Despite state’s ‘negligence or malice,’ court denies ballot-access injunction

An Indianapolis resident who wanted to add his name to the November mayoral ballot cannot do so now that a federal judge has upheld a finding by the Marion County Election Board that the would-be candidate failed to acquire enough legitimate voter signatures. However, the court also raised concerns about language on a candidate form that could make it “more difficult for voters to support independent candidates,” yet found the language was not enough of a burden to overrule the board’s decision.

Indiana Southern District Judge Tanya Walton Pratt upheld the ruling against John Schmitz Thursday in John M. Schmitz, Anna Svec, Golda Bou, and Juan Ramos v. Marion County Board of Elections, Connie Lawson, and Myla Eldridge, 1:19-cv-03314.

In an effort to add his name to the ballot for the Indianapolis mayor’s race, Schmitz submitted petitions with 8,295 signatures from Marion County voters. Indiana Code section 3-8-6 requires that voters who signed Schmitz’s petition must be “registered to vote at the address set forth on the petition on the date the county voter registration office certifies the petition under section 8 of this chapter… .”

However, the form Schmitz asked voters to sign, known as the CAN-44, asks signatories to list only their “residence address.” Also, the form, printed by the Secretary of State’s Election Division, says “(p)etitioners are not required to provide precinct/ward information. The county voter registration office will complete this information … .”

“That sounds like, ‘Don’t worry about it, we’ll take care of figuring out where you live,’” said Mark Small, the Indianapolis attorney representing Schmitz and the other three other plaintiffs, Anna Svec, Golda Bou and Juan Ramos.

But the statutory requirement that voters provide the address where they are registered to vote, known as the “Registered-Address Requirement,” would be the undoing of Schmitz’s mayoral bid. That’s because the Marion County Election Board disallowed 1,115 of Schmitz’s signatures because the addresses listed did not match those voters’ registration addresses. That put Schmitz at 749 signatures short of the 6,106 needed to add his name to the ballot.

“The people who are qualified to sign the petition are not simply registered voters in Indiana, but in Marion County,” Small said. “… They disqualified them because, even though they are registered voters in Marion County, they didn’t list the addresses at which they are registered to vote.”

Speaking with Indiana Lawyer by phone, Small, quoting a U.S. Supreme Court opinion, said about 10 percent of Americans move each year. He took that fact to the Marion County Election Board to bolster Schmitz’s argument, but the board said that without registered addresses, the county had no means to ensure the signatories were properly registered to vote.

Small, however, noted the CAN-44 also requires voters to list their dates of birth, information that can be used to cross-check voter registration status.

“I don’t know how many people in Marion County have identical names and dates of birth,” he said, “but it’s probably pretty small.”

Schmitz took the board’s decision to the Indiana Southern District Court, seeking an emergency preliminary injunction to add his name to the ballot on First and 14th Amendment grounds. He argued “only one section of the statute supports the Board’s action in disallowing the signatures in question, whereas two other sections of the statute and the petition itself require the current address of the person signing.”

The lawsuit names the election board, Secretary of State Connie Lawson and Marion County Clerk Myla Eldridge as defendants. They argued in response that the “Registered-Address Requirement” is unambiguous, reasonable and nondiscriminatory, relying on Nader v. Keith, 385 F.3d 729, 233 (7th Cir. 2004), for support.

The defendants also noted Indiana Code section 3-7-29-1 “requires voters to ‘transfer the voter’s registration to the address where the voter currently resides by sending a transfer of registration on a prescribed form to the circuit court clerk or board of registration.’” Thus, “the Marion County Defendants argue that, under Indiana law, the address where a voter is registered to voter and that voter’s ‘residence address’ are one and the same.”

Pratt agreed with the defendants that the statutes at issue — I.C. 3-8-6-2 and 3-8-6-6(a)(3) — “unambiguously require independent candidates for office to obtain signatures from registered voters accompanied by the address at which each voter is registered.” But “(w)hat troubles the Court, and what distinguished this case from Nader,” Pratt wrote, “is the CAN-44 form.”

The judge said she did not assume that every person asked to sign a CAN-44 has read the relevant statutes, so if they see only the term “residence address,” they might not know the term is the equivalent of the address where they are registered to vote.

