COMMON CAUSE INDIANA v. LAWSON et al
Filing
199
ORDER denying Defendants' 180 Motion to Dismiss for Lack of Jurisdiction; granting Plaintiff's 182 Motion for Summary Judgment. The Court ISSUES A PERMANENT INJUNCTION prohibiting the Defendants from implementing SEA 334 §§ 5.5(d)(f) and prohibiting the Defendants from otherwise removing any Indiana registrant from the list of eligible voters because of a change in residence absent: (1) a request or confirmation in writing directly from the voter that the voter is ineligible or does not wish to be registered; or (2) the NVRA-prescribed process of (a) notifying the voter, (b) giving the voter an opportunity to respond, and (c) then waiting two inactive federal election cycles. A similar ruling was issued in t he related case Indiana State Conference of the National Association for the Advancement of Colored People, et. al. v. Lawson et al., 1:17-cv-2897-TWP-MPB. The trial and final pretrial conference are hereby VACATED. Final judgment will issue under separate order. (See Order). Signed by Judge Tanya Walton Pratt on 8/24/2020. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
COMMON CAUSE INDIANA,
)
)
Plaintiff,
)
)
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 Co-Director of the Indiana Election Division, )
)
Defendants.
)
Case No. 1:17-cv-03936-TWP-MPB
ORDER ON DEFENDANTS' MOTION TO DISMISS AND
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(1) by Defendants Connie Lawson ("Lawson"), Bradley King ("King"), and
Angela Nussmeyer ("Nussmeyer") (collectively, "Defendants") (Filing No. 180). Also pending
before the Court is a Motion for Summary Judgment filed pursuant to Rule 56 by the Plaintiff
Common Cause Indiana ("Common Cause") (Filing No. 182). Common Cause initiated this
lawsuit to challenge the legality of Indiana's voter registration laws on the basis that they violate
the procedural safeguards established by the National Voter Registration Act of 1993, 52 U.S.C.
§§ 20507–20511 ("NVRA"). On June 8, 2018, the Court entered a preliminary injunction against
the Defendants, which they appealed (Filing No. 103). The Seventh Circuit affirmed the Court's
issuance of the preliminary injunction and remanded the case for further proceedings (Filing No.
154). The pending Motions ensued after the remand. For the reasons discussed below, the Court
denies the Defendants' Motion to Dismiss and grants Common Cause's Motion for Summary
Judgment.
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. The NVRA placed specific
requirements on the states to ensure that these goals were met.
It established procedural
safeguards to protect eligible voters against disenfranchisement and to direct states to maintain
accurate 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
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the second general election for Federal office that occurs after the date of
the notice.
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 Common Cause Indiana is the Indiana affiliate of Common Cause, which is a
national nonpartisan, nonprofit grassroots organization that advocates for ethics, good
government, campaign finance reform, constitutional law, and the elimination of barriers to voting.
Common Cause works on multiple fronts, including by partnering with other community
organizations to provide education and training to on-the-ground voting rights activists around the
State of Indiana as well as by lobbying for nonpartisan redistricting and increasing the number of
satellite voting locations. Common Cause has one fulltime employee and a limited budget, and it
relies on its member volunteers for much of its activities. The organization has approximately
12,000 members who live and vote in Indiana (Filing No. 74-24 at 1–2).
Defendant Lawson is the Indiana Secretary of State, and, in this 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, 3-6-4.2-2(a). Defendants
King and Nussmeyer are co-directors of the Indiana Election Division within the Secretary of
State's office. In this capacity, King and Nussmeyer are the chief state election officials
responsible for the coordination of Indiana's responsibilities under the NVRA. Defendants King
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and Nussmeyer thus are charged with coordinating county voter registration. They are considered
Indiana's "NVRA officials." Ind. Code § 3-7-11-1; Filing No. 91-1 at 1; Filing No. 91-2 at 1.
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. 74-1 at
7).
While the county boards are responsible for actually physically maintaining their voter
registration records, 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. 74-1 at 6–7). This
electronic statewide voter registration system is "a single, uniform, official, centralized, and
interactive statewide voter registration list." Ind. Code §§ 3-7-26.3-3, 3-7-26.3-4. 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 (Filing No. 74-1 at
6–7); Ind. Code § 3-6-4.2-14. The official guidance from King and Nussmeyer as reflected in the
protocols, documents, and trainings are mandatory (Filing No. 74-1 at 14).
