Court Sees ‘High Likelihood’ That Indiana’s Voting Law Violates Federal Act

Marilyn Odendahl for www.theindianalawyer.com

Three public advocacy groups have temporarily stopped the enforcement of Indiana’s 2017 voter registration law, which could potentially purge eligible voters from the rolls without providing them written notice.

Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana granted a preliminary injunction prohibiting the state from implementing Senate Enrolled Act 442. Separate lawsuits against the law were filed by Common Cause Indiana and jointly by the Indiana State Conference of the National Association for the Advancement of Colored People (NAACP) and League of Women Voters of Indiana.

Pratt ruled the plaintiffs have a “high likelihood of success on the merits” of their claim that Indiana’s amended voter registration law violates the National Voter Registration Act of 1993.

The federal court agreed with the plaintiffs that “the greater public interest is in allowing eligible voters to exercise their right to vote without being disenfranchised without notice,” Pratt wrote. “If a voter is disenfranchised and purged erroneously, that voter has no recourse after Election Day.”

Indiana Code 3-7-38.2-5(d)-(e) established the state will verify the eligibility of the voters by using the Interstate Voter Registration Crosscheck Program, which was created and administered by the Kansas Secretary of State. The program takes the voter registration data provided by participating states then compares the first and last names along with the birthdates to identify individuals who may be registered in different states.

Bradley King and Angela Nussmeyer, co-directors of the Indiana Election Division within the Indiana Secretary of State’s office, would check for additional matching points – like addresses, middle names or social security numbers – of the voters highlighted by Crosscheck. The name of any voter who still matched a voter registered in another state was turned over to the county officials who determined whether the identified voter was the same individual registered in that county.

SEA 442 amended the Indiana statue by removing protections designed to ensure the identified voter was in fact ineligible to vote.

Under the amendment, election officials no longer had to notify voters there was a problem and their registration was going to be cancelled. Previously, confirmation notices were mailed to the identified voters, allowing them to confirm their registration, update it or cancel it. Any voter who did not respond to the mailer would be place on inactive status. Only if the voter did not cast a ballot in the next two federal general elections would Indiana then remove that voter’s name from the registration rolls.

The plaintiffs point out the NVRA prohibits states from removing voters from the registration unless the voters either confirm they have moved to a new address or they do not respond to the confirmation notice and do not vote during the next two federal election cycles.

Moreover, they assert that Crosscheck has inherent flaws and limitations which produce many false positives. People were wrongly identified as being registered to vote in another state because their first and last names, as well as their birthdates, matched those of someone else.

The court agreed that under SEA 442, once a duplicate registration is spotted by Crosscheck, the voter will be promptly removed from the Indiana rolls.

However, Indiana argued that removal of a voter’s registration is permissible because of registration in a different state. The out-of-state registration can be considered not only a request for removal, but also a written confirmation of a change of address.

The defendants explained that SEA 442 requires county election officials to determine if the voter registered in a different state after registering in Indiana. Since the officials must confirm the registration dates, they can treat subsequent registrations are a request for removal and a “confirmation in writing.”

The court was not convinced.

“The act of registering to vote in a second state as determined by Crosscheck cannot constitute a written request to be removed from Indiana’s voter rolls or a confirmation in writing from the voter that they have changed their address,” Pratt wrote when granting the preliminary injuction. “A voter’s act of registering to vote is simply that – a registration to vote. There is no request for removal, and the voter is not confirming for Indiana that they have had a change in residence. Notably this information is not coming from the voter but rather from Crosscheck, which may or may not be reliable.”