In the

United States Court of Appeals

For the Seventh Circuit

No. 13-3027

ZACHARY MULHOLLAND,

Plaintiff-Appellant,

v.

MARION COUNTY ELECTION BOARD,

Defendant-Appellee.

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division.

No. 1:12-cv-01502 — Sarah Evans Barker, Judge.

ARGUED FEBRUARY 12, 2014 — DECIDED MARCH 20, 2014

Before POSNER, FLAUM, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. The two major political parties in

Marion County, Indiana, both follow a long tradition of

“slating” their preferred candidates inprimaryelections. Those

candidates have the financial and organizational backing of

party leadership, and the parties therefore have an interest in

preventing confusion among voters as to who supports whom.

Accordingly, Indiana’s “anti-slating” statute makes it a crime

to distribute a list endorsing multiple political candidates
2 No. 13-3027

during a primary election unless all such candidates have

given their written consent. See Ind. Code § 3-14-1-2(a). More

than a decade ago, the anti-slating law was challenged as

violating the First Amendment. The plaintiff in that case won

a federal injunction against the statute’s future enforcement

and a consent decree in which all parties stipulated and the

court declared that the law was facially unconstitutional.

Ogden v. Marendt, No. 1:03-cv-415 (S.D. Ind. Aug. 29, 2003),

EFC No. 40.

One of the defendants then was the same defendant before

us today: the Marion County Election Board. Having apparently changed its views on the statute’s validity, the Board

enforced it against a candidate running for state representative

in the 2012 primary. That candidate, plaintiff Zachary

Mulholland, has sued to enjoin further Election Boardproceedings related to the slating violation and to enjoin the statute’s

future enforcement. The district court dismissed the caseunder

the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971),

citing a still-ongoing Election Board investigation. We reverse

for two reasons. First, the Election Board’s investigation is too

preliminary a proceeding to warrant Younger abstention, at

least in the wake of Sprint Communications, Inc. v. Jacobs, 134 S.

Ct. 584 (2013). Second, even if Younger abstention were

theoretically available after Sprint, the previous final federal

judgment against the defendant Election Board holding the

same statute facially unconstitutional would still amount to an

extraordinary circumstance making Younger abstention

inappropriate.
No. 13-3027 3

I. Factual and Procedural Background

On the morning of May 8, 2012, as polling places opened to

primary voters across Indiana, candidate Zachary Mulholland

faced a steep climb in his bid to represent the state’s 100th

District in the Indiana House of Representatives. Located on

the east side of Indianapolis, the district had been held by the

retiring Democratic incumbent for all but two of the previous

thirty-eight years. Mulholland was running as a Democrat, but

he had failed to win the “slating,” the endorsement of the

county party’s leadership. He now faced the party’s slated

candidate.

Mulholland had nevertheless kept up his fight for the

nomination. The morning of the primary, he and a number of

campaign volunteers went to polling places to make

last-minute appeals to voters. They handed out copies of a

flyer listing the names and pictures of five candidates under

the heading “Vote Democrat.” These candidates were Barack

Obama for President, Joe Donnelly for U.S. Senate, André

Carson for U.S. Representative, John Gregg for Governor, and

Zach Mulholland for State Representative. The flyer noted at

the bottom that it was paid for by Hoosiers for Zachary

Mulholland. No party has suggested in this appeal that any

information on the flyer was fraudulent or untrue.

Yet the flyers were illegal under Indiana law, as

Mulholland soon learned. At the county level, elections in

Indiana are overseenby electionboards comprising one elected

clerk of the circuit court and two members, one from each

major party, appointed by the clerk. Ind. Code § 3-6-5-2.

Alerted to the offending materials on the morning of the
4 No. 13-3027

primary, the Marion County Election Board held a brief

meeting in which the members reviewed the flyer and unanimously agreedthat Mulholland had violated state election law.

The Election Board issued an order to that effect and authorized its special deputies to seize the flyers. Later that day,

Mulholland and the Election Board’s chair discussed the order

by telephone. The contents of their conversation are disputed,

but the order remained in place and the rest of Mulholland’s

flyers were either confiscated or never distributed. Mulholland

ultimately lost the primary. His opponent went on to win the

general election.

