League of Women Voters of Ind v. Holli Sullivan ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2815 & 20-2816
LEAGUE OF WOMEN VOTERS OF INDIANA, INC., et al.,
Plaintiffs-Appellees,
v.
HOLLI SULLIVAN, in her official capacity as Secretary of State
of Indiana, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 1:17-cv-02897 & 1:17-cv-03936 — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED APRIL 22, 2021 — DECIDED JULY 19, 2021
____________________
Before WOOD, BRENNAN, and ST. EVE, Circuit Judges.
WOOD, Circuit Judge. In this case, we return to the question
whether Indiana’s procedures for maintaining its official list
of registered voters comply with federal law. On its first trip
here, Indiana was defending Act 442 (as its voter-registration
law at the time was called). See Common Cause Indiana v. Law-
son, 937 F.3d 944 (7th Cir. 2019) (“Common Cause I”). We con-
cluded that Act 442 was preempted by the National Voter
2 Nos. 20-2815 & 20-2816
Registration Act (NVRA), 52 U.S.C. §§ 20501–20511, because
it allowed the state to remove a registered voter from its offi-
cial list without following the procedures mandated by the
NVRA. See 52 U.S.C. § 20507(d). Now Indiana is here again
with a new law, Act 334. Indiana contends that Act 334 elimi-
nates the provisions we found problematic in Act 442. And to
a degree, this is true. But what Act 334 took with the left hand,
it gave away with the right, and the net result is continued
inconsistency with the NVRA. Therefore, we find that por-
tions of it, too, are preempted by federal law.
I
Our story begins in 2017, with the passage of Senate En-
rolled Act 442 (Act 442). Act 442 adopted an “aggressive new
strategy” for cleansing Indiana’s voter rolls of people who the
state suspected were no longer qualified to vote there. Com-
mon Cause I, 937 F.3d at 946. Act 442 allowed Indiana election
officials to remove a voter from the state’s voter rolls automat-
ically (meaning without directly contacting the person in
question) based on information acquired through a third-
party database known as “Crosscheck.” Crosscheck provided
the Indiana Election Division—the central election authority
in the state—with the voter lists of multiple states. Once the
Election Division received this information, it applied certain
“confidence factors” to the data, assigning points when cer-
tain data fields relating to an out-of-state voter and Indiana
voter matched. When a voter’s records exceeded a specified
point threshold, the Election Division forwarded the voter’s
Crosscheck data to county election officials. (In Indiana,
county election officials maintain the official voter rolls. See
Ind. Code § 3-7-38.2-1 to -2.) Act 442 then required county of-
ficials to determine whether (1) the Indiana voter and the out-
Nos. 20-2815 & 20-2816 3
of-state voter were the same person, and (2) the matching reg-
istration in the second state postdated the registration in Indi-
ana. See Ind. Code § 3-7-38.2-5(d) (2018). If these two criteria
were met, Act 442 mandated that county officials cancel the
Indiana registration of the voter, without further notice or op-
portunity for the voter to contest her removal. Id. § 3-7-38.2-
5(e).
Act 442 was challenged in two separate lawsuits by three
organizations: the Indiana National Association for the Ad-
vancement of Colored People (NAACP), the League of
Women Voters of Indiana (the League), and Common Cause
Indiana (CCI) (collectively, the Organizations). They sued the
Secretary of State (initially Connie Lawson, now Holli Sulli-
van) and the two Co-Directors of the Indiana Election Divi-
sion (J. Bradley King and Angela Nussmeyer) seeking to en-
join enforcement of the Act. (Because the defendants are being
sued in their official capacities only, we refer to them collec-
tively as Indiana.) In both cases, the Organizations have main-
tained that Act 442 violates the NVRA because it allows Indi-
ana to remove registered voters without following the re-
moval procedures specified by the federal statute.
The district court agreed with the Organizations and
preliminarily enjoined enforcement of Act 442. We
consolidated the two cases on appeal and affirmed. See
Common Cause I, 937 F.3d 944. We emphasized that we were
not criticizing Indiana’s decision to participate in Crosscheck,
or for that matter any other program that furnishes out-of-
state voter-registration information. Rather, the problem was
with how the state chose to use the data it acquired. Act 442
allowed Indiana to remove voters from its rolls without either
(1) hearing directly from that voter that he or she wished to
4 Nos. 20-2815 & 20-2816
be removed, or (2) providing notice to the voter that the voter
would be removed from the rolls if he or she did not respond
and failed to vote in the next two federal general elections.
Taken together, these provisions brought the Act into direct
conflict with the removal procedures mandated by the
NVRA. Id. at 959; see 52 U.S.C. § 20507(a), (d). We concluded
that the Organizations were likely to succeed on the merits of
their claim, and so we affirmed the district court’s preliminary
injunction.
Shortly after our decision in Common Cause I, Indiana re-
pealed Act 442 and replaced it with Senate Enrolled Act 334
(Act 334). Act 334 ended Indiana’s participation in Cross-
check, but the change was largely cosmetic. Act 334 replaces
Crosscheck with a new system called the Indiana Data En-
hancement Association (IDEA). See Ind. Code §§ 3-7-38.2-5.1,
-5.5. Despite the different window dressing, IDEA is function-
ally identical to Crosscheck: under the program, Indiana col-
lects voter-registration information from other states and then
uses that information to identify potential duplicate registra-
tions. See Id. §§ 3-7-38.2-5.5(a)–(b), -7.5.
Once Indiana receives another state’s voter information,
Act 334 directs Indiana state officials to compare the infor-
mation obtained to the list of registered voters in Indiana and
identify potential matches who meet a certain “confidence
factor” threshold (based on matching data such as name, so-
cial security number, and date of birth, where available). Po-
tential matches are relayed to county election officials for fur-
ther review. See Ind. Code § 3-7-38.2-5.5(b)(5)(B), (c). The Act
makes county officials ultimately responsible for deciding
whether to remove or keep a name on the state’s voter rolls.
Id. § 3-7-38.2-5.5(d).
