ensure political, educational, social, and economic equality
of rights for all persons and to fight against racial discrimination. Id. Since its founding, promoting
civic engagement has been vital to the NAACP’s mission. Id. The NAACP fulfills this mission
by registering voters, educating voters, monitoring the polls, and advocating for policies that
ensure the election system is accessible. Historically, both in Indiana and throughout the country,
voter registration and election practices have interfered with the ability of minority, low-income,
and other traditionally disenfranchised communities to participate in democracy. Voter registration
is central to the NAACP’s mission of empowering minority voters because of the barriers the
registration process has posed to participation for these communities. Id. They are also concerned
that using the Interstate Voter Registration Crosscheck Program (“Crosscheck”) as provided under
SEA 442 will disproportionately harm minority voters because African-Americans and other
minority groups are more likely to have common shared names, and therefore could be more likely
to be identified by the Crosscheck program. Id.

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The League of Women Voters of Indiana (“League”) is a nonpartisan, nonprofit
organization that was founded in 1920 (Filing No. 43). It is affiliated with the national League of
Women Voters. Since its inception, the main purpose of the League has been to encourage people
to vote (including by registering them to vote), keep them informed as voters, and also seek out
information from candidates and public officials to serve the electorate and the citizenry. Id. The
League conducts voter registration drives, encourages and assists individuals in voting, and
conducts other activities to boost civic engagement, which has been essential to its mission since
its founding. It considers voter registration drives to be critical in ensuring voters get on the rolls.
Id. The League has more than 1,300 members in Indiana. Id.
Defendant Connie Lawson (“Lawson”) is the Indiana Secretary of State, and in that
capacity she is the chief election official in the State of Indiana. She is charged with performing
all ministerial duties related to the state’s administration of elections. Ind. Code §§ 3-6-3.7-1, 36-4.2-2(a).
Defendants Bradley King (“King”) and Angela Nussmeyer (“Nussmeyer”) are co-directors
of the Indiana Election Division within the Secretary of State’s office, and in that capacity they
are jointly the “NVRA official” designated under Indiana law as responsible for the coordination
of Indiana’s responsibilities under the NVRA. Ind. Code § 3-7-11-1. These co-directors are
individually appointed by the Governor based on recommendations from Indiana’s Democratic
and Republican parties, respectively. Each co-director has a four-year term that coincides with the
term of the Indiana Secretary of State. Id. § 3-6-4.2-3.2. King and Nussmeyer thus are charged
with coordinating county voter registration. They are considered Indiana’s “NVRA officials”.
Ind. Code § 3-7-11-1.

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Each county in the State of Indiana has either a county election board or a county board of
registration. Ind. Code §§ 3-6-5-1, 3-6-5.2-3. Pursuant to the official policies, guidance, and
standard operating procedures issued by King and Nussmeyer as the co-directors, the individual
county boards conduct elections and administer election laws within their county. Ind. Code §§
3-6-5-14, 3-6-5.2-6. The county boards are responsible for maintaining the voter registration
records in their county by adding, updating, and removing voter registrations (Filing No. 42-21 at
12–15).
While the county boards are responsible for actually physically maintaining their voter
registration records, this list maintenance is dictated by the policies, procedures, and guidance
established by the election division co-directors and constrained by the election division’s business
rules governing the electronic statewide voter registration system (Filing No. 42-21 at 12–15).
King and Nussmeyer are responsible for building, managing, and maintaining the statewide voter
registration system, which includes creating the protocols within the system and issuing official
policies, guidance, and standard operating procedures to guide the county boards on their duties
under state and federal law. They also provide training to the county boards. Id.; Ind. Code § 36-4.2-14.

The official guidance from King and Nussmeyer as reflected in the protocols,

documents, and trainings are mandatory (Filing No. 42-21 at 82; Filing No. 42-23 at 21–22).
Regarding the electronic statewide voter registration system, King and Nussmeyer
establish the standard operating procedures and the business rules that determine how the system
operates. This includes dictating what information will be provided to county election officials to
help them maintain their individual county voter rolls, and it also dictates what actions the county
officials are able to take within the “online portal” of the statewide system (Filing No. 42-21 at 77,
110–11).

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King and Nussmeyer receive and respond to questions from county election officials
through telephone calls and emails. In advising county officials, King and Nussmeyer often
respond to the county’s inquiries independently and without consulting one another (Filing No.
42-21 at 20–21).

King and Nussmeyer do not always agree on the required policies and

procedures, including about voter registration and list maintenance, when they respond to inquiries
from the counties. Id. at 22–23. King and Nussmeyer ultimately relegate responsibility for NVRA
compliance to the counties by directing counties to use their best judgment in implementing the
instructions the co-directors provide. Id. at 12–13, 24; Filing No. 42-24 at 62–63.
Indiana participates in the Interstate Voter Registration Crosscheck program
(“Crosscheck”) as a method for identifying voters who may have become ineligible to vote in
Indiana because of a change in residence. Ind. Code § 3-7-38.2-5(d). Crosscheck is an interstate
program that was created and is administered by the Kansas Secretary of State. The program is
designed to identify voters who have moved to, and registered to vote in, another state. This is
accomplished by comparing voter registration data provided by participating states.

