Thursday, July 18, 2013

Taxpayers Should Not Be Billed for Election Board's Vote to Enforce Law in Violation of Federal Injunction

Last week, the Indianapolis City-County Council approved $150,000 more dollars in legal fees for attorneys involved in representing the Election Board in a lawsuit filed by candidate Zach Mullholland.  The lead attorneys are Democrat Greg Hahn and Republican David Brook.

The Council needs to pull the plug on defending this indefensible lawsuit.  I wrote about it back in June of 2012 when it was first filed:
Zach Mulholland
... 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.

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.
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.
The Marion County Election Board is made up of three attorneys, Chairman Mark Sullivan and Clerk Beth White, both Democrats, and Patrick J. Dietrick, a Republican.  All three of them, at the behest of Marion County Democratic Chairman Ed Treacy, voted to enforce the anti-slate law despite a federal injunction specifically against the Marion County Election Board's enforcement of the law.  The legal claim that this injunction is outdated and should be reconsidered in light of the Supreme Court's approval of voter ID laws is utterly ridiculous.

Why would Dietrick, the Republican, vote to support Democratic Chairman Ed Treacy's seizure of a non-slated candidate's literature?  Because Republican county chairman  have done the exact same thing since the 2003 injunction.  Both party's leaders are complicit in asking the Election Board to violate the federal court injunction in order to try to stop nonslated candidates from being nominated by their respective parties.
Ed Treacy

But the ones I hold the most responsible are the three attorneys on the Election Board.  Sullivan, White and Dietrick, voted the way they did knowing there was a federal injunction in place against the enforcement of the law. As attorneys, they should all know the consequences of knowingly violating a federal court order.  The federal court should cut them no slack in holding them personally responsible for their votes.

There is little doubt that the members of the Election Board knew the county would be sued over violating the federal court decree, but they also knew that would be down the road after Mulholland lost the primary.  Sure it would cost the taxpayers several hundred thousand dollars in legal fees not only to defend their action but to pay the plaintiffs' counsel for enforcing a court order, but at least they will have ensured that slated candidate Forestal won the primary.

Right now the only thing this lawsuit is good for is to line the pockets of politically-connected Republican and Democratic lawyers with taxpayer money before the inevitable - Mulholland wins the case and his attorney's fees have to be paid.  Taxpayers should not receive a bill for the Election Board doing the bidding of a county chairman to enforce a law that the Board has been enjoined from enforcing.

See also:

Monday, May 7, 2012, Reminder: Anti-Slate Law Was Determined to Be Unconstitutional in Ogden v. Marendt
Saturday, June 2, 2012, Marion County Election Board Sued for Violating Federal Injunction Prohibiting Enforcement of Anti-Slate Law Declared Unconstitutional 

Friday, June 8, 2012, Indianapolis Star Reports on Election Board's Violation of Federal Injunction to Seize Unslated Candidate's Literature


Jon E. Easter said...

I don't disagree with your post at all, Paul. I also really respect Zach and what he's trying to do.

That said, a 350 vote swing in a race that only had about 2,100 votes is a stretch. Forrestal had 63 percent of the vote. I hardly think that campaign literature handed out on the day of is going to change a party-run primary result.

Zach's a great guy with a ton of upside as a candidate for the future. I hope he stays in the game. Dan Forrestal has been a great rep for Hoosiers also in District 100.

I hope Zach wins his lawsuit. It was unfair what was done.

artfuggins said...

Perhaps if the Election Board wins this, Zach will be ordered to pay the legal fees.

Paul K. Ogden said...

Art, it was the Election Board that violated a federal injunction against the Election Board's enforcement of the law. The rules provide for attorney's fees when a court order is violated. The only way the Election Board can get attorney's fees is if it is frivolous lawsuit that has no legal basis. Obviously it does have a legal basis, and a very strong one at that.

Dietrick, Sullivan and White will be fortunate if they're not personally sanctioned for their knowing violation of the court's order. They're all attorneys. They knew better.

Art, surely even you would not defend the seizure of Mulholland's literature in violation of the court's order finding the law is unconstitutional.

Paul K. Ogden said...


It was 700 votes, a 350 vote swing. If his people by passing out literature and advocating to voters could have swung just 10 votes per precinct, Mulholland would have won. That's not that many especially since Zach had every voting place covered.

But even if he lost 80-20 it's still wrong. This thuggery by the party chairmen against nonslated candidates has to end.

Marycatherine Barton said...

Thuggery, indeed, and the citizens lose. The last poll that I read showed that most of Americans think that the political parties are very, very corrupt, more so than even our judges, legislators, or police.

Marycatherine Barton said...

"Three out of Four Americans Think Political Parties Are Corrupt" by Chris Kirk, at,
has a graphic comparing our perceptions of different public institutions, according to the corruption report released by Transparency International this month.