Nos. 20-2815 & 20-2816 5
Act 334 deletes Act 442’s requirement that county officials
automatically remove an Indiana voter from the rolls based
solely on county election officials’ identification of a match us-
ing out-of-state voter-registration information. Instead, sub-
section 5.5(d) of Act 334 instructs county officials to make
three determinations:
(1) whether the presumptive match in another state “is
the same individual who is a registered voter of the
county”;
(2) whether the registration in the second state oc-
curred after the presumptively matching Indiana reg-
istration; and
(3) whether the voter in question “authorized the can-
cellation of any previous registration” when the voter
registered in the second state.
Id. § 3-7-38.2-5.5(d)(1)–(3). The problem lies in the third re-
quirement: what exactly does it take for the voter to provide
the necessary authorization? In a handful of states, the voter-
registration form includes a spot where the new registrant is
invited expressly to authorize the cancellation of any prior
registration she may have. See, e.g., Michigan Voter Registra-
tion Application, https://www.michigan.gov/documents/
MIVoter Registration_97046_7.pdf (requiring the voter to
“authorize the cancellation of any previous registration”).
(From the parties, we understand that Indiana and nine other
states—Delaware, Hawaii, Michigan, New Mexico, North
Carolina, South Dakota, Vermont, Virginia, and Wyoming—
engage in such a practice.) The other 40 states and additional
jurisdictions do not offer such an option.
6 Nos. 20-2815 & 20-2816
If county officials determine that all three criteria under
subsection (d) are satisfied, then Act 334 directs that “the
county voter registration office shall cancel the voter registra-
tion of that voter.” Id. § 3-7-38.2-5.5(e). If only criteria (1) and
(2) are met (i.e., the identified voter has not authorized the
cancellation of any previous registration), then the Act in-
structs county officials to begin the notice-and-waiting proce-
dures prescribed by the NVRA. Id.; see also id. § 3-7-38.2-13 to
-14 (setting forth the notice, waiting, and removal require-
ments accompanying a change of address under Indiana law).
If that were all we had, then one might wonder where the
problem lies. Subsections 5.5(d) and (e) mirror the state’s
voter-removal procedures as they existed before Act 442 came
into effect in 2017. See Ind. Code § 3-7-38.2-5(d)–(e) (2016). Act
334, however, did not simply restore the status quo ante.
Instead, it added a new subsection (f) that was not previously
an element of Indiana’s voter-removal law. It is this
subsection—particularly subpart (2)—that is the focus of the
Organizations’ present challenge. It provides:
(f) The county voter registration office may rely on
written information provided either directly by a voter
registration office in another state or forwarded from
the election division from the office in the other state
as follows:
(1) If this information is provided directly from the
other state to the Indiana county voter registration
official, the out-of-state voter registration official
must provide a copy of the voter’s signed voter reg-
istration application which indicates the individual
authorizes cancellation of the individual’s previous
registration.
Nos. 20-2815 & 20-2816 7
(2) If the election division forwards written notice
from another state to an Indiana county voter reg-
istration official, the county should consider this
notice as confirmation that the individual is regis-
tered in another jurisdiction and has requested can-
cellation of the Indiana registration. A copy of the
actual voter signature is not required to be pro-
vided to the county for the voter’s status to be can-
celled if the written notice is forwarded by the elec-
tion division.
Ind. Code § 3-7-38.2-5.5(f) (2020).
By the time the Indiana legislature passed Act 334, the lit-
igation concerning Act 442 had proceeded to the permanent
injunction stage. After Act 334 went into effect, the Organiza-
tions moved for summary judgment and asked the district
court permanently to enjoin its enforcement, largely because
of the addition of subsection (f)(2). Indiana responded that
Act 442’s repeal rendered this litigation moot and required
the Organizations to bring a new lawsuit to challenge Act 334.
The district court ultimately determined that Act 334
could be challenged in the current case, because it did not
eliminate the problematic features of Act 442, especially the
impermissible voter-cancellation procedures. The court then
granted summary judgment in favor of the Organizations. It
explained that “[Act] 334 commits the same error as [Act] 442”
in that it “allows for cancellation of a voter’s registration with-
out any direct contact with the registered voter.” Specifically,
subsection (f)(2) contravenes the NVRA because it directs the
county to presume that a voter who registers (or is thought to
have registered) in another state has authorized cancellation
of that voter’s Indiana registration, even if neither Indiana nor
8 Nos. 20-2815 & 20-2816
the new state has yet received word from the voter. The court
then entered the following permanent injunction:
[Defendants are prohibited] from implementing [Ind.
Code § 3-7-38.2-]5.5(d)–(f) and from otherwise remov-
ing any Indiana registrant from the list of eligible vot-
ers because of a change in residence absent: (1) a re-
quest or confirmation in writing directly from the voter
that the voter is ineligible or does not wish to be regis-
tered; or (2) the NVRA-prescribed process of (a) noti-
fying the voter, (b) giving the voter an opportunity to
respond, and then (c) waiting two inactive federal elec-
tion cycles.
Indiana has now brought its challenges to both orders to this
court.
II
On appeal, Indiana has abandoned its contention that Act
442’s repeal rendered this case moot. Nonetheless, because
mootness is jurisdictional, see Powell v. McCormack, 395 U.S.
486, 496 n.7 (1969), we briefly pause to address it.
A case is moot if the “issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the out-
come.” Id. at 496. Mootness is a common concern when in-
junctive relief is sought in connection with a government pol-
icy, since a change in policy during the course of litigation
may accord the plaintiffs full relief or deprive them of a le-
gally cognizable interest. See ADT Sec. Servs., Inc. v. Lisle-
Woodridge Fire Prot. Dist., 724 F.3d 854, 864 (7th Cir. 2013). But
a change in policy does not automatically moot a case. For in-
stance, “[w]hen a challenged policy is repealed or amended
mid-lawsuit … [a] case is not moot if a substantially similar
Nos. 20-2815 & 20-2816 9
policy has been instituted or is likely to be instituted.” Smith
v. Exec. Dir. of Ind. War Mem’ls Comm’n, 742 F.3d 282, 287 (7th
Cir. 2014). In other words, if the policy change does not cor-
rect the asserted problem, the case is not moot and the litiga-
tion may proceed. Id. The critical question we must answer is
thus whether “the changes are so substantial as to make it un-
wise” for courts to consider the new policy in the same case.
