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Wednesday, September 09, 2015

Ind. Decisions - 7th Circuit decides one Indiana case today, re Marion Co. judicial elections

In Common Cause Indiana v. Individual Members of the Ind. Election Commission, et al (SD Ind., Young), a 32-page opinion, Judge Springmann (ND Ind., sitting by designation) writes:

Common Cause is a national organization that advocates for, among other things, the fairness of elections and the elimination of barriers to voting. Its Indiana affiliate, Common Cause Indiana (“Common Cause”), initiated this litigation to challenge the constitutionality of the Indiana Statute that establishes the process for electing judges to the Marion Superior Court in Marion County, Indiana.1 Common Cause contends that the election procedure established by the Statute violates the First and Fourteenth Amendments to the United States Constitution, while the State of Indiana (“the State”) argues that the Statute falls within its constitutional power to regulate elections. For the reasons discussed below, we affirm the decision of the district court and find the challenged statute unconstitutional. * * *

It is of no consequence whether voters approve or disapprove of the candidates. So long as each candidate votes for himself or herself, as he or she presumably will, actions taken by other voters in the general election are meaningless, as they lack any opportunity to affect the outcome. The candidate will win, whether he gets a vote from every voter or no voters at all.[5] Thus, the winning candidates for judge have effectively been determined in the primary election without the participation of the full electorate, because all the major party nominees who successfully obtained their parties’s nomination are virtually guaranteed to win, with an even split between the parties. * * *

iii. Stability and Public Confidence

The State contends that partisan balance is critical to ensuring stability and public confidence in the court. The State argues that partisan balance is particularly important in the Marion Superior Court because it accounts for approximately twenty percent (20%) of all cases filed and disposed of in the State each year, many of which have a statewide impact because petitions for judicial review of State agency actions are often filed in Marion County. The State also argues that the Statute ensures stability on the court by removing the possibility that one party could sweep the election. Such a provision is necessary, the State contends, to prevent a turnover such as occurred in the wake of the Watergate Scandal, in which the Republicans swept all of the seats in the 1970 election and the Democrats swept all of the seats in the 1974 election.

These interests provide little justification for the severe burden imposed upon the right to vote, however.We do not see why the fact that the Marion Superior Court ultimately decides a relatively significant percentage of the State’s annual cases, including cases with statewide impact, necessitates a unique electoral system ensuring partisan balance. The Indiana Code of Judicial Conduct applies the same for judges in Marion County as it does for judges in every other county of the State, yet only the Marion Superior Court has a partisan balance requirement. We do not appreciate how a court with comparatively greater influence, by virtue of the quantity of its decisions or their statewide impact, has sufficient interests in partisan balance to justify the severe burden on the right to vote, but that these interests are not present for any other county in the State, or, for that matter, the country. A case in any other jurisdiction is just as important to the litigants, and the judge is under the same obligations to apply the law to the facts of the case. If the State decides that a partisan judicial election is the best-suited system for filling judicial vacancies in a particular jurisdiction, as it of course may, voters must have the opportunity to cast a meaningful vote in that election.

As for the stability of the court, or stated differently, the State’s asserted interest in avoiding a sweeping turnover of judicial personnel, this interest may be served in ways that do not necessarily burden the right to vote. For example, the current version of the Statute already provides for staggered elections, a procedure that allows the State to avoid a complete turnover in any one election that might upset the operation of the court without restricting voters’ opportunity to exercise their voice as to which candidates should fill the open positions.

In balancing the asserted injury to the plaintiff with the interests of the State, “the Court must not only determine the legitimacy and strength of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Anderson, 460 U.S. at 789. In light of the burden placed upon the right to vote, the interests put forward by the State do not justify the burden. In the context of partisan judicial elections, the interests identified by the State can either be served through other means, making it unnecessary to burden the right to vote, or those interests are not strong enough to overcome the burden. We conclude that the precise interests put forward by the State do not justify the burden placed on the right to vote for judicial candidates for the Marion Superior Court. Therefore, the Statute violates the First and Fourteenth Amendments.


We agree with the district court that the Statute at issue burdens the right to cast a meaningful vote without sufficiently weighty interests to justify such a burden. In the context of partisan judicial elections, which the State has chosen to adopt as its preferred system for selecting judges for the Marion Superior Court, the asserted benefits and interests surrounding partisan balance do not justify the burden placed on the right to vote. The judgment of the district court is AFFIRMED.

[5] A prime example of the predetermined nature of the general election is a blog post from the Indiana Law Blog, dated two months before the general election, that listed the changes in the Marion Superior Court assignments, effective January 1, 2015, including the yet unelected judicial candidates. Ind. Courts—Changes in Marion County Court Assignments, Indiana Law Blog (Sept. 5, 2014, 4:18 PM), http://indianalawblog.com/archives/2014/09/ind_ courts_chan_16.html; see also Marion County Court Assignments Made for 2015, Indianapolis Bar Association, (Sept. 10, 2014), http://www.indybar.org/news/indybar-news/ 2014/271 (showing the court assignments to the Marion Superior Court decided by the Marion County Executive Committee, including the new judge assignments in the criminal courts).

Here is the Oct. 9, 2014 Distrct Court opinion by Judge Young.

Posted by Marcia Oddi on September 9, 2015 11:46 AM
Posted to Ind. (7th Cir.) Decisions