Ind. Civil Liberties Union Found., Inc. v. Ind. Sec'y of State

• Decision Date: 19 January 2017
• Docket Number: 1:15–cv–01356–SEB–DML
• Parties: INDIANA CIVIL LIBERTIES UNION FOUNDATION, INC. doing business as American Civil Liberties Union of Indiana, Plaintiff, v. INDIANA SECRETARY OF STATE, Members of The Indiana Election Commission, Superintendent of the Indiana State Police, Defendants.
• Court: U.S. District Court — Southern District of Indiana

229 F.Supp.3d 817

INDIANA CIVIL LIBERTIES UNION FOUNDATION, INC. doing business as American Civil Liberties Union of Indiana, Plaintiff,

v.INDIANA SECRETARY OF STATE, Members of The Indiana Election Commission, Superintendent of the Indiana State Police, Defendants.

1:15–cv–01356–SEB–DML

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

Signed January 19, 2017

Gavin Minor Rose, Jan P. Mensz, Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, for Plaintiff.

Betsy M. Isenberg, Dennis E. Mullen, Nikki G. Ashmore, Office of the Attorney General, Indianapolis, IN, for Defendants.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

SARAH EVANS BARKER, JUDGE, United States District Court, Southern District of Indiana

This cause is before the court on Plaintiff Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana's ("ACLU") Motion for Summary Judgment [Docket No. 35] and Defendants Indiana Secretary of State, The Members of the Indiana Election Commission, and the Superintendent of the Indiana State Police's (collectively "the State") Cross Motion for Summary Judgment [Docket No. 38]. For the reasons detailed herein, Plaintiff's motion is GRANTED and Defendants' cross motion is DENIED .

Factual and Procedural Background

On July 1, 2015, Indiana Code § 3–11–8–17.5 went into effect, providing:

(a) Voters may use cellular telephones or other electronic devices in the polls as long as electioneering or loud or disruptive conversations do not occur.

(b) A voter may not do the following:

(1) Take a digital image or photograph of the voter's ballot while the voter is in a polling place, an office of the circuit court clerk (under IC 3–11–10–26 ), a satellite office established under IC 3–11–10–26.3, or a vote center established under IC 3–11–18.1–4, except to document and report to a precinct officer, the county election board, or the election division a problem with the functioning of the voting system.

(2) Distribute or share the image described in subdivision (1) using social media or by any other means.

Ind. Code § 3–11–8–17.5.

On August 27, 2015, the ACLU invoked associational standing in filing suit on behalf of its members who have taken photographs of their election ballots in the past or intend to do so in future elections, alleging that Ind. Code § 3–11–8–17.5 violates the First Amendment of the United States Constitution. Dkt. 1, 17, 25. On September 4, 2015, the ACLU moved for a preliminary injunction seeking to enjoin application and enforcement of the law. Dkt. 8.

On October 19, 2015, we granted the ACLU's motion for preliminary injunction, concluding that Ind. Code § 3–11–8–17.5 embodies a content-based restriction on speech that cannot survive strict scrutiny because it neither serves compelling state interests nor is it narrowly tailored to achieve those interests. Dkt. 32.

On April 11, 2016, the ACLU filed a motion for summary judgment requesting that our preliminary injunction become permanent. Dkt. 35. On May 12, 2016, the State responded with a cross motion for summary judgment essentially defending the state statute and opposing the injunction. See Dkt. 38. The parties' cross motions became fully briefed on June 21, 2016, and are now ripe for decision.

Legal Standard

Federal Rule of Civil Procedure 56 provides that summary judgment should be granted when the evidence establishes 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) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving party. See id. at 255, 106 S.Ct. 2505. However, neither the "mere existence of some alleged factual dispute between the parties," id. , 477 U.S. at 247, 106 S.Ct. 2505, nor the existence of "some metaphysical doubt as to the material facts," Matsushita , 475 U.S. at 586, 106 S.Ct. 1348, will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc. , 209 F.3d 687, 692 (7th Cir. 2000).