Id. at 288.
We agree with the district court that the repeal of Act 442
and its replacement with Act 334 did not render this case
moot. The crux of the Organizations’ challenge to Act 442 was
that Indiana’s voter-list maintenance law violates the NVRA
by permitting the state to cancel voter registrations without
first receiving a request from a registrant or following the
NVRA’s notice-and-waiting procedures. The Organizations
maintain that Act 334, through the operation of subsection
(f)(2), similarly violates the NVRA by allowing Indiana to re-
move voters from its rolls automatically, without any direct
contact with the voter. We therefore agree with the district
court that the “gravamen” of the Organizations’ challenge is
unchanged, and that the same case or controversy persists be-
tween the parties. With our jurisdiction secure, we now may
consider the heart of Indiana’s appeal.
III
Indiana offers three reasons why the district court’s in-
junction should not stand. First, it maintains that the NVRA
does not preempt Act 334. Although the state admits that it is
possible to read the Act as conflicting with federal law, it ar-
gues that Act 334 is ambiguous and so we can and should
adopt a reading of the Act that avoids preemption. Second,
Indiana asserts that even if the proper reading of Act 334
10 Nos. 20-2815 & 20-2816
conflicts with the NVRA, the Organizations’ challenge fails
because of the procedural posture of the case: according to In-
diana, the Organizations have failed to show that Act 334 has
no valid applications, which (Indiana claims) they were re-
quired to prove in a pre-enforcement challenge such as this.
Finally, Indiana argues in the alternative that the district
court’s injunction was overly broad and impermissibly vague.
We are not persuaded by Indiana’s first two points, but we
agree with it on the third. The district court’s injunction swept
too broadly insofar as it enjoined subsections (d) and (e) in
addition to subsection (f). We also agree with the state that the
court’s orders were vague in that they failed to clarify
whether Indiana may automatically remove a voter if the state
receives a signed voter-registration form from a second state
in which the voter personally and explicitly authorized the
cancellation of her Indiana registration. Accordingly, we af-
firm the district court’s grant of summary judgment to the Or-
ganizations, and we affirm in part and vacate in part its per-
manent injunction.
A
The parties’ central dispute concerns whether section 3-7-
38.2-5.5(f)(2) of Act 334 creates a clear conflict with the NVRA
or is instead ambiguous and susceptible to a saving construc-
tion. The district court determined that the NVRA preempted
Act 334 and granted summary judgment to the Organizations.
We review that decision de novo, reading the evidence in the
light most favorable to Indiana and drawing all reasonable in-
ferences in its favor. See Vaughn v. Walthall, 968 F.3d 814, 818
(7th Cir. 2020).
Nos. 20-2815 & 20-2816 11
One of Congress’s stated purposes in passing the NVRA
was “to ensure that accurate and current voter registration
rolls are maintained.” 52 U.S.C. § 20501. To that end, Congress
included multiple express preemption clauses in the statute,
one of which provides:
In the administration of voter registration for elections
for Federal office, each State shall … provide that the
name of a registrant may not be removed from the of-
ficial list of eligible voters except … at the request of the
registrant; … as provided by State law, by reason of
criminal conviction or mental incapacity; or … as pro-
vided under … a general program that makes a reason-
able effort to remove the names of ineligible voters
from the official lists of eligible voters by reason of …
the death of the registrant; or … a change in the residence
of the registrant … .
Id. § 20507(a)(3)–(4) (emphasis added).
This case primarily concerns the NVRA’s procedures for
removing a registered voter where it appears that the regis-
tered voter has moved. 1 Under those circumstances, the
NVRA spells out what must be done:
1 As we stressed in Common Cause I, this case concerns Indiana’s pro-
cedures for dealing with double registration, which the vast majority of
states do not make unlawful. See 937 F.3d at 960. Double voting, of course,
is widely criminalized. See generally Double Voting, NAT’L CONFERENCE
ST. LEGISLATURES (June 16, 2021), https://www.ncsl.org/research/elections-
and-campaigns/double-voting.aspx. Federal law makes it a crime to
“vot[e] more than once” in a federal election, and that crime is punishable
by up to five years in prison. 52 U.S.C. § 10307(e). To similar effect, 49
states and Washington, D.C., explicitly prohibit voting twice in the same
election in some form. See, e.g., 10 ILCS 5/29-5 (“Any person who, having
12 Nos. 20-2815 & 20-2816
[a] State shall not remove the name of a registrant from
the official list of eligible voters … unless the registrant
(A) confirms in writing that the registrant has changed
residence to a place outside the registrar’s jurisdiction
in which the registrant is registered; or (B)(i) has failed
to respond to a notice … ; and (ii) has not voted or ap-
peared to vote … in [two consecutive federal election
cycles].
Id. § 20507(d)(1). This is clear enough: it says that a state may
not remove a voter from its voter rolls without either (1) re-
ceiving a direct communication from the voter that she wishes
to be removed or (2) going through the NVRA-prescribed
process of (a) notifying the voter, (b) giving her an oppor-
tunity to respond, and (c) then waiting two inactive election
cycles before removing her. See Common Cause I, 937 F.3d at
959. Any state law that fails to follow that prescription cannot
stand.
In cases involving a clash between a federal law that ad-
dresses a traditional area of state regulation and a competing
voted once, knowingly during any election where the ballot … lists any of
the same candidates and issues … (a) files an application to vote in the
same or another polling place, or (b) accepts a ballot or enters a voting
machine … shall be guilty of a Class 3 felony.”); Neb. Rev. Stat. § 293.780
(making it a felony to “vote[] more than once at the same election”); Va.
