Partisan Concerns Don’t Outweigh Voters’ Rights

     CHICAGO (CN) – Indiana’s “partisan balance” method for electing judges to Marion County court, allowing the major parties to nominate half of the candidates, is unconstitutional, the Seventh Circuit ruled.
     Indiana Code § 33-33-49-13, also known as the Partisan Balance Statute, establishes a unique system for electing judges to Marion Superior Court in Marion County, Indiana.
     Under this system, primary election voters do not vote for as many candidates as there are persons to be elected to office in the general election.
     Instead, the Democratic and Republican parties nominate the candidates for half of the eligible seats on the 32-seat Marion Superior Court – eight seats each.
     This system effectively makes it impossible for a minor-party candidate to make it on the general election ballot. In 40 years, there have been only two elections where a minor-party candidate made it past the primary.
     “Thus, in every election since the State adopted the Partisan Balance Statute, the Republican and Democratic parties have each nominated candidates for half of the open seats on the Marion Superior Court. In every general election, all of the Republican and Democratic nominees were elected,” U.S. District Judge Theresa Springmann said, writing for the three-judge panel.
     Common Cause Indiana, represented by the American Civil Liberties Union of Indiana, challenged the law’s constitutionality in November 2012.
     It won a permanent injunction from a federal judge, and the Seventh Circuit affirmed Wednesday that the law is unconstitutional.
     “When an election law reduces or forecloses the opportunity for electoral choice, it restricts a market where a voter might effectively and meaningfully exercise his choice between competing ideas or candidates, and thus severely burdens the right to vote,” Springmann said.
     Springmann’s opinion was joined by Circuit Judges Ilana Rovner, and Michael Kanne.
     Indiana argued that there is no constitutional right to a contested election, or the right to vote for any party for every available seat in an election.
     But the Seventh Circuit disagreed given the restrictions the statute places on voters’ freedom of choice.
     “When a voter’s lack of electoral choice in an election is the consequence of electoral politics and private decisions without government interference, it is merely a function of the marketplace at work,” Springmann said. “However, where the electoral scheme interferes with the marketplace by restricting the number of candidates a party may nominate, and thus hinders electoral choice by which voters would have the opportunity to choose between competing alternatives that would have otherwise existed, the State has severely burdened the voter’s ability to cast a meaningful and effective vote.”
     The court also rejected the state’s contention that the statute promotes public confidence in the impartiality of the law by preventing one party from sweeping all of the seats.
     Springmann said there was no “evidence that a litigant complained of bias or prejudice on the part of a judge based upon party affiliation.”
     “We disagree that partisan balance in the context of judicial elections improves the public’s confidence in an impartial judiciary. The emphasis on partisan balance could just as easily damage public confidence in the impartiality of the court,” the 32-page opinion concluded.
     ACLU of Indiana legal director Ken Falk said in a statement, “There is no more important right in our Constitution than that of exercising a meaningful vote. We are very pleased that the Court’s decision forcefully reaffirms that right.”

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