The law criminalizing flyers like Mulholland’s is Indiana’s

anti-slating statute, which makes it a misdemeanor to publish

or distribute a “slate” during a primary election without first

receiving and then filing with the county election board the

written consent of all candidates named on the slate. Ind. Code

§ 3-14-1-2(a)(2)–(3). The provision defines a “slate” as “a

sample ballot, reproduction of an official ballot, or a listing of

candidates having the names or numbers of more than one

candidate for nomination at a primary election; and that

expresses support for more than one of the candidates set forth

on the ballot orlist.” § 3-14-1-2(b). That broad definition means

that any candidate, interest group, or individual citizen who

distributes a list expressing support for multiple primary

candidates without their written permission can be charged

with a crime. The effects are to benefit the party’s slated

candidates, who can easily coordinate the paperwork needed

to promote a unified slate, and to increase the two parties’

influence over the outcome of primary elections.
No. 13-3027 5

Because the anti-slating law restricts core political speech,

the law has raised obvious constitutional concerns. In 2003 a

candidate for office and a political action committee sued the

Marion County Election Board and other defendants alleging

that the statute violated the free speech clause of the First

Amendment. Then-District Judge Tinder found that the

plaintiffs had shown they were likely to succeed on the merits,

and he granted their motion for a preliminary injunction.

Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003). Applying strict scrutiny, Judge Tinder found that the statute was not

narrowly tailored to advance the state’s legitimate interests in

preventing campaign fraud or maintaining the stability of the

two-party system. The state’s putative interest in protecting

candidates from being associated with supporters they would

rather disown was not a compelling justification for suppressing political speech. Soon after the injunction was issued, the

parties settled. The court approved a final judgment in which

all sides stipulated that the statute “is declared facially unconstitutional,” and the court enjoined the Election Board from

enforcing it against the plaintiffs.

Mulholland was not a plaintiff in Ogden and was not

shielded by the court’s injunction, but he contends the Ogden

judgment rendered the anti-slating law a dead letter and that

it violates the First Amendment in any event. On May 30, 2012,

a few weeks after his primary defeat, Mulholland sued the

Election Board in state court in Marion County for an injunction against future enforcement of the statute and for damages

for the cost of his confiscated materials. After five months, the

case had gone nowhere. The Election Board issued a new order

scheduling a meeting to “hear from all interested persons”
6 No. 13-3027

about “the acts and events occurring on May 8 ... and take

such additional action as warranted by the evidence presented.” The Election Board moved the state court to stay

proceedings, arguing that the new Board hearing would

provide the court with a more complete factual record and

might lead the Board to modify its initial order. Mulholland at

first opposed the motion, but after filing the present lawsuit in

federal court, he withdrew his opposition and the state court

stayed its proceedings. The Election Board then postponed

indefinitely its scheduled meeting, leaving the federal suit as

the sole active forum for the parties’ dispute.

Mulholland’s federal complaint seeks to enjoin both future

enforcement of the anti-slating statute and the Election Board’s

pending meeting. (The Board has threatened to compel his

attendance by subpoena. See Ind. Code § 3-6-5-27.) He has

standing to contest future enforcement of the statute because

he intends to run in later elections, and the case is not moot

because “political candidacy, like pregnancy, is capable of

repetition yet evades review” under ordinary mootness rules.

Ogden, 264 F. Supp. 2d at 790 n.5, citing Majors v. Abell,

317 F.3d 719, 722 (7th Cir. 2003); see also Norman v. Reed,

502 U.S. 279, 287–88 (1992) (dispute over election law not moot

because it was capable of repetition and would otherwise

evade review). Mulholland also contests the Election Board’s

ability to subpoena him to the meeting insofar as the subpoena

is based on the anti-slating statute he contends is unconstitutional.

The Board moved to dismiss the case under Younger,

asserting that the federal district court should defer to the

ongoing proceedings in state court and before the Election
No. 13-3027 7

Board. The district court agreed, holding that any injunction

limiting the Board’s ability to subpoena Mulholland to a

hearing about the slating violation would “clearly interfere

with the ongoing state administrative proceedings.” The

district court found none of the recognized exceptions to the

Youngerdoctrine applied here. The courtrejected Mulholland’s

argument that the statute was “flagrantly and patently”

unconstitutional. Although the defendant Board had previously stipulated to the law’s constitutional infirmity, the court

viewed that consent decree as operative only between the

Board and the previous plaintiffs. The court dismissed the case,

and Mulholland has appealed.

