Wednesday, February 09, 2005



Plaintiff, )
v. ) CASE No:
Defendants. )

Table of contents

Table of Authorities 2

Facts and history 4

Summary of argument 7

Argument 7

Statute is void under Erie Railroad and Marbury v Madison. 7

Standard of review. 8

Voter ID violates federal constitution 9

Voter ID violates state constitution. 16

Conclusion. 22

Table of Authorities.

Anderson v Celebrezze, 460 U.S. 780 (1983) 7, 9, 10, 11,12,15, 22

Blue v State ex rel. Brown, 206 Ind. 98, 188 NE 583 (1934) 16, 17,

Board v Knight, 117 NE 565, 650 (1917) 18

Brewer v. McClelland 32 NE 299 (1892) 18

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

Chandler v Miller, 520 US 305 (1997) 13

Clinic for Women v Brizzi, 837 NE2d 973, 984 (Ind 2005) 19

Collins v Day, 644 N.E.2d 72 (Ind. 1994) 11

Crawford v Marion County, 553 U.S. ___ (2008) 4, 5, 6, 8, 10,11 12,16,

Edmond v Indianapolis, 531 U.S. 32 13, 15,

Erie Railroad v. Thompkins, 304 U.S. 64 (1938) 7, 12, 17,

Fritch v State 155 NE 257 (1927) 18

State v. Gerschoffer, 763 N.E.2d 960 (Ind. 2002) 9

Harman v Forsennius. 380 U.S. 528 (1965) 9, 10,

Harper v Virginia Board, 383 U.S. 663 (1966) 9, 21,

Hiibel v Nevada, 542 U.S. 177 (2004) 13, 14
Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 784 (S.D. Ind. 2006) 5, 9,

Indiana ex rel McGonigan v Madison Circuit Court, 193 NE2d 242 (1963) 18

Kolender v Lawson, 461 U.S. 352 (1983) 15

League of Women Voters v Rokita ("LWV”) 7, 17,

Marbury v Madison, 5 U.S (1 Cranch) 137 1803, 7, 19

Morris v Powell, 25 NE 221 (1890), 18

Mosely v Board of Commissioners 165 NE 241 (1929), 18

Norman v Reed, 502 U.S. 279 (1992) 9, 11, 12,15, 21,

Price v State, 622 N.E.2d 954, 960 (Ind. 1993) 9, 18, 21,

Reynolds v Sims 377 US 533, 562 (1964) 13

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) 14

State v Shanks, 99 NE 481 (1912), 18

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

Williams v Rhodes, 393 US 23 (1968) 9

Indiana constitution, Preamble 19

Article I section 9 8, 18, 19, 21

Art. I section 11 8, 14, 15,

Art. I section 12 8, 19, 20

Art. I section 23 6, 17,

Article II section 1 8, 16, 19, 21

Article II section 2 8, 16, 18, 21,

Article II section 14 17, 19

U.S. Constitution Amendment 1. 8, 10, 11, 21

Amendment 4. 8, 21

Amendment 14. 8, 20, 21, 22

Amendment 24. 8, 9, 10, 14, 21

County reply brief, 13

Pitts, Michael, Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election, 25 J. L. & Pol. __ (2009) (w/ Matthew Neumann). 4, 5.

Facts and History

This is a case about whether Indiana's voter ID rules are constitutional, and whether plaintiff has a remedy for being denied the vote because of voter ID. Pursuant to a statute which has since been declared void, the county and state began requiring voter ID as a condition of having one’s vote counted. Crawford v Marion County.
Plaintiff was denied the vote after being unwilling to show a voter license,
in the general election of 2006, the primary election of 2007 and the primary election of 2008. Complaint, Exhibit 1 labeled attachment D. A hardcopy of exhibits will be filed with the Court; I am not able to file these electronically.

