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Wednesday, October 08, 2008

Ind. Decisions - 7th Circuit decides two today

In Kozuszek v. Brewer (ND Ind., Judge Lozano), an 11-page opinion, Judge Williams writes:

Nicole Kozuszek and her brother Wesley Kozuszek, Jr., lived in Porter County, Indiana. On November 4, 2003, the Kozuszeks voted in an Indiana general election, but because of questions surrounding their residence, election officials spoiled (i.e., did not count) their ballots. Now the Kozuszeks have sued two Porter County officials under 42 U.S.C. § 1983, alleging that these officials violated the Kozuszeks’ federal constitutional rights by improperly spoiling their ballots. Because there is no evidence that these officials acted willfully to impair the Kozuszeks’ votes, we affirm the district court’s grant of summary judgment in the officials’ favor. * * *

One final observation. In addition to finding that the defendants had not acted willfully, the district court noted that “[t]here is no evidence that any elected position in [the] election was decided by two or less votes. As such, there can be no real argument that the [spoliation] of these two votes either undermined the election or caused the election to be unfair.” This holding implies that any level of election fraud is fine, so long as the fraud doesn’t impact the final results of an election. But an election is more than just a sum total of votes. It is also about the act of voting—an individual’s ability to express his or her political preferences at the ballot box. An official who willfully interferes with this act violates the Constitution, regardless whether the vote would have affected the election outcome. See Bodine, 788 F.2d at 1271-72. For example, a Democrat whose ballot is willfully spoiled can sue under section 1983 even if she lives in the “reddest” of states (where her candidate will lose) or the “bluest” of states (where her candidate will win regardless of her vote). So we expressly disavow the district court’s reasoning on this point.

III. CONCLUSION, The judgment of the district court is AFFIRMED.

In Lineback v. Spurlino Materials (SD Ind., Cheif Judge Hamilton), a 30-page opinion, Judge Ripple writes:
The Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local No. 716 (“the Union”) filed charges with the National Labor Relations Board (“NLRB”) against employer Spurlino Materials, LLC (“Spurlino”), alleging that Spurlino had committed multiple violations of the federal labor laws. On March 21, 2007, the NLRB’s General Counsel consolidated the charges against Spurlino and issued a formal complaint.

On May 11, 2007, the NLRB’s Regional Director filed a section 10(j) petition in the district court, seeking a preliminary injunction pending adjudication of the charges by the NLRB. See 29 U.S.C. § 160(j). The district court held a hearing on the petition and, on November 8, entered an order enjoining Spurlino from engaging in a number of unfair labor practices. For the reasons set forth in this opinion, we affirm the judgment of the district court.

Posted by Marcia Oddi on October 8, 2008 01:04 PM
Posted to Indiana Decisions