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Schmitz v. Marion County Board of Elections

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

September 5, 2019

JOHN M. SCHMITZ, ANNA SVEC, GOLDA BOU, and JUAN RAMOS, Plaintiffs,
v.
MARION COUNTY BOARD OF ELECTIONS, CONNIE LAWSON, and MYLA ELDRIDGE, Defendants.

          ENTRY DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

          TANYA WALTON PRATT, JUDGE.

         This matter is before the Court on an Emergency Motion for a Preliminary Injunction filed by Plaintiffs John M. Schmitz (“Schmitz”), Anna Svec, Golda Bau, and Juan Ramos (collectively “Plaintiffs”). (Filing No. 10.) Schmitz hopes to be listed on the ballot in the November 2019 municipal election for the office of Mayor of Indianapolis, Indiana. A decision by Defendant Marion County Board of Elections (the “Board”) to disallow over 1, 000 signatures on Schmitz's petitions put him below the threshold number of signatures required to be listed on the November 2019 election ballot. The Plaintiffs then brought this suit against Defendants the Board, Connie Lawson, Indiana's Secretary of State (“Lawson”), and Myla Eldridge, the Marion County Clerk (“Eldridge”), alleging violations of Plaintiffs' First and Fourteenth Amendment rights, the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20507, and the Voting Rights Act of 1965, 52 U.S.C. § 10301. (Filing No. 1.) In hopes of getting Schmitz's name on the ballot before the November 2019 election, Plaintiffs moved for a preliminary injunction on only their First and Fourteenth Amendment Claims. (Filing No. 10.) For the reasons stated below, Plaintiffs' Motion for a Preliminary Injunction must be denied.

         I. BACKGROUND

         To appear on the ballot for elected office, an independent candidate may be nominated by petition of registered voters “equal to two percent (2%) of the total vote cast in the last election for secretary of state in the election district that the candidate seeks to represent.” Indiana Code § 3-8-6-3. The actual form a candidate uses, titled “Petition of Nomination for City or Town Office in 2019, ” is often called a “CAN-44” form. (Filing No. 10-1.) The voters who sign the 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; and qualified to vote for the candidate.” I.C. § 3-8-6-2. For simplicity's sake, this Entry will refer to the idea that a voter who signs a CAN-44 form must list the address at which he or she is registered to vote as the “Registered-Address Requirement.” Two other chapters of Indiana Code § 3-8-6 mention the address component of the petition. Indiana Code § 3-8-6-6(a)(3) reiterates that each petition must contain “[t]he residence address of each petitioner as set forth on the petitioner's voter registration record.” (Emphasis added). “For a petition of nomination to be considered valid by the officer required to receive the petition, the county voter registration office in the county where the petitioner is registered must certify that each petitioner is a voter at the residence address listed in the petition at the time the petition is being processed.” Id. at § 3-8-6-8 (emphasis added).

         The CAN-44 form itself does not mention the Registered-Address Requirement at all. (Filing No. 10-1.) The “INSTRUCTIONS” field of the document says “[p]etitioners are not required to provide precinct/ward information. The county voter registration office will complete this information after the petition is filed.” Id. The document also explains, “[e]ach of the undersigned represents that: 1) the individual resides at the address listed after the individual's signature; 2) the individual is a duly qualified registered voter in Indiana; and 3) the individual desires to be able to vote for the candidates listed below….” Id. (emphasis added). The petition portion of the CAN-44 form asks signers to list their “RESIDENCE ADDRESS (No P.O. Boxes).” Id. The form specifically lists two sections of Indiana Code Chapter 3-8-6, but it does not list section 2, which contains the Registered-Address Requirement.[1] Id.

