### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2735

C OMMON C AUSE I NDIANA

, et al.

, Plaintiffs

‐ Appellees

,

v.

M ARION C OUNTY E LECTION B OARD

, et al.

, Defendants

.

A PPEAL OF : S TATE OF I NDIANA

____________________

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 M AY 21, 2019

— D ECIDED J UNE 3, 2019

____________________

Before F LAUM

, K ANNE

, and S YKES

, Circuit Judges

.

F LAUM

, 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.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 o ffi ces” each year by unanimous vote. See id.

§ 3

‐ 11

‐ 10

‐ 26.3 (the “Satellite O ffi ce Provision”). A satellite of

‐

fi ce 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

o ffi ces for the 2008 presidential election. It did not approve

any satellite o ffi ces for the 2010, 2012, 2014, or 2016 elections;

each year, the two Democrat Board members voted in favor

of opening satellite o ffi ces, 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 o ffi cial

capacities pursuant to 42 U.S.C. § 1983. Plainti ff s alleged the

Board’s decision to not approve in

‐ person early voting satel

‐

lite o ffi ces from 2010 to 2016—and more speci fi cally, the ap

‐ plication of the Satellite O ffi ce 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 plainti ff s’ complaint “calls into question the

federal and state constitutional validity” of the Satellite O ffi ce

Provision. The district court issued a conditional grant, allow

‐ ing Indiana to a tt end a se tt lement conference, challenge a set

‐

tlement agreement at a fairness hearing, and seek permission

to appeal any approved se tt lement.No. 18

‐ 2735 3

On April 25, 2018, the district court granted plainti ff s’ mo

‐

tion for a preliminary injunction, ordering the Board to estab

‐

lish two in

‐ person early voting satellite o ffi ces 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 fi ve in

‐ person early voting satellite o ffi ces

for the 2018 general election, and going forward, a minimum

of two satellite o ffi ces for primary elections and fi ve satellite

o ffi ces 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 plainti ff s made a prima facie showing of likelihood

of success on the merits. On July 25, the Board unanimously

adopted two resolutions. The fi rst rati fi ed 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 o ffi ces for the 2018 general election.

On August 7, 2018, Indiana fi led a motion to alter or

amend the Decree. It argued the Decree is contrary to Indiana

law because there was “no fi nding 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 o ffi ces and e ff ectively disre

‐ garded the Satellite O ffi ce Provision’s unanimity require

‐

ment. The district court denied Indiana’s motion, fi nding the

Board unanimously rati fi ed the Decree, and concluding that

even if it hadn’t, the Decree “was necessary to remedy a prob

‐

able violation of federal law.” Indiana fi led a notice of appeal.4 No. 18

‐ 2735

After Indiana submi tt ed 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 speci fi es that

Marion County will have two in

‐ person early voting satellite

o ffi ces for primary elections and six in

‐ person early voting

satellite o ffi ces 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 o ffi ces to be established

under [the Satellite O ffi ce 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 o ffi cially became a vote center county on Decem

‐

ber 6, 2018.

Plainti ff s 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 o ffi ces—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 e ff ect. It contends the district court

did not have authority to enter the Consent Decree in the fi rst

place and therefore asks that we vacate the Decree on the mer

‐

its. However, Indiana “does not disagree with the Board andNo. 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 di ff ers 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 di ff erence.” Because both sides

ultimately agree that the Decree should no longer be in e ff ect,

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. S ee 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 V ACATE the Consent Decree and R EMAND

to the district court with instructions to dismiss the case.