Saturday, October 04, 2003

** draft only, not yet filed **
update: this never was filed. election day was interesting, as barnes' signs were confiscated. litigation to follow.


BRIAN MAJORS et al., Plaintiff-Appellants, v.MARSHA ABELL et al., Defendants-Appellees. )))))))))) Case No. 02-2204Hon. William J. Bauer, Senior United States Circuit Judge, and Hon. Richard J. Posner and Hon. Frank H. Easterbrook, United States Circuit Judges

Come now plaintiffs by counsel and for their motion for a temporary injunction state as follows.
This is a motion for a temporary restraining order and temporary injunction, seeking to prohibit defendants from banning protected core political speech prior to this court’s ruling on the merits.
The 2003 campaign season is in full swing, with the election scheduled for the first week in November. Even if this court rules prior to the election, each day and hour the political speech ban remains in effect causes irreparable harm, doubly so because this court has barred recovery of damages by those who have been damaged.
We learned yesterday that an unknown member of the general public is preparing and is about to distribute political signs which do not have the disclaimer required under IC 3–9-3-2.5. These signs pertain to the City of Lawrence municipal elections. Lawrence is an incorporated municipality within Marion County Indiana. The signs expressly advocate the defeat of an incumbent, by featuring the name of the incumbent within a red circle and bar sinister, the international “do not” symbol.
Through an intermediary, the author contacted undersigned counsel for advice. I explained that while the United States Supreme Court has ruled such speech is constitutionally protected, the Indiana Supreme Court disagrees, and this court has not yet ruled, so there is some risk of retaliation and, or, prosecution. Apparently they intend to proceed. Other speakers, Libertarian candidates associated with Majors, are putting disclaimers on their literature, including Internet speech, because of the ongoing threat of prosecution or retaliation and the environment of fear, uncertainty and doubt.
The relief sought is to bar any enforcement under Ind. Code 3-9-3-2.5 of possible violations prior to this court’s final judgment, and injunction of any further distribution of the disclaimer brochure. That brochure has been reissued, slightly modified, in a way that does not even track the Indiana Supreme Court’s narrowing construction in footnote 11.
In October 1998 plaintiffs filed suit seeking injunctive relief. After negotiations failed to have defendants voluntarily cease their illegal unconstitutional conduct while the case was in progress, plaintiffs moved for injunction. Years later, the district court erroneously ruled that plaintiffs lacked a justiciable controversy and therefore had no likelihood of success on the merits. The 1998, 1999, 2000, 2001, 2002 elections and 2003 primary elections were held under these conditions of censorship instead of free and open elections as required by federal and state constitutions.
The district court and this court denied injunctive relief pending appeal without explanation. This court’s opinion issued in January reversed dismissal, finding that plaintiffs had a justiciable controversy, postponed resolution on the merits, but did not rule on the appeal of denial of preliminary injunction.
Under normal circumstances, once the circuit court has ruled denying preliminary injunction pending appeal, no further motion seeking the same relief would be in order. Here however, the reversal on justiciability is a sufficient change in the status of the case to warrant a new motion. Also, three new rulings provide substantial guidance as to the issues of law at stake in this motion. These are, this circuit’s ruling that the case is justiciable and that plaintiffs have some likelihood of success on the merits, the Indiana Supreme Court’s opinion construing the statute, and the United States Supreme Court’s ruling in Watchtower v. Stratton upholding and expanding its earlier decisions on this issue. Majors v. Abell, 317 F.3d 719, 725 (7th Cir. 2003), 792 N.E.2d 22, 30 (Ind. 2003.)
The standard for injunctive relief, when there is some threshold showing of likelihood of success on the merits and irreparable harm, involves balancing harm to plaintiffs against harm to defendants, weighing of the likelihood of success, and consideration of the public interest.
Certainty of success on the merits is not required for the issuance of preliminary injunctive relief to avoid irreparable harm. Nor is this motion intended to resolve the merits. A decision on the merits will be issued in due course, and this Court has a reputation for promptness. The intent is to limit and reduce the irreparable harm to the 2003 general election.
The threshold of irreparable harm and some likelihood of success is easily met here.
But if instead as the plaintiffs argue the statute reaches all persons, then it is a blanket prohibition of anonymous campaign-related speech … and thus puts a crimp in political speech by exposing persons who want to express themselves for or against a particular candidate to the risk of retaliation. The McIntyre decision holds that government cannot forbid the distribution of anonymous campaign literature. Id. at 357; see also Talley v. California, 362 U. S. 60, 64-65 (1960). Majors v. Abell, 317 F.3d 719 (7th Cir. 2003).

Censorship of political campaign speech, imperiling the integrity of the election process, creating the appearance of corruption, is the sort of damage that, even for an hour or a day, constitutes irreparable harm, under the Elrod v. Burns standard often relied on by this court.
The greater the certainty of eventual success on the merits, the more compelling is the case for preliminary relief. Where four controlling opinions of the U.S. Supreme Court govern the merits, there should be little doubt of the outcome, but here there is some doubt. There is also the unlikely but non-zero possibility that in McConnell v FEC, the court may reverse 43 years of protecting anonymous campaign speech.
In its earlier opinion, this court indicated that it would probably not rule in accordance with Supreme Court rulings on anonymity or campaign speech if the statute were narrowly construed.
And the Indiana Supreme Court, at least for the purposes of whether to issue a narrowing construction in opposition to the plain meaning of the statute, found the statute not unconstitutional under McIntyre, and declined to analyze or apply other controlling cases such as Talley, Buckley v. ACLF and Watchtower,

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