Common Cause Indiana v. Individual Members of the Indiana Election Commission ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-3300
COMMON CAUSE INDIANA,
Plaintiff-Appellee,
v.
INDIVIDUAL MEMBERS OF THE INDIANA
ELECTION COMMISSION, et al.,
Defendants-Appellants.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-CV-1603 — Richard L. Young, Chief Judge.
ARGUED MARCH 31, 2015 — DECIDED SEPTEMBER 9, 2015
Before
KANNE and ROVNER, Circuit Judges, and
SPRINGMANN, District Judge.*
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 (“Com-
*
Of the Northern District of Indiana, sitting by designation.
2 No. 14-3300
mon Cause”), initiated this litigation to challenge the constitu-
tionality 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 candi-
dates 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
1
Marion County is the most populated county in Indiana and is the
location of Indianapolis, the state capital. U.S. Census Bureau Delivers
Indiana’s 2010 Census Population Totals, Including First Look at Race and
Hispanic Origin Data for Legislative Redistricting, U.S. Census Bureau, (Feb.
10, 2011), http://www.census.gov/2010census/news/releases/operations/cb
11-cn26.html.
No. 14-3300 3
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).
2
Indiana has a total of 92 counties. Nonpartisan judicial elections, in which
no party designation appears beside the candidate’s name, are used for
judicial elections in Vanderburgh County (Evansville) and Allen County
(Fort Wayne). St. Joseph County and Lake County implement a merit-
selection system as opposed to judicial elections. The other 87 counties
implement partisan judicial elections without any restrictions or provisions
regarding the need for partisan balance.
3
In its current version, as amended in 2006. The earliest version of the
Partisan Balance Statute, dating back to 1975, was passed in the wake of
electoral swings after the Watergate scandal. Pub. L. 308-1975, § 1, 2 Laws
of the State of Indiana 1715 (1975). At that time, the Marion Superior Court
consisted of seven judges elected in a partisan judicial election. Republican
candidates swept all seven seats in the 1970 election, and Democratic
candidates swept all seven seats in the 1974 election. Larry A. Conrad, 1970
Election Report of Indiana 34; Larry A. Conrad, 1974 Election Report of
Indiana 61. Although the first version of the Statute made no provisions for
ballot access by third-party, independent, or write-in candidates, a
subsequent amendment explicitly permitted minor-party and independent
candidates to run in the general election. Pub. L. 315-1977, § 3, 2 Laws of the
State of Indiana 1458 (1977).
4 No. 14-3300
A candidate for Marion Superior Court Judge may gain
access to the general election 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
No. 14-3300 5
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
6 No. 14-3300
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 candidates appeared on the ballot. Although the
general elections were uncontested, there were more Demo-
cratic and Republican candidates seeking each party’s nominat-
ion, 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
4
We need not haggle over the precise differences between the earlier
versions of the Statute—in effect at the time of both elections—and the
current version of the Statute, because the recurrent goal present in all
versions has been to maintain partisan balance on the court.
No. 14-3300 7
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 Defen-
dants/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 reason-
able 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).
8 No. 14-3300
“‘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.
Takushi, 504 U.S. 428, 441 (1992) (quoting Wesberry v. Sanders,
376 U.S. 1, 17 (1964)); see also Ill. State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 179 (1979) (“[V]oting is of the most
fundamental significance under our constitutional structure.”).
However, States may prescribe “[t]he Times, Places and
Manner of holding Elections for Senators and Representa-
tives,” Art. I, § 4, cl.1, and the Supreme Court has recognized
that States retain the power to regulate their own elections.
Burdick, 504 U.S. at 433; Tashjian v. Republican Party of Conn.,
479 U.S. 208, 217 (1986). Thus, “‘as a practical matter, there
must be a substantial regulation of elections if they are to be
fair and honest and if some sort of order, rather than chaos, is
to accompany the democratic processes.’” Id. (quoting Storer v.
Brown, 415 U.S. 724, 730 (1974)).
A state election law, “whether it governs the registration
and qualifications of voters, the selection and eligibility of
candidates, or the voting process itself, inevitably affects—at
least to some degree—the individual’s right to vote and his
right to associate with others for political ends.” Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983). To subject every voting
regulation to strict scrutiny would “tie the hands of States
seeking to assure that elections are operated equitably and
efficiently.” Burdick, 504 U.S. at 433. Therefore, we must apply
a “more flexible standard” when considering a challenge to a
state election law, and must weigh:
No. 14-3300 9
“the character and magnitude of the asserted
injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff
seeks to vindicate” against “the precise inter-
ests put forward by the State as justifications
for the burden imposed by its rule,” taking into
consideration “the extent to which those inter-
ests make it necessary to burden the plaintiff’s
rights.”