In the 2008 primary, there were 67 ID-related provisional ballots in Marion County, of which 11 were counted. Ex. 5. One of the uncounted was mine. Ex. 4. The controversy is live because these votes have not yet been counted. The policy continues in force today. The denial of plaintiff's votes in the 2008 general and 2009 special elections are not at issue here, and are reserved for the next round of this litigation, after this court denied leave to supplement the complaint.
On several occasions, I cast provisional votes, which were then not counted.
The first instance took place at my precinct, 10-4 in Marion County Center Township, in 2006 at the primary. The second instance took place in 2006 at the general election. The third happened at the Marion County clerk's office, where early voting is conducted, in 2007. The fourth instance took place in the Marion County clerk’s office in 2008, just after I filed this lawsuit.
Over 1000 provisional votes have gone uncounted in Indiana since the policy was adopted in 2005. Michael Pitts, Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election, 25 J. L. & Pol. __ (2009). An unknown number of people have been turned away at the polls without being allowed to cast even provisional votes, or have been prevented from voting because of the policy and did not bother to cast provisional votes that they knew would not be counted. One result has been that the outcome of close elections in Indiana cannot be determined with absolute certainty. Most elections are not close, and most races held since 2005 have had a clear winner.
In this case, I and other prospective voters have been barred from voting if we haven’t purchased a birth certificate in order to purchase a driver's license. A passport, which costs $100, can be used instead, but in order to get a passport you need a driver’s license, and in order to get a drivers license you need a birth certificate. None of these documents are free. There has been a red herring in this case about "free" ID's, but I am not eligible for one, since I have a driver's license, and they are not really free anyway. The 80% of Indiana voters who have driver's licenses are not eligible for "free" IDs. I paid a fee to obtain a birth certificate and another fee to obtain a driver's license. Whether the voter uses a passport, driver's license, or ID card, each requires the birth certificate, which costs money. (Justice Scalia’s concurring opinion in Crawford appeared to be based on a misperception that all Indiana voters could get a free ID. That is factually inaccurate.)
Nor do any of the exceptions under the program, such as religious or indigency exceptions, fit my case, or fit the cases of most of the thousand-plus cases where voters were disenfranchised by the voter ID policy.

Case history: I was a real party in interest in Crawford v Marion County, and the consolidated case of Democratic Party v Rokita, and participated as an amicus. In that case, in 3-3-3 split decision, the Supreme Court denied a facial challenge on the grounds the plaintiffs had stipulated that the policy was constitutional up to 99% of the time. A concurring opinion would have upheld the statute on the merits, and two dissents would have found the statute unconstitutional.
In Crawford, the League of Women Voters was denied intervention. The League filed its own case in state court. On appeal, the Court of Appeals held that the statute was unconstitutional and void under section 23 of the Indiana Bill of Rights, the equal privileges clause. "Based on the foregoing, we conclude that the Voter I.D. law violates Indiana Constitution Article 1, Section 23, and must be declared void because it regulates voters in a manner that is not uniform and impartial." On January 25th, the Indiana Supreme Court accepted transfer of the cross-petitions. The State is appealing the section 23 ruling, while the League is appealing the denial of its Article II section 2 claim. Seven Amicus briefs supporting the League’s position have been filed, which explain the Indiana constitutional claims in far for detail than I have done here. No briefs in support of the state’s position have been filed. Argument is set for March 4th. This plaintiff's motion to intervene was denied. I filed suit in 2008. Preliminary relief was denied. This court denied a motion to stay proceedings until LWV becomes final, and set a schedule for dispositive motions, which has been extended to February 9.

Summary of argument.

1. Marbury v Madison and Erie Doctrine establish that the statute is void.

2. The standard of scrutiny varies from Anderson to strict scrutiny to an absolute bar.

3. Voter ID violates the Twenty-Fourth, First, Fourteenth, and Fourth Amendments. 4. Voter ID violates the Indiana constitution, article II and article I.
Conclusion: Plaintiff’s voting rights should be declared to have been violated as matter of law.

The case is framed by Marbury v Madison, 5 U.S (1 Cranch) 137 1803, and Erie Railroad v. Thompkins, 304 U.S. 64 (1938). This court must give full faith and credit to the Indiana Court's having found the statute unconstitutional, which affects the analysis of every claim. Marbury holds that an unconstitutional statute is void and without effect.
Erie hold that federal courts must accept state court construction of state law.
Under current state law, announced by the Indiana Court of Appeals in League of Women Voters v Rokita, the voter ID act of 2005 is unconstitutional. That case is not yet final, but this court has already refused a stay to await any further developments. (Plaintiff initially opposed a stay, when it was directed at interfering with motions for temporary injunctive relief and certification, because a stay of the sort sought would have mooted those motions. After those motions were denied, plaintiff contacted defense counsel offering a joint motion for a stay, but the defense was no longer interested.)
This court may not agree with the state court's finding that the Act is unconstitutional and void. But it is bound by it and lacks jurisdiction to override the Indiana courts' construction of their own statutes and constitution.
The finding by the state court changes the game. The Seventh Circuit opinion in Crawford, which tacitly upheld the state challenges by not discussing them, has been superseded. This court's first ruling denying injunctive relief has been superseded, because that decision relied both on the statute and on a misplaced strong presumption that the statute was valid. This court's second denial of injunction, which relied solely on the reasoning of the first, was in error, because of the way the law had changed between the two rulings. There is no longer any legislative authority for the county's policy of denying the vote to plaintiff and others who do not comply with the voter ID qualification for voting. The county's only rationale for its policy was the interest in following the statute. Defendant's response to interrogatories. “Request #11. State any governmental interest requiring the use of voter ID in Marion County, on which you intend to rely in this lawsuit. Response: compliance with state law.” Now, only inertia keeps the policy in place.

