STATE OF INDIANA
IN THE MARION SUPERIOR COURT 3
CASE NO. 49D03-2610-CT-058232
GREG A. BALLARD,
Plaintiff,
v.
BETH BOYCE, ET AL.,
Defendants.
AMICUS CURIAE BRIEF OF ROBBIN STEWART IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL EMERGENCY PRE-ELECTION RELIEF
STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus Curiae, Robbin Stewart, is the plaintiff who secured the binding federal decree in Stewart v. Taylor, 943 F. Supp. 1038 (S.D. Ind. 1996), which explicitly found Indiana's political disclaimer mandates unconstitutional. Following that final declaratory judgment, the state promptly and systematically resumed the unconstitutional regulatory conduct at issue, failing to conform its administrative actions to the constitutional boundaries declared by the federal court. Amicus is also currently the GOP candidate for Marion County Clerk in the upcoming election. Amicus has a vital, concrete interest in the immediate dismissal of the underlying disclaimer complaint because the threat of similar unlawful enforcement is actively chilling his own campaign speech.
Specifically, Amicus wishes to produce and distribute campaign signs stating "Robbin Stewart for Clerk Vote Tuesday" without being forced to attach a state-mandated political disclaimer. However, the threat of administrative penalties, civil fines, or informal enforcement loops by election boards actively chills Amicus from exercising this core right. As the prevailing party in Stewart v. Taylor, Amicus files this brief to protect both the integrity of his existing federal decree and his current right as a candidate to distribute anonymous campaign literature free from unconstitutional government mandates.
SUMMARY OF ARGUMENT
Plaintiff Greg Ballard’s motion to compel an emergency pre-election meeting of the Indiana Election Commission should be denied. The state correctly argues that fundamental principles of equity, statutory limits, and the separation of powers preclude the extraordinary judicial intervention requested here.
First, the Purcell principle dictates a rule of judicial restraint on the eve of an election, recognizing that mandatory injunctions altering or accelerating election processes are heavily disfavored. Second, because the election code leaves the scheduling of complaints to the sound administrative discretion of the Commission, a positive or mandatory injunction is completely unavailable to compel a discretionary act where the statutory text provides no explicit, mandatory deadline to the contrary. Third, the critical public interest prong required for equitable relief is entirely lacking. Vindicating constitutional freedoms represents the highest public interest, and it is well-settled that the public has no interest in forcing an administrative agency to enforce or process an unconstitutional restriction on expression.
However, while the state's equitable defenses are sound, its threshold challenges are legally erroneous. The underlying controversy remains completely live, and the state’s denial of standing is wrong under settled First Amendment doctrine. Under Talley v. California, McIntyre v. Ohio Elections Commission, and Stewart v. Taylor, the right to speak anonymously is an active, individualized liberty interest that establishes clear standing when targeted by an unconstitutional state enforcement mechanism.
Plaintiff Ballard's demand that this Court compel an administrative inquiry into whether supporters of Birch Evan "Beau" Bayh IV engaged in independent political speech represents an egregious attempt to deploy state administrative machinery to silence political opposition. Forcing emergency pre-election enforcement over un-itemized in-kind event donations and party sponsorships involves routine accounting issues curable through subsequent amendments under Indiana Code § 3-9-4-5, which directly overlap with expressive association and assembly rights protected under Article I, Section 31 of the Indiana Constitution.
Because the moving party carries the sole burden of proof and persuasion to establish an active, un-refunded violation on the record and has failed to do so, the motion to compel must be denied.
ARGUMENT
I. The State is Correct That Principles of Equity, the Purcell Principle, and the Separation of Powers Preclude Mandatory Pre-Election Relief
The Plaintiff's motion requests an extraordinary exercise of judicial power that violates established equitable and constitutional boundaries. Under the Purcell principle, federal and state courts recognize a strict rule of equitable restraint on the eve of an election. Mandatory and positive injunctions altering election operations are heavily disfavored because they risk destabilizing orderly administration, injecting chaos, and altering established rules when stability is most critical.
Furthermore, the separation of powers doctrine strictly bars the judiciary from micromanaging the administrative dockets of executive agencies. A positive injunction is entirely unavailable to compel an agency to perform a discretionary act, such as scheduling a hearing or configuring its internal agenda. While a writ of mandamus or mandatory injunction may lie to compel a non-discretionary ministerial duty, the Indiana election code contains no specific, explicit statutory command forcing the Commission to hold a vote within a fixed number of days prior to an election.
Because the statutory text leaves meeting schedules to agency discretion, the public interest prong required for an injunction is wholly absent. Crucially, the public has zero interest in the administrative enforcement or processing of an unconstitutional restriction on political expression. As established in American Civil Liberties Union of Georgia v. Miller, 977 F. Supp. 1228, 1235 (N.D. Ga. 1997), “[n]o long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech” (quoting Reno v. American Civil Liberties Union, 117 S. Ct. 2329, 2346 (1997)). The Miller court further concluded that “the public interest is uniquely served by preventing the violation of constitutional rights.” Id. See also KH Outdoor, LLC v. City of Trussville, 441 F.3d 1285, 1293 (11th Cir. 2006) (holding that “the public interest is always served by preventing the violation of a party’s constitutional rights and weighs heavily in favor of having access to a free flow of constitutionally protected speech”). Because a court cannot compel an agency to execute an unconstitutional rule, the public interest demands the denial of the motion.
