palmer v marion county

supplemental brief in reply re injunction and motion for leave to file and motion for expedited docket
(note, this brief was filed, but won't necessarily be accepted by the court.)


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. 1:08-cv-566-LJM
)
Marion County, Beth White, )
Defendants. )
State of Indiana, )
Intervenor-Defendant )

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

Enclosed is a short brief pointing out errors of fact and law in the State’s recent filing in opposition to injunctive relief. The court had set a schedule for filing of motions and briefs concerning preliminary injunction, which both sides have complied with. That schedule did not contemplate a reply from Plaintiff. I received the filing on September 29 and am drafting this September 30th to file October 1.
Because the State’s filing contained errors of fact and law, a sense of due diligence compelled me to write these down and offer this writing to the court, but it is within the court’s discretion to accept or reject this filing. I have made an effort, only partially successful, to be objective rather than adversarial.
I recognize at some point somebody must have the last word. Further, time is of the essence, a decision is needed very quickly, and it would be better to not accept this filing than to have it become cause for delay. If the court finds that this brief would assist the court in its process, it can accept it; if the court does not, it can deny it, without objection from me.
Respectfully submitted,

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

CERTIFICATE OF SERVICE
I hereby certify that on October __, 2008, a copy of the foregoing
response will be filed electronically if I can figure out how, and that copies have been sent via hand delivery or First Class Mail to

Jonathan L. Mayes
jmayes@indygov.org
Richard G. McDermott
rmcdermo@indygov.org
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204


David A. Arthur
Deputy Attorney General
Office of Attorney General
Indiana Government Center South, Fifth Floor
302 W. Washington St.
Indianapolis, IN 46204-2770

_____________
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. )
State of Indiana, )
Intervenor-Defendant )

PLAINTIFF’S MOTION FOR EXPEDITED DOCKET


Comes now plaintiff and for his motion for expedited treatments states as follows.
This is a case where time is of the essence, whether the public interest in free and equal elections is at stake, and where the rules call for accelerated handling on the docket.
Only criminal cases involving the liberty or life of prisoners take a higher priority.
Justice delayed is justice denied. I think that the court is already aware of the importance and time sensitive nature of the case, but because I am not expert on the court’s procedures, and it may be that a formal motion for accelerated handling is required, I submit this motion. If the court grants the requested preliminary injunction, the time pressure will be removed and the case can proceed at the usual pace.
Respectfully submitted,
______________
Robbin Stewart
P.O. Box 29164
Cumberland, IN 46229-0164
gtbear@gmail.com





CERTIFICATE OF SERVICE
I hereby certify that on October __, 2008, a copy of the foregoing
response will be filed electronically if I can figure out how, and that copies have been sent via hand delivery or First Class Mail to

Jonathan L. Mayes
jmayes@indygov.org
Richard G. McDermott
rmcdermo@indygov.org
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

David A. Arthur
Deputy Attorney General
Office of Attorney General
Indiana Government Center South, Fifth Floor
302 W. Washington St.
Indianapolis, IN 46204-2770


____________
Robbin Stewart

C:\Documents and Settings\Administrator\My Documents\stewartvmarion093020083motion.doc


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. 1:08-cv-566-LJM
)
)
Marion County, Beth White, )
Defendants. )
State of Indiana, )
Intervenor-Defendant )


