palmer v marion county

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA


Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. 1:08-cv-566-LJM

)
)
Marion County, Beth White, )
)
Defendants. )



PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTIVE RELIEF




Comes now plaintiff, for himself, and moves for a preliminary injunction of Indiana’s voter ID requirements. A memorandum in support follows.

The temporary injunctive relief sought is of several kinds.

A. Minimally, the court can direct defendants to count plaintiff’s vote in the primary and to allow me to vote in the fall election without showing ID, whether by provisional or regular ballot, but if provisional, that that ballot be counted.

B. Alternatively, the court can direct defendants to count each provisional ballot which is provisional because of failure to show voter ID, except where there is a preponderance of the evidence that a given vote is fraudulent or otherwise does not represent the actual ballot of an actual voter.

C. Maximally, and preferably, the court can entirely enjoin the voter ID program for the 2008 election cycle, and until the case becomes final or until further order of the court.

Options A and B will allow Plaintiff’s vote to be counted, while preserving all of the legitimate interests in deterring in-person voting fraud. As to options B and C, it is within the court’s discretion to order relief only in Marion County, or statewide (or at least in the Southern District of Indiana.)

The voter ID statutes, Senate Enrolled Act No. 483, 2005 Ind Acts p. 2005, were passed in 2005, at which time the Crawford and Rokita cases were filed. Plaintiff’s votes in 2006 were not counted. In 2007, I was deterred from voting. In the 2008 primary, my provisional vote has not yet been counted. The 2008 general election will be here soon. Time is of the essence. Suit was filed in April, along with a motion for TRO and preliminary injunction, shortly before Crawford was decided. By May, the Attorney General declined to intervene. The judge denied the TRO on procedural grounds that are arguably proper, and did not rule on the motion for preliminary injunction. Defendants removed the case to this court, over objection as to the removal of the state claims. Defendants filed an answer out of time, which was accepted. Briefing was held on the issue of whether the complaint survives Crawford, and the complaint was amended with more recent facts. The court set a schedule for filing motions and response in regard to a preliminary injunction. The court’s notice was dated 8/12 and received 8/18. Plaintiff has previously requested that copies of such notices be sent to plaintiff at gtbear@gmail.com. The existing motion for preliminary injunction has been pending since April 18. This motion supplements or replaces that motion.

A preliminary injunction requires a threshold showing of irreparable harm and some likelihood of success on the merits. Both are present here. Failure to count plaintiff’s provisional primary ballot is irreparable harm under Elrod v. Burns. Plaintiff has some likelihood of success under Crawford v Marion County, Harmon v Forssenius, Harper v Virginia Board of Elections, Norman v Reed and state cases on Art. II.

Next, the court weighs four factors, the likelihood of success, the relative burden on the plaintiff and defendants, and the public interest.

Plaintiff has a strong likelihood of success on the First Amendment claim, the Twenty-Fourth Amendment claim, the Article II section 2 claim, and has some likelihood of success as to each other claim.

The burden on plaintiff is severe. The burden on defendants, under option A or B, is minimal. The burden on defendants under option C is somewhat greater, but requires only that they preserve the status quo prior to 2005, a system which has worked well for many years. Under option C, defendants will bear little or no extra expense and may save money. Defendants argued in their response brief in Crawford that voter ID accomplishes little and gets in the way of their conduct of elections. “The magnitude of the interest affected by the Voter Identification Statute and the lack of evidence of the problem it is designed to prevent dictate that this Court should examine the law with close scrutiny.”

www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-21_RespondentMarionCty.pdf.

Nonetheless, option C has some risk of undercutting the supposed goals of the statute, to deter fraud, which may or may not exist, and may or may not be deterrable.

It may be that the court will find that options A or B, giving plaintiff some but far less than all of the relief sought, will provide the best balance of meeting the concerns of both sides.

The court has set a fast schedule for filing and responding to this motion, indicating that the court understands that time is of the essence. A fast decision is better than a perfect one.

Respectfully submitted,

_______________


Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.917.8002.
gtbear@gmail.com


I hereby certify that on or by ______, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.

Richard McDermott,

Jonathon Mayes
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

Robbin Stewart.
---


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA


Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. 1:08-cv-566-LJM-TAB

)
)
Marion County, Beth White, ) Prior cause no. 49D05-0804-CT-017641
)
Defendants. )



PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY INJUNCTIVE RELIEF







Contents

Table of Cases

Summary of Argument

Argument

Standard for injunction

Threshold tests met for harm and likelihood

Article II

Sections 2 and 1

Federal claims

Amendments 24, 1, 4, 14

Article I.

Sections 1, 9, 11, 12, 31

Burdens on parties,

Public Interest.

Conclusion

Table of Cases. Page




Anderson v Celebrezze, 460 U.S. 780, 790 6, 15, 19, 20, 27

BAPAC v Baldwin, 137 F.3d 503, 510 (7th Cir. 1998) 7

Bell v State, 818 NE2d 481, 484 (Ind App 2004) 19

Blue v Indiana ex rel Brown, 188 NE2d 583 (1934) 11

Board of Election Commissioners of Indianapolis v Knight, 117 NE 565 (1917), 5

Burdick v Takushi, 504 U.S. 428 (1992) 6, 11, 12, 15

Bush v Gore, 531 U.S. 98 (2000) 4

Chandler v Miller, 520 U.S. 305 (1997), http://vlex.com/vid/19962619 16, 17

Crawford v Marion County Election Bd, 458 F. Supp. 2d 775 (SD Ind. 2006), 472 F. 3d 949, 128 S.Ct. 1610 (2008). 6, 8, 9,10, 11, 13, 14, 15, 16, 20, 21

Edmond v Indianapolis, 531 U.S. 32 (2000),183 F.3d 659 (1999), affirmed, Edmond v. Goldsmith, 38 F. Supp. 2d 1016 (1998) 16, 17, 18