II. The Scope of Younger Abstention

The abstention doctrine set forth in Younger v. Harris,

401 U.S. 37 (1971), is an exception to the general rule that

federal courts must hear and decide cases within their jurisdiction. The doctrine reflects a concern that federal interference

with certain types of important state proceedings is unwise

and unnecessary in a system of dual sovereigns, id. at 44, and

it requires that federal courts dismiss such cases rather than

intervene in state affairs. As the Supreme Court has recently

emphasized, Younger abstention is called for in exactly three

classes of cases: where federal jurisdiction would intrude into

ongoing state criminal proceedings, or into certain civil

enforcement proceedings (judicial or administrative) akin to

criminal prosecutions, orinto civil proceedings “that implicate

a State’s interest in enforcing the orders and judgments of its

courts.” Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 588

(2013).
8 No. 13-3027

Outside these three “exceptional” situations, Younger

abstention is not appropriate even when there is a risk of

litigating the same dispute in parallel and redundant state and

federal proceedings. Id. at 591; Nader v. Keith, 385 F.3d 729, 732

(7th Cir. 2004). (The problems posed by parallel state and

federal proceedings are managed under the narrower abstention doctrine of ColoradoRiver Water Conservation Dist. v. United

States, 424 U.S. 800 (1976), which ordinarily calls for a stay

rather than dismissal when it applies, but still prevents

duplication.)

In this case, the district court viewed the scheduled Election

Board meeting and ongoing state lawsuit as the type of civil

enforcement proceedings that are close enough to a criminal

prosecution to warrant Younger abstention. See, e.g., Middlesex

Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982)

(administrative proceeding against attorney for violation of

state ethics rules); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)

(civil enforcement of public nuisance statute). We review this

decision de novo. Forty One News, Inc. v. County of Lake, 491 F.3d

662, 665 (7th Cir. 2007).

In our review under Younger, Mulholland’s state suit plays

no role. Such parallel requests for relief by the same party are

not subject to Younger abstention. We focus instead on the

proceedings before the Board. See Sprint, 134 S. Ct. at 591–92

(fact that federal plaintiff also sought state court review of

agency decision did not itself implicate Younger; proper focus

was on the agency proceeding); New Orleans Public Serv., Inc. v.

Council of City of New Orleans, 491 U.S. 350, 369 (1989) (same).
No. 13-3027 9

We must determine,therefore, whether theElection Board’s

planned hearing on Mulholland’s violation of the anti-slating

statute calls for Younger abstention. Citing language in

Middlesex, we have said that abstention is required when such

state civil proceedings are “judicial in nature,” involve important state interests, and offer an adequate opportunity to

review the federal claim. E.g., Majors v. Engelbrecht, 149 F.3d

709, 711 (7th Cir. 1998). This is the approach taken by the

district court and largely followed in the parties’ briefs.

After the district court’s decision and while briefing in this

appeal was already underway, the Supreme Court rephrased

the question, at least to some extent, in Sprint. There the Court

reversed an appellate decision that had applied the same

reading of Middlesex to hold that an adjudicative proceeding

before the Iowa Utilities Board warranted Younger abstention.

As the unanimous Court explained, the “three Middlesex

conditions recited above were not dispositive; they were,

instead, additional factors appropriately considered by the

federal court before invoking Younger.” 134 S. Ct. at 593. These

factors remain relevant, but the critical consideration in

evaluating a state civil proceeding is how closely it resembles

a criminal prosecution. “Divorced from their quasi-criminal

context,” the Court wrote, “the three Middlesex conditions

would extend Younger to virtually all parallel state and federal

proceedings, at least where a party could identify a plausibly

important state interest.” Id. 

The planned Election Board meeting in this case is not the

type of quasi-criminal proceeding that would warrant Younger

abstention, at least after Sprint, which involved an agency

adjudication of state law that was initiated by one private party
10 No. 13-3027

against another and that presented no possibility of criminal

penalty. The Board’s hearing in this case has a few features that

might arguably give it a somewhat closer resemblance to a

criminal adjudication. The hearing was initiated by the

government to look into a violation of state law, and the Board

has coercive authority to subpoena witnesses. But the Board’s

authority to sanction offenders is extremely limited—far less

than the state proceedings that have warranted Younger

abstention in other cases. The Board’s hearing could lead only

to a recommendation of prosecution to a county prosecuting

attorney or the state attorney general. Ind. Code § 3-6-5-31. Cf.

Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S.

619, 624–25 (1986) (Younger abstention applied to pending state

administrative hearing that could result in order requiring

reinstatement of employee with backpay); Middlesex, 457 U.S.

at 427 (same where attorney disciplinary hearing could result

in professional sanctions).

The possibility that a state proceeding may lead to a future

prosecution of the federal plaintiff is not enough to trigger

Younger abstention; a federal court need not decline to hear a

constitutional case within its jurisdictionmerely because a state

investigation has begun. See Steffel v. Thompson, 415 U.S. 452,

454, 472 (1974) (Younger does not prevent federal declaratory

relief “when a state prosecution has been threatened, but is not

pending”); 520 South Michigan Ave. Associates, Ltd. v. Devine,

433 F.3d 961, 963 (7th Cir. 2006) (suggesting that prosecution

must be “imminent” before court will abstain). The threat of

prosecution is especially speculative where as here the investigating agency must first hand the matter over to a separate
No. 13-3027 11

prosecutor who has complete discretion over whether to bring

the case.

Even if the Election Board could sanction Mulholland

directly, we might consider these proceedings to be at too

preliminary a stage to warrant federal deference. See Louisiana

Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483,

1490 (5th Cir. 1995) (no abstention where agency notified

plaintiffs of citizen complaint but had not started investigation); Telco Communications, Inc. v. Carbaugh, 885 F.2d 1225,

1228–29 (4th Cir. 1989) (no abstention where agency notified

plaintiff of specific charges and held informal meeting, but

investigation was still unfolding). The question would be close

in this case, in part because the record is so vague as to the

purpose of the Board’s planned meeting. In filings before the

state court, the Board explained that “Mulholland does not

know what will happen at the Election Board’s hearing ... .

And the Election Board does not know what will happen at the

Election Board’s hearing ... . At this time, no one knows.”

We don’t know either. Given the uncertainty on that point

and the lack of prosecutorial power for the Election Board, we

see little reason for a federal court to abstain while waiting to

see if the Board refers the anti-slating violation to a prosecutor

who might then pursue the case. In its brief, the Election Board

implies that Mulholland might have brokenother election laws

as well. If the Board believes that is the case, it is of course free

to investigate those violations while the federal court hears a

challenge to the anti-slating provision. Younger is irrelevant in

that scenario.
12 No. 13-3027

The Election Board’s other explanation is that it is simply

offering Mulholland the process he says he was denied on

election day, and that it may ultimately modify its original

order. If that’s the case, then the meeting’s purpose would be

remedial rather than coercive, see Dayton, 477 U.S. at 627 n.2,

so it would not be the sort of quasi-criminal proceeding that

could require Younger abstention.

III. Extraordinary Circumstances

If all this were not enough to defeat Younger abstention, the

second independent reason for not abstaining is that the

Election Board is attempting to enforce a statute that has

already been held unconstitutional in a final judgment against

the Board itself. Younger therefore would not apply even if the

planned Board meeting were the sort of adjudicative proceeding that would otherwise call for abstention.

The Younger exception to the rule that federal courts hear

the cases before them is at bottom an equitable doctrine, and it

contains its own equitable exceptions. The abstention doctrine

does not prevent federal courts from enjoining enforcement

actions that involve “bad faith, harassment, or a patently

invalid state statute.” Sprint, 134 S. Ct. at 591, citing Younger,

401 U.S. at 53–54. These exceptions are narrow, and the

Supreme Court has “unequivocally held that facial invalidity

of a statute is not itself an exceptional circumstance justifying

federal interference with state criminal proceedings.” Huffman,

420 U.S. at 602, citing Younger, 401 U.S. at 53–54 (“the possible

unconstitutionality of a statute ‘on its face’ does not in itself

justify an injunction against good-faith attempts to enforce it,”

but bad faith, harassment, or another “unusual circumstance”
No. 13-3027 13

could call for equitable relief); see also Pincham v. Illinois

Judicial Inquiry Bd., 872 F.2d 1341, 1350 (7th Cir. 1989) (“the

Courts Commission could well construe the rules in a manner

compatible with the constitution”).

In this case, however, the Election Board’s attempt to

enforce the anti-slating law against Mulholland goes beyond

the mere “possible unconstitutionality of a statute on its face.”

