Common Cause Ind. v. Lawson

• Decision Date: 22 September 2020
• Docket Number: No. 1:20-cv-01825-RLY-TAB,1:20-cv-01825-RLY-TAB
• Citation: 488 F.Supp.3d 724
• Parties: COMMON CAUSE INDIANA, Plaintiff, v. Connie LAWSON, in her official capacity as Indiana Secretary of State; Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary E. Klutz, in their official capacities as members of the Indiana Election Commission ; J. Bradley King and Angela Nussmeyer, in their official capacities as co-directors of the Indiana Election Division; and Ray Adler, Paul Rausch, Kevin C. Smith, and Randall Vonderheide, in their official capacities as county election officials, and as representatives of a class of all members of Indiana county election boards and boards of elections and registration, Defendants.
• Court: U.S. District Court — Southern District of Indiana

488 F.Supp.3d 724

COMMON CAUSE INDIANA, Plaintiff,

v.Connie LAWSON, in her official capacity as Indiana Secretary of State; Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary E. Klutz, in their official capacities as members of the Indiana Election Commission ; J. Bradley King and Angela Nussmeyer, in their official capacities as co-directors of the Indiana Election Division; and Ray Adler, Paul Rausch, Kevin C. Smith, and Randall Vonderheide, in their official capacities as county election officials, and as representatives of a class of all members of Indiana county election boards and boards of elections and registration, Defendants.

No. 1:20-cv-01825-RLY-TAB

United States District Court, S.D. Indiana, Indianapolis Division.

Signed September 22, 2020

Ami Gandhi, Pro Hac Vice, Aneel L. Chablani, Pro Hac Vice, Jennifer Terrell, Pro Hac Vice, Chicago Lawyers' Committee for Civil Rights, Brent R. Austin, Pro Hac Vice, Gregory M. Schweizer, Sarah Kinter, Pro Hac Vice, Eimer Stahl LLP, Chicago, IL, Bradley S. Phillips, Pro Hac Vice, Ryan Snow, Pro Hac Vice, Ezra D. Rosenberg, Pro Hac Vice, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for Plaintiffs.

Aleksandrina Penkova Pratt, Courtney Lyn Abshire, Jefferson S. Garn, Parvinder Kaur Nijjar, Indiana Attorney General, Indianapolis, IN, for Defendants Connie Lawson, Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, Zachary E. Klutz, J. Bradley King, Angela Nussmeyer.

Anne Medlin Lowe, William N. Riley, Riley Williams & Piatt, LLC, Indianapolis, IN, for Defendant Ray Adler.

Monica J. Conrad, Bose McKinney & Evans LLP, Chesterton, IN, Sara R. Blevins, Lewis & Kappes PC, Indianapolis, IN, for Defendant Paul Rausch.

Michael E. Tolbert, Tolbert & Tolbert, LLC, Gary, IN, for Defendant Kevin C. Smith.

Douglas Joseph Masson, Hoffman Luhman & Masson PC, Lafayette, IN, for Defendant Randall Vonderheide.

ENTRY ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

RICHARD L. YOUNG, JUDGE

This cause appears before the court on Plaintiff's Motion for Preliminary Injunction. Common Cause Indiana seeks to enjoin three statutes in Indiana's Election Code (the "Challenged Amendments"). Common Cause alleges Indiana Code § 3-11.7-7-2 (the "Standing Amendment") and Indiana Code §§ 3-11.7-3 and 3-11.7-4 (the "Remedies Amendment") unconstitutionally burden the fundamental right to vote and violate the Supremacy Clause. Common Cause also alleges the Standing Amendment violates procedural due process. Defendants oppose Plaintiff's motion and defend the constitutionality of the statutes.¹ For the reasons that follow, Plaintiff's motion is GRANTED .

I. Factual and Procedural Background

In 2019, Indiana overhauled its Election Code. Among the changes were the statutes at issue here. Under the Standing Amendment, "[o]nly a county election board has standing in an Indiana court or with any other state governmental entity to file an action or petition to request the extension of the hour for closing the polls by the court or entity." Ind. Code § 3-11.7-7-2(a). Polls in Indiana open at 6 a.m. and close at 6 p.m. Id. § 3-11-8-8(a). The board may only file an action upon the unanimous vote of its members. Id. § 3-11.7-7-2(b). Prior to 2019, voters could go directly to state court to seek an extension of polling place hours when they encountered barriers to casting their ballot. (Filing No. 3-34, Declaration of Julia Vaughn, ("Vaughn Aff.") ¶ 3). These barriers could include a closed polling location or some other condition at a polling site that prevented the voter from casting a ballot. Id.

The Remedies Amendment limits any extension to only those polls "whose opening was delayed or which closed during" normal voting hours, and for a period of time not more than the time the polls were closed. Ind. Code § 3-11.7.7.4. Before issuing an order extending polling hours, the Remedies Amendment requires the court to make the following six findings: (1) the polling location was "substantially delayed in opening"; (2) the specific precincts or vote centers² that experienced delays; (3) how long the polling location was closed; (4) substantial evidence exists that voters were prevented from casting a ballot due to the delay or closure of the polling location; (5) the harm can only be ameliorated by an extension of polling hours; and (6) the county election board filed written notice with the Secretary of State and the election division indicating that that county election board both filed the action or petition with the court to extend hours and received confirmation from the court of the receipt of the filings.³ Id. § 3-11.7-7-3(a). If the court is unable to make these findings, the court "shall not" issue an order extending polling hours. Id. § 3-11.7-7-3(b).

