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.
At issue in the suit is Senate Bill 442, an Indiana law enacted in 2017 that violates the National Voter Registration Act by eliminating requirements to provide a notice and waiting period for a group of voters flagged by the Crosscheck program, a flawed interstate database. On August 23, 2017, plaintiffs Indiana NAACP and the League of Women Voters of Indiana filed suit seeking reinstatement of federal protections eliminated by SB 442. In June of 2018, a federal court blocked enforcement of the law. 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.
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 (NVRA), 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.
Crosscheck, which Indiana has used since 2015 to identify ineligible voters, is supposed to identify voters registered in multiple states, but it has proven to be unreliable as the sole basis for identifying and removing voters who may have moved. When Crosscheck, which is administered by Kansas Secretary of State Kris Kobach, 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 are more likely than white voters to be flagged for removal in Crosscheck.
These dangers can be partially mitigated by providing notice and a waiting period to voters before they are removed based on Crosscheck, as required by the NVRA. However, S.B. 442, which was enacted in 2017, would permit Indiana to remove voters using Crosscheck without the NVRA-mandated notice and waiting period. It would also result in a list maintenance program that is not reasonable, uniform, and nondiscriminatory, contrary to the NVRA.
The 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
Under the district court’s preliminary injunction order of June 8th, enforcement of the law is blocked while the case proceeds.
- 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)
- Final Judgement (08/27/2019)
- Opinion (08/27/2019)