Tuesday, October 05, 2004
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
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
