Editor’s note: This story has been updated as of 11:15 a.m. on July 21.
The 7th Circuit Court of Appeals has affirmed the preliminary injunction against the enforcement of an Indiana law that allows election officials to remove voters from the state’s voting rolls without getting consent from the individuals themselves.
In a ruling issued Monday, the appellate court found little difference between the state’s previous participation in the controversial Crosscheck Program and Senate Enrolled Act 334, which established the Indiana Data Enhancement Association that was touted as a replacement. The 7th Circuit the described the state’s IDEA program as “functionally identical to Crosscheck.”
“… (W)hat Act 334 took with the left hand, it gave away with the right, and the net result is continued inconsistency with the (National Voter Registration Act),” Judge Diane Wood wrote for the court. “Therefore, we find that portions of it, too, are preempted by federal law.”
As with the challenge to the state’s use of Crosscheck, the court consolidated two lawsuits against SEA 334.
Common Cause Indiana along with the American Civil Liberties Union, ACLU of Indiana, Demos and the law firm Davis Wright Tremaine, which filed one of the legal actions, applauded the 7th Circuit’s ruling.
“Voter roll purges are a form of voter suppression and prevent everyday Hoosiers from having their voices heard at the ballot box,” said Julia Vaughn, executive director of Common Cause Indiana. “We are pleased that the U.S. Court of Appeals has come down on the side of the voter, protecting their right to remain on the voter rolls and participate in our democracy.”
Indiana Secretary of State Holli Sullivan’s office said it was reviewing the ruling.
SEA 334 allows county election officials to remove a voter if three conditions are met: the individual is registered to vote in the county; has registered to vote in a second state after registering to vote in Indiana; and has authorized the cancellation of the Indiana registration.
However, the 7th Circuit found that additional provisions in the law violated the NVRA.
Specifically, the statute mandates that when county officials receive a written notice from the Indiana Election Division, they should consider that as authorization from the voter to cancel his or her registration. County officials must presume the voter wants to be removed from the rolls even if Indiana does not possess proof that the voter ever submitted such a consent.
“If this new scheme sounds familiar, that’s because it is the same as the procedure found in Act 442 that violated the NVRA,” Wood wrote, referring to Senate Enrolled Act 442, which was passed in 2017 and permitted the use of Crosscheck. “Just like Act 442, Act 334 impermissibly allows Indiana to cancel a voter’s registration without either direct communication from the voter or compliance with the NVRA’s notice-and-waiting procedures.”
The 7th Circuit affirmed the Southern Indiana District Court’s grant of summary judgment to the plaintiffs-appellees in League of Women Voters of Indiana, Inc., et al. v. Holli Sullivan, in her official capacity as Secretary of State of Indiana, et al., 20-2815 and 20-2816.
However, the appellate court affirmed in part and vacated in part the district court’s permanent injunction. The panel ruled the district court went too far when it enjoined the enforcement of multiple sections of Indiana Code § 3-7-38.2-5.5, including those provisions that mandated county officials get express authorization from the voter before removing anyone from the rolls.
“We see nothing in the NVRA that would prohibit the second method of passing along the voter’s choice to Indiana,” Wood wrote. “An authorization-of-cancellation form that a voter personally signs and that is then forwarded to Indiana from another state complies with section 20507(a)(3)(A) of the NVRA.”
Indiana Attorney General Todd Rokita described that ruling as continuing the state’s efforts to safeguard elections that started with the implementation of the Indiana voter ID law in 2005.
“I am pleased that the Seventh Circuit upheld, in-part, Indiana’s common-sense voter roll maintenance measures — marking a win for election integrity,” Rokita said in a statement. “With this decision, the Indiana Secretary of State’s Office can finally move forward to carry out its plan to use signed forms authorizing cancellations it receives from other states to clean up Indiana’s voter rolls.”
The League of Women Voters of Indiana and the NAACP filed the second lawsuit seeking to block the state from using Crosscheck and then amended the complaint to stop SEA 334. The Brennan Center for Justice at New York University filed the lawsuit on behalf of the two organizations. Quinn Emanuel Urquhart & Sullivan LLP and Trent A. McCain of McCain Law Offices P.C. served as co-counsel.
Linda Hanson, co-president of the League, disputed Rokita’s assertion that there is “no evidence in this case that a single voter would be improperly removed under Indiana’s voter maintenance statute.”
“Voter rolls need maintenance, but that work must be done reasonably and with care so that voters’ rights are protected,” Hanson said in a statement. “Indiana’s purge law would have put eligible voters at risk of being dropped from the rolls. That’s wrong. Indiana’s voters deserve better.”
Barbara Bolling-Williams, president of the Indiana State Conference of the NAACP, concurred.
“We won again in this four-year-old lawsuit on behalf of Indiana’s voters,” Bolling-Williams said in a statement. “The laws Indiana passed in 2017 and 2020 risked improper purges of Indiana voters, particularly Black and brown voters. This decision is a win for democracy and racial justice.”