Elrod v Burns, 427 U.S 347 (1976) 4

Fritch v State 155 NE 257 (1927) 5

Harmon v Forssenius., 380 U.S. 528 (1965) 13, 14, 15, 19

Harper v Virginia Board of Elections, 383 U.S. 663 (1966) 19, 21

Hiibel v Nevada, 542 U.S. 177 (2004) 14, 16, 18

Indiana ex rel. McGonicle v. Madison, 193 NE2d 242 (1963). 5

Kelo v New London, 545 U.S. 469 (2005) 8

League of Women Voters of In. v Rokita, 8 http://www.lwvin.org/elibrary/LWVIN%20%20v%20%20Marion%20County%20Election%20Board%20Complaint%202%20(2).pdf

McIntyre, Estate of, v Ohio Elections Commission, 514 U.S 334 (1995) 17

Majors v Abell I, 317 F.3d 719 (7th Cir. 2003), Election L.J. 2: 315 (2003) 7

Morris v Powell 125 Ind 281, 25 NE 221 (1890) 5

Nixon v Condon, 286 U.S. 73 (1932) 23

Norman v Reed 502 U.S. 279 (1992) 15, 16

Joell Palmer v Marion County, 49A02-0611-CV-00977, 49D040610CT44113. 7,10

Purcell 127 S.Ct. 5, 549 U.S.__ (2006), on remand Gonzalez v Yes on Prop. 200, http://electionlawblog.org/archives/purcell-9th.pdf 4, 8

State v Shanks, 99 NE 481 (1912) 5

Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989) 17

Slaughterhouse cases, 16 Wall. 36 (1873) 19

State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002) 18

Talley v California 362 U.S. 60 (1960) 17

Terry v Ohio, 392 U.S. 1 (1968) 14, 16, 18, 24

Trimble v State, 816 NE2d 83, 91 (Ind.App 2004) 19

Twining v New Jersey, 211 U.S. 78, 97 (1908) 19

Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006) 5

WRTL II, 127 S. Ct. 2652 (2007) 5

Yick Wo v Hopkins, 118 U.S. 356 (1886) 4

“State Constitutional Protection of Democratic Pluralism”, http://umkcthesis.blogspot.com 24




Summary of Argument

In this case, there is irreparable harm and some likelihood of success, so the threshold tests are met and the court balances the four factors.

Plaintiff has a strong likelihood of success on Article II section 2 grounds and on the Twenty-Fourth Amendment claim. There is a reasonable chance of success on the First Amendment claim, the Fourteenth Amendment claims, and the Article II section 1 claim. There is some chance of success on the Article I claims. It is difficult to assess the odds of prevailing on the Fourth Amendment claim. Added together, they amount to a sufficient likelihood of success to support injunctive relief.

The burden on plaintiff, and the public, is severe. The burden on defendants ranges from minimal to moderate, depending on the degree of injunctive relief the court allows. The governmental interests are legitimate, but the program does not work well to further those goals. The public interest in a free and equal election weighs heavily in favor of enjoining a program that does more damage to the election process than it prevents. Injunctive relief should issue.

Argument

Injunctive relief is appropriate when there is irreparable harm, some likelihood of success on the merits, and the balance of four factors favors injunction: likelihood of success, burden on plaintiff, burden on defendants, and the public interest. There is irreparable harm. Plaintiff’s vote was denied in 2006. I was deterred from trying to vote in 2007 because the vote would have been denied. My vote in the 2008 primary remains uncounted. Unless this court provides relief, I will be unable to get my vote counted in the 2008 general election. The cumulative effect of denying and deterring votes in Indiana will result in not being able to determine the real winner in close elections. As with Bush v Gore, 531 U.S. 98 (2000), public faith in the legitimacy of elections can be shaken when the outcome is closer than the margin of error in an imperfect counting procedure. Irreparable harm occurs where voting is neither free nor equal. Voting is a fundamental right preservative of all other rights. Yick Wo v Hopkins, 118 U.S. 356 (1886). Voting is speech under the First Amendment. Denial of speech protected by the First Amendment is irreparable harm. Elrod v Burns, 427 US 347 (1976).

Once irreparable harm is established, the second threshold test is that there must

be some likelihood of success on the merits. Issuance of relief does not require certainty on the merits, or even a preponderance, but the case for injunction increases as the likelihood increases.

In cases impacting elections, if a plaintiff seeking

injunctive relief does not show a strong likelihood of success

on the merits, the court examines whether the plaintiff

will be irreparably harmed by denial of an injunction, whether

or not the balance of hardships favors the plaintiff, and

whether the public interest will be advanced by injunctive

relief. Southwest Voter Registration Educ. Project v. Shelley,

344 F.3d 914, 917 (9th Cir. 2003). Gonzalez v Yes on Prop. 200




The complaint states claims under Article II section 2, Article II section 1, and Article I. It states claims under the Fourth, First, Twenty-fourth, and Fourteenth Amendments, among others.

Article II: The strongest case on the merits is probably under Article II section II, because binding precedents of the Indiana Supreme Court have held that once a prospective voter has registered to vote, their right becomes vested, and no additional qualifications may be added. Some of these cases are old, and may not reflect the current thinking of the Indiana Supreme Court, and the cases do not specifically address the requirement of a passport or other voter ID, but for now they are law and bind this court. . Board of Election Commissioners of Indianapolis v Knight, 117 NE 565 (1917), Morris v Powell, 125 Ind 281, 25 NE 221 (1890), Indiana ex rel. McGonicle v. Madison, 193 NE2d 242 (1963), State v Shanks, 99 NE 481 (1912), Fritch v State 155 NE 257 (1927).

A Missouri case, Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006), is persuasive non-binding precedent. The Missouri court found that the state constitution did not allow registered voters to be burdened by an ID requirement, in addition to the other requirements authorized by the state constitution.

Under Indiana law, the legislature has wide discretion as to who may register to vote. This is somewhat limited by federal law and supremacy, especially for federal elections. In federal elections, the state must allow voting for those over 18, for women as well as men, may not discriminate on the basis of race, must allow the homeless to register, and must comply with the Privacy Act as to the use of the SSN, subject to modification by HAVA, the Help America Vote Act.