Regarding the electronic statewide voter registration system, King and Nussmeyer
establish the standard operating procedures and the business rules that determine how the system
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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. 74-1 at 6–
7, 19; Filing No. 74-4 at 7).
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. 741 at 8–9; see also Filing No. 74-7; Filing No. 74-8). 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 (Filing No. 74-1 at 8–9). Nussmeyer and King
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 6–7, 9.
At the time that Common Cause filed this lawsuit in October 2017, Indiana participated 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 administered by
the Kansas Secretary of State. The program was designed to identify voters who have moved to
and registered to vote in another state. This was accomplished by comparing voter registration
data provided by participating states. The participating states would submit their voter registration
data to Crosscheck, which then compared the first name, last name, and birthdate of registered
voters to identify possible "matches" or duplicate voter registrations. The output data of possible
matches was then sent back to the participating states. The individual states would then decide
what to do with the Crosscheck data. Crosscheck did not receive or distribute primary voter
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registration documents, and it did not include signatures or former addresses among the identifying
information provided to participating states (Filing No. 74-10).
During the time that Indiana participated in Crosscheck, each year Indiana would provide
its statewide voter registration list to the Kansas Secretary of State to compare the data with the
other data from other participating states through Crosscheck. Crosscheck then sent a list of
possible matches back to Indiana, and within thirty days of receiving this list, Indiana's statute
required 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 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 required King and Nussmeyer to
provide this voter data to the county election officials, they only forwarded the data to the county
officials if the data met 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. 74-1 at 11–12; Filing No. 74-4 at 8).
After voter data was provided to the county officials, they determined whether the voter
identified as a possible match was the same individual who was 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 § 3-7-38.2-5(d). Within the statewide voter registration system, the county official could
select for each possible matched voter registration "match approved," "match rejected," or
"research needed." (Filing No. 74-11 at 6.) The information provided from Crosscheck to the
county officials in the statewide voter registration system was limited to the personal data of voters;
it did not include any underlying source documents (Filing No. 74-2 at 7–8). County officials
generally do not review or request any material outside of the Crosscheck data provided to them
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by King and Nussmeyer. No written guidance, manual, step-by-step instruction, or standard
operating procedure states that any additional inquiry is required or recommended.
Under the Crosscheck program, the statewide voter registration system did not provide
information about the dates of registration in Indiana and other states to assist in determining what
state registration occurred first (Filing No. 74-11 at 6; Filing No. 74-1 at 13). Some county officials
just assumed that the Indiana registration predated the other state's registration, which would lead
to cancelling the Indiana registration (Filing No. 74-3 at 11; Filing No. 74-2 at 9; Filing No. 74-6
at 9; Filing No. 74-5 at 13). Even if dates of registration information was provided, the information
was incomplete or inconsistent because states that participated in Crosscheck did not always
populate the registration date field, and they had different policies for determining which date to
use, so there was no uniform practice among states. Some states did not even provide a definition
for "date of registration." (Filing No. 74-4 at 9–10; Filing No. 74-1 at 16; Filing No. 74-12 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. 74-4 at 13–14). Some counties simply approve all matches
that appear as possible matches from Crosscheck (Filing No. 74-13). 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. 74-4 at 13).
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
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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
(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, Indiana Senate Enrolled Act 442 (2017) ("SEA 442") amended this Code
section, effective July 1, 2017, to 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
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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 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 removed the requirement to send an address confirmation notice to the
voter when cancellation had 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. 74-4 at 14).
Also prior to the amendment by SEA 442, county officials were required to confirm that
voters who appeared to have registered in another state 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
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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). However, this requirement was removed by SEA 442. SEA
442 removed the requirement to make the determination that an individual "authorized the
cancellation of any previous voter registration" and the requirement to send an "address
confirmation notice." Under SEA 442, a county official's approval of matches would generate a
cancellation of the voter registration rather than a notice mailer. This resulted in cancellation of a
voter registration without following the notice-and-waiting requirement for approved matches
(Filing No. 74-4 at 12).
During the enactment process of SEA 442, Common Cause's single fulltime employee and
policy director, Julia Vaughn, testified on behalf of Common Cause before the state legislature
and also spoke with Lawson's general counsel to explain how SEA 442 would injure Indiana voters
and threaten their right to vote as well as how it would violate the NVRA. These lobbying efforts
took time away from other work and issues to which Common Cause could have devoted its time.
