Saturday, June 2, 2012

Marion County Election Board Sued for Violating Federal Injunction Prohibiting Enforcement of Anti-Slate Law Declared Unconstitutional

Wednesday, the Indiana Civil Liberties Union, on behalf of state representative candidate Zach Mulholland, filed a lawsuit in the Marion County Circuit Court asking for injunctive and declaratory relief against the Marion County Election Board for its actions in violating the injunction against the enforcement of Indiana's anti-slate law previously deemed to be unconstitutional.
Zach Mulholland

Some explanation is in order.  IC 3-14-1-2 (commonly called the anti-slate law) says that anyone wishing to pass out campaign literature at the polls which had multiple candidates identified on the literature (defined as a "slate"), has to file the slate at least five days in advance with the Election Board along with the written consent from the other candidates that they consent to appear on the slate.  The purpose of the law is to protect the official party slates used in Marion County from nonslated candidates who might try to join together and promote their candidates.  The law also prevents an organization from passing out a list of endorsed candidates at the poll, again an endorsement that could compete with the parties' official slate.

Judge John Tinder
In 2003, in the case Ogden v. Marendt, No. 1:03-cv-415 JDT-TAB (S.D. Ind. 2003), Judge Tinder, who now sits on the Seventh Circuit, issued an injunction against the Marion County Election Board's enforcement of the statute based on the likelihood it was unconstitutional, a violation of the First Amendment.  The case concluded with the entry of a consent decree, stipulated to by the parties, that the anti-slate law is facially unconstitutional and the Marion County Election Board was enjoined against enforcement of the law against the Plaintiffs.  The day before the primary, I put a reminder on my blog that the federal court had enjoined enforcement of the law, just in case the political parties decided to enforce it claiming they had forgotten about the injunction.

Fast forward to the 2012 Primary .  Attorney Zach Mulholland is running a very aggressive, well-organized campaign against slated candidate Dan Forestal for the Democratic nomination in House District 100.  (As a side note, Mulholland had gone to slating expecting a fair chance, only to find that most of the people attending the slating convention to vote on the endorsement were related to Forestal.) Mulholland has virtually every polling place covered with volunteers pushing his literature.  That literature included a hand out that suggested voting for President Obama, Joe Donnelly, Andre Carson, John Gregg, and Zach Mulholland.
Mark Sullivan, Chairman,
Marion County Election Board

The Election Board, in direct violation of the 2003 federal court injunction, again an injunction to which the Board had consented, met on the morning of the primary to issue an order seizing Mulholland's election materials for violating the anti-slate law.  Marion County Deputy Sheriffs and Election Board officials were dispatched to the polls to take the literature away from Mulholland's volunteers.  Apparently Marion County Democratic Chairman Ed Treacy and other Democratic party officials were also involved in monitoring the confiscation of Mulholland's material in direct violation of the federal court's order.  All of Mulholland's literature was confiscated before noon.  As Mulholland lost by only 700 votes, a mere 350 vote swing, the crippling of his efforts at the polling places may well have prevented him from beating Forestal.

It is not clear why the members of the Election Board felt they had a right to ignore a federal court order enjoining the enforcement of the anti-slate law. Certainly the members of the Board - Mark K. Sullivan. Patrick J. Dietrick and Clerk Beth White - can't claim they didn't understand the effect of a federal injunction against the enforcement of a law deemed unconstitutional  All are attorneys.

Ed Treacy, Marion County
Democratic Chairman
Federal law provides for attorney's fees for such injunctions.  Jim Bopp and the other plaintiffs' attorneys in 2003 received fees, paid for by taxpayers, for the injunction issued in Ogden v. Marendt.  This case is far worse as the Election Board knew an injunction was already in place and the Board blatantly violated it.  There is no question that Mulholland's counsel will receive attorney's fees in this lawsuit and don't be surprised if the Election Board faces a fine or other penalty for its knowing violation of the injunction issued in Ogden v. Marendt.

When I think of what happened to Mulholland's literature being seized by armed law enforcement officials acting quite at the direction of Ed Treacy, albeit through the Election Board, the word "thuggery" comes to mind. There is no better way to describe the behavior of Treacy and others who believe they have the right to take the literature away from a candidate who dares challenge the chairman's handpicked slated candidate.  The sad thing is that now the taxpayers are going to have to pay as a result of a county chairman and others who feel they are above complying with the law.


Paul K. Ogden said...

I originally misreported it was a federal lawsuit. I was told it would be filed in federal court and thus didn't check the caption closely when I later looked it over. The action is filed in the Marion County Circuit Court, where Judge Rosenberg presides.

gt said...

I'm glad to learn about this. Appalling behavior by the board, of course. I ran in the 100th district in 2010.

Even without the injunction, the Board was on notice that this sort of thing is unconstitutional. Stewart v Taylor in 1997 reminded them that there is a first amendment that applies to election fliers.

I checked your blog today because my former partner R J Tavel was wondering whatever happened in the 2009 suit about Marion County traffic court.

Robbin Stewart gtbear at gmail.