7th Circuit: Indiana voter purge provision violates federal law

In a ruling that reminded Indiana of the need to protect the integrity of the voting process, the 7th Circuit Court of Appeals blocked the state from kicking individuals off the voter rolls based solely on a match in the Crosscheck database.

Senate Enrolled Act 442 would have made it easier for the state to purge voters from its rolls. After Gov. Eric Holcomb signed law in 2017, two separate lawsuits were filed by the Indiana State National Conference of the National Association for the Advancement of Colored People and the League of Women Voters, and by Common Cause Indiana.

The U.S. District Court for the Southern District of Indiana granted a preliminary injunction in June 2018. Judge Tanya Walton Pratt ruled the act of registering to vote in another state is not the same as a voter requesting his or her name be removed form the voter roll.

In the ruling issued Tuesday in Common Cause Indiana, Indiana State Conference of the National Association for the Advancement of Colored People, and League of Women Voters of Indiana, Inc., v. Connie Lawson, in her official capacity as Secretary of State of Indiana, et al., 18-2491 and 18-2492, the 7th Circuit reached the same conclusion.

“The integrity of the voting process is critical, and one measure to protect that integrity is the voter-registration process,” Chief Judge Wood wrote. “A name on a voter roll in Indiana is there only because a voter took the trouble to put it there. Laws such as the (National Voter Registration Act) ensure that the states do not undo that work without good reason.”

Indiana Secretary of State Connie Lawson’s office declined to comment on the ruling.

Common Cause Indiana hailed the decision from the 7th Circuit.

“We are extremely pleased with this decision since it means that Indiana counties will have to follow federal law when maintaining their lists of registered voters and no Hoosier will be removed from the list without proper notice and a waiting period,” Julia Vaughn, policy director of Common Cause Indiana, said in a press release. “Those safeguards are in the law for a reason and it is reassuring to know that Hoosier voters will be protected from unlawful purges in the future.”

The voter purge provision was just one part of the 62-page SEA 442. Other provisions included training for election workers, allowing individuals who have had a felony conviction pardoned, reversed, vacated or expunged to hold elected office, and identifying which recounts will be conducted by the State Recount Commission.

Authored by Sen. Greg Walker, R-Columbus, the bill gained bipartisan support as it moved through the Statehouse and to the governor’s desk.

However, the 7th Circuit characterized SEA 442 as “an aggressive new strategy” that allowed Indiana to immediately remove a voter’s name if the individual was flagged by the Crosscheck database. Under the new law, when Crosscheck found a name on the Hoosier voter registration list that matched a name on another state’s voter roll, Indiana could automatically purge the voter without making any attempt to confirm the individual had moved out-of-state and was no longer eligible to vote in Indiana.

The 7th Circuit ruled the law violated the National Voter Registration Act. In particular, states cannot remove a voter from the list without first sending a notice to the individual, inquiring about continued eligibility. Even if the person does not respond to the mailing, the voter can still not be eliminated until the state can show the individual did not vote or appear to vote any time between the day the notice was sent and the date after the second general election for federal office.

SEA 442 did away with the process of contacting the voter or confirming that the voter requested removal. Instead, the court found, the law required the county election official remove a voter from the roll immediately based “exclusively on the official’s unilateral assessment that the alleged ‘match’ is accurate.”

Before the appellate court, Indiana made two arguments. First, the state asserted the registration information received from another state counts as a request from the registrant to unregister. Second, the SEA 442 procedure is permissible under the NVRA because the new registration is written confirmation that the voter has changed residence.

Wood described these arguments “a stretch, at best.”

The court noted the ordinary meaning of the NVRA is that the registrant requests removal. Consequently, drawing an inference from information provided by Crosscheck did not meet this requirement because it would be neither a request for removal nor is it from the registrant.

“Even if Indiana could convince us that a new registration is the equivalent of a “request” to cancel a voter’s old registration, it is still not a request ‘of the registrant,’” Wood wrote citing section 20507(a)(3) of the NVRA. “The information passed along by Crosscheck is sparse. As it currently operates, a subscriber state such as Indiana does not receive a copy of the other state’s registration. Thus, Indiana does not even know whether the (supposed) Indiana registrant has communicated anything to another governmental entity.”

The court was also unconvinced by the second argument. Under NVRA, the state is required to confirm with the voter about his or her eligibility.

“It stretches the meaning of ‘confirm’ past its limits to ignore its key feature of corroborating or verifying a prior piece knowledge,” Wood wrote.

Judge Michael Brennan used his concurring opinion to take a closer look at the plaintiffs’ standing.

He maintained that an interest in voting rights alone would not be enough for a nonprofit to meet Article III’s requirements for standing. Rather, the organization must demonstrate that the defendant’s actions will impact its day-to-day operations or force the diversion of resources.

“As actual harm for Article III purposes, some of the proof offered by these plaintiffs is rather thin gruel, like uploading a poster to a website and an increased volume in incoming telephone calls,” Brennan wrote. “But each organization submitted sufficiently specific testimony from senior leadership detailing their organization’s work, and then connected the imminent impact of Act 442 to their organization’s operations.

“The totality of each plaintiffs’ evidence established their organization’s concrete, particularized injury, so their proof met Article III’s requirements.”

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