After the statute's amendment, Common Cause devoted time and resources in conducting activities
such as training sessions aimed at educating voters and community activists about the increased
risk of erroneous voter registration cancelations. Because of SEA 442, Common Cause changed
some of its training materials to address the increased risk of voters being wrongly removed from
the voter rolls (Filing No. 74-24 at 2–4).
Common Cause filed this lawsuit on October 27, 2017, 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). After the
lawsuit was initiated, the Indiana General Assembly enacted House Enrolled Act 1253 ("HEA
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1253"), which went into effect on March 15, 2018. HEA 1253 added "confidence factors" to
Indiana Code § 3-7-38.2-5(d), thereby codifying King and Nussmeyer's policy of providing to the
county officials only those registrations that met certain "match criteria."
On March 8, 2018, Common Cause filed a Motion for Preliminary Injunction (Filing No.
74; Filing No. 75). After hearing the parties' oral arguments, the Court determined that each of the
factors for the issuance of a preliminary injunction weighed in favor of Common Cause. Therefore,
on June 8, 2018, the Court entered a preliminary injunction against the Defendants, "prohibiting
[them] from taking any actions to implement SEA 442 until this case has been finally resolved."
(Filing No. 103 at 27.) The Defendants appealed the issuance of the preliminary injunction, and
on August 27, 2019, the Seventh Circuit affirmed the Court's issuance of the preliminary injunction
and remanded the case for further proceedings (Filing No. 154).
On October 30, 2019, the Court stayed this matter until May 1, 2020, to see whether the
Indiana General Assembly would make any changes to SEA 442 that might affect the case (Filing
No. 162; Filing No. 171 at 2). "On March 21, 2020, Governor Holcomb signed into law SEA 334,
which amends SEA 442." (Filing No. 168 at 2; see also Filing No. 168-1.)
SEA 334 amended SEA 442, voided Indiana's memorandum of understanding with the
Kansas Secretary of State, withdrew Indiana from participation in Crosscheck, and established the
Indiana Data Enhancement Association ("IDEA") in place of Crosscheck. IDEA is functionally
identical to Crosscheck in that it receives member states' voter lists and returns purported matches.
The "NVRA official" (in this case King and Nussmeyer) administers IDEA (Filing No. 184-3 at
8–11 (SEA 334 §§ 5.1(a)–(b), 5.5(a)–(b))). SEA 334 requires that, "[n]ot later than July 1, 2020,
the NVRA official shall adopt an order for the administration of voter list maintenance programs
to be performed by IDEA." Id. at 10 (SEA 334 § 5.5(b)). "If the NVRA official does not adopt
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an order by July 1, 2020, . . . the secretary of state shall adopt or amend the order." Id. Thus, the
oversight and administration of IDEA are placed in the Defendants.
Under SEA 334, IDEA uses a "matching" system, and within thirty days of comparing data
from other states, the NVRA official is to provide to county officials a list of all Indiana voters
having (1) an "identical" "first name, last name, and date of birth of the voter registered in the other
state," and (2) whose records meet the "confidence factor" threshold. Id. at 11 (SEA 334 § 5.5(c)).
IDEA does not collect or disseminate the actual voter registration documents underlying its
"matches" and does not involve direct contact with voter registrants. Id. at 10–12 (SEA 334 § 5.5).
SEA 334 directs,
(d) The county voter registration office shall determine whether the individual:
(1) identified in the report provided by the NVRA official under subsection (c)
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
(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), 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.
(Filing No. 184-3 at 11–12 (SEA 334 § 5.5(d)–(e)).)
SEA 334 further provides,
(f) The county voter registration office may rely on written information provided
either directly by a voter registration office in another state or forwarded from the
election division from the office in the other state as follows:
(1) If this information is provided directly from the other state to the Indiana
county voter registration official, the out-of-state voter registration official
must provide a copy of the voter's signed voter registration application which
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indicates the individual authorizes cancellation of the individual's previous
registration.
(2) If the election division forwards written notice from another state to an
Indiana county voter registration official, the county should consider this
notice as confirmation that the individual is registered in another jurisdiction
and has requested cancellation of the Indiana registration. A copy of the actual
voter signature is not required to be provided to the county for the voter's status
to be canceled if the written notice is forwarded by the election division.
County voter registration officials shall review the date the individual registered
out of state and the date the individual registered in Indiana to confirm which
registration is more recent when performing the officials' analysis under this
subsection.
