Sunday, March 27, 2005
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. )
MEMORANDUM IN OPPOSITION TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Comes now plaintiff Robbin Stewart and for his memo in opposition to defendants' joint motion for summary judgment states as follows.
Defendants (hereinafter “the state”) have moved for summary judgment, as has plaintiff. There is broad agreement as to the facts, although there remain disagreements as to some details, and about the conclusions that should be drawn from the facts. Some of the issues are ripe for rulings of law at this time. The central point of law, however, will be affected by the Indiana Supreme Court's ruling in LWV v Rokita, expected shortly, so an additional round of briefing following that ruling is probably in order, rather than for this court to rule in haste and in error. Expedited oral argument was held March 4th, so that a decision can be forthcoming before the May primary. https://mycourts.in.gov/arguments/default.aspx?view=detail&id=1007. While I am a biased observer, and oral argument is an imperfect indicator of a ruling, I expect that the court of appeals' finding that the voter ID statute is unconstitutional will be upheld on at least one of the two grounds. Most of defendants' arguments are premised on the idea that the statute is constitutional; they have attempted no defense of the voter ID practice if the statute is as void as the Indiana Courts have ruled it is.
There are at least some issues presented by defendants that can be ruled on now independently of how the Indiana Supreme Court rules. Defendants raise issues of justiciability and immunity from damages which could be addressed now.
Summary of Defendants' Memo: Parts I through V set out an introduction, claims, evidence relied on, facts not in dispute, and the legal standard for summary judgment. Part VI sets out why the state thinks it is entitled to judgment as a matter of law.
A. Standing. p.6
B Article II, 1, Section 1. p.8
2, Section 2 p.10
3, Precedents Simmons, Blue and Rokita. p.13.
C. Not a poll tax. p. 17
D First Amendment, Article I section 9. p. 17
E. 4th Amendment, section 11, p. 18
F. 14th Amendments p. 19
G. Article I section 1. p. 20
H. Privacy Act Claim. p. 20
I Immunity from damages p. 21
11th Amendment. p. 22
Bethesda exception to Monell. p. 24.
No damages under the Indiana Constitution. p.25.
No actual damages. p. 26.
No real party in interest. Conclusion. p. 27.
Summary of opposition Subject to some caveats, I am in substantial agreement with Parts I through V on pages 1 through 5. The memo refers to a voter ID law rather than a statute. This erroneously assumes the conclusion. Marbury v Madison holds that a statute which is unconstitutional and void is not a law.
A. Standing. I have article III stranding as to every claim, and to the case as a whole. But if I lack standing, removal was wrongful, and the case should be remanded.
B. Article II, 1, Section 1. p.8. Whether the statute furthers or interferes with free and equal elections is a mixed question of law and fact, that can be developed at trial. LWV's finding of inequality is due some deference. At summary judgment, the facts must be taken as stated in the complaint, and construed in my favor.
2. Section 2. Having ID from the BMV is a qualification in the plain English meaning of that term, not a time place and manner restriction.
3. Precedents Simmons, Blue and Rokita. Simmons and Blue are section 14 cases distinguishable here. Rokita is not controlling or persuasive, in that its erroneous lax standard of review was overruled in Crawford and misstates Indiana law.
Not a poll tax. p. 17. The 24th Amendment issue is governed by Harman v Forsennius, not dicta in an overturned analysis in Crawford. The 24th Amendment issue is not whether voter ID is a poll tax, but whether it survives strict scrutiny as an impediment to voting.
First Amendment, Article I section 9. p.17. Judge Barker's opinion was superceded by Crawford, which is a distinguishable as an ill-formed facial challenge. The First Amendment is not dispositive of a section 9 analysis under Price v State, where the state has the burden of proof and persuasion, if voting is political speech.
E. 4th Amendment, section 11. The state's argument here is that voter ID is not a search. This argument is clearly erroneous, and is easier to disprove than the trickier question of whether the search is reasonable. A request for voluntary production of ID is not a search; a demand for ID is.
