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Common Cause Indiana v. Lawson

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

June 8, 2018

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.

          ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on a Motion for Preliminary Injunction filed pursuant to Federal Rule of Civil Procedure 65 by Plaintiff Common Cause Indiana (“Common Cause”) (Filing No. 75). Common Cause challenges the legality of Indiana Senate Enrolled Act 442 (2017) (“SEA 442”), codified at Indiana Code § 3-7-38.2-5(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. Common Cause maintains that SEA 442 violates the NVRA by circumventing its procedural safeguards. Common Cause seeks preliminary injunctive relief to prohibit the Defendants from implementing or enforcing SEA 442. For the following reasons, the Court grants Common Cause's 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. The NVRA allows a voter's registration to be removed from the rolls if the voter requests to be removed, if the voter dies, 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, “Any 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.

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 that either (1) the voter confirm 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. (Filing No. 74-24 at 1, ¶ 3.) 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 Connie 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, 3-6-4.2-2(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 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; Filing No. 91-1 at 1; Filing No. 91-2 at 1. These co-directors are individually appointed by the Governor based on recommendations from Indiana's Democratic and Republican parties, respectively. Id. 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.

         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, 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. 74-1 at 6-7).

         King and Nussmeyer are additionally responsible for building, managing, and maintaining the statewide voter registration system, which includes creating 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 § 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).

         King and Nussmeyer are also responsible for establishing the standard operating procedures and the business rules that determine how the electronic statewide voter registration 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. 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, they often respond to the county's inquiries independently and without consulting one another (Filing No. 74-1 at 8-9; see also Filing No. 74-7; Filing No. 74-8). They 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.

         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. 74-10).

         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 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. 74-1 at 11-12; Filing No. 74-4 at 8). No. data has been sent yet by King and Nussmeyer to the county election officials for the 2018 election cycle (Filing No. 79-2 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 § 3-7-38.2-5(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. 74-11 at 6.) 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. 74-2 at 7-8).

         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. 74-11 at 6; Filing No. 74-1 at 13). Some county officials just assume that the Indiana registration predates the other state's registration, which leads 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, this information is not complete or consistent because states that participate in Crosscheck do not 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. 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 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 ...

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