Id. at 12 (SEA 334 § 5.5(f)).
After the enactment of SEA 334, the stay in this matter was lifted in early May 2020 (Filing
No. 169), after which the Defendants filed their Motion to Dismiss (Filing No. 180), and Common
Cause filed its Motion for Summary Judgment (Filing No. 182).
II.
LEGAL STANDARDS
A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). The burden of proof is on the plaintiff, the party asserting jurisdiction.
United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on
other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012) (en banc). "The
plaintiff has the burden of supporting the jurisdictional allegations of the complaint by competent
proof." Int'l Harvester Co. v. Deere & Co., 623 F.2d 1207, 1210 (7th Cir. 1980). "In deciding
whether the plaintiff has carried this burden, the court must look to the state of affairs as of the
filing of the complaint; a justiciable controversy must have existed at that time." Id.
"When ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), the district court must accept as true all well-pleaded factual
allegations, and draw reasonable inferences in favor of the plaintiff." Ezekiel v. Michel, 66 F.3d
13
894, 897 (7th Cir. 1995) (citation omitted). Furthermore, "[t]he district court may properly look
beyond the jurisdictional allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject matter jurisdiction exists." Id. (citation
and quotation marks omitted).
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary
judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law." Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007). In ruling on a motion for summary
judgment, the court reviews "the record in the light most favorable to the non-moving party and
draw[s] all reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th
Cir. 2009) (citation omitted). "However, inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion." Dorsey v. Morgan Stanley, 507 F.3d 624,
627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, "[a] party who bears the
burden of proof on a particular issue may not rest on its pleadings, but must affirmatively
demonstrate, by specific factual allegations, that there is a genuine issue of material fact that
requires trial." Hemsworth, 476 F.3d at 490 (citation omitted). "The opposing party cannot meet
this burden with conclusory statements or speculation but only with appropriate citations to
relevant admissible evidence." Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind.
1995) (citations omitted).
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"In much the same way that a court is not required to scour the record in search of evidence
to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits
of [the] claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation
marks omitted). "[N]either the mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion
for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997)
(citations and quotation marks omitted).
III. DISCUSSION
The Defendants ask the Court to dismiss this action on the basis that the case is now moot
and, therefore, subject matter jurisdiction no longer exists because SEA 442—the law challenged
by Common Cause in its Complaint—was amended by SEA 334. In contrast, Common Cause
asks the Court to enter summary judgment in its favor and to enter a permanent injunction
prohibiting the Defendants from implementing Indiana's election laws that violate the NVRA. The
Court will first address the Motion to Dismiss and then turn to the Motion for Summary Judgment.
A.
Defendants' Motion to Dismiss
In their Motion to Dismiss, the Defendants argue that the Court lacks subject matter
jurisdiction to hear this case because there is no longer a live case or controversy. They explain
that Article III of the United States Constitution limits the jurisdiction of federal courts to cases
and controversies, which "requires an actual controversy at all stages of review, not merely at the
time the complaint is filed." Ciarpaglini v. Norwood, 817 F.3d 541, 544 (7th Cir. 2016) (internal
citation and quotation marks omitted). The Defendants argue that dismissing moot cases is
appropriate because a moot case runs afoul of the "live case or controversy" requirement.
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The Defendants argue that, in this case, Common Cause's claim centers on Indiana's
participation in Crosscheck and the enforcement of SEA 442 and the resulting violation of the
NVRA. However, the Defendants assert, intervening events have occurred, thereby mooting the
claim brought by Common Cause. The Indiana General Assembly amended SEA 442 with the
enactment of SEA 334, and Indiana has withdrawn from participation in Crosscheck. They argue
there is no likelihood that Indiana will again participate in Crosscheck as it has been indefinitely
suspended. The relief sought by Common Cause has been fully satisfied because SEA 442 will
not be enforced as it has been amended, and Indiana will no longer participate in Crosscheck. Thus,
the Defendants argue, there is no longer a case or controversy over the enforcement of SEA 442
and participation in Crosscheck. The Defendants assert, with no live controversy and with the relief
sought already provided, the Court lacks subject matter jurisdiction to consider this case any
further.
