Friday, June 8, 2012

Indianapolis Star Reports on Election Board's Violation of Federal Injunction to Seize Unslated Candidate's Literature

Zach Mulholland
Jon Murray of the Indianapolis Star reports on the Zach Mulholland lawsuit filed against the Marion County Election Board which ordered his election day literature seized in direct violation of a federal court order:
A legal fight is brewing anew over a state law that critics view as empowering local political bosses to censor some campaign appeals printed by unfavored primary challengers.
In fact, Marion County and state election officials acknowledged that the same law was unconstitutional a decade ago in a settlement resolving a similar federal lawsuit.
But that 2003 federal consent decree hardly has put the issue to rest. It hasn't kept the Marion County Election Board, which operates with heavy influence from the political parties, from continuing to seize materials under the legally questionable law.
A new lawsuit filed by the American Civil Liberties Union of Indiana on behalf of a former Democratic state legislative candidate -- the latest target of the law during the May 8 primary -- asks Marion Circuit Court to step in and settle the issue.
Marion County Democratic
Chairman Ed Treacy
I have to disagree with that characterization.  The issue was "settled" with Judge Tinder's order and the consent decree in Ogden v. Marendt.  The Election Board agreed in that case that the anti-slate law is unconstitutional and the Board agreed to be enjoined from enforcing the law.  Then the Board went out at the prompting of County Chairman Ed Treacy and enforced the law anyway in direct violation of Judge Tinder's order.  One thing that was not mentioned in the article is that the Election Board held the hearing without notice to Mulholland.

Murray's article continues:
However, [the Election Board's attorney Andrew ]Mallon told The Indianapolis Star in an email last month that he viewed the 2003 consent decree's relevance as murky because the legal landscape had evolved since then. Various court decisions -- including two upholding Indiana's voter ID law -- expanded the state's ability to regulate elections and voting, Mallon said. 
ACLU legal director Ken Falk disagreed with Mallon's view of the old case. 
"I don't know how you can ignore a decision from a court that strikes the law down," Falk said. "If it's facially unconstitutional, that means it's unconstitutional for the next guy, too."
Election Board Counsel
Andrew Mallon
Mallon is a smart guy and he certainly knows better than that.  The cases on the voter ID law could hardly be different in terms of the facts involved and the legal theories.   I don't really blame Mallon though....he's an attorney doing his job.  He just has a client who is dead wrong and he knows it.  I'm more troubled by the conduct and statement of Democratic attorney Kip Tew as characterized by the article:
And the official who ultimately seized the offending hand cards from Mulholland outside an Eastside church was Kip Tew, a former Indiana Democratic Party chairman.
Mulholland said Tew attempted to rip them out of his hands. Tew, who said he was deputized by the Election Board to carry out the order, declined to characterize the encounter.
"The statute's pretty clear," Tew said. "Whether it's constitutional or not, that's for the courts to decide. I was just enforcing the statute."
Democratic activist Kip Tew
Tew knows damn well that a court did, in fact, decide whether it was constitutional or not...and the answer is yes it is.  Tew undoubtedly knew there is an injunction prohibiting the Election Board from enforcing the statute.  Yet Tew went out and violated that injunction anyway.  He can't claim he was only acting on orders of the Election Board. We attorneys are officers of the court and as such such we have not only legal obligations to follow court orders, but ethical obligations as well.  Tew's conduct, if the report is accurate, deserves review by the courts, for contemptability, and the Disciplinary Commission, for whether there was a violation of the Rules of Professional Conduct.

Clerk Beth White's comments are noteworthy too.  As reported by the Murray:
...White said she voted in favor of the Election Board order because Mulholland's campaign pieces risked confusing voters, even if they didn't claim that Obama and the other party standard-bearers had endorsed him. 
"It could be seen as a slate or an (implied) endorsement of those particular candidates," she said. "The statute exists to help voters be informed, and what he handed out was misleading."
White's explanation is nonsensical.  The argument she is making was made in 2003 and it lost.  The Election Board agreed in 2003 to the consent decree that the law is unconstitutional and agreed to not enforce the law. Yet White voted to enforce the law anyway.  White, like all the other members of the Election Board, is an attorney.  They know better and they should be held accountable for their defiance of the federal court.

Finally, if anyone thinks this is just a Democratic thing, I learned yesterday that the Election Board has seized non-slated Republican candidates' literature post-2003.  Apparently one of those involved Republican county chairman Kyle Walker seizing the literature of a Lawrence Republican candidate who dared to run against the slate.

The Court should take a very harsh view of the thuggish behavior Zach Mulholland experienced and the willingness of so many attorneys to knowingly violate the law in order to protect the good old boy slating system that protects the power of party bosses.

To see the rest of the article, click here.


Gary R. Welsh said...

Careful sampling too much of the Star's story, Paul. They will accuse you of violating the Fair Use rule.

Marycatherine Barton said...

Ed, Kip, and Beth vs. Zach and the voters. ACLU to the rescue, deserving of a donation. The Gannett Star half-stepping, at best.

TMLutas said...

If the candidate was assaulted by an attorney, ripping materials out of his hands, it's worse than what you list. It's also a crime.

gt said...

TML Lutas makes an excellent point. I dimly remember a case from law school where a hotel guest (Barron?) had a plate ripped from his hands (because he was black) by a waiter,and the court found that a battery. Of course, one has to be careful using a newspaper story as a source, the fliers may have ben only figuratively ripped. But it's a civil rights violation by Tew (and possibly Ed as a coconspirator?) however it went down. - robbin