Hero v. Lake Cnty. Election Bd.

• Decision Date: 02 August 2022
• Docket Number: 21-2793
• Citation: 42 F.4th 768
• Parties: Joseph HERO, Plaintiff-Appellant, v. LAKE COUNTY ELECTION BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

42 F.4th 768

Joseph HERO, Plaintiff-Appellant,

v.LAKE COUNTY ELECTION BOARD, Defendant-Appellee.

No. 21-2793

United States Court of Appeals, Seventh Circuit.

Argued April 13, 2022

Decided August 2, 2022

Kenneth J. Falk, Stevie J. Pactor, Gavin M. Rose, Attorneys, American Civil Liberties Union of Indiana, Indianapolis, IN, for Plaintiff-Appellant.

Carly A. Brandenburg, Attorney, Eichhorn & Eichhorn, LLP, Hammond, IN, Michael E. Tolbert, Candace Williams, Attorneys, Tolbert & Tolbert LLC, Gary, IN, for Defendant-Appellee.

Before Rovner, Wood, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Joseph Hero has been a registered Republican for forty years. He supported Republican candidates, voted in Republican primaries for decades, and even ran for office as a Republican with occasional success. But local politics can be messy. Hero's town council decided to exercise its eminent-domain authority to seize property of low-income residents. Hero opposed the measure and backed independent candidates to replace two incumbent Republican councilmembers. Upon learning of his actions, the Indiana Republican Party banned him from the Republican party for ten years. Undeterred, Hero tried to appear as a Republican candidate in the 2019 election. He met all the criteria established by Indiana law, but the party objected to his status, and the Lake County Election Board ("the Election Board") sided with the party, striking his name from the ballot.

Hero sued the Election Board, seeking declaratory relief that his rights were violated in the past election and an injunction prohibiting the Election Board from similar conduct in future elections. The district court dismissed for lack of jurisdiction. We affirm, albeit on a different basis.

I. Background

Hero, a resident of St. John, Indiana, has been a member of the Republican Party for more than forty years. He voted as a Republican in every primary election since the mid-1980s, including in the 2020 primary election; held numerous positions within the Republican Party, such as Lake County Republican Chairman; supported Republican candidates for every office; and usually voted for Republican candidates in the general election.

In 2015, St. John got swept up in a polarizing debate over eminent domain. The St. John Town Council, comprised exclusively of five Republican members, voted to seize private residences for a commercial development. Some residents were unhappy because this decision would have primarily affected lower-income homeowners who had been living in the area all their lives. They formed a local political action committee to elect two independent candidates for town council running against the incumbent, pro-development candidates. Hero lent his support to the effort, offering legal advice, posting yard signs, and making his opinions publicly known. According to Hero, the issue was not partisan (one of the independent candidates was also a Republican), and this election was the only instance in which he openly campaigned for the defeat of a Republican candidate.

The state Republican Party, however, caught wind of Hero's efforts to oust Republican incumbents. The year after the contentious events, Hero ran to retain his position as St. John Precinct Committeeman and delegate to the Republican State Convention. The Republican Party officials determined that because he supported the independent candidates in the town-council election, he could not serve in these capacities. Shortly after, Hero received a letter from the state chairman of the Republican Party, informing him that for the next ten years he was "not a Republican in good standing" and thus barring him from seeking elected office in Indiana as a Republican during that time. Undeterred by the letter, in 2019, Hero declared his candidacy for an at-large seat on the St. John Town Council.

Under Indiana law, there are three ways to appear on an election ballot. First, a candidate of a major political party can file a "declaration of candidacy" for a party if either he voted in the last primary election, or the county chairman certifies that the candidate is a member of the political party. Ind. Code § 3-8-2-7(a)(4) (2021). Second, a candidate can run as an independent by obtaining two percent of the total vote cast in the last election. Id. § 3-8-6-3(a). Third, a candidate can appear as a write-in option. Id. § 3-8-2-2.5(a).

Despite meeting the requirements to appear on the Republican primary ballot in 2019, the chairman of the Lake County Republican Party and a member of the Lake County Council challenged Hero's candidacy. The Lake County Election Board held a hearing on February 26, 2019. Hero explained that he met the requirements under Indiana law to be a Republican in the upcoming primary election. He presented an opinion from an attorney for the Indiana Election Division and a print-out of every Republican primary he had voted in since the mid-1980s. The challengers conceded that Hero met the qualifications for affiliation under Indiana Code § 3-8-27(a)(4) but maintained that Hero could not run based on "an actual order from the party chairman in Indiana." The Election Board unanimously ruled against Hero and removed his name from the Republican primary ballot.