The Defendants further argue that Common Cause's claim specifically addresses SEA 442,
and any possible claims that Common Cause alleges regarding SEA 334 (the new 2020 law) must
be addressed in a new, separate lawsuit subject to discovery and a full hearing of the issues. SEA
442 involved participation in Crosscheck, and SEA 334 "ameliorated the alleged violations that
existed under the previous law. Any alleged violations under SEA 334, would be entirely new
claims, and should be treated as such." (Filing No. 181 at 9.)
In response, Common Cause explains that this case is not about the Crosscheck program
as the Defendants have characterized the case. Rather, Common Cause filed this lawsuit to enforce
the NVRA's notice-and-waiting requirements. Common Cause explains that SEA 442 allowed
Indiana to cancel voter registrations without complying with the notice-and-waiting requirements
of the NVRA. Common Cause sought a preliminary injunction on the basis that Indiana's election
16
law failed to follow the provisions of the NVRA, and this Court and the Seventh Circuit held that
the failure to follow the notice-and-waiting requirements violated the NVRA.
Common Cause points out that when a challenged law "is repealed or amended midlawsuit—a 'recurring problem when injunctive relief is sought'—the case is not moot if a
substantially similar policy has been instituted or is likely to be instituted." Smith v. Exec. Dir. of
Ind. War Mems. Comm'n, 742 F.3d 282, 287 (7th Cir. 2014) (internal citation omitted). Common
Cause acknowledges that SEA 334 amended SEA 442; however, it asserts, SEA 334 kept the same
impermissible voter cancellation procedures, and it injures Common Cause and Indiana voters in
the same manner as SEA 442. SEA 334 replaced the Crosscheck program with the identical IDEA
program. And SEA 334 still allows voter cancellation based on data provided by other states,
without any direct voter contact, and without following the NVRA's notice-and-waiting
procedures. Therefore, this lawsuit is not moot because SEA 334 continues the same NVRA
violations that occurred under SEA 442, and the Court can award relief by enjoining the ongoing
NVRA violations.
Concerning the Defendants' argument that any claims relating to SEA 334 must be brought
in a new lawsuit, Common Cause asserts that granting the Defendants' Motion to Dismiss and
requiring a new lawsuit challenging SEA 334 would unnecessarily waste judicial resources. The
Defendants' suggestion would require a new lawsuit challenging the same provision of the Indiana
Code based on the same section of the NVRA because of the same wrongful conduct of the same
Defendants. The parties would face the same motions for preliminary injunction, to dismiss, and
for summary judgment, and they would repeat the same discovery and prepare for trial based on
insignificant amendments to a law that is frequently amended. The Court and the parties should
not be subjected to such a waste of resources or the burden of relitigating indistinguishable claims.
17
In reply, the Defendants argue that this case really is about Crosscheck, and further,
Common Cause misreads SEA 334. They assert that the "plain language of SEA 334 provides that
if another state provides information to an Indiana county voter official, the other state must
provide a copy of the voter's signed voter registration application which indicates the individual
authorizes cancellation of the individual's previous registration. SEA 334 § 8(f)(1)." (Filing No.
194 at 2.) The Defendants argue the provisions of SEA 334 are significantly different from SEA
442, so this case about SEA 442 is moot, and any claims pertaining to SEA 334 must be brought
in a new action.
After a careful review of SEA 442, SEA 334, the Complaint, and the Court's Order issuing
the preliminary injunction, the Court concludes that this case is not mooted by the enactment of
SEA 334. Common Cause's arguments are well-taken. A case does not become moot if the
amendment to the challenged law does not fully resolve the problem at issue in the case. The
gravamen of Common Cause's Complaint is that Indiana's election law violates the NVRA by
allowing cancellation of voter registrations without direct contact from the voter or, alternatively,
providing notice to the voter and then waiting two election cycles before cancelling the voter
registration. This Court and the Seventh Circuit understood this to be the issue when granting and
affirming injunctive relief.
While SEA 334 amended SEA 442 and replaced Crosscheck with IDEA, the issue raised
by the Complaint remains—allowing cancellation of voter registrations without direct contact from
the voter or, alternatively, providing notice to the voter and then waiting two election cycles before
cancelling the voter registration. SEA 334 expressly provides,
If the election division forwards written notice from another state to an Indiana
county voter registration official, the county should consider this notice as
confirmation that the individual is registered in another jurisdiction and has
requested cancellation of the Indiana registration. A copy of the actual voter
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signature is not required to be provided to the county for the voter's status to be
canceled if the written notice is forwarded by the election division.