Courts often confront cross motions for summary judgment because Rules 56(a) and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to move for such relief. In such situations, courts must consider each party's motion individually to determine if that party has satisfied the summary judgment standard. Kohl v. Ass'n. of Trial Lawyers of Am. , 183 F.R.D. 475 (D. Md. 1998). Here, the Court has considered the parties' respective memoranda and the exhibits attached thereto and has construed all facts and drawn all reasonable inferences therefrom in the light most favorable to the respective nonmovant. Matsushita, 475 U.S. at 574, 106 S.Ct. 1348. The parties before us, by filing cross motions, stipulate that there are no material facts in controversy and that their dispute is ripe for decision on summary judgment.

Discussion¹

In its cross motion for summary judgment, the State argues (1) that Indiana has constitutional authority to regulate elections and impose voting restrictions to maintain the integrity of the voting process; (2) that Ind. Code § 3–11–8–17.5 is content-neutral and therefore subject to a lesser level of scrutiny; and (3) that even if Ind. Code § 3–11–8–17.5 were subject to strict scrutiny, it would nevertheless survive such scrutiny because Indiana has a compelling interest in curtailing "voter misdeeds" and the statute is narrowly tailored to advance that interest. See Dkts. 38, 39.

The State's arguments are largely reflective of the issues discussed and decided in our prior order granting preliminary injunctive relief, Dkt. 32, though the State has focused its argument to urge that we approach the issues before us not as implicating fundamental free speech rights under the First Amendment, but instead as simply a voting restriction enacted pursuant to the State's broad authority pursuant to Art. I, § 4, cl. 1 of the United States Constitution. The State accordingly contends that it is not required to satisfy what it describes as the "absurd evidentiary requirement" of demonstrating the existence of voter fraud in Indiana to justify the statute. Instead, it maintains that, because the statute is simply a restriction on the voting process intended to uphold the integrity of the process, the State need not establish any specific purpose beyond that as a justification for the restriction. Def.'s Resp. at 11–13 (citing Fed. Election Comm'n v. Nat'l Right to Work Comm'n , 459 U.S. 197, 210, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) ).

We are not convinced by the State's analysis or conclusion. Clearly, the United States Constitution grants "to the States a broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices."

Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). Yet, a simple reading of the plaint text of Ind. Code § 3–11–8–17.5 reveals that the statute places no regulation on the times, places, or manner of elections, instead restricting the taking and sharing of certain photographs and digital images based on the content of those images. Thus, the State's general grant of regulatory powers to itself under Art. I § 4, cl.1 of the Constitution are not relevant to our analysis here. Ind. Code § 3–11–8–17.5 clearly implicates certain fundamental rights protected by the First Amendment. See Reno v. ACLU , 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (holding that the internet is a protected medium of communication under the First Amendment); Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston , 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (holding that photographs are a protected medium of expression under the First Amendment); Kleindienst v. Mandel , 408 U.S. 753, 763, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (holding that there is a right under the First Amendment to receive information and ideas); ACLU of Ill. v. Alvarez , 679 F.3d 583 (7th Cir. 2012) (affirming a right under the First Amendment to make audio and visual recordings). As the Supreme Court ruled in Tashjian , "The power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights." 479 U.S. at 217, 107 S.Ct. 544.

Accordingly, we shall proceed with our analysis in the same manner we previously followed in addressing the issues presented in this litigation, to wit, by determining first whether the restrictions are content based or content neutral, and then by determining whether they pass constitutional muster under the appropriate level of scrutiny. In conducting this analysis, we shall draw substantially on our October 19, 2015 Order, incorporating significant portions and modifying and/or elaborating on our analysis to the extent required to incorporate recent judicial decisions and fully developed facts underlying the parties' respective summary judgment motions and supplemental briefing.

I. Content–Based Restrictions

The First Amendment prohibits states from restricting "expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v....