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Common Cause Indiana v. Marion County Election Board

United States District Court, S.D. Indiana, Indianapolis Division

April 25, 2018

COMMON CAUSE INDIANA, et al. Plaintiffs,


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

         Plaintiffs brought this lawsuit under 42 U.S.C. § 1983 alleging and seeking to enjoin violations of the First and Fourteenth Amendments to the Constitution and Section 2 of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10301.[1] Now before the Court is Plaintiffs' motion for a preliminary injunction. For the reasons below, that motion is granted in part and denied in part.

         Facts and Procedural History

         Plaintiffs are two public-interest groups and two private residents of Marion County, Indiana. The public-interest groups are Common Cause Indiana, which “has long worked to expand voter registration and . . . equal access to voting[, ]” Am. Compl. (Dkt. 55) ¶ 4, and the Greater Indianapolis Branch 3053 of the NAACP, which “[t]hroughout its [more than one-hundred-year] history . . . has led and continues to lead the fight for civil rights, voting rights[, ] and economic justice for African-American residents of Indianapolis and Marion County.” Id. ¶ 56. The private plaintiffs are John Windle (“Windle”) and Doris A. McDougal, who are registered and active Marion County voters.[2]

         Defendants are the Marion County Election Board (“the Board”) and its three members in their official capacities: Myla A. Eldridge (“Eldridge”), Keith Johnson (“Johnson”), and Melissa Thompson (“Thompson”). By law, see Ind. Code § 3-6-5-2, the three-member Board consists of the elected clerk of Marion Circuit Court (Eldridge) and her two appointees, one from the county Democratic Party (Johnson) and one from the county Republican Party (Thompson). The Republican member of the Board was formerly, at times relevant to this lawsuit, Maura J. Hoff (“Hoff”). Hoff was originally named as a defendant, but Thompson was substituted for Hoff when the former succeeded to the latter's seat on the Board. See Fed. R. Civ. P. 25(d).

         I. Early In-Person Voting Under Indiana Election Law

         Under Indiana election law, Ind. Code tit. 3, a voter may cast her vote otherwise than at the polls on election day by what is known as “absentee” voting. See Id. ch. 3-11-10. An absentee vote may be cast by mail if the voter meets one of thirteen conditions, see Id. § 3-11-10-24(a)(1) through (13), such as having “a specific, reasonable expectation of being absent from the county [where she is registered] on election day during the entire twelve . . . hours that the polls are open[, ]”[3] id. § 24(a)(1), or being “a serious sex offender” as that term is defined under state criminal law. Id. § 24(a)(12). An absentee vote may also be cast in person, without the voter having to satisfy any of the thirteen conditions for voting absentee by mail, id. § 26(a), no earlier than twenty-eight days before, and no later than noon on the day before, election day. Id. § 26(f). For this reason, in-person absentee voting is sometimes called “early in-person” or “EIP” voting.

         The county circuit court clerk (or simply, “the county clerk”), as already noted, is ex officio a member of the county election board, and is charged by statute with much of the responsibility for election administration. See Id. § 33-32-2-6. The county clerk's office must be open for early in-person voting for at least seven hours on each of the two Saturdays before election day. Id. §§ 3-11-10-26(a)(1), (h). But a county election board may also establish “satellite offices in the county where voters may cast” EIP votes. Id. § 26.3(a). See also Id. § 26(a)(2) (entitling voters to vote early in person at satellite office established under § 26.3). Satellite offices may be established only by unanimous resolution of a county election board, id. § 26.3(b), which, if adopted, “expires January 1 of the year immediately after the year in which the resolution is adopted.” Id. § 26.3(i). As relevant here, the statute does not constrain a county election board's discretion to decide whether to establish satellite offices, where such offices should be, how many should be established, or how long they should be open for voting; and the statute provides no guidance on reaching such decisions.

         II. Early In-Person Voting in Marion County

         Marion County is Indiana's most populous and most racially diverse (that is, having the highest nonwhite population in both absolute and relative terms). Dkt. 63 Ex. 6, at 18. Marion County first experimented with satellite offices for early in-person voting in 2008, a presidential election year. That year, the Board unanimously approved two satellite offices, one at North Central High School and another at the Southport Government Center. Dkt. 66 Ex. A (Eldridge Dep.) 7:7-13, 11:11-14. More than 73, 000 Marion County voters cast EIP votes. Answer Am. Compl. (Dkt. 60) ¶ 15. “Indiana, for the first time since 1964, cast its electoral votes for the Democratic Party's nominee for President.” Pls.' Br. Supp. (Dkt. 62) 8.