Code Ann. § 24.2-1004 (“Any person who intentionally (i) votes more than
once in the same election, whether those votes are cast in Virginia or in
Virginia and any other state or territory of the United States … is guilty of
a Class 6 felony.”). Oddly enough, Indiana seems to be the only state
whose laws do not explicitly mention double voting; the state does, how-
ever, make it a class D felony knowingly to “appl[y] for or receive[] a ballot
in a precinct other than that precinct in which the person is entitled to
vote.” See Ind. Code § 3-14-2-16.
Nos. 20-2815 & 20-2816 13
state law, the Supreme Court presumes no preemption unless
there is evidence of a “clear and manifest purpose” by Con-
gress to do so. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947). But voting cases are different: no such presumption
applies to preemption cases involving the NVRA. Arizona v.
Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 14 (2013). That is
because Congress’s authority for the NVRA is rooted in the
Constitution itself, whose Elections Clause expressly “em-
powers Congress to ‘make or alter’ state election regulations.”
Id. (quoting U.S. Const. art. I, § 4, cl. 1).
With this in mind, we turn to Act 334. In construing this
state law, we are guided by the principles of statutory con-
struction that the Indiana Supreme Court follows. Like the
U.S. Supreme Court, the state supreme court gives primacy to
the text of the statute. As it explained in D.P. v. State, 151
N.E.3d 1210 (Ind. 2020), “[i]n construing statutes, our primary
goal is to determine the legislature’s intent. But to ascertain
that intent, we must first look to the statutes’ language. If the
language is clear and unambiguous, we give effect to its plain
and ordinary meaning and cannot resort to judicial construc-
tion.” Id. at 1216 (citations omitted). To similar effect, the court
stated that “[w]e start with the plain language of the statute,
giving its words their ordinary meaning and considering the
structure of the statute as a whole. No word or part of the stat-
ute should be rendered meaningless if it can be reconciled
with the rest of the statute.” Ind. Alcohol & Tobacco Comm’n v.
Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017) (internal
quotation omitted). And, of importance here, the state justices
have warned that “[c]ourts may not engraft new words onto
a statute or add restrictions where none exist.” Kitchell v.
Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013) (internal quotation
omitted).
14 Nos. 20-2815 & 20-2816
At first glance, Act 334 appears to be consistent with the
voter-removal procedures of the NVRA. Sections 3-7-38.2-
5.5(d) and (e) provide that county election officials may re-
move a voter from the rolls based on IDEA data only if offi-
cials determine that (1) the person identified in the report is
the same one who is a registered voter of the county, (2) that
person registered to vote in the second state after she regis-
tered to vote in Indiana, and (3) that person authorized the
cancellation of her Indiana registration when she registered in
the second state. If county officials are able to confirm only (1)
and (2)—but not that the person authorized the cancellation
of her Indiana registration—then subsection (e) does not per-
mit those officials to remove the voter. Instead, it directs them
to send an address-confirmation notice to the voter. See Ind.
Code § 3-7-38.2-5.5(e).
Had the Indiana legislature stopped there, this would be a
different case. (As we noted earlier, subsections (d) and (e) of
Act 334 were components of Indiana’s voter-registration law
before the passage of Act 442.) But the legislature instead
added a new provision, subsection (f), when it passed Act 334.
As we indicated earlier, that addition is the focus of the Or-
ganizations’ lawsuits.
Subsection (f) begins innocently enough. It permits county
election officials to rely on two types of information in reach-
ing a decision concerning a voter’s registration under subsec-
tions (d) and (e): “written information provided either [1] di-
rectly by a voter registration office in another state or [2] for-
warded from the [Indiana] election division from the office in
the other state.” Ind. Code § 3-7-38.2-5.5(f). Subsection (f)(1)
specifies that if “this information” is provided to an Indiana
county official directly from the other state, then the other
Nos. 20-2815 & 20-2816 15
state “must provide a copy of the voter’s signed voter regis-
tration application which indicates the individual authorizes
cancellation of the individual’s previous registration.” (This
requirement in practice can refer only to the nine states other
than Indiana that include such an authorization as part of
their registration form.)
In stark contrast to subsection (f)(1), subsection (f)(2) pro-
vides that if the Indiana Election Division “forwards written
notice from another state” to county officials, then “the county
should consider this notice as confirmation that the individ-
ual is registered in another jurisdiction and has requested can-
cellation of the Indiana registration.” What’s more, “[a] copy
of the actual voter signature is not required to be provided to
the county for the voter's status to be canceled if the written
notice is forwarded by the election division.” Id. § 3-7-38.2-
5.5(f)(2).
The upshot of subsection (f)(2)’s language is this: any time
a county election official receives “written notice” from Indi-
ana election officials, county officials must presume for pur-
poses of subsection (d)(3) that the voter has authorized the
cancellation of his Indiana registration, even if Indiana does not
possess proof that the voter himself ever submitted such an authori-
zation. This presumption has critical implications for Act 334’s
compatibility with the NVRA. Recall that subsection (d) re-
quires county officials to make three determinations. Subsec-
tion (e) then directs county officials immediately to cancel a
voter’s registration if all three criteria are met. But if county
officials cannot confirm the third element—i.e., that the voter
herself authorized her Indiana registration to be cancelled—
then county officials may not immediately cancel the voter’s
registration and instead must initiate the NVRA’s notice-and-
16 Nos. 20-2815 & 20-2816
waiting procedures. So far, so good. But then subsection (f)(2)
sidesteps subsection (e)’s careful distinctions any time county
officials have “written notice” forwarded to them: they must
treat subsection (d)(3) as fulfilled, without any further in-
quiry, and then must cancel a voter’s registration if there ap-
pears to be a duplicate registration and the non-Indiana reg-
istration postdated Indiana’s registration. If this new scheme
sounds familiar, that’s because it is the same as the procedure
found in Act 442 that violated the NVRA. See Common Cause
I, 937 F.3d at 958. Just like Act 442, Act 334 impermissibly al-
lows Indiana to cancel a voter’s registration without either di-
rect communication from the voter or compliance with the
NVRA’s notice-and-waiting procedures.
