ATTORNEY FOR APPELLANTS
Robbin Stewart
Indianapolis, Indiana
AMICUS CURIAE
COMMON CAUSE/INDIANA
W. Russell Sipes
Indianapolis, Indiana
Deborah Goldberg
J.J. Gass
New York, New York
ATTORNEYS FOR APPELLEES
Steve Carter
Attorney General
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
BRIAN MAJORS, et al., )
)
Appellants (Plaintiffs Below), )
) Indiana Supreme Court
v. ) Cause No. 94S00-0303-CQ-94
)
MARSHA ABELL, et al., )
)
Appellees (Defendants Below) )
__________________________________________________________________
FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
The Honorable William J. Bauer, Senior Circuit Judge
The Honorable Richard A. Posner, Circuit Judge
The Honorable Frank H. Easterbrook, Circuit Judge
Cause No. 02-2204
__________________________________________________________________
ON CERTIFIED QUESTION
__________________________________________________________________
July 24, 2003
BOEHM, Justice.
The United States Court of Appeals for the Seventh Circuit has
requested our response to the following certified question:
Is the term “persons” in Ind. Code §§ 3-9-3-2.5(b)(1), (d) limited to
candidates, authorized political committees or subcommittees of
candidates, and the agents of such committees or subcommittees, or
does it have a broader scope, and, if so, how much broader?
The certified question arises in a lawsuit brought by several
individuals challenging Indiana Code section 3-9-3-2.5 (Supp. 2001) as
violating their rights to free speech guaranteed under the First Amendment
to the Constitution of the United States. The United States District Court
for the Southern District of Indiana dismissed the complaint for lack of
standing as to some plaintiffs and mootness as to others. The Seventh
Circuit concluded that neither standing nor mootness precluded
consideration of the merits of the plaintiffs’ claims, but noted that
resolution of an issue of interpretation of the statute might control the
disposition of the constitutional issues the plaintiffs seek to raise.
Accordingly, the Seventh Circuit certified this question to this Court
pursuant to 7th Cir. Rule 52 and Ind. R. App. Proc. 64. Majors v. Abell,
317 F.3d 719, 725 (7th Cir. 2003).
Section 2.5 is a part of the Indiana Election Laws. In broad brush,
it provides that any “person” must include a “disclaimer” in “general
public political advertising” if the person either “solicits a
contribution” or finances “communications expressly advocating the election
or defeat of a clearly identified candidate.” This “disclaimer” must
disclose who paid for the ad, and, under some circumstances, who authorized
it. The section provides a number of exemptions and definitions and
includes detailed provisions requiring different disclosures depending on
whether the material is authorized and/or financed by a candidate, a
candidate’s committee, a political committee (PAC), or a party
organization.[1]
The issue as framed by the Seventh Circuit appears as an abstract
question of statutory construction. Indeed, as that court observed, on its
face, the statute seems quite plainly to apply to communications financed
by every individual and every form of legal entity. That is the meaning
ordinarily given to “person” in statutes, and is the meaning provided by
section 36 of the “Definitions” Chapter of the Election Laws. According to
Indiana Code section 3-5-2-36, “‘person’ means an individual or an
organization.” Section 1 of the same Chapter provides that its definitions
“apply throughout this title,” and “this title” inescapably refers to Title
3 (“Elections”).[2] This definition has been in the Election Laws since
the election laws were overhauled in 1986.[3] It is in substance the same
as earlier more prolix but equally broad definitions of “person.”[4]
The State points out that Section 2.5 is found in Article 9, Chapter
3, and Section 1 of that Chapter entitled “Application of chapter”[5]
includes the following provision:
(a) . . . this chapter applies to candidates in all elections and
caucuses and to the following types of committees:
(1) Candidate’s committees.
(2) Regular party committees.
(3) Political action committees.
(4) An auxiliary party organization.
(5) A legislative caucus committee.