(Filing No. 184-3 at 12 (SEA 334 § 5.5(f)(2)).) Section 5.5(f)(2) allows cancellation of voter
registrations without direct contact from the voter and without the NVRA's notice-and-waiting
protection. Therefore, an actual controversy—the same controversy raised in the Complaint—still
remains between the parties, and the Court is able to provide effectual relief; thus, the case is not
moot. Subject matter jurisdiction still exists in this Court. The Court agrees with Common Cause's
position that requiring a new lawsuit for SEA 334 would be an unnecessary waste of the Court's
and the parties' resources and time. The Defendants' Motion to Dismiss is DENIED.
B.
Common Cause's Motion for Summary Judgment
Common Cause filed its Motion for Summary Judgment, asking the Court to enter
summary judgment in its favor and to permanently enjoin the Defendants from implementing
Indiana's election laws that would allow county officials to remove voters' registrations because of
a change in residence without a request or confirmation in writing directly from the voter that the
voter is ineligible or does not wish to be registered or without the NVRA's notice-and-waiting
protections.
In support of its Motion for Summary Judgment, Common Cause asserts similar arguments
it made in opposition to the Defendants' Motion to Dismiss. Common Cause argues that SEA 334,
like its predecessor SEA 442, violates the NVRA by allowing cancellation of a voter's registration
without direct contact with the registered voter. SEA 334 permits cancellation without a request
from the registered voter and without following the notice-and-waiting procedures.
Common Cause asserts,
The District Court has already made factual findings consistent with the foregoing
descriptions of the NAACP, the League, and Common Cause Indiana, their
missions, and their efforts to counteract the effects of SEA 442, . . . [and]
19
Plaintiffs['] actions are ongoing, as SEA 334 is substantially similar to SEA 442.
Since the enactment of SEA 334, Plaintiffs have redoubled their efforts.
(Filing No. 183 at 27.) Common Cause further points out,
Both this Court and the Seventh Circuit have ruled on the meaning of relevant
NVRA requirements, which now operate as law of the case. Specifically, the
Seventh Circuit affirmed that the NVRA requires that Indiana have "direct contact
with the voter" prior to any removal from the voter registration rolls. See Common
Cause, 937 F.3d at 958 ("Indiana insists that [SEA 442] complies with the NVRA,
despite the fact that it omits any direct contact with the voter . . . . The state attempts
to trivialize that omission, but a review of the NVRA reveals that it is fatal.").
Id. at 29.
Common Cause supports its position with additional language from this Court's and the
Seventh Circuit's decisions from earlier in this litigation:
The Court "determine[d] 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." Id. at 661. The Court found
that SEA 442 removed the NVRA's "simple procedural safeguard[]" 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." Id.
(quoting 52 U.S.C. § 20507(d)(1)); see also id. at 650.
(Filing No. 183 at 13–14.)
The Seventh Circuit affirmed this Court "was correct to find that the Organizations
are likely to succeed on the merits of their challenge," Common Cause, 937 F.3d at
949. The Court also held that the NVRA "forbids a state from removing a voter
from that state's registration list unless: (1) it hears directly from the voter via a
'request' or a 'confirm[ation] in writing' that the voter is ineligible or does not wish
to be registered; or (2) the state goes through the statutorily prescribed [notice and
waiting process]. Both of these avenues focus on direct contact with the voter." Id.
at 959 (emphases added; second alteration in original).
Id. at 14.
Common Cause argues that, based on the clear law of the case set forth above, a permanent
injunction prohibiting implementation of SEA 334 is appropriate because SEA 334 commits the
20
same error as SEA 442, which has been determined to be fatal to the Indiana statute. It allows for
cancellation of a voter's registration without any direct contact with the registered voter. Like SEA
442, SEA 334 ignores the NVRA's requirement of either a request from the registrant or
confirmation in writing that the registrant has changed residence. And it allows cancellation
without utilizing the notice-and-waiting procedures.
In response to the Motion for Summary Judgment, the Defendants advance similar
arguments they made in support of their Motion to Dismiss. They argue that Common Cause's
case is really about participation in Crosscheck and SEA 442's elimination of a mailer confirmation
procedure. However, they assert, SEA 334 has withdrawn Indiana from participation in
Crosscheck, and it requires county officials to determine whether the voter cancelled previous
registrations or to send a confirmation to the individual's address before cancelling the registration,
pointing to SEA 334 §§ 5.1, 5.5. The Defendants argue that the amendments to SEA 442 found
in SEA 334 put Indiana's election laws into compliance with the NVRA's requirements, and, thus,
summary judgment is not appropriate.