         To be named on the ballot in the 2019 municipal election, Schmitz had to file a petition with a number of signatures equal to or greater than 2% of the total vote cast in the last election for Secretary of State in Indianapolis. Before the July 1, 2019 deadline, Schmitz submitted petitions with 8, 295 signatures. (Filing No. 1 at 3-4.) Schmitz submitted his first two batches totaling 5, 073 signatures to Voter Registration on June 3, 2019 and June 18, 2019. (Filing No. 23-5 at 3.) Voter Registration certified 3, 353 of those signatures on June 21, 2019. Schmitz submitted a third batch of 798 signatures on June 25, 2019 and Voter Registration certified 490 of these signatures the next day, on June 26, 2019. Id. Schmitz submitted his fourth batch of 614 signatures on June 27, 2019 and Voter Registration certified 395 of these signatures the July 1, 2019. Id. Schmitz submitted a final batch of 1, 810 signatures on July 1, 2019 and Voter Registration certified 1, 118 of those signatures on July 9, 2019. Id. In total, the Board disallowed 1, 115 signators because the addresses listed by those voters on the forms did not match the voters' registration addresses. Id. at 4. The Board also disallowed 65 signatures because the voters printed his or her name in both the “signature” and “printed name” fields; it disallowed 60 signatures because the voters were deemed ineligible; and it disallowed 164 signatures because no address was provided. According to Schmitz, this left him 749 signatures short of the number he needed to get his name on the ballot for the 2019 mayoral race. Id. at 5.

         Schmitz challenged the Board's rulings and the Board held a hearing on that challenge on July 30, 2019. Id. After argument by Schmitz's counsel, the Board determined that 55 signatures were erroneously disallowed because the writing in the “signature” field counted as a signature. Id. It also placed five more signatures under review. Id. But it denied Schmitz's address challenge and affirmed the decision to disallow the 1, 115 signatures that did not satisfy the Registered-Address Requirement. Id. On August 6, 2019, Plaintiffs filed a complaint in this Court alleging Defendants violated the First Amendment, the Fourteenth Amendment, the NVRA, and the Voting Rights Act of 1965. (Filing No. 1.)

         On August 12, 2019, Plaintiffs filed an Emergency Motion for Preliminary Injunction, seeking injunctive relief to have Schmitz's name placed on the November 2019 ballot. (Filing No. 10.) Plaintiffs' brief supporting that Motion states, “[t]he nature of the emergency is that ballots are expected to be printed on or before August 23, 2019. Once the ballots are printed, Schmitz cannot stand as a candidate in the general election.”[2] (Filing No. 11 at 5.) Plaintiffs' Memorandum of Law in Support of their Emergency Motion for a Preliminary Injunction asserts only the First and Fourteenth Amendment claims as a basis for a preliminary injunction. (Filing No. 11.) Plaintiffs' counsel confirmed at oral argument that Plaintiffs' motion for preliminary injunction rests on their First Amendment claim.

         II. LEGAL STANDARD

         “A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “To obtain a preliminary injunction, a party must establish [1] that it is likely to succeed on the merits, [2] that it is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in its favor, and [4] that issuing an injunction is in the public interest.” Grace Schools v. Burwell, 801 F.3d 788, 795 (7th Cir. 2015); see Winter, 555 U.S. at 20. “The court weighs the balance of potential harms on a ‘sliding scale' against the movant's likelihood of success: the more likely he is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in his favor.” Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015). “The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.” Stuller, Inc. v. Steak N Shake Enterprises, Inc., 695 F.3d 676, 678 (7th Cir. 2012) (citation and internal quotation marks omitted). “Stated another way, the district court ‘sit[s] as would a chancellor in equity' and weighs all the factors, ‘seeking at all times to minimize the costs of being mistaken.'” Id. (quoting Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992)).

         III. DISCUSSION

         Plaintiffs seek a preliminary injunction to have Schmitz's name placed on the November 2019 municipal election ballot for the office of Mayor of Indianapolis. (Filing No. 10.) They ask that all of the 1, 115 disallowed signatures, including those of the Plaintiff voters, be counted for purposes of the petitions Schmitz submitted on July 1, 2019. (Filing No. 11 at 12.)

         The Seventh Circuit has laid out the standard for preliminary injunctions:

To obtain a preliminary injunction, a plaintiff must first show that: (1) without such relief, it will suffer irreparable harm before final resolution of its claims; (2) traditional legal remedies would be inadequate; and (3) it has some likelihood of success on the merits. E.g., Valencia v. City of Springfield, 883 F.3d 959, 965 (7th Cir. 2018), citing Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If a plaintiff makes such a showing, the court next must weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one. See Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). This assessment is made on a sliding scale: “The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Girl Scouts of Manitou Council, 549 F.3d at 1086, quoting Roland Mach. Co. v. Dresser Industries, Inc., 749 F.2d 380, 387 (7th Cir. 1984). Finally, the court must ask whether the ...

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