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Stewart v. Taylor

January 15, 1997

ROBBIN STEWART,

PLAINTIFF-APPELLANT,

v.

SARAH TAYLOR, CLERK OF THE CIRCUIT COURT OF MARION COUNTY, INDIANA, AND MEMBER OF THE MARION COUNTY ELECTION BOARD, RICHARD MILAN, MEMBER OF THE MARION COUNTY ELECTION BOARD, AND JOHN MULLER, MEMBER OF THE MARION COUNTY ELECTION BOARD, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, ET AL.,

DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 96 C 1085 S. Hugh Dillin, Judge.

Before MANION, DIANE P. WOOD, and EVANS, Circuit Judges.

MANION, Circuit Judge.

ARGUED OCTOBER 21, 1996

DECIDED JANUARY 15, 1997

In early 1996 Robbin Stewart declared as a Republican candidate for a seat on the Center Township board in Marion County, Indiana. On May 7, Stewart won the Republican primary. At its party convention held on May 1 the Libertarian Party also nominated him for the same seat. Stewart accepted both nominations.

In what is termed an "anti-fusion" law, Indiana requires a candidate nominated by more than one party for one office to elect which of the nominations he accepts. If the candidate refuses to choose, and it is an election for an office within a county, another statute directs the circuit court clerk of that county to make the selection for the candidate, with preference given to the nomination made by convention. When Stewart refused to choose between the Republican and Libertarian nominations, the circuit court clerk of Marion County, following the Indiana statute, removed his name as the Republican candidate. Stewart appeared on the ballot as a Libertarian.

Stewart sued the circuit court clerk and the members of the Marion County Elections Board asserting that they infringed his First and Fourteenth Amendment rights of free speech, political association, and equal protection when they removed his name from the Republican slate on the ballot. The district court denied Stewart's request for a preliminary injunction, and this court allowed an expedited appeal. We reaffirm our decision upholding Wisconsin's "anti-fusion" law, Swamp v. Kennedy, 950 F.2d 383 (7th Cir. 1991), cert. denied, 505 U.S. 1204 (1992), and affirm the district court's decision to deny Stewart a preliminary injunction.

I.

"Fusion" as the word is used in electoral politics is a process by which two or more political parties nominate one candidate for an office in an election. *fn1 Each party picks its own candidate by primary, convention, or otherwise. Then, in states that allow fusion, a single candidate appears as a representative of two or more parties for the same office in the general election. That candidate can receive votes on each party's ticket; those votes are added together to determine the overall winner.

"Anti-fusion" statutes -- state laws that preclude a political candidate from being listed on a ballot under more than one party for one office -- are prevalent in this country. By one count 40 states have some form of anti-fusion. Note, Fusion and the Associational Rights of Minor Political Parties, 95 Colum. L. Rev. 683, 685 nn.13 & 14 (1995). Supporters of anti-fusion statutes stress that they lessen voter confusion by preventing a single candidate from appearing on the ballot representing the views and preferences of several different parties, and discourage frivolous or fraudulent candidacies which could jeopardize the fairness and integrity of the election process and the credibility and stability of the political system. Opponents respond that anti-fusion laws burden the associational rights of persons and parties who seek to participate in the political process by influencing the outcome of elections and positions taken by candidates. They submit that fusion allows minor political parties to participate in the electoral process by "co-nominating" candidates with viable chances of winning.

Indiana's election laws include "anti-fusion" statutes. Indiana Code 3-8-7-21 requires any candidate who has been nominated by two parties for the same office to elect, no later than noon on August 1 of the year in which the election is held, which of the nominations the candidate will accept. The election must be in writing, signed, notarized, and filed with the circuit court clerk of the county in which the nomination was made. If the candidate does not make and file an election as required by this law, I.C. 3-8-7-22 states that the circuit court clerk "shall make the election for the person. Preference shall be given to the nomination made by convention." These statutes have not yet been challenged in and interpreted by any court.

The relevant facts in this case are undisputed. In February of 1996, Robbin Stewart filed his declaration of candidacy for a seat on the Center Township board as a Republican. On May 7, 1996, Stewart won the Republican primary. One week earlier at the Libertarian Party convention, however, Stewart also received that party's nomination for the same office, which he accepted. Stewart had not informed or sought the blessing of the Marion County Republican Party to seek or accept the nomination of the Libertarian Party. At the time of the primary neither the voters nor the officers of the Republican Party knew that Stewart had already accepted the Libertarian Party's nomination. Upon learning that he refused to choose the Republican Party's nomination, the Marion County Republican Party chairman withdrew the party's support of Stewart's candidacy "as it no longer believes that Mr. Robbin Stewart represents the party's ideologies and preferences."

Because Stewart failed to elect between his nominations before August 1st at noon, the Marion County clerk made the election for him to be the Libertarian candidate. I.C. 3-8-7-22 provides that a nomination by convention is preferred to one by primary; the Libertarians nominated Stewart at a convention, while the Republicans nominated him by primary. As a result of Stewart's failure to decide and the clerk's election for Stewart, the Marion County Republican Party was left without a candidate for the Center Township board because the time for filling such a vacancy had elapsed.

After Stewart refused to comply with the Indiana anti-fusion law requiring him to choose one of the parties' nominations by August 1st, he sued the Marion County clerk of circuit court and others *fn2 alleging that Indiana's ban on fusion abridges his First Amendment rights to political association and Fourteenth Amendment equal protection rights. Stewart sought preliminary and permanent injunctions from printing his name on the official ballot as a candidate for the Libertarian Party but not the Republican Party. He also sought a declaratory judgment that ...


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