F. 14th Amendments p. 19. Because of vote dilution, I have standing and a live controversy to challenge whether the BMV can arbitrarily decide who does and does not get to vote in Indiana, with no hearing or recourse. The equal protection claim, liberally construed as it must be, is not about whether voter ID is a poll tax, but is about whether it violates equal protection under the Crawford-Anderson test or the Harper v Virginia Board test, given that the statute has been found both unequal and void, in the LWV ruling that will be soon upheld or reversed or decided on other grounds. The state does not seek summary judgment as to my Privileges and Immunities claim.
G. Article I section 1. p.20 My claim in not based on article I section 1 standing alone, but as it functions within the Indiana Constitution as a whole, in harmony with Article II and with Article I sections 12 and 9 and 11, which serve as enactment clauses for the policies expressed in section 1, which may or may not be justiciable standing alone.
H. Privacy Act Claim. p.20. The state does not contest (or apparently even understand) the merits of the Privacy act claim, but simply repeats its mistaken arguments about standing. If I lack standing in this court, remand to state court where I filed.
I Immunity from damages p.21
1. 11th Amendment. In their answer in Rokita, the state asserted an 11th Amendment defense. It can be presumed that this failed, since the case continued to the circuit and supreme courts. If, however, the state is correct that the 11th Amendment is a bar to hearing this case in federal court, remand to state court is the appropriate remedy.
2. Bethesda exception to Monell. p. 24. The Bethesda case is a weird outlier to American jurisprudence. I do not know whether it is followed in the Seventh Circuit. I do know it is not followed anywhere else. [@ cite collected cases.] It conflicts with Monell,and the intent of congress, and would license the worst abuses of totalitarianism,and is contrary to public policy. But if it is the law of the 7th circuit, it should be followed by this court, so that I can seek en banc review.
3. No damages under the Indiana Constitution. The state deliberately again misrepresents Cantrell, and also relies on some unreported cases accessible via Lexis, which I do not have access to and it has not provided me with. Whether the Indiana Constitution allows for damages is an open and crucial question, raised but not decided by Cantrell. The Cantrell court was right to certify the question to the Indiana Supreme Court, which then ducked. It would be wrong for this court to usurp the Indiana Courts' role. See Majors v Abell, BAPAC v Baldwin, Pullman.
4. No actual damages. p.26. The state suggests that I could have mitigated damages by requesting an absentee ballot. That is a measure of damages argument, and is not an argument that I have no damages. Perhaps the state does not understand that Indiana does not have universal absentee balloting, like Michigan does, and that to expect thousands of Hoosiers to go into a brief exile in order to vote is an undue burden, best analyzed under Norman v Reed strict scrutiny.
5. No real party in interest. P 27. Beth White as Clerk and the Board and the County are all in privity with each other and are the functional equivalent of each other. White, as the elections executive of the county, will obey whatever declaratory and injunctive relief this court issues. The County and the board share a common fisc; damages and costs or fees if any against the Board would be paid by the county. The county has not moved to implead the Board or its other members. I have no objection to adding these parties if the court deems it necessary.
Conclusion. Summary Judgment should be denied.
Argument:
Subject to some caveats, I am in substantial agreement with Parts I through V on pages 1 through 5.
A. Standing. p.6 I have article III stranding as to every claim, and to the case as a whole. But if I lack standing, removal was wrongful, and the case should be remanded, in part or in whole. The state's arguments on standing are based on a false assumption that I am concerned only with my own ballot; instead as a voter and taxpayer and citizen I have standing to bring this facial and as-applied challenge to the overall program. The court's rulings on injunctions made the same error – this is not just a case about me or my unique facts. I just happen to be the guy with standing to challenge the program as a whole, the missing element that Judges Barker and Posner relied so heavily on.
B Article II, 1, Section 1. p.8. Whether the statute furthers or interferes with free and equal elections is a mixed question of law and fact, that can be developed at trial. LWV's finding of inequality is due some deference. Because of an accident of timing, LWV is not currently final, and does not control, but it is the best available authority whether Indiana's voter ID is an unconstitutional inequality. LWV did not use the balanced Blue v Brown standard, but the more permissive Collins v Day standard, and still found the regulation unequal. At summary judgment, the facts must be taken as stated in the complaint, and construed in my favor. Here the program has failed to detect any fraud, but has fraudulently prevented the counting of over 1000 ballots, including several of mine. Pitts, Michael,Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election, 25 J. L. & Pol. __ (2009), http://indylaw.indiana.edu/people/profile.cfm?EmpNum=293.