II. The State is Wrong to Deny Standing and the Existence of a Live Controversy Under Controlling Constitutional Precedent
While the state's equitable defenses are correct, its attempts to defeat this matter on threshold standing grounds are legally untenable. The underlying dispute presents an active, live controversy that cannot be brushed aside by the state's boilerplate jurisdictional denials.
Under the foundational frameworks of Talley v. California, 362 U.S. 60 (1960) and McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the right to distribute political literature anonymously is a personal, fundamental liberty interest guaranteed by the First Amendment. This protection was directly locked into Indiana law by Stewart v. Taylor, 943 F. Supp. 1038 (S.D. Ind. 1996), which explicitly declared that the state's political disclaimer mandates cannot constitutionally be enforced against campaign literature distributed by a candidate.
The state's argument that there is no standing or live controversy ignores the immediate, ongoing constitutional injury inflicted by these rules. The state promptly resumed the unconstitutional conduct at issue following the entry of the federal declaratory judgment in Stewart, creating a continuous and pervasive environment of administrative overreach. The threat of administrative enforcement loops and financial penalties creates an impermissible chill on core political speech. When an election board maintains a facially unconstitutional disclaimer rule on its books and permits complaints to be leveraged under it, the controversy is immediate, the injury is real, and standing is fully established.
III. The Total Absence of Evidentiary Proof Fails to Sustain the Movant’s Legal Burden
The corporate contribution complaint alleges a statutory breach involving a $60,000 transfer from a non-profit entity. While a campaign is afforded a standard, reasonable commercial window to audit and clear an electronic wire transfer, the record before this Court contains no definitive verification or physical banking records proving whether the funds were returned or retained.
This total absence of evidence is legally fatal to the Plaintiff's motion. Under basic tenets of administrative law and due process, the burden of proof and persuasion rests entirely on the movant to establish an active, uncorrected violation of the law. A movant cannot use a motion to compel to drag an agency into an emergency court-ordered session based on speculation, rumor, or unverified claims. Because the moving party has failed to bring forth actual proof establishing that an active statutory breach remains un-refunded, they have failed to sustain their legal burden.
IV. Compelling an Involuntary Administrative Review of Protected Political Expression Taints the Election Process and Restrains Core Associational Interests
Plaintiff Ballard seeks to have this Court judicially compel an administrative inquiry into complaints alleging that supporters of Birch Evan "Beau" Bayh IV had engaged in political speech. To weaponize the administrative framework of the state to scrutinize independent citizens for exercising their expressive speech and association rights amounts to a coordinated effort to silence political opposition on the eve of an election.
The remaining allegations concerning un-itemized in-kind event expenses and localized party sponsorships are routine accounting omissions that present no active emergency. Under Indiana Code § 3-9-4-5, the statutory framework explicitly permits campaign committees to file subsequent report amendments to correct technical errors and omissions long after an election cycle has closed.
These minor accounting entries directly overlap with core expressive association interests protected by both the Federal and State Constitutions. Article I, Section 31 of the Indiana Constitution strictly guarantees that no law shall restrain the right of citizens to assemble together in a peaceable manner, to consult for their common good, and to instruct their representatives. Independent political event coordination represents the exact forms of localized assembly protected by Section 31. Because these issues can be cleanly resolved via routine post-election administrative amendments, forcing an emergency, high-pressure pre-election hearing over assembly documentation is an unconstitutional misuse of the regulatory process designed solely to inflict political costs on adversaries and disrupt protected expression.
V. The Commission Lacks Subject-Matter Jurisdiction to Regulate Non-Advocacy Literature and Preempted Digital Platforms
The disclaimer challenge fails as an independent matter of law because the underlying communications sit entirely outside the statutory jurisdiction of the Commission. First, under the 27-year-old controlling rule in Brownsburg Area Patrons Affecting Change (BAPAC) v. Indiana Election Commission, 712 N.E.2d 981 (Ind. 1999), state election laws apply strictly and exclusively to communications that constitute express advocacy. Literature that discusses political issues or distributes voter information without express advocacy is completely immune to state disclaimer mandates.
Second, because the targeted literature was published and distributed via a Facebook page, it utilizes an exclusively federally regulated digital medium. The Federal Election Commission maintains absolute jurisdiction over social media networks and internet communications, completely preempting local boards from expanding state-level text disclaimers to digital speech. Whether the targeted items lack express advocacy or occupy a preempted federal medium, the underlying complaint fails to state a claim, and the motion to compel must be denied.
CONCLUSION AND PRAYER FOR RELIEF
For the foregoing reasons, Plaintiff-Amicus Stewart respectfully requests that this Court adopt the state’s correct equitable arguments regarding the separation of powers, the heavy disfavor of pre-election mandates under the Purcell principle, and the unavailability of positive injunctions for discretionary acts, reject the state's incorrect challenges to standing and the existence of a live controversy, find that the moving party has failed to sustain its burden of proof, and DENY Plaintiff's motion to compel a pre-election meeting.
Dated: October 27, 2026
Respectfully submitted,
Robbin Stewart
Plaintiff-Amicus, Pro Se
gtbear@gmail.com
PO Box 29164, Indianapolis, IN 46229-016