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Hill enduring backlash in voting lawsuits

August 22, 2018
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Julia Vaughn of Common Cause Indiana announces a suit over Marion County early voting in May. She says Attorney General Curtis Hill is “seeking to curry favor with hardcore partisans.” (IL file photo)

Even as the Indiana Attorney General’s office is pleading for more time to challenge a ruling that found changes to the state’s voter registration statute violated federal law, the office is taking another election dispute to the 7th Circuit Court of Appeals.

Embattled Attorney General Curtis Hill is trying to intervene in a consent decree that establishes additional early voting sites in Marion County. However, his attempt has been met with an angry backlash, including a sharp rebuke by the Indiana Secretary of State.

Moreover, the controversy comes as Hill is still being investigated for sexual misconduct. The Indiana Inspector General is reviewing allegations that Hill groped State Rep. Mara Candelaria Reardon and three legislative aides at a party after the end of the 2018 legislative session. A special prosecutor has also been appointed, but as of IL deadline, no report or charges had been announced. Republican Gov. Eric Holcomb and Democratic and Republican leaders have urged Hill to resign, but Hill denies the allegations against him.

The latest dust-up over voting was started when Hill’s office quietly filed a motion to alter or amend a consent decree that had been reached between the opposing parties and approved by the U.S. District Court for the Southern District of Indiana, expanding early satellite voting in Marion County.

voting-timeline.pngOnce the filing became public, the plaintiffs, Common Cause of Indiana and the Indianapolis chapter of the NAACP, issued strong statements condemning the action. Also, the defendant, the Marion County Election Board, filed a response in federal court, describing one of the attorney general’s key arguments as “factually incorrect.”

Indiana Secretary of State Connie Lawson called Hill’s action “reckless” and urged him to drop the motion.

In response, the attorney general’s office held a press conference and Solicitor General Thomas M. Fisher tried to downplay the matter.

“Our goal in the case is not to block early satellite voting offices when they are authorized by a unanimous vote of the Marion County Election Board,” Fisher said. “To the contrary, our goal is rather routine. It is to defend the application of the Indiana statutes as written.”

Rep. Ed DeLaney, D-Indianapolis, is now stepping up his effort to remove Hill from office. DeLaney, along with Democratic colleagues Matt Pierce of Bloomington and Ryan Dvorak of South Bend, has filed a resolution in the Indiana House to impeach Hill over the sexual harassment claims.

Now, DeLaney is preparing a bill that would make the attorney general an appointed, rather than elected, position. He said Hill and previous office holders have changed the attorney general from focusing on state courts to stepping on the national stage and joining high-profile, multi-state lawsuits.

In particular, DeLaney pointed to the attorney general joining Texas v. HHS, which takes aim at Obamacare’s individual mandate. Echoing a coalition of health groups in Indiana, DeLaney said dismantling the national healthcare program would put 3 million Hoosiers with pre-existing conditions at risk.

“The word ‘reckless’ is appropriate,” DeLaney said, referring to the Secretary of State’s comments about Hill’s actions. “He is reckless and uncontrollable.”

However, Sen. Jim Merritt, R-Indianapolis, said he supports Hill’s steps to intervene in the early voting consent decree.

The chair of the Marion County Republican Party conceded Hill was “sloppy” because he did not alert the Secretary of State before the motion was filed. Still, Merritt is glad the attorney general’s office is intervening because he believes state law is being interpreted incorrectly by a judge.

As for a bill to allow a governor to appoint the attorney general, Merritt said he would not support it.

“I think the attorney general’s office, first of all, needs to be independent,” he said. “I think Rep. DeLaney expects the attorney general to defend statutes and be directly responsible to the people. I believe the attorney general should be elected.”

Shifting position

The early voting lawsuit, Common Cause Indiana et al v. Marion County Election Board, 1:17-cv-1388, was filed in the spring of 2017. Common Cause and the NAACP asserted Marion County’s lone early voting site in the downtown City-County Building was disenfranchising voters and was in violation of the 14th Amendment equal protection and due process clauses, as well as the National Voting Rights Act and the Indiana Constitution.

By July 2018, the plaintiffs and defendants had worked out a consent decree that Senior Judge Sarah Evans Barker approved about a week later. The Marion County Election Board subsequently approved six satellite voting locations for the November election.

Forty-eight hours after Hill’s office filed the motion to alter or amend, Barker issued a denial. The attorney general did slightly shift his position over the course of a couple of days.

In the motion to amend or alter, Hill’s office focused on the requirement that all members of the election board unanimously support the consent decree. It charged the vote was not unanimous.

However, in the reply filed a few days later supporting the motion, the attorney general focused more on the argument that the agreement violated a state law that limits a resolution from extending beyond a year. The consent decree, it contended, would force the election board to have the same number of early voting sites from 2018 forward.

Barker dismissed Hill’s argument that the consent decree was not in the public interest, calling it a preference by the attorney general for federal noninterference in voting rights cases generally.

“The State’s lawyers may entertain what preference they will, but violations of federal rights justify the imposition of federal remedies,” she wrote. “If conditions change such that the remedies agreed to and ordered in this case are no longer justified, the consent decree may be modified or vacated.”

On appeal

Three days after Hill’s office filed the motion, it was appealing to the 7th Circuit.

This is neither the first voting case nor the first consent decree the Attorney General is fighting.

Hill’s office is appealing the ruling that Indiana is violating the National Voting Rights Act by using the controversial Interstate Voter Registration Crosscheck Program to determine if a voter is ineligible to vote. An appeal has been submitted to the 7th Circuit, but the attorney general filed a motion Aug. 10 requesting more time to file its brief in Common Cause Indiana v. Lawson, et al, 18-2491.

Additionally, the attorney general appealed a consent decree reached between the American Civil Liberties Union of Indiana and the Marion County Sheriff’s Department that prevented the sheriff from detaining individuals without a probable cause warrant from Immigration and Customs Enforcement. After the Southern Indiana District Court approved the stipulated judgment, the attorney general filed a motion to intervene in Antonio Lopez-Aguilar, et al. v. Marion County Sheriff’s Department, et al., 18-1050. Similar to the early voting case, the attorney general argued the federal court was misinterpreting state law.

The federal court denied the motion, finding the state had no standing to intervene and any injury it suffered was not redressable by a favorable ruling.

Oral arguments have been scheduled for Sept. 7.

The AG’s request for more time in the voter registration case contains a list of the cases filling the office’s time. The list includes First Church of Cannabis v. Indiana, a challenge to the state’s prohibition on marijuana; Neal v. Baer, a death penalty appeal to the U.S. Supreme Court; and two abortion cases filed by Planned Parenthood of Indiana and Kentucky. The list also notes the attorney general’s office is busy writing amicus briefs in Sherwin-Williams Co. v. California and Virginia Uranium v. Warren.•

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