Mulholland v. Marion Cnty. Election Bd., 13–3027.

• Decision Date: 20 March 2014
• Docket Number: No. 13–3027.,13–3027.
• Citation: 746 F.3d 811
• Parties: Zachary MULHOLLAND, Plaintiff–Appellant, v. MARION COUNTY ELECTION BOARD, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

746 F.3d 811

Zachary MULHOLLAND, Plaintiff–Appellant,

v.MARION COUNTY ELECTION BOARD, Defendant–Appellee.

No. 13–3027.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 12, 2014.

Decided March 20, 2014.

Recognized as Unconstitutional

West's A.I.C. 3–14–1–2Kenneth J. Falk, Attorney, Indiana Civil Liberties Union, Gavin M. Rose, Attorney, ACLU of Indiana, Indianapolis, IN, for Plaintiff–Appellant.

Bryan H. Babb, Attorney, Bose McKinney & Evans, LLP, Indianapolis, IN, for Defendant–Appellee.

Before POSNER, FLAUM, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

The two major political parties in Marion County, Indiana, both follow a long tradition of “slating” their preferred candidates in primary elections. Those candidates have the financial and organizational backing of leadership, and the parties therefore have an interest in preventing confusion among voters as to who supports whom. Accordingly, Indiana's “anti-slating” statute makes it a crime to distribute a list endorsing multiple political candidates during a primary election unless all such candidates have given their written consent. See Ind.Code § 3–14–1–2(a). More than a decade ago, the anti-slating law was challenged as violating the First Amendment. The plaintiff in that case won a federal injunction against the statute's future enforcement and a consent decree in which all parties stipulated and the court declared that the law was facially unconstitutional. Ogden v. Marendt, No. 1:03–cv–415 (S.D.Ind. Aug. 29, 2003), EFC No. 40.

One of the defendants then was the same defendant before us today: the Marion County Election Board. Having apparently changed its views on the statute's validity, the Board enforced it against a candidate running for state representative in the 2012 primary. That candidate, Zachary Mulholland, has sued to enjoin further Election Board proceedings related to the slating violation and to enjoin the statute's future enforcement. The district court dismissed the case under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), citing a still-ongoing Election Board investigation. We reverse for two reasons. First, the Election Board's investigation is too preliminary a proceeding to warrant Younger abstention, at least in the wake of Sprint Communications, Inc. v. Jacobs, –––U.S. ––––, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013). Second, even if Younger abstention were theoretically available after Sprint, the previous final federal judgment against the defendant Election Board holding the same statute facially unconstitutional would still amount to an extraordinary circumstance making Younger abstention inappropriate.

I. Factual and Procedural Background

On the morning of May 8, 2012, as polling places opened to primary voters across Indiana, candidate Zachary Mulholland faced a steep climb in his bid to represent the state's 100th District in the Indiana House of Representatives. Located on the east side of Indianapolis, the district had been held by the retiring Democratic incumbent for all but two of the previous thirty-eight years. Mulholland was running as a Democrat, but he had failed to win the “slating,” the endorsement of the county party's leadership. He now faced the party's slated candidate.

Mulholland had nevertheless kept up his fight for the nomination. The morning of the primary, he and a number of campaign volunteers went to polling places to make last-minute appeals to voters. They handed out copies of a flyer listing the names and pictures of five candidates under the heading “Vote Democrat.” These candidates were Barack Obama for President, Joe Donnelly for U.S. Senate, André Carson for U.S. Representative, John Gregg for Governor, and Zach Mulholland for State Representative. The flyer noted at the bottom that it was paid for by Hoosiers for Zachary Mulholland. No party has suggested in this appeal that any information on the flyer was fraudulent or untrue.

Yet the flyers were illegal under Indiana law, as Mulholland soon learned. At the county level, elections in Indiana are overseen by election boards comprising one elected clerk of the circuit court and two members, one from each major party, appointed by the clerk. Ind.Code § 3–6–5–2. Alerted to the offending materials on the morning of the primary, the Marion County Election Board held a brief meeting in which the members reviewed the flyer and unanimously agreed that Mulholland had violated state election law. The Election Board issued an order to that effect and authorized its special deputies to seize the flyers. Later that day, Mulholland and the Election Board's chair discussed the order by telephone. The contents of their conversation are disputed, but the order remained in place and the rest of Mulholland's flyers were either confiscated or never distributed. Mulholland ultimately lost the primary. His opponent went on to win the general election.