2. Section 2. Having ID from the BMV is a qualification, not a time place and manner restriction.
I went to Google.com and found the first several definitions for “qualification.” Qualification: an attribute that must be met or complied with and that fits a person for something. http://wordnetweb.princeton.edu/perl/webwn?s=qualification.
An added condition. http://en.wiktionary.org/wiki/qualification
A condition or circumstance that must be met or complied with: fulfilled the qualifications for registering to vote in the presidential election. http://www.thefreedictionary.com/qualification.
a circumstance or condition required by law or custom for getting, having, or exercising a right, holding an office, or the like. http://dictionary.reference.com/browse/qualification.
According to these real world definitions, voter ID is a qualification. The state suggests voter ID is like several time place and manner restrictions. But there is no time or place at which a person who does not have or will not show ID may vote.
3, Precedents Simmons, Blue and Rokita. p.13. Simmons and Blue are section 14 cases distinguishable here. Voter ID would be constitutional under section 2 if there were section 15 specifically authorizing it, as there is with section 14 authorizing voter registration. Justice Dickson, discussing Simmons at the LWV oral argument described the passage the state cites here as a “rhetorical flourish”, not an articulated standard of review.
The state's strongest case is LWV, but that holding defeats only one of my two arguments, and is likely to change when the Supreme Court rules in LWV. I argue in my case that voter ID violates section 2, standing alone, because it adds a qualification. That is one of the two issues currently before the Indiana Court, which seems receptive to the argument. See also the four amici briefs in support of the plaintiff, none for the state, at http://moritzlaw.osu.edu/electionlaw/litigation/LWVvRokita.php. The Court of Appeals had ruled that section 2 gives the legislature authority to enact voter ID. But the court then went on to find that legislation void under section 23. If the legislation is void, for any reason, the practice of voter ID cannot withstand a section 2 challenge. Only the legislature, if anyone, not White or Rokita, may establish roadblocks to voting. Voter ID violates section 2, either on its own, or because there is no valid legislation authorizing it. This same analysis is relevant to each other claim. If there is no valid statutory authority, the program fails the Anderson-Crawford balancing test, the equal protection test, and the strict scrutiny 24th Amendment test.
C. Not a poll tax. The 24th Amendment issue is governed by the holding in Harman v Forsennius, not dicta in an overturned analysis in Crawford. The issue is not whether voter ID is a poll tax, but whether it survives strict scrutiny as an impediment to voting. The re-registration requirement in Harman was not a poll tax, but it was held to violate the 24th Amendment.
D. First Amendment, Article I section 9. . Judge Barker's opinion was superceded by Crawford, which is a distinguishable as an ill-formed facial challenge. The First Amendment is not dispositive of a section 9 analysis under Price v State, where the state has the burden of proof and persuasion, if voting is political speech. The state seems to be unaware that Crawford was a First Amendment decision. The question presented was whether voter ID facially violates the First or Fourteenth Amendments. Anderson was a First Amendment case as well. The state is wrong when it claims that Crawford's outcome is dispositive in this case, any more than McConnell v FEC was dispositive of the later as-applied challenge in WRTL I and II. This court has already ruled that this case survives Crawford.
Where as here there is an individually wronged plaintiff, either Norman v Reed strict scrutiny applies, or the test is still Anderson, but the fulcrum of the balance shifts. As distinct from Crawford, plaintiffs' interests are stronger,and the state and county's interests are weaker, and there has been more opportunity to see how the program does and does not work in practice. Here, the state no longer asserts any interest in inflated voter rolls or the public perception. We know that the program has yet to detect any voter fraud. We do not know if any voter fraud was deterred (or merely inconvenienced), but we do know that at least 1000 ballots have gone so far uncounted. Pitts. I have requested the names and addresses of each uncounted ID-related provisional voter in Marion County, but the county is refusing to provide this discovery, even given this court's order that it provide the requested discovery.
