                               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 in primary elections. 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 appar-
ently 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 Board proceed-
ings related to the slating violation and to enjoin the statute’s
future enforcement. The district court dismissed the case under
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 overseen by election boards 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 unani-
mously agreed that Mulholland had violated state election law.
The Election Board issued an order to that effect and autho-
rized 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 or list.” § 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). Apply-
ing 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 suppress-
ing 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 uncon-
stitutional,” 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 injunc-
tion 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 pre-
sented.” 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 unconstitu-
tional.
   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
Younger doctrine applied here. The court rejected Mulholland’s
argument that the statute was “flagrantly and patently”
unconstitutional. Although the defendant Board had previ-
ously 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 jurisdic-
tion. 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, or into 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 absten-
tion doctrine of Colorado River 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 the Election 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 impor-
tant 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 jurisdiction merely 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 investi-
gating 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 investiga-
tion); 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 broken other 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 proceed-
ing 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 enforce-
ment 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 proceed-
ings, 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 appro-
priate 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 whom-
ever 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 unconstitu-
tional 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 proceed-
ings 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
have not encountered before the idea of facial unconstitutional-
ity as applied only to a particular plaintiff. Facial unconstitu-
tionality as to one means facial unconstitutionality as to all,
regardless of the fact that the injunctive portion of the judg-
ment 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 unambigu-
ous: the anti-slating provision “is declared facially unconstitu-
tional.” 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 tips decidedly
toward federal adjudication when a federal court has previ-
ously held in a judgment against a state or local agency that the
law is facially unconstitutional and the same agency then tries
to enforce it regardless.
    Because the district 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




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