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7th Circuit reinstates case involving ‘anti-slating’ statute

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The 7th Circuit Court of Appeals has reversed the dismissal of an unslated Marion County Democratic candidate’s lawsuit challenging the county election board’s reliance on the state’s “anti-slating” law to confiscate political flyers during the May 2012 primary election.

Zachary Mulholland ran against slated Democratic candidate Dan Forestal for the Indiana House of Representatives. He and campaign volunteers handed out flyers the day of the primary with pictures of five Democratic candidates for various national and state offices, which included Mulholland.

The flyers are illegal under I.C. 3-14-1-2(a), which makes it a crime to distribute a list endorsing multiple political candidates during a primary election unless all such candidates have given their written consent. This law benefits each political party’s slated candidates, who can easily coordinate the paperwork needed to promote a unified slate, the 7th Circuit opinion states. Slated candidates have the financial and organizational backing of party leadership.

The Marion County Election Board took Mulholland’s flyers; he subsequently lost the election.

In 2003, the federal court granted a preliminary injunction regarding enforcement of the anti-slating law in Ogden v. Marendt, 264 f. Supp. 2d 785 (S.D. Ind. 2003), ruling it suppressed political speech. In a settlement, all parties stipulated the statute is “declared facially unconstitutional” and the court enjoined the Marion County Election Board from enforcing it against the plaintiffs.  

Judge Sarah Evans Barker dismissed the instant case under the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), citing a still-ongoing election board investigation. The board issued an order to schedule a meeting on the matter, but that has been postponed indefinitely. A state court suit filed by Mulholland has also been stayed.

In Zachary Mulholland v. Marion County Election Board, 13-3027, the 7th Circuit focused on the proceedings before the board in its decision to reverse the dismissal of the federal suit. The election board argued the case should be dismissed under Younger because the federal court should defer to the ongoing proceedings in state court and the election board.

“The planned Election Board meeting in this case is not the type of quasi-criminal proceeding that would warrant Younger abstention, at least after Sprint, which involved an agency adjudication of state law that was initiated by one private party against another and that presented no possibility of criminal penalty,” Judge David Hamilton wrote, citing Sprint Communications Inc. v. Jacobs, 134 S. Ct. 584 (2013).

The judges also noted the importance of the 2003 decision declaring the law facially unconstitutional.

“The district court correctly pointed out that the Ogden injunction was limited to enforcement of the anti-slating law against the plaintiffs in that case. That analysis overlooks, however, the significance of the declaratory portion of the Ogden judgment that declared the anti-slating statute facially unconstitutional,” Hamilton wrote.

“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.”

The case is remanded with the instruction that court promptly consider whether to issue a preliminary injunction against the board in light of the May 6 primary election.
 

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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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