The only interest the county has asserted is that of following the statute. But, unless the Indiana Supreme Court decides adversely on both issues or otherwise invalidated the decision below, the Court of Appeals finding that the statute is void, will become final. The Anderson balance would then weigh the fundamental rights of plaintiff and voters against the administrative inconvenience of following the program once its statute is gone.
The state asserts that a First Amendment ruling in its favor would be dispositive of the section 9 claim. This is contrary to the holding of the landmark section 9 case, Price v State. Colleen Price lost on First Amendment grounds but won under section 9. The court established a standard to be followed in section 9 cases. If speech is political, there is a presumption that it may not be regulated, and the burden shifts to the state to justify its regulation. It is reasonable to construe voting as political speech under section 9. The state here has failed to meet its burden of persuasion and to overcome the presumption. By failing to present an independent state constitutional analysis, it can be said to have waived its claim that it should prevail on summary judgment.
E. 4th Amendment, section 11, p.18. The state's argument here is that voter ID is not a search. This argument is clearly erroneous, and is easier to disprove than the trickier question of whether the search is reasonable. A request for voluntary production of ID is not a search; a demand for ID is. A police office, using his own First Amendment rights, can engage in conversation; so can a polling place official. But when a demand for ID results in arrest, or the denial of the fundamental right to vote, it has gone beyond conversation and constitutes state action. In Hiibel, the degree of suspicion required was that of the Terry-stop, a reasonable articulable suspicion, more than a hunch or whim. The Rodriguez case cited by the state is not applicable here. Denial of the vote for failure to provide one's papers and effects is a search. Under Gerhsoffer and section 11, the standard is different. Roadblocks are OK if they are conducted in programmatic and uniform manner. In my four attempts at voting under the program, I have been treated differently each time; the county is not even following its own rules. The Court of Appeals used the example of the nuns in Terre Haute who were turned away without being given even provisional ballots. Section 11 is an issue for trial, not for summary judgment.
F. 14th Amendment. Because of vote dilution and political association interests, I have a live controversy to challenge whether the BMV can arbitrarily decide who does and does not get to vote in Indiana, with no hearing or recourse. The equal protection claim, liberally construed as it must be, is not about whether voter ID is a poll tax, but is about whether it violates equal protection under the Crawford-Anderson test or the Harper v Virginia Board test and Reynolds v Simms, especially given that the statute has been found both unequal and void, in the LWV ruling that will be soon upheld or reversed or decided on other grounds. The state has not presented argument or citation to cases or evidence which would justify summary judgment on the equal protection claim.
The state does not seek summary judgment as to my Privileges and Immunities claim.
G. Article I section 1. p.20 My claim in not based on article I section 1 standing alone, but as it functions within the Indiana Constitution as a whole, in harmony with Article II and with article I sections 12 and 9 and 11, which serve as enactment clauses for the policies expressed in section 1, which may or may not be justiciable standing alone. This case does not present this court an opportunity to remove section I from the Indiana constitution, should it be inclined to do so. The Indiana constitution is designed as a mechanism for self-government by the people. Article I sets out a general theory, Article II section one applies that to election, section two sets out the specific and exhaustive set of voter qualifications,and section 14 sets out a narrow exception to section 2. The constitution proceeds from the general to the specific. If there is some ambiguity in what article II means, it can be resolved by interpreting it to accomplish the goals of Article I section 1, in which the people retain the right to alter or abolish the government. With voter ID, the government attempts to reserve to itself the right to alter or abolish the people, contrary to Article I section 1.
H. Privacy Act Claim. p.20. The state does not contest (or apparently even understand) the merits of the Privacy act claim, but simply repeats its mistaken arguments about standing. If I lack standing in this court, remand to state court where I filed. But if even one voter is dissuaded from attempting to vote because they don't want to give out their social security number to a neighbor serving as a poll-watcher, the election total changes and I am damaged and have standing. The Privacy Act claim is where my standing and justiciability are the weakest, but it is still sufficient for article II purposes. Each other claim is even stronger. The state does not contend that it is providing the required notifications of how the social security number will be used in regard to voting, as required by the privacy act. While social security numbers are no longer displayed on the drivers license, they are still collected by BMV as a prerequisite to issuance of a license, which is one reason why some Hoosiers choose to go unlicensed.