PLAINTIFF’S SUPPLEMENTAL BRIEF ON PRELIMINARY INJUNCTION

The reply brief submitted by the state contains errors of fact and law.
Errors of fact:
“[P]hoto identification is necessary to … board an airplane, enter a federal courthouse… cash a check….” P.13. Repetition of this myth doesn’t make it true. I have boarded a plane without ID. My right to do so was established in Gilmore v Gonzalez. When I entered the federal courthouse to file my motion of objection to removal, I didn’t have ID, so the guard helpfully escorted me to the clerk’s office where I filed my motion. My friend John is moving next week. There is no statute that requires me to check his ID before renting him my pick-up truck. When I cash a check at my bank, I say “Hi Pam” and she cashes my check without ID, nor is there any statute violated. Photo Identification is required for driving, where there are strong state interests in personal safety at issue from driving, generally considered a privilege and not a right.
ID is “necessary to function in society on a daily basis.” P.13. Thousands of Indiana residents get along without ID, some by choice, others by necessity. They are already substantially burdened. There is no need to disenfranchise them as well.
“Those who do not already possess the necessary ID may obtain a free non-license ID from the BMV” P.14. Wrong. First, it isn’t free when you have to buy the documents to get it. Second, 60% of applicants are denied per visit. Some persevere, others give up. For example, I was told that I couldn’t get a duplicate license issued without a birth certificate, and was then told that I couldn’t get a birth certificate without a driver’s license.
“When he was without a license, he could have gotten a free identification card” P.14. Wrong. At the time I was denied a duplicate driver’s license, I was already a licensed driver, and thus ineligible for a non-free “free” ID. 80% of Indiana residents are similarly ineligible. When, eventually, my license expired, I still couldn’t get an ID, because without a license or ID I couldn’t get a birth certificate to get a license or ID.
Errors of law: The State’s brief contains a series of errors of law, or mixed law and fact, which have the potential to mislead the court. This filing is an attempt to be useful to the court in identifying these errors, so that the court can rule on the merits without distraction. Points addressed in the State’s brief include: delay in seeking relief; status quo; Plaintiff’s license; standard of review and presumption of validity; lack of evidence; standing; poll tax claim, whether rejected by supreme court or moot; broadness of relief; Articles I and II, First Amendment and Article 9; Fourth Amendment and Article 11, Fourteenth Amendment and Article 23. These are addressed in turn.
Delay in seeking relief.
Plaintiff has not delayed in seeking relief. Upon passage, the statute was immediately challenged, and has been in litigation without pause ever since. Plaintiff did not move to intervene initially, because it seemed that the Crawford and Rokita plaintiffs were ably represented and adequate to the task, and my own resources are very limited. Plaintiff was one of the many real parties at interest in the Crawford litigation. I did not foresee that both the district court and the Seventh Circuit would err as to the standard of review and the consequent outcome. After the Seventh Circuit panel opinion, it seemed too late to intervene.
I participated in the petition for rehearing at the Seventh circuit, by submitting an amicus brief, which was denied by Judge Posner, probably because the Attorney General refused to consent to its filing. That brief raised new arguments which might have been persuasive to one of the en banc panel, which split 5-4. A copy is available on request. I then participated as amicus in Crawford, in a brief for Cyber Privacy, Joell Palmer, and Robbin Stewart, et al. http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefamicuscuriaeofCyberPrivacy.pdf
In 2006, I represented Joell Palmer in Palmer v Marion County, raising many of the same points. The trial judge denied a motion for TRO on ground that the form of notice had been defective, and erroneously refused to conduct a hearing on the preliminary injunction. On appeal, the Indiana Supreme Court declined transfer, and the Court of Appeals erroneously ruled on 11/6/2006 that the denial of the preliminary injunction was not a denial of a preliminary injunction for Rule 14 A purposes, so that it lacked jurisdiction, where the trial court had not ruled on the motion for leave to appeal. The state then moved, groundlessly, for dismissal on the basis that the complaint was argumentative, and the motion was granted. Palmer chose not to appeal.
In the current action, my initial motion for preliminary injunction has been pending since April, even before Crawford was decided.
So the state’s argument that I have delayed is unreasonable; on two occasions the state has raised procedural objections delaying, for years, my attempts to obtain resolution on the merits. The possibility that the state will continue to harass and delay is one of the reasons temporary injunctive relief is needed to prevent further irreparable harm while the case goes forward.
It is worth noting for the record here my formal objection to the Court’s having granted the State’s untimely motion for intervention. The Attorney General was served on or about April 19th and under the Indiana Rules had 30 days to intervene as of right, which elapsed in May. The federal rules for intervention by the state do not address whether or not the clock re-starts upon removal to federal court, and I have been unable to find any case law on the issue. The state’s motion for intervention did not seek a waiver for its untimely filing. The federal rules allow for the state to intervene, when timely filed. There is an issue here of whether the state’s motion was timely filed.
It is not plaintiff who has unreasonably delayed in this case. The state decided in April or May that it would choose not to participate, and should be held to that decision.
Of course the State here is really a stand-in, at taxpayer expense, for the interests of a faction of the Republican Party and its leaders such as Todd Rokita. It has been interesting to watch corporation counsel represent both the city-county, a Republican administration, and the County clerk, who in her filing with the Supreme Court showed a very different and opposed set of interests. http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefofrespondentMarionCountyElectionBoard12-4-07.pdf
Perhaps the parties have signed waivers of the conflict, allowing the joint representation, which would be non-discoverable work product.
Status quo: As stated above the program has been in litigation since day one. For unknown reasons, the Rokita and Crawford plaintiffs did not seek temporary relief. Perhaps they expected a quicker resolution of the case. The motion for injunction seeks to restore, temporarily while the litigation goes forward, the status quo before the effective date of the statutes.
Standard of review – presumption of validity.
Generally, statutes have a presumption of validity. There are exceptions to the general rule. For example, statutes which invidiously discriminate based on race are not presumptively valid. Other exceptions are election cases, cases which infringe on free speech, and cases about unwarranted searches. Because of the inherent conflict of interest legislatures have when it comes to deciding how the legislature shall be elected or re-elected, courts give “close” and “exacting” scrutiny, and do not automatically defer to legislative preferences. Buckley v Valeo.
Standard for injunction – the State correctly states the standard for injunction.
Lack of evidence. Here, the relevant evidence is the statutes, which speak for themselves, and of which judicial notice must be taken. Plaintiff has attempted to obtain additional evidence, but defendants are refusing all cooperation with the discovery process. The court may also take judicial notice of the record in Crawford, which is a matter of public record and is presumably stored in file cabinets within the courthouse.
The complaint in this case was verified. Later, the court granted Plaintiff’s motion to supplement the complaint, deeming the motion as the functional equivalent of an amended complaint, without specifying whether it is the functional equivalent of a verified complaint. Nothing in the motion for injunction is dependant on the new facts in the supplement to the complaint. The quantity of evidence required for a preliminary injunction is not great; the point is to preserve the status quo for a limited time while evidence can be gathered and assessed. The evidence is adequate to its purpose.
I hereby verify that the facts in the supplement to the complaint are true, to the best of my knowledge and belief.
_______________________
Standing: The Supreme Court in Crawford found that the parties had standing, although none of them had been denied the vote, because of rights of political association. As a person who has been and is being denied the vote, I have standing, but I also have standing on association grounds, because the program dilutes my vote and compromises the integrity of the election process.
Poll tax claim not rejected by Supreme court.
“The Court held that the voter ID law is not a tax.” P.15. Crawford contains no such holding. Crawford did not address any Twenty-Fourth Amendment claim, and did not decide whether voter ID is a tax, or an obstacle like a tax under the Harmon standard. Justice Scalia’s concurring opinion erroneously states that voter ID cards are free, but this is not the holding in the case. “The Seventh Circuit was even more clear and precise on this point.” P.15. But the Seventh Circuit’s opinion was vacated by certiorari, because the Circuit erroneously applied a deferential standard of review, from which its analysis followed.
The state’s attempt to rely on the erroneous and vacated opinions of the district court as to First Amendment claims (p. 16) is similarly in error. Further, a ruling on the First Amendment is not dispositive of a claim under Article 9. (It appears, p.16, that the state has mixed up Articles 11 and 9 – probably just a clerical error.)
Poll tax claim not moot – Plaintiff’s claim is not moot, 1, because there is a live controversy, 2, because it is capable of repetition yet evading review. Plaintiff has been and will be denied the vote at each election beginning in 2006. What the State fails to understand is that plaintiff’s vote is diluted when the state suppresses voting, interfering with the integrity of the election process, so plaintiff is harmed, whether or not my own vote is counted.
Broadness of relief. While in ordinary civil litigation between private parties, or criminal cases, injunctions rarely come up, in election cases about allegedly unconstitutional statutes, they are the norm. This case is not just about one voter, any more than Rokita or Crawford were only about one voter. Here, the one voter is a person with as-applied standing to challenge the overall program, the element that was lacking in Crawford. I have detailed my own experiences as a concrete example of the large burden the program places on registered voters, but the case is about the program in general. If I were the only voter being singled out for disenfranchisement, I wouldn’t bother to bring the case. I bring the case for the others of my friends and neighbors who lack the resources to do so, and out of a concern for the integrity of the election process.
Articles I and II The cases cited on Articles I and II are about voter registration. The cited cases make clear that the state has wide latitude in establishing voter registration, as a needed anti-fraud measure, but that once registered the voter’s Article II rights become vested and cannot be taken back.
The First Amendment claim is not governed by the erroneous and vacated district court or circuit court opinions. Even Crawford is distinguishable, because it turned on the facial-ness of the challenge, as in Washington State Grange or McConnell v FEC.
This is a case of first impression as an as-applied challenge to Indiana’s voter ID, and it cannot be honestly said plaintiff has no chance of success.
Fourth Amendment and Article 11 claims
“A request for identification is not a seizure” p.16, when the individual is free to say no. A demand for identification backed by threat of arrest, or here denial of the vote, is a seizure, and if one complies, a search takes place.
The State states three times (pp 16-17) that producing ID is a not a seizure or a search.
Three wrongs don’t make a right. When a voter is not allowed to vote unless and until they produce a voting license, a search and or seizure takes place.
Fourteenth Amendment claim and Section 23 claim.
The State doesn’t address the merits of the procedural due process claim, but only repeats its errors about mootness and standing, still not understanding that plaintiff has a right, not only to vote myself, but to have an honest election at which all votes are counted.
Plaintiff has not raised any Article 23 claim. Collins v Day effectively reads section 23 out of the Indiana Constitution. Plaintiff’s equality arguments under the Indiana Constitution are based on Article II section 1, not Article I Section 23.
The State’s arguments about standing are strongest as to the Privacy Act issue about the social security number. It may be difficult to show that plaintiff’s vote will be diluted by some voters being deterred by an inappropriate demand for a document with their social security number on it, or by a failure of the county and state to comply with Privacy Act requirements for use of the number.
P & I: The state admits it doesn’t understand the P & I claim (p.18). Voting in a federal election may be among the privileges and immunities of federal citizenship. Twining. There is some split in authorities on this point. Plaintiff is being denied the vote in a federal election, so the P & I clause is directly implicated.
As to equal protection (p.18) the State refers to discrimination based on race or gender or political affiliation. But equal protection also applies to fundamental rights. Carolene Products, note 4. Here, the franchise, a fundamental right, is being made contingent on the waiver of the right to be free from unreasonable search and seizure, also a fundamental right. The statute does not provide for fair and equal treatment; instead it invidiously discriminates against those unwilling to waive their rights under the 4th Amendment and the Indiana Constitution. This in turn also creates political affiliation discrimination. The supporters of Ron Paul and/or the Libertarian Party are the least likely to be willing to be searched without cause or warrant, to obtain or carry or show official identification papers or submit to Privacy Act violations, and are likely to be deterred from voting, so plaintiff’s vote is diluted.
The State has not shown that there is no chance of success on the merits on all of the claims, or on any of the claims. The State has failed to show that there is no irreparable harm which can be redressed by injunction. At best, the state has presented arguments showing that some of the claims are not clear cut, and could go either way.
But injunctive relief does not require certainty. Nothing in the State’s brief refutes Plaintiff’s case for injunction.
Respectfully submitted,