“Thus, it is not the Registered-Address Requirement itself that is a burden to Indiana voters, it is the fact that the requirement is not communicated to those voters unless they take it upon themselves to unearth and read Indiana’s election laws,” Pratt wrote. “The Indiana Election Division, which prints the CAN-44 form, could have avoided this issue by explicitly requiring the signers to record their ‘voter registration address’ instead of their ‘RESIDENCE ADDRESS.’

“It seems that Indiana, out of either negligence or malice, has made it more difficult for voters to support independent candidates by not requiring those candidates to obtain signatures accompanied by registered-voting addresses, but by misleading the signers by indicating to them that they should provide only their ‘residence address.’”

Indiana Lawyer reached out to the Secretary of State’s Office about whether it plans to adjust the language on the CAN-44 in light of Pratt’s decision.  A spokeswoman for the office, however, said the “co-directors of the Indiana Election Division are in charge of the forms,” so the Secretary of State does not have the ability to make any changes.

The spokeswoman also said it would take bipartisan agreement from the co-directors to change the form.

In response to an inquiry from Indiana Lawyer, co-director Angela M. Nussmeyer provided copies of forms CAN-8, CAN-19, CAN-21 and CAN-25, each of which have been revised for the 2020 election to require signers to affirm that “the individual resides at the address after the individual’s signature at the time this petition was processed.” The version of CAN-44 at issue in Schmitz’s case does not include the language regarding “the time this petition was processed,” but Nussmeyer said CAN-44 has been flagged “for conforming changes when it will be next used.”

Forms CAN-8, -19, -21 and -25 relate to presidential primary ballot placement; nomination for federal, state, state legislative office; local office; and primary ballot placement for governor, respectively. The updates to CAN-8 were made in May 2019 in preparation for the 2020 election cycle, Nussmeyer said, while the other three were updated in late May or June 2019.

“The language was added as it seemed like a good place to reinforce the statutory requirements on residency requirements not just for candidates and other persons collecting signatures, but also for the staff reviewing and certifying petitions at the county level,” Nussmeyer wrote in an email.

Despite the language issue, Pratt determined Schmitz had not met the burden for a preliminary injunction under the framework in Anderson v. Celebrezze, 460 U.S. 760 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). In reaching that conclusion, the judge said there are multiple ways Hoosier voters and candidates can ensure they provide the correct address on the CAN-44.

“First, they can familiarize themselves with Indiana’s election laws, specifically Indiana Code sections 3-8-6-2, -6(a)(3), and -8, which make clear independent candidates are required to obtain signatures accompanied by voter-registration addresses,” the judge wrote.

“Second, the Board’s petition process allows potential candidates a second bite at the apple,” she continued. “’Voter Registration allows candidates to submit signatures gathered on CAN-44 forms in batches so that Voter Registration can certify them on a rolling basis and keep the candidate apprised of his or her progress before the filing deadline.’ According to Michele Cash, Chief Deputy for the Marion County Board of Voters Registration, ‘this allows the candidate to stay apprised of how many additional signatures they need to meet the statutory requirement and stop gathering signatures once they have reached it.’

“… If a signature is rejected because the signer listed an incorrect or ineligible address,” Pratt said, “the candidate has an opportunity to return to that signer for another signature, this time accompanied by the correct address or to secure additional signers in compliance with the Registered-Address Requirement.”

Finally, the judge said the defendants’ justifications for the Registered-Address Requirement — regulating the number of candidates, assuring the winner commands a plurality of votes, preserving the integrity of the electoral process, and preventing voter confusion — “clear the low bar Defendants must meet in the Anderson-Burdick analysis.”

Though Small said he disagrees with Pratt’s ruling, he also said her order was well-reasoned.

Schmitz does not plan to appeal the preliminary injunction ruling to the 7th Circuit, Small said, opting instead to proceed with the lawsuit, which also raises claims under the National Voter Registration Act of 1993 and the Voting Rights Act of 1965.

In addition to address discrepancies, Pratt’s order says signatures were also disallowed where voters printed rather than signed their names, were deemed ineligible, or failed to provide an address.

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