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Bowes v. Indiana Secretary of State

United States Court of Appeals, Seventh Circuit

September 21, 2016

Gregory Bowes and Christopher K. Starkey, Plain tiffs-Appellants,
v.
Indiana Secretary of State, et al., Defendants-Appellees.

          Argued September 8, 2016

         Appeal 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.

          Before Flaum, Rovner, and Sykes, Circuit Judges.

          Flaum, Circuit Judge.

         Plaintiffs 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.

         I. Background

         On 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).[1] 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.[2] Marion County was the only place in the country to employ an election process of this kind. Id. at 914.

         On May 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.[3] 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 ballot.

         Four 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 participation.

         Two 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.

         On 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.

          On 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.[4]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.[5] 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.

         The 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.

         II. Discussion

         On 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 ...


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