Standard of Review – Federal Claims:
The basic fact pattern in this case is that the county and state have been, since 2005, following a policy that was not actually authorized by any valid legislation.
The question becomes whether the policy, unsupported by legislative enactment,
violates the First, Fourth, Fourteenth, and Twenty-Fourth Amendments, and whether it violates the Indiana Constitution, article II section 1 and 2, article I sections 9, 11, and 12. Because there had been a statute, and that statute had been upheld initially, qualified immunity would have probably attached, if there had been any personal capacity claims in this case, but there are none.

The outcome of constitutional challenges often depends on application of the correct standard of review. In previous rulings on the constitutionality of the Voter ID Act, lower courts have erroneously applied deferential review and upheld the statute, e.g., Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 784 (S.D. Ind. 2006).
The standard of review is at least that of the Anderson test. Under some authority, the standard is strict scrutiny. Norman v Reed, Harper v Virginia Board, Williams v Rhodes, Harman v Forsennius. However, if the birth certificate fee is found to be a tax pursuant to the 24th Amendment, the state is absolutely barred from continuing to require it as a condition of voting. Review under the state constitution does not always fall neatly into these categories. See Price v State, Gershoffer v State.

Twenty-Fourth Amendment:
Examples of the absolute bar standard:
The federal constitution sets out numerous specific requirements, which are intended to be adhered to absolutely. For example, the president is limited to two terms, women are allowed to vote on the same terms as men, and no tax may be made a condition of voting. There are no balancing tests and no degrees of scrutiny, however strict. No state interests, however compelling, permit the president to hold a 3rd or 4th term, permit the government to disenfranchise women, or permit voting to be conditioned on payment of a tax. This is different from more general provisions, such as "freedom of speech" "due process" or "equal protection of the laws," which are necessarily matters of construction and interpretation.
It is possible to agree or disagree that the requirement of fees for birth certificates, drivers licenses or passports constitutes a prohibited "poll tax or other tax." The 7th circuit's mention in dicta of poll taxes in its discredited and vacated Crawford opinion is not controlling here, because that was in the context of a First Amendment discussion reviewed under a rational basis standard, and was a not a Twenty-fourth Amendment analysis. But the Twenty-fourth Amendment, under the single binding precedent of Harman v Forsennius, goes beyond poll taxes themselves, and looks at barriers to voting. Harman does not explicitly use the term "strict scrutiny", but that appears to be the standard it applied. Under the Twenty-fourth Amendment, taxes as a condition of voting are absolutely barred. But procedures which are a barrier to voting are given strict scrutiny, even if they are not taxes per se. Harman invalidated a re-registration requirement which was an alternative option to paying a poll tax. Certainly the rule for decision was far more exacting than the sort of permissive review the lower courts used in Crawford. Whether viewed as a poll tax or other tax and absolutely barred by the 24th Amendment, or merely as barrier to voting subject to strict scrutiny under the 24th Amendment, the voter ID program is an unconstitutional barrier to voting, so that when I was denied the vote for failing to show these documents, my right to vote was denied. When this court on two occasions refused to issue temporary injunctive relief, it violated its duty as an inferior court to follow the binding precedent issued by the United States Supreme Court, Harman v Forsennius. It should not repeat that error a third time. The Harman standard of strict scrutiny is more exacting than the Anderson test used in Crawford. In Crawford, plaintiffs preserved only First and Fourteenth Amendment claims, so Harman did not come up.