         Eldridge, then the Board's deputy director, deemed 2008's satellite-office experiment a success. Dkt. 63 Ex. 8 (Eldridge Dep.) 11:25-12:6. Eldridge did not encounter “any difficulties” in “finding sufficient numbers of poll workers or volunteers” to “staff those early voting locations[.]” Id. at 7:20-25. Eldridge never received or heard of any complaints of fraud, “unexpected administrative difficulties . . . [, ]” id. at 12:14- 16, or any other “complaints from citizens about the[] satellite voting locations[.]” Id. at 12:7-9. As both satellite offices were located on public property, the Board was able to secure their use at no cost. Id. at 7:14-19. In Eldridge's experience, “early voting plays an important rol[e] in alleviating congestion and problems that often arise during a single election day[.]” Id. 8:9-12. Naturally, the greater the number of early voters, the fewer the voters crowding the polling places on election day. But further, for example, administrative errors are easier to correct when earlier discovered, and “voters who cast their vote early typically have a greater tolerance for wait times because they've chosen the day and the time that is convenient for them to vote.” Id. 9:1-5.

         Jennifer Ping (“Ping”) reported a different experience. Ping is a former chair of the Marion County Republican Party but, in 2008, was co-owner of a lobbying firm and did not then appear to have any role (at least any formal role) in county politics or county election administration. She reported,

I myself did vote early at the Southport location in 2008, and in addition to having that concern of verifying a voter actually voted-might have voted earlier, the process of printing nearly a thousand different ballots styles [sic] on demand did not go smoothly and created a lot of chaos for the workers there as well as the voters, myself included.

Dkt. 66 Ex. B (Ping Dep.) 14:1-8. However, Ping was not aware of “any evidence that any voter in 2008 in Marion County voted more than once[, ]” id. at 14:9-12, and did not, in the materials designated to the Court, explain why the demands of ballot-printing were greater at satellite offices than at the clerk's office, or greater at satellite offices before election day than at polling places on election day.

         The Board again approved the use of satellite offices, four of them this time, for a local, nonpartisan referendum in 2009. Dkt. 66 Ex. A (Eldridge Dep.) 13:2-14:1. But resolutions to re-establish satellite offices in Marion County failed in every federal general election year thereafter-2010, 2012, 2014, and 2016-each time for lack of the Republican Board member's or her proxy's vote. Id. at 14:12-22 (2010); id. at 14:23- 15:1 (2012, 2014, 2016); Dkt. 63 Ex. 3, at 4 (2016 May primary election); id. at 11 (2016 November general election).

         III. The 2016 Resolutions

          Hoff was the Republican Board member for 2016; her predecessor was Mindy Brown. Hoff was “recruited” for, Dkt. 63 Ex. 9 (Hoff Dep) 8:19-20, and de facto appointed to, [4] that position in January or February 2016 by Ping, then the chair of the county Republican Party; Mike McQuillen (“McQuillen”) succeeded Ping in that position in the summer of 2016. (As of September 2017, the party chairmanship was held by state senator Jim Merritt.) As a “political appointee, ” Hoff “would not say that [she] felt obliged to follow the party line, but as an appointee, [she] would give deference to the opinion of the party on those matters [before the Board].” Dkt. 63 Ex. 9 (Hoff Dep.) 11:2-5.

         In Hoff's experience, “[s]atellite voting . . . tend[s] to be party divided.” Id. at 11:17-18. When a satellite-office resolution was introduced in spring 2016, ahead of the May primary election, Ping and Hoff “talked through it and agreed on how [Hoff] should vote[, ]” id. at 15:15-16, which is to say, in the negative. “[T]he two main points” Ping brought to Hoff's attention were, first, “that the resolution had solely been drafted by the Democrat[ic] Party and had not been discussed with [Ping], ” and, second, “the cost and administrative headache that it would bring.” Id. at 16:9-18. Hoff did not know how great the expense would be and conducted no independent investigation. Hoff did not discuss her or Ping's concerns with the other Board members or voice them at the Board meeting at which a vote on the spring satellite-office resolution was taken; she simply voted against the resolution without comment.

         A second satellite-office resolution was introduced in 2016 ahead of the November general election. Hoff was apparently unable to attend the Board meeting at which a vote on the resolution was to be taken, so she contacted McQuillen, the newly installed county party chair, Ping, now serving as county party vice chair, and Joey Fox (“Fox”), executive director of the county party, asking if any of the three party officials could serve as her proxy at the Board meeting. Fox responded that he was available to serve as Hoff's proxy.

