CHICAGO (CN) – Indiana argued before a Seventh Circuit panel Thursday that its new voter purging rules should be allowed to take effect.
After losing a legal battle over its initial 2017 statute SB 422, which updated how the state can remove registered voters who may have moved out of state, Indiana passed a new law, SEA 334, which was the subject of oral arguments at the Chicago-based appeals court.
The original lawsuit against SB 422 filed in August 2017 challenged the amendment to state voting laws that took away checks the plaintiffs say are required by the National Voter Registration Act, or NVRA, in order to remove voters from the rolls.
Indiana used the Crosscheck system, which matches names and birthdates of registered voters in two or more states. SB 422 allowed the state to remove those voters based on Crosscheck results without notifying them, going through a waiting period or receiving written notice from a voter that they want to be removed from the state’s system.
The state government and proponents of the law argue it is needed to prevent election fraud such as double voting in two states. But the Indiana chapters of the NAACP and League of Women Voters disagreed and sued “to protect the sacred right of Indiana residents to vote without interference and to prevent the unlawful removal of Indiana residents from the State’s voter registration rolls.”
“SB 442 does not—and cannot—offer any cognizable justification for this noncompliance, as the federal statute offers no exceptions,” the complaint said, adding that “in practice, Crosscheck produces inaccurate results, false positives, and leads to the discriminatory disenfranchisement of many legally registered voters.”
Crosscheck, which uses over 100 million records from 30 states, is often inaccurate and cannot be the only basis for stopping people from voting in Indiana, the plaintiffs argued, especially among minority communities where people often have the same first and last names.
“In existing studies, Crosscheck flagged one in six Latinos, one in seven Asian-Americans, and one in nine African-Americans as potential double registrants,” the lawsuit said.
U.S. District Judge Tanya Pratt agreed and issued a preliminary injunction blocking the enforcement of SB 422, which was upheld by the Seventh Circuit in 2018.
Indiana scrapped that statute and came up with a new version, SEA 334, replacing its participation in Crosscheck with a different but similar system of finding duplicate voters and adding language about receiving written information about those voters.
The final blow to the state came last August when Judge Pratt issued a permanent injunction against SEA 334, saying it was basically the same as SB 442.
The state appealed again and argued before a Seventh Circuit panel Thursday that its new version of the law complies with the NVRA.
Aaron T. Craft with the Indiana Attorney General’s Office told the judges that “the statute is ambiguous” but the state’s interpretation of its language will comply with all aspects of the NVRA. He argued that the written information about a voter referenced in the statute would include direct authorization from that voter to remove them from registration in Indiana.
Craft also said that the state could also rely on voter registration forms from other states that include a statement from the voter saying they want to be removed from registration elsewhere without violating the NVRA. Only 11 states currently have that language on their forms.
“The only dispute in this case is whether Act 334 requires the state to have the signed authorization of cancellation in every case,” Craft said. “The way we read the statute is that ‘written information’ is what both the state and the county need.”
“When you look at this idea of written notice…the written information that Indiana has is going to be this data, not something from the voter necessarily,” U.S. Circuit Judge Diane Wood, a Bill Clinton appointee, said of the statute. “It does not anywhere include some requirement that there be a statement from the voter.”
Craft said that even if the court disagrees with the state’s interpretation of its law, the district court's injunction was too broad and barred sections that were not ambiguous at all.
Myrna Perez of the the New York University School of Law's Brennan Center for Justice, one of the attorneys for the voting rights organizations, said the state’s “tortured reading of the statute” did not mean it would actually follow that interpretation.
“The fact that someone can imagine an NVRA compliant scenario that does not strictly violate the text of 334 does not mean 334 is compliant with the NVRA,” she said Thursday.
Perez argued that because the statute did not specifically say that Indiana needed direct communication from a voter to remove them from registration, there was no guarantee that it would do so.
“It is critically important that this court acknowledge that the state has not at all promised to comply with the NVRA,” she said. “The state has done nothing but issue defiant actions to give this court very real concern that if given one inch they are going to defy the NVRA again.”
ACLU attorney Sophia Lakin added Thursday that “the statute doesn’t contain a definition of authorization from the voter,” which the state could use to skirt NVRA requirements.
U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee wondered if an injunction was appropriate since “it doesn’t seem there has been much administrative action yet” showing how Indiana was going to interpret the law.
Wood and St. Eve were joined on the panel by U.S. Circuit Judge Michael Brennan, another Trump appointee. The judges took the case under advisement but did not say when they would issue a decision.
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