Wednesday, November 19, 2014

Marion County Election Board Concedes It Illegally Enforced Unconstitutional Slating Statute

The Marion County Election Board finally threw in the towel and has agreed that its efforts to enforce Indiana's unconstitutional "slating statute" against Democratic state legislative candidate Zach Mulholland in the 2012 primary election was illegal. Taxpayers will now be forced to pay not only the hundreds of thousands of dollars it spent on outside attorneys to defend its actions but also pay to compensate Mulholland and his attorneys at the ACLU of Indiana for their costs and fees. The Board unnecessarily ran up legal fees in the case by taking a frivolous appeal up to the 7th Circuit Court of Appeals. Fellow blogger Paul Ogden shares a press release Mulholland's attorneys put out today about their settlement with the Board:
Indianapolis--Political parties in Marion County cannot prevent the free speech activities of candidates they do not back for election, and county officials cannot enforce an unconstitutional law used to impede such speech, a federal judge affirmed today.
Judge Sarah Evans Barker of the U.S. District Court, Southern District of Indiana, in approving an agreed judgment filed by the parties, ruled that Indiana's "slating" statute -- Indiana Code § 3-14-1-2(a)(2) and (3) -- cannot be enforced. The order also provided that the Marion County Election Board cannot convene further hearings concerning the 2012 primary election or the plaintiff in the lawsuit, Zachary Mulholland, and required compensation and fees to be paid to Mulholland and to the American Civil Liberties Union of Indiana, who brought the case on his behalf.
In 2003 the Election Board conceded, in an approved judgment in a separate federal lawsuit, that Indiana's slating statute -- which made it a crime for a candidate in a primary election to publish election materials linking him with other candidates without prior permission and notice to the Board -- violated the First Amendment. Still, during the 2012 primary season, the Board enforced the statute against candidate Mulholland by seizing his campaign literature at polling sites on Election Day and demanding he appear for a hearing.
In March the ACLU of Indiana won an appeal in the U.S. Court of Appeals for the Seventh Circuit on behalf of Mulholland, a candidate for state representative, and the case was remanded to federal court for a final judgment. Seventh Circuit Court Judge David Hamilton wrote in the opinion that the Election Board's pursuit of action against Mulholland "shaves very close to harassment or bad faith prosecution."
"The Judge's decision today is a major victory for our plaintiff and for the First Amendment," said Kenneth J. Falk, ACLU of Indiana legal director, who argued the case with ACLU of Indiana senior staff attorney Gavin M. Rose. "Government agencies cannot enforce laws that have been declared unconstitutional, and the Election Board cannot prevent voters from receiving information about candidates for public office."
"We agree with the Seventh Circuit that this has been an outrageous misuse of power," said Jane Henegar, ACLU of Indiana executive director. "The Election Board has wasted hundreds of thousands of taxpayer dollars on private attorneys' fees in defense of actions that are indefensible. If the Board had admitted the unconstitutional nature of its behavior two years ago, the total cost to the taxpayers would have been a couple of hundred bucks, the cost of the seized pamphlets."
The decision, Zachary Mulholland v. Marion County Election Board, 1:12-CV-01502 SEB-MJD,was issued by the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on Nov. 18, 2014.


Anonymous said...

The fair thing is now to ban the attorneys and law firms who advised and represented the City from all further representation of the City.

The taxpayers are also entitled to malpractice actions against the law firms who advised and represented the City.

Wow, Indiana is really getting embarrassed when it leaves the borders of its rigged state.

Anonymous said...

Further, how did the rules of private clubs ever end up in state law?

When people wonder why voter turnout is so low, it's because people are fed up with an election system written by and for two parties.

Veracity said...

As you will recall, the Republican and Democratic members of the Election Board insisted that the single election board attorney be replaced by David Brooks and Greg Hahn to defend this indefensible lawsuit. That was not done with an eye to winning or losing but instead was done to put some money in the pockets of the attorney for the Marion County Democratic Party (Hahn) and the husband of Congresswoman Susan Brooks (Brooks). Hahn and Brooks definitely came out the winners on this case.

Anonymous said...


And that's why driving on Fall Creek feels like driving across a battlefield. And it explains why so many streets in Indy are still two lanes and have not been expanded to six.

All the money required to do real city services is stolen from the City Treasury and given to friends of the politicians.

Indy needs to collapse so it can be reformed in a much better fashion.

It seems Unigov has been a failure and has only succeeded in making a large central bank account for the politicians to loot.

Anonymous said...

Anons 12:39, 12:41, 1:26 nail it. Both entrenched major parties revile the voters.

I especially enjoyed Vercity's comment about the nefarious David (Mrs. Susan) Brooks. Could anyone be more self-interested in lining his pockets than this tobacco chewing crony? To see him cleaned up and with a haircut on his wife's site is hilarious.

That Brooks could actually be involved in reconciling precincts with the redrawn districts/ward where his wifey ran for Congress seems wrong on so many levels....

Anyone else might be in an orange jumpsuit... not able to enjoy all the land he and Susie purchased out West with their ill gotten gain... We honest grass-roots walked away from this evil guy with a hate streak and a memory for revenge unparalleled in modern dirty politics.

Paul K. Ogden said...

Anon 12:41: The slate statute is not about a "rule of a private club." The rule prohibiting handouts displaying multiple names of candidates unless there is express written permission of those candidates (the slate statute) filed with the election board applies to EVERY CANDIDATE, regardless of whether they are Democrat, Republican, Libertarian, independent. And it would apply in the general election too.