First Amendment:

The First Amendment claim in this case is either governed by the strict scrutiny standard of Norman v Reed, or the Anderson 4-part test used in Crawford. This case is distinguishable from Crawford in the degree of burden claimed. Crawford considered the impact on the election process of some 40,000 prospective voters in Indiana who do not have IDs. (40,000 is a conservative estimate by the district court. A proposed figure of 70,000 was rejected as unproved. Justice Souter, dissenting, suggested that 6% rather than 1% is a more likely figure.) That burden on those voters impacts me as well. My claim is both facial and applied. The applied claim is not limited to the casting of my own ballot, and is not about whether I do or don’t have ID, but is about my right to be governed as a result of free elections at which all registered voters have the right to vote.

The burden on me personally has been severe. I have been preventing from voting since 2005. Justice Scalia, concurring in Crawford, argues that it is not the burden on the particular plaintiff, but the overall program which matters. He may be right. Additionally, however, I have pointed to the burden on voters of conducting millions of warrantless searches, and forcing citizens to choose between waiving their right to be free from suspicion-less unwarranted searches and their right to vote. This factor makes the burden severe under Norman v Reed, as best we can guess. The court has never set out an exact test for when Norman applies. Under either test, the voter ID program fails, especially in the absence of a valid authorizing statute. It is useful to recall that the court of appeals found that Voter ID failed even the deferential standard of Collins v Day, a more permissive form of review than the Anderson test. Only when erroneously viewed under the ultra-permissive Burdick v Takushi test could any responsible court uphold this program. Anderson is a sliding scale. As the burden on protected rights increases, the degree of scrutiny increases. At some point analysis under Anderson and analysis under Norman merge. Even if viewed under Anderson, my case is a different Anderson balancing than in Crawford, in that a greater burden is shown.
Fourteenth Amendment:

As to the 14th Amendment equal protection claim, this case falls somewhere between Crawford, which used the Anderson test, and Harper v Virginia Board, which applied strict scrutiny to a program that involved voters having to pay a nominal fee before voting. I encourage this court to analyze the program under both the Anderson test and the strict scrutiny test, so that a reviewing court can see how this court would apply each test to the facts. Because the statute under which defendants purported to act was void, and the program was an arbitrary restriction on a fundamental right, the outcome should be the same. Even if the Court declines to follow Erie, and regards the statute as possibly valid, application of the Crawford-Anderson test to these facts should result in a finding that voter ID is unconstitutional, when the burden on rights of the voters is balanced against the asserted state interests. Crawford did not predetermine a result for all future challenges. Instead, it set out a method to be followed. This court can best be faithful to the Crawford opinion by using its method to evaluate these new claims and new defenses, and concluding that on balance Voter ID fails.

The county has admitted that the policy is counterproductive and interferes with the conduct of elections. In its reply brief to the Unites States Supreme Court in Crawford, the county said the following:

Time tested systems were in place to detect in person voter impersonation fraud before the statute was enacted. P.6. In many precincts, the precinct election board is made up of precinct residents, who often have worked the polls for several years and know personally many of the voters of the precinct. This arrangement helps to protect against in person voter fraud because precinct workers may recognize and imposter…. P.6. When the signatures do not match, the voter is subject to challenge. P.7. Moreover it is a felony for a person to vote… when they are not registered…. P.7. The Marion County Election Board has neither any memory or record of any instance of the in-person voter impersonation fraud the voter ID statute is designed to combat. P.10. Some elections are decided by one vote. P.12 note 3. While each individual’s right to vote is fundamental, see Reynolds v Sims 377 US 533, 562 (1964), the Voter ID statute also undermines the overall atmosphere of open, accessible elections that the Marion County Election Board and Indiana law otherwise try to promote. P.13. The Court should apply close scrutiny in its evaluation of Indiana’s Voter Identification Statute. P 14.


Fourth Amendment:
The standard of review under the Fourth Amendment is that unwarranted searches are presumptively unreasonable, outside of certain narrow exceptions not applicable here. In its injunctive ruling, the court held that the cases I had cited were not applicable, that instead I would need to cite to cases which found voter ID unconstitutional under the Fourth Amendment. This is too strict a standard, and is not how stare decisis works. I cited Edmond v Indianapolis, as to the legal standards governing suspicion-less warrant-less searches by Marion County, and Chandler v Miller, as to the legal standards for applying the Fourth Amendment to election-related suspicionless unwarranted searches, and Hiibel v Nevada for the degree of suspicion required to justify a demand for ID.