Id. at 434 (quoting Anderson, 460 U.S. at 789)). This balance
means that, if the regulation severely burdens the First and
Fourteenth Amendment rights of voters, the regulation “must
be ‘narrowly drawn to advance a state interest of compelling
importance.’” Id. (quoting Norman v. Reed, 502 U.S. 279, 289,
(1992)). When the state election law “imposes only ‘reasonable,
nondiscriminatory restrictions’ upon the rights of voters, ‘the
State’s important regulatory interests are generally sufficient
to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at
788)). We apply this standard in considering Common Cause’s
challenge to the constitutionality of the Statute.
A. Severity of the Burden on the Right to Vote
Common Cause contends that the Statute imposes a severe
burden on the right to vote. Essentially, Common Cause
contends that the Statute works exactly as intended—it ensures
that all candidates nominated by the two major parties, the
Republicans and the Democrats, will be elected in an uncon-
tested general election, guaranteeing partisan balance between
the parties. Therefore, voters are denied an effective and
10 No. 14-3300
meaningful vote because their vote is irrelevant to the outcome
of the general election. The State maintains that the Partisan
Balance Statute does not burden the right to vote, or if it does,
that such a burden is justified by the State’s regulatory
interests—namely, to ensure partisan balance on the Marion
Superior Court—and that the constitutional right that Com-
mon Cause seeks to assert is illusory.
The central issue in this case is whether the Statute burdens
“the right of qualified voters, regardless of their political
persuasion, to cast their votes effectively.” Williams v. Rhodes,
393 U.S. 23, 30 (1968); see also Burdick, 504 U.S. at 441 (“[T]he
right to vote is the right to participate in an electoral process
that is necessarily structured to maintain the integrity of the
democratic system.”) In particular, we must consider how the
Statute’s restrictions on the number of seats each party may
seek burdens the right of voters to have an effective voice in
the general election. See Munro v. Socialist Workers Party, 479
U.S. 189, 193 (1986) (“Restrictions upon the access of political
parties to the ballot impinge upon the rights of individuals to
associate for political purposes, as well as the right of qualified
voters to cast their votes effectively.”); Anderson, 460 U.S. at
787–88 (the “exclusion of candidates … burdens voters’
freedom of association, because an election campaign is an
effective platform for the expression of views on the issues of
the day.”); id. at 787 (“The right to vote is ‘heavily burdened’
if that vote may be cast only for major-party candidates at a
time when other parties or other candidates are ‘clamoring for
a place on the ballot.’”).
No. 14-3300 11
In Storer v. Brown, the Supreme Court discussed the
correlation between primary elections and general elections
and their relationship to the voters’ selection of the ultimately
successful candidate, noting that:
The direct party primary … is not merely an
exercise or warm-up for the general election
but an integral part of the entire election pro-
cess, the initial stage in a two-stage process by
which the people choose their public officers. It
functions to winnow out and finally reject all
but the chosen candidates.
415 U.S. 724, 735 (1974) (recognizing California’s compelling
interest in maintaining the integrity of its political processes
and upholding California’s statutory provisions that denied
ballot access to an independent candidate if the candidate had
been affiliated with any political party within one year prior to
the immediately preceding primary election). Here, the Statute
preserves the role of the primary election as the first stage of
the election process, whereby “contending forces within a
party employ the primary campaign and primary election to
finally settle their differences” and select their nominee for the
general election. Id. In the normal course, the general election
would then give the full electorate the opportunity to consider
and choose between the available candidates, id. (“The people,
it is hoped, are presented with understandable choices and the
winner in the general election with sufficient support to govern
effectively.”), but the Statute does not contemplate a contested
general election. Instead, the Statute burdens the vote by
essentially removing all competition and electoral choice
12 No. 14-3300
before the general election, severely undercutting the second
stage of the “two-stage process by which the people choose”
the judges for the Marion Superior Court.
In order to achieve partisan balance, the Statute restricts the
two major parties’ access to the general election ballot by
prohibiting them from nominating candidates for more than
half of all available positions. In effect, this guarantees that the
two major parties cannot compete against each other in the
general election. Stated differently, the Statute removes
electoral choice and denies voters any effective voice or ability
to choose between candidates of the two major parties. In fact,
absent a possible third party or independent candidate on the
ballot, the general election is guaranteed to be uncontested,
rendering any vote meaningless because there is no choice to
be made. It is of no consequence whether voters approve or
disapprove of the candidates. So long as each candidate votes
for himself or herself, as he or she presumably will, actions
taken by other voters in the general election are meaningless,
as they lack any opportunity to affect the outcome. The
candidate will win, whether he gets a vote from every voter or
no voters at all.5 Thus, the winning candidates for judge have
5
A prime example of the predetermined nature of the general election is
a blog post from the Indiana Law Blog, dated two months before the general
election, that listed the changes in the Marion Superior Court assignments,
effective January 1, 2015, including the yet unelected judicial candidates.
Ind. Courts—Changes in Marion County Court Assignments, Indiana Law Blog
(Sept. 5, 2014, 4:18 PM), http://indianalawblog.com/archives/2014/09/ind_
courts_chan_16.html; see also Marion County Court Assignments Made for
2 0 1 5 , Indi anapo l i s Bar A s s o c i a t i o n , ( S e p t . 1 0 , 20 1 4) ,
(continued...)
