In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2150 BRIAN HOPE, et al., Plaintiffs-Appellees, v.

COMMISSIONER OF INDIANA DEPARTMENT OF CORRECTION, et al., Defendants-Appellants. ____________________

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-02865 — Richard L. Young, Judge. ____________________

ARGUED JANUARY 6, 2023 — DECIDED APRIL 27, 2023 ____________________

Before EASTERBROOK, ST. EVE, and KIRSCH, Circuit Judges. KIRSCH, Circuit Judge. The Indiana Sex Offender Registra- tion Act (SORA), Ind. Code § 11-8-8-1 et seq., requires sex of- fenders who study, work, or reside in Indiana to register with the State. Plaintiffs are all Indiana residents who committed sex offenses either before the Indiana General Assembly en- acted SORA or before the Assembly amended SORA to cover their specific offense. They challenge SORA’s “other-jurisdic- tion” provision—which requires them to register under 2 No. 22-2150

SORA because they have a duty to register in another juris- diction, see Ind. Code § 11-8-8-5(b)(1)—under the Fourteenth Amendment’s Equal Protection Clause. We previously re- jected plaintiffs’ arguments that SORA violated their consti- tutional right to travel and the Constitution’s Ex Post Facto Clause. Hope v. Comm’r of Ind. Dep’t of Corr., 9 F.4th 513, 523– 28, 530–35 (7th Cir. 2021) (en banc). We also concluded that the district court incorrectly applied strict scrutiny to plain- tiffs’ equal protection claim and remanded for the narrow purpose of determining whether the other-jurisdiction provi- sion survives rational basis review. Id. at 529, 534–35. On re- mand, the district court concluded that requiring the registra- tion of pre-SORA sex offenders who have a registration obli- gation in another jurisdiction is not rationally related to a le- gitimate state interest and granted summary judgment to plaintiffs. We disagree and now reverse. I Plaintiffs Brian Hope, Gary Snider, Joseph Standish, Pat- rick Rice, Adam Bash, and Scott Rush are all Indiana residents who committed sex offenses either before SORA existed or before it covered their specific offenses. Plaintiffs’ exact regis- tration obligations vary depending on their offenses, but they all must register under SORA at least once annually and pay an associated fee. Ind. Code §§ 11-8-8-14, 11-8-8-7, 36-2-13-5.6. They also must comply with various restrictions—such as staying off school property and residing more than 1,000 feet from certain facilities such as public parks and daycares—and notify law enforcement before leaving their residence for more than 72 hours. See id. at §§ 35-42-4-14(b), 35-42-4-10(c), 35-42-4-11, 11-8-8-18. No. 22-2150 3

By its terms, SORA applies to sex offenders who commit- ted crimes before its enactment in 1994. But the Indiana Su- preme Court has limited SORA’s retroactive application un- der the Indiana Constitution’s Ex Post Facto Clause. See, e.g., Wallace v. State, 905 N.E.2d 371, 378–84 (Ind. 2009). As a result, Indiana ordinarily cannot require pre-SORA offenders to reg- ister because doing so would be punitive and strip offenders of their right to fair notice. Id. at 377, 383–84. Plaintiffs’ situation is different, however. Even though they are all pre-SORA offenders, they each have a registration obligation in another jurisdiction because they either moved to Indiana from another state or left Indiana for some period before returning. The Indiana Supreme Court has determined that requiring the registration of individuals who already have a separate registration obligation in another state does not violate Indiana’s Ex Post Facto Clause. Tyson v. State, 51 N.E. 3d 88, 96 (Ind. 2016). The court has reasoned that when an offender is already required to register in a different juris- diction, requiring him to maintain his sex offender status across state lines does not impose retroactive punishment. Ty- son, 51 N.E. 3d at 96; State v. Zerbe, 50 N.E.3d 368, 369–70 (Ind. 2016); Ammons v. State, 50 N.E.3d 143, 144 (Ind. 2016). The court has also concluded that SORA’s other-jurisdiction pro- vision “undoubtedly” advances a legitimate and non-puni- tive interest by alerting and protecting the community from offenders with a “frighteningly high risk of recidivism,” and prevents Indiana from “becoming a safe haven for offenders attempting to evade [registration] obligation[s]” in other states. Tyson, 51 N.E. 3d at 96. Therefore, the State is author- ized to require these pre-SORA offenders to register without violating Indiana’s Ex Post Facto Clause. 4 No. 22-2150

