Opinion
Cause No. IP00-1169-C-H/G
August 3, 2000.
ENTRY ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Marion County Committee of the Indiana Democratic Party seeks a preliminary injunction allowing it an opportunity, two months after the applicable deadline has passed, to name candidates for two seats to the Indiana House of Representatives in the November election. No Democratic candidates were selected for those two seats in the primary election in May 2000. Under Indiana law, the deadline for filling such vacancies after the primary was June 6, 2000. See Ind. Code § 3-13-1-7(a). Plaintiff contends the deadline is facially unconstitutional because it applies only to the Democratic and Republican parties and not to the Libertarian Party and other smaller parties, thus discriminating in favor of those smaller parties and against the two major parties.
The court held a hearing on the preliminary injunction motion on August 1, 2000. As explained in detail below, the court denies plaintiff's motion for a preliminary injunction. Plaintiff is unlikely to succeed on the merits of its claim. The Constitution allows the state reasonable flexibility to establish different processes and timetables for different parties to select their candidates, depending on the levels of public support demonstrated by those parties. Viewed as part of Indiana ballot access laws in their entirety, the deadline in Ind. Code § 3-13-1-7(a) does not impose a significant burden on plaintiff's ability to select candidates for the general election. This entry sets forth the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52 and 65.
Findings of Fact and the Statutory Provisions
By statute, the Democratic and Republican parties are required to select candidates for election to the Indiana legislature by conducting primary elections. The primary requirement is based on the party's nominee having received more than ten percent of the total vote in the most recent election for Secretary of State. See Ind. Code §§ 3-10-1-2 § 3-10-1-4(a)(4).
A primary election does not always result in selection of a candidate for a major party. This can happen, for example, if no candidate enters the primary for a particular race. Indiana law allows both the Democratic and Republican parties, and any other party that received ten percent or more of the vote in the last Secretary of State's race, to name additional candidates to the list of the party's nominees after the primary election where no candidate was selected in the primary for the particular race. The major parties may fill such vacancies by having a nominating caucus of precinct "committeemen." See Ind. Code §§ 3- 13-1-5 3-13-1-7(a).
Before 1999, parties required to nominate candidates for the General Assembly in primary elections (i.e., the two major parties) had until August 1st to fill post-primary vacancies in legislative races. Ind. Code § 3-13-1-7 (1998). Before 1999, smaller political parties that nominated by convention had until August 4th to fill candidate vacancies for the General Assembly on the November general election ballot.
In 1999, the Indiana General Assembly amended Ind. Code § 3-13-1-7 to shorten the time to fill vacancies allowed to political parties required to select their state legislative candidates by primary election. The new deadline, which now applies only to the Democratic and Republican parties, is 35 days after the primary election. See Ind. Code § 3-13-1-7(a) (2000). The deadline this year was June 6, 2000.
The comparable deadline is different for smaller parties. Pursuant to Ind. Code § 3-8-4-10(a), a political party whose nominee received at least two percent but less than ten percent of the votes in the last election for Secretary of State must nominate that party's candidates for seats in the Indiana General Assembly at a state convention rather than in a primary election. State law does not specify a deadline for holding the convention. However, political parties in this category have until August 4th to fill candidate vacancies for the General Assembly on the November ballot. See Ind. Code § 3-13-1-20(a).
The defendants in this case include the Indiana Election Commission (and its four members, sued in their official capacities) and the Secretary of State. These defendants are each responsible for some part in preparing the general election ballot. Each must comply with and enforce the deadline in Ind. Code § 3- 13-1-7(a). The other defendants are the Marion County Election Board and its members, who include the Clerk of the Marion Circuit Court. The county defendants are charged with preparing the general election ballot for use in Marion County, Indiana. The election division of the Secretary of State's office is charged with certifying legislative candidates to county election boards no later than August 20, 2000. See Ind. Code § 3-8-7-12(b).
Plaintiff filled some post-primary vacancies for legislative races before the June 6th deadline. Other Democratic and Republican candidates were also added to the ballot by the June 6th deadline. However, plaintiff did not submit nominations by that deadline for Indiana House Districts 90 and 93.