         Hoff informed him that “it would be [her] preference for him to vote no on [the satellite-office resolution].” Id. at 24:1-2. She explained her preference to Fox as follows:

After we [the Marion County Republican Party] opposed [the satellite-office resolution] in the spring, it was understood that the Republican Party and the Democrat[ic] Party were going to get together and work in collaboration, and I was told that those contacts never happened, that there was a round of phone tag between [Ping] and [Eldridge] and they never got ahold of one another, so no discussion ever happened.

Id. at 25:12-19. But that was not the only reason Hoff maintained for voting against the satellite-office resolution (though whether she also discussed these reasons with Fox is unclear):

Gosh, there are many [reasons]. One is that the public seems to misunderstand what early voting is, that it's not actually voting, that it's filling out an absentee ballot in another location. And I personally feel that an absentee ballot can be filled out at your home, which is even more convenient, so the necessity of providing additional locations is-it's just not needed. The staff that would be needed to work each location, plus the huge burden that we still have paper poll books in Marion County makes the process very difficult. And we knew that the Clerk's Office was planning to have all-I'm going to try to word this correctly. I hope that I understood it correctly. That everyone who voted early, all those names would have to go to the correct precinct on Election Day and be marked off in the paper poll books because we didn't have an electronic system to do so, and that that was going to significantly delay voting on Election Day, which I felt was a burden to the voter who showed up on Election Day.

Id. at 26:3-24. Finally, though “partisan politics” was “not a reason [Hoff] was given for voting” against the satellite-office resolutions, and, if partisanship did play a role, “that decision was made by someone else[, ]” id. at 32:3-6, Hoff “[didn't] deny that partisan politics probably plays a hand in decision making” on this issue. Id. at 48:11-12.

         Eldridge, for her part, agreed with Hoff that “the decision whether to have satellite voting locations has become a partisan issue in Marion County[, ]” Dkt. 63 Ex. 8 (Eldridge Dep.) 22:9-12, but otherwise disagreed with Hoff's assessment of EIP voting in Marion County (which, in any event, was never communicated to Eldridge by Hoff). First, Eldridge had no “reason to believe that the public doesn't understand what early in-person absentee voting is[.]” Id. at 20:10-13. Second, Eldridge disputed Hoff's conclusion that satellite offices were duplicative of voting absentee by mail and therefore unnecessary, because a voter's right to vote absentee by mail is limited by statute, whereas the right to vote early in person is not. Third, Eldridge denied that Marion County's use of paper poll books was a “huge burden on having satellite voting offices.” Id. at 21:22-25. Marion County uses exclusively paper poll books for all voters, no matter their chosen means of voting; “[i]n order to have satellite sites, you do not have to have electronic pollbooks[, ]” id. at 22:2-3; and Hoff did not further explain why marking off voters in a paper poll book would be more burdensome with respect to early in-person voters than either absentee by-mail voters or election day voters. Indeed, before this Court, the Board and each of its members have conceded that “early voters and Election Day voters in Marion County are likely to experience longer lines and wait times than would otherwise exist” following the Board's rejection of satellite offices. Answer ¶ 26 (emphasis added).

         In this way, both resolutions for satellite offices in 2016 failed for lack of the Republican Board member's vote-just as similar resolutions had failed in every federal general election year since 2008. As Hoff's (and Fox's) nay votes had been cast without public discussion or comment, a columnist of the Indianapolis Star newspaper was prompted to contact Hoff for a statement of her reasons in so voting. Hoff did not respond immediately, but first “consulted [McQuillen] and [Ping] as to whether they wanted to make a party statement about the issue, and they advised that it would be better not to comment.” Dkt. 63 Ex. 9 (Hoff Dep.) 25:2-5.

         IV. The Impact of the Board's Decisions

         As a result of the Board's decision not to re-establish satellite offices, early voting in Marion County is more difficult for voters than it otherwise would be. See Answer ¶ 26. The Marion County clerk's office is located in the City-County Building in central downtown Indianapolis. For plaintiff Windle, it is “exactly 21 miles from [his] home on the northeast side of Marion County.”[5] Dkt. 69 Ex. 10 (Windle Aff.) ¶ 4. For Julie Petrison (“Petrison”), “a registered voter who resides in Washington Township, Marion County, ” Dkt. 69 Ex. 11 (Petrison Aff.) ¶ 1, it is an “approximately twenty-five (25) to thirty (30) minute[]” drive to the clerk's office from her home.[6] Id. ¶ 3. Eldridge estimated that, by bus, a trip to the City-County Building from Pike Township in northwestern Marion County “would be about 30 minutes[, ] . . . assuming they were on a direct line downtown[.]” Dkt. 63 Ex. 8 (Eldridge Dep.) 32:9-18.

