Common Cause Ind. v. Marion Cnty. Election Bd.

Decision Date25 April 2018
Docket NumberNo. 1:17–cv–01388–SEB–TAB,1:17–cv–01388–SEB–TAB
Citation311 F.Supp.3d 949
Parties COMMON CAUSE INDIANA, et al., Plaintiffs, v. MARION COUNTY ELECTION BOARD, et al., Defendants.
CourtU.S. District Court — Southern District of Indiana

Daniel Bowman, William R. Groth, Fillenwarth Dennerline Groth & Towe LLP, Indianapolis, IN, for Plaintiff.

Andrew J. Mallon, Donald Eugene Morgan, Office of Corporation Counsel City of Indianapolis, Anne Kramer Ricchiuto, Anthony Scott Chinn, Daniel E. Pulliam, Faegre Baker Daniels LLP (Indianapolis), Indianapolis, IN, for Defendant.

OPINION AND ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (DKTS. 61, 67)

SARAH EVANS BARKER, JUDGE

Plaintiffs brought this lawsuit under 42 U.S.C. § 1983 alleging and seeking to enjoin violations of the First and Fourteenth Amendments to the Constitution and Section 2 of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10301.1 Now before the Court is Plaintiffs' motion for a preliminary injunction. For the reasons below, that motion is granted in part and denied in part.

Facts and Procedural History

Plaintiffs are two public-interest groups and two private residents of Marion County, Indiana. The public-interest groups are Common Cause Indiana, which "has long worked to expand voter registration and...equal access to voting[,]" Am. Compl. (Dkt. 55) ¶ 4, and the Greater Indianapolis Branch 3053 of the NAACP, which "[t]hroughout its [more than one-hundred-year] history...has led and continues to lead the fight for civil rights, voting rights[,] and economic justice for African–American residents of Indianapolis and Marion County." Id. ¶ 56. The private plaintiffs are John Windle ("Windle") and Doris A. McDougal, who are registered and active Marion County voters.2

Defendants are the Marion County Election Board ("the Board") and its three members in their official capacities: Myla A. Eldridge ("Eldridge"), Keith Johnson ("Johnson"), and Melissa Thompson ("Thompson"). By law, see Ind. Code § 3–6–5–2, the three-member Board consists of the elected clerk of Marion Circuit Court (Eldridge) and her two appointees, one from the county Democratic Party (Johnson) and one from the county Republican Party (Thompson). The Republican member of the Board was formerly, at times relevant to this lawsuit, Maura J. Hoff ("Hoff"). Hoff was originally named as a defendant, but Thompson was substituted for Hoff when the former succeeded to the latter's seat on the Board. See Fed. R. Civ. P. 25(d).

I. Early In–Person Voting Under Indiana Election Law

Under Indiana election law, Ind. Code tit. 3, a voter may cast her vote otherwise than at the polls on election day by what is known as "absentee" voting. See id. ch. 3–11–10. An absentee vote may be cast by mail if the voter meets one of thirteen conditions, see id. § 3–11–10–24(a)(1) through (13), such as having "a specific, reasonable expectation of being absent from the county [where she is registered] on election day during the entire twelve...hours that the polls are open[,]"3 id. § 24(a)(1), or being "a serious sex offender" as that term is defined under state criminal law. Id. § 24(a)(12). An absentee vote may also be cast in person, without the voter having to satisfy any of the thirteen conditions for voting absentee by mail, id. § 26(a), no earlier than twenty-eight days before, and no later than noon on the day before, election day. Id. § 26(f). For this reason, in-person absentee voting is sometimes called "early in-person" or "EIP" voting.

The county circuit court clerk (or simply, "the county clerk"), as already noted, is ex officio a member of the county election board, and is charged by statute with much of the responsibility for election administration. See id. § 33–32–2–6. The county clerk's office must be open for early in-person voting for at least seven hours on each of the two Saturdays before election day. Id. §§ 3–11–10–26(a)(1), (h). But a county election board may also establish "satellite offices in the county where voters may cast" EIP votes. Id. § 26.3(a). See also id. § 26(a)(2) (entitling voters to vote early in person at satellite office established under § 26.3). Satellite offices may be established only by unanimous resolution of a county election board, id. § 26.3(b), which, if adopted, "expires January 1 of the year immediately after the year in which the resolution is adopted." Id. § 26.3(i). As relevant here, the statute does not constrain a county election board's discretion to decide whether to establish satellite offices, where such offices should be, how many should be established, or how long they should be open for voting; and the statute provides no guidance on reaching such decisions.