If there had already been a case holding precisely that Indiana’s Voter ID is unconstitutional under the Fourth Amendment, this case would have been moot, and never filed. Instead, it is a case of first impression, and there are no precisely identical cases, for or against. The state did not come forward with any cases showing that Edmond or Chandler are distinguishable here. Edmond concerned roadblocks on the highway rather than at the voting booth, but the principles of law announced by the U S Supreme Court and Seventh Circuit in that case (reversing the southern district of Indiana) are binding on this court and should be followed, or at least analyzed. It is possible that the United States Supreme Court will take this case and announce a new exception to the warrant requirement. This court lacks the authority to do so. Here, the strongest counter-arguments to the Fourth Amendment claim are probably those of the “special needs” line of cases, such as Skinner v. Railway Labor, which upheld warrantless drug testing of railroad engineers following an accident. Here, there is a legitimate state interest, ballot integrity, which is a greater factor than the law enforcement interest in detecting ballot fraud. For most voters, the intrusion is minimal, although for others such as myself it can be highly burdensome. I suspect that reasonable suspicion of voter fraud, rather than full-scale probable cause, would be sufficient. If provisional ballots are used, there is an adequate opportunity to apply for search warrants if there is any genuine concern about fraud. In Hiibel v Nevada, the Supreme Court found that under Terry-stop, government officials can compel a person to identify themselves for officer safety reasons (although that case did not require government ID; stating his name would have been enough.) Previously the Supreme Court held that there is no general duty to carry ID while just walking down the street. See Kolender v Lawson, 461 U.S. 352 (1983). If there is no such general duty, the exercise of voting rights cannot be made contingent on waiving fourth amendment rights, unless and until the Supreme Court says so. Where here voter ID also violates the Twenty-Fourth Amendment and the state court has held the statute void, it is unlikely that the Court will carve out a new exception.

The standard for review under Article I section 11 is a little different than under the Fourth Amendment. In Gershoffer v State, the court held that Gershoffer’s rights were violated when he was stopped at a roadblock without cause. But the court also held that such a roadblock could satisfy section 11 if it was pursuant to a uniform and non-arbitrary process. When I went to vote at the Clerk’s office at city hall in the 2008 primary, and declined to show ID, I was told that I would not be allowed to vote. It was only when I insisted on casting a provisional ballot, that I was allowed to do so. This does not meet the standards under Gershoffer for a uniform and non-arbitrary process.

Whether or not voter ID is ultimately found to be or not be a violation of the rights of search and seizure, it is a part of the calculation of the burden for the purpose of determining whether there has been a severe burden triggering Norman v Reed strict scrutiny, and/or part of the balancing to be engaged in under Anderson. Under the program, more than 2 million searches were conducted. The result was that zero cases of attempted voter fraud were discovered and prosecuted. Prior to 2005, there were no prosecutions in Indiana for in person voter fraud. Subsequent to 2005, there have been no prosecutions in Indiana for in person voter fraud. As a means of detecting voter fraud, the program has been a complete failure. In Edmond v Indianapolis, the Seventh Circuit and Supreme Court invalidated a search program which had a hit rate of 9%. The voter ID program has a hit rate under 0.0001%.
Perhaps some in person ballot fraud is being deterred. But so many legitimate votes are also being deterred that there is no net gain in the validity of the ballots; instead there is a net loss. Voter ID is security theater; it presents an aura of combating fraud, without actually accomplishing anything useful. Those who are intent on illegally casting fraudulent votes are not prevented from doing so. They need only turn to other methods, such as the already popular absentee ballot method, or buying votes, or bribing or colluding with polling officials, or hacking voting machine software, or whatever the other tricks are. I am not one of those who says there has never been any in person voter fraud in Indiana. My claim is that voter ID doesn't fix the problem and creates other greater problems.
One of the parts of the test is not only that the state interests outweigh the individual rights at issue, but there must be a good fit between the state's interests and the means used. Here, the program can be shown to have been somewhat effective at deterring voting by registered voters, probably mostly those of the Democratic persuasion. In the 2008 primary, of 141 provisional ballots, 116 were Democratic, 25 were Republican. Ex. 11. But it has not been shown to have deterred or detected any fraudulent votes. It has made elections less rather than more reliable.
Standard of Review – State claims:
The standard of review under article II, sections 1 and 2, has not been set out with specificity in any exact formula. “Elections are free when … every voter is allowed to cast his ballot…. [Elections 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, 188 NE at 589.
The cases have treated these as meaningful restrictions. The district court in Crawford erred in treating section 2 as providing only rational basis review. At least rational basis review of legislation is already guaranteed by the due course of law provisions of Article I section 12, and the Indiana constitution is not massively redundant - each provision means something. Sections 1 and 2 are self-enforcing, not merely hortatory.

