Paul v. State of Indiana Election Bd., IP 88-982-C.

• Decision Date: 25 July 1990
• Docket Number: No. IP 88-982-C.,IP 88-982-C.
• Parties: Ron PAUL, Andre Marrou, Stephen W. Dillon, Steve Dasbach, Barbara Bourland, Steve Springer, Rex F. May, Kenneth A. Bisson, Karen D. Benson, J. Nadine Dillon, David Benson, Andrew C. Maternowski, and all other Indiana registered voters similarly situated, Plaintiffs, v. The STATE OF INDIANA ELECTION BOARD, and its members, Governor Robert D. Orr, Donald B. Cox, Kevin J. Butler, John R. Whitaker, Evan Bayh, Secretary of State of Indiana, Defendants.
• Court: U.S. District Court — Southern District of Indiana

743 F. Supp. 616

Ron PAUL, Andre Marrou, Stephen W. Dillon, Steve Dasbach, Barbara Bourland, Steve Springer, Rex F. May, Kenneth A. Bisson, Karen D. Benson, J. Nadine Dillon, David Benson, Andrew C. Maternowski, and all other Indiana registered voters similarly situated, Plaintiffs, v. The STATE OF INDIANA ELECTION BOARD, and its members, Governor Robert D. Orr, Donald B. Cox, Kevin J. Butler, John R. Whitaker, Evan Bayh, Secretary of State of Indiana, Defendants.

No. IP 88-982-C.

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

July 25, 1990.

Andrew C. Maternowski, Stephen W. Dillon, Dillon Law Office, Indianapolis, Ind., for plaintiffs.

Kimberlie Antrim Forgey, Robert Speal, Deputy Attys. Gen., Office of the Attorney General, Indianapolis, Ind., for defendants.

ENTRY

BARKER, District Judge.

On August 23, 1988, the plaintiffs filed a class action complaint seeking declaratory and injunctive relief to prevent the State of Indiana and its officers from enforcing certain election laws. The suit is brought under 42 U.S.C. § 1983, and this court has jurisdiction pursuant to 28 U.S.C. § 1331. This matter is presently before the court on the parties' cross motions for summary judgment. Although the plaintiffs have challenged the validity of several Indiana election laws, the only issue presently before the court is whether the First and Fourteenth amendments of the United States Constitution require Indiana to permit and report write-in votes on election ballots.¹

Federal Rule of Civil Procedure 23(c)(1) directs a district court to rule on the issue of class certification "as soon as practicable." Therefore a court must resolve such issues before it addresses dispositive motions. Bieneman v. City of Chicago, 838 F.2d 962 (7th Cir.1988); Hickey v. Duffy, 827 F.2d 234 (7th Cir.1987); Premier Elec. Const. Co. v. N.E.C.A., Inc., 814 F.2d 358 (7th Cir.1987). In the present case, the plaintiffs have complied with the requirements of FRCP 23(b)(3), as well as with Local Rule 8. The plaintiffs have done nothing to advance their request for class certification, but the defendants have done nothing to oppose it.

One may well question the need to bring this complaint as a class action, as a ruling on the constitutionality of Indiana's election laws will inevitably apply to all potential candidates, registered voters, and voters-to-be. But in the Seventh Circuit, "it is clear that, if the prerequisites and conditions of Rule 23 have been met, a court may not deny class status because there is no `need' for it." Vickers v. Trainor, 546 F.2d 739, 747 (7th Cir.1976). Even if certification is unnecessary for practical reasons, certification may not be denied if Rule 23 is satisfied. Vegara v. Hampton, 581 F.2d 1281, 1284 (7th Cir.1978).

The court finds that the plaintiffs have satisfied all of the Rule 23 conditions for a class action, and hereby CERTIFIES the plaintiff class, which consists of candidates and potential candidates for public office², and qualified voters and potential qualified voters in the State of Indiana.

Finally, it may be helpful to specify the exact constitutional provisions that control the present analysis. Previous election law challenges have invoked the Equal Protection Clause of the Fourteenth Amendment.³ While this court relies substantially upon such cases, the present case is governed directly by the First Amendment. See Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); Anderson v. Celebrezze, 460 U.S. 780, 786 n. 7, 103 S.Ct. 1564, 1569 n. 7, 75 L.Ed.2d 547 (1983).

I. Pullman Abstention

Although the defendants have not argued the point, this court deems it advisable to address the issue of Pullman abstention.⁴Cf. Serpas v. Schmidt, 827 F.2d 23, 27 n. 2 (7th Cir.1987); Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir.1983). Under the doctrine of Pullman abstention, "federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided." Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984). Abstention prevents "unnecessary adjudication of federal questions" id., and avoids "needless friction with state policies." Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941).

