Federal judge approves settlement in Marion County campaign literature case

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A federal judge on Monday approved a settlement between the Marion County Election Board and the unslated candidate from whom it confiscated campaign materials in 2012.

Judge Sarah Evans Barker in the U.S. District Court for the Southern District of Indiana, ordered that I.C. 3-14-1-2(a)(2) and (3) shall not be enforced against Zachary Mulholland or anyone else.

Mulholland sought to be the slated candidate for the Democratic Party for House of Representatives District 100, but Dan Forestal was slated instead in 2012. Mulholland 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 Marion County Election Board confiscated Mulholland’s flyers. He subsequently lost the election.

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. Slated candidates have the financial and organizational backing of party leadership.

But in 2003, the federal court granted a preliminary injunction regarding enforcement of the 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.  

Mulholland sued in October 2012, but Barker dismissed Mulholland’s lawsuit, citing an ongoing election board investigation. The 7th Circuit Court of Appeals in March reinstated the case.

The American Civil Liberties Union of Indiana filed the case on behalf of Mulholland. Legal Director Ken Falk said Wednesday that Barker’s decision is a “major victory for our plaintiff and for the First Amendment” as the county cannot prevent free speech activities of candidates they do not back for election.

Mulholland is currently a research analyst at the Indiana University Public Policy Institute and received his law degree from I.U. Robert H. McKinney School of Law.


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