Ind. Code § 3-9-3-1 (1998).[6] The State contends that this section has
the effect of including only candidates and the listed types of committees
among the “persons” required by Section 2.5 to include a disclaimer.
Indeed, the State claims the “Application” section is meaningless unless
given that construction. We find this contention difficult to fit within
the statutory framework. We have already noted the seemingly ironclad and
purposeful use of “person” as all-inclusive. The “Application” section the
State cites is not inconsistent with the conclusion that “person” has its
usual meaning. Language identical to the quoted portion of Chapter 3,
Section 1(a) appears in Section 1(a) of each of the other four Chapters in
Article 9.[7] It seems clear that these “Application” provisions serve to
identify the types of elections to which the various chapters apply, but do
not limit the reference to “persons” within those chapters. Several of the
provisions in these statutes would make no sense whatever if “person” were
limited as the State suggests. For example, the Treasurer of a committee
is required to file a report listing every “person” who contributed over
$100.[8] A committee may remove a “person” as chair or treasurer without
cause.[9] Every “person” who accepts a contribution for a committee must
get it to the Treasurer within thirty days.[10] And so on. “Person” in
section 2.5 is the same term introduced by the same application section
found in other sections of the same “Election Campaigns” Chapter where it
can only be read to mean everybody and everything. As a matter of statutory
interpretation, there is little wiggle room here.
In the face of this rather overwhelming statutory evidence, both the
plaintiffs and the State nevertheless contend that constitutional doctrine
should govern our interpretation of the statute. As the Seventh Circuit
noted, courts, including this one, sometimes find elasticity to preserve
constitutionality. See, e.g., A Woman’s Choice-East Side Women’s Clinic v.
Newman, 671 N.E.2d 104, 107 (Ind. 1996) (“we would construe the . . .
[statute] in a constitutional manner insofar as the statutory language
would permit.”). Accordingly, we consider whether constitutional
considerations drive us to find the statute to be more limited than appears
on its face.
The State argues for its less expansive reading on the ground that the
statute, if applicable to political advertising by anyone, may fall under
the plaintiffs’ First Amendment attack. In order to understand the State’s
contention it is necessary to review the federal constitutional doctrine
surrounding regulation of campaign literature. In McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334 (1995), the Supreme Court invalidated an
Ohio statute regulating campaign literature. Mrs. McIntyre was a classic
“lone pamphleteer” who printed up some materials opposing her local school
tax levy. Some of these identified her as the author and others bore only
the legend “CONCERNED PARENTS AND TAX PAYERS”. She was convicted and fined
$100 under an Ohio statute making it a misdemeanor to omit identification
of the source of any campaign materials in any candidate or public question
election. Although she died before the case reached the Supreme Court of
the United States, her estate carried on and ultimately prevailed in her
contention that her activity was constitutionally protected.
McIntyre recognized that election disclosure laws raised different
considerations from those presented by the general prohibition of anonymous
pamphlets that had been held unconstitutional in Talley v. California, 362
U.S. 60 (1960). Laws prohibiting anonymous communications at least to some
extent burden speech and raise First Amendment concerns. If the speech is
political, as it undoubtedly is in an election, it enjoys the highest level
of protection, and any restriction of that speech requires a compelling
governmental interest. Ohio sought to justify what is obviously an
abridgment of speech principally on the ground that its statute guarded
against misinformation in campaigns, and was therefore narrower than the
general ban that Talley had invalidated. This contention did not carry the
day.
The election in McIntyre was a school tax referendum. The focus of
that election was a single issue, not individual candidates and their
character or their stances on multiple issues. In such an election, the
Supreme Court viewed the state interest as principally “[t]he simple
interest in providing voters with additional relevant information.”
