AG Hill moves to block Marion County early voting sites

Marion County’s decision to open additional voting centers is being contested by Attorney General Curtis Hill, but the Marion County Election Board disputes his assertion that the agreement to offer more early voting sites is contrary to Indiana law or that the board lacked a unanimous vote.

A consent decree settling a lawsuit over access to early voting was approved by the U.S. District Court for the Southern District of Indiana in mid-July in Common Cause Indiana et al. v. Marion County Election Board, 1:17-cv-1388.

Hill, on behalf of the state, is challenging the consent decree that opens additional satellite voting centers in Marion County for the 2018 general election. He filed a motion Tuesday asking the federal court to withdraw the agreement. The board last month announced six early-voting sites around Indianapolis would be open in time for November’s mid-term election.

However, in a motion to alter or amend the consent decree, the state asserts the decree violates Indiana law because the election board does not appear to have unanimously approved the agreement. Indiana Code 3-11-10-26.5 enables county election boards to establish satellite absentee voting but requires the boards to vote unanimously.

Citing court filings in this lawsuit, the state contends that a majority of the election board, rather than the entire body, supported the opening of additional satellite voting sites. Moreover, the state argues the consent decree will bind every election board to violate state law even as the membership changes regularly.

“The Court’s preliminary injunction order was entered to remedy what the Court saw as a constitutional violation (which the State continues to dispute) in the Board’s vote against offering satellite absentee voting offices for 2018,” the motion stated. “The preliminary injunction makes sense only in the wake of an actual vote that the Court found to be unconstitutional. However, the Court should not assume, and the Plaintiffs and Defendants have not alleged, that future Board votes will violate the U.S. Constitution. Absent a purported federal law violation that requires a remedy, the Court lacks jurisdiction to enter the Consent Decree.”

The Marion County Election Board responded to the state’s motion Wednesday, describing its allegation as “factually incorrect.” In response, board maintains its support for the consent decree is unanimous. Providing a link to a video of its public meeting July 25, the board gives the time in the video where all the members voted in favor of the agreement.

The board also swatted down Hill's allegations of possible impropriety. The state’s motion claims, “… there is great concern that a majority of the Board cooperated with Plaintiffs to obtain something that Indiana law otherwise would have prohibited.”

The board responded, “There is absolutely no evidence supporting this spurious claim. The State should withdraw its motion.”

In asking the court to deny the state’s motion, the board contended the attorney general’s assertions about the consent decree is “contrary to public interest,” carry “disruptive implications” that are difficult to overstate.

“The Election Board agreed — again with a bipartisan and unanimous vote — that rather than continuing litigation, it was wiser to settle this matter with the Plaintiffs through the Consent Decree now approved by the court,” the board stated in its response motion. “Yet the Attorney General would apparently undo this constructive local public policy decision-making in the name of the State, for reasons that remain unclear. The Election Board is not aware of any other county’s early voting decisions in which the State has similarly interfered.”

Common Cause Indiana and the NAACP filed a lawsuit in 2017, alleging the single early voting site in Marion County at the City-County Building did not provide equal access to the ballot box and violated voting rights, particularly of minority voters. 

Senior Judge Sarah Evans Barker granted a preliminary injunction in April after finding the plaintiffs showed the absence of early voting center burdened Marion County voters’ First and 14th Amendment rights. The consent decree was filed jointly by the plaintiffs and defendants in the lawsuit and the court entered it July 10.

The state through Hill claims the settlement contract was entered before the state could be heard on its opposition. In addition to its motion to alter or amend the consent decree, the attorney general filed a motion for 30-day extension to file an appeal, asserting the state was not given the opportunity to provide input on the consent decree.