The

participating states submit their voter registration data to Crosscheck, which then compares the
first name, last name, and birthdate of registered voters to identify possible “matches” or duplicate
voter registrations. The output data of possible matches is then sent back to the participating states.
The individual states decide what to do with the Crosscheck data (Filing No. 42-2).
Each year Indiana provides its statewide voter registration list to the Kansas Secretary of
State to compare to data from other participating states through Crosscheck. Crosscheck then
sends a list of possible matches back to Indiana, and within thirty days of receiving the list,
Indiana’s statute requires that the “NVRA official” (in this case King and Nussmeyer) “shall
provide [to] the appropriate county voter registration office” the name and any other information

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obtained on any Indiana voters who share “identical . . . first name, last name and date of birth of
[a] voter registered in [another] state.” Ind. Code § 3-7-38.2-5(d). While the statute requires King
and Nussmeyer to provide this voter data to the county election officials, they have acknowledged
that they only forward the data to the county officials if the data meets a certain “confidence
factor,” which King and Nussmeyer determine based on additional matching data points, such as
address, middle name, or social security number (Filing No. 42-21 at 67–71; Filing No. 42-22 at
23–24). No data has been sent yet by King and Nussmeyer to the county election officials for the
2018 election cycle (Filing No. 51-3 at 3).
Once the county officials receive the voter data, they determine whether the voter identified
as a possible match is the same individual who is registered in the county and whether the voter
registered to vote in another state on a date after they had registered in Indiana. Ind. Code § 3-738.2-5(d). Within the statewide voter registration system, the county official may select for each
possible matched voter registration “match approved,” “match rejected,” or “research needed”.
(Filing No. 42-20 at 7.) The information provided from Crosscheck to the county officials in the
statewide voter registration system is limited to the personal data of voters. It does not include
any underlying source documents (Filing No. 42-21 at 97–98).
The current configuration of the statewide voter registration system does not provide
information about the dates of registration in Indiana and other states to assist in determining what
state registration occurred first (Filing No. 42-20 at 7; Filing No. 42-21 at 126). Some county
officials just assume that the Indiana registration predates the other state’s registration, which leads
to cancelling the Indiana registration (Filing No. 42-25 at 33; Filing No. 42-28 at 77; Filing No.
42-23 at 34; Filing No. 42-24 at 57–58). Even if dates of registration information was provided,
this information is not complete or consistent because states that participate in Crosscheck do not

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always populate the registration date field, and they have different policies in how they determine
which date to use, so there is no uniform practice among states (Filing No. 42-21 at 100; Filing
No. 42-22 at 29; Filing No. 42-19 at 2).
King and Nussmeyer do not provide guidance or a standardized procedure to the county
election officials for how to determine whether the record of an Indiana voter is actually the same
individual who is registered in another state or how to determine whether the out-of-state
registration is more recent (Filing No. 42-22 at 44–45). Some counties simply approve all matches
that appear as possible matches from Crosscheck (Filing No. 42-14). Each county has the
discretion to cancel or not cancel a voter’s registration based on their analysis of the data received
from other states and Crosscheck (Filing No. 42-22 at 44).
The state statutory authority and directives upon which the above-described processes are
based is found at Indiana Code § 3-7-38.2-5(d)–(e). Prior to its amendment in 2017, Indiana Code
§ 3-7-38.2-5(d)–(e) read:
(d) The NVRA official shall execute a memorandum of understanding with the
Kansas Secretary of State. Notwithstanding any limitation under IC 3-7-26.4
regarding the availability of certain information from the computerized list, on
January 15 of each year, the NVRA official shall provide data from the statewide
voter registration list without cost to the Kansas Secretary of State to permit the
comparison of voter registration data in the statewide voter registration list with
registration data from all other states participating in this memorandum of
understanding and to identify any cases in which a voter cast a ballot in more than
one (1) state during the same election. Not later than thirty (30) days following the
receipt of information under this subsection indicating that a voter of Indiana may
also be registered to vote in another state, the NVRA official shall provide the
appropriate county voter registration office with the name of and any other
information obtained under this subsection concerning that voter, if the first name,
last name, and date of birth of the Indiana voter is identical to the first name, last
name, and date of birth of the voter registered in the other state. The county voter
registration office shall determine whether the individual: (1) identified in the
report provided by the NVRA official under this subsection is the same
individual who is a registered voter of the county; (2) registered to vote in
another state on a date following the date that voter registered in Indiana; and