Plaintiff now seeks an opportunity to try to fill those vacancies after the statutory deadline for major parties has passed, but within the time allowed for smaller parties to fill vacancies. Helen Fox Daley has filed a Declaration of Candidacy and Written Consent to Fill A Ballot Vacancy with the defendant Election Commission to be the plaintiff's nominee in House District 90 at the general election to be held on November 7, 2000. Plaintiff has issued notice of a caucus, pursuant to Ind. Code § 3-13-1-5 and Ind. Code § 3-13-1-7(a), to be held at 5:30 p.m. on August 3, 2000, in order to comply with the statutory procedure relating to the selection of nominees in Indiana House Districts 90 and 93.
The State defendants, if a challenge were brought, could decide and presumably would decide to enforce Indiana law and would not allow any candidate for the General Assembly nominated by plaintiff after June 6, 2000 to be on the ballot for the November 7, 2000 general election because the nomination would have been received too late.
Discussion
This action is brought pursuant to 42 U.S.C. § 1983. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343(a)(3). The Seventh Circuit has established the following standard for deciding motions for preliminary injunctions:
As a threshold matter, a party seeking a preliminary injunction must demonstrate (1) some likelihood of succeeding on the merits, and (2) that it has "no adequate remedy at law" and will suffer "irreparable harm" if preliminary relief is denied. If the moving party cannot establish either of these prerequisites, a court's inquiry is over and the injunction must be denied. If, however, the moving party clears both thresholds, the court must then consider: (3) the irreparable harm the non-moving party will suffer if preliminary relief is granted, balancing that harm against the irreparable harm to the moving party if relief is denied; and (4) the public interest, meaning the consequences of granting or denying the injunction to non-parties.
The court, sitting as would a chancellor in equity, then "weighs" all four factors in deciding whether to grant the injunction, seeking at all times to "minimize the costs of being mistaken." We call this process the "sliding scale" approach: the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side. Abbott Laboratories v. Mead Johnson Co., 971 F.2d 6, 11-12 (7th Cir. 1992) (citations omitted).
In this case the decisive factor is the likelihood of success on the merits.
I. Likelihood of Success on the Merits
Plaintiff has not shown a reasonable likelihood of succeeding on the merits of its claim. Ballot access laws are essential and often complex elements of state election laws. They are also a perennial source of constitutional litigation. Case reporters in recent decades are full of cases in which independent candidates and smaller political parties have complained that state legislatures dominated by the two major parties have violated their constitutional rights and favored the two major parties.
This case presents a different and somewhat startling claim. The Marion County Democratic Committee complains that the Indiana legislature has written a law that discriminates unconstitutionally against the Democratic and Republican parties and in favor of the Libertarian Party and other smaller parties.
The specific provision in question, Ind. Code § 3-13-1-7(a), provides a mechanism for major parties to fill candidate vacancies after a primary election. The statute addresses the problem arising from the fact that primary elections (held in May under current Indiana law) do not always attract candidates for every race. Indiana law gives parties that conduct primary elections a period of time after the primary to select candidates to fill those vacant positions on the party tickets. Indiana law treats parties differently in this respect. The different treatment depends on how those parties are classified for purposes of determining the method of selecting candidates.
Any party whose candidate for Secretary of State received ten percent or more of the votes in the last statewide election is required to select its legislative candidates in a primary election. For those parties (currently only the Democratic and Republican parties), Ind. Code § 3-13-1-7(a) fixes the deadline for filling a vacancy at 35 days after the primary election.
Any party whose candidate for Secretary of State received between two percent and ten percent of the votes in the last statewide election must select its legislative candidates in a party convention. State law sets no specific deadline for such parties' conventions, but the last day for filling a vacancy left by a convention is August 4th, roughly two months after the deadline for the two major parties. See Ind. Code § 3-13-1-20(c).