The Defendants argue,
SEA 334 explicitly provides in Section 8(f)(1) that if a county receives information
directly from another state, and not from the Indiana Election Division, "the outof-state voter registration official must provide a copy of the voter's signed voter
registration application which indicates the individual authorizes cancellation of the
individual's previous registration."
(Filing No. 197 at 11.) They further argue,
Under the doctrine of statutory construction, considering Section 8(f)(1) and 8(f)(2)
together, Section 8(f)(1) implies that under Section 8(f)(2), if the Indiana Election
Division notifies a county official that the voter cancelled registration, the Indiana
Election Division also received a copy of the voter's signed voter registration
application authorizing cancellation.
Id. at 12.
21
The Defendants again argue that Common Cause may not present a new claim or argument
in its summary judgment motion nor can it amend the pleadings via a summary judgment motion.
The Defendants assert that SEA 334 has not yet been implemented in regard to IDEA, and they
are not the individuals who implement or enforce SEA 334 as the county election officials actually
perform the voter registration list maintenance.
As discussed in the section above addressing the Motion to Dismiss, the Court concludes
that SEA 334 continues the violation of the NVRA that the Court determined existed under SEA
442. Section 5.5(f)(2) allows cancellation of voter registrations without direct contact from the
voter and without the NVRA's notice-and-waiting protection. As the Seventh Circuit succinctly
explained, the NVRA "does not set an accuracy threshold; it relies instead on follow-up with the
individual voter." Common Cause Ind. v. Lawson, 937 F.3d 944, 959 (7th Cir. 2019). That
"follow-up with the individual voter" is still lacking under Section 5.5(f)(2) of SEA 334.
The Defendants argue that the Court should read Section 5.5(f)(2) in conjunction with
Section 5.5(f)(1) to find that Section 5.5(f)(1) implies that under Section 5.5(f)(2), if the Indiana
Election Division notifies a county official that the voter cancelled registration, the Indiana
Election Division also received a copy of the voter's signed voter registration application
authorizing cancellation. However, implying this conclusion is contrary to the explicit language
of Section 5.5(f)(2), which states, "[a] copy of the actual voter signature is not required to be
provided to the county for the voter's status to be canceled if the written notice is forwarded by the
election division," and no other sections of SEA 334 state or even imply that the Indiana Election
Division receives a copy of the voter's signed voter registration application authorizing
cancellation. There still is no direct contact with the registered voter, and there is no notice-and-
22
waiting procedure implemented under Section 5.5(f)(2). Therefore, the NVRA still is violated by
the Indiana statute.
Common Cause is not, contrary to the Defendants' assertion, trying to change its theory of
liability or amend its claims by filing for summary judgment on SEA 334. Common Cause's claims
and theories still focus on Indiana's election laws violating the requirements of the NVRA for
direct contact with the registered voter or utilizing the notice-and-waiting procedure. Common
Cause is not required to file a new lawsuit to challenge SEA 334.
Regarding the Defendants' argument that summary judgment is inappropriate because they
are not the individuals who implement or enforce SEA 334 as the county election officials actually
perform the maintenance of voter registration lists, the Court already has considered and rejected
this argument.
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.
(Filing No. 103 at 20.) The Defendants' reliance on Ex parte Young concerning sovereign
immunity and summary judgment also is unavailing. The named Defendants are directly
responsible for implementing SEA 334, and the prospective relief sought by Common Cause is
permissible. See McDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1051 (7th Cir. 2013) ("In
determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a
court need only conduct a 'straightforward inquiry into whether [the] complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.'").
Based on this Court's prior analyses and conclusions when issuing the preliminary
injunction and the Seventh Circuit's guidance and decision when affirming the issuance of the
23
preliminary injunction, and based on the designated evidence before the Court, the Court concludes
that SEA 334 violates the NVRA by allowing cancellation of a voter's registration without direct
contact with the registered voter and without utilizing the notice-and-waiting procedures.
Therefore, the Court determines that summary judgment in favor of Common Cause is appropriate.
The facts and evidence supporting the issuance of injunctive relief have not changed since
the issuance of the preliminary injunction. Therefore, the Court adopts in full its analyses and
conclusions found in the preliminary injunction Order (see Filing No. 103 at 12–27).
