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Competing motions for summary judgment are seeking to resolve the litigation against Lake County’s merit-based judicial selection process, with each side urging the Indiana Northern District Court to rule in their favor on claims under the federal Voting Rights Act and the Indiana Constitution.
The motions were filed this week by both the plaintiffs and defendants in City of Hammond, et al. v. Lake County Board of Elections, et al., 2:21-cv00160. The case — initially filed in May 2021 and later amended — alleges the process of appointing superior court judges in Lake County, rather than electing them, is racially discriminatory.
Plaintiffs include the city of Hammond, Hammond Mayor Thomas McDermott and voter Eduardo Fontanez. Indiana State Sen. Lonnie Randolph, a Democrat from East Chicago, has also joined the complaint in his personal capacity.
Defendants include the state, Indiana Secretary of State Diego Morales in his official capacity and the Lake County Board of Elections.
The suit was filed shortly after Indiana Gov. Eric Holcomb in April 2021 signed into law House Enrolled Act 1453, which changed the judicial selection process in Lake and St. Joseph counties.
That bill mandated that the judicial nominating commissions in each northern Indiana county have seven members tasked with nominating five candidates to the governor when judicial vacancies occur.
The governor appoints three members of each panel while county commissioners appoint another three. A justice of the Indiana Supreme Court — Justice Mark Massa for Lake County and Justice Geoffrey Slaughter for St. Joseph County — chairs the commissions and casts tie-breaking votes.
In each county, one member of the JNC must be an attorney, one of the governor’s appointees must be a woman and one of the commissioners’ appointees must be a minority.
Before HEA 1453, the Lake County JNC had nine members: four attorneys, four nonattorneys and a justice. The governing statute also set diversity benchmarks. The St. Joseph County panel had seven members, including three attorneys, three nonattorneys and a justice.
Also before HEA 1453, the Lake County JNC submitted three names to the governor for consideration, while the St. Joe panel submitted five.
Once the superior court judges are appointed, citizens vote on whether to retain them.
The law was enacted despite widespread opposition to the legislation from judges, lawyers and lawmakers from the northern Indiana counties. The local benches and bars claimed they were not consulted or informed about the bill before it was introduced, while lawmakers made allegations that the legislation was intended to strip diversity and increase Republican control over judicial selection.
But the bill’s author, Rep. Mike Aylesworth, R-Hebron, described the legislation as a simple “reset.” He said he’d heard from local lawyers who felt the judicial selection process in those counties was unfair and politically biased, although he declined to reveal who those lawyers were, saying they feared reprisal.
The legislative arguments both for and against HEA 1453 are echoed in the federal litigation against the Lake County system. Here’s a look at the arguments in the competing motions for summary judgment.
Plaintiffs
Represented by attorneys with Bose McKinney & Evans LLP in Indianapolis, the plaintiffs filed their brief supporting summary judgment on Monday.
Beginning with the Voting Rights Act of 1965, the plaintiffs homed in on the factors laid out in Brnovich v. Democratic National Comm., 141 S. Ct. 2321 (2021), to argue that Lake County’s merit selection process for superior court judges is discriminatory.
“Indiana’s procedures for voting on judges in Lake County violate the plain language of the VRA. Residents of Lake, Marion, and St. Joseph Counties ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,’” the brief in support of summary judgment says.
Lake, St. Joseph and Marion counties all use a true merit selection process to appoint superior court judges, while Allen County uses that process only to fill a vacancy. Otherwise, Allen Superior Court judges are elected in nonpartisan elections.
As part of their summary judgment motion, the plaintiffs included data showing that Marion, Lake, St. Joseph and Allen counties have the most diverse populations in the state. The motion also claims that 66% of Black voters in Indiana live in a county that only has retention votes for superior court judges, while more than 80% of white voters live in a judicial circuit where all judges are elected.
Addressing the first Brnovich factor, the size of the burden imposed by the challenged voting rule, the plaintiffs argue they have two options if they want to vote for their superior court judges: move to a county that elects superior court judges at least 30 days before an election, or exercise the “lesser right” to vote on judicial retention.