But the state is otherwise allowed wide latitude. For example, in Indiana, felons may not vote while in prison or on probation or parole, but afterwards may vote, while in some other states no felons may vote, and in others all felons may vote.

But in Indiana, the legislature’s wide discretion is as to who gets to register to vote. Once the legislature has allowed a person to register, their right becomes vested, and the legislature may not add any additional qualifications, such as that the voter obtain a passport, or that the voter apply for and purchase a voting license. The voter ID act was ultra vires, outside the scope of authorized legislative activity, and is void.

Under the now-vacated district court opinion in Crawford, 458 F. Supp. 2d 775 (SD Ind. 2006), the court failed to grasp this distinction between the vested rights of registered voters, and the unvested rights of those not registered to vote, and thought the legislature had unfettered discretion subject only to rational basis review. Since this is wrong, it does not constitute persuasive precedent, nor does one district court opinion, even if not vacated, bind another.

In addition to its error as to the standard of review under Article II, the Crawford district court erred as to the federal standard of review, applying Burdick v Takushi, 504 U.S. 428 (1992), rather than Anderson, 460 U.S. 780, 790. It had distinguished company; Judge Posner and Justice Scalia agreed. The district court opinion is still worth reviewing for its mastery of the facts, and for its analysis of the issues, but is within the wrong framework, and reaches the wrong conclusions.

A proper reading of Article II section 2 would find that once vested, the right to vote is protected either absolutely, or subject to strict scrutiny. When strict scrutiny is applied to the facts of this case, there is no compelling state interest in refusing to count plaintiff’s vote, where plaintiff is the person I claim to be, appears once and only once on the voting rolls, is known to several of the election officials, is not engaged in any voter impersonation, and there is no reasonable suspicion or probable cause which would justify a search of my person, papers, and effects, in the form of demanding my ID as a condition of counting my vote. Mere administrative convenience does not rise to the level which passes strict scrutiny.

Plaintiff’s argument under Article II section 2, standing alone, is sufficient to pass the threshold test of having some likelihood of success on the merits. If one disagrees, there are 15 other claims to consider. Having met the initial threshold tests, injunctive relief turns on weighing and balancing the four factors.

Under Article II section 2, plaintiff has a reasonable chance of success on the merits as to the minimum relief sought, counting my vote. I have a reasonable likelihood of success on the merits as to the intermediate level of relief sought, which is to count all the provisional ballots in Marion County which are provisional on the basis of failure to show voter ID, except where there is a preponderance of the evidence that a vote is fraudulent or invalid. There is some likelihood of success on the merits as to the full relief sought, of entirely enjoining the voter ID program, until a full decision on the merits after trial. Such an injunction should operate statewide, but the court could limit it to Marion County, or to the Southern District.

A flowchart of the possible outcomes in this case would show a number of possible paths that could be taken. Perhaps this court will erroneously believe that Art. II sec. 2 does not protect a vested right to vote. But that would not be dispositive of whether plaintiff has some likelihood of ultimate success on this point. Because this court has exercised its discretion to remove all of the case from the state courts, rather than only the federal claims, plaintiff will be moving to certify the state claims to the Indiana Supreme Court. See BAPAC v Baldwin, Majors v Abell. Of course this does not mean that the Indiana Supreme Court will be obligated to take the case. It has already declined one opportunity to hear these issues, in Palmer v Marion County, 49A02-0611-CV-00977, 49D040610CT44113.

This court may grant or deny the motion for certification. If granted, the Indiana Supreme Court may uphold or overturn the voter ID statute as to state claims.

If denied, this court may rule for or against plaintiff on Art. II section 2 grounds. There is a possibility of appeal to the Seventh Circuit, either or both on the procedural issue of certification and removal, and on the merits. The next step beyond review at the Seventh Circuit, by panel or en banc, is the Supreme Court. While very few cases are accepted for certiorari, the court has already indicated an interest in these issues by its decisions in Crawford and Purcell. If the Supreme Court took the case, it would be unlikely to address a state constitutional claim, but might certify to the Indiana Court, or resolve the case on federal grounds. Even if plaintiff loses at the district, circuit and Supreme federal courts, there might be one more way the issues could be decided in plaintiff’s favor. A case in state court, League of Women Voters v Rokita, filed after this case was removed, raises the Article II section 2 claim. If those plaintiffs prevail, perhaps the rules permit the case to be reopened to reflect the new law. At least there is such a procedure in state court.

The final appeal is to the court of public opinion. Sometimes a plaintiff can win by losing. Consider the aftermath of Kelo v New London, 545 U.S. 469 (2005). In Crawford, plaintiffs lost but won an important ruling as to the standard of review. More importantly to Representative Crawford, in 2006 the voters, motivated in part by a perception that the Republicans were engaging in unfair voter suppression, turned control of the lower house of the legislature over to the Democrats. This case is obscure, in comparison to Crawford. There has been one article in a trade publication, and a few mentions on internet blogs. Still, if injunctive relief were denied or delayed on grounds the public perceives as unfair, there could be a backlash against the incumbents perceived to be involved, or there could be an increase in public perception that their votes are being diluted by election officials gaming the system, with a resulting lowering of confidence in democratic process.

When the district court denied relief in Crawford, a reviewing panel of the 7th Circuit split 2-1. There were four votes for en banc rehearing, just short of the 5 votes needed. There were at least 4 votes to grant certiorari. The case was given expedited handling at the Supreme Court. Over 20 amici briefs were filed. While Crawford lost, three justices dissented, and the controlling plurality was careful to narrowly ground their opinion on such distinguishing factors as that it was a facial challenge with no individual deprived voters as plaintiffs, and that it sought to entirely enjoin the statute rather than seeking more tailored relief, where the plaintiffs agreed the statute was constitutional for most of the people most of the time.