McIntyre, 514 U.S. at 348. So viewed, McIntyre found little force to the
state interest asserted to justify its regulation of speech. The state
cannot compel a speaker to add items of information to those the speaker
chooses to present. To the extent completeness of information is the
State’s concern, requiring identification of the source adds little to the
state’s justification, and fails to survive the strict scrutiny required of
statutes burdening political speech. As the Seventh Circuit noted, the
majority in McIntyre described the identity of the author as just one more
item of information that the author may choose to include or omit. Majors,
317 F.3d at 724 (citing McIntyre, 514 U.S. at 348). Accordingly, the
source of the statement was not particularly useful in evaluating its
merits on a referendum issue. The Supreme Court found the state’s interest
in preserving the accuracy of statements in elections to be “on a different
footing” from the general interest in providing more information. Despite
its greater force, that interest was not furthered by the Ohio statute,
which provided no exemption for truthful communications, and other
statutory provisions and common law remedies were available to redress
false communications.
Based on its reading of the Seventh Circuit’s opinion to suggest that
Section 2.5 will be found unconstitutional under McIntyre if it regulates
speech by “every individual and organization,” the State argues for a
construction that would require a “disclaimer” only from those candidates
and committees. Because the disclaimer statute burdens core political
speech, it is subject to “strict scrutiny.” McIntyre, 514 U.S. at 347.
However, we are not persuaded that McIntyre necessarily implies that the
Indiana statute violates the First Amendment. Section 2.5 was added to the
Indiana Code in 1997 in response to McIntyre and the decision of the United
States District Court for the Southern District in Stewart v. Taylor, 953
F. Supp. 1047 (S.D. Ind. 1997). Previous versions of the Indiana Election
Laws had, like the Ohio statute, applied to both candidate elections and
votes on public questions, but Section 2.5 is limited to candidate
elections. Before its 1997 revision, the Indiana disclaimer requirement
had none of the exemptions found in subsection 2.5(a), which now exempts
small direct mailings[11] and communications with regard to public
questions,[12] among other things.
McIntyre dealt with leafleting in a local referendum. We think
somewhat different considerations apply in evaluating a disclaimer
requirement in advertising in candidate elections. Indeed, in First Nat’l
Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme Court
expressly noted that although corruption concerns were a compelling state
interest in candidate elections, they were not significant in the context
of a referendum. Id. at 790. McIntyre itself pointed out that in candidate
elections the state “can identify a compelling state interest in avoiding
the corruption that might result from campaign expenditures.” McIntrye, 514
U.S. at 356. The state has a legitimate concern that anonymous campaign
support will become a quid for the quo of post election largesse. Id.; see
also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 297
(1981). Thus, McIntyre expressly noted that a “more narrowly drawn
statute” might pass constitutional muster. McIntyre, 514 U.S. at 356.
In McIntyre, Justice Ginsburg, concurring separately, expressly noted
that the Supreme Court did “not thereby hold that the State may not in
other, larger circumstances require the speaker to disclose its interest by
disclosing its identity.” McIntyre, 514 U.S. at 358. Four years later, in
Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999), Justice
Ginsburg wrote for a five-justice majority that struck down some aspects of
Colorado’s regulation of solicitors in petition drives to place an issue on
the ballot in a referendum. Once again the Court noted the distinction
between candidate elections and referenda. Id. at 203. The majority found
unconstitutional a requirement that solicitors wear badges with their
names. But even in a referendum the majority found constitutional the
requirement that a public affidavit disclose the name and address of the
solicitor. A post-solicitation affidavit did not expose the solicitor to
the risk of intimidation that an identifying badge presented in a face-to-
face encounter with potential voters. The affidavit was thus “the type of
regulation for which McIntyre left room.” Id. at 200.
We think there is a very strong state policy reflected in the 1997
amendment. It was an obvious effort to tailor a more narrowly drawn
statute that would serve core state interests in the integrity of candidate
races while avoiding the concerns that resulted in the invalidation of the
Ohio statute. We also think that the distinctions between Ohio’s statute
and Indiana’s revised version are substantial. The most important of these
are that Indiana’s law permits some individual pamphleteering and applies
only to candidate elections.