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(3) authorized the cancellation of any previous registration by the voter when
the voter registered in another state.
(e) If the county voter registration office determines that the voter is described by
subsection (d)(1) through (d)(3), the county voter registration office shall cancel
the voter registration of that voter. If the county voter registration office
determines that the voter is described by subsection (d)(1) and (d)(2), but has
not authorized the cancellation of any previous registration, the county voter
registration office shall send an address confirmation notice to the Indiana
address of the voter.
(Emphasis added.) However, SEA 442 amended this Code section effective July 1, 2017, which
now reads:
(d) The NVRA official shall execute a memorandum of understanding with the
Kansas Secretary of State. Notwithstanding any limitation under IC 3-7-26.4
regarding the availability of certain information from the computerized list, on
January 15 of each year, the NVRA official shall provide data from the statewide
voter registration list without cost to the Kansas Secretary of State to permit the
comparison of voter registration data in the statewide voter registration list with
registration data from all other states participating in this memorandum of
understanding and to identify any cases in which a voter cast a ballot in more than
one (1) state during the same election. Not later than thirty (30) days following the
receipt of information under this subsection indicating that a voter of Indiana may
also be registered to vote in another state, the NVRA official shall provide the
appropriate county voter registration office with the name of and any other
information obtained under this subsection concerning that voter, if the first name,
last name, and date of birth of the Indiana voter is identical to the first name, last
name, and date of birth of the voter registered in the other state. The county voter
registration office shall determine whether the individual: (1) identified in the
report provided by the NVRA official under this subsection is the same
individual who is a registered voter of the county; and (2) registered to vote in
another state on a date following the date that voter registered in Indiana.
(e) If the county voter registration office determines that the voter is described
by subsection (d), the county voter registration office shall cancel the voter
registration of that voter.
(Emphasis added.)
SEA 442 has removed from the statute the requirement to determine whether the individual
voter authorized the cancellation of any previous registrations when they registered in another
state. The amendment also removes the requirement to send an address confirmation notice to the
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voter when cancellation has not been confirmed by the voter. Before the statute was amended,
pursuant to business rules set by King and Nussmeyer, whenever a county official determined that
a possible match was indeed truly a match and approved the match, that selection in the statewide
voter registration system would generate a confirmation notice that was mailed to the voter. This
mailing allowed a person to confirm their registration at the current address, update their
registration, or cancel it. If the voter did not respond to the mailer, they would be placed in
“inactive” status. After being placed in inactive status, only if the voter did not vote over the
course of the next two federal general election cycles could Indiana cancel the voter’s registration
(Filing No. 42-22 at 47).
Also prior to the amendment, county officials were required to confirm that voters who
appeared to have registered in another had also authorized the cancellation of any previous
registration by the voter when the voter registered in the other state. If the county official could
not determine that the voter had authorized the cancellation of any previous registration, the state
statute required the county board to send an address confirmation notice to the Indiana address of
the voter. This was consistent with the written confirmation notice and waiting procedures in the
NVRA at 52 U.S.C. § 20507(d). This requirement has been removed by SEA 442.
On August 23, 2017, the Plaintiffs filed this lawsuit seeking declaratory and injunctive
relief, requesting that the Court declare Indiana Code § 3-7-38.2-5(d)–(e) violates the NVRA and
enjoining Indiana from implementing and enforcing the amended statute (Filing No. 1). On March
9, 2018, the Plaintiffs filed their Motion for Preliminary Injunction (Filing No. 41). On May 2,
2018, the parties presented oral argument to the Court on the Motion (Filing No. 56).
After this lawsuit was initiated, the Indiana General Assembly enacted House Enrolled Act
1253 (“HEA 1253”), which went into effect on March 15, 2018. HEA 1253 added “confidence

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factors” to Indiana Code § 3-7-38.2-5(d), thereby codifying the Election Division’s policy of
providing to the county officials only those registrations that meet certain match criteria.
II.

LEGAL STANDARD

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). “In each case, courts must
balance the competing claims of injury and must consider the effect on each party of the granting
or withholding of the requested relief.” Id. (Citation and quotation marks omitted). Granting a
preliminary injunction is “an exercise of a very far-reaching power, never to be indulged in except
in a case clearly demanding it.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th
Cir. 1984) (citation and quotation marks omitted).
When a district court considers whether to issue a preliminary injunction, the party seeking
the injunctive relief must demonstrate that “it is likely to succeed on the merits, that it is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its
favor, and that issuing an injunction is in the public interest.” Grace Schs. v. Burwell, 801 F.3d
788, 795 (7th Cir. 2015). The greater the likelihood of success, the less harm the moving party
needs to show to obtain an injunction, and vice versa. Girl Scouts of Manitou Council, Inc. v. Girl
Scouts of the United States of America, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008).
III.

DISCUSSION

Congress enacted the National Voter Registration Act to enhance voting opportunities for
every American. Plaintiffs challenge the legality of SEA 442, codified at Indiana Code § 3-738.2-5(d)–(e), which amends Indiana’s voter registration laws. Plaintiffs explain that the NVRA
established procedural safeguards to protect eligible voters against disenfranchisement. The
NVRA placed specific requirements on the states to ensure that these goals were met. Plaintiffs

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argue that SEA 442 violates the NVRA by circumventing its procedural safeguards—the noticeand-waiting period requirement as well as the requirement that a state’s list maintenance system
be uniform and nondiscriminatory.
Plaintiffs also assert that they have a claim under 42 U.S.C. § 1983 arising from the
implementation of SEA 442. They contend that the exclusive use of Crosscheck leads to
discriminatory results because Crosscheck is less reliable when applied to minority voter
populations where identical first and last names are more prevalent. However, Plaintiffs fail to
develop this argument, the Defendants do not address § 1983, and Plaintiffs fail to discuss or argue
anything about § 1983 in the reply brief. Because this argument and claim has not been developed,
the Court will not address a § 1983 claim.
Plaintiffs argue that a preliminary injunction is appropriate because it will ultimately
prevail on the merits, and without an injunction, Plaintiffs and their members will suffer irreparable
harm from the unlawful purging of voter registrations without notice. They further argue that the
Defendants must comply with the NVRA and, at a minimum, send confirmation notices before
cancelling voter registrations based on change of residency and the Crosscheck data. The
Defendants assert that Indiana has gone to great lengths to ensure that it is both actively and
justifiably removing those from its rolls who are no longer qualified to vote. And as a failsafe,
Indiana provides a simple process for any individual who may have been mistakenly removed to
still vote, therefore, Common Cause’s request for a preliminary injunction should be denied.
To obtain a preliminary injunction, Common Cause must establish the following four
factors as to each provision it seeks to enjoin: “[1] that it is likely to succeed on the merits, [2] that
it is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of
equities tips in its favor, and [4] that issuing an injunction is in the public interest.” Grace Schools,

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801 F.3d at 795. The first two factors are threshold determinations; “[i]f the moving party meets
these threshold requirements, the district court ‘must consider the irreparable harm that the
nonmoving party will suffer if preliminary relief is granted, balancing such harm against the
irreparable harm the moving party will suffer if relief is denied.’” Stuller, Inc., 695 F.3d at 678
(quoting Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001)). The Court will address
the first two threshold factors in turn, before addressing the final factors.
A.