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


CERTIFICATE OF SERVICE
I hereby certify that on October __, 2008, a copy of the foregoing
response will be filed electronically if I can figure out how, and that copies have been sent via hand delivery or First Class Mail to

Jonathan L. Mayes
jmayes@indygov.org
Richard G. McDermott
rmcdermo@indygov.org
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204



David A. Arthur
Deputy Attorney General
Office of Attorney General
Indiana Government Center South, Fifth Floor
302 W. Washington St.
Indianapolis, IN 46204-2770

______________
Robbin Stewart

C:\Documents and Settings\Administrator\My Documents\stewartvmarion0930082.rtf

Text of the state's response brief (long) (note - date is 2008, not 2004 - I am putting these with an old date so it goes in the archives, and will have a link on the main page.)
Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 1 of 20

IN THE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION


ROBBIN STEWART, )
)
Plaintiff, )
)


v. ) CASE NUMBER: 1:08-cv-586-LJM-TAB
)
MARION COUNTY, et al. )
)
Defendants, )
)
STATE OF INDIANA, )
)
Intervenor. )


RESPONSE TO PETITION FOR PRELIMINARY INJUNCTION

Intervenor State of Indiana, by Steve Carter, Attorney General of Indiana,

by David A. Arthur, Deputy Attorney General, respectfully urges the Court to

deny the petition for preliminary injunction. There is no irreparable injury and

no likelihood of success on the merits. The injury to the electoral process

would be great. The petition should be denied.