No. 14-3300 13
effectively been determined in the primary election without the
participation of the full electorate, because all the major party
nominees who successfully obtained their parties’s nomination
are virtually guaranteed to win, with an even split between the
parties.6
According to the State, there is no constitutional right to a
contested election, nor a right to vote for a preferred party
candidate for every available seat in an election. To support its
position, the State relies on New York State Board of Elections v.
5
(...continued)
http://www.indybar.org/news/indybar-news/ 2014/271 (showing the court
assignments to the Marion Superior Court decided by the Marion County
Executive Committee, including the new judge assignments in the criminal
courts).
6
Considering that the party primary elections are often contested, the
Statute allows major party voters the ability to effectively cast a vote for half
(and only half) of the available seats in their party primary. However, if the
party’s leadership agrees on the slate and no other potential judicial
candidates seek to challenge the slate, resulting in an uncontested primary,
there would be no electoral choice in the primary as well. Voters who
cannot vote in a primary would have no opportunity to cast an effective or
meaningful vote. That primary voters generally have the ability to at least
effectively vote for half of the candidates, by virtue of them running
unopposed in the general election, as opposed to voters who cannot vote
in the primary and have no effective vote, also raises concerns about the
equality of their votes. See Williams, 393 U.S. at 30 (noting “the right of
qualified voters, regardless of their political persuasion, to cast their votes
effectively”); see also Reynolds v. Sims, 377 U.S. 533, 579 (1964) (establishing
the principle of “one person, one vote” and finding that electoral districts
must be substantially equal in population “so that the vote of any citizen is
approximately equal in weight to that of any other citizen”).
14 No. 14-3300
Lopez-Torres, 552 U.S. 196 (2008), which involved a First
Amendment challenge to New York State’s system for electing
Supreme Court (trial court) justices. In Lopez-Torres, the
plaintiffs challenged New York’s “delegate primary” conven-
tion system, in which each party nominated a single candidate
to run for each judicial seat. Id. at 200–01. Despite this allow-
ance, many of the races were uncontested because only one of
the major parties chose to nominate a candidate, apparently
because the other party decided it was not worth the time and
effort to present a challenger. Id. at 207–08. The plaintiffs
unsuccessfully sought their party’s nomination and brought a
First Amendment claim alleging deprivations of their rights to
ballot access and political association and arguing for the right
to challenge the candidates favored by party leadership
through a primary election. Id. at 201.
The Supreme Court held that New York’s electoral system
for Supreme Court judges did not violate the plaintiffs’ First
Amendment rights to political association and ballot access. In
particular, the Court determined that the plaintiffs’ real
complaint was that the election process did not give them a
realistic chance to secure the party’s nomination because party
leadership enjoyed greater support and was able to garner
more votes for its delegate slate in the convention. Id. at 204–05
(noting that none of the Court’s precedent establishes a
constitutional right to a “fair shot” at winning a party’s
nomination). Further, the Court dismissed the plaintiffs’
argument that the entrenched “one-party rule” in the state’s
general election demanded that the First Amendment be used
to impose additional competition in the parties’ nomi-
nee-selection process. Id. at 207–08 (declining to impose a
No. 14-3300 15
primary election and noting that while “[c]ompetitiveness may
be of interest to the voters in the general election, … those
interests are well enough protected so long as all candidates
have an adequate opportunity to appear on the gen-
eral-election ballot”).
Despite the State’s comparisons, there are important
differences in the facts of Lopez-Torres that distinguish it from
the case at hand. First, the statute in Lopez-Torres allowed for
each party to nominate one candidate for every available seat
in the general election, whereas here the Statute prohibits the
major parties from nominating candidates for more than half
of the available seats. Second, although the plaintiffs in Lopez-
Torres were unsuccessful in securing their party’s nomination
in the convention, they could still get on the general election
ballot by providing the requisite number of signatures of
voters residing in the district. Id. at 207–08. Here, any candidate
who fails to secure the party’s nomination in the primary is
restricted from access to the general election ballot.7
Third, although many races in the general election went
uncontested in Lopez-Torres, this was the result of private
decisions in electoral politics, where, for example, the Republi-
can party chose not to run a candidate in a heavily Democratic
district, or vice versa, after assessing its chance for victory. See
7
In Indiana, any person who is defeated in a primary election or nominat-
ing convention is not eligible to be a candidate for the same office in the
general election. Ind. Code § 3-8-1-5.5 (noting the exception, found in § 3-
13-2-10, whereby a defeated candidate may be appointed by his own
political party to fill any vacancy on the party’s ticket as a candidate in the
general election).