The law was declared facially unconstitutional by a federal

court and its enforcement was enjoined in a final judgment

against the Board in Ogden in 2003. The district court correctly

pointed out that the Ogden injunction was limited to enforcement of the anti-slating law against the plaintiffs in that case.

That analysis overlooks, however, the significance of the

declaratory portion of the Ogden judgment that declared the

anti-slating statute facially unconstitutional.

Despite this ruling, the Election Board invoked the law in

2012 against Mulholland, seizing the campaign literature of a

candidate challenging his party’s slate in the primary. The

Board now seeks on the basis of the same statute to compel

Mulholland’s attendance at further administrative proceedings, the purpose of which remains murky. This shaves very

close to harassment or bad faith prosecution. The Election

Board members are well aware of the Ogden litigation and

resulting injunction. And yet the Board decided to resurrect the

law for use against Mulholland.

The Election Board contends that, although the law was

found unconstitutional in Ogden, Younger abstention is appropriate because the law is not “flagrantly and patently violative

of express constitutional prohibitions in every clause, sentence
14 No. 13-3027

and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” See Younger, 401 U.S.

at 53–54, quoting Watson v. Buck, 313 U.S. 387, 402 (1941). That

is not the test. Younger quoted this language as a sufficient

condition for rejecting abstention, not a necessary condition,

and the Court was referring to a situation in which a law’s

unconstitutionality seems obvious but has not yet been

decided by a court.

Even granting that the Indiana anti-slating statute does not

plumb such hyperbolic depths of unconstitutional offense, the

Election Board’s attempt to enforce a law that a federal court

has already told the Board in a final judgment is unconstitutional represents the sort of “other unusual circumstance that

would call for equitable relief.” 401 U.S. at 54. Stated in terms

of the equitable principles upon which Younger is based, the

costs to comity and our federalism of enjoining state proceedings are significantly lessened where a federal court has

previously held the same law facially unconstitutional in a

final judgment against the same defendant.

We reject the Election Board’s oxymoronic argument that

the judgment in Ogden should be read to mean that the statute

is facially unconstitutional only as to the Ogden plaintiffs. We

havenot encountered before the idea of facial unconstitutionality as applied only to a particular plaintiff. Facial unconstitutionality as to one means facial unconstitutionality as to all,

regardless of the fact that the injunctive portion of the judgment directly adjudicated the dispute of only the parties before

it. See John Doe No. 1 v. Reed, 130 S. Ct. 2811, 2817 (2010) (relief

would “reach beyond the particular circumstances of these

plaintiffs” and to that extent must “satisfy our standards for a
No. 13-3027 15

facial challenge”); Sabri v. United States, 541 U.S. 600, 609 (2004);

Ezell v. City of Chicago, 651 F.3d 684, 697–98 (7th Cir. 2011).

The Election Board now says it never would have agreed to

the Ogden consent decree if it had thought the result would

apply to other candidates. That subjective misunderstanding

of the law is not relevant. The final judgment was unambiguous: the anti-slating provision “is declared facially unconstitutional.” See In re Trans Union Corp. Privacy Litig., 741 F.3d 811,

816 (7th Cir. 2014) (“Litigants as well as third parties must be

able to rely on the clear meaning of court orders setting out

their substantive rights and obligations”). 

In the three categories of cases identified in Sprint, Younger

abstention serves to reach an equitable accommodation of the

states’ interest in enforcing their own laws with the need for

federal protection of federal rights. That balance tipsdecidedly

toward federal adjudication when a federal court has previously held in a judgment against a state orlocal agency that the

law is facially unconstitutional and the same agency then tries

to enforce it regardless.

Because thedistrict court erred in dismissing the case under

Younger, we REVERSE that decision and REMAND for further

proceedings, with the additional instruction that the district

court consider promptly whether to issue a preliminary

injunction against the Board, keeping in mind the primary

election scheduled for May 6, 2014. Nothing in this opinion

should be understood to prevent the Election Board from

making any arguments it wishes to make about changes in

applicable law or other circumstances preventing application

of issue preclusion based on the Ogden final judgment. Such
16 No. 13-3027

arguments, though, will need to be raised in the federal court.

The mandate shall issue immediately.

1

If Board members or their agents were to try to enforce the anti-slating 1

statute against other parties at this point, such as in the May 2014 primary

elections, we expect that this opinion and the Ogden judgment would make

it difficult to invoke the defense of qualified immunity to a damages action

under 42 U.S.C. § 1983.