Introduction

Plaintiff Robbin Stewart seeks a preliminary injunction against the

statutory requirement that a person appearing at the polls to vote on election

day present government-issued photographic identification. He has a driver’s

license but objects to presenting it in order to cast his vote.

The statute requiring identification was enacted three years ago. P.L.

2005-109. There is no explanation in the petition for the lengthy delay in


Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 2 of 20

seeking “emergency” relief. Nor is there any suggestion that the petitioner is
unable to comply with the law requiring that he identify himself at the polls.

Claims in the Petition

Plaintiff claims that the statute violates Article II, §§ 1 and 2 of the
Indiana Constitution by adding qualifications to vote and making elections
other than free and equal, the 24th Amendment to the federal Constitution
because the identification requirement is a poll tax, the 1st Amendment
because the right to petition government is impinged, the 4th Amendment and
also Article I, § 11 of the Indiana Constitution because the requirement
constitutes an unlawful search and the 14th Amendment because equal
protection and both substantive and procedural due process are denied.

Applicable Standards

When the moving party asks a court to enjoin the application of a statute
because it is unconstitutional, that party must overcome the strong
presumption that the statute is constitutional. See Bowen v. Kendrick, 487

U.S. 589 (1988); Government Suppliers Consolidating Services, Inc. v. Bayh, 734
F.Supp. 853, 862 (S.D.Ind. 1990); Hines v. Elkhart Gen. Hosp., 465 F.Supp.
421 (N.D.Ind.), aff'd, 603 F.2d 646 (7th Cir. 1979); cf. Eddy v. McGinnis, 523
N.E.2d 737 (Ind. 1988) (Indiana Supreme Court presumes challenged
enactment constitutional).
A party seeking a temporary restraining order or preliminary injunction
must demonstrate that it has (1) some likelihood of succeeding on the merits
and (2) “no adequate remedy at law” and will suffer “irreparable harm” if

2



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 3 of 20

preliminary relief is denied. Lawson Products, Inc. v. Avnet, Inc., 782 F.2d
1429, 1433 (7th Cir. 1986); Roland Machinery Co. v. Dresser Indus., Inc., 749
F.2d 380, 386-89 (7th Cir. 1984). If the moving party cannot establish either of
these prerequisites, a court’s inquiry is over and the injunction must be
denied.

If, however, the moving party clears both thresholds, the court must then
consider: (3) the irreparable harm the non-moving party will suffer if
preliminary relief is granted, balancing that harm against the irreparable harm
to the moving party if relief is denied; and (4) the public interest, meaning the
consequences of granting or denying the injunction to non-parties. Lawson
Prods., 782 F.2d at 1433; Roland Mach., 749 F.2d at 387-88. The court then
“weighs” all four factors in deciding whether to grant the injunction, seeking at
all times to “minimize the costs of being mistaken.”

Applying these standards, the requested preliminary injunction should
be denied.

The Preliminary Injunction Request should be Denied

I. Procedural Bars
First, the plaintiff has not presented any admissible evidence to the
court. Neither the amended complaint (docket no. 14) nor the petition for
preliminary injunction (docket no. 21) is verified or supported by declaration or
other testimony. The only “facts” are those stated in the complaint, petition
and memorandum of law, but those are not verified and cannot be supported
by declaration.

3



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 4 of 20

A. The Plaintiff Lacks Standing
Throughout the petition and memorandum, plaintiff raises issues as to
which he has no standing. For example, he claims that the rights of those
voters who have social security numbers on their drivers’ licenses are being
violated because the license has to be displayed. But the plaintiff never says
that his social security number is on his license, which is doubtful because he
only recently received a new license after losing his license after the last
election. This is not a class action, nor could it be. This plaintiff lacks
standing to complain about the request for or display of social security
numbers to vote.

At the core of the standing doctrine is the requirement
that a plaintiff "allege personal injury fairly traceable to
the defendant's allegedly unlawful conduct and likely to
be redressed by the requested relief. Allen v. Wright,
468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d
556 (1984), citing Valley Forge Christian College v.
Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d
700 (1982).

County of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991). No claim of
personal injury to the plaintiff is made in this case as it relates to social
security numbers and thus there are insufficient allegations to establish
standing to bring that issue.

Standing is not merely a rule of convenience, it is a constitutional
requirement for establishing the jurisdiction of this Court. Rule 8 also requires
that the complaint show that the court has jurisdiction.

4



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 5 of 20

B. Plaintiff has no Personal Injury
There is likewise no claim of personal injury in relation to the upcoming
elections as relates to the claim that having to produce photographic
identification at the polls is a form of poll tax. Plaintiff now has a driver’s
license that he can display at the polls and will not have to pay a renewal or
other fee between now and election day.

As shown below, the poll tax claim has already been rejected by the
Supreme Court, but even had that issue not been resolved, this plaintiff would
not be able to raise it. It is a moot point at this time and plaintiff lacks
standing to pursue that claim in relation to the November 2008 elections.

