7th Circuit reinstates case involving ‘anti-slating’ statute

The 7th Circuit Court of Appeals has reversed the dismissal of an unslated Marion County Democratic candidate’s lawsuit challenging the county election board’s reliance on the state’s “anti-slating” law to confiscate political flyers during the May 2012 primary election.

Zachary Mulholland ran against slated Democratic candidate Dan Forestal for the Indiana House of Representatives. He and campaign volunteers handed out flyers the day of the primary with pictures of five Democratic candidates for various national and state offices, which included Mulholland.

The flyers are illegal under I.C. 3-14-1-2(a), which 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. This law benefits each political party’s slated candidates, who can easily coordinate the paperwork needed to promote a unified slate, the 7th Circuit opinion states. Slated candidates have the financial and organizational backing of party leadership.

The Marion County Election Board took Mulholland’s flyers; he subsequently lost the election.

In 2003, the federal court granted a preliminary injunction regarding enforcement of the anti-slating law in Ogden v. Marendt, 264 f. Supp. 2d 785 (S.D. Ind. 2003), ruling it suppressed political speech. In a settlement, all parties stipulated the statute is “declared facially unconstitutional” and the court enjoined the Marion County Election Board from enforcing it against the plaintiffs.  

Judge Sarah Evans Barker dismissed the instant case under the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), citing a still-ongoing election board investigation. The board issued an order to schedule a meeting on the matter, but that has been postponed indefinitely. A state court suit filed by Mulholland has also been stayed.

In Zachary Mulholland v. Marion County Election Board, 13-3027, the 7th Circuit focused on the proceedings before the board in its decision to reverse the dismissal of the federal suit. The election board argued the case should be dismissed under Younger because the federal court should defer to the ongoing proceedings in state court and the election board.

“The planned Election Board meeting in this case is not the type of quasi-criminal proceeding that would warrant Younger abstention, at least after Sprint, which involved an agency adjudication of state law that was initiated by one private party against another and that presented no possibility of criminal penalty,” Judge David Hamilton wrote, citing Sprint Communications Inc. v. Jacobs, 134 S. Ct. 584 (2013).

The judges also noted the importance of the 2003 decision declaring the law facially unconstitutional.

“The district court correctly pointed out that the Ogden injunction was limited to enforcement of the anti-slating law against the plaintiffs in that case. That analysis overlooks, however, the significance of the declaratory portion of the Ogden judgment that declared the anti-slating statute facially unconstitutional,” Hamilton wrote.

“We reject the Election Board’s oxymoronic argument that the judgment in Ogden should be read to mean that the statute is facially unconstitutional only as to the Ogden plaintiffs. We have not encountered before the idea of facial unconstitutionality as applied only to a particular plaintiff. Facial unconstitutionality as to one means facial unconstitutionality as to all, regardless of the fact that the injunctive portion of the judgment directly adjudicated the dispute of only the parties before it.”

The case is remanded with the instruction that court promptly consider whether to issue a preliminary injunction against the board in light of the May 6 primary election.