The Supreme Court in McIntyre noted some, but not all of the
differences for these purposes between issue elections and candidate
elections. The Supreme Court pointed out the State’s proper concern for the
potential of election corruption through anonymous candidate support. This
interest was identified as “on a different footing” from the mere desire
for more complete information. McIntyre discussed this state interest
largely as concern for election finance violations. In distinguishing the
Ohio statute from the interests validated in federal campaign finance law
in Buckley v. Valeo,[13] the Court identified the “compelling state
interest in avoiding the corruption that might result from campaign
expenditures.” McIntyre, 514 U.S. at 356.
Deterrence of corruption in candidate elections was first identified
as a compelling government interest in Buckley v. Valeo, which found that
concern sufficient to justify federal election law restrictions on campaign
contributions and the requirement of disclosure of contributors. Buckley,
424 U.S. at 66. As Buckley noted, the anonymous advertisement may be a
surreptitious campaign contribution violation. Id. at 81. But in addition
to concern for outright campaign finance violations and quid pro quo
corruption, we think there is also a related but very important state
interest in the integrity of public statements in candidate elections that
differs from elections in which public questions are put to voters.
Several potential abuses are presented by anonymous advertising in a
candidate race. Anonymous statements about candidates for public office,
even if true, can be very damaging, particularly if launched in the waning
days of an election when it may be difficult or even impossible to achieve
broad communication of any response. Indiana saw such an attack in the
2000 election when one candidate for attorney general was described in ads
by a third-party organization as one who represented convicted drug
dealers. This may have been a true statement, but it was an attack that the
candidate’s opponent disclaimed and disavowed. Its effect was presumably
mitigated by the disclosure of the source in compliance with Indiana law.
At least the voters could see who was making this claim, and form an
assessment as to what its agenda was likely to be. They could then form
their own views as to whether the candidate’s having served as defense
attorney in a case that resulted in conviction for dealing had anything at
all to do with the motivation to defeat the candidate. This example of a
well-funded interest group taking out advertisements to run a statewide
media blitz shortly before an election is a far cry from the “modest
resources” of Mrs. McIntyre mustered to oppose her school levy.
There is a second concern with anonymous ads in candidate elections.
Charges can be leveled that no candidate would make because the claims
would be deemed irresponsible, or would generate support from some groups,
but a backlash from others. Anonymity permits personal charges to be
leveled at one candidate that may be equally true of another. The voters
have redress at the polls if a candidate, the candidate’s committee, or a
political party engages in irresponsible campaigning. If an identified
third party wishes to sling some mud, there is still no practical remedy
against the source, but at least the voters can evaluate the claim in light
of its source.
Finally, in a candidate election, anonymous advertising permits a
candidate to run on an issue without espousing it. By tacit agreement or
even without implicit support from the candidate, the anonymous supporter
can challenge an opponent’s position on a given issue without putting the
candidate’s position in play. Several pernicious results occur. The
candidate may not differ from the views that are being attacked, but does
not need to declare a position. Or the candidate may have unspoken ties or
obligations to groups whose agendas are well known, but who choose to fund
advertising on completely unrelated issues. Only the disclosure of the
identity of the funding agency prevents this.
For all of these reasons, we are not persuaded that Section 2.5 as
written violates the First Amendment on its face, though one can conceive
of some applications that might be invalid. As McIntyre and Talley make
clear, to require identification of the source is to burden the core value
of free speech. But in a candidate election, there is a powerful
countervailing consideration in the State’s and the public’s interest in
election integrity. That interest extends beyond controlling direct
corruption to minimizing damage to the integrity of the dynamic and
multifaceted marketplace of ideas that drives a candidate election.
