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Thursday, March 20, 2014

Ind. Decisions - 7th Circuit issues reversal in case challenging enforcement of Marion County anti-slating statute

In Zachary Mulholland v. Marion County Election Board (SD Ind., Barker), a 16-page opinion, Judge Hamilton writes:

The two major political parties in Marion County, Indiana, both follow a long tradition of “slating” their preferred candidates in primary elections. Those candidates have the financial and organizational backing of party leadership, and the parties therefore have an interest in preventing confusion among voters as to who supports whom. Accordingly, Indiana’s “anti-slating” statute makes it a crime to distribute a list endorsing multiple political candidates during a primary election unless all such candidates have given their written consent. See Ind. Code § 3-14-1-2(a). More than a decade ago, the anti-slating law was challenged as violating the First Amendment. The plaintiff in that case won a federal injunction against the statute’s future enforcement and a consent decree in which all parties stipulated and the court declared that the law was facially unconstitutional. Ogden v. Marendt, No. 1:03-cv-415 (S.D. Ind. Aug. 29, 2003), EFC No. 40.

One of the defendants then was the same defendant before us today: the Marion County Election Board. Having apparently changed its views on the statute’s validity, the Board enforced it against a candidate running for state representative in the 2012 primary. That candidate, plaintiff Zachary Mulholland, has sued to enjoin further Election Board proceedings related to the slating violation and to enjoin the statute’s future enforcement. The district court dismissed the case under the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), citing a still-ongoing Election Board investigation. We reverse for two reasons. First, the Election Board’s investigation is too preliminary a proceeding to warrant Younger abstention, at least in the wake of Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013). Second, even if Younger abstention were theoretically available after Sprint, the previous final federal judgment against the defendant Election Board holding the same statute facially unconstitutional would still amount to an extraordinary circumstance making Younger abstention inappropriate.

Because the district court erred in dismissing the case under Younger, we REVERSE that decision and REMAND for further proceedings, with the additional instruction that the district court consider promptly whether to issue a preliminary injunction against the Board, keeping in mind the primary election scheduled for May 6, 2014. Nothing in this opinion should be understood to prevent the Election Board from making any arguments it wishes to make about changes in applicable law or other circumstances preventing application of issue preclusion based on the Ogden final judgment. Such arguments, though, will need to be raised in the federal court. The mandate shall issue immediately.[1]
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[1] If Board members or their agents were to try to enforce the anti-slating statute against other parties at this point, such as in the May 2014 primary elections, we expect that this opinion and the Ogden judgment would make it difficult to invoke the defense of qualified immunity to a damages action under 42 U.S.C. § 1983.

Posted by Marcia Oddi on March 20, 2014 12:40 PM
Posted to Ind. (7th Cir.) Decisions