Hero filed a complaint against the Election Board in federal court, arguing that "[t]he determination that the plaintiff may not run for election as a member of the Republican Party, and the resulting removal of the plaintiff from the Republican primary ballot, violates the First and Fourteenth Amendments of the United States Constitution." See 42 U.S.C. § 1983. He requested declaratory relief that the Election Board "violated the rights of the plaintiff" and an injunction "prohibiting the [Election Board] from prohibiting the plaintiff from seeking election as a member of the Republican primary provided that he meets all requirements of Indiana Code § 3-8-2-7," though not damages. He submits that he would like to run as a Republican candidate "for the St. John Town Council or another local office at the earliest opportunity" and the Election Board's position effectively denied him the chance to run for the duration of the ten-year ban.

Both parties moved for summary judgment, and the district court dismissed the appeal for lack of standing. The 2019 election "has been held and decided," and there were no "continuing, present adverse effects" of the past illegal conduct.

II. Discussion

On appeal, Hero argues he has standing to sue and should prevail on the merits of his claim. We review the district court's grant of summary judgment de novo, construing all facts and drawing all reasonable inferences in favor of the nonmoving party's favor. Lewis v. Ind. Wesleyan Univ. , 36 F.4th 755, 759 (7th Cir. 2022).

A. Article III Jurisdiction

We first address our jurisdiction. The Election Board claims that Hero lacks Article III standing and, in the alternative, his claims for relief are moot. In his complaint, Hero sought a declaratory judgment for a past alleged wrong—his ballot-access denial from the Republican primary in 2019—and an injunction for a future wrong—the potential deprivation of his alleged right to appear on the ballot for the 2023 Republican primary. Although a plaintiff must have standing for each requested relief, see California v. Texas , ––– U.S. ––––, 141 S. Ct. 2104, 2115, 210 L.Ed.2d 230 (2021), we focus on the declaratory judgment because Hero has satisfied the requirements under Article III.¹

1. Standing

Article III grants federal courts jurisdiction over "cases" and "controversies." U.S. Const. art. III § 2. "One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so." Hollingsworth v. Perry , 570 U.S. 693, 704, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). Standing has three elements: a plaintiff must have suffered (1) a concrete and particularized injury that is actual or imminent, (2) traceable to the defendant's conduct, and (3) can be redressed by judicial relief. Pierre v. Midland Credit Mgmt., Inc. , 29 F.4th 934, 937 (7th Cir. 2022) ; see also TransUnion LLC v. Ramirez , ––– U.S. ––––, 141 S. Ct. 2190, 2203, 210 L.Ed.2d 568 (2021). The Election Board does not contest that Hero has satisfied most of the standing requirements—he suffered a concrete and particularized injury, caused by the Election Board, that could be remedied by his requested relief. The Election Board maintains, however, that neither of Hero's requested remedies satisfy the "actual or imminent" requirement of injury-in-fact. We disagree.

The claim for declaratory judgment easily meets the "actual" injury requirement of standing. Hero requested relief for a past wrong—mainly, the Election Board's decision to strike his name from the Republican Party's primary ballot for the 2019 election. A routine past harm, such as denial of access to a ballot, presents a textbook example an "actual" injury suffered. See, e.g. , Acevedo v. Cook Cnty. Officers Electoral Bd. , 925 F.3d 944, 947 (7th Cir. 2019).

2. Mootness

While Hero has standing to seek a declaratory judgment, we still must consider mootness. An actual controversy must exist at every phase of litigation. Campbell-Ewald Co. v. Gomez , 577 U.S. 153, 160, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016). If later events resolve the dispute, then the case is moot. Genesis Healthcare Corp. v. Symczyk , 569 U.S. 66, 71–72, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). Both parties acknowledge that the request for declaratory relief fits within this definition because the 2019 election has come and gone. Hero argues though that his case is not moot because it falls within the "capable of repetition, yet evading review" exception, which permits courts to hear cases after resolution because the injuries occur too quickly for judicial review during the normal process. "The exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated...