Complaint for Preliminary Injunction against Indiana Voter Purge Law

Complaint for Preliminary Injunction against Indiana Voter Purge Law

June 8, 2018


1. This action concerns a recently-amended Indiana statute, Indiana Code § 3-7-38.2-5(d)– (e), which violates the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq. This provision of Indiana law now permits or requires Indiana counties to ignore the mandatory procedures and protections in the NVRA, resulting in non-uniform, discriminatory, and illegal cancellations of Indiana voter registrations.

2. In 1993, Congress passed the NVRA in part “to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office” while “ensur[ing] that accurate and current voter registration rolls are maintained.” Id. § 20501(b)(1), (4). To meet these twin goals, the NVRA requires states to “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of . . . a change in the residence of the registrant,” id. at § 20507(a)(4)(B) (emphasis added), and that any such program is “uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965,” id. § 20507(b)(1). The NVRA also mandates that states’ list-maintenance programs and activities follow specific procedural requirements.

3. One such requirement is that a state “shall not remove” a voter from its list of eligible voters due to change in residence unless: (a) the voter confirms such a residence change in writing; or (b) the voter fails to respond to a notice sent by the state as part of the aforementioned general program and the state waits two general election cycles during which the voter does not vote in the jurisdiction. Id. § 20507(a)(4), (d)(1).

4. Indiana employs a number of different list-maintenance programs aimed at removing voters from the registration rolls whom it believes are ineligible because they have moved out of state. At issue here is Indiana’s program that utilizes second-hand data from the Interstate Voter Registration Crosscheck Program (“Crosscheck”), a program administered by the Kansas Secretary of State that purports to compare voter registration data provided by at least 30 member states in an attempt to identify voters who have allegedly moved and registered to vote in another member state.

5. Before July 1, 2017, the Indiana law governing removal of registrants from the voter rolls using Crosscheck data included the NVRA-mandated notice-and-waiting procedures. The law required counties to “send an address confirmation notice to the Indiana address of” any voter believed to have moved based on data from Crosscheck, unless that voter had authorized cancellation of her Indiana registration. Ind. Code § 3-7-38.2-5(d)–(e), before July 1, 2017 amendment. Once such voters were sent an address-confirmation notice, a separate provision of Indiana law required a two-general-elections waiting period before a county voter registration office may cancel the registration of any voter who did not return the notice indicating she had not moved outside the relevant jurisdiction. See id. at § 3-7-38.2-2(f)-(g). In other words, preamendment, Indiana law prohibited counties from removing voters for purportedly moving out of state based on data from Crosscheck unless the voters failed to respond to a notice and failed to vote in the subsequent two consecutive general elections. Facially, at least, these procedures aligned with the NVRA’s notice and waiting-period requirements.

6. As interpreted by Defendants, Indiana Senate Enrolled Act 442 (SEA 442), which amended Indiana Code § 3-7-38.2-5(d)–(e), effective on July 1, 2017, removed the notice and waiting-period procedures. Indiana Code § 3-7-38.2-5(d)–(e) now permits Indiana counties to cancel voter registrations immediately once they receive information through Crosscheck that they “determine” indicates a voter may have moved. The counties are no longer required to send the requisite written confirmation or wait for two general elections in which the voter is inactive before removing the voter from the rolls.

7. Compounding this problem is the proven unreliability of the second-hand Crosscheck information used in Indiana Code § 3-7-38.2-5(d)–(e) to identify voters who may have moved.

8. Because of these defects, Indiana Code § 3-7-38.2-5(d)–(e) violates the NVRA’s specific notice and waiting-period requirements and permits the removal of registrants from the voter rolls in a manner that is not reasonable, nondiscriminatory, or uniform. As a result, numerous Hoosiers are at risk of being disenfranchised unlawfully.

9. Plaintiff Common Cause Indiana is a non-profit organization that, among other things, advocates for the elimination of barriers to voting and protecting the right to vote. It brings this action to remedy the violations of the NVRA resulting from the amended Indiana Code § 3-7- 38.2-5(d)–(e). It seeks a declaratory judgment, temporary and permanent injunctive relief, and other related remedies.