Likelihood of Success on the Merits
Plaintiffs argue that they will prevail on the merits of their claim because SEA 442 plainly

violates the NVRA.

The NVRA establishes requirements that states must satisfy when

maintaining their voter registration rolls. One such requirement is that a state “shall not remove”
a voter from its list of eligible voters due to change in residence unless: (a) the voter confirms such
a residence change in writing; or (b) the voter fails to respond to a confirmation notice with specific
content prescribed by the statute and the voter does not vote in the jurisdiction during the next two
federal election cycles. 52 U.S.C. § 20507(d)(1). These procedural safeguards of written
confirmation from the voter or the notice and waiting period are in place to protect against
wrongful disenfranchisement.
Plaintiffs assert that, contrary to these requirements, SEA 442 requires King and
Nussmeyer to provide county officials with data about every voter who Crosscheck identifies as a
possible match. After receiving this data produced by Crosscheck, the county officials “shall
cancel the voter registration of that voter” immediately, without any notice and without waiting
the two federal election cycles, if the county official believes that the duplicate records in
Crosscheck belong to the same voter and that the voter’s out-of-state registration post-dates the
Indiana registration.

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Plaintiffs argue that the Crosscheck system has inherent flaws and limitations, which make
it an unreliable source on which to base voter registration cancellations without further
investigation. Plaintiff’s offer evidence that Crosscheck produces many false positives because
many people have a matching first name, last name, and birthdate, but in reality, they are not the
same person. Crosscheck and the state’s voter registration system are unreliable because they do
not collect or disseminate the actual voter registration documents, thereby depriving states of the
opportunity to verify the conclusory data with the underlying documents. The system also has
limited data and functionality, which reduces its reliability for county officials to cancel voter
registrations based solely on Crosscheck and the data uploaded into the statewide voter registration
system.
Furthermore, the data definitions are not consistently used or applied by each of the
participating states, and thus, some data may be missing or may be used in disparate ways by the
different states. This is especially true of the dates of registration. Plaintiffs point out that, because
of these inherent limitations with Crosscheck, historically, it has been used only as a starting point
in Indiana’s voter cancellation process. Crosscheck will now be used to determine whether a
duplicate voter registration exists and then cancellation of the Indiana registration will promptly
follow.
Before enactment of SEA 442, Indiana used Crosscheck matches as a starting point to
determine whether a voter registration could be cancelled. If there was a “match,” county election
officials would confirm whether the individual registered to vote in Indiana actually was the same
individual registered to vote in another state. The county official would then determine whether
the registration in the other state occurred after the registration in Indiana. Then the county official
would determine whether the voter had authorized cancellation of any previous registrations. If

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all these conditions were met, the county official would cancel the Indiana registration, but if the
last condition was not met, the county official would mail a notice to the voter and provide the
waiting period for an “inactive” voter.
Plaintiffs argue that SEA 442 violates the NVRA by removing the last condition:
confirming that the voter authorized cancellation of any previous registrations. They contend that
SEA 442 violates the NVRA by removing the notice and waiting period requirement where
authorized cancellation has not been confirmed. As this relates to Crosscheck, they argue a
Crosscheck “match” does not constitute a voter’s authorization to cancel any previous
registrations. Crosscheck provides only second-hand information that should be accompanied
with the notice and waiting period protection when the state does not have an affirmative
authorized cancellation from the voter. Plaintiffs point out that even Nussmeyer warned the
legislative aides working on the passage of SEA 442 that “federal law does not permit the
cancellation” of voters from the registration rolls as mandated by SEA 442 (Filing No. 42-27 at
2). Nussmeyer also stated in an email to a county election official that “it’s a violation of state and
federal law for a voter registration official to cancel a voter’s registration unless they have signed
authorization from the voter that they want their registration cancelled. Unless there’s a change at
the federal level, this is how the process has to play out.” (Filing No. 42-10 at 3.) Because SEA
442 eliminates the requirement of written confirmation or a notice and waiting period, it violates
the NVRA, and Plaintiffs assert that they will prevail on the merits.
In addition, Plaintiffs assert that SEA 442 violates the NVRA because it is not a uniform
approach to cleaning up voter registration rolls. Because the state does not provide enough specific
guidance to the county election officials regarding how to determine whether a voter registration
is a matched duplicate in another state, they assert it is not uniform. The state also leaves it up to

