HORNING v. STATE OF INDIANA
Filing
14
ORDER ON MOTION TO DISMISS - Defendant's, the State of Indiana, including the Indiana Secretary of State, the Indiana Election Commission, the Indiana General Assembly and the Governor of Indiana, all in their official capacities, 7 Motion to Dismiss is GRANTED. This action shall be dismissed with prejudice. The Court shall enter judgment accordingly. (See Order.) Signed by Judge Larry J. McKinney on 3/4/2016. Copy sent to Plaintiff via US Mail. (GSO)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ANDREW M. HORNING,
Plaintiff,
vs.
STATE OF INDIANA including the
INDIANA SECRETARY OF STATE, in her
official capacity; members of the INDIANA
ELECTION COMMISSION, in their official
capacities; members of the INDIANA
GENERAL ASSEMBLY, in their official
capacities; and INDIANA GOVERNOR, in
his official capacity,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 2:15-cv-00284-LJM-MJD
ORDER ON MOTION TO DISMISS
Defendant, the State of Indiana, including the Indiana Secretary of State, the
Indiana Election Commission, the Indiana General Assembly and the Governor of
Indiana, all in their official capacities (collectively, “Indiana”), has moved to dismiss
Plaintiff Andrew M. Horning’s (“Horning’s”) Complaint in which he challenges the
nomination system of the State (the “Motion”). Dkt. No. 7. Indiana asserts that the major
political party (“MPP”) statute at issue is substantially similar to that upheld as
constitutional in American Party of Texas v. White, 415 U.S. 767 (1974), therefore,
Horning cannot state a claim as a matter of law. In addition, Indiana asserts that Horning
lacks standing because he cannot show a sufficiently concrete injury that is traceable to
any of the individuals or entities sued in their official capacities. Horning opposes the
Motion and contends that the Indiana MPP statute is substantially different from that in
American Party, and that he has standing because has been denied access to the State
Primary currently and as a non-MPP candidate in the past.
For the reasons stated herein, the Court GRANTS Indiana’s Motion to Dismiss.
I. FACTUAL BACKGROUND
Horning alleges that Indiana Code § 3-5-2-30 violates the equal protection clause
of the Fourteenth Amendment to the U.S. Constitution and Article I, Section 23 of the
Indiana Constitution because it creates “two unequal classes of citizens in terms of
political and electoral rights, powers, privileges and immunities.” Compl. Introduction.
Indiana Code § 3-5-2-30 states:
“Major political party” refers to:
(1) with respect to the state, either of the two (2) parties whose
nominees received the highest and second highest numbers of votes
statewide for secretary of state in the last election; or
(2) with respect to a political subdivision, either of the two (2) parties
whose nominees received the highest and second highest numbers
of votes in that political subdivision for secretary of state in the last
election.
Horning alleges that, by operation of this definition, under other statutes, he has been
barred from primary elections; “denied the special status, organizational and political
powers granted to only the MPPS;” and denied equal status as a candidate on the ballot.
Compl. ¶¶ C1-C7 (citing Ind. Code §§ 3-10-1-2, [3-]6-4.1-4, 3-12-10-2.1, 3-10-1-4, 3-131-5, 3-13-1-6, 3-6-1-15, 3-10-1-15). Horning claims he was harmed by operation of the
MPP statute because it required increased effort and personal cost to run as a non-MPP
candidate and he has routinely experienced public disrespect and derision as a “thirdparty” candidate. Compl. ¶ C7, C9-C11.
2
Horning requests that the Court enjoin Indiana from holding a tax-payer supported
primary election as set forth in Indiana Code § 3-10-1-2 and end MPP status as set forth
in Indiana Code § 3-5-2-30; declare these sections of the Indiana Code unconstitutional;
award any other injunctive and/or declaratory relief available; and award Horning his
costs, fees and reasonable expenses. Compl. ¶¶ D2-D5.
Indiana Code § 3-10-1-2 states: “Each political party whose nominee received at
least ten percent (10%) of the votes cast in the state for secretary of state at the last
election shall hold a primary election under this chapter to select nominees to be voted
for at the general election.”