Plaintiff, Common Cause Indiana, is the Indiana affiliate of Common Cause, a non-profit, nonpartisan public-interest group. (Vaughn Aff. ¶ 3). The organization's mission is to advocate for ethics, good government, constitutional law, and the elimination of barriers to voting. (Id. ) Common Cause Indiana is based in Indianapolis and has at 15,000 members who are eligible to vote in Indiana. (Id. ¶¶ 4, 8).

Defendants in this case include representatives of each entity charged with administering and overseeing elections in Indiana (collectively the "State Defendants"). The Secretary of State, Connie Lawson, "is the state's chief election official." (Filing No. 1, Compl. 13); Ind. Code § 3-6-3.7-1. Among other responsibilities, the Secretary "shall perform all ministerial duties related to the administration of elections by the state." Ind. Code § 3-6-4.2-2(a). Defendants Paul Okeson, S. Anthony Long, Suzannah Wilson Overholt, and Zachary Klutz currently serve on the Indiana Election Commission. (Compl. ¶ 14). The Commission is a bipartisan entity consisting of four individuals appointed by the governor. Ind. Code § 3-6-4.1-2. The Commission is statutorily obligated to "[a]dminister Indiana election laws", id. § 3-6-4.1-14(a)(1), "[a]dvise and exercise supervision over local election and registration officers", id. § 3-6-4.1-14(a)(3), and investigate suspected election law violations, id. § 3-6-4.1-21. Defendants J. Bradley King and Angela Nussmeyer currently serve as co-directors of the Indiana Election Division. (Compl. ¶ 15). The Election Division is housed within the Office of the Secretary of State. Ind. Code § 3-6-4.2-1. Its purpose is to assist the Election Commission and the Secretary in the administration of Indiana's election laws. Id. § 3-6-4.2-2.

Finally, Defendants Ray Adler, Paul Rausch, Kevin Smith, and Randall Vonderheide (collectively the "Class Defendants") serve on the election boards of Hamilton County, Porter County, Lake County, and Tippecanoe County, respectively. (Compl. ¶¶ 16-19). Common Cause named these individuals as representatives of a proposed class to include all members of Indiana county election boards and boards of elections and registration. (Filing No. 6, Motion to Certify Class of Defendants). County election boards "[c]onduct all elections and administer the election laws within the county," prepare all ballots, and distribute those ballots to precincts or voting centers within the county. Ind. Code § 3-6-5-14.

The composition of each county's election board varies according to county's population. The majority of counties—89 out of Indiana's 92 counties—have an election board comprised of three members: the circuit court clerk and two people appointed by the clerk, one from each of the two major political parties. (Compl. ¶ 39); Ind. Code § 3-6-5-2. The members of the board elect a chair, id. § 3-6-5-8, who must call a meeting of the board "whenever the chairman considers it necessary for the performance of the board's duties." Id. § 3-6-5-11. If the chair fails to call a meeting of the board for any reason, the other two members may meet to execute the powers and duties of the board. Id. § 3-6-5-12.

In counties containing 150,000 to 170,000 people, the election board has five members: the circuit court clerk and two people appointed by the county chairperson of the two major political parties. Ind. Code § 3-6-5.6-1 ; id. § 3-6-5.6-4. Only Porter County meets this definition. (Compl. ¶ 39). In counties containing 170,000 to 175,000 people, the election board has three members: the circuit court clerk and one person appointed by the county chairperson from the two major political parties. Ind. Code § 3-6-5.4-1 ; id. § 3-6-5.4-4. Tippecanoe County is the sole county within this definition.

(Compl. ¶ 37). In counties containing 400,000 to 700,000 people, the election board has five members: the circuit court clerk and two people appointed by the county chairperson of the two major political parties. Ind. Code § 3-6-5.2-1 ; id. § 3-6-5.2-4. Only Lake County falls within this class. (Compl. ¶ 38).

II. Legal Standard

The preliminary injunction analysis proceeds in two stages. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of Am. Inc. , 549 F.3d 1079, 1085-86 (7th Cir. 2008). First, the moving party has the burden of making a threshold showing: (1) it has some likelihood of success on the merits; (2) it lacks an adequate remedy at law; and (3) without an injunction, it will suffer irreparable harm before its claim is resolved. Id. at 1086. If the plaintiff makes this initial showing, the court then weighs the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one. Id. This assessment is made on a sliding scale: "The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor." Courthouse News Serv. v. Brown , 908 F.3d 1063, 1068 (7th Cir. 2018) (quoting Girl Scouts of Manitou Council, Inc. , 549 F.3d at 1086 ). As part of this balancing, the court must also consider whether a preliminary injunction is in the public...