The law criminalizing flyers like Mulholland's is Indiana's anti-slating statute, which makes it a misdemeanor to publish or distribute a “slate” during a primary election without first receiving and then filing with the county election board the written consent of all candidates named on the slate. Ind.Code § 3–14–1–2(a)(2)–(3). The provision defines a “slate” as “a sample ballot, reproduction of an official ballot, or a listing of candidates having the names or numbers of more than one candidate for nomination at a primary election; and that expresses support for more than one of the candidates set forth on the ballot or list.” § 3–14–1–2(b). That broad definition means that any candidate, interest group, or individual citizen who distributes a list expressing support for multiple primary candidates without their written permission can be charged with a crime. The effects are to benefit the party's slated candidates, who can easily coordinate the paperwork needed to promote a unified slate, and to increase the two parties' influence over the outcome of primary elections.

Because the anti-slating law restricts core political speech, the law has raised obvious constitutional concerns. In 2003 a candidate for office and a political action committee sued the Marion County Election Board and other defendants alleging that the statute violated the free speech clause of the First Amendment. Then–District Judge Tinder found that the plaintiffs had shown they were likely to succeed on the merits, and he granted their motion for a preliminary injunction. Ogden v. Marendt, 264 F.Supp.2d 785 (S.D.Ind.2003). Applying strict scrutiny, Judge Tinder found that the statute was not narrowly tailored to advance the state's legitimate interests in preventing campaign fraud or maintaining the stability of the two-party system. The state's putative interest in protecting candidates from being associated with supporters they would rather disown was not a compelling justification for suppressing political speech. Soon after the injunction was issued, the parties settled. The court approved a final judgment in which all sides stipulated that the statute “is declared facially unconstitutional,” and the court enjoined the Election Board from enforcing it against the plaintiffs.

Mulholland was not a plaintiff in Ogden and was not shielded by the court's injunction, but he contends the Ogden judgment rendered the anti-slating law a dead letter and that it violates the First Amendment in any event. On May 30, 2012, a few weeks after his primary defeat, Mulholland sued the Election Board in state court in Marion County for an injunction against future enforcement of the statute and for damages for the cost of his confiscated materials. After five months, the case had gone nowhere. The Election Board issued a new order scheduling a meeting to “hear from all interested persons” about “the acts and events occurring on May 8 ... and take such additional action as warranted by the evidence presented.” The Election Board moved the state court to stay proceedings, arguing that the new Board hearing would provide the court with a more complete factual record and might lead the Board to modify its initial order. Mulholland at first opposed the motion, but after filing the present lawsuit in federal court, he withdrew his opposition and the state court stayed its proceedings. The Election Board then postponed indefinitely its scheduled meeting, leaving the federal suit as the sole active forum for the parties' dispute.

Mulholland's federal complaint seeks to enjoin both future enforcement of the anti-slating statute and the Election Board's pending meeting. (The Board has threatened to compel his attendance by subpoena. See Ind.Code § 3–6–5–27.) He has standing to contest future enforcement of the statute because he intends to run in later elections, and the case is not moot because “political candidacy, like pregnancy, is capable of repetition yet evades review” under ordinary mootness rules. Ogden, 264 F.Supp.2d at 790 n. 5, citing Majors v. Abell, 317 F.3d 719, 722 (7th Cir.2003); see also Norman v. Reed, 502 U.S. 279, 287–88, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) (dispute over election law not moot because it was capable of repetition and would otherwise evade review). Mulholland also contests the Election Board's ability to subpoena him to the meeting insofar as the subpoena is based on the anti-slating statute he contends is unconstitutional.

The Board moved to dismiss the case under Younger, asserting that the federal district court should defer to the ongoing proceedings in state court and before the Election Board. The district court agreed, holding that any injunction limiting the Board's ability to subpoena Mulholland to a hearing about the slating violation would “clearly interfere with the ongoing state administrative proceedings.” The district court found none of the recognized exceptions to the Younger doctrine applied here. The court rejected...