On August 27, 2019, the 7th Circuit Court of Appeals affirmed the preliminary injunction ruling from last year, which blocked a controversial purge law that could have removed voters without notice. After Indiana amended that law in 2020, the federal district court granted summary judgment in favor of plaintiffs and permanently enjoined the amended law on August 20, 2020 because the state law continued to violate federal law. On July 19, 2021, the Seventh Circuit affirmed the lower court’s summary judgment ruling and remanded the case to the lower court to issue a permanent injunction consistent with the court’s opinion.
At issue in the suit are Senate Enrolled Act 442 and Senate Enrolled Act 334, Indiana laws that violate the National Voter Registration Act (NVRA) by eliminating requirements to provide a notice and waiting period for a group of voters flagged as having moved out of state. On August 23, 2017, plaintiffs Indiana NAACP and the League of Women Voters of Indiana filed suit seeking reinstatement of federal protections eliminated by SEA 442. In June of 2018, a federal court blocked enforcement of SEA 442. The defendants later appealed the preliminary injunction order to the 7th Circuit Court of Appeals, and the court heard oral argument on the appeal on January 14, 2019. On August 27, 2019, the 7th Circuit Court of Appeals affirmed the preliminary injunction.
On March 20, 2020, Governor Eric Holcomb signed Senate Enrolled Act 334 (SEA 334), which amended SEA 442. However, SEA 334 still expressly allows purges without direct contact from the voter, and without the notice and waiting period required by the NVRA.
On July 1, 2020, the NAACP and LWV-IN filed a motion for summary judgment, seeking a permanent injunction.
On August 20, 2020, the Court granted Plaintiffs’ motion for summary judgment and denied the state’s motion to dismiss. The Court agreed that SEA 334 violates the NVRA in the same way as SEA 442 did because it permits removal without direct contact with the voter and without the Notice-and-Waiting period. As a result, the Court permanently enjoined Defendants from implementing Sections 5.5(d)–(f) of SEA 334 and prohibited 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.
On September 21, 2020, defendants noticed their appeal of the district court’s August 20th judgment and the Seventh Circuit heard oral arguments on April 22, 2021.
On July 19, 2021, the Seventh Circuit affirmed the lower court’s summary judgment ruling, finding that SEA 334 continued to violate the NVRA, and was therefore preempted by federal law. The Court of Appeals remanded the case to the lower court, directing that the lower court issue a permanent injunction consistent with the NVRA’s requirement that Indiana must either receive a communication generated by the voter, or undertake the NVRA-mandated notice-and-waiting process, before the state may cancel a voter’s registration.
Voter purges, the process by which states remove the names of supposedly ineligible individuals from registration lists, can sweep in eligible voters if done improperly. While responsible voter list maintenance is necessary and appropriate, largescale voter purges without safeguards can result in wrongful disenfranchisement. Necessary safeguards include compliance with the National Voter Registration Act of 1993, also known as motor-voter. Among other requirements, the NVRA provides that before voters can be removed because of change of residence, they must either confirm that they have moved or receive a mailed notice that they are going to be removed, fail to respond, and fail to vote in two consecutive federal elections. Voter purges also risk removing eligible voters if election officials use bad data (or use data in a sloppy manner) in their attempt to identify ineligible voters.
SEA 442 relied on the now-defunct Crosscheck program to identify ineligible voters, even though Crosscheck had been proven to be unreliable as the sole basis for identifying and removing voters who may have moved. When Crosscheck, which was administered by the Kansas Secretary of State, was used for a 2013 Virginia voter purge, 40,000 registered voters were removed from the rolls prior to a statewide election, even though local election officials found error rates as high as 17 percent. Moreover, according to a 2016 analysis, minorities were more likely than white voters to be flagged for removal in Crosscheck.
SEA 334 voided Indiana’s agreement with the Kansas Secretary of State and mandated Indiana’s withdrawal from Crosscheck. However, in Crosscheck’s place, SEA 334 established the Indiana Data Enhancement Association (“IDEA”), an organization functionally identical to Crosscheck that receives member states’ voter lists and returns purported matches.
Plaintiffs are represented by the Brennan Center for Justice at NYU School of Law, Quinn Emanuel Urquhart & Sullivan, LLP, and Trent A. McCain of McCain Law Offices, P.C.
- NVRA Notice Letter from the Brennan Center for Justice to the Indiana Secretary of State (05/25/2017)
- Complaint (08/23/2017)
- Motion for Preliminary Injunction (03/09/2018)
- Defendants’ Appeal of Preliminary Injunction (10/01/2018)
- Appellees’ Response (11/30/2018)
- Appellants’ Reply (12/14/2018)
- Oral Argument (01/14/2019)
- Seventh Circuit Opinion Affirming Preliminary Injunction (08/27/2019)
- Motion for Summary Judgment (07/01/2020)
- Defendants’ Motion to Dismiss (07/01/2020)
- Order Granting Plaintiffs’ Motion for Summary Judgment and Permanent Injunction and Denying Motion to Dismiss (08/20/2020)
- Defendants’ Appeal of Permanent Injunction (12/04/2020)
- Appellees’ Response (01/19/2021)
- Appellants’ Reply (02/26/2021)
- Seventh Circuit Opinion Affirming Summary Judgment (7/19/2021)