The procedural history of Crawford supports plaintiff’s contention that I have a reasonable chance of success on the merits. A litigant seeking temporary injunctive relief is not required to prove that they will win. Rather, they have the burden to show serious concerns going to the merits. The stronger the likelihood, the more compelling is the case for injunction, but an evenly balanced likelihood justifies injunctive relief where the burden on plaintiffs is severe, the harm is irreparable, and the burden on defendants is minor. Plaintiff’s case is stronger than Crawford’s in many respects. I’ve actually been denied the vote. My challenge is as-applied. I have multiple strong legal theories. I have argument and evidence that the program severely burdens all voters, not just 1%. One distinction is that Crawford was well-represented, and had adequate resources to pursue his appeals.

An interesting aspect of Crawford’s procedural history is that the decisions reflected the same partisan split as in the legislature’s passage of voter ID. All the house Republicans voted for the bill, all Democrats against. The district judge was a Republican appointee, as were two of the Seventh Circuit panel. The only Democratic appointee dissented. The en banc vote also showed a partisan split. At the Supreme Court, six of the seven Republican appointees denied the appeal, Justice Souter dissenting, while both Democratic appointees dissented. In Georgia, a Democratic judge enjoined a voter ID statute on state and federal grounds. That decision was vacated on standing grounds, which is being re-litigated following Crawford. In Palmer v Marion, an earlier voter ID case in state court, a Republican judge denied injunction without a hearing and dismissed the case on a questionable procedural basis. In this case, below, a Republican judge denied a TRO.

Plaintiff has a reasonable chance of prevailing on the merits of the Art. II sec. 2 claim which is supported by binding precedent. If the Section 2 claim were the only claim, temporary injunctive relief would be appropriate to preserve the pre-2005 status quo as the case progresses, to limit further irreparable harm. However, the section 2 claim is only one of many.

Art. II sec. 1 states that elections shall be free and equal. No prior Indiana Supreme Court case under section 1 specifically decides the issue of voter ID, since in 190 years of statehood in Indiana, no ID requirement had ever been imposed. But the cases do set out general principles applicable here. "Elections are 'free' when voters are subject to no intimidation nor improper influence and every voter is allowed to cast his ballot as his judgment and conscience dictate and elections are 'equal' when the vote of every elector is equal in its influence upon the result to the vote of any other elector." Blue v Indiana ex rel Brown, 188 NE2d 583 (1934). Here, some votes, those of provisional voters who do not have or do not show passports or voting licenses, are not being counted, and so do not meet the standard for an equal election under Indiana law.

Elections are free when each registered voter can vote without coercion or duress or undue obstacles or barriers. The term free in section 1 refers to political freedom, and is not an accounting term. Still, where the state imposes direct financial costs as a prerequisite to voting, those votes are no longer free, in either an economic or political sense.

Plaintiff here paid $10 to obtain a birth certificate, $20 to obtain a voting license, and $5 to obtain a duplicate voting license. Additionally, I traveled hundreds of miles at significant expense and time to get the required documents. I think that the district court in Crawford was right that the travel expenses do not constitute a poll tax, but they do count as to the burden on voting rights.

I don’t have a current passport, in part because the $100 fee would be a hardship, and I haven’t traveled internationally for years. I have declined to show an ID, in the absence of any showing of probable cause or reasonable suspicion because I believe that I have a right to vote in free and equal elections, which cannot be made contingent on getting and showing ID.

Judge Posner’s idiosyncratic opinion depended very largely on its assumption that the standard of review was Burdick v. Takushi. 504 U.S. 428 (1992). Since this approach was rejected by the Supreme Court, it won’t be repeated. And Judge Posner’s choice to apply Takushi deference was driven by his perception of the lack of any directly impacted plaintiffs, unlike this case.

Indiana got along fine for over 100 years without voter ID. Between 2006 and 2008, the program hasn’t resulted in any prosecutions for voter fraud, and hasn’t been shown to have deterred any illegal votes, although, like shark repellant, it can be hard to tell whether or not it is working, when there are no sharks.

Indiana has had several years, a reasonable time, to investigate whether any dead voters are voting or whether anyone is voting at more than one address. These cases, which have reasonable suspicion and probable cause, can be individually targeted, rather than blaming the victims of voter fraud, and subjecting everyone to an unwarranted search.

The main “harm” that would be done if the statute were temporarily enjoined, is that the public perception could be affected. Some Indiana voters believe that voter ID makes elections more reliable. Some Indiana voters understand that voter ID makes elections less reliable. Some Indiana voters believe that elections are unreliable for reasons having to do with electronic voting machines, absentee ballot fraud, a few corrupt precinct officials, unfair ballot access restrictions, and other factors unaffected by voter ID. Some Indiana voters are confident about Indiana elections and don’t care about voter ID one way or the other. A majority of Indiana residents don’t vote, more often than not.

There have been some marketing surveys suggesting support for voter ID, but nothing scientifically rigorous enough to be admissible evidence in this court. Plaintiff is unable to afford the costs of a scientific public opinion survey.

The Supreme Court in Crawford found that public perception, whether or not correct, was a legitimate factor to take into account in the Anderson balancing test. Maybe the false public perception that voter ID security theater works, is itself enough of a reason not to broadly enjoin the statute entirely, but to limit relief narrowly to plaintiff and other provisional voters, whether only in Marion County or statewide.

Twenty-fourth Amendment claim:

The Twenty-Fourth Amendment was passed in the 1960s as part of the civil rights struggle to obtain voting rights for African-Americans. Traditionally, poll taxes had been one of a set of tactics used by Southern white Democrats to suppress voting by black Republicans. Other techniques included grandfather clauses and literacy tests. Each of these were claimed to be anti-fraud measures. There has been only Supreme Court case under the Amendment, Harmon v Forssenius., 380 U.S. 528 (1965). In Harmon, the Amendment was construed to prohibit not only poll taxes themselves, but also any similar barrier to voter participation. Virginia had enacted a scheme under which a voter could pay a poll tax or annually re-register six months before the election. The Court ruled that this was an unconstitutionally undue burden on Twenty-fourth Amendment rights.

There is a dispute about whether voter ID programs are a poll tax or other tax. In order to vote, voters must have or buy documents such as a birth certificate and passport or driver’s license, or get a “free” state ID, which also requires the birth certificate. A passport costs $100.00, and has a complex application, and takes time to obtain. Passports are designed for international travel, and have never been required domestically. Most Indiana voters don’t have current passports. Plaintiff doesn’t.