As plaintiff views the situation, all parties whose candidate received at least two percent in the last election for Secretary of State are automatically entitled to have their nominated candidates included on the general election ballot. All such parties are similarly situated with respect to filling candidate vacancies, plaintiff contends, so the earlier deadline for filling vacancies places it at a disadvantage as compared to the smaller parties that are subject to the later deadline. This different treatment, says plaintiff, violates its First Amendment and Fourteenth Amendment rights and those of its members and potential candidates.
Plaintiff contends that Ind. Code § 3-13-1-7(a) is subject to strict scrutiny, citing Norman v. Reed, 502 U.S. 279, 288-89 (1992) ("severe restriction" on minor party's access to ballot must be "narrowly drawn to advance a state interest of compelling importance"); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 222 (1989) (striking down state law banning official party endorsements of candidates in primaries); Swamp v. Kennedy, 950 F.2d 383, 385 (7th Cir. 1991) (upholding state law prohibiting so-called "fusion" candidacies in which one party names another party's nominee as its own nominee for the same office).
The court disagrees. In recent years, the Supreme Court has not applied strict scrutiny (which is strict in theory and almost always fatal in practice) to similar types of ballot access regulation, such as deadlines for declaring candidacies or for nominating candidates. The Court has instead developed and applied a sliding scale test that weighs the severity of any burden on constitutional rights against the state interests served by those rights. That is clear from the cited passage in Norman v. Reed, which subjects only "severe" restrictions to the requirement of a "compelling state interest." 502 U.S. at 289. "States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (upholding state ban on "fusion" tickets).
Such regulations are not subject to strict constitutional scrutiny absent either some evident invidious discrimination or proof that the regulations impose a severe burden on the exercise of political freedoms. As the Supreme Court explained in Timmons:
When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the "`character and magnitude'" of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. [Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).] Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's "`important regulatory interests'" will usually be enough to justify "`reasonable, nondiscriminatory restrictions.'" Burdick, supra, at 434 (quoting Anderson, supra, at 788); Norman, supra, at 288-289 (requiring "corresponding interest sufficiently weighty to justify the limitation"). No bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms. [Storer v. Brown, 415 U.S. 724, 730 (1974)] ("[N]o litmus-paper test . . . separat[es] those restrictions that are valid from those that are invidious. . . . The rule is not self-executing and is no substitute for the hard judgments that must be made").520 U.S. at 358-59. In other words, the constitutional test is a kind of sliding scale in which the court must carefully measure the burdens a state regulation imposes on constitutional rights and the state interests that may justify the regulation. See also Hall v. Simcox, 766 F.2d 1171, 1174 (7th Cir. 1985) (rejecting strict scrutiny standard and upholding Indiana law requiring minor parties to gather petitions signed by two percent of voters).
A. State Power to Regulate Different Classes of Political Parties Differently
The Supreme Court's cases evaluating ballot access laws show that states may treat different classes of political parties differently based on their track records of public support. For example, the Supreme Court has upheld ballot access laws that require smaller parties and independent candidates to show some modicum of public support through voter signatures on petitions, while allowing larger parties to gain ballot access based on demonstrated support in the last election. See American Party of Texas v. White, 415 U.S. 767, 781-83 (1974); Jenness v. Fortson, 403 U.S. 431, 442 (1971) (upholding requirement that minor party obtain signatures of five percent of eligible voters as condition of appearing on ballot). Still, states must provide reasonable paths for new and smaller political parties to gain ballot access. See Anderson v. Celebrezze, 460 U.S. at 806 (striking down restrictions on independent candidacy for President); Williams v. Rhodes, 393 U.S. 23, 34 (1968) (striking down state laws with cumulative effect of denying smaller parties access to the ballot).
A state may regulate different classes of parties differently, and not every difference in their treatment amounts to a constitutional violation, or is even subject to strict constitutional scrutiny. Such differences are subject to careful review of the extent of the burdens imposed on different parties and the state interests that may justify them.
