Vacatur of Consent Decree

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7^th Circuit Court of Appeals

Case Name: Common Cause Indiana, et al. v. Marion County Election Board, et al.

Case No.: 18-2735

Officials: FLAUM, KANNE, and SYKES, Circuit Judges.

Focus: Vacatur of Consent Decree

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 voting system, including rules for in‐person early voting.  In May 2017, Common Cause Indiana, the Greater Indianapolis Branch of the NAACP, and two Marion County registered 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 satellite offices from 2010 to 2016—and more specifically, the application of the Satellite Office Provision’s unanimity requirement and the Republican Board member’s decision to withhold 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 Section 2 of the Voting Rights Act of 1965. Indiana moved to intervene, arguing plaintiffs’ complaint “calls into question the federal and state constitutional validity” of the Satellite Office Provision. The district court issued a conditional grant, allowing Indiana to attend a settlement conference, challenge a settlement agreement at a fairness hearing, and seek permission to appeal any approved settlement.

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 merits. However, Indiana “does not disagree with the Board and 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 decree,” and “whether 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 instructions 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 recognized 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 authority 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 REMAND to the district court with instructions to dismiss the case

Decision

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.