Indiana acknowledges that the subsection could be read to
permit a county to remove an individual from its voter rolls
even if Indiana does not possess a request from the registrant
to cancel her registration. It urges, however, that subsection
(f)(2) is ambiguous. Because of this ambiguity, Indiana says,
it is possible for us to adopt a saving construction by reading
into the statute a requirement that subsection (f)(2) applies
only if Indiana has a copy of the authorization of cancellation
somewhere on file. Since, in such a situation, Indiana would
be in possession of a direct communication from the voter au-
thorizing her removal from the rolls, any automatic removals
that followed from subsection (f)(2) would occur in compli-
ance with section 20507(a)(3)(A) of the NVRA. Indiana tries to
explain away the last sentence of subsection (f)(2), which
specifies that the county need not have a copy of the voter’s
signed voter registration application, by saying that it merely
creates a small administrative efficiency by obviating the need
for Indiana election officials to send along additional docu-
ments to county officials. Finally, Indiana attempts to justify
Nos. 20-2815 & 20-2816 17
its “saving construction” on the ground that the term “written
notice,” which is not defined in Act 334, is ambiguous. It pos-
tulates that “written notice” may refer only to the subset of
situations in which Indiana forwards a registered voter’s
name to county officials upon receiving an authorization-of-
cancellation form.
The state’s position, however, cannot be reconciled with
the principles of statutory construction that its own supreme
court has authoritatively established. If there is no
ambiguity—and we find none—then D.P. instructs that we
must confine ourselves to the statutory language and context.
Moreover, Kitchell tells us that courts may neither engraft new
words onto a statute nor “add restrictions where none exist.”
997 N.E.2d at 1026. The plain fact is that the state legislature
did not limit subsection (f)(2) to instances in which Indiana
has a copy of the authorization of cancellation on file. Nor
does the statute authorize the state to take shortcuts by failing
to send along proof of the voter’s authorization to the
responsible county officials. It is not our job to draft a better
law for Indiana. See Sherman v. Cmty. Consol. Sch. Dist. 21, 980
F.2d 437, 442 (7th Cir. 1992) (“We cannot rewrite a [state] law
in order to ‘save’ it … .”); K-S Pharmacies, Inc. v. Am. Home
Prods. Corp., 962 F.2d 728, 730 (7th Cir. 1992) (“[A] federal
court may not slice and dice a state law to ‘save’ it … [or]
attribute to the state a law we could have written to avoid the
problem.”).
Indiana’s position also fails to take into account the statu-
tory context in which subsection (f) is embedded; the sur-
rounding provisions of Act 334 erase any doubt about what is
meant by the term “written notice.” The term “written notice”
is synonymous with the “presumptive matches” that the
18 Nos. 20-2815 & 20-2816
Election Division forwards to counties under the IDEA pro-
gram, and we find that its meaning necessarily excludes “a
copy of the voter’s signed [out-of-state] voter registration ap-
plication which indicates the individual authorizes cancella-
tion of the individual’s previous registration.” Ind. Code § 3-
7-38.2-5.5(f)(1).
Several aspects of Act 334 lead us to this conclusion. The
first is the text and structure of subsection (f) as a whole. As
noted earlier, the introductory clause of subsection (f) refers
to two types of information that county officials can rely on:
(1) “written information” that is provided “directly by a voter
registration office in another state” or (2) “written infor-
mation” that is “forwarded from the [Indiana] election divi-
sion from the office in the other state.” Id. § 3-7-38.2-5.5(f).
Subsection (f)(1) expands on the requirements related to the
first category of “written information,” and explains that any-
time “this information” is provided to county officials, then
the out-of-state election officials “must provide a copy of the
voter’s signed voter-registration application which … author-
izes cancellation of the individual’s previous registration.” Id.
§ 3-7-38.2-5.5(f)(1) (emphasis added). This phrasing indicates
that the authorization-of-cancellation notice is not included in
the definition of “written information”: it is in addition to—a
requirement separate and apart from—the “written infor-
mation” that non-Indiana officials provide.
Indiana reads (f)(1) differently; in its view, that subsection
defines “written information” to include authorization-of-
cancellation notices. We think not: information can come in
many ways (oral, on a piece of paper, email, text), while an
application to authorize cancellation of registration is a more
precise phrase. Subsection (f)(1) is not worded as a definition:
Nos. 20-2815 & 20-2816 19
it does not say, for instance, that if out-of-state officials
provide written information directly to county officials, then
“the written information must include an authorization-of-
cancellation form.” Rather, the clause sets forth a condition
under which the “written information” provided by another
state must be supplemented with something more concrete:
an authorization-of-cancellation form.
We cannot read a silent requirement into subsection (f)(2)
that would require states to provide signed authorization-of-
cancellation forms to the Election Division, because the sub-
section contemplates only that other states will provide “writ-
ten information” to the Election Division, and the latter will
then pass along that information to the relevant county. And
the text of subsection (f)(2) confirms that the term “written in-
formation” does not include authorization of cancellation no-
tices. The statute says instead that any time a state (other than
Indiana) provides “written notice” directly to the Election Di-
vision, and the Election Division then forwards that notice to
the county, “a copy of the actual voter signature is not re-
quired to be provided to the county for the voter’s status to be
cancelled.” (Emphasis added.) In other words, this second
category of “written information”—“written notice”—ex-
cludes authorization-of-cancellation forms.
Now wait just a minute!, says Indiana: there must be some
significance in the fact that subsection (f)(2) uses the term
“written notice,” whereas subsection (f)(1) refers to “this infor-
mation” (meaning the “written information” mentioned ear-
lier in subsection (f)). Surely, Indiana argues, the difference
must be that “written notice” includes an authorization-of-
cancellation form, even if the more general “written infor-
mation” does not.