B. Burdens Imposed on Major Political Parties Under Section 3-13-1-7(a)
When gauging the burden a state imposes by restricting ballot access, the court's task is not to put a single provision under a legal microscope and to consider it in isolation. Instead, the court must evaluate the state's scheme of ballot access in its entirety. See Jenness v. Fortson, 403 U.S. at 438-39 (upholding state's ballot access laws in light of overall effects); Williams v. Rhodes, 393 U.S. at 34 (striking down state's ballot access laws based on cumulative restrictive effects); Wood v. Meadows, 207 F.3d 708, 711 (4th Cir. 2000) (upholding state law requiring independent candidates to file their nominating petitions on same day as major party primaries); Libertarian Party of Washington v. Munro, 31 F.3d 759, 761-62 (9th Cir. 1994); Hagelin for President Committee of Kansas v. Graves, 25 F.3d 956, 961 (10th Cir. 1994); Hall v. Simcox, 766 F.2d at 1174; Libertarian Party v. Bond, 764 F.2d 538, 541 (8th Cir. 1985). Thus, while plaintiff has an important constitutional interest in selecting candidates who represent it in a general election, see California Democratic Party v. Jones, ___ U.S. ___, ___, 120 S.Ct. 2402, 2408-10 (2000), the burden imposed by Section 3-13-1-7(a) must be viewed as merely one part of the larger statutory scheme that requires large parties to select candidates through a primary held in early May.
From that perspective, Indiana's new five-week deadline for major parties to fill post-primary vacancies does not impose a severe burden on plaintiff. First, of course, plaintiff's selected candidate is automatically entitled to a position on the general election ballot. Second, plaintiff had ample opportunity to nominate a candidate through the primary election itself, which is the principal method mandated by Indiana law for the major parties to select their nominees. Indiana has provided the vacancy-filling procedure in Section 3-13-1-7(a) as a kind of backstop where the primary election fails. The net effect of the provision is simply to extend by five weeks the deadline for the major parties to select their candidates.
There is no evidence that this five-week window is unreasonably short. Both major parties managed to complete the process within the deadline in at least some legislative races. Moreover, if no candidate has entered a particular race in a primary, the party should recognize the vacancy long before the primary. See Ind. Code § 3-8-2-4(a) (primary candidates must file no later than 74 days before primary). As a result, the party actually has more than fifteen weeks after that filing deadline passes to recruit and nominate a candidate in a caucus after the primary.
American Party of Texas shows that a state may insist that a major party nominate its candidates in a primary election. 415 U.S. at 781 (it is "too plain for argument" that a state may require major parties to select candidates in primaries), quoted in California Democratic Party v. Jones, 120 S.Ct. at 2407. Nothing in the Court's decisions or in the Constitution suggests that a state imposing such a requirement is also required to provide the backstop of a separate post-primary procedure for filling vacancies. Cf.
Libertarian Party of Washington v. Munro, 31 F.3d at 765 (upholding early deadline for minor party candidates without vacancy-filling procedure even though major parties had later deadline plus an extra week to fill vacancies). Viewing Indiana's ballot access regulations in their entirety, it is difficult to describe aspects of that extra opportunity to fill vacancies as imposing a severe burden on plaintiff.
The court expresses no views on the special provisions for filling vacancies caused by death, withdrawal, disqualification, or certain court orders. See Ind. Code § 3-13-1-7(c), which provides that such vacancies may be filled much closer to the election.
The fact that a law imposes a relatively minor burden on a party or candidate does not justify, however, imposing even a minor burden in a discriminatory fashion on parties and candidates otherwise similarly situated. The sliding scale requires less rigorous scrutiny of "reasonable, nondiscriminatory restrictions." See Burdick, 504 U.S. at 434 (emphasis added), quoting Anderson, 460 U.S. at 788.
Nevertheless, the court must look at the practical extent of any burden when weighing the burden against the state's interests. See Timmons, 520 U.S. at 358; Anderson, 460 U.S. at 788-89. The five-week window for filling vacancies is a reasonable provision, and the State's differential treatment of large and small political parties is not invidiously discriminatory in light of the state interests that support classifying political parties according to past electoral support and the extensive body of case law upholding such differential treatment. Such parties are not similarly situated for purposes of evaluating ballot access procedures and requirements.