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the county election officials to determine which voter registrations should be purged from the rolls,
and those local county officials interpret and apply the standards and information differently.
Plaintiffs point to examples of how local officials apply the purging standards differently. One
county official will send a notice and wait two election cycles before cancelling an Indiana voter
registration if that official received a notice of registration from another state (Filing No. 42-24 at
83). However, under these same facts, another county official will immediately cancel the Indiana
registration upon receipt of notification from another state (Filing No. 42-23 at 36–37). Some
county officials explain that they will cancel registrations of “matched” individuals if the name is
unusual but not if it is a common name (Filing No. 42-23 at 32–33; Filing No. 42-25 at 33; Filing
No. 42-28 at 45–46). The non-uniformity is also exhibited by the fact that some counties simply
approve all matches that appear as possible matches from Crosscheck, while other counties do not
(Filing No. 42-14).
In addition, the state’s approach is not uniform because the two state co-directors, King
and Nussmeyer, provide different guidance to local county election officials when those county
officials call one of the co-directors to ask questions about implementing voter regulations and
laws. They often do not consult with each other about responses to provide to the county officials,
and they occasionally do not agree with each other about policies and procedures.
Plaintiffs assert that they have a high likelihood of success on the merits because SEA 442
plainly violates the NVRA’s requirement to provide notice and a waiting period where the voter
has not already authorized cancellation of their previous registrations. And additionally, they
argue they will succeed on the merits because the state’s approach to purging its registration rolls
is not uniform or reasonable.

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The Defendants first argue that Plaintiffs lack standing because they have suffered no
injury in fact and Plaintiffs lack standing on their own behalf because their choice of how to
allocate their limited resources is not an injury inflicted by the Defendants, and it is an “injury” of
Plaintiffs’ own making. They argue that Plaintiffs’ assertion of injury is highly speculative and
cannot support standing. The Defendants also assert that Plaintiffs lack organizational standing to
represent their members because the individual members do not have standing to sue in their own
right because of a lack of injury to them. The Defendants argue that because the new Crosscheck
program procedures have not yet been implemented, nobody has been deprived of the right to vote
because of SEA 442.
Similarly, the Defendants contend there is no threat of actual or imminent harm because it
has not cancelled any voter registrations and will not do so before July 1, 2018, and even if a voter
registration is cancelled, the voter will still be permitted to vote (albeit through the “alternative
voting procedure”). The Defendants also argue that any alleged injury cannot be traced back to
the named Defendants because the cancellation of voter registrations is carried out by county
election officials, not the named statewide election officials. Thus, the Defendants assert, there is
no injury and no standing.
Concerning the merits of the claim, the Defendants assert that, even if standing could be
established, the challenged statute complies with the requirements of the NVRA by establishing a
procedure to remove voter registrations from the rolls when individuals have registered to vote in
another state. They note that the challenged statute has been amended yet again since Plaintiffs
filed their Complaint. The amendment took effect on March 15, 2018, but it has not yet been
implemented by King and Nussmeyer. The amendment directs King and Nussmeyer to apply a
set of “confidence factors”—i.e. additional personal information such as social security number,

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street address, driver’s license number, zip code—to the data received from Crosscheck before
sending the information to the county election officials, who then determine whether a registration
should be cancelled. The Defendants argue that this added measure of confidence factors allows
the Defendants to more accurately determine that an individual is indeed the same person who is
registered to vote in another state, and thus, the registration in Indiana can then be cancelled.
The Defendants argue removal of a voter’s registration is permissible based on the voter’s
registration to vote in a different state because that registration in another state can be considered
a request for removal from the voter rolls of previous states or can be considered a “confirmation
in writing” that the voter has changed their residence. The Defendants rely on SEA 442’s
requirement that the county election officials determine whether the voter has registered in a
different state after the voter registered to vote in Indiana. Because they confirm the subsequent
registration in a different state, the county official can remove the voter from the rolls because that
subsequent registration can be treated as a request for removal from Indiana’s voter registration
roll. The Defendants argue that this same logic applies to the “confirmation in writing” aspect of
the statute, which allows cancellation of the voter registration. The Defendants assert that an outof-state voter registration form is written confirmation of the voter’s change in residency. They
argue that this is consistent with sections of the NVRA where registering in another state can be
considered (1) a request for removal from the voter roll in their previous state of residence under
52 U.S.C. § 20507(a)(3)(A), or (2) a confirmation in writing that the registrant has changed
residence under 52 U.S.C. § 20507(d)(1)(A).
Regarding uniformity among the county election officials, the Defendants argue that King
and Nussmeyer provide training to them and also provide a manual of policies and procedures to
give guidance.

The county election officials are uniformly required to follow the law by

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determining whether the duplicate matches from Crosscheck are indeed the same person and then
whether the out-of-state registration occurred after the Indiana registration. Then they may cancel
the Indiana voter registration. The Defendants further assert that the state and its election officials
should be able to give full faith and credit to the records of other states to determine that voters
have changed their residence to other states.
Plaintiffs reply that lawsuits brought by nonprofit and civic organizations challenging
voter-purge practices are commonplace, and the Defendants’ standing argument lacks support in
the law. An independent basis for organizational standing exists when a defendant’s conduct
makes it difficult or impossible for the organization to fulfill one of its essential purposes or goals.
Common Cause of Colo. v. Buescher, 750 F. Supp. 2d 1259, 1269 (D. Colo. 2010). The Buescher
court also explained, “An organization has standing to sue on its own behalf if the defendant’s
illegal acts impair its ability to engage in its projects by forcing the organization to divert resources
to counteract those illegal acts.” Id. (citation and quotation marks omitted). Plaintiffs also rely on
the United States Supreme Court case of Havens Realty Corp. v. Coleman, 455 U.S. 363, 379
(1982), which made clear that when an organization diverts its resources to counter the challenged
conduct, “there can be no question that the organization has suffered injury in fact,” and “[s]uch
concrete and demonstrable injury to the organization’s activities—with the consequent drain on
[an] organization’s resources—constitutes far more than simply a setback to [its] abstract social
interests.” Id.
The Seventh Circuit explicitly recognized this “diversion-of-resources” theory in Crawford
v. Marion County Election Board. There, the court held that the Democratic Party had standing in
its own right to challenge Indiana’s photo ID law because it was “compelled” to divert its resources
to combat the law’s negative effects in order to achieve the organization’s goals, and standing