We think the 1997 amendment represented a very clear statement by the
General Assembly that it regarded campaign disclosure as important. As a
matter of separation of powers, we think setting that priority is well
within the purview of the legislative body as an expression of state
policy. If we construe the statute as the State suggests, we agree it
removes most doubt as to the constitutionality of the statute, but we think
it also eliminates most of what the statute was seeking to accomplish. In
practice we do not have candidates or committees taking out anonymous
advertising. It may be the deterrent effect of the law, but it also seems
that anonymous advertising by a candidate would be a very high-risk
strategy. If a message is such that the candidate would not be willing to
be identified with it, presumably if its authorship leaked the effect of
the leak would be to brand the candidate a sneak as well as a fool. We
think the statute is primarily concerned with anonymous advertising by
third parties. Limiting its identification to candidates and committees
would free up the very actors the law was written to curtail. State and
federal courts have held a variety of views on issues similar, if not
identical, to the constitutional claims presented here.[14] We think the
Indiana statute is clear and we do not believe that current decisions of
the Supreme Court of the United States compel the conclusion that the
statute as we construe it is invalid. Accordingly, we answer the Seventh
Circuit’s question as follows:
The term “person” in Indiana Code section 3-9-3-2.5(b) and (d) is not
limited to candidates, authorized political committees or
subcommittees of candidates, and the agents of such committees or
subcommittees. Rather, it includes any individual or organization.
Finally, the plaintiffs invite us to invalidate the statute on Indiana
Constitutional grounds, in effect responding to the Seventh Circuit with
“never mind, the statute about which you inquire is void.” The plaintiffs
note authority that an ambiguous statute should be interpreted in such a
manner as to preserve its constitutionality. From this they draw the
broader principle that the court should always consider the constitutional
implications of a statute and should invalidate a statute if it finds it
unconstitutional. This seems quite a stretch to us, but we need not
resolve that question because the plaintiffs’ contention is more easily
disposed of. No state constitutional issue was presented in the district
court, and we are not asked by the Seventh Circuit whether the statute runs
afoul of either the state or federal constitution. We have no record of
the facts of this case before us, and no basis to evaluate whether other
grounds may render consideration of the broad state constitutional issue
unnecessary. City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind.
2001). Neither the state nor the amicus has addressed any state
constitutional issue. Under these circumstances, we will not reach out to
answer a question we are not asked.
DICKSON, SULLIVAN, and RUCKER, JJ., concur.
SHEPARD, C.J., concurs with separate opinion in which DICKSON, J., joins.
Appendix
Ind. Code § 3-9-3-2.5 (Supp. 2001).
(a) This section does not apply to any of the following:
(1) A communication relating to an election to a federal office.
(2) A communication relating to the outcome of a public question.
(3) A communication described by this section in a medium regulated by
federal law to the extent that federal law regulates the appearance,
content, or placement of the communication in the medium.
(4) Bumper stickers, pins, buttons, pens, and similar small items upon
which the disclaimer required by this section cannot be conveniently
printed.
(5) Skywriting, water towers, wearing apparel, or other means of
displaying an advertisement on which the inclusion of a disclaimer
would be impracticable.
(6) Checks, receipts, and similar items of minimal value that do not
contain a political message and are used for purely administrative
purposes.
(7) A communication by a political action committee organized and
controlled by a corporation soliciting contributions to the political
action committee by the stockholders, executives, or employees of the
corporation and the families of those individuals.
(8) A communication by a political action committee organized and
controlled by a labor organization soliciting contributions to the
political action committee by the members or executive personnel of
the labor organization and the families of those individuals.
(9) A direct mailing of one hundred (100) or less substantially
similar pieces of mail.
(b) This section applies whenever a person:
(1) makes an expenditure for the purpose of financing communications
expressly advocating the election or defeat of a clearly identified
candidate; or
(2) solicits a contribution; through a newspaper, a magazine, an
outdoor advertising facility, a poster, a yard sign, a direct mailing,
or any other type of general public political advertising.