There can be little doubt that if a statute required a passport to vote, it would be unconstitutional. Compelled use of a passport to vote would impose a tax, by requiring a fee to be paid to obtain documents needed to vote, an undue burden which would undermine the integrity of the election process. The situation is similar with a driver’s license. While called a driver’s license, this is the basic ID card carried daily by most Indiana residents. It costs $20 to issue, $5 to replace, and, I think, $10 to renew every 5 or so years. The document is being increasingly used as internal passport, needed to enter a bar or a courthouse. It is not required to cash a check, board a plane, or rent a hotel room, but is usually used to streamline these transactions. Hiibel, a pedestrian, was arrested in Nevada for declining to show his driver’s license. The Court upheld his conviction because of Terry-type reasonable individualized suspicion, following a domestic violence report. Hiibel v Nevada, 542 U.S. 177 (2004). For Indiana voters, there are no such Terry-type grounds. The 80% of Indiana voters who have a driver’s license are not eligible for the “free” non-driver ID card. For these voters, being compelled to obtain and show a driver’s license in order to vote, and to pay fees such as for the license and a birth certificate, is a tax. If, somehow, it isn’t a tax, it is the kind of impediment to voting which Harmon found that the Twenty-Fourth prevents.

Even if I had been eligible for a free ID, which I am not, I had to pay $10 to apply for a birth certificate and hundreds of dollars in travels expenses to get it. This is a tax. If somehow it is not a tax, it is an obstacle to voting of the kind that Harmon says is prohibited. Crawford, 128 S.Ct. 1610 (2008), did not overrule or so much as mention Harmon.

We need not determine at this point whether the voter ID statute is unconstitutional under Harmon. It is enough that there are serious questions going to the merits of the 24th Amendment claim to justify temporary injunctive relief.

First Amendment.

Per Crawford, the standard of review for the First Amendment claim is at least that of Anderson v Celebrezze, 460 U.S. 780. The Anderson standard uses a four part test.

It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.

It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.

In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests,

it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. 460 U.S. 780, 790.




Alternatively, since Plaintiff is severely burdened by being denied the vote, and Indiana voters are severely burdened by an unwarranted suspicionless search, the standard is strict scrutiny under Norman v Reed, 502 U.S. 279 (1992).

No court has yet determined whether Indiana’s voter ID statute can withstand Anderson review in the case of an as applied challenge by a voter whose votes aren’t being counted. Crawford explicitly leaves room for such a challenge. WRTL II, 127 S. Ct. 2652 (2007), is an example of an as-applied election statute challenge. It is unclear whether the three concurring justices in Crawford would retain their position that Takushi deferential review is enough, or would follow stare decisis and apply at least the Anderson standard.

In Crawford, the plaintiffs’ position was supported by one member of the panel, four members of the circuit en banc, and 3 dissenters at the high court. This case is stronger than Crawford, both as to the facts and the legal theories. Under the First Amendment and Anderson, plaintiff has a reasonable if less than certain chance to eventually prevail, even if this court disagrees. Therefore, there is sufficient likelihood under the First Amendment claim to support temporary injunctive relief. My vote in the primary should be counted, and I should be allowed to vote in the general election in November and have my vote counted. Provisional ID-less voters should have their provisional votes counted, unless evidence can be shown that their votes are invalid. Whether or not to entirely enjoin the statute, so that voters wouldn’t have to show ID at all, depends on how this court weighs the relative burdens and the public interest.

If under Norman v Reed, “kiss of death” strict scrutiny is applied, plaintiff’s likelihood of success increases significantly, and it would be abuse of discretion and error of law to refuse an injunction.

Fourth Amendment claim:

The voter ID program is based on a sweeping dragnet of every Indiana in-person voter, involving a search of the driver’s license, ID, or passport, or, rarely, certain other identification documents such a current military ID or naturalization certificate, in order to be permitted to exercise the fundamental right to vote. The exercise of one right cannot be made contingent on the waiver of another. The Declaration of Independence protested against general warrants. Fourth Amendment landmarks such as Edmond v Indianapolis, Chandler v Miller, Hiibel v. Nevada, and Terry v Ohio counsel against unrestrained searches.

The Fourth Amendment requires reasonableness in conducting searches. Reasonableness generally, with narrow exceptions, requires a warrant supported by probable cause. Unwarranted searches have a rebuttable presumption of unreasonableness. The burden is on the state. In limited circumstances, the court has approved narrow exceptions to the warrant requirement. For example in Skinner v. Railway, 489 U.S. 602 (1989), the Court approved drug testing of railroad engineers on public safety grounds, and also has approved drug testing of customs agents and high school athletes. There is a “special needs” line of cases authorizing administrative searches. Only the Supreme Court, not lower federal courts, can create new exceptions to the warrant requirement. Perhaps it would create an “elections exception” in this case, based on the special need to protect election integrity. It has not yet done so. In two prior cases, the Court rejected elections exceptions. In Chandler v Miller, 520 U.S. 305 (1997), http://vlex.com/vid/19962619,
Walker Chandler refused to take a urine test as a condition for running for office as a Libertarian. The Court said the search was invalid without a warrant. In Estate of McIntyre v Ohio Elections Commission, Margaret McIntyre had been fined for accidentally leaving a disclaimer off some flyers. The Court held that there is no elections exception to the rule in Talley v. California, 362 U.S. 60 (1960), that the government cannot require disclaimers on political literature.

In Edmond v Indianapolis, the Southern District erroneously denied preliminary injunctive relief when Edmond and Joell Palmer were subjected to drug roadblocks. The Seventh Circuit reversed, and the Supreme Court agreed. In Edmond, the program had a hit rate of 9%. The voter ID roadblock on the other hand, has had zero hits over about ten million searches. Some would-be voters have been found to not have, or not show, ID, but none have been shown to be engaging in fraud, and none have been charged. Detecting voter fraud was one of the legitimate goals of the voter ID program, as an alternative to more traditional police procedures such as investigations based on cause, having staff assigned, offering rewards, and so forth.