In the case of Sen. Randolph, the brief notes he would have to give up elected office to move to a county that has superior court elections.
“The burden Indiana’s voting system imposes on Lake County residents is substantial, supporting that the system violates the VRA,” the brief says.
As for the second factor — analyzing “the degree to which the voting rule departs from what was standard practice when (Section 2 of the VRA) was amended in 1982” — the plaintiffs note merit selection followed by retention votes was used only in Lake and St. Joseph counties in 1982. Further, only two other states used merit selection for trial court judges only in certain jurisdictions at that time.
“A plan that appears to have existed only in three states (two of which for around a decade) was certainly not ‘standard practice’ or ‘in widespread use’ in 1982,” the brief says.
The question of alleged racial discrimination was highlighted in the argument for the third Brnovich factor, the “size of any disparities in a rule’s impact on members of different racial and ethnic groups.”
“By implementing retention votes for superior court judges in only Lake, Marion, and St. Joseph Counties, Indiana has provided 66% of its black population with lesser retention votes for superior court judges, while over 80% of Indiana’s white residents vote for all judges in elections,” the plaintiffs argue in their brief. “This disparity demonstrates that Indiana’s system violates the VRA.”
The final factor — “the strength of state interests served by a challenged voting rule” — also weighs in favor of finding a violation of the VRA, the plaintiffs say. That’s because, “(U)ntil 2017, judicial retention votes were only in place in Lake and St. Joseph Counties, which are only the second and fifth most populous counties by voting age population … .”
Marion County — which has the state’s largest population – was switched to a merit-based selection process for superior court judges via legislation enacted in 2017.
“The State may claim it implemented judicial retention votes in the counties with the most judges because voters cannot reasonably vote for a large number of judges,” the memorandum says. But “Allen, Hamilton, and Monroe Counties all have similar numbers of judges to Lake and St. Joseph Counties. Yet residents of those counties vote in elections for all judges.
“… In conclusion, under the ‘totality of the circumstances,’ Indiana providing voters in Lake County the lesser voting right of a retention vote for appointed judges they did not choose … violates the VRA,” the brief argues. “This court should then ‘afford the jurisdiction an opportunity to remedy the violation.’ Harper v. City of Chicago Heights, 223 F.3d 593, 599-600 (7th Cir. 2000). The most straightforward fix for Indiana to remedy the violation of the VRA would be for the Legislature to make all superior court judges elected, but there could potentially be other solutions, and Indiana should be afforded the opportunity to remedy the violations.”
Turning to the Indiana Constitution, the plaintiffs claim the Lake County judicial selection scheme violates Article 4, Section 23, which prohibits special legislation, and Article 1, Section 23, the privileges and immunities clause.
As for the special legislation argument, the plaintiffs cite City of Hammond v. Herman & Kittle Props., 119 N.E.3d 70, 73 (Ind. 2019), to support their argument that the Lake County scheme is unconstitutional special legislation.
The plaintiffs’ brief notes that Lake County’s judicial selection process has changed multiple times over the years.
“Ultimately, the significant changes in Lake County’s superior court judge selection processes over time reveal that a purely nominating system has never been linked to whatever unique characteristics Lake County allegedly possesses,” the brief says. “In other words, Defendants will be unable to meet their burden to show that appointment followed by retention votes was the ‘legislative fix’ to any special issues Lake County was facing.”
The brief continues, “There is no evidence that, over numerous decades, elections of circuit court judges in Lake County have caused issues. And if circuit court judge elections in Lake County have so far not posed problems, there is no reason to justify imposing retention votes for superior court judges in that locale.”
Finally, addressing the privileges & immunities argument, the plaintiffs claim, “(E)ven if the State comes up with a reasonable rationale as to why Lake County voters, given their characteristics, are subject to a purely nominating scheme, the State will be unable to … show that the preferential treatment afforded to the vast majority of Indiana voters is uniformly applicable and equally available to all persons similarly situated. This is because the privilege of electing superior court judges is also not afforded to voters in Marion and St. Joseph Counties, and there can be no plausible argument that these voters are not similarly situated to … all the other Hoosier voters able to elect their superior court judges.”