(c) For purposes of this section, a candidate is clearly identified if any
of the following apply:
(1) The name of the candidate involved appears.
(2) A photograph or drawing of the candidate appears.
(3) The identity of the candidate is apparent by unambiguous
reference.
(d) A communication described in subsection (b) must contain a disclaimer
that appears and is presented in a clear and conspicuous manner to give the
reader or observer adequate notice of the identity of persons who paid for
and, when required, who authorized the communication. A disclaimer does not
comply with this section if the disclaimer is difficult to read or if the
placement of the disclaimer is easily overlooked.
(e) A communication that would require a disclaimer if distributed
separately must contain the required disclaimer if included in a package of
materials.
(f) This subsection does not apply to a communication, such as a billboard,
that contains only a front face. The disclaimer need not appear on the
front or cover page of the communication if the disclaimer appears within
the communication.
(g) Except as provided in subsection (h), a communication described in
subsection (b) must satisfy one (1) of the following:
(1) If the communication is paid for and authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication has been
paid for by the authorized political committee.
(2) If the communication is paid for by other persons but authorized
by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication is paid
for by the other persons and authorized by the authorized political
committee.
(3) If the communication is not authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state the name of the person who paid
for the communication and state that the communication is not
authorized by any candidate or candidate's committee.
(4) If the communication is a solicitation directed to the general
public on behalf of a political committee that is not a candidate's
committee, the solicitation must clearly state the full name of the
person who paid for the communication.
(h) A communication by a regular party committee consisting of:
(1) a printed slate card, a sample ballot, or other printed listing of
three (3) or more candidates for public office at an election;
(2) campaign materials such as handbills, brochures, posters, party
tabloids or newsletters, and yard signs distributed by volunteers and
used by the regular party committee in connection with volunteer
activities on behalf of any nominee of the party; or
(3) materials distributed by volunteers as part of the regular party's
voter registration or get-out-the-vote efforts;
must clearly state the name of the person who paid for the communication
but is not required to state that the communication is authorized by any
candidate or committee.
SHEPARD, Chief Justice, concurring.
I join fully in the Court’s opinion, and write separately to address
a point ably lifted up by the lawyers for Common Cause of Indiana and the
Brennan Center for Justice.
The device of certifying questions of state law that are central to a
case being litigated in federal court is productive for state and federal
tribunals alike. Knowing that our federal colleagues do not make these
referrals casually, we have accepted every certification from our District
Courts and the Seventh Circuit, as best I can recall. I expect that we
will continue to do so.
Still, the mechanism has its limitations. As amici point out, the
questions necessarily come in rather abstract form. We answer a question
of law, rather than resolve a case. And, of course, facts matter a great
deal in the work judges customarily perform.
Here, for example, the statute in question looks very different when
one contemplates a lone pamphleteer, some latter-day Thomas Paine, than it
does as applied to a regular party candidate.
This problem of abstraction is especially troublesome when the
question at hand is, say, one of state constitutional law, or, as today, a
statutory question with palpable constitutional implications. On such
occasions, it seems to me, we state judges must be especially mindful of
the jurisprudential rules we would employ if the full case were pending for
resolution in state court – like avoidance of avoidable constitutional
declarations.
We have brushed up against such considerations in the present case,
but the language and statutory framework of the law under examination have
so strongly suggested an answer that fancier footwork has been unnecessary.
DICKSON, J., joins.
-----------------------
[1] Section 2.5 is rather lengthy. Because its constitutionality may be
viewed as turning on the extent to which it is “narrowly tailored” we
reproduce the statute in its entirety as an Appendix to this opinion.
[2] For those unfamiliar with Indiana statutes, the hierarchy of the
Indiana Code, in descending order, is Title, Article, Chapter, Section.
[3] Public Laws 5-1986 and its companions, 6-1986, 7-1986 and 8-1986 fill
315 pages of the 1986 Acts. 1986 Ind. Acts 25-340.