In practice, voter ID hasn’t worked to detect any fraud. Whether or not it deters any is matter for speculation. My intuition, which I can’t prove, is that for every fraudulent vote deterred, ten honest votes are deterred, with an overall reduction of integrity to the election process.

Joell Palmer, a plaintiff in Edmond, is one of the voters whose votes were not counted in 2006. He reasonably refused to waive his Fourth Amendment rights when told election officials had no warrant to see his ID, just as they had had no warrant to search his car. A roadblock at the polling place is no more constitutional than a drug roadblock on the highway, unless and until authorized by both the United States Supreme Court and the Indiana Supreme Court.

Hiibel’s conviction under Terry was based on officer safety considerations. Voting fraud poses no comparable danger to precinct officials such as the three Jane Does who were originally parties to this suit.

The Indianapolis roadblocks violated not only the Fourth Amendment, but also Article I section 11 of the Indiana Constitution. In Edmond, the state claim was dismissed when the case settled for $120,000. But a later case, State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002), established that roadblocks can violate the Indiana constitution as well, under a reasonableness standard. “The Indiana Constitution has unique vitality even where its words parallel federal language." Trimble v State, 816 NE2d 83, 91 (Ind.App 2004). The citizens of Indiana enjoy a distinct and higher level of protection than … the federal constitution." Bell v State, 818 NE2d 481, 484 (Ind App 2004).

Whether voter ID is reasonable under section 11 is ultimately a question best resolved by the Indiana Supreme Court, but in the meantime, preliminary injunctive relief should issue.

Fourteenth Amendment.

The 14th Amendment has three relevant clauses, due process, equal protection, and privileges and immunities.

Twining v New Jersey, 211 U.S. 78, 97 (1908), states that voting in federal elections is an attribute of federal citizenship protected under the P&I clause. Several older cases agree, but see Harmon v Forssenius. Ex parte Yarbrough, 110 U.S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Wiley v. Sinkler, 179 U.S. 58, 45 L. ed. 84, 21 Sup. Ct. Rep.17. After the Slaughterhouse cases, 16 Wall. 36 (1873), the P&I clauses are rarely litigated, yet continue to have some applications, such as protecting the right to travel, under intermediate scrutiny. Whether the P&I clause applies to the 2008 federal elections in Indiana remains an open question.

Under Harper v Virginia Board of Elections, 383 U.S. 663 (1966), strict scrutiny had been the standard for equal protection of fundamental rights such as the right to vote, both generally and in poll tax cases such as this one. Crawford calls the Harper standard into question. Perhaps Crawford’s modification of the equal protection standard is limited to cases like Crawford, a facial challenge without directly impacted plaintiffs. If Anderson is the new equal protection standard, plaintiff here has a good chance to prevail on the merits. Applying Anderson, the court must weigh and balance my interest in the right to vote, my interest in ensuring that the election is free and equal, and my interest in the integrity of the election process, against the county’s legitimate stated interests, and then evaluate the extent to which the county’s interests make it necessary to burden my interests. The county will probably claim the same three interests the Supreme Court recognized in Crawford: detection and deterrence of fraud, concerns about voter lists, and public perception. None of these interests are furthered by refusing to count my vote.

Refusing to count my vote will not assist in detecting or deterring fraudulent voting. I appear once and only once on the voter rolls, and my signature matches my signature on the voter rolls. The state has had several years to identify and quarantine any voters on the lists who are voting while dead or voting more than once. Public awareness that my vote is unfairly not being counted will not help the process be perceived as more fair and honest than otherwise.

While the voter rolls contain extra names, investigation has shown that the dead are not voting in Indiana. Generally, apparent cases turned out to be clerical errors, such as someone signing the wrong line, or confusion between a father and son of the same name, or the person wasn’t really dead after all. My mother, Marion Stewart, was once turned away at the polls in Delaware because some other Marion Stewart had died. Only her perseverance, and a trip to the county election board, protected her right to vote that day. Provisional ballots are an appropriate way to handle such disputed cases, but only if there is a presumption that the provisional ballot should be counted unless there is competent evidence that it should not be counted. There is no compelling state interest in violating the rights of millions of living Hoosiers because of an irrational fear of zombie voters. Where historically there have been problems with the dead voting and other forms of voter fraud, as in Chicago (1960) or Texas (1952) or Boston (1922) or Kansas City (1934), there was active collusion by corrupt election officials, and that is a problem that voter ID doesn’t solve.

In this case, both sides have strong and legitimate interests in election integrity, but the voter ID program does not further those interests, when it prevents plaintiff’s vote from being counted. My interest in voting out-balances the government’s interest in suppressing my vote. I have a reasonable chance of prevailing on the merits on the equal protection claim, whether under Anderson or Harper. Where as here the burden on plaintiff is severe, the burden on defendants is less so, and the public interest requires that every voter be allowed to vote and that all legitimate votes get counted, and plaintiff has a reasonable chance of success on the merits of the equal protection claim, injunction should issue.

Due Process:

The Fourteenth Amendment’s due process clause has been held to protect both substantive due process, such as the right to vote, and procedural due process, such as the right to a hearing before a voting license is denied by the Bureau of Motor Vehicles.

Not addressed in Crawford are the procedural due process problems of putting the BMV in charge of who gets to vote in Indiana. The record in Crawford establishes that applicants for IDs are rejected 60% of the time per visit to BMV. The manner in which it does so is arbitrary and capricious, unsuitable for when a fundamental right such as voting is involved.

Several years ago I misplaced my driver’s license and went to get a duplicate at the BMV. Although I was in their records as a licensed driver, and it would have been easy for them to pull up my picture and see that I was the person the license had been issued to, I was told that I could not get a new license without a birth certificate. Meanwhile, I was told that I could not get a duplicate birth certificate without sending in a copy of my driver’s license. I spent a year in limbo. I filed an appeal with the BMV headquarters, requesting a hearing. I received a letter in response stating that the BMV does not provide hearings in cases of license denial. This lack of a hearing process is a denial of procedural due process.

