Argued February 12, 2014.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12-cv-01502 -- Sarah Evans Barker, Judge.
For Zachary Mulholland, Plaintiff - Appellant: Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN; Gavin M. Rose, Aclu of Indiana, Indianapolis, IN.
For Marion County Election Board, Defendant - Appellee: Bryan H. Babb, Bose Mckinney & Evans, Llp, Indianapolis, IN.
Before POSNER, FLAUM, and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge.
The two major political parties in Marion County, Indiana, both follow a long tradition of " slating" their preferred candidates in primary elections. Those candidates have the financial and organizational backing of party leadership, and the parties therefore have an interest in preventing confusion among voters as to who supports whom. Accordingly, Indiana's " anti-slating" statute makes it a crime to distribute a list endorsing multiple political candidates during a primary election unless all such candidates have given their written consent. See Ind. Code § 3-14-1-2(a). More than a decade ago, the anti-slating law was challenged as violating the First Amendment. The plaintiff in tat case won a federal injunction against the statute's future enforcement and a consent decree in which all parties stipulated and the court declared that the law was facially unconstitutional. Ogden v. Marendt, No. 1:03-cv-415 (S.D. Ind. Aug. 29, 2003), EFC No. 40.
One of the defendants then was the same defendant before us today: the Marion County Election Board. Having apparently changed its views on the statute's validity, the Board enforced it against a candidate running for state representative in the 2012 primary. That candidate, plaintiff Zachary Mulholland, has sued to enjoin further Election Board proceedings related to the slating violation and to enjoin the statute's future enforcement. The district court dismissed the case under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), citing a still-ongoing Election Board investigation. We reverse for two reasons. First, the Election Board's investigation is too preliminary a proceeding to warrant Younger abstention, at least in the wake of Sprint Communs., Inc. v. Jacobs, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013). Second, even if Younger abstention were theoretically available after Sprint, the previous final federal judgment against the defendant Election Board holding the same statute facially unconstitutional would still amount to an extraordinary circumstance making Younger abstention inappropriate.
I. Factual and Procedural Background
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. Ind. Code § 3-6-5-2. 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 ...