20 Nos. 20-2815 & 20-2816
We find this argument unpersuasive. Subsection (f) treats
“written notice” as a category of “written information”:
subsection (f)(2) expands on the second category of “written
information” discussed in the first sentence of subsection (f)—
i.e., “written information” that is “forwarded from the
[Indiana] election division from the office in the other state.”
If authorization-of-cancellation forms are excluded from the
definition of “written information,” they must be excluded
from the definition of “written notice.”
Indiana’s meaningful-variation argument also runs into
trouble with the Act’s use of the word “forward.” Subsection
(f)(2) specifies that when the Election Division receives “writ-
ten notice” from another state, it will “forward[]” that written
notice to county officials. Not summarize, not describe, not
pick-and-choose—but forward. That is, Indiana election offi-
cials must send along everything they receive from the other
state. The last sentence of subsection (f)(2) states that the
voter’s signed authorization-of-cancellation form need not be
provided to the county “if the written notice is forwarded by
the election division.” That makes sense only if “the written
notice” and the authorization-of-cancellation are two differ-
ent things.
There is a more straightforward way to understand the
difference between “written notice” and “written infor-
mation.” The key word is again “forward.” Outside of subsec-
tion (f), the word “forward” is found only in subsection (b)(5),
which instructs the Election Division to “forward potential
matches” obtained through the IDEA program to county offi-
cials. Id. § 3-7-38.2-5.5(b)(5). This language is significant be-
cause it tells us that “written notice” is just another term for
“presumptive IDEA matches.” This makes sense, because
Nos. 20-2815 & 20-2816 21
IDEA information, like the “written notice” described in sub-
section (f)(2), is first provided to officials of the Indiana Elec-
tion Division, and then it is sent to county officials. See id. § 3-
7-38.2-5.5(c). We do not think it odd that Act 334’s drafters
chose to distinguish the subset of “written information” that
corresponded to the IDEA program with a different term.
Because “written notice” is synonymous with “the IDEA
data related to a presumptive match,” subsection (f)(2) re-
quires county officials to presume that a voter has authorized
cancellation of her registration any time they are sent a pre-
sumptive match, even if Indiana has not received an authorization
of cancellation from the voter. Act 334 does not require the IDEA
data to include signed authorization-of-cancellation forms. In
fact, those forms are notable by their absence from subsec-
tions (b) and (c) of the Act, which detail Indiana’s procedures
for obtaining and using out-of-state voter registration data
through the IDEA program. Those sections identify various
types of information that Indiana might obtain from other
states, including a voter’s name, address, driver’s license
number, social security number, and date of birth. Never,
however, do they mention copies of an out-of-state voter reg-
istration form that includes the voter’s own authorization of
cancellation. See id. § 3-7-38.2-5.5(b), (c). (Tellingly, neither do
the Indiana Election Division’s guidelines for implementing
the voter-registration statute, even though the Election Divi-
sion updated them after the passage of Act 334. See Indiana
Election Division, Indiana 2020 Voter Registration Guidebook
(2020), https://www.in.gov/sos/elections/files/2020-Voter-
Registration-Guidebook.MOVEDPRIMARY.pdf.)
The Indiana legislature knew how to require states to pro-
vide signed authorization forms. It did so explicitly in
22 Nos. 20-2815 & 20-2816
subsection (f)(1), which applies when other states provide in-
formation directly to county officials. Yet there is no parallel
requirement that other states send proof of authorization of
cancellation when they send information to the Election Divi-
sion. This stark contrast in statutory language is no accident.
We will not rewrite Act 334 to add a requirement where none
exists.
The bottom line is this: any time the Election Division
sends county officials a presumptive match based on IDEA
data, subsection (f)(2) renders inapplicable the rule that a
voter must personally authorize the cancellation of her
registration before the county official may take that step.
Instead, Act 334 instructs county officials to cancel a voter’s
registration—without following the NVRA requirements of
notice and a waiting period of two election cycles—if those
officials determine that (1) a person has registered in two
different states and (2) the registration in the second state
postdated the Indiana registration. Because this reestablishes
the precise scheme we found wanting in Common Cause I, we
hold that the NVRA preempts subsection (f)(2). This holding
makes it unnecessary for us to consider whether the state’s
litigating position qualifies as an administrative
interpretation entitled to judicial deference under Indiana
law. See LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind.
2000) (courts are not bound by a state agency’s interpretation
of a statute where “th[e] interpretation would be inconsistent
with the statute itself”).
B
Indiana’s second defense of the statute is more limited.
The state contends that even if subsection (f)(2) creates a
method for Indiana to remove voters without complying with
Nos. 20-2815 & 20-2816 23
the NVRA, the Organizations’ challenge still fails because
they have not shown that subsection (f)(2) has no valid appli-
cations. It points out that the Organizations have challenged
Act 334 before the state has had an opportunity to apply it.
That means, it argues, that they must meet the high threshold
for facial invalidity described in United States v. Salerno, 481
U.S. 739 (1987). There the Court held that a facial challenge to
a statute can succeed only if “no set of circumstances exists
under which the [statute] would be valid.” Id. at 745; see also
Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 588–89
(1987) (applying the Salerno rule to preemption cases). Here,
Indiana asserts that the Organizations cannot make such a
showing, because there is at least one hypothetical application
of subsection (f)(2) that would not violate the NVRA. It has in
mind the possibility that, at the time that the Indiana Election
Division forwards “written notice” to the relevant county, In-
diana election officials fortuitously happen to possess a voter
registration form authorizing cancellation.
The Organizations take a different view. They characterize
their suit as a “preenforcement as-applied challenge.” Invok-
ing Gonzales v. Carhart, 550 U.S. 124 (2007), they argue that a
preenforcement challenge may be maintained against a state
law so long as the plaintiffs are able to identify a “discrete and
well-defined application” of the challenged law that is “likely
to occur.” Id. at 167. This lawsuit concerns a well-defined and
likely application of the Act, the Organizations say, because
Act 334 does not require or create a mechanism for the Indi-
ana Election Division to obtain copies of registration forms
authorizing cancellation and instead only contemplates Indi-
ana obtaining the names, dates of birth, addresses, and social
security numbers of individuals through the IDEA program.