Similarly when I was recently denied a duplicate license at the Beech Grove office, on the grounds that my name on my birth certificate doesn’t match the name on my driver’s license, I was told that I had no recourse.

Until the BMV adopts fair and rational procedures, it is unconstitutional under the Fourteenth Amendment to condition voting on possession of a BMV document. And the option of buying a $100 passport is not an adequate alternative, and probably also requires a copy of a driver’s license or similar ID.

Because I have a reasonable chance of prevailing on the due process claim, injunctive relief should issue.

Under the Privacy Act of 1974, when a state agency requires the disclosure of a social security number, it is obligated, upon request, to provide a written statement of how that number will be used. The BMV is not in compliance with this aspect of the Privacy Act. When voters with older licenses that have the Social security number displayed on the license are searched at the voting booth, there is no written statement available complying with the Privacy Act. Plaintiff has standing to raise the issue, because the invasion of privacy deters voting, and detracts from the integrity of the election process. I have a right, not only to vote myself, but to be governed only as a result of free and equal elections. Elections are unfree when the Privacy Act is routinely violated.

Indiana Bill of Rights claims.

In addition to the Article II claims and the federal claims, the complaint asserts claims under Article I, including sections 1, 9, 11, 12, and 31, the rights to liberty and to alter or abolish government, the right to free interchange of opinion and the right of freedom to speak and write, the right to due course of law, the right of freedom from unreasonable searches and seizures, and the right to petition. Voting is an exercise of the freedoms under sections 1, 9, 12, and 31. The unwarranted causeless search of the voting license as a condition of voting implicates rights under section 11. These are cases of first impression. Properly, it should be the Indiana courts which decide these issues.

In order to ultimately prevail, defendants must win every claim. In contrast, plaintiff only needs to win on at least one claim. While perhaps none of the Indiana Bill of Rights claims would compel injunctive relief standing alone, together, and together with the other claims, they support plaintiff’s position that there is a reasonable chance of success on the merits, such that temporary injunctive relief is required.

Burden on plaintiff

Voting is a fundamental right of value to every American, and its denial is a matter for which a jury can assess damages. Nixon v Condon, 286 U.S. 73 (1932) Nonetheless, voting is especially important to me personally, and I am severely burdened if denied the right to vote. I began working on political campaigns at age 10, worked on campaigns when I was 14 and 15 and 16, was a campaign manager for a statewide campaign at 20, have held appointed public office in four states, and have run for office four times. I once won a Republican primary. I’ve been a candidate for Marion County clerk, and when I ran for county judge I got 26,000 votes, where the previous record for my party in the county was 8000 votes. My LLM thesis at the University of Missouri-Kansas City was on “State Constitutional Protection of Democratic Pluralism”. http://umkcthesis.blogspot.com. Voting is one of the most important things in my life. However, it’s not the only thing.

The voter ID program presents me with a choice of not being able to vote, or being unlawfully searched without cause or warrant. In the 15 years I’ve lived in Indianapolis, I’ve been stopped and frisked without Terry-stop reasonable suspicion three times. I’ve had my house at 201 Eastern Avenue torn down without compensation. I’ve had cars seized. Each time I enter City Hall I am searched without cause. I’ve been stopped at an unconstitutional roadblock. At a recent traffic stop, my car was searched by a German shepard, without cause. I have been arrested and tortured while in pretrial detention at CCA’s Marion County Jail Annex II, over trumped-up charges that were later dropped. Each such search or seizure causes me great emotional distress. While voting is a very high value to me, being subjected to yet another unwarranted causeless search is a greater violation of my rights and my autonomy, which is why I mitigate my damages by not voting, instead of being subjected to the greater harm of being searched.

As applied to me personally, the voter ID program imposes a severe burden. As applied to Indiana voters generally, the voter ID program imposes a severe burden, conducting millions of searches with zero return. It is an undue burden, not justified by the state’s legitimate interests in detecting and deterring voter fraud, coping with an imperfect voter database, and creating an appearance of voter security for the public.

Burden on the defendants:

There is a range of possible relief sought under this motion. The minimal relief would be to count my votes, which would be an easy thing to do, and would not detract at all from the county’s three legitimate interests in voter fraud, list management, and public confidence. Similarly, the medium level of relief would involve treating provisional ballots, which are provisional over issues of voter ID, as presumptively valid, except where actual evidence shows the vote is invalid, by a preponderance of the evidence. The election board already meets to decide which provisional ballots to approve or deny. There would be some administrative inconvenience in having to review actual evidence, if any, instead of having a bright line rule not to count otherwise valid ballots that did not have ID. They already treat some provisional ballots as presumed valid unless shown otherwise, under HAVA, because this is the way provisional ballots are supposed to work

So the added burden is minimal or reasonable, and again, there won’t be any harm to the three interests since quarantining no-ID provisional ballots is sufficient to detect any fraud, works to deter in person fraud, and does not harm public confidence in the system.

There is a very strong case for at least minimal relief.

If the court grants the maximum relief requested, and enjoins the statute, whether in Marion County or more widely, then the state’s goals of hoping to deter vote fraud by this method would be frustrated, and the public perception could be affected.

So such relief would involve balancing a burden which is severe for the plaintiff, and is severe for the voters, most of whom don’t actually mind and are happy to waive their fundamental rights, against several legitimate state interests, where there is a reasonable but not certain chance that plaintiff will prevail on some point at some point.

The deciding factor would be the public interest. There is no public interest in the enforcement of an unconstitutional statute. There is a strong public interest in free and equal elections. Under voter ID, elections are less free and less equal. There is a strong public interest in being able to speak freely, to exchange opinions, to petition the government, to alter the government, and to have elections conducted with due course of law. There is a strong public interest in protecting the vested right of each registered voter to cast their ballot and have it counted. Voter ID, whether it was passed with the best of intentions or as a partisan voter suppression tactic, fails in practice, and detracts from the integrity of the election process. The Republic would be better off if it were enjoined, at least temporarily while the case proceeds.

