Common Cause Indiana v. Lawson

The ACLU, ACLU of Indiana, and Demōs filed a lawsuit in federal court on behalf of Common Cause Indiana challenging a state law that permitted election officials to immediately purge the registrations of Indiana voters based on an interstate matching program known as the “Interstate Voter Registration Crosscheck Program” (Crosscheck). Indiana would remove voters flagged by the faulty matching system without notifying voters or any grace period to cure.

The ACLU argued that Crosscheck was inaccurate and unreliable, utilizing a matching protocol that—according to a study by a team of researchers at Stanford, Harvard, the University of Pennsylvania, and Microsoft—incorrectly flagged people as potential double voters more than 99% of the time. The same study found that Crosscheck’s standard procedure, as applied by Indiana, would wrongfully eliminate the registrations of more than 300 legitimate voters for every potential double vote prevented. Crosscheck also had racially discriminatory outcomes according to numerous studies evaluating the program and its methodology. The flawed system flagged voter registration records with the same first and last name appearing in more than one state, which disproportionately targeted voters of color, who are much more likely to have similar first and last names according to U.S. census data, for removal. An analysis also showed that Crosscheck flagged one in six Latinos, one in seven Asian Americans, and one in nine African Americans as potential double registrants.

The suit charged that Indiana’s purge procedures violated the National Voter Registration Act (NVRA), which requires states to follow a minimum notice process and waiting period before a state may remove a voter from the rolls and that voter registration list maintenance programs be reasonable, uniform, and nondiscriminatory. Crosscheck was championed and administered by then Kansas Secretary of State Kris Kobach, who has a long history of initiating and implementing numerous voter suppression tactics. A federal court granted the ACLU’s request for a preliminary injunction in 2018, blocking implementation of the new law.

Indiana appealed the preliminary injunction to the Seventh Circuit. In August 2019, a unanimous panel of the Seventh Circuit affirmed the district court’s preliminary injunction. The Seventh Circuit concluded that the organizational plaintiffs had standing to challenge Indiana’s list maintenance program. Regarding the plaintiffs’ likelihood of success on the merits, the Seventh Circuit concluded that Indiana’s policy of “remov[ing] [voters] from the rolls based on Crosscheck without direct notification of any kind” appeared “inconsistent with the NVRA” “on its face. The court explained that removal from voter lists based on “an inference from information provided by Crosscheck” could not likely be construed as a “request for removal . . . from the registrant” as the NVRA demands. Separately, the court concluded that Indiana’s argument that a notification from Crosscheck qualified as “confirmation in writing” that a voter moved was also likely to fail, as it “defie[d] the structural logic of the [NVRA] by allowing a state to bypass [its] notice procedure.”

On remand, the district court stayed litigation until May 1, 2020 to allow the parties an opportunity to resolve the case. In this period, the state passed a new law SEA 334, which amended SEA 442. Instead of fixing the problems with SEA 442, Indiana enacted a new law that replicated the same flawed procedures and simply swapped Crosscheck for an Indiana-based program called the Indiana Data Enhancement Association.

Plaintiffs moved for summary judgment to block the new law, and the trial court granted judgment in their favor on August 24, 2020. In July 2021, the Seventh Circuit again affirmed the trial court’s injunction, bringing the case to an end.