Case: Schmitz v. Marion County Board of Elections

This is a case concerning the disallowance of signatures on an independent candidate’s ballot petitions in Indiana. On August 6, 2019, Plaintiffs, an independent candidate for the office of Mayor of Indianapolis and supporters whose ballot petition signatures were disallowed, brought this suit against Defendants, the Marion County Board of Elections (“the Board”), the Marion County Clerk, and Indiana’s Secretary of State, challenging a decision of the Board to disallow over 1,000 signatures on the independent candidate’s ballot petitions putting him below the threshold number of signatures required to be listed on the November 2019 election ballot. Plaintiffs sued in the U.S. District Court for the Southern District of Indiana alleging violations of Plaintiffs' First and Fourteenth Amendment rights, the National Voter Registration Act of 1993 (“NRVA”), 52 U.S.C. § 20507, and the Voting Rights Act of 1965, 52 U.S.C. § 10301. Represented by Mark Small, Plaintiffs claimed Defendants had (1) denied plaintiffs constitutional right of association to provide meaningful input in who appears on the ballot, (2) failed to make reasonable voter list maintenance programs or update voter registration records in violation of Section 8 of the NRVA, and (3) maintained as a prerequisite to voting that an individual have a registered address violating the VRA as applied to the rights of a homeless plaintiff. They sought equitable relief declaring defendants' actions invalid and placing the independent candidate plaintiff on the November ballot for Mayor of Indianapolis.

On August 12, 2019, Plaintiffs filed an Emergency Motion for a Preliminary Injunction in order to get the independent candidate’s name on the mayoral ballot before ballots were printed on August 23, 2019. Judge Tanya Walton Pratt held an evidentiary hearing on August 29, 2019, and denied the Plaintiffs’ motion for preliminary injunction on September 5, 2019.  Plaintiffs dismissed their case on February 5, 2020.

Under Indiana law, in order to appear on the ballot for elected office, an independent candidate may be nominated by petition of registered voters “equal to two percent of the total vote cast in the last election for secretary of state in the election district that the candidate seeks to represent.” Indiana Code § 3-8-6-3. The form a candidate uses, titled “Petition of Nomination for City or Town Office in 2019,” is often called a “CAN-44” form. Voters who sign the petition must be “registered to vote at the address set forth on the petition on the date the county voter registration office certifies the petition under section 8 of this chapter; and qualified to vote for the candidate.” This is known as the “Registered-Address Requirement.” The CAN-44 form, however, does not mention the Registered-Address Requirement at all. Instead the CAN-44 form explains “[e]ach of the undersigned represents that: 1) the individual resides at the address listed after the individual’s signature; 2) the individual is a duly qualified registered voter in Indiana; and 3) the individual desires to be able to vote for the candidates listed below…” It asks signers to list their “RESIDENCE ADDRESS (No P.O. Boxes)” and lists two sections of Indiana Code Chapter 3-8-6 but not the section containing the Registered-Address Requirement.

The plaintiff independent candidate had submitted his petitions with 8,295 signatures before the July 1, 2019 deadline. The Board disallowed 1,115 signatures because the address listed by those voters on the forms did not match the voters’ registration addresses.  It also disallowed 65 signatures due to printed names, 60 signatures of ineligible voters, and 164 signors who did not provide an address. These disqualifications left the plaintiff independent candidate 749 signatures short of the number needed to get his name on the ballot for the 2019 mayoral race. He challenged the Board’s decisions and after a hearing on the challenge the Board determined 55 signatures were erroneously disallowed because the writing in the signature field qualified as a signature but affirmed the decision to disallow the 1,115 signatures that did not satisfy the Registered-Address Requirement. Plaintiffs then brought their lawsuit and subsequent emergency motion for a preliminary injunction.

The court found that plaintiffs met the first two Seventh Circuit requirements to obtain a preliminary injunction: (1) without such relief plaintiffs would suffer irreparable harm before the final resolution of their claims because they would be excluded from the November 2019 mayoral ballot, (2) traditional legal remedies would be inadequate because plaintiffs requested a very specific form of relief—to have their desired independent candidate placed on the ballot as a candidate for Mayor of Indianapolis in November. The court then turned to the third requirement that Plaintiffs demonstrate some likelihood of success on the merits.

The court reasoned that the constitutionality of a ballot access restriction depends on a “practical assessment of the challenged scheme’s justifications and effects” governed by the two-step analysis announced by the Supreme Court in Anderson. The court considered (1) the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate and (2) identified and evaluated the precise interests put forward by the state for the burden imposed by its rule.

On this point, plaintiffs contested the Registered-Address Requirement as ambiguous when read through the CAN-44 form and argued the Board’s actions could not be justified by a desire to ensure that all of Schmitz’s signers were voters registered in Marion County because the Board did not contest that all 1,115 signatures disallowed through the Registered-Address Requirement belonged to Marion County voters. The Marion County Defendants, the Board and County Clerk, responded that the Registered-Address Requirement is unambiguous under Indiana Election Code and the CAN-44 requirement that a voter write their residence address makes sense because by law the voter’s registration address must be the same as their residence address. Defendants further argued the burden placed on the voter was minor and cited strong Seventh Circuit precedent from Nader v. Keith, 385 F.3d 729, 233 (7th Cir. 2004), in which the court held it reasonable for a state to require signers to give the address at which the signers are registered to vote.

The court largely agreed with defendants’ arguments that in the abstract the Registered-Address requirement under Indiana law is constitutional under Nader. Here, the court reasoned, “It does not present a greater burden to signers to list their voter registration address than it would to list their current address, or to list some other piece of information about themselves that they would know offhand and could identify them to the Board.” The court, however, expressed concern that, unlike Nader, the CAN-44 form itself poses a burden to Indiana voters by not communicating to Indiana voters the requirements of Indiana law unless the voters took it upon themselves to read Indiana law. Reasoning that, “Indiana, out of either negligence or malice, has made it more difficult for voters to support independent candidates not by requiring those candidates to obtain signatures accompanied by registered-voting addresses, but by misleading the signers by indicating to them that they should provide only their ‘residence address,’” the court turned to the next question under Anderson-Burdick of how severely this misleading scheme burdens Indiana voters.

Here, the court found that while the misleading wording on the CAN-44 form was “ill-advised and easily fixable,” it ultimately did not present a great burden to Indiana voters or candidates because there are ways Indiana voters and candidates can ensure they provide the correct addresses. It also found significant that Indiana’s petition certification process allows for submission of petitions with signatures and addresses in batches so that candidates may be appraised of and remedy incorrect addresses on signature petitions.

Finding the burdens of the Registered-Address Requirement slight, the court conducted a non-rigorous inquiry into its justifications. Defendants offered four justifications for the requirement: (1) regulating the number of candidates on the ballot, (2) assuring the winner commands at least a strong plurality of votes without the necessity of a runoff election, (3) preserving the integrity of the state’s electoral process and avoiding deception, and (4) preventing voter confusion. While the court suggested the benefits of some of these justifications might be overstated, they cleared the low bar defendants must meet in the Anderson-Burdick analysis in that the requirement was not discriminatory and “justified by the need for orderly and fair elections.”

Given that the balance of the Anderson-Burdick analysis tipped the scale in the favor of the defendants, the court found plaintiffs could not demonstrate any likelihood of success on the merits and thus denied their Emergency Motion for a Preliminary Injunction on September 5, 2019. Plaintiffs voluntarily dismissed their case on February 5, 2020, after the 2019 mayoral election had passed and two weeks before additional proceedings were set to begin.