Common Cause Indiana v. Lawson

• Decision Date: 27 August 2019
• Docket Number: 18-2492,Nos. 18-2491,s. 18-2491
• Parties: COMMON CAUSE INDIANA, Indiana State Conference of the National Association for the Advancement of Colored People, and League of Women Voters of Indiana, Inc., Plaintiffs-Appellees, v. Connie LAWSON, in her official capacity as Secretary of State of Indiana, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

937 F.3d 944

COMMON CAUSE INDIANA, Indiana State Conference of the National Association for the Advancement of Colored People, and League of Women Voters of Indiana, Inc., Plaintiffs-Appellees,

v.Connie LAWSON, in her official capacity as Secretary of State of Indiana, et al., Defendants-Appellants.

Nos. 18-2491

18-2492

United States Court of Appeals, Seventh Circuit.

Argued January 14, 2019

Decided August 27, 2019

Myrna Perez, Attorney, Brennan Center for Justice, NYU School of Law, Democracy Program, Alexandre J. Tschumi, Attorney, Ellison Ward Merkel, Attorney, Sascha N. Rand, Attorney, Ellyde R. Thompson, Attorney, Quinn Emanuel Urquhart & Sullivan, New York, NY, Trent A. McCain, Attorney, McCain Law Offices, P.C., Merrillville, IN, for Plaintiffs-Appellees.

Thomas M. Fisher, Attorney, Matthew Richard Elliott, Attorney, Julia Catherine Payne, Esq., Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellants.

Before Wood, Chief Judge, and Brennan and St. Eve, Circuit Judges.

Wood, Chief Judge.

Voting is at once an intensely personal act and a choice to participate in the collective process of representative democracy. It cannot take place, however, without an elaborate administrative infrastructure. This case concerns that machinery—in particular, the process that Indiana wants to use to cleanse its voter rolls of people it suspects no longer qualify to vote there. Senate Enrolled Act 442 ("Act 442"), which was passed in 2017 and codified at Indiana Code § 3-7-38.2-5(d) – (e), adopted an aggressive new strategy for this purpose, allowing Indiana immediately to remove a voter based on information received from a third-party database rather than in response to direct contact with the voter. Several organizations promptly challenged Act 442 in court, asserting in two separate actions that it violates the National Voter Registration Act. They sought a preliminary injunction against the implementation of the new law while both cases proceeded. Finding that the plaintiffs were likely to succeed on the merits and that they would suffer irreparable injury if the law were to take effect immediately, the district court issued preliminary injunctions "prohibiting the Defendants from taking any actions to implement [Act 442]" until the cases are concluded.

The state appealed the injunctions to this court, see 28 U.S.C. § 1292(a)(1), and we consolidated the two cases for decision. We conclude that the plaintiff organizations in each case adequately demonstrated their standing to bring these actions and that the district court did not abuse its discretion by granting preliminary relief. We therefore affirm.

I

A

It is largely the responsibility of the states to set up and operate the machinery necessary for voting. Article I, section 4, clause 1, of the federal Constitution allows state legislatures to prescribe the "Times, Places and Manner" of holding elections for U.S. senators and representatives. Nonetheless, the federal Constitution places certain limits on the states’ choices. Several amendments protect the franchise of certain groups (the Fifteenth, for racial groups; the Nineteenth, for women; and the Twenty-Sixth, for those who have reached age 18), while another amendment assures that a poll tax cannot stand in the way of voting (the Twenty-Fourth). Importantly, however, the case before us does not present an issue under any of those amendments. It turns instead on one of the laws Congress enacted pursuant to the language in Article I, section 4, clause 1, stating that "Congress may at any time by Law make or alter such [state] Regulations, except as to the Places of choosing Senators." That law is the National Voter Registration Act (NVRA), 52 U.S.C. §§ 20501 –11.

Congress made no mystery of its purposes for passing the NVRA. It stated them in the opening section of the statute:

(b) Purposes

The purposes of this chapter are—

(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;

(2) to make it possible for Federal, State, and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;

(3) to protect the integrity of the electoral process; and

(4) to ensure that accurate and current voter registration rolls are maintained.

Id. at § 20501(b). This case is primarily concerned with the fourth of those purposes—the maintenance of accurate and current voter registration rolls.