         Voters taking public transportation to the City-County Building must pay the bus fare, $1.75 per one-way ticket. Id. at 31:24; Dkt. 75 Ex. 13 (Vaughn Aff.) ¶ 20. Voters taking private transportation must find parking in downtown Indianapolis. In Eldridge's opinion, “[p]arking is not convenient downtown. There are really no accessible lots leading up to an election or surrounding the City-County Building.” Dkt. 63 Ex. 8 (Eldridge Dep.) 25:10-13. In 2016 particularly, downtown parking was limited by ongoing construction projects. See Dkt. 63 Ex. 9 (Hoff Dep) 32:15-19. Windle learned that the Board “had chosen a particular parking lot on Pearl Street as the designated no-charge parking place for early voters. But although [he] tried multiple times over numerous days, [he] was never able to secure a parking spot there, [n]or along the one block stretch . . . of Delaware Street . . . also so designated.” Dkt. 69 Ex. 10 (Windle Aff.) ¶ 6. The Pearl Street lot may be entered and exited only by a narrow side-street, and Windle “witnessed absolute gridlock on several occasions [there] where[] frustrated drivers were exiting their vehicles and warning others to turn away.” Id. ¶ 7. Moreover, though Windle had “naively” expected that the Pearl Street lot had been designated for the exclusive use of early voters, id., that was not so, “so that what [Windle] estimated were 50-60 spots set aside for voters were actually only a handful of unreserved parking spaces.” Id. Petrison, being “unfamiliar with the downtown area[, ]” Dkt. 69 Ex. 11 (Petrison Aff.) ¶ 4, was unable to find the Pearl Street lot at all, and “ended up . . . driving around downtown for forty-five (45) minutes before giving up” and parking in a parking garage at the cost of $2. Id. Other voters at the City-County Building told Petrison they had found parking only at a cost of $5 to $7.

         At the City-County Building, Eldridge has observed that lines to cast EIP votes “sometimes extend out into the hallway” and “sometimes extend out into the street[.]” Dkt. 63 Ex. 8 (Eldridge Dep.) 23:19-24. Petrison found “a line extending out the door[, ]” in which she stood for “nearly an hour” before casting her ballot. Dkt. 69 Ex. 11 (Petrison Aff.) ¶ 5. When Petrison left, “the line had grown and by that time stretched out onto the sidewalk for about half a block.” Id. ¶ 6. Petrison's 77-year-old mother had wanted to cast an EIP vote as well but she “did not want to go downtown as she has trouble walking and normally uses a cane or walker[.]” Id. ¶ 7. By contrast to her experience at the City-County Building in 2016, Petrison found voting at the North Central High School satellite office in 2008 “very easy and convenient[.]” Id. ¶ 8. “After four or five attempts to vote early at the City-County Building, ” Windle gave up the effort entirely and instead voted on election day during the brief window permitted by his work schedule. Dkt. 69 Ex. 10 (Windle Aff.) ¶ 8.

         The burdens imposed by EIP voting in Marion County have caused a decline in early voting in Marion County that has not been demographically agnostic. Specifically, as found by Prof. Bernard L. Fraga, professor of political science at Indiana University- Bloomington:

1. The [Board's] failure to approve any satellite voting locations for 2012 and 2016 decreased the proportion of voters voting early in-person absentee in Marion County, relative to 2008.
2. African-Americans who voted absentee were more likely to use early in-person absentee voting in Marion County than non-Hispanic whites who voted absentee in 2008, 2012, and 2016.
3. After the [Board's] failure to approve any satellite voting locations in 2012 and 2016, rates of early in-person absentee voting among African-American absentee voters declined to a greater degree than rates of early in-person absentee voting for non-Hispanic whites, relative to 2008.
4. . . . [T]he [Board's] failure to approve any satellite voting locations for the 2012 and 2016 elections likely had a disproportionate, negative impact on African-Americans in Marion County relative to non-Hispanic whites.

Dkt. 63 Ex. 7 (Fraga Rep.) 5.