16 No. 14-3300
id. (noting that one-party entrenchment was the result of voter
approval of the positions and candidates of that party within
a voting district and the opposing party’s choice not to run a
challenger). Each party still enjoyed the opportunity to field a
candidate for each available position. Here, the Statute struc-
turally guarantees that there will be no competition between
the two major parties in the general election. Unlike Lopez-
Torres, the parties are restricted from access to the ballot as to
half of the seats. “The States can, within limits, … discourage
party monopoly[, but] [t]he First Amendment creates an open
marketplace where ideas … may compete without government
interference.” Lopez-Torres, 552 U.S. at 208 (citation omitted).
Critically, the uncontested elections in Lopez-Torres—and the
lack of electoral choice for voters—was the result of electoral
politics within the market. Here, the State interferes with the
market by restricting each major party’s access to only half of
the ballot, an act that “impinge[s] upon the rights of individu-
als to associate for political purposes, as well as the right of
qualified voters to cast their votes effectively.” Munro, 479 U.S.
at 193.
When an election law reduces or forecloses the opportunity
for electoral choice, it restricts a market where a voter might
effectively and meaningfully exercise his choice between
competing ideas or candidates, and thus severely burdens the
right to vote. The State contends that where the Supreme Court
has referenced a right to a meaningful or effective vote, it has
been in the context of a right to vote in a system where
candidates have reasonable access to the ballot. The State
argues that the Statute provides an adequate opportunity to
place independent and third-party candidates on the ballot,
No. 14-3300 17
and that if voters wish to have a contested general election, it
is their responsibility to field independent and third-party
candidates to contest those seats.8 However, the possibility that
an independent or third-party candidate appears on the ballot
can only impact the last seat selected.9 It does not alter the
fundamental nature of the Statute—to reduce electoral choice
and the availability of what would otherwise be contested
elections in the interest of preserving partisan balance.10 When
a voter’s lack of electoral choice in an election is the conse-
quence of electoral politics and private decisions without
government interference, it is merely a function of the market-
place at work. However, where the electoral scheme interferes
with the marketplace by restricting the number of candidates
a party may nominate, and thus hinders electoral choice by
8
The State contends that the system created by the Statute is more
favorable to independent and third-party candidates because they only
have to compete against one of the major parties, as opposed to both.
9
For example, if one independent or third-party candidate appears on the
ballot, only the last seat selected will be contested.
10
We find it relatively insignificant that a third-party successfully gained
access to the general election ballot in 2000 and 2002, challenging five seats
and one seat, respectively. The third-party showing was so weak as to not
be competitive. The worst performing major party candidate, and last
individual voted in, received more than three times the number of votes of
the best performing third-party candidate (96,093 to 31,760 votes,
respectively). State of Indiana 2000 Election Report, Supp. App. 14. In
addition, a significant number of seats were still uncontested, as contem-
plated by the Statute outside the extremely rare and seemingly unlikely
possibility that an independent or third-party candidate is on the general
election ballot.
18 No. 14-3300
which voters would have the opportunity to choose between
competing alternatives that would have otherwise existed, the
State has severely burdened the voter’s ability to cast a
meaningful and effective vote.
B. The Interests of the State
Having determined that the Statute places a severe burden
on the right to vote, we must now consider “‘the precise
interests put forward by the State as justifications for the
burden imposed by its rule,’ taking into consideration ‘the
extent to which those interests make it necessary to burden the
plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson,
460 U.S. at 789)).
i. Ensuring Fair Political Representation and Impartiality
The State asserts that the “Supreme Court has held that
partisan balance provisions are reasonable, nondiscriminatory
restrictions justified by the State’s important regulatory interest
in ensuring fair representation.” Br. at 16 (arguing that there is
no constitutional right for a party to nominate a candidate for
every available position or to sweep an election). The State
presents three cases in support of this proposition.
In Blaikie v. Power, 193 N.E.2d 55 (N.Y. 1963), the plaintiffs
challenged the procedure for electing members to the New
York City Council, which provided that two councilmen were
elected at-large from each borough, but that each party could
nominate only one candidate per borough and each voter
could cast only one vote per borough. Id. at 56. This system of
No. 14-3300 19
voting, known as “limited voting,” was developed “in order to
make possible the election of minority representatives,” but the
plaintiffs alleged their ability to vote for only one candidate
deprived them of “a right to vote for a candidate of his choice
for both of the elective offices to be filled,” an offense against
the State Constitution. Id. New York’s highest court upheld the
procedure, finding that, in the context of New York’s Constitu-
tion, limited voting and proportional representation were
identical in substance and effect, and that “each system
necessarily involves a limitation of voting, imposed on all
voters alike, in order to make possible of achievement some
minority representation in a multiple body.” Id. at 59.
In LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn. 1972), aff’d,
409 U.S. 972 (1972), the plaintiff challenged a limited voting
scheme for school board elections in which a “town committee
or caucus” could nominate candidates for only half of the
vacancies on the board, or a bare majority if an odd number,
and set the maximum number of individuals of the same
political party who may sit on the board to two-thirds.11 Id. at
746. Although the statute did not limit the number of candi-
dates who could run, it required the town clerk to disregard
other majority party candidates once the majority reached its
limit even if they had more absolute votes than the minority
party candidates who would be elected. The court upheld the
restrictions, finding that the legislature’s minority representa-
tion scheme to ensure that boards “have a significant minority
11
Depending upon the size of the board, the majority party may occupy no
more than 2 of 3, 3 of 4, 4 of 5, 5 of 7, and two-thirds of 9 of more seats on
the board. Id. at 746.
20 No. 14-3300
voice, to air and introduce ideas which the majority might not
otherwise consider” was not a violation of the Fourteenth
Amendment. Id. at 750. Although the plaintiff “essentially
argue[d] that the majority’s vote is diluted because it is not
allowed to elect as many members as it could were it free to
take an unlimited number of seats on the board,” the court
determined that, “so long as there is no invidious discrimina-
tion against any individual or group’s right to cast votes on an
equal basis with all others,” it was not a violation for the
legislature to insure that “all points of view” were represented
on the board. Id. at 749–50.
In Hechinger v. Martin, 411 F. Supp. 650 (D.D.C. 1976), aff’d,
429 U.S. 1030 (1977), the plaintiffs challenged a law that limited
a party to nominating only two candidates for the four at-large
seats on the District of Columbia Council. The court considered
”whether the Constitution requires that the political party with
the majority of registered voters must have the right in an
election for a multi-member body to elect all the members of
that body.” Id. at 652. The court concluded that the provision
preventing a party from nominating candidates for all avail-
able seats was not a violation. Id. at 653 (“The concept of
minority representation, or stated in another fashion, limita-
tions on majority representation, is entirely consistent with
First Amendment principles of freedom of expression and
association, and appears altogether legitimate as a legislative
objective.”). In particular, the law’s “purpose and effect [wa]s
to ensure that political minorities are represented on the
Council and that dissident voices are heard in the legislative
process,” a purpose that is entirely harmonious with that of the
First Amendment. Id. at 654.
No. 14-3300 21
According to the State, these cases establish that election
laws intended to ensure balanced political representation are
fully consonant with the First and Fourteenth Amendments.12
However, the State’s rationale does not address a crucial
difference from the facts presented—those cases speak to an
interest in protecting minority party representation in the
context of multi-member or legislative bodies. See, e.g.,
Hechinger, 411 F. Supp. at 654 (noting that “the purpose of the
[minority representation provision] was entirely harmonious
with that of the First Amendment” because it provided “fair
and equitable protection of minority interests” by “ensur[ing]
12
Although the State contends that these cases are binding precedent for
the proposition that partisan balance provisions are constitutional, we find
that these cases are instructive only to the issue presented within those
cases. The Supreme Court summarily dismissed the appeal in Blaikie for
want of a substantial federal question, Blaikie v. Power, 375 U.S. 439 (1964)
(per curiam), which became a disposition on the merits. See Hicks v.
Miranda, 422 U.S. 332, 344 (1975). However, the decision upholding the
statute was based upon the New York State Constitution and is not
controlling. Both LoFrisco and Hechinger were summarily affirmed by the
Supreme Court. LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn. 1973), aff’d,
409 U.S. 972 (1972); Hechinger v. Martin, 411 F. Supp. 650 (D.D.C. 1976), aff’d,
429 U.S. 1030 (1977). Although a summary disposition “prevent[s] lower
courts from coming to opposite conclusions on the precise issues presented
and necessarily decided by those actions,” it is not binding when the “facts
are very different from the facts of [the present] case.” Mandel v. Bradley, 432
U.S. 173, 176–77 (1977); see also Hicks, 422 U.S. at 344 (summary dispositions
are no longer binding precedent when “doctrinal developments” indicate
they should not be followed). In addition to various factual differences, the
subsequent case law in Anderson and Burdick established the proper test for
election law challenges. Thus, this case must be considered under its own
unique facts and the subsequent doctrinal developments in election law.
22 No. 14-3300
that political minorities are represented on the Council and
that dissident voices are heard in the legislative process”).
Minority representation provisions, or, stated differently,
limitations on majority representation, protect against partisan-
ship run amok. A judge, however, is not elected to represent a
particular viewpoint but must exercise his or her own inde-
pendent authority to make decisions that uphold and apply the
law fairly and impartially. See, e.g., Republican Party of Minne-
sota v. White, 536 U.S. 765, 803 (2002) (Ginsburg, J., dissenting)
(“Whether state or federal, elected or appointed, judges
perform a function fundamentally different from that of the
people’s elected representatives. Legislative and executive
officials act on behalf of the voters who placed them in office;
‘judge[s] represen[t] the Law.’” (citations omitted)).