The relief that the plaintiff seeks in his request for a preliminary
injunction is overly broad for a case in which there is a single plaintiff. He asks
that votes cast provisionally by others be counted or that the court enjoin the
requirement of producing identification. As he can only raise his own rights,
any relief that involves any vote other than this plaintiff’s would be too broad.

C. Plaintiff Seeks a Drastic Remedy
Finally as a preliminary matter, the court should not order the
“extraordinary and drastic remedy,” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997), quoted in Goodman v. Illinois Dept. of Financial & Professional
Regulation, 430 F.3d 432, 437, of a preliminary injunction, particularly where
the proposed injunction would not serve the usual function of “merely . . .
preserv[ing] the relative positions of the parties until a trial on the merits can
be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981); EEOC v.

5



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 6 of 20

City of Janesville, 630 F.2d 1254, 1259 (7th Cir. 1980)(“The purpose of a
preliminary injunction is to preserve the object of controversy in its then
existing condition, i.e., to preserve the status quo.”). The statute has been in
effect for three years and this plaintiff is just now getting around to challenging
it. The status quo ante is that identification is required, and that is what
should be preserved. Plaintiff, instead, seeks to change the status quo. That
should not be allowed.

II. The Voter ID Law Does Not Violate
Article II the Indiana Constitution
Article 2, § 2 of the Indiana Constitution provides that every “citizen of
the United States who is at least eighteen years of age and who has been a
resident of a precinct thirty days immediately preceding such election, shall be
entitled to vote in that precinct[.]” Plaintiff claims the State’s Voter ID Law
violates this provision by creating an additional qualification to vote. The Voter
ID Law is a regulation of election procedures designed to protect fair elections,
not an alteration of voter qualifications, and Indiana Supreme Court doctrine
forecloses this challenge. Therefore, plaintiff does not have a likelihood of
success on the merits and his request for a preliminary injunction should be
denied.

A. The Voter ID Law advances the Indiana Constitution’s
guarantee of “free and equal” elections
The General Assembly’s power to regulate elections and voting is
grounded in the Indiana Constitution and is implicit in other accepted
regulations. The power of the General Assembly to regulate election

6



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 7 of 20

procedures arises not only from its general police power, but also from Article

2, § 1 of the Constitution, which provides that “All elections shall be free and

equal,” and Article 2, § 14, which provides that “the General Assembly . . . shall

provide for the registration of all persons entitled to vote.”

It is said elections are free when the voters are subject to no intimidation
or improper influence, and when every voter is allowed to cast his ballot
as his own judgment and conscience dictate. That they are equal when
the vote of every elector is equal in its influence upon the result to the
vote of every other elector; when each ballot is as effective as every other
ballot.

Blue v. State ex rel. Brown, 206 Ind. 98, 188 N.E. 583, 589 (1934) (overruled on
other grounds).

Article II § 1 notwithstanding, the Indiana General Assembly has wide
latitude to adopt reasonable voting regulations. Indeed, “[i]t is for the
Legislature to furnish a reasonable regulation under which the right to vote is
to be exercised, and it is uniformly held that it may adopt registration laws if
they merely regulate in a reasonable and uniform manner how the privilege of
voting shall be exercised.” Id. The Indiana Supreme Court has held that these
clauses serve as grants of power to the General Assembly to promulgate
election laws to regulate and uphold the legitimacy of elections in the state.
Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14, 18 (1922). Inherent in the
requirement of holding “free and equal” elections lies the power of the state to
protect the rights of citizens to a fair and reliable electoral system in which
their individual votes are not diluted by the fraudulently cast votes of others.

7



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 8 of 20

“When the ballot box becomes the receptacle of fraudulent votes, the freedom
and equality of elections are destroyed.” Id.

The Voter ID Law directly advances the constitutional guarantee of “free
and equal” elections articulated in Article 2, § 1 of the Indiana Constitution.
By preventing voter fraud, the identification requirement ensures compliance
with the Article 2, § 1 mandate that each vote equally influence the result of an
election. Each fraudulently cast vote dilutes the influence that each
legitimately cast vote has on the election’s outcome. “[T]he right of suffrage can
be denied by a debasement or dilution of the weight of a citizen’s vote just as
effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds

v. Sims, 377 U.S. 533, 555 (1964). The Voter ID Law prevents fraudulently
cast votes and thereby protects each citizen’s individual rights under Article 2,
§ 1 of the Indiana Constitution.
B. The Voter ID Law is not a voter “qualification”
The Voter ID Law is not an “additional qualification” for voting as plaintiff
claims. It is merely a method of verifying the identity of a registered voter—the
most fundamental, pre-existing voter-eligibility criterion. The framers of the
United States Constitution themselves understood a distinction between laws
establishing voter qualifications and those that merely regulate election
procedure. Alexander Hamilton, discussing Article 1, Section 4 of the
Constitution (known as the Elections Clause), distinguished between “[t]he
qualifications of the persons who may choose,” which are “defined and fixed in
the Constitution, and are unalterable by the legislature,” and authority over

8



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 9 of 20

“the manner of elections,” where States have primacy. The Federalist No. 60,
at 394 (Alexander Hamilton) (Modern Library Coll. ed. 1937).