         But across all demographic groups, the difference in voting patterns between 2008 and 2016 (both presidential election years) is stark: in 2008, 370, 839 Marion County voters cast ballots; 72, 543 of these were EIP votes. Id. at 6. In 2016, 366, 653 Marion County voters cast ballots, more than 4, 000 fewer votes than in 2008, and a mere 46, 986 of these were EIP votes, id., a 34.5 percent decline which may be instructively compared with the 5.6 percent decline in absentee by-mail votes over the same period. Id. at 7. Notably, this decline is contrary to national trends, as “the proportion of individuals casting ballots before Election Day has increased nationwide since 2008.” Id. at 8. Overall voter turnout in Marion County has declined as well, from 54.73 percent in 2008 and 56.41 percent in 2012, to 52.93 percent in 2016 (all presidential election years). Dkt. 63 Ex. 8, at 25.

         By comparison, other Indiana counties, in particular the next-most populous after Marion and those surrounding Marion, have taken consistent advantage of satellite offices. Early voting has concomitantly grown in popularity in those counties, in line with national trends. For example, Plaintiffs allege that Hamilton County, Marion's whiter, richer, and more Republican northern neighbor, established two satellite offices for the 2016 election, a ratio of one EIP site (including the clerk's office) for every 76, 929 voters. Am. Compl. ¶ 22. Marion County, by contrast, provided one EIP site (the clerk's office) for all of its 699, 709 registered voters. Id. ¶ 21. In addition to Hamilton, Allen, Boone, Elkhart, Hancock, Hendricks, Johnson, Lake, Monroe, Morgan, Porter, Tippecanoe, and Vanderburgh Counties-all either adjacent to Marion, or one of Indiana's most populous counties, or both-have each established multiple satellite offices in recent federal election years. Dkt. 63 Ex. 1 (resolutions of county election boards).

         V. The Instant Motion

         This lawsuit was filed on May 2, 2017. Dkt. 1. Plaintiffs filed their Amended Complaint on January 10, 2018, seeking declaratory and injunctive relief against violations of the First and Fourteenth Amendments and Section 2 of the VRA. Dkt. 57. The instant motion for a preliminary injunction, together with supporting evidentiary designations, was filed on January 31, 2018, seeking an order directing the Board to establish two satellite offices in Marion County (the same number as in 2008) for the 2018 primary and general elections. Dkt. 61.

         Defendants responded to Plaintiffs' motion on February 15, 2018, together with their own evidentiary designations. Dkt. 66. Defendants take “no position” on the constitutional or statutory merits of Plaintiffs' claims. Defs.' Br. Opp. (Dkt. 66) 4. Defendants, writing as of February 15, 2018, do object to an order directing the establishment of satellite offices for the May primary election as too burdensome at such a late hour. Id. at 5. The Board concedes, however, that the burden of an order directing the establishment of satellite offices for the November general election would be “far less without a compressed timeframe, and would be consistent with the burden to establish such satellite offices as part of a [B]oard resolution the majority would support in any event.” Id. at 5-6.

         Plaintiffs replied on February 22, 2018. Dkt. 68. To facilitate an expeditious resolution of the instant motion, Plaintiffs waived an evidentiary hearing and waived their VRA claim solely for purposes of this motion. Pls.' Reply Br. (Dkt. 68) 2. Accordingly, only Plaintiffs' constitutional claim is presented for decision here.

         Consistent with the parties' implied and express representations that a hearing was not necessary on either the law or the facts, on our own motion, we vacated the hearing on Plaintiffs' motion originally set for April 19, 2018. Dkt. 74.

         Standard of Decision

         “[P]laintiff[s] seeking a preliminary injunction must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” D.U. v. Rhoades, 825 F.3d 331, 335 (7th Cir. 2016) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “[T]he more likely it is the plaintiff[s] will succeed on the merits, the less the balance of irreparable harms need weigh towards [their] side; the less likely it is the plaintiff[s] will succeed, the more the balance need weigh towards [their] side.” Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 795 (7th Cir. 2013) (quoting Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 740 (7th Cir. 2013)).[7] The movant's burden is proof by a preponderance of the evidence. Baskin v. Bogan, 983 F.Supp.2d 1021, 1024 (S.D. Ind. 2014).

         “[A] mandatory preliminary injunction, that is, an injunction requiring an affirmative act by the defendant, ” is “‘cautiously viewed and sparingly issued.'” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997) (quoting Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)). Nevertheless, “[a] mandatory injunction can be used to compel restoration of the status quo, . . . [i.e., ] ‘the last peaceable uncontested status that existed before the dispute arose.'” Kimbley v. Lawrence ...

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