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Common Cause Indiana v. Lawson

United States Court of Appeals, Seventh Circuit

August 27, 2019

Common Cause Indiana, Indiana State Conference of the National Association for the Advancement of Colored People, and League of Women Voters of Indiana, Inc., Plaintiffs-Appellees,
Connie Lawson, in her official capacity as Secretary of State of Indiana, et al., Defendants-Appellants.

          Argued January 14, 2019

          Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. 1:17-cv-03936-TWP-MPB, 1:17-cv-02897-TWP-MPB - Tanya Walton Pratt, Judge.

          Before Wood, Chief Judge, and Brennan and St. Eve, Circuit Judges.

          WOOD, CHIEF JUDGE.

         Voting is at once an intensely personal act and a choice to participate in the collective process of representative democracy. It cannot take place, however, without an elaborate administrative infrastructure. This case concerns that machinery-in particular, the process that Indiana wants to use to cleanse its voter rolls of people it suspects no longer qualify to vote there. Senate Enrolled Act 442 ("Act 442"), which was passed in 2017 and codified at Indiana Code § 3-7-38.2-5(d)-(e), adopted an aggressive new strategy for this purpose, allowing Indiana immediately to remove a voter based on information received from a third-party database rather than in response to direct contact with the voter. Several organizations promptly challenged Act 442 in court, asserting in two separate actions that it violates the National Voter Registration Act. They sought a preliminary injunction against the implementation of the new law while both cases proceeded. Finding that the plaintiffs were likely to succeed on the merits and that they would suffer irreparable injury if the law were to take effect immediately, the district court issued preliminary injunctions "prohibiting the Defendants from taking any actions to implement [Act 442]" until the cases are concluded.

         The state appealed the injunctions to this court, see 28 U.S.C. § 1292(a)(1), and we consolidated the two cases for decision. We conclude that the plaintiff organizations in each case adequately demonstrated their standing to bring these actions and that the district court did not abuse its discretion by granting preliminary relief. We therefore affirm.



         It is largely the responsibility of the states to set up and operate the machinery necessary for voting. Article I, section 4, clause 1, of the federal Constitution allows state legislatures to prescribe the "Times, Places and Manner" of holding elections for U.S. senators and representatives. Nonetheless, the federal Constitution places certain limits on the states' choices. Several amendments protect the franchise of certain groups (the Fifteenth, for racial groups; the Nineteenth, for women; and the Twenty-Sixth, for those who have reached age 18), while another amendment assures that a poll tax cannot stand in the way of voting (the Twenty-Fourth). Importantly, however, the case before us does not present an issue under any of those amendments. It turns instead on one of the laws Congress enacted pursuant to the language in Article I, section 4, clause 1, stating that "Congress may at any time by Law make or alter such [state] Regulations, except as to the Places of choosing Senators." That law is the National Voter Registration Act (NVRA), 52 U.S.C. §§ 20501-11.

         Congress made no mystery of its purposes for passing the NVRA. It stated them in the opening section of the statute:

(b) Purposes The purposes of this chapter are-
(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
(2) to make it possible for Federal, State, and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;
(3) to protect the integrity of the electoral process; and
(4) to ensure that accurate and current voter registration rolls are maintained.

Id. at § 20501(b). This case is primarily concerned with the fourth of those purposes-the maintenance of accurate and current voter registration rolls.

         Several sections of the law address national procedures for voter registration. Those procedures start with section 20503, which requires states to allow registration for federal elections in several ways, including through the motor vehicle license process (section 20504), by mail (section 20505), or in person through a voter registration agency (section 20506). But the section of greatest interest to us is 20507, which contains "[requirements with respect to administration of voter registration"-here, maintenance of the voter registration rolls. As does the NVRA as a whole, this part of the law reflects two competing concerns: on the one hand, the need to ensure the integrity of the electoral process, §§ 20501(b)(3)-(4); and on the other hand, the need to increase voter registration and enhance voter participation, §§ 20501(b)(1)-(2).

