AG Hill’s bid to block Marion County early voting plan fizzles

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The heated dispute ignited by Indiana Attorney General Curtis Hill’s effort to block Marion County’s early voting plan ended with a whimper at the 7th Circuit Court of Appeals Monday after both sides acknowledged a change in the voting method nixed the need for a ruling from the federal appellate bench.

Hill sought to upend an agreement reached in July 2018 between Common Cause Indiana, the Indianapolis branch of the NAACP and the Marion County Election Board that expanded the number of satellite sites for in-person absentee voting. The consent decree called for the board to open at least two satellite voting offices for each primary election and five satellite offices for each general and municipal election started in 2019.

The attorney general moved to intervene, arguing the agreement violated Indiana law. Specifically, Hill contended there was no evidence the election board unanimously approved the early voting plan as required under Indiana Code section 3-11-10-26.5. The election board immediately debunked what is described as a “spurious claim” by offering a video of the meeting where the plan was approved and citing a statement issued after the meeting as well as local media coverage of the board’s action.

In addition the attorney general asserted the consent decree ran afoul of state law by binding every future election board to the early voting schedule. This would deny new board members their right under Indiana statute to disapprove of satellite absentee voting.

Hill’s action drew a rebuke from Indiana Sectary of State Connie Lawson. She called his action “reckless” and noted he “did not have the professional courtesy” to advise her office that he intended to file the motion to intervene.  

After the U.S. District Court for the Southern District of Indiana denied the attorney general’s motion, Hill appealed to the 7th Circuit.

However, after the attorney general submitted his brief to the appellate court, the election board changed Marion County’s voting scheme from being structured around precincts to being comprised of vote centers.

Common Cause, the NAACP and the Marion County Election Board then moved to dismiss Hill’s appeal. They argued the vote center plan moots the consent decree, along with the attorney general’s appeal, because to make any change to the plan would require the board to unanimously agree to amend or rescind Marion County’s vote center status.

Even though the attorney general conceded that as long as the consent decree is vacated, he would be happy with the end result, Hill still challenged the plaintiffs’ contention that his appeal was moot. He pushed the appellate court to find the district court did not have the authority to enter the consent decree in the first place.

The 7th Circuit did not see much difference between the opposing sides.

“Though the result they seek differs slightly, in essence, they seek the same relief: a vacatur of the Consent Decree,” Judge Joel Flaum wrote for the court in Common Cause Indiana, et al. v. Marion County Election Board, et al., 18-2735. “… Because both sides ultimately agree that the Decree should no longer be in effect, we have no need to address whether the district court had authority to enter the Decree. And we need not remand the case to the district court for vacatur. Given our authority to vacate district court judgments — including consent decrees — we can and should vacate the Decree ourselves.”

As part of its order, the 7th Circuit panel mandated both sides in the lawsuit bear their own costs.

Another voting lawsuit brought by Common Cause, the Indiana NAACP and the Indiana League of Women Voters is still awaiting a ruling from the 7th Circuit.

That case, Common Cause Indiana, the Indiana State Conference of the National Association for the Advancement of Colored People and the League of Women Voters of Indiana v. Connie Lawson, et al., 18-2491, challenges Indiana’s use of the controversial Crosscheck database to purge the state’s voter registration lists.

Oral arguments were presented January 14, 2019 to the appellate panel of Chief Judge Diane Wood and Circuit Judges Michael Brennan and Amy J. St. Eve.

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