The State contends that partisan balance promotes its
compelling interest in promoting public confidence in the
impartiality of the bench.13 According to the State, if one party
was able to sweep and control all the seats in a judicial election,
litigants of other political affiliations would feel as though the
odds were stacked against them. Although the State’s goal of
partisan balance on the Marion Superior Court conjures up
notions of fairness, it is an odd concept of fairness in the
13
Stated differently, the State argues that the party label can be read as a
substitute for judicial philosophy, in that the major political parties likely
have different priorities when nominating candidates and that the Partisan
Balance Statute ensures that the court, in the aggregate, represents a
diversity of views and judicial philosophies.
No. 14-3300 23
judicial context.14 Public confidence in the impartiality of the
court is enhanced when litigants believe a judge will decide the
case on the facts and the law without “bias for or against either
party to the proceeding.” White, 536 U.S. at 775 (emphasis
omitted).
Indeed, the Indiana Code of Judicial Conduct requires as
much. Judges and judicial candidates must “act at all times in
a manner that promotes public confidence in the independ-
ence, integrity, and impartiality of the judiciary, and shall
avoid impropriety and the appearance of impropriety.” Ind.
Code of Judicial Conduct R. 1.2. A judge must “uphold and
apply the law … fairly and impartially,” id. R. 2.2, “without
bias or prejudice,” id. R. 2.3(A), and “shall not, in the perfor-
mance of judicial duties, by words or conduct manifest bias or
prejudice, or engage in harassment, including but not limited
to bias, prejudice, or harassment based upon race, sex, gender,
religion, national origin, ethnicity, disability, age, sexual
orientation, marital status, socioeconomic status, or political
affiliation … .” Id. R. 2.3(B) (emphasis added). “Public confi-
dence in the independence and impartiality of the judiciary is
eroded if judges or judicial candidates are perceived to be
subject to political influence,” id. R. 4.1 Cmt. [3], so judges
“must, to the greatest extent possible, be free, and appear to be
free, from political influence and partisan interests.” Id. R. 4.1
14
Such a notion of fairness at best gives a litigant an equal chance of getting
a judge from a favored party versus a non-favored party, since the Marion
Superior Court Local Rules provide for the random assignment of cases
among the judges. LR49-TR3-200 (random filing in civil cases); LR49-CR2.2-
100 (random assignment of criminal cases).
24 No. 14-3300
Cmt. [1]. The Indiana Code of Judicial Conduct permits only
narrowly-tailored exceptions to the prohibitions against
political activities of judges and judicial candidates, and
explicitly acknowledges that judges must serve in a manner
different from legislators or executive branch officials. Id.
(“Even when subject to public election, a judge plays a role
different from that of a legislator or executive branch official.
Rather than making decisions based upon the expressed views
or preferences of the electorate, a judge makes decisions based
upon the law and the facts of every case.”).
Partisan balance amongst the judges who comprise the
court, alone, has little bearing on impartiality. For instance,
let’s assume that the court included two equally ultra-partisan,
biased judges who allowed their political affiliation to influ-
ence their conduct and decisions. One judge is partial for
Republican interests; the other for Democratic interests. Once
the public became aware of the two problem judges, their
confidence in the impartiality of the court would not be
restored by the fact that the court still has overall partisan
balance. Rather, calls would be made for the removal of both
judges and their replacement with judges who would fairly
and impartially decide cases, regardless of any political
affiliation. If the ratio of ultra-partisan, biased judges was
extended to 2 to 2, 3 to 3, or even 18 to 18 (comprising the
entire court), the public would become increasingly less
confident in the impartiality of the court, notwithstanding that
the court still enjoys partisan balance between the major
political parties. Simply stated, partisan balance can serve as a
No. 14-3300 25
check against contrary partisan interests, but it says little about
the impartiality of individual members.15
Further, we note that the policy reasons offered by the State
in support of the Statute—namely, to promote public confi-
dence in the impartiality of the court by preventing one party
from sweeping all of the seats—are not supported by the
record. The State contends that if one party were to have
majority control of the seats on the court, litigants of other
political affiliations would feel as though the odds were
stacked against them. However, there is nothing in the record
to substantiate a claim that partisan balance on the court is
necessary to serve that interest, or that such a concern has ever
been raised. Even during the 1970 and 1974 elections in which
15
The Statute effectively makes the electoral choice of which candidates
will become judges occur in the respective parties’ primaries, where only
one party’s members may participate, and those nominees go on to the
at-large general election unchallenged, and unchallengeable, by the other
major party. Such a system could be viewed as ultra-partisan, because
judicial candidates would only need to appeal to voters within their own
party, and not to the general electorate in the general election. Further, if,
say, an individual from the other major party disliked a judicial candidate
for whatever reason and wanted to exercise his vote to elect someone else
instead, he would be powerless to do so under the Statute. He could not
vote in support of other candidates in the other party’s primary, hoping that
the undesired candidate fails to secure the nomination by virtue of being
outside the top eight, or ten, candidates, respectively, and he could not vote
against the candidate or for others in the general election, for the candidate
need only to vote for himself to win in the usual case. Such a system creates
the perception that a judge is chosen within the primaries, not the general
election, and if a judicial candidate’s eventual election is dependent solely
on the primary, the candidate’s chances of being elected improve the more
he appears to espouse the ideals of the party.