[4] Public Law 6-1976 included the following definitions for purposes of
the then current election law: “[P]erson” includes individuals, business
organizations, labor organizations, religious organizations, political
organizations, trustees, receivers and any other organization, association,
cooperative or group of persons whatsoever. 1976 Ind. Acts 13.
[5] West Annotated Code uses the same title for this section as the
official Indiana Code, (“Application of chapter”). Burns Annotated Code
calls it “Applicability.”
[6] Subsection (b) excepted federal candidates from the limitation on the
use of contributions imposed by Section (4). Effective July 1, 2003, a new
subsection (c) was added to Indiana Code 3-9-3-1 providing that Section 2.5
does not apply to candidates for precinct committeeman or state convention
delegate. None of these exceptions are relevant for our purposes.
[7] All five Subsections (a) are identical except for the exceptions unique
to each provision. The only differences, which are irrelevant for these
purposes, appear in subsections (b) and (c) of the various Application
sections. These have the effect of exempting different types of elections
(e.g. school boards) from certain requirements, but not others. Compare
I.C. § 3-9-3-1 with I.C. § 3-9-1-1, I.C. § 3-9-2-1, I.C. § 3-9-4-1 and I.C.
§ 3-9-5-1.
[8] I.C. § 3-9-5-14(3)(A).
[9] I.C. § 3-9-1-19.
[10] I.C. § 3-9-2-9.
[11] Section2.5(a)(9) exempts mailings of up to 100 pieces of “mail” that
are “substantially similar.” We take “mailing” and “mail” to include any
form of delivery of any written material, including personal delivery or
use of some service other than use of the United States Postal Service.
Reading the exemption as limited to materials distributed through the U.S.
mail would impose arbitrary and indeed unconstitutional conditions on the
exemption in violation of the basic equal protection doctrines invoked by
both parties.
[12] Section 2.5(a)(2). The web site referred to by the Seventh Circuit in
Majors, 317 F.3d at 721, www.in.gov/sos/pdfs/Disclaim.pdf (Revised May
2002), is incorrect to the extent it suggests that all of the matters
discussed apply equally to both candidate and public question elections.
Although many parts of the Indiana Election Laws do apply to political
question elections, Indiana Code section 3-9-3-2.5 does not by virtue of
Section 2.5(a)(2).
[13] 424 U.S. 1 (1976).
[14] Compare Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1107
(9th Cir. 2003); FEC v. Public Citizen, 268 F.3d 1283, 1285 (11th Cir.
2001); Ky. Right to Life v. Terry, 108 F.3d 637, 648 (6th Cir. 1997); FEC
v. Survival Educ. Fund, Inc., 65 F.3d 285, 298 (2d. Cir. 1995); McConnell
v. FEC, 2003 U.S. Dist. LEXIS 7816 at *182 (D.D.C. May 1, 2003); Seymour v.
Election Enforcement Comm’n, 762 A.2d 880, 892-94 (Conn. 2000); Doe v.
Mortham, 708 So. 2d 929, 931-35 (Fla. 1998); with Citizens for Responsible
Gov’t State PAC v. Davidson, 236 F.3d 1174, 2000 (10th Cir. 2000); Vt.
Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000);
Wilson v. Stocker, 819 F.2d 943, 950 (10th Cir. 1987); N.C. Right to Life,
Inc. v. Leake, 108 F. Supp. 2d 498, 510 (E.D. N.C. 2000); Ark. Right to
Life State PAC v. Butler, 29 F. Supp. 2d 540, 550 (W.D. Ark. 1998);
Stewart, 953 F. Supp. at 1055; W. Va. for Life, Inc. v. Smith, 960 F. Supp.
1036, 1042 (S.D. W. Va. 1996); Doe v. Texas, 2003 Tex. Crim. App. LEXIS 88
at *14 (Tex. Crim. App. May 14, 2003).