Federal Appeals Court Reverses Dismissal of Candidate’s Lawsuit

Three-judge panel says Marion County Election Board’s attempt to enforce unconstitutional statute “shaves very close to harassment or bad faith prosecution.”

March 20, 2014

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

Indianapolis — In 2003 the Marion County Election Board conceded in a federal lawsuit that Indiana’s anti-slating statute violated the First Amendment to the U.S. Constitution. Still, during the 2012 primary season, the Board enforced the statute against candidate Zachary Mulholland, leading to a lawsuit in federal court.

The statute, Indiana Code § 3-14-1-2(a)(2) and (3),made it a crime for a candidate in a primary election to publish certain election materials linking him with other candidates without prior permission and notice to the county election board. In 2003 the federal court found the statute violated the First Amendment of the United States Constitution in all respects. In October 2012, Mulholland, represented by the American Civil Liberties Union of Indiana, challenged the election board’s continued enforcement of the statute in a lawsuit filed in federal district court.

Today, the Seventh Circuit Court of Appeals reversed the District Court’s dismissal of the case. In doing so, the appellate court noted that the 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 is not over, this is a major victory not just for Mr. Mulholland, but for the First Amendment,” said ACLU of Indiana Legal Director, Kenneth J. Falk who represents Mr. Mulholland along with ACLU attorney Gavin M. Rose.

The decision, Zachary Mulholland v. Marion County Election Board, Cause No.13-3027, was issued by the United States Court of Appeals for the Seventh Circuit on March 20, 2014.