United States District Court, S.D. Indiana, Indianapolis Division
For COMMON CAUSE INDIANA, Plaintiff: Kenneth J. Falk, Gavin Minor Rose, ACLU OF INDIANA, Indianapolis, IN.
For INDIVIDUAL MEMBERS OF THE INDIANA ELECTION COMMISSION, GOVERNOR OF THE STATE OF INDIANA, INDIANA SECRETARY OF STATE, in her official capacity, Defendants: Dino L. Pollock, Kenneth Lawson Joel, INDIANA ATTORNEY GENERAL, Indianapolis, IN.
ENTRY ON THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT
RICHARD L. YOUNG, CHIEF UNITED STATES DISTRICT JUDGE.
In Marion County, candidates seeking a judgeship on the Marion Superior Court are elected pursuant to the method established by the Indiana legislature and codified at Indiana Code § 33-33-49-13(b) (or " the Statute" ). This process is unique in Indiana, as it is only in Marion County judicial elections that primary voters do not vote for as many candidates for the office as there are persons to be elected to that office at the general election. See Ind. Code § 3-10-1-16. This process is apparently unique in the Nation also, as neither the court nor the parties have been able to find any other example of an election system quite like it.
Plaintiff, Common Cause of Indiana, is a non-profit, non-partisan public interest group that advocates for a number of causes, including the elimination of barriers to voting. Common Cause, whose membership in Marion County is approximately 250, raises a First Amendment challenge under 42 U.S.C. § 1983 to the constitutionality of the Statute. Defendants are the Indiana Secretary of State, in her official capacity; the individual members of the Indiana Election Commission, in their official capacities; and the Governor of the State of Indiana, in his official capacity. Both parties now move for summary judgment. For the reasons set forth below, the court GRANTS the Plaintiff's motion, and DENIES the Defendants' motion.
Judges of the Marion Superior Court are elected to a six year term that begins on January 1 after the year of the judge's election and continues through December
31 in the sixth year. Ind. Code § 33-33-49-13(a). By statute, there are thirty-six judges that comprise the Marion Superior Court. Ind. Code § 33-33-49-6(a). To be eligible for the position, a person must have been admitted to the bar in Indiana for at least five years, and be a resident of Marion County. Ind. Code § 33-29-1-3(b); Ind. Code § 33-33-49-6.
The challenged Statute provides that a candidate for Marion Superior Court Judge may gain access to the general election ballot in one of four ways. First, a candidate may gain access through the primary election process. Primary elections are held by parties whose candidates for Indiana Secretary of State receive 10% of the votes cast in the last general election. Ind. Code § 3-10-1-2. As of 1974, only the Republican and Democratic candidates for Secretary of State have met this threshold. (Indiana Election Commission's Objections and Responses to Plaintiff's First Set of Interrogatories, Interrogatory No. 4).
To be included on the primary election ballot, a candidate must file a declaration of candidacy between early January and early February of the year of the primary election. Ind. Code § 3-8-2-4; Ind. Code § 3-8-2-5. The party affiliation of the candidate is determined either by how the person voted in the last Indiana primary or by the county chair who can certify that the person is a member of that party. Ind. Code § 3-8-2-7.
A political party may nominate not more than half of the candidates eligible to sit on the Marion Superior Court. Ind. Code § 33-33-49-13(b). The names of the party candidates nominated and certified to the Marion County election board are then placed on the general election ballot. Ind. Code § 33-33-49-13(c). In the general election, the candidates " run at large for the office of judge of the court and not as a candidate for judge of a particular room or division of the court." Ind. Code § 33-33-49-13(a).
Second, the Statute specifically provides that candidates may access the general election ballot by certified petition. Ind. Code § 33-33-49-13(b) (" Other candidates may qualify [for the general election ballot] under IC 3-8-6 to be voted on at the general election." ). This requires an independent or minor party candidate to obtain the signatures of registered voters in the election district. Indiana law provides that the number of signatures needed is equal to 2% of the total votes cast in the district in the last election for Secretary of State. Ind. Code § 3-8-6-2. In the last election for Secretary of State (2010), Marion County voters cast 212,654 votes, 2% of which is 4,253. (Declaration of Bradley King ¶ 2 (f), (g); Declaration of Trent Deckard ¶ 2(f), (g)).
Third, a candidate from a minor political party may gain access to the general election ballot if he or she is nominated by the party at the party's state convention. Ind. Code § 3-8-4-10(b); Ind. Code § 3-8-2-5(4)(A). A minor political party is one whose candidate for Secretary of State received at least two percent (2%) but less than ten percent (10%) of the votes cast in the previous general election. Ind. Code § 3-8-4-10(a). Once nominated, the candidate proceeds to the general election ballot.
Lastly, a person can file a declaration of intent to be a write-in candidate. Ind. Code § 3-8-2-2.5. A person has several months to file this declaration. Ind. Code § 3-8-2-2.5; Ind. Code § 3-8-2-4; Ind. Code § 3-8-2-5; Ind. Code 3-11-2-11.5. Once declared, these write-in candidates are eligible to receive votes in the general election. Ind. Code § 3-12-1-1.7(a).
Defendants submitted the declarations of J. Bradley King and Trent Deckard, Co-Directors of the Indiana Election Commission. Attached to their declarations are the primary election results from 2002 to 2014 for Marion Superior Court Judge, and the Indiana general election results for Secretary of State for the years 2006 and 2010. This evidence reflects that there were more Democratic and Republican candidates in the primary election than open positions. ( See generally, King Decl., Exs. A, B, D, E; Deckard Decl., Exs. A, B, D, E). Additionally, in 2002, a minor-party candidate (Libertarian) for Marion Superior Court Judge made it onto the general election ballot. (King Decl., Ex. G; Deckard Decl., Ex. G).
II. Standard of Review
Summary judgment is appropriate if the record " shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The material facts are not in dispute; the issue before the court is purely one of law. ...