Democrats push to be on Marion County judge ballot

Dave Stafford for www.theindianalawyer.com

Marion County Superior judge elections ruled unconstitutional this month should not proceed Nov. 4 as the current ballot is drawn, according to court pleadings from candidates who were left out of the general election.

“We’re going to keep pressing,” said Greg Bowes, who along with fellow Democrat Christopher K. Starkey has asked Chief Judge Richard Young of the Southern District of Indiana for a preliminary injunctionordering their names be placed on the ballot in light of Young’s ruling Oct. 9 in Common Cause v. Indiana Secretary of State, et al., 1:12-CV-1603. Young has not yet ruled on the injunction request.

“This is a really serious right we’re trying to vindicate here,” said Bowes, a private practitioner and former Marion County assessor and city-county councilman. “We’re pressing as hard as we can as soon as we can before this election happens.”

Bowes, Starkey and David R. Hennessy were candidates for Marion Superior judge in May’s Democratic primary but were not among the top-eight vote recipients. Because the election statute limits general election ballot access to eight Democrats and eight Republicans for 16 judgeships evenly divided among parties, the three aren’t on the ballot. Bowes and Starkey, representing themselves, argue the three should be, and that Young’s ruling bolsters the federal suit they filed in August seeking ballot access.

While Young declared the Marion Superior judicial election scheme unconstitutional, he stayed the order until after the matter is ruled on by the 7th Circuit Court of Appeals, so the ruling doesn’t affect the Nov. 4 race. Young ruled the judicial election statute doesn’t provide voters a meaningful choice in the general election.

Bowes argues that staying the ruling also will violate his First Amendment rights, because each party should be allowed to nominate a candidate for each contested judgeship under Young’s ruling. Bowes argues that if injunctive relief isn’t issued, the Nov. 4 vote should be invalidated and a special election conducted.

“How can you have an election under an unconstitutional statute?” Bowes said.

The motion for injunction asserts that based on Marion County voting patterns, 11 Democratic candidates likely would win more votes than the eight Republican candidates, if Bowes, Hennessy and Starkey were placed on the ballot. Therefore, if additional candidates aren’t on the ballot, U.S. Supreme Court precedent suggests relief is warranted, Bowes said.

“If these 16 judges get elected under a law that’s unconstitutional,” he said, “any of those judges would have a constitutional challenge to any action they take” basing the assertion on Clark v. Roemer, 500 U.S. 646, 654 (U.S. 1991).

Bowes acknowledged the injunction request may be a long shot with now less than two weeks before the election, but he said it was important for candidates left off the general election ballot to preserve their rights in light of Young’s ruling and reassert claims for ballot access.

State defendants have not yet formally responded to the injunction request. The case is Gregory Bowes and Christopher K. Starkey v. Indiana Secretary of State, et al., 1:14-CV-1322.