As has been held by numerous other courts, the Court determines that a violation
of the right to vote is presumptively an irreparable harm. See McCutcheon, 134 S.
Ct. at 1440–41; Reynolds, 377 U.S. at 555; Elrod, 427 U.S. at 373–74, n.29; Ezell,
651 F.3d at 699; Newby, 838 F.3d at 12–13. 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 at law.
(Filing No. 103 at 24.) Remedies available at law cannot adequately compensate for the wrongful
disenfranchisement of voters.
The Court determines that the balance of equities weighs heavily in favor
of granting an injunction for Common Cause. An injunction prohibiting the
implementation of SEA [334] 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 [334] to be implemented
risks the imposition of significant harm on Common Cause and its members
through the disenfranchisement of rightfully registered voters.
Id. at 25.
The public interest would not be disserved by a permanent injunction in this case.
"[A]llowing eligible voters to exercise their right to vote without being disenfranchised without
notice" is a significant public interest. Id. at 26. Furthermore,
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
24
procedures in place that can protect that public interest that do not violate the
NVRA.
Id. at 26–27.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES the Defendants' Motion to Dismiss (Filing
No. 180) and GRANTS Common Cause's Motion for Summary Judgment (Filing No. 182). The
Court ISSUES A PERMANENT INJUNCTION prohibiting the Defendants from implementing
SEA 334 §§ 5.5(d)–(f) and prohibiting the Defendants from otherwise removing any Indiana
registrant from the list of eligible voters because of a change in residence absent: (1) a request or
confirmation in writing directly from the voter that the voter is ineligible or does not wish to be
registered; or (2) the NVRA-prescribed process of (a) notifying the voter, (b) giving the voter an
opportunity to respond, and (c) then waiting two inactive federal election cycles. A similar ruling
was issued in the related case Indiana State Conference of the National Association for the
Advancement of Colored People, et. al. v. Lawson et al., 1:17-cv-2897-TWP-MPB. The trial and
final pretrial conference are hereby VACATED. Final judgment will issue under separate order.
SO ORDERED.
Date: 8/24/2020
25
DISTRIBUTION:
Courtney Lyn Abshire
INDIANA ATTORNEY GENERAL
courtney.abshire@atg.in.gov
Stuart C. Naifeh
DEMOS
snaifeh@demos.org
Chiraag Bains
DEMOS
cbains@demos.org
Parvinder Kaur Nijjar
INDIANA ATTORNEY GENERAL
parvinder.nijjar@atg.in.gov
Adriel I. Cepeda Derieux
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, INC.
acepedaderieux@aclu.org
Stevie Pactor
ACLU OF INDIANA
spactor@aclu-in.org
Jefferson S. Garn
INDIANA ATTORNEY GENERAL
Jefferson.Garn@atg.in.gov
Kaylan L Phillips
PUBLIC INTEREST LEGAL
FOUNDATION
kphillips@publicinterestlegal.org
William R. Groth
MACEY SWANSON LLP
wgroth@fdgtlaborlaw.com
Aleksandrina Penkova Pratt
INDIANA ATTORNEY GENERAL
aleksandrina.pratt@atg.in.gov
Dale E. Ho
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, INC.
dale.ho@aclu.org
Gavin Minor Rose
ACLU OF INDIANA
grose@aclu-in.org
Matthew Jedreski
DAVIS WRIGHT TREMAINE LLP
mjedreski@dwt.com
Kate Kennedy
DAVIS WRIGHT TREMAINE LLP
katekennedy@dwt.com
Sophia Lin Lakin
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, INC.
slakin@aclu.org
Rebecca L. McClain
INDIANA ATTORNEY GENERAL
rebecca.mcclain@atg.in.gov
Christiane A. Roussell
DAVIS WRIGHT TREMAINE LLP
christianeroussell@dwt.com
Kathryn Sadasivan
DEMOS
ksadasivan@demos.org
Kelly Suzanne Thompson
INDIANA ATTORNEY GENERAL
kelly.thompson@atg.in.gov
Grace Katherine Thompson
DAVIS WRIGHT TREMAINE LLP
gracethompson@dwt.com
26
Diana Lynn Moers
INDIANA ATTORNEY GENERAL
diana.moers@atg.in.gov
L. Danielle Toaltoan
DAVIS WRIGHT TREMAINE LLP
danielletoaltoan@dwt.com
27
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