Plaintiffs, who all fall into this subset of pre-SORA offend- ers, filed this lawsuit alleging that SORA violates the federal Ex Post Facto Clause, their right to travel under the Four- teenth Amendment’s Privileges or Immunities Clause, and their right to equal treatment under the Fourteenth Amend- ment’s Equal Protection Clause. The district court granted summary judgment to plaintiffs on all claims and on appeal, a panel of this court affirmed. Hope v. Comm’r of Ind. Dep’t of Corr., 954 F.3d 532, 557 (7th Cir. 2021) (vacated). We then heard the case en banc and reversed, holding that SORA does not violate either the right to travel or the federal Ex Post Facto Clause. Hope, 9 F.4th at 534. We also reversed the district court’s grant of summary judgment on the equal protection claim, holding that the other-jurisdiction provision does not trigger heightened scrutiny, and remanded for the district court to determine in the first instance whether SORA passes rational basis review. Id. at 529, 535. On remand, the district court concluded that the answer was no, reasoning that the provision is not rationally related to any legitimate govern- ment interest. Thus, it granted summary judgment for plain- tiffs on their equal protection claim. II We review the district court’s grant of summary judgment de novo. Hope, 9 F.4th at 523. When applying rational basis review to an equal protection claim, we are highly deferential to the government. Lamers Dairy, Inc. v. U.S. Dep’t of Agric., 379 F.3d 466, 473 (7th Cir. 2004). We consider whether “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). If we can hypothesize a sound reason for the classification, the law survives. Id. at 313. No. 22-2150 5

Plaintiffs do not challenge the legitimacy of Indiana’s goal of protecting the public through SORA. But they contend that the classification of offenders with other registration obliga- tions is not rationally related to that goal. They emphasize, for example, the apparent oddity that a pre-SORA offender who lives in Indiana and works in Chicago will acquire a registra- tion obligation in Illinois and therefore trigger a registration obligation in Indiana, while a pre-SORA offender who works in Gary but is otherwise identical will not have to register. Plaintiffs argue that because these two individuals could have been convicted of the same exact offense at the same time and may be considered equally dangerous, distinguishing them lacks any sound reason. We disagree. SORA’s other-jurisdiction provision satisfies rational basis review because the State has a legitimate inter- est in seeking to register as many sex offenders as the state constitution permits, and SORA’s other-jurisdiction provision is rationally related to advancing that interest. As previewed above, the Indiana Supreme Court has issued a series of deci- sions to narrow SORA’s permissible scope under the state constitution’s Ex Post Facto Clause. See Wallace, 905 N.E.2d at 384; Jensen v. State, 905 N.E.2d 384, 394 (Ind. 2009); State v. Pol- lard, 908 N.E.2d 1145, 1154 (Ind. 2009); Tyson, 51 N.E. 3d at 96; Zerbe, 50 N.E.3d at 369–70; Ammons, 50 N.E.3d at 144. The cul- mination of these decisions is that the State cannot impose a new duty to register on pre-SORA offenders who have no ex- isting registration obligations anywhere else. But when an of- fender is already obligated to register elsewhere, requiring registration in Indiana merely extends that existing duty, which is not punitive and does not offend Indiana’s Ex Post Facto Clause. Hope, 9 F.4th at 522. Because these offenders are already subject to the stigma of being publicly identified as a 6 No. 22-2150

sex offender by another state, the Indiana Supreme Court rea- soned that requiring them to also register in Indiana has a much smaller impact than on someone who has never been required to register. Tyson, 51 N.E.3d at 94–96. Although the Indiana Constitution imposes some con- straints that have resulted in an imperfect classification sys- tem, it is not irrational for Indiana to require as many sex of- fenders to register as Indiana’s Constitution permits. Rational basis review tolerates classifications that may be overinclu- sive or underinclusive. St. Joan Antida High Sch. Inc. v. Milwau- kee Pub. Sch. Dist., 919 F.3d 1003, 1010 (7th Cir. 2019). Even if a risk posed by two groups of offenders is identical, a state may have a rational reason for treating them differently. See Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 655 (7th Cir. 2013). Requiring offenders who are already subject to the bur- dens of registration elsewhere rationally promotes public safety through the maintenance of a sex-offender registry that is as complete as the Indiana Constitution permits. See Tyson, 51 N.E. 3d at 96; Zerbe, 50 N.E.3d at 370–71. Accordingly, SORA’s other-jurisdiction provision satisfies rational basis re- view. REVERSED