“All regulations of the elective franchise, however, must be reasonable, uniform, and impartial; they must not have for their purpose directly or indirectly to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; if they do, they must be declared void.” Blue at 111, 188 N.E. at 588. Additionally, the Blue court stated: “It is for the Legislature to furnish a reasonable regulation under which the right to vote is to be exercised,” Id. at 107, 188 N.E. at 586. Article II section 14 authorizes the legislature to enact reasonable rules for voter registration, in order to deter and prevent fraud. But section 14 does not authorize election officials to impose rules in the absence of valid legislation, and what it allows is registration, not additional layers of qualifications and licenses beyond the registration process.

Perhaps the best authority on the standard of review in a section 2 case about voter ID would be League of Women Voters v Rokita ("LWV"). LWV did not set out its standard of review, but reviewed the past precedents about voter registration and tried to fit them to the facts about voter ID.

Although LWV got the section 2 claim wrong, and is now on appeal, it is binding on this court at this time under Erie doctrine, to the extent that the facts and analysis are the same. But there is an essential difference between this case and the LWV opinion’s treatment of Article II. In LWV, the court began with the section 2 claim, upheld the statute, and went on to consider the section 23 claim, and found the statute unconstitutional under section 23. The court began with the statute, and accorded it a rebuttable presumption of validity. The court’s ruling on section 2 was premised on the legislature’s authority to set out rules for elections, and was not about actions by election officials in the absence of a statute, or acting pursuant to a statute now void.

Our task is different. Now that the statute has been declared void, we need to examine whether the voter ID program, unauthorized by statute, complies with section 2. The result is different.

In the absence of any provision in the Indiana Constitution authorizing voter ID, and in the absence of any valid statute authorizing voter ID, the county and state’s practice of using voter ID to distort elections and disenfranchise me comes into conflict with a long line of cases on section 2.

The right of franchise, a political privilege of the highest dignity which can emanate only from the people, is reverently and emphatically enshrined in the state constitution and cannot be abridged or denied by any board or agency created by the legislature, or through direct legislative enactment…. Indiana ex rel McGonigan v Madison Circuit Court, 193 NE2d 242 (1963).

Where the constitution defines the qualifications of voters they cannot be changed or added to by statute. Morris v Powell, 25 NE 221 (1890), State v Shanks, 99 NE 481 (1912), Fritch v State 155 NE 257 (1927). In view of this section, the legislature does not have the power to change the electorate defined by the constitution. Board v Knight, 117 NE 565, 650 (1917). See also Mosely v Board of Commissioners 165 NE 241 (1929), Brewer v. McClelland 32 NE 299 (1892). While these cases hold that the legislature cannot change the rules about who gets to vote, as set out by the constitution, they also support the proposition that the election officials cannot do so unilaterally.

This court should conclude that the unauthorized actions of the county and state officials, pursuant to the void statute, violate section 2.

The standard of review under Article I section 9 is set out in Price v State, 622 N.E.2d 954, 960 (Ind. 1993). Voting is political speech. When the state seeks to regulate political speech, it bears the burden of showing that the restrictions are reasonable and least restrictive. “A state regulation creates a material burden if it imposes a substantial obstacle on a core constitutional value serving the purpose for which it was designed….” Clinic for Women v Brizzi, 837 NE2d 973, 984 (Ind 2005).

Equal voting in free elections is a core constitutional value, expressed in the preamble, section 1, and article II. Here, where thousands have been disenfranchised, the obstacle is substantial. The record in this case shows that I have personally have been severely burdened and presented with substantial obstacles. While Justice Scalia might not find my circumstances to invalidate the program as a whole, it is relevant to my claims for relief to have my own votes counted.

Whether monetary damages are available for section 9 violations is an unsettled area of Indiana law. Where there are statutory or common law tort alternatives, the Indiana Court tends not to find a right of recovery of damages under state constitutional sections. But here there is no comparable tort, and the Court has not decided whether damages are available under section 9. “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” Marbury v Madison, supra. It can be hoped that Indiana is also a government of laws, and that damages will be available as a remedy.