In addition to summary judgment, the plaintiffs are asking the court to “provide the Indiana Legislature the opportunity to remedy the violations in a way that complies with the VRA and Indiana Constitution.” They note in their brief that the idea of merit selection for superior court judges in all Indiana counties has already been presented to the Legislature.
Defendants
In a five-page brief, the Lake County Board of Elections — which administers elections in the county —offered a succinct explanation for why it should be granted summary judgment.
“Plaintiffs lack standing under Article III of the United States Constitution to sue the Election Board,” the board’s brief, signed by Michael Tolbert of Tolbert & Tolbert LLC in Gary, argues. “The injuries alleged by the Plaintiffs in this case are not fairly traceable to the Election Board. There is no connection between the conduct of the Election Board in following the existing law and the Plaintiffs’ alleged injury set forth in the Second Amended Complaint because the Plaintiffs are not claiming that the Election Board has done anything wrong or wrongfully failed to do something.”
In a separate memorandum, the state and secretary of state — represented by the Indiana Attorney General’s Office — are seeking summary judgment on the VRA and Indiana constitutional claims.
As an initial matter, the state defendants are arguing the federal court lacks jurisdiction to hear the case.
“Of the claims brought by Plaintiffs, only one claim invokes an alleged violation of federal law — the Voting Rights Act claim,” their memorandum says. “… Plaintiffs’ federal Voting Rights Act claim fails, and thus, so does this Court’s jurisdiction to hear Plaintiffs’ case under federal question jurisdiction.”
If the Indiana Northern District Court determines it has jurisdiction, the state defendants argue that the VRA claim fails because the federal law does not apply to appointed officials. They cite Bradley v. Work, 154 F.3d 704, 709 (7th Cir. 1998) and Quinn v. Illinois, 887 F.3d 322, 324 (7th Cir. 2018).
Bradley addressed the hybrid judicial selection system in place for Lake County voters in 1998, when some superior court judges were elected while others were appointed. The 7th Circuit upheld a ruling for the defendants in that case, holding that “the plaintiff voters cannot succeed under the Voting Rights Act because the Act does not apply to appointments.”
Quinn reached a similar conclusion regarding the appointment of Chicago School Board members, finding that “there was no disparate impact amongst minority voters because if no voters in Chicago vote for their school board, then there is no vote dilution or disparate impact because there are no groups who vote at all.”
“The same holds true here — there is no disparate impact nor vote dilution created by the appointment statutes because, although minority groups do not vote for the position, neither does anyone else and thus, the system does not violate §2 because no group of Lake County voters elects trial judges before they are eligible for retention,” the state defendants’ memorandum says.
As for the Indiana constitutional arguments, the state defendants claim that while the Lake County judicial selection scheme is special legislation, that legislation is constitutional because “(w)hen legal professionals in Lake County were surveyed and interviewed, it was noted that a majority were unsatisfied with the judges elected via partisan elections, citing unequal caseloads among Lake County Judges, inconsistent application of Indiana’s trial rules, and an excessive number of cases being sent by Lake County judges to venues in outside counties.”
“These findings necessitated further action, leading to the development of the current hybrid plan at issue,” the state defendants argue.
And as for the privileges and immunities clause, “as previously stated, there is ample reason as to why the disparate treatment accorded by the General Assembly is reasonably related to the inherent characteristics which distinguish the unequally treated classes,” the memorandum says, citing Collins v. Day, 644 N.E.2d 72 (Ind. 1994).
It continues, “Plaintiff(s) state that eighty-nine counties in Indiana elect their judges. … All three are highly populated counties in Indiana that the General Assembly decided, for whatever policy reasons, would not elect their judges, but instead these counties would have their trial judges nominated and then retained. Therefore, the ‘preferential treatment’ argued by Plaintiffs is equally available to Lake County residents as to others.”
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