Conclusion:

The public interest favors free and equal elections, which are interfered with by the voter ID rules, as applied to plaintiff. Plaintiff is severely burdened and irreparably harmed.

There is a strong chance of success on the Article II section 2 claim and the 24th Amendment claim, and a reasonable chance of success under the Article II section 1 claim, the First Amendment claim, the equal protection claim, the Fourth Amendment claim, the due process claim, and the Indiana Bill of Rights claims.

The court can tailor the injunction based on its weighing of the relative interests and burdens. At a minimum, Plaintiff must be able to vote and have his votes counted.

Similarly, each provisional voter-ID vote should be presumed valid unless shown otherwise. This approach would accommodate the interests of both sides, and be a reasonable working compromise as the case moves forward, to reduce the amount of irreparable harm where the governmental interest is minor.

However, if the court understands that voter ID burdens every Indiana voter, interferes with the integrity of the election process, is probably unconstitutional and void, is an undue burden not needed to further the government’s legitimate interests, is probably subject to strict scrutiny and fails the Anderson test, then the court should temporarily enjoin the program to prevent irreparable harm during the course of the litigation. The court should determine whether it would be better to enjoin only Marion County, or the whole state.

Respectfully Submitted,



_______________


Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.917.8002.
gtbear@gmail.com


I hereby certify that on or by August ___ 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.

Richard McDermott,

Jonathan Mayes
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

Robbin Stewart.
---
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA


Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. 1:08-cv-566-LJM

)
)
Marion County, Beth White, )
)
Defendants. )









MOTION TO COMPEL DISCOVERY

The court has dismissed, non-finally, the Jane Doe defendants who were the precinct officials at what was then Ward Ten precinct Seven. Their identity is known to the county and county clerk defendants but not to plaintiff.

Plaintiff submitted a first request for discovery* on July 17 and requested a preliminary response within ten days. There has been no response. More than 30 days have passed.

Plaintiff requests that the court order defendants’ counsel to comply with the discovery request promptly and in good faith. The discovery request sought to obtain the names and address of the Jane Doe defendants so that they can be properly served with process. The Doe defendants ought to be able to receive notice, so that their positions, whatever those might be, can be heard. They would be prejudiced by further delay.

Respectfully submitted,




_______________


Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.917.8002.
gtbear@gmail.com


I hereby certify that on or by ______, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.

Richard McDermott,

Jonathon Mayes
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204




Robbin Stewart.




*







U.S. District Court
Robbin Stewart
Plaintiff,
vs. Cause No. 1:08-cv-566-LJM
Marion County, Beth White,
Defendants.

Plaintiff's first request for discovery

1. Provide number of provisional ballots cast in Marion County in each election since 2006.

2. Provide number of provisional ballots cast in Marion County in each election since 2006 for reasons having to do with voter ID, and whether vote was counted.

3. Provide names and addresses of each voter listed in 2.

4. Provide voting history for plaintiff Robbin Stewart.

5. Provide names and addresses of each precinct official at the precinct which contains 227 N Temple St, for each election since 1/2006. Previously this was ward 10 precinct 7.

6. Provide any (nonprivileged) information you have relative to the identity of the three Jane Doe defendants.

7. Provide any written training manual or instructions for precinct officials having to do with voter ID currently in use.

8. Provide a copy of provisional ballot cast by plaintiff Robbin Stewart.

9. Following the 2008 primary, the Marion County Election Board held a meeting to decide which provisional votes would be counted. Provide the most complete record available of that meeting. E.g. videotape, audio tape, or minutes.

10. Provide minutes of any Marion County election board meeting since 1/2006 at which voter ID was discussed or was on the agenda. Indicate whether video or audiotape is available for the meeting.



11. State any governmental interest requiring the use of voter ID in Marion County, on which you intend to rely in this lawsuit.



Please mail your response to Box 29164 Cumberland In 46229-0164, and advise me by email at gtbear@gmail.com when the response is mailed or is to be mailed. If any of these requests will take longer than 10 days, please advise me by email within ten days of how long you estimate it will take to respond. I have tried to make these discovery requests simple, and easy to comply with, but if any are especially burdensome, feel free to discuss them with me; requests can be rephrased if I am otherwise getting good faith cooperation in discovery.




UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA


Robbin Stewart )
Plaintiff, )
)
vs. ) Cause No. 1:08-cv-566-LJM

)
Marion County, Beth White, )
)
Defendants. )



MOTION FOR CERTIFICATION TO THE INDIANA SUPREME COURT

Comes now plaintiff and for his motion to certify questions of state law to the Indiana Supreme Court states as follows.

Many of the issues in this case are solely matters of state law. The complaint states multiple claims under the Indiana constitution. While the Article II section II claim is supported by binding precedent which can guide this court, we do not know if the current Indiana Supreme Court will stand by these older precedents. The existing precedents under Article II section 1 do not directly address voter ID, and leave room for interpretation. The issues of whether and how Article I sections 1, 9, 12, and 31 apply to elections are cases of first impression.

This court lacks jurisdiction to authoritatively construe the Indiana Constitution. Its opinions would be advisory and speculative. It would be appropriate to certify the questions of state law to the Indiana Supreme Court. BAPAC v Baldwin, Majors v Abell I. Of course, the Indiana Supreme Court would be free to decline the offer of certification.

A proposed text for the certification is as follows:

Questions certified:




Senate Enrolled Act No. 483, 2005 Ind. Acts p. 2005, hereinafter “voter ID”, amended Ind. Code 3-11 to require registered voters to show a passport, driver’s license, or other official government ID in order to vote in person.




Does Voter ID violate the vested right of a registered voter to vote under Article II section 2?

Does voter ID violate the free and equal elections clause of Article II section 1?

Does voter ID violate the right of self-government and freedom of speech and petition found in Article I sections 1, 9, 12, and 31?

Is the unwarranted suspicionless search of voter ID reasonable under Article I section 13?




Respectfully submitted,

_______________


Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.917.8002.
gtbear@gmail.com


I hereby certify that on or by ______, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.

Richard McDermott,

Jonathon Mayes
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204




Robbin Stewart.