C. State Interests
The central issue in this case is whether Indiana has offered sufficient justifications for imposing different deadlines for final candidate nominations on political parties with different levels of established public support. Indiana has asserted several interests in requiring the major parties to act more quickly than smaller parties to fill vacancies left after the principal method for selecting candidates has been completed:
Early in an election year, the minor party or independent candidate is confronted with organizational obstacles that generally far exceed those faced by major party candidates. "Volunteers are more difficult to recruit and retain, media publicity and campaign contributions are more difficult to secure, and voters are less interested in the campaign." Anderson, 460 U.S. at 792. Moreover, popular support for minor party and independent candidates often does not arise until the major party candidates have already been nominated and the election issues have been framed for the electorate. As the Supreme Court reasoned:
[s]ince the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected group will rarely if ever be a cohesive or identifiable group until a few months before the election. Indeed, several important third-party candidacies in American history were launched after the two major parties staked out their positions and selected their nominees. . . .
Anderson, 460 U.S. at 792-93.
Thus, early major party deadlines serve the interests of democracy by providing the voters with early notice of their major party choices and by framing the relevant election issues for the voters at a time when they may still seek alternative candidates. Late minor party deadlines likewise serve the interests of democracy by enabling an alternative to enter the field if the electorate is dissatisfied with their major party choices. Furthermore, unlike the minor parties, the major parties know in advance the exact date in early May when primaries will be conducted. Thus, they are certain to have early notice of post-primary vacancies. Conversely, there are no statutorily mandated convention dates and lack of early voter interest often precludes small party candidates from garnering enough signatures to nominate through petition until late in an election year. As such, the minor parties are unlikely to become aware of post-nomination ballot vacancies until late in the election year. State Def. Br. at 11-12.
The state argues further that early identification of the major party candidates allows more time for the electorate "to accumulate and evaluate all available information when selecting an office holder," and fosters "vigorous debate and campaigning which, in turn, again serves the purpose of educating the electorate." Id. at 17.
These asserted interests substantially reinforce the valid interests served by requiring plaintiff to participate in a May primary. In effect, the 1999 amendment moving up the deadline for filling post-primary vacancies is consistent-in terms of policy and logic-with the early deadline the state has set for the major parties to select their candidates in a primary. Plaintiff does not suggest that its rights are violated by requiring it to conduct its nomination by primary long before smaller parties must select their candidates, and the court is not aware of any authority to that effect. If Indiana can require the early primary for the major parties, and if Indiana is not required to create any mechanism at all for filling post-primary vacancies, it is difficult to see why Indiana cannot create such a mechanism with a short but reasonable deadline that still requires the major parties to complete the selection of their candidates before smaller parties must complete theirs.
The opportunity to fill post-primary vacancies merely extends by five weeks the major parties' deadline for final candidate selection. The logic of plaintiff's discrimination argument seems to extend to the conclusion that the Constitution requires that all parties, large and small, have the same deadline for final candidate selection. Although that conclusion may have some intuitive appeal in terms of equal treatment, it is not consistent with the case law. The parties have not identified any case suggesting that the First and Fourteenth Amendments prohibit Indiana from requiring the major political parties to select their candidates-regardless of the mechanism-before the deadline for minor parties and independent candidates.
In fact, Indiana's requirement that the major parties complete their candidate selection earlier than other parties complete theirs is consistent with the Supreme Court's and other federal courts' decisions striking down early deadlines for independent and third party candidates. In Anderson v. Celebrezze, the Supreme Court struck down an Ohio law requiring an independent candidate for President to file a statement of candidacy and nominating petition in March in order to appear on the ballot in November. 460 U.S. at 806. Even though the candidates of political parties also had to file in March to participate in the party primary, the Court reasoned that the different situations of major party candidates and independent candidates required different deadlines. Id. at 799-801. In view of the Court's reasoning, a State could reasonably conclude that those differences allow it to require major parties to identify candidates earlier than minor parties or independent candidates.