II. Early In–Person Voting in Marion County

Marion County is Indiana's most populous and most racially diverse (that is, having the highest nonwhite population in both absolute and relative terms). Dkt. 63 Ex. 6, at 18. Marion County first experimented with satellite offices for early in-person voting in 2008, a presidential election year. That year, the Board unanimously approved two satellite offices, one at North Central High School and another at the Southport Government Center. Dkt. 66 Ex. A (Eldridge Dep.) 7:7–13, 11:11–14. More than 73,000 Marion County voters cast EIP votes. Answer Am. Compl. (Dkt. 60) ¶ 15. "Indiana, for the first time since 1964, cast its electoral votes for the Democratic Party's nominee for President." Pls.' Br. Supp. (Dkt. 62) 8.

Eldridge, then the Board's deputy director, deemed 2008's satellite-office experiment a success. Dkt. 63 Ex. 8 (Eldridge Dep.) 11:25–12:6. Eldridge did not encounter "any difficulties" in "finding sufficient numbers of poll workers or volunteers" to "staff those early voting locations[.]" Id. at 7:20–25. Eldridge never received or heard of any complaints of fraud, "unexpected administrative difficulties...[,]" id. at 12:14– 16, or any other "complaints from citizens about the[ ] satellite voting locations[.]" Id. at 12:7–9. As both satellite offices were located on public property, the Board was able to secure their use at no cost. Id. at 7:14–19. In Eldridge's experience, "early voting plays an important rol[e] in alleviating congestion and problems that often arise during a single election day[.]" Id. 8:9–12. Naturally, the greater the number of early voters, the fewer the voters crowding the polling places on election day. But further, for example, administrative errors are easier to correct when earlier discovered, and "voters who cast their vote early typically have a greater tolerance for wait times because they've chosen the day and the time that is convenient for them to vote." Id. 9:1–5.

Jennifer Ping ("Ping") reported a different experience. Ping is a former chair of the Marion County Republican Party but, in 2008, was co-owner of a lobbying firm and did not then appear to have any role (at least any formal role) in county politics or county election administration. She reported,

I myself did vote early at the Southport location in 2008, and in addition to having that concern of verifying a voter actually voted—might have voted earlier, the process of printing nearly a thousand different ballots styles [sic ] on demand did not go smoothly and created a lot of chaos for the workers there as well as the voters, myself included.

Dkt. 66 Ex. B (Ping Dep.) 14:1–8. However, Ping was not aware of "any evidence that any voter in 2008 in Marion County voted more than once[,]" id. at 14:9–12, and did not, in the materials designated to the Court, explain why the demands of ballot-printing were greater at satellite offices than at the clerk's office, or greater at satellite offices before election day than at polling places on election day.

The Board again approved the use of satellite offices, four of them this time, for a local, nonpartisan referendum in 2009. Dkt. 66 Ex. A (Eldridge Dep.) 13:2–14:1. But resolutions to re-establish satellite offices in Marion County failed in every federal general election year thereafter—2010, 2012, 2014, and 2016—each time for lack of the Republican Board member's or her proxy's vote. Id. at 14:12–22 (2010); id. at 14:23– 15:1 (2012, 2014, 2016); Dkt. 63 Ex. 3, at 4 (2016 May primary election); id. at 11 (2016 November general election).

III. The 2016 Resolutions

Hoff was the Republican Board member for 2016; her predecessor was Mindy Brown. Hoff was "recruited" for, Dkt. 63 Ex. 9 (Hoff Dep) 8:19–20, and de facto appointed to,4 that position in January or February 2016 by Ping, then the chair of the county Republican Party; Mike McQuillen ("McQuillen") succeeded Ping in that position in the summer of 2016. (As of September 2017, the party chairmanship was held by state senator Jim Merritt.) As a "political appointee," Hoff "would not say that [she] felt obliged to follow the party line, but as an appointee, [she] would give deference to the opinion of the party on those matters [before the Board]." Dkt. 63 Ex. 9 (Hoff Dep.) 11:2–5.

In Hoff's experience, "[s]atellite voting...tend[s] to be party divided." Id. at 11:17–18. When a satellite-office resolution was introduced in spring 2016, ahead of the May primary election, Ping and Hoff "talked through it and agreed on how [Hoff] should vote[,]"id. at 15:15–16, which is to say, in the negative. "[T]he two main points" Ping brought to Hoff's attention were, first, "that the resolution had solely been drafted by the Democrat[ic] Party and had not been discussed with [Ping]," and, second, "the cost and administrative headache that it would bring." Id. at 16:9–18. Hoff did not know how great the expense would be and conducted no independent investigation. Hoff did not discuss her or Ping's concerns with the other Board members or voice them at the Board meeting at which a vote on the spring satellite-office resolution was taken; she simply voted against the resolution without comment.

A second satellite-office resolution was introduced in 2016 ahead of the November general...

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