Federal courts have a duty under Article III of the United States Constitution to adjudicate properly presented federal claims. Courts cannot shirk this responsibility simply because the issues involved are unpopular or politically sensitive. For this reason, abstention remains the exception, not the rule. New Orleans Public Serv. v. Council of New Orleans, ___ U.S. ___, 109 S.Ct. 2506, 2513, 105 L.Ed.2d 298 (1989); City of Houston, Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 2512, 96 L.Ed.2d 398 (1987) ("Abstention is, of course, the exception and not the rule"); Midkiff, supra, 104 S.Ct. at 2327; Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976).⁵

A majority of the Supreme Court recently noted that "we have been particularly reluctant to abstain in cases involving facial challenges based on the First Amendment," because "abstention ... is inappropriate for cases where ... statutes are justifiably attacked on their face as abridging free expression." City of Houston, supra, 107 S.Ct. at 2512-13, quoting Dombrowski v. Pfister, 380 U.S. 479, 489-90, 85 S.Ct. 1116, 1122, 14 L.Ed.2d 22 (1965).⁶ Because the present case involves a First Amendment attack on Indiana's election laws, abstention may be ill advised.

The "pivotal question in determining whether abstention is appropriate," however, is whether the statute is "fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question." Id., quoting Harman v. Forssenius, 380 U.S. 528, 534-35, 85 S.Ct. 1177, 1181-82, 14 L.Ed.2d 50 (1965). The Supreme Court has acknowledged that, theoretically speaking, there always exists the possibility that the state court could so construe the challenged statute. "But the relevant inquiry is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary. Rather, `we have frequently emphasized that abstention is not to be ordered unless the statute is of an uncertain nature, and is obviously susceptible to a limiting construction.'" Midkiff, supra, 467 U.S. at 237, 104 S.Ct. at 2327, quoting Zwickler v. Koota, 389 U.S. 241, 251, and n. 14, 88 S.Ct. 391, 397, and n. 14, 19 L.Ed.2d 444 (1967).

In the present case, the abstention issue is complicated by the fact that Indiana does not have a statute that flatly prohibits write-in voting.⁷ Instead, the plaintiffs argue, Indiana has effectively proscribed write-in votes by repealing the statutes enabling such votes.

In 1891, Indiana's General Assembly provided for "paster" ballots, whereby a voter could vote for persons whose names did not appear on the official ballot. Section 29-1126, Burns' Ind.Stat.Ann. 1933, Baldwin 1934 section 7141; Acts 1891 c. 94, section 10, p. 124, amending Acts 1889, c. 87 section 46, p. 157. In 1897, the General Assembly ennacted new election laws "repealing all laws in conflict herewith." Acts 1897, c. 41, p. 49. Although this new Act did not provide for paster ballots, the Indiana Supreme Court rejected the argument that the 1891 paster provisions were repealed by the 1897 Act:

It is clear that this act dealt with the printing and voting of ballots containing the names of persons nominated by parties or groups of petitioners, and that it did not purport to affect the existing method of indicating a choice for a person whose name did not appear upon the ballot as printed by the proper election board.

Cleveland v. Palin, 209 Ind. 382, 199 N.E. 142, 146 (1936). That court further noted that statutes ennacted after the 1897 Act implied that the legislature believed paster ballots to still be valid. Those statutes required voting machines to be capable of handling "irregular ballots," which were defined as "ballots voted for any person whose name does not appear on the ballot label on the machine as a candidate for office ..." Sections 29-2403 and 29-2413, Burns' Ind.Stat.Ann.1933, Baldwin 1934 §§ 7351, 7361, section 3, Acts 1901, c. 260.

In 1945, Indiana's General Assembly ennacted I.C. X-X-XX-XX (Acts 1945, c. 208, section 262, p. 680), which dealt extensively with the paster ballots. The year 1969 saw the beginning of the end for paster ballots in Indiana. The General Assembly expressly repealed Acts 1945, c. 209, section 272, which had defined "irregular ballots" as "ballots voted for any person whose name does not appear on the ballot." At that time, however, the statute providing for paster ballots was still in force, as were the statutes requiring voting machines to accomodate paster ballots.

But in 1983, the paster ballot provisions were largely repealed by P.L. 6-1983, section 18, and the Indiana Election Code was wholly repealed and replaced by P.L. 5-1986, § 61, effective March 4, 1986. The statutes requiring voting machines to process write-in votes have also been repealed.⁸ (Compare Former I.C. 3-2-4-3 and -4 with the present 3-11-7 et seq. and X-XX-XX-X, and Former 3-1-31-2 with the present X-XX-X-XX and X-XX-XX-X).

Indiana's Election Code still contains a provision defining "paster" ballots (I.C. § 3-5-2-35), but a paster ballot has been redefined to mean "a sticker that is used to correct the name of a candidate on ballots" when a new candidate is appointed or selected pursuant to I.C. § 3-13-1-1 or 3-13-1-2⁹, or when a change must be made to correct a printing error. Neither of these circumstances could reasonably be construed to permit a voter to write in the name of anyone ...