Common Cause Ind. v. Individual Members of the Ind. Election Comm'n, 14–3300.

• Citation: 800 F.3d 913
• Decision Date: 09 September 2015
• Docket Number: No. 14–3300.,14–3300.
• Parties: COMMON CAUSE INDIANA, Plaintiff–Appellee, v. INDIVIDUAL MEMBERS OF THE INDIANA ELECTION COMMISSION, et al., Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

800 F.3d 913

COMMON CAUSE INDIANA, Plaintiff–Appellee
v.
INDIVIDUAL MEMBERS OF THE INDIANA ELECTION COMMISSION, et al., Defendants–Appellants.

No. 14–3300.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 2015.
Decided Sept. 9, 2015.

800 F.3d 913

Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiff–Appellee.

Thomas M. Fisher, Office of the Attorney General, Indianapolis, IN, for Defendants–Appellants.

Before KANNE and ROVNER, Circuit Judges, and SPRINGMANN, District Judge.^*

Opinion

800 F.3d 914

THERESA L. SPRINGMANN, District Judge.

Common Cause is a national organization that advocates for, among other things, the fairness of elections and the elimination of barriers to voting. Its Indiana affiliate, Common Cause Indiana (“Common Cause”), initiated this litigation to challenge the constitutionality of the Indiana Statute that establishes the process for electing judges to the Marion Superior Court in Marion County, Indiana.¹ Common Cause contends that the election procedure established by the Statute violates the First and Fourteenth Amendments to the United States Constitution, while the State of Indiana (“the State”) argues that the Statute falls within its constitutional power to regulate elections. For the reasons discussed below, we affirm the decision of the district court and find the challenged statute unconstitutional.

I. BACKGROUND

Indiana Code § 33–33–49–13 (“the Statute” or “the Partisan Balance Statute”) establishes the system for the election of judges to the Marion Superior Court in Marion County, Indiana. This system is unique in Indiana, as it is the only office where primary election voters do not vote for as many candidates as there are persons to be elected to that office in the general election. See Ind.Code § 3–10–1–6 (“At a primary election a voter may vote for as many candidates as there are persons to be elected to that office at the general election, except as provided in IC 33–33–49–13 for candidates for judge of the Marion superior court.”).² Indeed, this process appears to be unique within the United States, as neither the parties nor the court have been able to find an election system quite like it.

Pursant to the Statute,³ the thirty-six judges who comprise the Marion Superior Court are elected to six-year terms that begin on January 1 after the year of the judge's election through December 31 in the sixth year. Sixteen of the thirty-six judges were selected for terms beginning in 2006 (then 2012, and so forth). The other twenty judges were selected for terms beginning in 2008 (then 2014, and so forth).

A candidate for Marion Superior Court Judge may gain access to the general election

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ballot in one of four ways. First, a candidate may gain access through the primary election process. Parties whose candidates for Indiana Secretary of State received at least ten percent (10%) of the votes cast in the last general election are eligible to hold primaries. Since at least 1952, only the Republican and Democratic parties have met this threshold. Because Indiana uses a closed primary system, a voter may only vote in a primary election:

(1) if the voter, at the last general election, voted for a majority of the regular nominees of the political party holding the primary election; or

(2) if the voter did not vote at the last general election, but intends to vote at the next general election for a majority of the regular nominees of the political party holding the primary election;

as long as the voter was registered as a voter at the last general election or has registered since then.

Ind.Code § 3–10–1–6. Thus, only voters who have voted or intend to vote for a majority of candidates from one of the two major parties may vote in that party's primary. A candidate must file a declaration of candidacy between early January and early February of the year of the primary election to be placed on the primary election ballot. The candidate's party affiliation is then determined either by how the candidate voted in the last Indiana primary or by the county chair who can certify that the candidate is a member of that party. Ind.Code §§ 3–8–2–4, –5, –7.

Pursuant to the Statute, a political party may nominate candidates for no more than half of the eligible seats on the Marion Superior Court. Accordingly, for those years in which sixteen positions are at stake, a party may nominate—by way of a primary election—only eight candidates for the general election. In years with twenty positions at stake, a party may nominate only ten candidates. In the general election, the candidates then run at large rather than as a candidate for judge of a particular room or division of the court.

Second, a minor political party “whose nominee received at least two percent (2%) but less than ten percent (10%) of the votes cast for Secretary of State at the last general election” may nominate judicial candidates through a state convention. Ind.Code § 3–8–4–10. Once nominated, the candidates proceed to the general election ballot. Third, an independent candidate or a candidate of a political party whose candidate did not receive two percent (2%) of the votes cast for Secretary of State in the last election may file a certified petition containing the signatures of at least two percent (2%) of the total votes cast in the last election for Secretary of State in Marion County. Finally, a person may file a declaration of intent to be a write-in candidate. However, write-in candidates cannot declare party affiliation with any political party that had received two percent (2%) of the vote for Secretary of State in the last election. Ind.Code §§ 3–8–2–2.5, 3–8–4–1. Thus, a write-in candidate must be either an independent or from a minor political party that received less than the required two percent (2%).

Since the current version of the Statute went into effect on March 24, 2006, there have been four judicial elections for the Marion Superior Court. In each of these elections, the total number of candidates on the general election ballot equaled the total number of available seats, by virtue of each major party's ability to nominate candidates for only half of the available seats. As a result, every candidate ran unopposed and all of the nominees from both major parties were elected—an even split between the Republicans and the Democrats. No independent or third-party

800 F.3d 916

candidates appeared on the ballot. Although the general elections were uncontested, there were more Democratic and Republican candidates seeking each party's nomination, resulting in contested primary elections within each major party's respective primary.

In the forty years that the Partisan Balance Statute has been on the books, there have been only two elections where an alternative candidate, that is, not a Republican or Democrat, appeared on the general election ballot. Five candidates from the Libertarian Party appeared on the ballot in 2000 and one Libertarian candidate appeared on the ballot in 2002.⁴ While the Libertarian party candidates were able to access the general election ballot, they presented little challenge to the candidates from the two major parties, who won with overwhelming support. Thus, in every election since the State adopted the Partisan Balance Statute, the Republican and Democratic parties have each nominated candidates for half of the open seats on the Marion Superior Court. In every general election, all of the Republican and Democratic nominees were elected.

Common Cause Indiana, the Plaintiff/Appellee, challenges the constitutionality of the Partisan Balance Statute under the First Amendment and 42 U.S.C. § 1983. The Defendants/Appellants, collectively referred to as “the State,” defend the Partisan Balance Statute as a constitutional exercise of its power to regulate elections. The parties filed cross-motions for summary judgment before the district court, which denied the Defendant's motion but granted the Plaintiff's motion, finding that “the challenged Statute, Indiana Code § 33–33–49–13(b), is invalid on its face—i.e., in all its applications.” The district court permanently enjoined the State from enforcing the Statute, but stayed its ruling pending a final determination by this Court.

II. ANALYSIS

We review de novo a district court's decision to grant summary judgment. Advance Cable Co., LLC v. Cincinnati Ins. Co., 788 F.3d 743, 746 (7th Cir.2015). As with any summary judgment motion, we “construe all facts and draw all reasonable inferences in favor of the non-moving party” when reviewing cross-motions for summary judgment. Id. Summary judgment is appropriate only “if the movant 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).

“ ‘No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.’ ” Burdick v....