Unconstitutionality to One Means Unconstitutionality to All

Indiana Anti-Slating Election Laws: Unconstitutional…Again
March 24, 2014 · No Comments

By: Aaron C. Medley
J.D. Candidate, 2015
Valparaiso University Law School

The citizens’ ability to vote for their representatives is one of the most significant rights granted to the people of the United States and all other democracies. Legislators must pass election laws to assure that candidates and citizens alike have a fair chance to express themselves through debate and forums. However, sometimes an election statute may go too far, by suppressing protected political speech under the First Amendment.

For example, Indiana Code § 3-14-1-2(a)(2)-(3) —an anti-slating statute, makes it a misdemeanor to publish or distribute a “slate” during a primary election without first receiving and filing with a county election board the written consent of all candidates named on the slate. A “slate” is defined by Indiana Code § 2-14-1-2(b) as “a sample ballot, reproduction of an official ballot, or a listing of candidate having the names or numbers or more than one candidate for nomination at a primary election, and expressed more than one of the candidate set forth on the ballot or list.” Effectively using “slate” materials will benefit a party’s slated candidates, who can easily coordinate the paperwork needed to promote a unified slate and to increase the two parties’ influence over the outcome of the primary election. If you use this practice of promoting more than one candidate on a single flyer or handout, you can be charged with a crime.

The Indiana anti-slating law has understandably stirred up questions over its constitutionality, since the law restricts core political speech. In 2003, a federal district court granted a preliminary injunction for a candidate and political action committee, when the parties sued the Marion County Election Board alleging that the Indiana anti-slating statute had violated the First Amendment’s free speech clause. [See Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003).] In the Ogden case, the district judge applied strict scrutiny, and found the statute was not narrowly tailored to advance the state’s legitimate interest in preventing campaign fraud or maintaining the stability of the two-party system. Soon after the injunction was issued, the parties settled and the court approved a final judgment in which all sides stipulated that the Indiana anti-slating laws were “declared facially unconstitutional.” Additionally the district court enjoined the Marion County Election Board from enforcing the statute against the plaintiffs. The importance of Ogden case is displayed in a recent 7th Circuit decision of Mulholland v. Marion County Election Board.

Evidently the Marion County Election board changed its views on the anti-slating law’s validity since the 2003 settlement. During the 2012 primary elections the board enforced the statute again, but this time against Zachary Mulholland. Mr. Mulholland was running for the Democratic ticket for state representative for the 100th District of the Indiana House, and he and supporters handed out flyers listing five candidates under the heading “Vote Democrat.” The Election Board decided that Mr. Mulholland violated state election law, and ordered special deputies to seize the flyers. After losing the primary, Mr. Mulholland sued to enjoin the Election Board proceedings related to the slating violation and to prohibit the statute’s enforcement. Mulholland was not a plaintiff in the Ogden decision and therefore was not protected by the district court’s injunction. However, he contended that the Ogden judgment rendered the statute dead letter and a violation of the free speech clause in any event.

After Mr. Mulholland filed a federal suit in district court, the Election Board moved to dismiss the case under Younger v. Harris. The Election Board asserted that the federal district court should defer to ongoing proceeding in state court before the Election Board. The district court held that any injunction limiting the board’s ability to subpoena Mr. Mulholland would “clearly interfere with the ongoing state administrative proceedings,” and therefore dismissed the federal lawsuit. Additionally, the district court rejected Mr. Mulholland’s argument the statute was unconstitutional. Under the consent decree stipulated by the Election Board in Ogden, the law’s constitutional susceptibility was operative only between the Election Board and the previous plaintiffs.

Mr. Mulholland appealed the decision to the United States Court of Appeals for the Seventh Circuit. The 7th Circuit reversed the district court’s decision and remanded the case for further proceedings, with additional instruction to issue a preliminary injunction against the Election Board for the upcoming primary election in May of 2014. The circuit court rejected the Election Board’s “oxymoronic argument” that the judgment in Ogden should be read to mean that the statute is facially unconstitutional only pertaining to the plaintiffs in that case. “We have not encountered before the idea of facial unconstitutionality as applied to a particular plaintiff.” The court went further and held that facial unconstitutionality as to one, means unconstitutionality as to all, regardless of the fact that the injunction portion of the judgment directly adjudicated the dispute of only the parties before it.

Election laws should be meant to provide fairness to candidates and voters alike to be able to debate and discuss issues. When a candidate and his or her supporters promote their parties’ ideas as a unified slate, voters are provided with a clear understanding of what the party stands for. Though this may be the cause of some confusion when different candidates from the same party are running against each other in primaries, it adds a level of understanding of what those candidates want to do with people running in different positions. Our country is heading in an interesting place in history of how we elect candidates after the historic Citizens United decision. Now that the Indiana anti-slating statute has clearly been held unconstitutional, we can only see more changes made in the future. Political speech is a critically protected form of speech under the First Amendment for a reason. The citizens want to know what the different candidates from the same party will do to work with each other, and across the aisle. We can only hope that that state and federal election laws will allow for more transparency from our representatives.

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