Marion County Election Board Doubles Down on Defiance of Federal Court Order; Sets Hearing to Investigate Mulholland, Make Possible Criminal Referral

As been reported on these pages before, in the 2012 the Marion County Election Board voted 3-0 to enforce the anti-slate statute against House candidate Zach Mulholland during the May 2012 primary.  The statute says that candidates who pass out literature with their name and anyone other candidate have to file with the Election Board written approval from the other candidate or face a Class A misdemeanor election law violation  The purpose of the rule is to protect the "official" Marion County slate from those dare challenge it.

Zach Mulholland

In a lawsuit in 2003 in which I was plaintiff, the local federal court found the statute unconstitutional and the Marion County Election Board entered into a consent decree agreeing with that decision and to not enforce the statute.  Nevertheless, in defiance of the federal court order, the Board did exactly that in 2012 dispatching what were little more than thugs out to the precincts to seize Mulholland's literature in a hotly contested race he had with eventual winner slated candidate Dan Forestal.

In federal court litigation, Judge Sara Evans Barker dismissed the case, saying that the 2003 decision that the statute was facially unconstitutional only applied to me and Indiana Right to Life, the other plaintiff in the case.  On appeal to the 7th Circuit, Judge Hamilton wrote that a statute can't be facially unconstitutional as to just the plaintiffs in a litigation, that when a statute is facially unconstitutional it's facially unconstitutional to everyone.  

We reject the Election Board’s oxymoronic argument that the judgment in Ogden should be read to mean that the statute is facially unconstitutional only as to the Ogden plaintiffs. We have not encountered before the idea of facial unconstitutionality as applied only to a particular plaintiff. Facial unconstitutionality as to one means facial unconstitutionality as to all, regardless of the fact that the injunctive portion of the judgment directly adjudicated the dispute of only the parties before it. (Citations omitted.)

In his opinion, Judge Hamilton also said that the Board's attempt to continue to enforce a statute that it had admitted was unconstitutional "shaves very close to harassment or bad faith prosecution."

Faced with the rebuke from the Seventh Circuit, what did the Marion County Election Board do? If your guess is engage in yet more behavior to prove beyond any doubt that the Board is involved in harassment and bad faith prosecution regarding its treatment of Mulholland, you'd be correct.   On March 27, 2014, the Board doubled down on its own 2012 arrogant defiance of the 2003 federal court order.by passing a resolution to hold a meeting on April 23rd to determine whether Mulholland violated any criminal laws during the May 2012 primary and whether a referral should be made for his prosecution. 

It is outrageous that the Board continues to use partisan attorneys billing taxpayers to litigate a case that should have been settled immediately.  That bill last year was approaching $150,000.  Further, the attorneys who are involved in this case, including those on the Election Board (all three of those Election Board members were attorneys) who voted to enforce a law in 2012 they knew they were specifically prohibited from enforcing, and the attorneys who participated in thuggish acts of ripping literature out of the hands of Mulholland's volunteers, should be brought before the federal court to explain why they shouldn't be held in contempt. 

During the March 27, 2014 meeting it was discussed that the federal litigation is "pending" and issue of whether the slating statute is constitutional hasn't yet been decided yet.  Wrong.  The statute was determined to be unconstitutional in 2003 and that decision was reaffirmed in the 2013 Seventh Circuit case.  The case is over.  It is time for the Election Board to stop harassing Mulholland and stop using this litigation as an excuse to put money in the pockets of partisan attorneys.