Tuesday, October 05, 2004
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
(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
