Common Cause Indiana v. Marion County Election Board

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2735
C OMMON C AUSE INDIANA , et al.,
Plaintiffs‐Appellees,
v.
MARION C OUNTY ELECTION BOARD, et al.,
Defendants.
A PPEAL OF : STATE OF INDIANA
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 17‐cv‐01388 — Sarah Evans Barker, Judge.
____________________
A RGUED MAY 21, 2019 — D ECIDED J UNE 3, 2019
____________________
Before FLAUM, KANNE , and SYKES , Circuit Judges.
FLAUM, Circuit Judge. Indiana counties must maintain a
three‐member election board, made up of the circuit court
clerk and two individuals the clerk appoints, one “from each
of the major political parties of the county.” Ind. Code § 3‐6‐
5‐2. The board makes various decisions about a county’s vot‐
ing system, including rules for in‐person early voting.

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2 No. 18‐2735
Until December 2018, Marion County used a precinct‐
based voting system. Under that scheme, the Marion County
Election Board (the “Board”) could establish in‐person early
voting “satellite offices” each year by unanimous vote. See id.
§ 3‐11‐10‐26.3 (the “Satellite Office Provision”). A satellite of‐
fice resolution “expires January 1 of the year immediately af‐
ter the year in which the resolution is adopted.” Id. § 3‐11‐10‐
26.3(i). The Board approved in‐person early voting satellite
offices for the 2008 presidential election. It did not approve
any satellite offices for the 2010, 2012, 2014, or 2016 elections;
each year, the two Democrat Board members voted in favor
of opening satellite offices, while the one Republican Board
member voted against.
In May 2017, Common Cause Indiana, the Greater Indian‐
apolis Branch of the NAACP, and two Marion County regis‐
tered voters sued the Board and its members in their official
capacities pursuant to 42 U.S.C. § 1983. Plaintiffs alleged the
Board’s decision to not approve in‐person early voting satel‐
lite offices from 2010 to 2016—and more specifically, the ap‐
plication of the Satellite Office Provision’s unanimity require‐
ment and the Republican Board member’s decision to with‐
hold consent—burdened voters’ rights to cast early votes
without any relationship to a legitimate government interest,
in violation of the First and Fourteenth Amendments and Sec‐
tion 2 of the Voting Rights Act of 1965. Indiana moved to in‐
tervene, arguing plaintiffs’ complaint “calls into question the
federal and state constitutional validity” of the Satellite Office
Provision. The district court issued a conditional grant, allow‐
ing Indiana to attend a settlement conference, challenge a set‐
tlement agreement at a fairness hearing, and seek permission
to appeal any approved settlement.

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No. 18‐2735 3
On April 25, 2018, the district court granted plaintiffs’ mo‐
tion for a preliminary injunction, ordering the Board to estab‐
lish two in‐person early voting satellite offices for the Novem‐
ber 2018 election. Soon thereafter, on July 10, 2018, the district
court entered a Consent Decree (the “Decree”). The Board
agreed to establish five in‐person early voting satellite offices
for the 2018 general election, and going forward, a minimum
of two satellite offices for primary elections and five satellite
offices for general and municipal elections. The Decree did
not address any underlying issues of law, other than to note
that the district court, in its preliminary injunction ruling,
held that plaintiffs made a prima facie showing of likelihood
of success on the merits. On July 25, the Board unanimously
adopted two resolutions. The first ratified the Decree and
acknowledged the Board’s intent to comply with the Decree’s
terms. In the second, the Board approved the establishment of
six satellite offices for the 2018 general election.
On August 7, 2018, Indiana filed a motion to alter or
amend the Decree. It argued the Decree is contrary to Indiana
law because there was “no finding in the Consent Decree that
the Board voted unanimously to establish additional satellite
voting for 2019 and beyond.” Indiana also maintained that be‐
cause the Decree had no end date, it precluded future Board
members from exercising their statutory authority to vote
against establishing satellite offices and effectively disre‐
garded the Satellite Office Provision’s unanimity require‐
ment. The district court denied Indiana’s motion, finding the
Board unanimously ratified the Decree, and concluding that
even if it hadn’t, the Decree “was necessary to remedy a prob‐
able violation of federal law.” Indiana filed a notice of appeal.

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4 No. 18‐2735
After Indiana submitted its opening appellate brief, the
Board changed the legal paradigm governing Marion
County’s voting scheme, replacing the precinct‐based struc‐
ture with a vote center plan. The vote center plan specifies that
Marion County will have two in‐person early voting satellite
offices for primary elections and six in‐person early voting
satellite offices for general and municipal elections. See Ind.
Code § 3‐11‐18.1‐4(17) (a vote center plan must include “[t]he
total number and locations of satellite offices to be established
under [the Satellite Office Provision] at vote center loca‐
tions”). As statutorily required, the Board voted unanimously
to adopt the vote center plan, see id. § 3‐11‐18.1‐3(f), and Mar‐
ion County officially became a vote center county on Decem‐
ber 6, 2018.
Plaintiffs and the Board (“joint‐appellees”) then moved to
dismiss Indiana’s appeal as moot. They argue the vote center
plan moots the Consent Decree and Indiana’s appeal because
to make any change—including to in‐person early voting sat‐
ellite offices—the Board must unanimously agree to amend
the plan or rescind Marion County’s vote center status. See id.
§§ 3‐11‐18.1‐8(c); 3‐11‐18.1‐15(b). Thus, according to joint‐ap‐
pellees, the plan “guarantees that the partisan considerations
underlying the consent decree will not infect, or be a basis, for
reducing voters’ access to early in‐person voting.” They ask
that we remand to the district court with instructions to vacate
the Consent Decree and dismiss the case.
Indiana does not believe the appeal is moot because the
Consent Decree is still in effect. It contends the district court
did not have authority to enter the Consent Decree in the first
place and therefore asks that we vacate the Decree on the mer‐
its. However, Indiana “does not disagree with the Board and

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No. 18‐2735 5
Common Cause that, under the Board’s new vote center plan,
the consent decree is unnecessary.” It acknowledges that its
“main objective with [its] appeal is vacatur of the consent de‐
cree,” and “[w]hether that occurs because the State prevails
on the merits, because the case is moot, or merely because the
parties voluntarily agree to vacatur is unimportant.” And at
oral argument, Indiana reiterated this view, stating that “as
long as the Consent Decree is vacated, [it] will be happy with
that end result.”
In short, Indiana asks us to vacate the Decree, while joint‐
appellees ask us to remand to the district court with instruc‐
tions to vacate. Though the result they seek differs slightly, in
essence, they seek the same relief: a vacatur of the Consent
Decree. Indeed, at oral argument, the Board’s counsel recog‐
nized that “whether the district court is ordered to vacate the
Consent Decree or this Court vacates the Consent Decree on
its own … makes no practical difference.” Because both sides
ultimately agree that the Decree should no longer be in effect,
we have no need to address whether the district court had au‐
thority to enter the Decree. And we need not remand the case
to the district court for vacatur. Given our authority to vacate
district court judgments—including consent decrees—we can
and should vacate the Decree ourselves. See 28 U.S.C. § 2106;
cf. Frank v. Walker, 819 F.3d 384, 385 (7th Cir. 2016) (citing
United States v. Munsingwear, Inc., 340 U.S. 36 (1950)).
Accordingly, we VACATE the Consent Decree and R EMAND
to the district court with instructions to dismiss the case.

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