The other statutes cited by Horning that he believes are biased in favor of MPPs
include: (a) the statute identifying the members of the state recount commission, which
includes “the state chairman of each of the major political parties,” and the secretary of
state, Ind. Code §§ 3-12-10-2.1 & 3-6-4.1-4 (explaining the nominating process for same
and limiting it to MPPs); (b) the statute identifying the primary election process for
selecting candidates for certain offices if the political party satisfies the requirement in
Indiana Code § 3-10-1-2, Ind. Code § 3-10-1-4; (c) the statute regarding the processes
for filing vacancies in legislative offices, which is an appointment in the case of an MPP,
but a special election in the case of a non-MPP, Ind. Code § 3-13-5-0.1; (d) the statutes
dealing with the powers of precinct committeemen, Ind. Code §§ 3-13-1-4, 3-13-1-5 & 313-1-6, and the lack of restrictions placed on same, Ind. Code § 3-6-1-15; and (e) the
statute regarding the type of primary election ballot required for each political party, which
Horning alleges makes “alternative candidates not just inconspicuous to voters, but also
of a lesser implied value.” Ind. Code § 3-10-1-15.
3
II. DISCUSSION
The Court must address Indiana’s standing argument first because it is a subject
matter issue. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct.
1197, 1202, 179 L.Ed.2d 159 (2011) (stating that “federal courts have an independent
obligation to ensure that they do not exceed the scope of their jurisdiction”). As a
jurisdictional requirement, Horning has the burden of proof. See Apex Digital, Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (citing Perry v. Vill. of Arlington
Heights, 186 F.3d 826, 829 (7th Cir. 1999)). In a facial challenge to jurisdiction, the Court
accepts all material allegations of the Complaint as true and draws all reasonable
inferences in favor of Horning. Id. at 443-44. However, to the extent that Indiana has
made a factual challenge to Horning's standing, the Court "may properly look beyond the
jurisdictional allegations of the complaint and view whatever evidence has been submitted
on the issue to determine whether in fact subject matter jurisdiction exists." Id. at 444
(quoting Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008) (further citations omitted)).
Standing is a three-part inquiry where Horning must adequately establish: (1) an injury in
fact that is a concrete and particularized invasion of a legally protected interest; (2)
causation; and (3) that the injury he complains of will be remedied by the relief he seeks.
Sprint Commc’ns Co. v. APPC Servs., Inc., 554 U.S. 269, 300 (2008) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Here, Indiana asserts that Horning’s claim that the MPP statute deprives him of
the ability to hold in a primary election is untrue because all political parties whose
candidate for secretary of state in the previous election received 10% or more of the votes
may hold a primary. Even if it is a deprivation, Indiana continues, there is no causal
4
connection between this harm and Horning’s status as a non-MPP candidate. Dkt. No. 8
at 6-7. Further, Indiana argues that even if the Court accepts as true Horning’s claim that
he is injured as a taxpayer because he is forced to provide support to his MPP opponents,
such an injury is too generalized to support Article III standing. Dkt. No. 11 at 2-3. Finally,
Indiana states that this Court cannot entertain jurisdiction over any of the State
Defendants. Dkt. No. 8 at 12-14.
Horning asserts that the Fourteenth Amendment expands federal authority over
States to enforce individual rights. Dkt. No. 10 at 2. In addition, Horning states that
Indiana Code § 3-8-4-10 operated to bar him from primary elections in 2000, 2002, 2006,
2008, 2012, and 2014, and will act to bar any candidacy in 2016, which establishes injury
in fact and a causal connection between the unlawful unequal treatment and the injurys.
Id. at 3. He also claims that he is further injured by operation of Indiana Code § 3-8-6-3,
which requires a petition of nomination be signed by a certain percentage of voters within
an election district in order to be put on the ballot, which is an extra burden for any nonMPP candidate. Id. at 4. He further appears to invoke taxpayer status as another reason
that he has standing. Id.
Even if the Court accepts as true Horning’s vague factual allegations in the
Complaint regarding his attempts to run for public office as well as the factual allegations
in his Memorandum in Opposition to Defendants’ Motion to Dismiss (“Opp’n”) regarding
the same subject, the Court concludes that Horning has not met his burden to show
standing because there is no connection between the MPP statute and the alleged injury
Horning claims. The requirement to hold a primary election is not tied to MPP status.
See Ind. code § 3-10-1-2 (requiring any party that receives more than 10% of the votes
5
from the preceding election for secretary of state to hold primary and never mentioning
MPP status).
Further, even though Indiana Code § 3-8-4-10 requires a different
nominating procedure, a convention, for parties that receive between 2% and 10% of the
votes in the prior election for secretary of state, there is no mention of MPP status and
therefore no connection between the MPP statute and any alleged harm to Horning.
In his “Reply in Opposition to Defendants’ Motion to Dismiss,” which the Court will
construe as a Surreply, 1 Horning asserts that the harm is to him as an individual. Dkt.