Some readers of Anderson might even detect on the legal horizon the possibility that the Court might require the state to impose such requirements so that voters and minor parties have the opportunity to "react" to the candidates selected by the major parties. In fact, the Fourth Circuit reached that conclusion in Cromer v. South Carolina, 917 F.2d 819 (4th Cir. 1990). South Carolina law required all candidates for the state legislature, including independent candidates, to file a statement of candidacy by the March 30th before the November general election. 917 F.2d at 821. The Fourth Circuit held that the state's asserted interests in requiring all candidates-primary candidates and independents alike-to file declarations of candidacy at the same time flunked the sliding-scale test applied in Anderson. 917 F.2d at 824-25.
A dissenting judge argued that the majority decision in Cromer discriminated, in effect, against political parties by granting independent candidates, as a matter of federal constitutional law, a "right to react" to the major parties' decisions. Id. at 828 (Wilkinson, J., dissenting). He continued:
Finally, all of politics is reactive. Each party and every candidate would prefer to learn the identities of opponents and the potencies of issues before sallying forth into political conflict. For every potential candidate time may prove an advantage, not just for independents. It simply is not incumbent upon the states as a constitutional matter to provide the invariable time advantage to independent candidates that the court now requires on the basis of its perception of their nature. Certainly nothing in Anderson dictates any such conclusion. Id. at 830.
A number of other courts, including another panel of the Fourth Circuit, have agreed with Judge Wilkinson's position on this issue and have upheld filing deadlines for smaller parties and independent candidates that are not consistent with any supposed "right to react." See, e.g., Wood v. Meadows, 207 F.3d 708, 714-15 (4th Cir. 2000) (upholding petition deadline for independent candidates the same day as major party primaries); Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 75 (3d Cir. 1999) (same); Hagelin for President Committee v. Graves, 25 F.3d 956, 961-62 (10th Cir. 1994) (upholding filing deadline for independent candidates one day before major party primaries, and well before national conventions of major parties); Stevenson v. State Bd. of Elections, 794 F.2d 1176, 1178 (7th Cir. 1986) (Easterbrook, J., concurring) (the Constitution does not entitle candidate to enough time after major party primaries to get on the ballot as an independent). But see Whig Party v. Siegelman, 500 F. Supp. 1195, 1204 (N.D.Ala. 1980) (striking down minor party filing deadline 60 days before major parties could last substitute candidates).
The point of this discussion is not to suggest that Anderson in fact requires states to impose earlier deadlines on major parties than on minor parties and independent candidates. Instead, the point is that Anderson and Cromer and the cases cited in note 2 recognize important differences between the situations of the major parties and those of minor parties and independent candidates. A state may take those differences into account, even if might not always be required to do so. Cf. Anderson, 460 U.S. at 801 ("[s]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike."), quoting Jenness, 403 U.S. at 442.
The result may be different schedules and deadlines for different classes of political parties where those classes are differentiated in terms of levels of prior public support. A state may take those differences into account by imposing earlier deadlines on major parties in order to serve the purposes identified by the State defendants in this case and by the Supreme Court in Anderson, giving other parties and independent candidates at least some time to react to the major parties' choices of candidates.
Plaintiff responds to the asserted state interests by arguing that the parties' different methods of selecting candidates are irrelevant by the time the process reaches the vacancy-filling stage. At that point, says plaintiff, the Democratic, Republican, and Libertarian parties are all similarly situated. Each is entitled by law to have its chosen candidates on the ballot in the general election, so each should be entitled to fill any vacancy by an identical deadline. Based on this premise, plaintiff contends that the only legitimate state interest behind a vacancy-filling deadline is that the state needs to have reasonable time to prepare the ballots for the election.
The logistics of ballot preparation do not justify different final deadlines for different parties to select their candidates. If even one party can add a candidate as late as August 4th and still get on the November ballot, there is no apparent logistical reason why all parties could not do the same.
Plaintiff's argument, however, overlooks the state interests that justify an early primary. Those same interests justify the accelerated deadline for filling vacancies to complete the process. If a state can require the major parties to conduct their primaries three months before the last deadline for adding candidates to the general election, and plaintiff does not contend otherwise, then those same interests authorize the state to insist that the major parties' entire selection process, including the extra vacancy- filling process, be concluded well before the final deadline.