I Immunity from damages:
The defendants argue that when the county acts at the direction of the legislature, it is wholly immune from damages under both the state and federal constitutions. It contends that if it chooses to engage in torture, piracy, random executions, germ warfare, or the reinstitution of slavery, for example, there is no recourse for damages under civil law, and hence no deterrent. This is troubling.
11th Amendment. In their answer in Rokita, the state asserted an 11th Amendment defense. It can be presumed that this failed, since the case continued to the circuit and supreme courts. If, however, the state is correct that the 11th Amendment is a bar to hearing this case in federal court, remand to state court is the appropriate remedy. It was defendants who chose the federal forum over the objection of plaintiff. They have waived whatever 11th Amendment objection might have been possible.
Bethesda exception to Monell. The Bethesda Lutheran case, http://www.projectposner.org/case/1998/154F3d716, is a weird outlier to American jurisprudence. It is distinguishable here; in Bethesda it was federal regulations rather than state statutes at issue. I do not know whether it is followed in the Seventh Circuit. I do know it is not followed anywhere else. It conflicts with Monell,and the intent of congress, and would license the worst abuses of totalitarianism, and is contrary to public policy. But if it is the law of the 7th circuit, it should be followed by this court, so that I can seek en banc review.
Bethesda relies on Quinones v Evanston, http://openjurist.org/58/f3d/275/quinones-v-city-of-evanston-illinois. Nothing in Quinones holds that a municipality may avoid 1983 liability if its policy is the result of a statute. Bethesda appears to be an outlier case not followed anywhere else. See e.g.
Smith v. City of Dayton, 68 F. Supp.2d 911, 918 (S.D. Ohio 1999), Kallstrom v. City of Columbus, 136
F.3d 1055 (6th . 1998). v. Dillon, 403 F.3d 1208, 1222-(11th . 2005), Davis v. City of Camden, 657 F. Supp. 396 (D.N.J.1987), Conroy v. City of Philadelphia, 421 F. Supp.2d 879, 886 (E.D.Pa. 2006), Health Care Ass’n. v. , 69 F. Supp.2d 463, 475 (S.D.NY 1999), Thomas v. City of Talent, 2006 WL 2252594 (D.Ore. 2006). Cf. v. of Illinois, 69 F.3d 167, 169 (7th . 1995). Caminero v. Rand, 882 F.Supp. 1319, 1324-1325 (S.D.NY 1995).
Surplus store does not help defendants. In Surplus store, the officer's actions were not pursuant to any formal county policy; here the county has adopted and implemented the voter ID policy as its own.
No damages under the Indiana Constitution. The state deliberately again misrepresents Cantrell, and also relies on some unreported cases accessible via Lexis, which I do not have access to and it has not provided me with. Whether the Indiana Constitution allows for damages is an open and crucial question, raised but not decided by Cantrell. The Cantrell court was right to certify the question to the Indiana Supreme Court, which then ducked, deciding a much narrower question and not resolving the issue of whether there are damages available to remedy violations or section 9. It would be wrong for this court to usurp the Indiana Courts' role. See Majors v Abell, BAPAC v Baldwin, Pullman. If it were already clearly established that damages can never be obtained under the Indiana Constitution, then certification in Cantrell would have been unnecessary and inappropriate. Article I is the Indiana Bill of Rights. The way the American tort law system works, is that for every right there is a wrong when it is violated, and for every wrong there is a tort. If the Indiana Bill of Rights is not self-enforcing a la Bivens, it should be renamed the bill of wishes or hopes. Instead, it is a Bill of Rights. This court has already shown itself hostile to certification. Perhaps remand to state court is the appropriate procedural step.
