Gregory Bowes and Christopher K. Starkey, Plain tiffs-Appellants,
Indiana Secretary of State, et al., Defendants-Appellees.
September 8, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:14-cv-01322-RLY-DML - Richard L. Young, Chief Judge.
Flaum, Rovner, and Sykes, Circuit Judges.
Gregory P. Bowes and Christopher K. Starkey lost in the May
2014 Democratic primary election for Marion County Superior
Court judges. A few months later, and just before the general
election, the district court for the Southern District of
Indiana held that the statute establishing the system for the
election of such judges, Indiana Code § 33-33-49-13, was
unconstitutional. That decision was affirmed by this Court.
Plaintiffs then sought a special election, which they argued
was the only way to vindicate their constitutional rights.
The district court held that a special election was not
appropriate and granted defendants' motion for summary
judgment. For the reasons that follow, we agree and affirm.
November 1, 2012, approximately a year and a half before
Indiana's primary election, Common Cause Indiana, a
bipartisan nonprofit organization, filed suit seeking a
declaration that Indiana's method of electing Marion
Superior Court judges violated its members' First
Amendment right to cast a meaningful vote. The challenged
statute, Indiana Code § 33-33-49-13 ("the
Statute"), established the system for electing judges to
the Marion Superior Court, and provided at section (b) that a
political party could not nominate through the primary
election process more than half of the candidates eligible to
sit on the Marion Superior Court. Political parties eligible
to hold primaries were those whose candidates for Indiana
Secretary of State received at least ten percent of the votes
cast in the last general election; since at least 1952, only
the Republican and Democratic parties have met this
threshold. Common Cause Ind. v. Individual Members of the
Ind. Election Comm'n, 800 F.3d 913, 915 (7th Cir.
2015). Because the primary election process was
the only way for candidates from major political parties to
access the general election ballot, the law effectively
limited the candidates that could ultimately be selected by
the voters. Marion County was the only place in the
country to employ an election process of this kind.
Id. at 914.
6, 2014, while the Common Cause litigation was
pending, Marion County held its primary election. That year,
there were sixteen open positions for the Marion Superior
Court. Eleven Democratic candidates (including
plaintiffs Bowes and Starkey) and eight Republican candidates
ran. Plaintiffs spent almost no effort campaigning for the
primary election and did poorly: Starkey finished last in
eleventh place with 5, 698 votes, and Bowes came in tenth
with 8, 551 votes. Under the Statute, only eight Democratic
and eight Republican candidates could qualify for the general
election, so plaintiffs' names were not included on the
days before the primary election, Starkey had filed a motion
to intervene in the Common Cause litigation.
Starkey's motion requested an injunction requiring his
placement on the general election ballot. On June 18, 2014,
the magistrate judge denied Starkey's motion because
Common Cause had not sought injunctive relief, and the court
decided that it was not proper to allow Starkey to change the
course of the litigation at that late stage. The magistrate
judge also determined that Starkey lacked an interest in the
litigation such that it would be impaired without his
months later, and less than three months before the upcoming
general election, on August 11, 2014, Bowes and Starkey filed
a suit challenging the constitutionality of the Statute in
the Indiana district court. Plaintiffs again requested
injunctive relief requiring the State of Indiana to place
them on the ballot for the November 4, 2014 general election.
October 9, 2014, the district court resolved the Common
Cause litigation, holding that the Statute was facially
unconstitutional. See Common Cause Ind. v. Ind.
Sec'y. of State, et al., 60 F.Supp.3d 982 (S.D. Ind.
2014). The district court reasoned that the Statute severely
burdened the right to vote without furthering important state
interests. See id. at 991. The court permanently
enjoined the state from enforcing the Statute, but stayed the
ruling pending a final determination from this Court. We
affirmed that decision on September 9, 2015. Common Cause
Ind., 800 F.3d at 914, 928.
November 7, 2014-after the district court had issued its
opinion in Common Cause, but while the appeal was
still pending, and three days after the November 4, 2014
general election-plaintiffs filed in their own suit a motion
for leave to file an amended complaint reflecting the
district court's ruling in Common Cause and
adding two new defendants: the Marion County Clerk and the
Marion County Election Board.The district court granted that
motion. The amended complaint asked the court to void the
results of the 2014 general election for Marion Superior
Court Judge and order defendants to hold a special election.
Specifically, plaintiffs requested that the district court
unseat the sixteen superior court judges elected in the 2014
general election so that a special election could be held at
the same time as the regularly scheduled general election on
November 8, 2016. Under plaintiffs' proposed special
election, only the nineteen candidates who were on the
primary ballot in 2014 would be placed on the special
election ballot in 2016.
parties filed cross motions for summary judgment, and the
district court granted defendants' motion. The district
court relied on our case law characterizing the remedy of a
special election as "an extraordinary remedy which the
courts should grant only under the most extraordinary of
circumstances." See Bowes v. Ind. Sec'y of
State, No. l:14-cv-013220-RLY-DML, 2016 WL 2894436, at
*3 (S.D. Ind. May 18, 2016) (quoting Gjersten v. Bd. of
Election Comm'rs for City of Chi., 791 F.2d 472, 478
(7th Cir. 1986) (internal citation and quotation marks
omitted)). Considering the equitable factors set forth in
Gjersten, the district court determined that
plaintiffs' filings were not sufficiently timely and
highlighted the "significant burden a special election
would have on the Marion County judiciary the candidates, the
Marion County Clerk, the Marion County Election Board and its
volunteers, and the county as a whole." Bowes,
2016 WL 2894436, at *2-4. This appeal followed.
appeal, plaintiffs argue that the district court erred by
refusing to order a special election. They contend that their
suit was timely because Starkey had moved to intervene in the
Common Cause suit before the primary election, and
because plaintiffs had filed their own suit several months
before the general election. They also argue that the
district court ignored certain equitable factors that ...