No. 12 at 1. Specifically,
It is currently fact that there is nothing any individual wishing to appear on
Indiana’s next primary ballot could do but run as an official MPP candidate.
. . . Plaintiff already proved that he was and still is, personally, denied
access to primary elections by both statute, and present reality.
Id.at 2. He also suggests that if a non-MPP could challenge the statute in American Party,
then he should be able to challenge Indiana’s similar statute here. Id. at 2. The Court
cannot see how these arguments help Horning because there is still no connection
between the challenged statutes and any alleged discrimination against him as an
individual candidate. Horning has not shown how the statutes that allow primaries for
certain classes of candidates and conventions for others, as well as petitions for all
candidates has impeded Horning’s ability to run as a candidate for political office, which
seems to be the gravamen of his Complaint. To the extent that he is claiming that an
individual cannot run for public office because the statutes make it cost prohibitive, his
1
The Court notes that the Local Rules of this Court do not contemplate a surreply for
motions to dismiss. See S.D. Ind. L.R. 7-1(b) & (c). In such circumstances, parties
generally request leave of the Court and show the reasons that such a document should
be considered by the Court. In the absence of an objection from Indiana, the Court has
considered Horning’s memorandum in the form of a surreply.
6
claims are too abstract and the connection between the relief he seeks (as set forth in the
Complaint) and his injury is not sufficiently concrete to be actionable.
Even if he has claimed a particularized injury that can be redressed by the relief
that he seeks, the only possible defendant is the official responsible for holding elections,
which is the Secretary of State. None of the other entities and/or elected officials is
subject to suit under § 1983 because they simply have too broad of powers and little
connection to enforcement of the relevant statutes. See Back v. Carter, 933 F. Supp.
738, 751-52 (N.D. Ind. 1996) (citing Ex parte Young, 209 U.S. 123, 157-58 (1908)
(discussing the requirement for preventing conflict with the Eleventh Amendment when
suits are brought against an officer of the state).
Again, even if Horning has standing, Horning has not stated a claim as a matter of
law. It is settled that a statutory system that imposes different burdens on parties or
individuals who seek to be placed on the ballot in a State are necessary to further
compelling state interests when, alone or in combination, they are “reasonably taken in
pursuit of vital state objectives that cannot be served equally well in significantly less
burdensome ways.” American Party, 415 U.S. at 780-81. The statutes Horning has cited
in his Complaint and that he purports to challenge in his memoranda on the instant Motion
are substantially similar to those in American Party; therefore, it is appropriate to rely upon
the Supreme Court’s analysis in American Party to assess his claims. The American Party
Court made clear that there was no reasonable argument to support a conclusion that a
State may not “insist that intraparty competition be settled before the general election by
primary election or by party convention.” Id. at 781. Further, the American Party Court
could not “take seriously the suggestion . . . that the State has invidiously discriminated
7
against the smaller parties by insisting that their nominations be by convention, rather
than by primary election.” Id. This Court agrees that Horning can present no argument
or evidence that a convention is more burdensome than a primary election. Moreover, to
the extent that Horning intended to challenge the process of independent candidate status
(which is not clear from the Complaint, but may be inferred from his briefs), the standard
is that the State’s requirement must be “invidious” and there is no colorable argument that
the requirements for placement on the ballot as an individual, which from the statutes
cited to the Court requires obtaining a certain number of signatures, is more burdensome
than holding a primary election, with all of its attendant precursors. Accord American
Party, 415 U.S. at 1306-07. Since at least three years before American Party it has been
clear that there is “an important state interest in requiring some preliminary showing of a
significant modicum of support before printing the name of a political organization’s
candidate on the ballot – the interest, if no other, in avoiding confusion, deception, and
even frustration of the democratic process in general.” Jenness v. Fortson, 403 U.S. 431,
442 (1971).
For the foregoing reasons, Defendant’s, the State of Indiana, including the Indiana
Secretary of State, the Indiana Election Commission, the Indiana General Assembly and
the Governor of Indiana, all in their official capacities, Motion to Dismiss is GRANTED.
This action shall be dismissed with prejudice. The Court shall enter judgment accordingly.
IT IS SO ORDERED this 4th day of March, 2016.
________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
Distribution attached.
8
Distribution:
ANDREW M. HORNING
7851 Pleasant Hill Road
Freedom, IN 47431
Brian Lee Park
INDIANA ATTORNEY GENERAL
brian.park@atg.in.gov
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?