No actual damages. The state suggests that I could have mitigated damages by requesting an absentee ballot. That is a measure of damages argument, and is not an argument that I have no damages. Perhaps the state does not understand that Indiana does not have universal absentee balloting, like Michigan does,and that to expect thousands of Hoosiers to go into a brief exile in order to vote is an undue burden, best analyzed under Norman v Reed strict scrutiny. I had thought that in order to ask for an absentee ballot, I would have to know that I would be out of state on election day. I have recently learned that I need only be out of county. It would be possible to rent a hotel room or camp out. This would still involve damages. This would also still deter more casual voters and dilute my vote – this is not a case that is just about me. Alternatively, I could lie, request an absentee ballot, and mail it in, without actually leaving. I am unwilling to do this, and it would seem odd if the state is encouraging fraud in the name of anti-fraud. Further, I was intent on attempting to vote in person, as I knew that I had a right to do, in order to be the plaintiff with standing. My case would have been less clear-cut if I had left the county long enough to vote absentee. As it worked out, my votes have not yet been counted. I have been actually damaged. Even if they are counted tomorrow, the delay in counting is itself a damage.
No real party in interest. Beth White as Clerk and the Board and the County are all in privity with each other and are the functional equivalent of each other. White, as the elections executive of the county, will obey whatever declaratory and injunctive relief this court issues. The County and the board share a common fisc; damages and costs or fees if any against the Board would be paid by the county. The county has not moved to implead the Board or its other members. I have no objection to adding these parties if the court deems it necessary.
Conclusion. Summary Judgment for the defendants should be denied.
Respectfully submitted,
s/ Robbin Stewart
Box 29164 Cumberland In 46229-0164.
gtbear at gmail.com
CERTIFICATE OF SERVICE
I hereby certify that on March __, 2010 a copy of the foregoing response
memorandum 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. (names omitted)
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. )
MEMORANDUM IN OPPOSITION TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Comes now plaintiff Robbin Stewart and for his memo in opposition to defendants' joint motion for summary judgment states as follows.
Defendants (hereinafter “the state”) have moved for summary judgment, as has plaintiff. There is broad agreement as to the facts, although there remain disagreements as to some details, and about the conclusions that should be drawn from the facts. Some of the issues are ripe for rulings of law at this time. The central point of law, however, will be affected by the Indiana Supreme Court's ruling in LWV v Rokita, expected shortly, so an additional round of briefing following that ruling is probably in order, rather than for this court to rule in haste and in error. Expedited oral argument was held March 4th, so that a decision can be forthcoming before the May primary. https://mycourts.in.gov/arguments/default.aspx?view=detail&id=1007. While I am a biased observer, and oral argument is an imperfect indicator of a ruling, I expect that the court of appeals' finding that the voter ID statute is unconstitutional will be upheld on at least one of the two grounds. Most of defendants' arguments are premised on the idea that the statute is constitutional; they have attempted no defense of the voter ID practice if the statute is as void as the Indiana Courts have ruled it is.
There are at least some issues presented by defendants that can be ruled on now independently of how the Indiana Supreme Court rules. Defendants raise issues of justiciability and immunity from damages which could be addressed now.
Summary of Defendants' Memo: Parts I through V set out an introduction, claims, evidence relied on, facts not in dispute, and the legal standard for summary judgment. Part VI sets out why the state thinks it is entitled to judgment as a matter of law.
A. Standing. p.6
B Article II, 1, Section 1. p.8
2, Section 2 p.10
3, Precedents Simmons, Blue and Rokita. p.13.
C. Not a poll tax. p. 17
D First Amendment, Article I section 9. p. 17
E. 4th Amendment, section 11, p. 18
F. 14th Amendments p. 19
G. Article I section 1. p. 20
H. Privacy Act Claim. p. 20
I Immunity from damages p. 21
11th Amendment. p. 22
Bethesda exception to Monell. p. 24.
No damages under the Indiana Constitution. p.25.
No actual damages. p. 26.
No real party in interest. Conclusion. p. 27.
Summary of opposition Subject to some caveats, I am in substantial agreement with Parts I through V on pages 1 through 5. The memo refers to a voter ID law rather than a statute. This erroneously assumes the conclusion. Marbury v Madison holds that a statute which is unconstitutional and void is not a law.