         The NVRA sets the boundaries within which states must operate when they administer the voter-registration process. It requires states to update their voter-registration rolls, section 20507(a)(4), but it also forbids states from removing voters from the official lists of eligible voters except under prescribed circumstances, section 20507(a)(3). A voter may request that his or her name be taken off the rolls, section 20507(a)(3)(A), but in the absence of such a request, if a state wants to remove a name because it suspects that the voter has moved, it must follow the procedures spelled out in section 20507(d). Because of its importance to this case, we set out the lengthy text of that section in a footnote.[1] The critical fact here is that the registrant must inform the state about the change in residence, or the registrant must fail to respond to a notice sent by the state inquiring about continued eligibility. Moreover, it is not enough for the registrant to fail to respond to the state's notice. That person's name cannot be removed from the rolls, according to section 20507(d)(1)(B)(ii), until the state can show that the person did not vote or appear to vote in an election during the period beginning on the date of the notice and ending on the day after the second general election for federal office thereafter.


         In Spring 2017, the Governor of Indiana signed into law Act 442, which was designed to revamp the way Indiana updates its voter-registration lists. (The law was later codified at Indiana Code § 3-7-38.2-5(d)-(e), but in keeping with the practice in this case, we refer to it by its legislative name.) Act 442 was far from Indiana's first effort to ensure the accuracy of its official list of voters. At the time the law was passed, the state relied on a third-party database known as Crosscheck, which aggregates voter data from multiple states to identify potential duplicate voter registrations. Participating states could then follow up on the Crosscheck matches by sending the NVRA-required notices to the voters whose names potentially appeared on more than one state's voter rolls. Act 442 was designed to use Crosscheck more robustly by allowing Indiana automatically to remove a voter from the rolls if the voter was identified as a database "match" with a certain level of confidence. Act 442 made no provision for contacting the voter or confirming her wish permanently to change domicile and cancel her Indiana registration.

         Act 442 was immediately challenged in two separate lawsuits by three different voter-advocacy organizations: The Indiana National Association for the Advancement of Colored People (NAACP), the League of Women Voters of Indiana (the League), and Common Cause Indiana (CCI) (collectively "the Organizations"). The defendants are Connie Lawson, Secretary of State of Indiana; J. Bradley King, Co-Director of the Indiana Election Division in the Secretary's office; and Angela Nussmeyer, Co-Director of the Indiana Election Division. The Organizations sued all defendants in their official capacity only; we refer to them collectively as Indiana. In both cases, the Organizations contend that Act 442 violates the NVRA insofar as it allows Indiana to remove voters from the rolls without following the procedures specified by the federal statute. The Organizations obtained substantively identical preliminary injunctions that prevent Act 442 from going into effect while the cases are pending.

         Indiana would like us to lift those injunctions. We conclude, however, the district court was correct to find that the Organizations are likely to succeed on the merits of their challenge, that they and their members will be irreparably harmed if the law goes into effect temporarily, that the state will not be materially injured if the lists are not subjected to this extra layer of purging immediately, and that the public interest favors compliance with the NVRA.


         Before we may reach the merits of the injunctions, we must address Indiana's challenge to the Organizations' Article III standing. The Organizations claim standing on their own behalf, as well as on behalf of their members. We start- and for the most part finish-with the Organizations' standing to raise their own claims. To assert standing for injunctive relief, they must show that they are under an actual or imminent threat of suffering a concrete and particularized "injury in fact"; that this injury is fairly traceable to the defendant's conduct; and that it is likely that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). The plaintiffs bear the burden of establishing each of these elements. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). We evaluate legal questions de novo and review any factual determinations necessary to resolve the Organizations' standing for clear error. Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir. 2004).


         On appeal, Indiana challenges only the district court's conclusion that the Organizations made a compelling enough showing of injury in fact to show Article III standing at this stage. We too therefore focus on injury in fact. (We briefly address causation and redressability below, as all three requirements affect our jurisdiction.)