In the same way, the United States Supreme Court has distinguished
voter qualification laws, which are suspect and often subjected to strict
scrutiny, from fraud-prevention procedures, which are permissible and
subjected to much lighter scrutiny. See, e.g., Rosario v. Rockefeller, 410 U.S.
752, 757 (1973) (upholding advance voter registration requirement); Marston v.
Lewis, 410 U.S. 679, 680 (1973) (upholding Arizona’s 50-day voter registration
and residency requirements and stating that “[s]tates have valid and sufficient
interests in providing for some period of time—prior to an election—in order to
prepare adequate voter records and protect [their] electoral processes from
possible frauds”). In Rosario, the Court described qualification laws as those
laws that “totally denied the electoral franchise to a particular class of
residents, and there was no way in which the members of that class could have
made themselves eligible to vote.” Rosario, 410 U.S. at 757. But with
procedural rules, responsibility lies with voters: “[I]f their plight can be
characterized as disenfranchisement at all, it was not caused by [the law], but
by their own failure to take timely steps to effect their enrollment.” Id. at 758.
The Voter ID Law falls squarely into the latter category.

The two opinions upholding the Voter ID Law in Crawford v. Marion
County Election Board, 128 S.Ct. 1610 (2008), each embraced the notion that
the Voter ID Law is a procedural election regulation and not a substantive voter
qualification. In finding the Voter ID Law valid, Justice Stevens (writing for

9



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 10 of 20

himself, the Chief Justice, and Justice Kennedy) and Justice Scalia (writing for
himself and Justices Thomas and Alito) both describe the Voter ID Law as a
“neutral” or “generally applicable nondiscriminatory regulation of voting
procedure.” Crawford, 128 S.Ct. at 1623, 1625. Not even Justices Souter and
Breyer, who dissented in Crawford, could bring themselves to subject the Voter
ID to strict scrutiny—the standard generally applicable to voter qualification
laws. See id. at 1628, 1643.

The Voter ID Law is no more an “additional qualification” than requiring
voters to register, to vote in person, or to identify themselves by any method at
all. Surely all would agree that some identification requirement at the polls is
necessary, and no principled distinction separates the Voter ID Law from the
identification requirements—including announcing one’s name and providing
one’s signature on the poll book—that existed prior to its enactment.
Nonetheless, under the plaintiff’s theory, these formerly utilized identification
requirements should be viewed as impermissible “qualifications” as well.
Taking the plaintiff’s argument to its logical conclusion, therefore, a voter
should be able to walk into a polling place, request a ballot and vote without
having to identify himself in any way.

Indeed, if the Voter ID Law—or any identification requirement, for that
matter—is a “qualification,” then any other regulation that may prevent an
eligible voter from casting a ballot and having it counted could also be deemed
an impermissible “qualification” under the League’s theory. For example,
Indiana Code § 3-11-8-11 provides that voters must be in the chute when the

10



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 11 of 20

polls close in order to be able to vote. However, while Article 2, § 14 specifies
the day on which elections must be held, it does not limit the hours that polls
must be open. Accordingly, if the line to vote extends beyond the chute at the
time the polls close on election day, an eligible voter standing in that line may
be denied the right to vote by operation of a procedural regulation not
specifically authorized by the Indiana Constitution. Yet surely no one would
question the validity of regulating the hours that polls are open—or even the
validity of requiring voters to cast their ballots in-person at the polls (rather
than, say, by mail), which also is not specifically authorized by the State
Constitution.

Other procedural regulations that could potentially prevent an eligible
voter from casting a ballot—and that would be constitutionally suspect under
the plaintiff’s theory of this case—include limits on the amount of time a voter
may spend in the polling booth (Ind. Code §§ 3-11-11-10.5, 3-11-13-32.5, 311-14-26 to -28) and the prohibition against divulging one’s ballot after
marking it but before casting it (Ind. Code §§ 3-11-11-16, 3-11-13-32.8, 3-1114-29). Surely, however, these long-accepted, reasonable regulations, which
exist to facilitate the administration of free and equal elections, cannot be
considered unlawful simply because they are not specifically authorized by
Section 2 or any other constitutional provision. Just as these laws place no
additional or improper “qualifications” on voters, neither does the Voter ID Law.

11



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 12 of 20

C. Courts have already decided that regulations of voting
procedure do not violate Article 2, § 2 of the Indiana
Constitution.
The Supreme Court of Indiana, the United States District Court for the
Southern District of Indiana, and the United States Court of Appeals for the
Seventh Circuit have already rejected the notion that election regulations are
unconstitutional if not specifically enumerated in Article 2, § 2 of the Indiana
Constitution. See Simmons, 136 N.E. at 18 (holding that Indiana voter
registration requirements do not violate Article 2, § 2); Blue, 188 N.E. at 585-86
(holding that lack of registration provision for absentee or sick voters does not
constitute a violation of Article 2, § 2); Ind. Democratic Party v. Rokita, 458 F.
Supp.2d 775, 843 (S.D. Ind. 2006) (holding that the Indiana Voter ID Law does
not violate Article 2, § 2 of the Indiana Constitution), aff’d, 472 F.3d 949 (7th
Cir. 2007).

The Indiana Supreme Court specifically rejected in Simmons the
plaintiff’s theory in this case. There, the Court upheld the voter registration
requirement against a challenge under Article 2, § 2, holding that Article 2, §
14 and Article 2, § 2 were not in conflict and rejecting the argument that § 2
provided an exhaustive list of possible impediments to voting. Simmons, 136

N.E. at 17-18. In so doing, the Court set a very high standard for challenges to
voting regulations brought on State Constitution grounds: “The legislature has
the power to determine what regulations shall be complied with by a qualified
voter in order that his ballot may be counted, so long as what it requires is not
so grossly unreasonable that compliance therewith is practically impossible.”
12



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 13 of 20

Id. at 18. In other words, while the legislature may not place additional
qualifications on voting, it may regulate the way in which the existing
qualifications set forth by Article 2, § 2 are verified and administered. The
enactment of the Voter ID law is an entirely appropriate and constitutionally
permissible exercise of that discretion. It is well within the power of the
General Assembly to require that voters prove their identities before being
permitted to vote.