Several sections of the law address national procedures for voter registration. Those procedures start with section 20503, which requires states to allow registration for federal elections in several ways, including through the motor vehicle license process (section 20504), by mail (section 20505), or in person through a voter registration agency (section 20506). But the section of greatest interest to us is 20507, which contains "[r]equirements with respect to administration of voter registration"—here, maintenance of the voter registration rolls. As does the NVRA as a whole, this part of the law reflects two competing concerns: on the one hand, the need to ensure the integrity of the electoral process, §§ 20501(b)(3)–(4) ; and on the other hand, the need to increase voter registration and enhance voter participation, §§ 20501(b)(1)–(2).

The NVRA sets the boundaries within which states must operate when they administer the voter-registration process. It requires states to update their voter-registration rolls, section 20507(a)(4), but it also forbids states from removing voters from the official lists of eligible voters except under prescribed circumstances, section 20507(a)(3). A voter may request that his or her name be taken off the rolls, section 20507(a)(3)(A), but in the absence of such a request, if a state wants to remove a name because it suspects that the voter has moved, it must follow the procedures spelled out in section 20507(d). Because of its importance to this case, we set out the lengthy text of that section in a footnote.¹ The critical fact here is that the registrant must inform the state about the change in residence, or the registrant must fail to respond to a notice sent by the state inquiring about continued eligibility. Moreover, it is not enough for the registrant to fail to respond to the state’s notice. That person’s name cannot be removed from the rolls, according to section 20507(d)(1)(B)(ii), until the state can show that the person did not vote or appear to vote in an election during the period beginning on the date of the notice and ending on the day after the second general election for federal office thereafter.

B

In Spring 2017, the Governor of Indiana signed into law Act 442, which was designed to revamp the way Indiana updates its voter-registration lists. (The law was later codified at Indiana Code § 3-7-38.2-5(d) – (e), but in keeping with the practice in this case, we refer to it by its legislative name.) Act 442 was far from Indiana’s first effort to ensure the accuracy of its official list of voters. At the time the law was passed, the state relied on a third-party database known as Crosscheck, which aggregates voter data from multiple states to identify potential duplicate voter registrations. Participating states could then follow up on the Crosscheck matches by sending the NVRA-required notices to the voters whose names potentially appeared on more than one state’s voter rolls. Act 442 was designed to use Crosscheck more robustly by allowing Indiana automatically to remove a voter from the rolls if the voter was identified as a database "match" with a certain level of confidence. Act 442 made no provision for contacting the voter or confirming her wish permanently to change domicile and cancel her Indiana registration.

Act 442 was immediately challenged in two separate lawsuits by three different voter-advocacy organizations: The Indiana National Association for the Advancement of Colored People (NAACP), the League of Women Voters of Indiana (the League), and Common Cause Indiana (CCI) (collectively "the Organizations"). The defendants are Connie Lawson, Secretary of State of Indiana; J. Bradley King, Co-Director of the Indiana Election Division in the Secretary’s office; and Angela Nussmeyer, Co-Director of the Indiana Election Division. The Organizations sued all defendants in their official capacity only; we refer to them collectively as Indiana. In both cases, the Organizations contend that Act 442 violates the NVRA insofar as it allows Indiana to remove voters from the rolls without following the procedures specified by the federal statute. The Organizations obtained substantively identical preliminary injunctions that prevent Act 442 from going into effect while the cases are pending.

Indiana would like us to lift those injunctions. We conclude, however, the district court was correct to find that the Organizations are likely to succeed on the merits of their challenge, that they and their members will be irreparably harmed if the law goes into effect temporarily, that the state will not be materially injured if the lists are not subjected to this extra layer of purging immediately, and that the public interest favors compliance with the NVRA.

II

Before we may reach the merits of the injunctions, we must address Indiana’s challenge to the Organizations’ Article III standing. The Organizations claim standing on their own behalf, as well as on behalf of their members. We start—and for the most part finish—with the Organizations’ standing to raise their own claims. To assert standing for injunctive relief, they must show that they are under an actual or imminent threat of suffering a concrete and particularized "injury in fact"; that this injury is fairly traceable to the defendant’s conduct; and that it is likely that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Inst ., 555...