26 No. 14-3300
each major party swept all of the seats, we are not presented
with any evidence that a litigant complained of bias or preju-
dice on the part of a judge based upon party affiliation, or that
all the judges on the court had the same party affiliation. It is
asserted that the Statute, and its accompanying burden on the
right to vote, is necessary to protect and promote public
confidence in the impartiality of the bench, but this presumes
that nothing protected these interests before the Statute. The
Indiana Code of Judicial Conduct contains numerous rules and
provisions designed to ensure the independence, integrity, and
impartiality of the court, including detailed restrictions on
political activity by judges and judicial candidates. Ind. Code
of Judicial Conduct Canon 4 (“A judge or candidate for judicial
office shall not engage in political or campaign activity that is
inconsistent with the independence, integrity, or impartiality
of the judiciary.”) Although the Code of Judicial Conduct has
gone through revisions over the years, requirements that
judges refrain from certain political activities and decide cases
impartially, without personal bias or prejudice, predate the
Statute. See, e.g., Indiana Code of Judicial Conduct (effective
January 1, 1975). Furthermore, complaints about judicial
misconduct for violations of the Code may be filed with the
Indiana Commission on Judicial Qualifications, which investi-
gates and recommends discipline, where appropriate, to the
Indiana Supreme Court.16
16
This system is not mere lip service, for the Indiana Supreme Court has
been active in enforcing the rules and meting out discipline, up to and
including removing judges from the bench. See, e.g., In re Brown, 4 N.E.3d
619 (Ind. 2014) (removing a Marion Superior Court Judge from the bench
(continued...)
No. 14-3300 27
We disagree that partisan balance in the context of judicial
elections improves the public’s confidence in an impartial
judiciary. The emphasis on partisan balance could just as easily
damage public confidence in the impartiality of the court.
Similarly, the interest in ensuring minority party
representation in the context of administrative or legislative
bodies has been sufficient to justify the burden on the right to
vote in those contexts, but we fail to see how it is applicable or
necessary in the judicial context.
ii. Cost of Judicial Elections
The State argues that its interest in keeping the cost of
judicial elections to a minimum is a compelling reason in
support of the Statute. The State contends that the Statute
removes the need for judicial candidates to raise and spend
large sums of campaign money, which make elections more
partisan and rancorous. The State argues that successful
16
(...continued)
after finding forty-six counts of judicial misconduct). The Code of Judicial
Conduct not only addresses the interest in the impartiality of the court, it
protects it by enforcing discipline for violations. Id. at 628 (“Upon finding
judicial misconduct, this Court may impose a variety of sanctions, including
removal from office. The purpose of judicial discipline is not primarily to
punish a judge but to preserve the integrity of and public confidence in the
judicial system and, when necessary, safeguard the bench and public from
those who are unfit. Any sanction must be designed to discourage others
from engaging in similar misconduct and to assure the public that judicial
misconduct will not be condoned.” citations omitted)).
28 No. 14-3300
candidates would likely feel indebted to their donors, creating
a perception of bias, and that the Statute “alleviates these
concerns by eliminating head-to-head election contests that
devolve into nothing more than high-cost partisan battles.” Br.
at 32. A brief look at the history of elections for the Marion
Superior Court under the Statute reveals that it has achieved
this desired purpose—the general election has been uncon-
tested. Voters in the general election are presented with a
ballot asking them to vote for either 16 or 20 candidates to fill
the 16 or 20 available positions in any given election. Half of
them are Republicans. Half of them are Democrats. Neither
half can challenge the other half, and so long as the candidate
votes for himself, he will win. Thus, the State’s purported
interest in minimizing the cost of judicial elections and achiev-
ing partisan balance has succeeded, but at the expense of
removing any meaningful vote for the voter in the general
election. The major party primaries, however, often are
contested and judicial candidates must still raise and spend
campaign money as a part of that election.17 Therefore, we are
17
Candidates attempting to be slated as one of the parties’ preferred
candidates generally must pay between $12,000 and $14,000 for the
opportunity. See Indianapolis Star, Editorial: System for picking judges needs
overhaul, Mar. 19, 2014, available at http://www.indystar.com/story/opinion/
editorials/2014/03/19/editorial-system-for-picking-judges-needs-overhaul
/6626587; Indiana Lawyer, Marion County slating reform gets new push, Aug.
29, 2012, available at http://www.theindianalawyer.com/marion-county-slating-
reform-gets-new-push/PARAMS/article/29543. Although an unslated
candidate may still run and prevail in the primary, Indiana law prohibits
the distribution of a list endorsing multiple political candidates during a
primary election unless all such candidates have given their written
(continued...)
No. 14-3300 29
not convinced that the Statute alleviates any concern that
candidates might feel indebted to their donors. Indeed, because
the substantive portion of the election occurs during the
primary, the candidate could consider himself indebted to the
party. His best chance at winning the election is to earn a spot
on the party’s slate of preferred candidates, which may be
better accomplished by a partisan appeal to his own party.