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“requires only a minimal showing of injury.” 472 F.3d 949, 951 (7th Cir. 2007). The diversion
of its resources and the frustration of its mission are the precise injuries that Plaintiffs have suffered
in this case. Plaintiffs assert they also has standing because their members face a real threat of
being disenfranchised by SEA 442.
Regarding the Defendants’ assertion that any injury cannot be fairly traceable to them,
Plaintiffs explain that the Defendants are the NVRA officials in the state and are ultimately
responsible for the state’s compliance with the NVRA. A state’s NVRA official is the proper
defendant where the actual voter registration has been delegated to—and actual NVRA violations
committed by—local officials. See Harkless v. Brunner, 545 F.3d 445, 451–52, 455 (6th Cir.
2008).
Plaintiffs state the Court should disregarding the Defendants’ argument that they might
provide future guidance to county officials that will be in compliance with the NVRA but not
consistent with the language of the challenged statute. As well, Plaintiffs argue the Court should
disregard the “confidence factors” argument because those factors do not reliably identify an
actually matched voter registration. These confidence factors do not address or resolve the issue
of a lack of notice to voters when the voter has not confirmed anything in writing or asked to be
removed. The confidence factors cannot be a substitute for the NVRA’s requirements.
Plaintiffs further reply that the Defendants’ argument completely ignores the NVRA’s
requirement to provide notice and a waiting period when a voter has not confirmed in writing that
the voter has changed residence. Rather, the Defendants wrongly argue that the simple act of
registering in a different state is written confirmation of a change in residence. The NVRA states
that the written request or confirmation must come from the voter, yet the state’s information is
coming from Crosscheck, a third-party, not the voter. Plaintiffs point out that where a state relies

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on third-party information—such as a change of address form provided by the United States Postal
Service (which originated with the voter)—to determine that a voter has changed residence, the
NVRA requires that the state still use the notice and waiting period procedure. Plaintiffs argue
that the Crosscheck data cannot serve as a request from the voter to cancel previous registrations
or be construed as authorization to cancel previous registrations. Such data is not a request from
the voter; a request from the voter would require that the voter ask to be removed from the voter
rolls. Similarly, Plaintiffs also argue that the Crosscheck data is not confirmation in writing from
the voter.
The Court first determines that Plaintiffs have standing to pursue their claim for declaratory
and injunctive relief. Plaintiffs have presented evidence that they already have been compelled to
divert its resources to address SEA 442 and that their collective mission focus has been affected.
They have shown that injury is imminent after SEA 442 is implemented. This diversion of
resources has been determined sufficient to confer standing upon organizations, Havens Realty
Corp., 455 U.S. at 379, and standing “requires only a minimal showing of injury.” Crawford, 472
F.3d at 951. The Defendants are the NVRA officials in the state and are responsible for the state’s
compliance with the NVRA. Furthermore, they establish the guidelines, policies, and procedures
for maintaining the state’s voter registration rolls. The local county election officials are required
to follow the Defendants’ directives. Therefore, the injury in this case is fairly traceable to the
named Defendants. Thus, Plaintiffs have standing to proceed.
Regarding the likelihood of success on the merits, the Court determines that Plaintiffs have
a high likelihood of success on the merits of their claim that SEA 442 violates some of the
requirements of the NVRA and threatens disenfranchisement of eligible voters.

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The NVRA plainly requires that a state “shall not remove the name of a registrant from the
official list of eligible voters . . . on the ground that the registrant has changed residence unless the
registrant,” (1) “confirms in writing that [they have] changed residence,” or (2) has failed to
respond to a mailed notification and has not voted to two federal election cycles. 52 U.S.C. §
20507(d)(1). These are simple procedural safeguards to protect registered voters, and states are
required to follow these safeguards. Before its amendment by SEA 442, Indiana Code § 3-7-38.25(d)–(e) provided for the notice and a waiting period required by the NVRA when a voter did not
confirm in writing of their change in residence or did not request to be removed from the voter
rolls. SEA 442 removes this procedural safeguard. The Defendants’ reliance on the new
“confidence factors” is misplaced because they do nothing to address the NVRA’s requirement in
particular cases to provide for notice and a waiting period.
The act of registering to vote in a second state as determined by Crosscheck cannot
constitute a written request to be removed from Indiana’s voter rolls or a confirmation in writing
from the voter that they have changed their address. A voter’s act of registering to vote is simply
that—a registration to vote. There is no request for removal, and the voter is not confirming for
Indiana that they have had a change in residence. Notably this information is not coming from the
voter but rather from Crosscheck, which may or may not be reliable. During oral argument,
Defendant’s counsel admitted concerns regarding the reliability and security of Cross Check.
(Filing No. 62 at 49-51) 1. It is significant that the NVRA still requires the notice and waiting

1

Defendants' counsel Jefferson Garn (“Garn”) argued the following: “This isn't a part of the record, but my -- what's
going on, I believe, and from my understanding, is that there are, as with many organizations, the federal government,
state governments, there are concerns about data breach, and there's a Department of Homeland Security review being
done of Crosscheck right now.” (Filing No. 62 at 49). Thereafter, the Court asked; “so are you saying the Crosscheck
database process is flawed and they may be subject to data breaches?” and Garn responded “… It's not because our
system is flawed. It's because we just want to make sure that we're trying to stay one step ahead of people who are
trying to hack. And so that's the concern.” (Filing No. 62 at 51).