The state cannot rely on happenstance, rather than legal
24 Nos. 20-2815 & 20-2816
structure, to save the law. In essence, the parties disagree over
whether a state law can survive a preenforcement preemption
challenge if the state can think of a single hypothetical sce-
nario in which the law could be enforced consistently with
federal law.
Although the question is fairly debatable, we will accept
for present purposes Indiana’s argument that we are looking
at a facial challenge. The Organizations seek to strike down
subsection (f)(2) “in all its applications,” and they are reach-
ing “beyond the particular circumstances of the[] plaintiffs”
to challenge the application of the law more broadly to all vot-
ers who may be removed under subsection (f)(2). See John Doe
No. 1 v. Reed, 561 U.S. 186, 194 (2010); see also United States v.
Supreme Court of N.M., 839 F.3d 888 (10th Cir. 2016).
Nonetheless, even the “no-set-of-circumstances” standard
does not mean that facial challenges are impossible. It is al-
ways possible to imagine something: extraterrestrials land in
Indiana and block county officials from doing their job; some-
one throws away a piece of paper that reveals an intent to
abandon Indiana; or a county official overhears a phone con-
versation and learns something. Such things are possible, but
that is not what the Supreme Court had in mind in Salerno,
assuming that Salerno’s test operates the same way in preemp-
tion cases. The Court itself has cast doubt on the latter point.
In Arizona v. United States, 567 U.S. 387 (2012), a case that was
decided a quarter century after Salerno, the Court largely up-
held a preenforcement preemption challenge to multiple pro-
visions of an Arizona immigration law. Notable for our pur-
poses, the majority opinion in Arizona does not cite Salerno,
and various aspects of its preemption analysis are incompati-
ble with the no-set-of-circumstances test, as a dissenting
Nos. 20-2815 & 20-2816 25
Justice noted. See id. at 458 (Alito, J., concurring in part and
dissenting in part); see also Lozano v. City of Hazleton, 724 F.3d
297, 313 n.22 (3d Cir. 2013).
In the end, we need not wade into the debate about the
compatibility (or not) of Arizona and Salerno. In our view, Act
334 would be preempted even under a strict application of Sa-
lerno. As we noted earlier, Indiana points to one—and only
one—hypothetical factual scenario under which (it claims)
subsection (f)(2) would not conflict with the NVRA. In its
view, so long as the Election Division happens to possess an
out-of-state authorization-of-cancellation form any time it
forwards presumptive IDEA data to county officials, then the
cancellations that occur under subsection (f)(2) comply with
the NVRA because they have been undertaken pursuant to a
“request of the registrant.” See 52 U.S.C. § 20507(a)(3)(A).
But, aside from the problem of relying on secret and
accidental information, this hypothetical has a greater flaw. It
is incompatible with Act 334 and Indiana’s broader voter-
registration scheme. For subsection (f)(2) to avoid preemption
under Indiana’s theory, two conditions would need to be true
at all times throughout the administration of the Act: (1) the
IDEA program would need to be limited only to the nine
states that include an authorization of cancellation with their
voter registration forms, and (2) the Election Division would
have to obtain authorization-of-cancellation forms for each
and every presumptive match it forwards to county officials.
Yet Act 334 makes no provision for either of these condi-
tions to hold true, and indeed, imposing both conditions
would severely undermine the operation of the Act. We there-
fore conclude that Indiana’s hypothetical does not describe a
26 Nos. 20-2815 & 20-2816
“set of circumstances … under which the Act would be valid.”
Salerno, 481 U.S. at 745.
The first strike against Indiana’s position is that Act 334
neither requires nor creates an avenue for the Election Divi-
sion to obtain copies of out-of-state voter-registration forms
as part of the IDEA program. Like Crosscheck before it, the
IDEA program contemplates that the several states will share
their respective voter-registration lists with one another—not
the supporting documentation that underlie each state’s rec-
ords. The text of Act 334 confirms this reading. Indiana Code
§ 3-7-38.2-7.5(1) clarifies that the states that participate in the
IDEA program will provide to Indiana their “lists of voters,”
and that the IDEA program will function by comparing “the
lists of voters provided by another state with the list of regis-
tered voters in Indiana to identify any individuals who may
be registered to vote in more than one state.” And Indiana
Code § 3-7-38.2-5.5(c) contemplates various categories of in-
formation that states might include in the voter lists that they
provide to Indiana, such as first, middle, and last name; Social
Security number; Indiana driver’s license or identification
card number; date of birth; and street address. They do not
share voter signatures, which might appear on an out-of-state
voter-registration form. This practical limitation on the scope
of IDEA is not surprising: if participating states had to pro-
vide supporting documentation for each registered voter,
they might be saddled with significant costs and delays in the
administration of the IDEA program.
Indiana’s hypothetical also founders because Act 334 does
not purport to limit the states that may participate in the IDEA
program to only those nine that include an authorization-of-
cancellation on their voter-registration forms. A nine-state
Nos. 20-2815 & 20-2816 27
limitation on Act 334 would severely undermine the Act’s
purpose of maintaining accurate voter rolls. Ex-Hoosiers are
not only to be found in Delaware, Hawaii, Michigan, New
Mexico, North Carolina, South Dakota, Vermont, Virginia,
and Wyoming. Nor is it certain that any of these states would
agree to participate in IDEA or, if they did, agree also to pro-
vide copies not just of their voter lists, but also the underlying
documentation.
Indiana’s hypothetical cannot carry the weight the state is
putting on it. We thus conclude that the Organizations have
met their burden of showing that subsection (f)(2) conflicts
with, and is thus preempted by, the federal NVRA.