         The leading case for this purpose is Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). It addressed the right of an organization, Housing Opportunities Made Equal (HOME), to sue an apartment owner under the Fair Housing Act for racial discrimination. HOME employed "testers" to apply for rental apartments, to determine whether the apartment owners were engaged in conduct forbidden by the Act. When the testers uncovered racial steering by defendant Havens, HOME and the testers brought a suit under the Fair Housing Act. The defendant challenged HOME's Article III standing; but the Supreme Court found that HOME did have standing in its own right:

If, as broadly alleged, petitioners' steering practices have perceptibly impaired HOME's ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization's activities- with the consequent drain on the organization's resources-constitutes far more than simply a setback to the organization's abstract social interests....

455 U.S. at 379. Following Havens, we recognized in Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), aff'd on other grounds, 553 U.S. 181 (2008), that a voting law can injure an organization enough to give it standing "by compelling [it] to devote resources" to combatting the effects of that law that are harmful to the organization's mission. Id. at 951. We found there that a political party had standing to challenge an Indiana voting law. That law, we accepted for the preliminary standing inquiry, likely discouraged some of the party's supporters from voting. The law thus struck directly at the organization's mission and forced it to spend resources to get discouraged voters to the polls. Id. In affirming our decision, the Supreme Court stated in a footnote that: "[w]e also agree with the unanimous view of those judges that the Democrats have standing to challenge the validity of [the law] ...." Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 n.7 (2008).

         Nothing in the Supreme Court's later standing jurisprudence has undermined the holdings of Havens or Crawford, which are therefore binding on us. To the contrary, the Court cited Havens with approval in 2017, in Bank of America Corp. v. City of Miami, Florida, 137 S.Ct. 1296, 1303 (2017), where it noted that the Fair Housing Act allows suits by "a nonprofit organization that spent money to combat housing discrimination." Id. The Court likewise emphasized that organizations may rely on not only actual, but imminent harm for standing, including by challenging laws pre-enforcement if the organization can show a substantial threat of injury. Thus, in Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), the Court ruled that an organization dedicated to pro-life advocacy adequately alleged injury in fact for Article III purposes when it challenged a state law prohibiting certain "false statements" made during political campaigns. Id. at 151-52, 161. It based that finding not on anything the organization had already done, but instead on specific statements that it intended to make in future election cycles.

         Importantly, neither Havens, Crawford, nor the present case involves any effort to rely on something as amorphous as taxpayer standing or speculative injury. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) (no taxpayer standing); Clapper v. Amnesty Intern. USA, 568 U.S. 398 (2013) (speculative injury). In Valley Forge, the Court held that an atheist organization could not show injury in fact based solely on "the depriv[ation] of the fair and constitutional use of [its] tax dollar." 454 U.S. at 476. See also Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587 (2007) (no standing for organization that complained about spending federal money to promote faith-based initiatives); United States v. Richardson, 418 U.S. 166 (1974) (no taxpayer standing to challenge reporting under the Central Intelligence Agency Act of 1949). In Clapper, the Court held that the organizational plaintiff had failed to show that the injury it feared (surveillance of its international communications) was concrete enough to support standing. 568 U.S. at 411-14. The Court also found that the plaintiffs could not rely for standing on the "costly and burdensome measures to protect the confidentiality of their communications" that they felt compelled to take, because they had not shown the situation was imminent, or as the Court put it, "certainly impending." Id. at 416.

         The complaints and supporting materials presented by the Organizations in the present cases do not suffer from those defects. This is not a taxpayer case, and the injury the Organizations describe is either imminent or has already begun; it is concrete, ongoing, and likely to worsen. Havens and Crawford are thus the most pertinent authorities, and each Organization put forward evidence to support standing based on the kind of organizational injuries upheld in those cases.