Thus, he is campaigning for votes within his own party and not
for votes in the general election, reducing the general public’s
ability to learn about the candidate and consider his abilities
and ideas within the marketplace of ideas that supports our
democratic system. See, e.g., Anderson, 460 U.S. at 787–88 (“The
exclusion of candidates also burdens voters’ freedom of
association, because an election is an effective platform for the
expression of views on the issues of the day, and a candidate
serves as a rallying-point for like-minded citizens.”).
Of course, the State can serve its interest in protecting
judicial elections from the often contentious and extreme
partisanship prevalent in elections for the other branches of
government through proper enforcement of the restrictions on
political and campaign activities already in place for judicial
17
(...continued)
consent. Mulholland v. Marion County Election Board, 746 F.3d 811, 814 (7th
Cir. 2014) (noting that the purpose of Indiana Code § 3-14-1-2 is to assist the
major parties in promoting their preferred candidates to run in the primary
and “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”). Therefore, slated candidates are in a more advantageous
position compared to other candidates who fail to earn the endorsement of
the party leadership.
30 No. 14-3300
candidates. See Ind. Code of Judicial Conduct R. 4.1–4.6
(establishing rules prohibiting judicial candidates from
engaging in political or campaign activities that are inconsis-
tent with the independence, integrity, or impartiality of the
judiciary). Adherence to these restrictions would, necessarily,
prevent campaign expenditures on prohibited campaigning
elements, thus reducing the cost of judicial elections relative to
campaign costs for elections in the other branches of govern-
ment.
iii. Stability and Public Confidence
The State contends that partisan balance is critical to
ensuring stability and public confidence in the court. The State
argues that partisan balance is particularly important in the
Marion Superior Court because it accounts for approximately
twenty percent (20%) of all cases filed and disposed of in the
State each year, many of which have a statewide impact
because petitions for judicial review of State agency actions are
often filed in Marion County. The State also argues that the
Statute ensures stability on the court by removing the possibil-
ity that one party could sweep the election. Such a provision is
necessary, the State contends, to prevent a turnover such as
occurred in the wake of the Watergate Scandal, in which the
Republicans swept all of the seats in the 1970 election and the
Democrats swept all of the seats in the 1974 election.
These interests provide little justification for the severe
burden imposed upon the right to vote, however. We do not
see why the fact that the Marion Superior Court ultimately
decides a relatively significant percentage of the State’s annual
No. 14-3300 31
cases, including cases with statewide impact, necessitates a
unique electoral system ensuring partisan balance. The Indiana
Code of Judicial Conduct applies the same for judges in Marion
County as it does for judges in every other county of the State,
yet only the Marion Superior Court has a partisan balance
requirement. We do not appreciate how a court with compara-
tively greater influence, by virtue of the quantity of its deci-
sions or their statewide impact, has sufficient interests in
partisan balance to justify the severe burden on the right to
vote, but that these interests are not present for any other
county in the State, or, for that matter, the country. A case in
any other jurisdiction is just as important to the litigants, and
the judge is under the same obligations to apply the law to the
facts of the case. If the State decides that a partisan judicial
election is the best-suited system for filling judicial vacancies
in a particular jurisdiction, as it of course may, voters must
have the opportunity to cast a meaningful vote in that election.
As for the stability of the court, or stated differently, the
State’s asserted interest in avoiding a sweeping turnover of
judicial personnel, this interest may be served in ways that do
not necessarily burden the right to vote. For example, the
current version of the Statute already provides for staggered
elections, a procedure that allows the State to avoid a complete
turnover in any one election that might upset the operation of
the court without restricting voters’ opportunity to exercise
their voice as to which candidates should fill the open posi-
tions.
In balancing the asserted injury to the plaintiff with the
interests of the State, “the Court must not only determine the
legitimacy and strength of those interests; it also must consider
32 No. 14-3300
the extent to which those interests make it necessary to burden
the plaintiff’s rights.” Anderson, 460 U.S. at 789. In light of the
burden placed upon the right to vote, the interests put forward
by the State do not justify the burden. In the context of partisan
judicial elections, the interests identified by the State can either
be served through other means, making it unnecessary to
burden the right to vote, or those interests are not strong
enough to overcome the burden. We conclude that the precise
interests put forward by the State do not justify the burden
placed on the right to vote for judicial candidates for the
Marion Superior Court. Therefore, the Statute violates the First
and Fourteenth Amendments.
III. CONCLUSION
We agree with the district court that the Statute at issue
burdens the right to cast a meaningful vote without sufficiently
weighty interests to justify such a burden. In the context of
partisan judicial elections, which the State has chosen to adopt
as its preferred system for selecting judges for the Marion
Superior Court, the asserted benefits and interests surrounding
partisan balance do not justify the burden placed on the right
to vote. The judgment of the district court is AFFIRMED.