C
This brings us to the question of relief, which underlies In-
diana’s final point. The state asserts that the district court’s
injunction is overbroad and vague. With respect to over-
breadth, Indiana asserts that the district court abused its dis-
cretion when it enjoined the enforcement of Ind. Code § 3-7-
38.2-5.5(d) and (e) in addition to subsection (f), even though
the Organizations did not argue, and the district court did not
find, that sections (d) and (e) violated the NVRA. With respect
to vagueness, Indiana argues that the injunction’s prohibition
from removing voters from the rolls absent “a request or con-
firmation in writing directly from the voter” (our emphasis)
does not give Indiana fair notice of what conduct the injunc-
tion prohibits. See FED. R. CIV. P. 65(d)(1)(C); Granny Goose
Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70, 415 U.S. 423, 444 (1974). In particular, Indiana contends
that the order does not clarify whether receiving a signed out-
of-state voter-registration form that authorizes cancellation of
a registrant’s prior voter registrations (such as the form
28 Nos. 20-2815 & 20-2816
described in Ind. Code § 3-7-38.2-5.5(d)(3)) counts as a “di-
rect” communication such that it may be treated as a “request
of the registrant” sufficient to cancel a registration under the
NVRA. See 52 U.S.C. § 20507(a)(3)(A).
The Organizations counter that Indiana waived these ob-
jections by failing to raise them before the district court. See
In re Aimster Copyright Litig., 334 F.3d 643, 656 (7th Cir. 2003).
The Organizations point out that at an earlier stage they re-
quested an injunction with wording materially similar to the
district court’s order, yet Indiana opposed the proposed in-
junction only on the merits and did not raise overbreadth or
vagueness objections.
We see no waiver, or even forfeiture, here. Although the
Organizations requested an injunction with wording similar
to that in the order that eventually issued, the parties were not
privy to the full scope of the district court’s injunction until
the district court released its final order. The state’s first
chance to raise its objection was thus this appeal. See Paris v.
U.S. Dep’t of Hous. & Urban Dev., 713 F.2d 1341, 1347 (7th Cir.
1983). In re Aimster Copyright Litigation does not support a dif-
ferent result. There, the appellant’s Rule 65 challenge was
deemed waived because the appellant failed to suggest alter-
native wording to the district court’s order on appeal, not just
before the district court. See 334 F.3d at 656. Lastly, we have
recognized that general waiver principles give way when the
lawfulness of injunctive relief is at issue, particularly when a
district court has issued an injunction against a state. See Ass’n
of Cmty. Orgs. for Reform Now v. Edgar, 56 F.3d 791, 797 (7th
Cir. 1995); Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 632
(7th Cir. 2003). Indiana’s objections are therefore preserved.
Nos. 20-2815 & 20-2816 29
Turning to the substance of Indiana’s claims, we agree
with the state that the district court’s injunction swept too
broadly and did not adequately define what exactly should
qualify as a direct communication from the voter. Both these
points must be addressed on remand.
First, the district court went too far when it enjoined the
enforcement not just of Ind. Code § 3-7-38.2-5.5(f), but also
Ind. Code § 3-7-38.2-5.5(d) and (e). Subsections (d) and (e)
merely restate the NVRA’s procedures for removing a regis-
trant from a state’s voter list: they provide that a county offi-
cial may remove a voter from Indiana’s voter roll only if the
official determines that the registrant authorized cancellation
of his or her registration; if not, then the official must send
notice to the registrant. See Ind. Code § 3-7-38.2-5.5(d)–(e).
Without the mandatory presumption of cancellation in sub-
section (f)(2), this procedure does not violate the NVRA, nor
have the Organizations argued as much. Indeed, subsections
(d) and (e) have existed verbatim in prior iterations of Indi-
ana’s voter-registration law without controversy. See Ind.
Code § 3-7-38.2-5(d), (e) (2016). The same is not true, however,
of subsection (f). Given the interrelatedness of the various
components of subsection (f), we find that the district court
acted within its discretion when it enjoined enforcement of
the entire subsection and not just subsection (f)(2).
We are also sympathetic to Indiana’s complaint that the
word “directly,” as used in the district court’s injunction, does
not clarify whether Indiana may cancel a voter’s registration
based solely on a voter’s personal authorization of cancella-
tion in Indiana that is first given to another state and then for-
warded to Indiana by that state. Indiana’s confusion may
stem in part from our earlier decision in Common Cause I.
30 Nos. 20-2815 & 20-2816
There we explained that the NVRA prohibits states from can-
celling a voter’s registration without “direct contact” with the
voter, and that such direct contact could come in the form of
either (1) a “request of the registrant” that her registration be
cancelled or (2) compliance with the NVRA’s notice-and-
waiting procedures. See Common Cause I, 937 F.3d at 958–59.
We further stated that the “only straightforward reading of
the phrase ‘at the request of the registrant’ is that the registrant
herself makes the request to the state.” Id. at 961. What we left
undecided, however, was whether a state was entitled to can-
cel a voter’s registration based “a copy of a communication
from a suspected Indiana registrant” authorizing cancellation
that “passed through multiple hands.” Id. In short, may a
voter rely on another state to serve as her agent in passing
along her personal authorization to cancel?
Indiana takes the position that an authorization-of-
cancellation form qualifies as a “request of the registrant”
under the NVRA, and so the district court’s injunction should
not bar the state from cancelling a voter’s registration
automatically upon receipt of such a form. The state wants to
know, however, if it must receive authorization-of-
cancellation forms directly from voters, or if it is enough for
the voter to submit the form to the new state and trust it to
convey the form back to Indiana.
We see nothing in the NVRA that would prohibit the
second method of passing along the voter’s choice to Indiana.
An authorization-of-cancellation form that a voter personally
signs and that is then forwarded to Indiana from another state
complies with section 20507(a)(3)(A) of the NVRA. When we
stated in Common Cause I that the NVRA requires “direct”
contact with a voter, we meant that a communication must be
Nos. 20-2815 & 20-2816 31
generated by the voter to qualify as a “request of the
registrant”—not by a third party. This point should be
reflected in the district court’s revised injunction.
IV
We AFFIRM the district court’s grant of summary judgment
and we AFFIRM IN PART and VACATE IN PART the district
court’s permanent injunction. The case is REMANDED for fur-
ther proceedings consistent with this opinion.