by Henry Alderfer, Contributor

Marion County. It is the hometown of the Indianapolis Colts, the author of this post, and a recent voter ID suit brought before the Supreme Court of the United States.  Last fall, the American Civil Liberties Union (ACLU) and Common Cause brought a suit in the Southern District of Indiana alleging the way Marion Superior Court judges are elected is unconstitutional.

The plaintiffs allege in the complaint that “The failure of Indiana law to permit registered voters in Marion County to cast a meaningful vote for all seats on the Marion Superior Court violates the First Amendment to the United States Constitution.”

The relevant law is codified under Indiana Code § 33-33-49-13, which provides that judges on the 36-judge Marion Superior Court—who serve six-year terms—are elected in two cycles: twenty seats are filled by election in 2012 and every six years thereafter; and sixteen seats are filled by election in 2014 and every six years thereafter. However, each of the major political parties—the Democratic and Republican parties—nominates, through primary elections, candidates to fill precisely half of the seats to be filled.

The real dinger is that no candidate for Marion Superior Court other than those nominated by the major political parties has qualified for the ballot at a general election in recent history. The plaintiffs contend that the general election therefore has “no significance whatsoever” because the ballot only contains the names of judges who will ultimately be elected.

As the complaint alleges, it appears that the only meaningful votes cast for Marion Superior Court are cast in the primary elections for the Democrats and Republicans. And even those voters can only really vote for half of the potential candidates, leaving some big questions as to whether voters in Marion County can cast a meaningful vote.

A registered voter who does not wish to vote in a primary election, who is ineligible to vote in a primary election under Indiana Code § 3-10-1-6, or who does not desire to affiliate him- or herself with either the Democratic party or the Republican party by voting in its primary election has absolutely no opportunity to cast a meaningful vote for the Marion Superior Court. Furthermore, even if a voter were to participate in the primary election, they would be unable to cast a meaningful ballot for half of the potential candidates.

According to Indiana Lawyer, the process of “slating” Marion County Superior judge races has drawn criticism, since each candidate who earned the respective local party’s endorsement on the primary ballot also contributed a specific amount to the local party before the slating convention that each party held before the primary. For Democrats, the contribution was $13,100; for Republicans, it was $12,000, according to a review of campaign contributions earlier this year by Indiana Lawyer.

The lawsuit has survived the initial pleadings stage. Chief Judge Richard Young of the United States District Court for the Southern District of Indiana wrote, “Although Indiana’s ballot access statute … has been found constitutionally adequate … the court is not convinced that the statute’s constitutionality with respect to a candidate’s access to the ballot applies here with equal force, where the claim is not ballot access, but whether a citizen’s vote in the general election matters.”


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