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period before cancelling a voter registration when a change in address has been confirmed through
the U.S. Postal Service, which might be more reliable than Crosscheck. The information provided
by the U.S. Postal Service originates from the voter, yet notice and a waiting period is still required
by the NVRA before cancelling the registration. 52 U.S.C. § 20507(c)(1). Because SEA 442
removes the NVRA’s procedural safeguard required in particular cases of providing for notice and
a waiting period, the Court determines that Plaintiffs have a high likelihood of success on the
merits of their claim.
The Court briefly notes that it appears the implementation of SEA 442 will likely fail to be
uniform based on the evidence that King and Nussmeyer provide differing guidance to county
officials on how to determine whether a particular registered voter is a duplicate registered voter
in a different state. This is also true based on the evidence that county officials are left to use wide
discretion in how they determine a duplicate registered voter, and they have used that discretion
in very divergent ways.
B.

Irreparable Harm with No Adequate Remedy at Law
Plaintiffs assert that the first and obvious irreparable harm is the wrongful

disenfranchisement of registered voters. But beyond disenfranchisement, Plaintiffs also explain
that if a voter is improperly removed from the registration rolls, that voter will not receive
information about upcoming elections, dates, or precinct locations (Filing No. 42-21 at 80; Filing
No. 42-25 at 35–36). Even if a wrongly removed voter does show up at the polls to vote, they will
be forced to cast a provisional ballot or utilize the cumbersome “fail-safe” voting system. These
options are onerous and are not required of other eligible voters who have not been wrongly
removed from the registration rolls. These burdens slow down the voting process at the polls and
suppress voter participation.

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Plaintiffs also argue that courts have routinely held that interference with an organization’s
voter registration activities constitutes irreparable harm. An organization is harmed if the “actions
taken by [the defendant] have perceptibly impaired [its] programs.” Fair Emp’t Council of Greater
Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) (citing Havens Realty Corp.,
455 U.S. at 379). “[C]onduct that limits an organization’s ability to conduct voter registration
activities constitutes an irreparable injury.” Project Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320,
1350 (N.D. Ga. 2016); League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155 (N.D.
Fla. 2012). Where organizational plaintiffs are compelled to divert and expend their resources to
address a defendant’s allegedly wrongful conduct, this is “enough to satisfy their burden of
showing a likelihood of suffering irreparable harm.” Action NC v. Strach, 216 F. Supp. 3d 597,
643 (M.D.N.C. 2016).
Plaintiffs argue that it will suffer irreparable harm without an injunction prohibiting
implementation of SEA 442 because their organizations’ limited resources will be diverted to
helping educate Indiana voters and ensuring that eligible voters are not disenfranchised. Much of
Plaintiffs’ work will have to be done again because of wrongful cancellations of voter registrations.
Irreparable harm very likely will occur to Plaintiffs’ members by their wrongful
disenfranchisement.
The Defendants respond that no irreparable harm exists because SEA 442 has not yet been
implemented, and when it is implemented, even if a voter is wrongfully removed from the
registration rolls, they may still vote under the “fail-safe” provisions of Indiana’s election law.
Thus, they assert, nobody will be deprived of the right to vote.
Plaintiffs reply that SEA 442 is enacted into law, and the Defendants have stated that they
will start implementing it in July 2018. Irreparable harm of wrongful disenfranchisement is

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imminent after the Defendants begin implementing the law. The fact that it has not yet occurred
because the Defendants have agreed to not implement SEA 442 yet is of no consequence to the
irreparable harm that certainly will occur.

In addition, courts overwhelmingly have held

disenfranchisement is an irreparable harm. Elrod v. Burns, 427 U.S. 347, 373–74, n.29 (1976);
Frank v. Walker, 196 F. Supp. 3d 893, 917 (E.D. Wis. 2016); League of Women Voters of Fla. v.
Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla. 2012) (once the opportunity to vote in a given
election is denied, that opportunity is gone forever). Plaintiffs further reply that the Defendants’
reliance on its “fail-safe” alternative voting procedure to justify SEA 442 is misplaced because the
NVRA requires such a “fail-safe” voting procedure as an additional protection to voters, not as a
replacement to the other requirements of the NVRA.
The Defendants’ argument that no irreparable harm exists because SEA 442 has not yet
been implemented is unavailing. The very purpose of a preliminary injunction is to prevent an
imminent harm from occurring or to quickly abate an irreparable harm that has already begun.
Next, the Court agrees with Plaintiffs that the Defendants’ “fail-safe” voting procedure cannot
justify implementation of SEA 442 because the NVRA requires that “fail-safe” voting procedure
as an additional protection to voters, not as a replacement or alternative to the other requirements
of the NVRA. The harm that occurs from eliminating one required procedural safeguard is not
negated by the continued use of a different additional procedural safeguard.
As has been held by numerous other courts, a violation of the right to vote is presumptively
an irreparable harm. See, e.g., Frank, 196 F. Supp. 3d at 917; Browning, 863 F. Supp. 2d at 1167.
Because an individual cannot vote after an election has passed, it is clear that the wrongful
disenfranchisement of a registered voter would cause irreparable harm without an adequate remedy

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at law. The Court also agrees that “conduct that limits an organization’s ability to conduct voter
registration activities constitutes an irreparable injury.” Project Vote, Inc., 208 F. Supp. 3d at 1350.
C.