Plaintiff also contends there is not a shred of evidence to support the state's asserted rationale for the early deadline in terms of allowing minor parties to react to the results of major party primaries. The state is nor required to come forward with empirical evidence supporting its articulated interests in support of ballot access regulations. See Council of Alternative Political Parties v. Hooks, 179 F.3d at 78, citing Munro v. Socialist Workers Party, 479 U.S. 189, 194-96 (1986); Hagelin for President Committee, 25 F.3d at 961. In light of the case law discussed above, the court cannot say that giving third parties and independent candidates the opportunity to react to the major parties' selections is an illegitimate purpose, and Indiana's accelerated deadline serves that purpose.
As an expression of Realpolitik, plaintiff suggests that when Ind. Code § 3-13-1-7 was amended in 1999, a legislature consisting overwhelmingly, and perhaps exclusively, of Democrats and Republicans was unlikely to have been concerned with the "right to react" of minor parties and independent candidates. If Realpolitik is the basis of the discussion, however, it is at least equally improbable that the Democratic and Republican parties could seriously be portrayed as victims of invidious discrimination by that same legislature in favor of smaller parties like the Libertarian Party. "Constitutional adjudication and common sense are not at war with each other. . . ." American Party of Texas, 415 U.S. at 787. When viewed in its entirety, any suggestion that the Indiana ballot access scheme discriminates against the major parties would be absurd.
Plaintiff suggests, albeit also without evidence, that the real purpose for the amendment was to allow incumbent legislators who knew no opponent had been nominated in a primary to know at the beginning of the summer whether they would face any major party opponent in November or whether they could instead relax for the summer. The record here shows that the Republican and Democratic parties nominated a total of 184 candidates for the Indiana legislature in the May 2000 primary. In the general election, 100 House seats and 25 Senate seats are up for election. The total of 184 means that in more than half of those 125 legislative races (250-184=66), the primary produced a race in which one major party did not have any candidate. The reasons for this situation are beyond the scope of this case.
Plaintiff also scoffs at the idea that the accelerated deadline for filling vacancies serves any purpose of informing or educating voters about the candidates. There is no evidence that the Indiana Election Commission itself undertakes any effort to publicize the names of nominated candidates or takes other steps designed to "foster vigorous debate and campaigning." The State defendants' arguments do not depend on any such affirmative program by the Indiana Election Commission. Under Indiana law, the documents identifying candidates are matters of public record available for public inspection. See Ind. Code § 5-14- 3-3. The legislature and the commission can reasonably rely on parties' and candidates' self-interest, as well as the attention of the news media, to ensure that the identities of candidates become known so that there is an early opportunity for debate and campaigning.
In summary, Indiana has a legitimate interest in requiring large parties to complete their candidate selections within the reasonable time period established under Ind. Code § 3-13-1-7(a). The state interests are closely akin to the interests that justify requiring an early primary election for the Democratic and Republican parties. The five-week deadline is reasonable and not burdensome when the ballot access scheme is viewed in its entirety. In addition, given the clear constitutionality of a primary requirement, and viewing the ballot access laws in their entirety, the state's interests are sufficient to justify the different deadlines for different classes of political parties to complete their candidate selections. Accordingly, plaintiff has not shown a reasonable likelihood of prevailing on the merits of its claim that Ind. Code § 3-13- 1-7(a) is facially unconstitutional.
II. Other Elements of Injunctive Relief
Because the plaintiff has not shown it is reasonably likely to succeed on the merits of its claim, it is not entitled to a preliminary injunction. If the court were wrong in that determination, however, plaintiff would be entitled to a preliminary injunction because the other requirements for such relief would then all have been satisfied. Exclusion of an otherwise-qualified candidate from the ballot would amount to irreparable harm to plaintiff, its candidate, and its members. Injunctive relief would impose no significant burden on defendants as long as the candidate was nominated in time to prepare the ballots for the general election. The balance of harms would then weigh in favor of injunctive relief. In addition, if exclusion of a late-nominated candidate violated the Constitution, the public interest would favor an injunction adding such a candidate to the ballot.
For the foregoing reasons, the court denies plaintiff's motion for a preliminary injunction.
So ordered.