Indeed, the Voter ID Law is precisely the sort of regulation contemplated
by Simmons and is certainly neither “grossly unreasonable” nor “practically
impossible” to comply with. Today, government-issued photo identification is
universally accepted as proof of identification. Photo identification is necessary
in order to drive an automobile, board an airplane, enter a federal courthouse,
rent a car, cash a check, open a financial account or engage in any number of
other common daily transactions. In short, photo identification is necessary to
function in society on a daily basis. See Crawford v. Marion County Election
Bd., 472 F.3d 949, 951 (7th Cir. 2007) (“[I]t is exceedingly difficult to maneuver
in today’s America without a photo ID.”). Among all the possible ways to
identify individuals, government-issued photo identification has come to
embody the best balance of cost, prevalence and integrity.

Accordingly, rather than creating an entirely new system of identification,
the legislature, through the Voter ID Law, sought to improve fraud prevention
by relying on a system already in place—standard, government-issued photo
identification. The vast majority of voters already possess such identification

13



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 14 of 20

and thus comply with the Voter ID Law without even trying. See id. at 950
(“The new law’s requirement . . . is no problem for those who have [a driver’s
license or a passport], as most people do”); see also Indiana Democratic Party,
F.Supp.2d at 807. Those who do not already possess the necessary
identification may obtain a free non-license photo identification card from the
BMV. Ind. Code § 9-24-16-10. Plaintiff chose, for reasons that can have
nothing to do with voting, to get a driver’s license. When he was without a
license, he could have gotten a free identification card. He was interested, it
appears, in driving, and decided to get a driver’s license that also is acceptable
as identification at the polls.

Even then, a voter who is unable to obtain the required identification
prior to election day or simply forgets to bring his photo ID to the polling place
may sign an affidavit attesting to his right to vote in that precinct, sign the poll
book, and cast a provisional ballot. Ind. Code § 3-11-8-25.1(d). Plaintiff says
he has done so in the past. A voter who casts a provisional ballot may appear
before the circuit court clerk or county election board by noon ten days
following the election and prove the voter’s identity. Ind. Code § 3-11.7-5-1. If
by that time the voter provides acceptable photo identification and executes an
affidavit that the voter is the same individual who cast the provisional ballot,
then the voter’s provisional ballot will be opened, processed, and counted so
long as there are no other non-identification challenges. Ind. Code §§ 3-11.7-51; 3-11.7-5-2.5. Voters may also validate their provisional ballots by executing
an affidavit that the person is the same person who cast the provisional ballot

14



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 15 of 20

and either (1) the person is indigent and is “unable to obtain proof of
identification without payment of a fee;” or (2) has a religious objection to being
photographed. Ind. Code §§ 3-11.7-5-1; 3-11.7-5-2.5(c).

Thus, the Voter ID Law simply requires voters to produce a form of
identification that (1) most of them, including this plaintiff, already possess
and (2) is easily obtainable by those who do not. Even those voters who cannot
comply with the law on the day of the election are given the opportunity to cast
a provisional ballot, which they are then given a generous amount of time to
validate. Accordingly, the Voter ID law is in no way “grossly unreasonable” and
compliance with its requirements is certainly not “practically impossible.” It is
instead a valid and reasonable means of enforcing the requirements for voting
set forth by Article 2, § 2.

III. The Voter ID Law is not a
Poll Tax Prohibited by the 24th Amendment
The claim that the Voter ID Law is an invalid poll tax was soundly and
thoroughly rejected in Crawford, supra. The Court held that the Voter ID Law
is not a tax and passes constitutional review because a free voter identification
card is available. The Seventh Circuit was even more clear and concise on this
point: “The Indiana law is not like a poll tax.” Crawford, 472 F.3d at 952. The
Voter ID Law is no more a poll tax than is the cost of getting to the polls or to
the Clerk’s Office to vote absentee.

15



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 16 of 20

IV. The Voter ID Law does not Violate the First Amendment or
Article I, § 11 of the Indiana Constitution
Plaintiff next claims that the Voter ID Law violates the First Amendment.
The contention that there is a First Amendment violation was flatly rejected by
Judge Barker. Indiana Democratic Party v. Rokita, 458 F.Supp.2d 775, 820-21
(S.D.Ind. 2006). The Seventh Circuit stated that as to the matters it did not
address directly, “Regarding the plaintiffs' other arguments, we have nothing to
add to the discussion by the district judge.” 472 F.3d at 954. Therefore, that
court endorsed the conclusion by Judge Barker that there is no First
Amendment infirmity in the voter ID Law. The same logic that shows there is
no First Amendment violation shows that there is no violation under the
Indiana Constitution. Plaintiff does not have a likelihood of success on this
issue and the preliminary injunction should be denied.

V. The Voter ID Law does not Violate the Fourth Amendment
or Article I, § 9 of the Indiana Constitution
Plaintiff claims that he cannot be asked for identification in the absence
of probable cause that would support a warrant. That is incorrect. A routine
request for identification is not a “seizure” for Fourth Amendment purposes.
See United States v. Rodriguez, 69 F.3d 136, 141-42 (7th Cir. 1995).