The standard of review under section 12 of article I, the due course of law clause, is roughly that of the due process clause of the 14th Amendment. Under the 14th Amendment, general or economic legislation is typically given rational basis review, while cases about the exercise of fundamental rights, such as the right to vote, receive more exacting or strict scrutiny. When applying the 14th amendment to the states, courts provide a certain degree of deference due to considerations of comity and federalism, because the state and the federal government are co-equal sovereigns. This deference does not come into play when it is the state rather than the federal constitution at issue. Usually it is state rather than federal courts which interpret state constitutions. Here this court has made clear is it comfortable usurping that role. The issue is whether a voter ID program, imposed by Rokita and carried out by White and the county, unauthorized by any valid statute, complies with due course of law under section 12. A related issue is whether the BMV’s process for issuing me a replacement for my stolen ID, and its issurance of ID to voters more generally, is consistent with procedural and substantive due course of law, and whether its is complying with due course of law as the gatekeeper of who gets to vote in Indiana. I have been a licensed driver in Indiana since 1994. They have my picture and driving record on file which can be pulled up at the terminals when I go to ask for a duplicate license. Nonetheless, what they made me do was return to my state of birth, bring my mother as a witness and her ID, and pay a fee, to obtain a new copy of my birth certificate that BMV already has on file. Then they told me I could not get a replacement ID because my name on my birth certificate is different than my name as an adult in Indiana. When I have filed written requests for a hearing with the BMV on such matters, my request is denied. I have a hearing request pending now, about an error on my driving record, and have received no response. The BMV’s approach is arbitrary and capricious, and fails to meet the hearing requirements of due course of law. When Marion County delegates to the BMV its decisions about who gets to vote, it participates in this denial of due course.

This court should not weight the scales in favor of the state, as it has done in its two previous rulings. Instead, it should find that the voter ID program is flatly prohibited by the Twenty-Fourth amendment, where it requires the purchase of a birth certificate to get the documents needed to vote. Alternatively, it should subject the program to strict scrutiny under the Twenty-Fourth Amendment. The better view is that the First and Fourteenth Amendment claims should be evaluated under strict scrutiny per Norman v Reed and Harper v Board. But Anderson review is sufficient to establish that at a minimum my vote should be counted, where I was personally recognized by Mr Mallon, where there is no dispute that I am not who I am, where the county’s only interest is in following a voided statute, and that interest is in conflict with the county’s other stated interests in conducting free and open elections with maximum participation. The other provisional votes should be counted, unless there is actual evidence of invalidity or fraud.

The Fourth amendment claim is not essential to my theory of the case, but the Court should follow the Supreme Court’s rulings rather than substituting its own preferences.

Under all of the Indiana Supreme Court’s rulings on section 2, the County lacks the authority to add new conditions not authorized by the constitution. Until my votes are counted, these elections have not been equal as required by section 1.

Under Section 9 and Price v Indiana, if voting is political speech (and how could it not be?), the burden is on the state, not on me, to justify its regulations and conduct. What Colleen Price said to the police officer who arrested her, voters have the right to say to their elected officials by voting. The County’s reliance on the BMV to decide who gets to vote incorporates an arbitrary and capricious process which would, if all the facts were in the record, have trouble passing even Burdick minimal scrutiny, but does not pass the standards for due course of law under section 12 or due process and equal protection under the Fourteenth Amendment. Under at least Anderson, this court should not defer to the County, but engage in close and exacting scrutiny. If it does so, the Court should find in my favor.

Conclusion: The court should rule that when the County denied me the vote from 2006-2008, and denied the votes of other duly registered voters who sought to vote, it violated my rights under the United States and Indiana Constitutions as matter of law. The court should issue whatever other relief is available, including directing that my votes be counted.

Respectfully submitted,
Robbin Stewart.

s/Robbin Stewart.
Box 29164, Cumberland IN 46229-0164.

I hereby certify that on February 9, 2010, a copy of the foregoing motion
was filed electronically. Notice of this filing will be sent to the
following parties by operation of the Court’s electronic filing system.

David A. Arthur
Jonathan L. Mayes
Richard G. McDermott
Justin F. Roebel
Robbin Stewart
s/Robbin Stewart

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