Balance of Potential Harms
Plaintiffs argue that a balance of the potential harms from an injunction weighs heavily in

their favor. Depriving eligible citizens of the right to vote is a very significant harm, while not
allowing the state to purge voter registrations in a manner that short-circuits the NVRA’s
requirements causes no harm to the state. Maintaining accurate voter registration rolls is important
and prescribed by the NVRA; however, the state has many procedures that allow it to reasonably
and more accurately clean up its voter registration rolls such as using the statewide notification
mailers or cancelling registrations based on death, incarceration, incapacity, or written request.
The Defendants respond that, when an injunction is sought against a political branch of
government, public policy considerations favor denial of the injunction because judicial
interference with a public program diminishes the scope of democratic governance, and the
government’s interests are presumed to be the public’s interests. They argue an injunction would
hinder efforts to protect the integrity of the electoral process and to ensure accurate and current
voter registration rolls.
The Court finds that the balance of equities weighs heavily in favor of granting an
injunction. Plaintiffs’ members and the voters they seek to assist face the imminent and irrevocable
consequence of disenfranchisement of thousands of Indiana voters, only months before a federal
election. In contrast, Defendants would face only the prospect of waiting until after adjudication
of the merits of Plaintiffs’ challenge to implement extremely prejudicial aspects of an election bill
that was passed only recently. Weighing the balance of hardships, together with the public’s
interest in avoiding barriers to voter registration and increasing the number of eligible citizens

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registered to vote, the need is clear for a preliminary injunction to halt the implementation of SEA
442 while the Court reaches a determination on the full merits of the case. An injunction
prohibiting the implementation of SEA 442 will not impose any new or additional harm or burdens
on the Defendants concerning their efforts to maintain accurate voter registration rolls and to
ensure fair elections. The Defendants still have numerous ways that comply with the NVRA to
clean up the state’s voter registration rolls. On the other hand, not issuing an injunction and
allowing SEA 442 to be implemented risks the imposition of significant harm on Plaintiffs and
their members through the disenfranchisement of rightfully registered voters.
D.

Public Interest
The NVRA’s purpose is to both increase the number of eligible citizens to register to vote

and participate in the electoral process; and …ensure that accurate and current voter registration
rolls are maintained. 52 U.S.C. § 20501(b). The public has a “strong interest in exercising the
fundamental political right to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Plaintiffs argue
the public interest is best served by protecting the right to vote and not disenfranchising eligible
voters. Similar to their response regarding the balance of harms, the Defendants argue that the
public interest is best served by allowing SEA 442 to be implemented to ensure the integrity of
voter registration rolls and the electoral process.
The Court agrees with Plaintiffs that the greater public interest is in allowing eligible voters
to exercise their right to vote without being disenfranchised without notice.

If a voter is

disenfranchised and purged erroneously, that voter has no recourse after Election Day. While the
Defendants have a strong public interest in protecting the integrity of voter registration rolls and
the electoral process, they have other procedures in place that can protect that public interest that
do not violate the NVRA.

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E.

Posting Bond
A preliminary injunction will not impose any monetary injuries on the Defendants, and in

the absence of such injuries, no bond should be required. See Doctor’s Assocs., Inc. v. Stuart, 85
F.3d 975, 985 (2d Cir. 1996). Therefore, Plaintiffs need not post a bond.
IV.

CONCLUSION

Because each of the factors for the issuance of a preliminary injunction weighs in favor of
Plaintiffs, the Court GRANTS Plaintiffs’ Motion for Preliminary Injunction (Filing No. 41).
Pursuant to Federal Rule of Civil Procedure 65(d), the Court ISSUES A PRELIMINARY
INJUNCTION prohibiting the Defendants from taking any actions to implement SEA 442 until
this case has been finally resolved. A similar ruling is issued in related case Common Cause
Indiana v. Lawson et al., 1:17-cv-3936-TWP-MPB. Plaintiffs need not post a bond.
SO ORDERED.
Date: 6/8/2018

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DISTRIBUTION:

Jonathan Brater
BRENNAN CENTER FOR JUSTICE
[e-mail]

Myrna Perez
BRENNAN CENTER FOR JUSTICE
[e-mail]

Matthew Richard Elliott
INDIANA ATTORNEY GENERAL
[e-mail]

Aleksandrina Penkova Pratt
INDIANA ATTORNEY GENERAL
[e-mail]

Jefferson S. Garn
INDIANA ATTORNEY GENERAL
[e-mail]

Sascha N. Rand
QUINN EMANUEL URQUHART &
SULLIVAN LLP
[e-mail]

Kyle Hunter
INDIANA ATTORNEY GENERAL
[e-mail]

Kelly Suzanne Thompson
INDIANA ATTORNEY GENERAL
[e-mail]

Trent A. McCain
MCCAIN LAW OFFICES, P.C.
[e-mail]

Ellyde R. Thompson
QUINN EMANUEL URQUHART &
SULLIVAN LLP
[e-mail]

Ellison Sylvina Ward Merkel
QUINN EMANUEL URQUHART &
SULLIVAN LLP
[e-mail]

Alexandre J. Tschumi
QUINN EMANUEL URQUHART &
SULLIVAN LLP
[e-mail]

Diana Lynn Moers Davis
INDIANA ATTORNEY GENERAL
[e-mail]

29