The plaintiff is not objecting to having to provide his name or his
address, both common requests when presenting to vote. Both are necessary
to make sure that the person in the polling place is not stealing someone else’s
vote. In the usual polling place, both name and address are presented multiple
times. Plaintiff’s complaint is only about having to produce a government

16



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 17 of 20

issued photo identification, not about having to identify himself. Once one
concedes that the plaintiff can be required to identify himself in order to vote,
the argument is about the form of identification and not the requirement of
identification itself. The need for identification of some form is conceded,
compelling and reasonable. There is no “seizure” and there is no “search;”
there is merely a reasonable requirement of proving that you are eligible to vote
and that you are the one who is casting or has cast the ballot. The production
of a driver’s license or free voter identification card is merely the means to the
legitimate end and is not a seizure or a search.

There is no seizure or search and therefore no Fourth Amendment issue
or issue under the Indiana Constitution. The requirement of identifying oneself
is reasonable, so the statute passes scrutiny under the Indiana Constitution.
There is no likelihood of success and the preliminary injunction should be
denied.

VI. The Voter ID Law does not Violate the Fourteenth Amendment
or Article I, § 23 of the Indiana Constitution
Plaintiff next claims that the Voter ID Law violates due process, the
privileges and immunities clause and equal protection. Again, he is incorrect.

The due process claim focuses on the facts that some potential voters
allegedly have trouble getting a voter ID card issued on the first trip to the BMV
and his own journey to get a replacement identification. Those points are all
moot as to the November 2008 election because plaintiff has a driver’s license
that he can use to be identified at the polls. And plaintiff lacks standing to
raise claims for others.

17



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 18 of 20

The same is true about the claim that some older driver’s licenses still
have social security numbers on them—there is no claim that the plaintiff’s
recently issued license has a social security number on it.

It is not clear what the plaintiff is claiming about equal protection and
the privileges and immunities provisions, other than that they apply to voting.
Everyone is treated exactly the same, so there is no equal protection issue. In
fact, it appears that the plaintiff is complaining because he is not treated
differently, specially. The statute has to be followed and enforced as it is
written in order to avoid claims of unequal or otherwise unfair treatment, with
claims of discrimination based on race or gender or national origin or political
affiliation. But where the statute is carried out as written, with no exceptions
as the plaintiff wanted made in his favor, all voters are treated exactly the
same. And the statute itself provides for fair and equal treatment. As the
Supreme Court held in Crawford, the Indiana Voter ID Law is an even-handed
rule protecting the right to vote and providing for orderly administration of
elections and accurate recordkeeping. Because it is “even- handed,” the law
does not discriminate and there is no violation of equal protection.

As to privileges and immunities, the plaintiff is not being deprived of the
opportunity to vote, only the opportunity to vote on his own terms, without
showing an acceptable identification card. There are numerous limitations on
the ability to vote according to one’s own preferences, and if the plaintiff were
correct then no election could ever be held. There are restrictions as to the
date of the election, the hours that the polls are open and a requirement that a

18



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 19 of 20

voter must register in advance of election day. Those are simply procedures
that, like the voter ID requirement, insure orderly administration of elections
and accurate recordkeeping. See Crawford, at 1619. The overall import of the
Supreme Court opinion in Crawford is that no one is deprived of the vote.
Given that conclusion, it cannot be said that the plaintiff has had a privilege or
immunity abridged, and he cannot succeed on that claim.

VII. The Request for Preliminary Injunction Should be Denied
There is no evidence in the record, let alone admissible, persuasive
evidence. Plaintiff is seeking to bring a challenge to the law three years after it
was enacted. The status quo is now that identification is required, and the
purpose of a preliminary injunction would not be served by entering one in this
case. Plaintiff lacks standing to raise a number of issues and suffers no injury
himself.

The statute has already been upheld by the Supreme Court of the United
States, and that decision coupled with the decisions of the Seventh Circuit and
Judge Barker in Crawford show that the statute is fair and balanced and only
ensures fair and free elections. There is no state or federal constitutional
infirmity. Therefore, the requested preliminary injunction should be denied.

Respectfully submitted,

STEVE CARTER

Attorney General of Indiana

By: s/David A. Arthur

David A. Arthur

Deputy Attorney General

19



Case 1:08-cv-00586-LJM-TAB Document 27 Filed 09/25/2008 Page 20 of 20

CERTIFICATE OF SERVICE

I hereby certify that on September 25, 2008, a copy of the foregoing
response was filed electronically. Notice of this filing will be sent to the
following parties by operation of the Court’s electronic filing system. Parties
may access this filing through the Court’s system.
Jonathan L. Mayes Richard G. McDermott

Office of Corporation Counsel Office of Corporation Counsel
jmayes@indygov.org rmcdermo@indygov.org
And I further certify that on September 25, 2008, a copy of the above and
foregoing motion was mailed to the following non-ECF participant:
Robbin Stewart

P.O. Box 29164
Cumberland, IN 46229-0164
s/David A. Arthur
David A. Arthur
Deputy Attorney General

Office of Attorney General
Indiana Government Center South, Fifth Floor
302 W. Washington St.
Indianapolis, IN 46204-2770
Telephone: (redacted)
E-Mail: David.Arthur atg.in.gov
503360s3

Text of the brief and motion for preliminary injunction. (about 30 pages)
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.
1. 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.
2. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.
3. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests,
4. 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. )

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
)
)
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.

1. Does Voter ID violate the vested right of a registered voter to vote under Article II section 2?
2. Does voter ID violate the free and equal elections clause of Article II section 1?
3. 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?
4. 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.