         Each Organization is a non-profit entity that advocates for voter access, conducts voter education to promote voter access, helps voters overcome any challenges they face trying to vote, and helps voters register to vote (or re-register if needed). CCI Complaint ¶¶ 60, 62; NAACP/League Complaint ¶¶ 6-11. Extrapolating from their experience assisting people who were erroneously dropped from the rolls, the Organizations expect that if Act 442 is allowed to go into effect and the state starts removing eligible voters from the rolls without notice, errors are inevitable, and the Organizations will be forced to spend resources cleaning up the mess. CCI Complaint ¶ 60; NAACP/League Complaint ¶¶ 8, 11. Beyond this, the NAACP and the League predict that some of the very voters they registered will be erroneously un-registered. NAACP/League Complaint ¶¶ 8, 11. CCI claims already to have expended resources educating voters and community activists about Act 442 and the enhanced risk of erroneous voter removal. CCI Complaint ¶ 60.

         In support of their motions for preliminary injunctions, the Organizations submitted declarations and affidavits from the NAACP President, Barbara Boiling-Williams, the League's Co-President, Oscar Anderson, and the Policy Director of CCI, Julia Vaughn. This evidence expands on the general picture painted in the Organizations' complaints of the likely work Act 442 will create for them. Boiling-Williams explains, for example, how Act 442 "will cause [the NAACP] to expend [its] limited financial resources on rolling back the effects of the bill." Boiling-Williams Declaration ¶ 21. She describes the NAACP's work as including voter-registration drives and deploying volunteers who provide voter support on Election Day with issues including "registration cancellations." Id. ¶¶ 7, 10-11. Boiling-Williams expects that the NAACP will have to expand "voter education and poll monitoring programs to address the effects of the law should it go into effect." Id. ¶ 22. The NAACP is further concerned that any chaos created at polling places by Act 442 would exacerbate existing disparities in polling place resources with harmful effects such as long lines and undermine the NAACP's work to combat those disparities on Election Day. Id. ¶¶ 19-21.

         Anderson's declaration describes the League's work "educating the public on voting rights." Anderson Declaration ¶ 5. Anderson calls the League's work registering voters "vital" and "critical" to the organization. Id. ¶¶ 8, 10. After the League registers a voter, volunteers often follow up with the voter, "give them other information about elections," or remind them of upcoming elections. Id. ¶¶ 13-14. According to Anderson, because of its concern about Act 442's imminent effect, "the League has already devoted resources to ensuring that voters are checking their registrations to make sure they have not been purged." The League "created a poster and a resource on [its] website encouraging voters to check their registration status." Id. ¶ 22. As Anderson puts it, "[a]ny time League members spend addressing the risk of the voter purge by educating voters or re-registering purged voters takes away time and resources that could otherwise be spent registering voters or assisting voters with other purposes." Id. ¶ 32.

         Speaking for CCI Vaughn states in her declaration that the organization knows that it will receive calls from voters identified by the Crosscheck program, because it already does. Even now CCI receives calls from voters who received "cancellation notices" under Indiana's current system because Crosscheck identified them as potential duplicates. Vaughn Declaration ¶ 14. The targeted voters often seek out CCI for advice. Id. CCI expects to get even more calls from voters who discover that they have been dropped without notice- though more, and more frantic ones-up to and including on Election Day. Id. ¶¶ 14-17, 26. CCI trains volunteers to serve as Election Day poll monitors who answer voter questions, including those about erroneous cancellations of registration. Id. ¶ 16.

         Demonstrating that the Organizations are not imagining things, the record shows that CCI already has "devoted additional time and resources to ameliorating the its [sic] effects of this law, including conducting activities such as training sessions aimed at educating voters and community activists about the increased risk of erroneous voter registration cancellations." Id. ¶ 19. Vaughn reports that "because of Act 442, [CCI] has had to change its curriculum" and "spend a greater portion of the fixed amount of time we have for [training sessions] on discussing Act 442's effects, which necessarily diverts from the time we could spend talking about other issues." Id. ΒΆ 24. The more time and resources that CCI spends addressing the effects of Act 442, the ...

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