Common Cause Wins Preliminary Injunction Against Indiana Voter Purge Program Based on Kobach-Led Cross-Check Program

From the court’s decision preliminarily enjoining Indiana’s purge system as violating the NVRA:

Regarding the likelihood of success on the merits, the Court determines that Common Cause has a high likelihood of success on the merits of its claim that SEA 442 violates some of the requirements of the NVRA and threatens disenfranchisement of eligible voters.

The NVRA plainly requires that a state “shall not remove the name of a registrant from the official list of eligible voters . . . on the ground that the registrant has changed residence unless theegistrant,” (1) “confirms in writing that [they have] changed residence,” or (2) has failed to respond to a mailed notification and has not voted or appeared to vote in two federal election cycles. 52 U.S.C. § 20507(d)(1). These are simple procedural safeguards to protect registered voters, and states are required to follow these safeguards. Before its amendment by SEA 442, Indiana Code § 3-7-38.2-5(d)–(e) provided for the notice and a waiting period required by the NVRA when a voter did not confirm in writing of their change in residence or did not request to be removed from the voter rolls. SEA 442 removes this procedural safeguard. The Defendants’ reliance on the new “confidence factors” is misplaced because they do nothing to address the NVRA’s requirement in particular cases to provide for notice and a waiting period.

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. 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. It is significant that the NVRA still requires the notice and waiting period before cancelling a voter registration when a change in address has been confirmed through the U.S. Postal Service, which might be more reliable than Crosscheck. The information provided by the U.S. Postal Service originates from the voter, yet notice and a waiting period are still required by the NVRA before cancelling the registration. 52 U.S.C. § 20507(c)(1). Because SEA 442 removes the NVRA’s procedural safeguard required in particular cases of providing for notice and a waiting period, the Court determines that Common Cause has a high likelihood of success on the merits of its claim.

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