A. Standing. I have article III stranding as to every claim, and to the case as a whole. But if I lack standing, removal was wrongful, and the case should be remanded.
B. Article II, 1, Section 1. p.8. Whether the statute furthers or interferes with free and equal elections is a mixed question of law and fact, that can be developed at trial. LWV's finding of inequality is due some deference. At summary judgment, the facts must be taken as stated in the complaint, and construed in my favor.
2. Section 2. Having ID from the BMV is a qualification in the plain English meaning of that term, not a time place and manner restriction.
3. Precedents Simmons, Blue and Rokita. Simmons and Blue are section 14 cases distinguishable here. Rokita is not controlling or persuasive, in that its erroneous lax standard of review was overruled in Crawford and misstates Indiana law.
Not a poll tax. p. 17. The 24th Amendment issue is governed by Harman v Forsennius, not dicta in an overturned analysis in Crawford. The 24th Amendment issue is not whether voter ID is a poll tax, but whether it survives strict scrutiny as an impediment to voting.
First Amendment, Article I section 9. p.17. Judge Barker's opinion was superceded by Crawford, which is a distinguishable as an ill-formed facial challenge. The First Amendment is not dispositive of a section 9 analysis under Price v State, where the state has the burden of proof and persuasion, if voting is political speech.
E. 4th Amendment, section 11. The state's argument here is that voter ID is not a search. This argument is clearly erroneous, and is easier to disprove than the trickier question of whether the search is reasonable. A request for voluntary production of ID is not a search; a demand for ID is.
F. 14th Amendments p. 19. Because of vote dilution, I have standing and a live controversy to challenge whether the BMV can arbitrarily decide who does and does not get to vote in Indiana, with no hearing or recourse. The equal protection claim, liberally construed as it must be, is not about whether voter ID is a poll tax, but is about whether it violates equal protection under the Crawford-Anderson test or the Harper v Virginia Board test, given that the statute has been found both unequal and void, in the LWV ruling that will be soon upheld or reversed or decided on other grounds. The state does not seek summary judgment as to my Privileges and Immunities claim.
G. Article I section 1. p.20 My claim in not based on article I section 1 standing alone, but as it functions within the Indiana Constitution as a whole, in harmony with Article II and with Article I sections 12 and 9 and 11, which serve as enactment clauses for the policies expressed in section 1, which may or may not be justiciable standing alone.
H. Privacy Act Claim. p.20. The state does not contest (or apparently even understand) the merits of the Privacy act claim, but simply repeats its mistaken arguments about standing. If I lack standing in this court, remand to state court where I filed.
I Immunity from damages p.21
1. 11th Amendment. In their answer in Rokita, the state asserted an 11th Amendment defense. It can be presumed that this failed, since the case continued to the circuit and supreme courts. If, however, the state is correct that the 11th Amendment is a bar to hearing this case in federal court, remand to state court is the appropriate remedy.
2. Bethesda exception to Monell. p. 24. The Bethesda case is a weird outlier to American jurisprudence. I do not know whether it is followed in the Seventh Circuit. I do know it is not followed anywhere else. [@ cite collected cases.] It conflicts with Monell,and the intent of congress, and would license the worst abuses of totalitarianism,and is contrary to public policy. But if it is the law of the 7th circuit, it should be followed by this court, so that I can seek en banc review.
3. No damages under the Indiana Constitution. The state deliberately again misrepresents Cantrell, and also relies on some unreported cases accessible via Lexis, which I do not have access to and it has not provided me with. Whether the Indiana Constitution allows for damages is an open and crucial question, raised but not decided by Cantrell. The Cantrell court was right to certify the question to the Indiana Supreme Court, which then ducked. It would be wrong for this court to usurp the Indiana Courts' role. See Majors v Abell, BAPAC v Baldwin, Pullman.
4. No actual damages. p.26. The state suggests that I could have mitigated damages by requesting an absentee ballot. That is a measure of damages argument, and is not an argument that I have no damages. Perhaps the state does not understand that Indiana does not have universal absentee balloting, like Michigan does, and that to expect thousands of Hoosiers to go into a brief exile in order to vote is an undue burden, best analyzed under Norman v Reed strict scrutiny.
