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Political parties can’t stop marketing campaigns of candidates they don’t endorse

The following passage is excerpted from Zachary Mulholland v. Marion County Election Board, Cause No. 13-3027, in the United States Court of Appeals for the Seventh Circuit, filed March 20, 2014.

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. 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 same anti-slating law that the Election Board used to justify its seizure of Mulholland's flyers had been ruled unconstitutional in federal court

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In October 2012, following the Marion County Election Board's confiscation of his campaign flyers and loss in the primary election, Mulholland, represented by the ACLU of Indiana, took the matter to the federal district court in Zachary Mulholland v. Marion County Election Board. However, the Court abstained and dismissed the case. In March 2014, we challenged that decision in the U.S. Court of Appeals for the Seventh Circuit, which reversed the dismissal and ruled in favor of Mulholland.

Zachary Mulholland 2013Zachary Mulholland

The Board's actions on Primary Election Day never should have taken place. More than a decade prior, in 2003, the same anti-slating

law the Election Board used to justify its seizure of Mulholland's flyers had been ruled unconstitutional in federal court. Judge John Tinder, U.S. District Court for the Southern District of Indiana, found—and the Election Board conceded—that the statute [Indiana Code § 3-14-1-2(a)(2) and (3)] violated the First Amendment of the United States Constitution "in all respects."

In its 2014 ruling, the Seventh Circuit three-judge panel noted that the Election Board's attempt to continue to enforce a statute that it had admitted was unconstitutional "shaves very close to harassment or bad faith prosecution." The Court further stated that if the Board attempted to enforce the statute again in upcoming primaries against any candidate the Board would likely be liable for damages for its actions.

Although the case has not been permanently resolved, the decision by the Seventh Circuit was a major win for our client and for any person who aspires to run for political office.

Download a copy of the decision