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Bowes v. Indiana Secretary of State

United States District Court, S.D. Indiana, Indianapolis Division

November 19, 2014

INDIANA SECRETARY OF STATE, in her official capacity, INDIVIDUAL MEMBERS OF THE INDIANA ELECTION COMMISSION, in their official capacities; and GOVERNOR OF THE STATE OF INDIANA, in his official capacity, Defendants.


RICHARD L. YOUNG, District Judge.

On Thursday, October 30, 2014, the court held a hearing on the Amended Motion for Preliminary Injunction filed by the plaintiffs herein, Gregory Bowes and Christopher Starkey. At the conclusion of the hearing, the court issued a bench ruling DENYING the motion because, inter alia, the motion was untimely. Consistent with that ruling, the court issues the following written order.

I. Factual and Procedural Background

The procedural history of this case is important to the court's disposition. The court therefore includes a detailed procedural history into the factual background section of this Entry.

On November 1, 2012, Common Cause Indiana, sought a declaration that Indiana Code § 33-33-49-13(b), Indiana's method of electing judges to the office of the Marion Superior Court, violates its members' First Amendment right to cast a meaningful vote, and an order permanently enjoining its enforcement. See Common Cause v. Indiana Secretary of State, 1:12-cv-1603-RLY-DML. Briefly, that challenged Statute provides that a political party[1] - i.e., the Republican or Democratic Parties - may nominate not more than half of the candidates eligible to sit on the Marion Superior Court through the primary election process. 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).

The primary for the office of the Marion Superior Court was held on May 6, 2014. According to the Official Indiana Primary Election Totals for Judge of the Superior Court, 11 Democratic candidates, and 8 Republican candidates, ran for the office. ( See Defendants' Hearing Ex. 1). Pursuant to the challenged Statute, eight Democratic and eight Republican candidates qualified for the general election ballot vying for 16 open positions on the court. Both of the plaintiffs in this action lost in the Democratic primary; Mr. Starkey came in 11th with 5, 698 votes, and Mr. Bowes came in 10th with 8, 551 votes. ( Id. ).

Mr. Starkey was aware of the Common Cause lawsuit, and learned from counsel that Common Cause did not intend to take any steps to ensure that a decision in its favor would apply to the November 2014 general election. Mr. Starkey therefore filed, just days before the May 6 Democratic primary election, a motion to intervene in Common Cause for the purpose of requesting preliminary injunctive relief that required his candidacy be placed on the general election ballot. On June 18, 2014, the Magistrate Judge denied that motion for two reasons. First, she found Mr. Starkey's motion was not timely, as he should have known from the public docket that Common Cause had never sought preliminary injunctive relief. Second, she found that Mr. Starkey should have known no later than the pretrial conference scheduled on January 17, 2014, that this case might not be resolved in sufficient time to affect the November 2014 election. "Any hope [Mr. Starkey] may have harbored for Common Cause to change its litigation strategy and seek preliminary injunctive relief was not a reasonable basis for delaying seeking intervention." (1:12-cv-1603-RLY-DML, Order Denying Motion to Intervene, Filing No. 62 at 3). She further found that Mr. Starkey "lack[ed] an interest in the subject matter of this litigation that will be impaired or impeded without his participation." ( Id. ). Specifically, she found that nothing prevented Mr. Starkey from filing his own challenge to the constitutionality of the challenged Statute, "[b]ut he has no right at this late stage to alter the course of this case...." ( Id. ). Mr. Starkey timely filed an objection, and, along with Gregory Bowes, filed the present action on August 11, 2014. At that time, the case was assigned to District Judge Sarah Evans Barker.

Plaintiffs' Complaint in this action mirrors that filed by Common Cause in 1:12cv-1603-RLY-DML. On the same day the Complaint was filed, Plaintiff also filed a motion for preliminary injunctive relief, requiring the State of Indiana to put Mr. Starkey's and Mr. Bowes' candidacies on the November 2014 general election ballot, and a motion for speedy hearing.

On August 14, 2014, Plaintiffs moved to have this case transferred to Chief Judge Young. The Magistrate Judge thereafter issued an order setting a conference for September 15, 2014, the purpose of which was to set a briefing schedule on Plaintiffs' pending motion for preliminary injunction. ( See Order Setting Status Conference, Filing No. 16). On September 5, 2014, the Magistrate Judge vacated the conference, and on September 8, 2014, the matter was reassigned to Chief Judge Young.

On September 19, 2014, Plaintiffs moved for a summary ruling on their motion for preliminary injunction on grounds the Defendants had failed to respond. On October 2, 2014, the court denied that motion for three reasons, including, but not limited to, the fact that ballots had already been printed or inputted into electronic voting machines, and early voting was scheduled to begin on October 6, 2014. ( See Entry on Plaintiffs' Request for Summary Ruling, Filing No. 26).

On October 9, 2014, the court granted the Plaintiff's motion for summary judgment in Common Cause, and declared that Indiana Code § 33-33-49-13(b) is unconstitutional. ( See 1:12-cv-1603-RLY-DML, Entry on the Parties' Cross Motions for Summary Judgment, Filing No. 70). Out of an abundance of caution so as not to disrupt the upcoming election, the court stayed its decision pending appeal.

The following day, the Magistrate Judge held a status conference, at which time she ordered Plaintiffs to "file a motion or other paper that addresses the October 9 ruling in Common Cause " and to address "the propriety of and authority for any remedy they seek as preliminary injunctive relief." (Entry and Order from Status Conference, Filing No. 28). Plaintiffs thereafter filed the present motion on October 15, 2014.

As of October 29, 2014, 9, 780 absentee ballots have been cast by Marion County voters for the November 2014 general ...

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