5. No real party in interest. P 27. Beth White as Clerk and the Board and the County are all in privity with each other and are the functional equivalent of each other. White, as the elections executive of the county, will obey whatever declaratory and injunctive relief this court issues. The County and the board share a common fisc; damages and costs or fees if any against the Board would be paid by the county. The county has not moved to implead the Board or its other members. I have no objection to adding these parties if the court deems it necessary.
Conclusion. Summary Judgment should be denied.
Argument:
Subject to some caveats, I am in substantial agreement with Parts I through V on pages 1 through 5.
A. Standing. p.6 I have article III stranding as to every claim, and to the case as a whole. But if I lack standing, removal was wrongful, and the case should be remanded, in part or in whole. The state's arguments on standing are based on a false assumption that I am concerned only with my own ballot; instead as a voter and taxpayer and citizen I have standing to bring this facial and as-applied challenge to the overall program. The court's rulings on injunctions made the same error – this is not just a case about me or my unique facts. I just happen to be the guy with standing to challenge the program as a whole, the missing element that Judges Barker and Posner relied so heavily on.
B Article II, 1, Section 1. p.8. Whether the statute furthers or interferes with free and equal elections is a mixed question of law and fact, that can be developed at trial. LWV's finding of inequality is due some deference. Because of an accident of timing, LWV is not currently final, and does not control, but it is the best available authority whether Indiana's voter ID is an unconstitutional inequality. LWV did not use the balanced Blue v Brown standard, but the more permissive Collins v Day standard, and still found the regulation unequal. At summary judgment, the facts must be taken as stated in the complaint, and construed in my favor. Here the program has failed to detect any fraud, but has fraudulently prevented the counting of over 1000 ballots, including several of mine. Pitts, Michael,Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election, 25 J. L. & Pol. __ (2009), http://indylaw.indiana.edu/people/profile.cfm?EmpNum=293.
2. Section 2. Having ID from the BMV is a qualification, not a time place and manner restriction.
I went to Google.com and found the first several definitions for “qualification.” Qualification: an attribute that must be met or complied with and that fits a person for something. http://wordnetweb.princeton.edu/perl/webwn?s=qualification.
An added condition. http://en.wiktionary.org/wiki/qualification
A condition or circumstance that must be met or complied with: fulfilled the qualifications for registering to vote in the presidential election. http://www.thefreedictionary.com/qualification.
a circumstance or condition required by law or custom for getting, having, or exercising a right, holding an office, or the like. http://dictionary.reference.com/browse/qualification.
According to these real world definitions, voter ID is a qualification. The state suggests voter ID is like several time place and manner restrictions. But there is no time or place at which a person who does not have or will not show ID may vote.
3, Precedents Simmons, Blue and Rokita. p.13. Simmons and Blue are section 14 cases distinguishable here. Voter ID would be constitutional under section 2 if there were section 15 specifically authorizing it, as there is with section 14 authorizing voter registration. Justice Dickson, discussing Simmons at the LWV oral argument described the passage the state cites here as a “rhetorical flourish”, not an articulated standard of review.
The state's strongest case is LWV, but that holding defeats only one of my two arguments, and is likely to change when the Supreme Court rules in LWV. I argue in my case that voter ID violates section 2, standing alone, because it adds a qualification. That is one of the two issues currently before the Indiana Court, which seems receptive to the argument. See also the four amici briefs in support of the plaintiff, none for the state, at http://moritzlaw.osu.edu/electionlaw/litigation/LWVvRokita.php. The Court of Appeals had ruled that section 2 gives the legislature authority to enact voter ID. But the court then went on to find that legislation void under section 23. If the legislation is void, for any reason, the practice of voter ID cannot withstand a section 2 challenge. Only the legislature, if anyone, not White or Rokita, may establish roadblocks to voting. Voter ID violates section 2, either on its own, or because there is no valid legislation authorizing it. This same analysis is relevant to each other claim. If there is no valid statutory authority, the program fails the Anderson-Crawford balancing test, the equal protection test, and the strict scrutiny 24th Amendment test.
C. Not a poll tax. The 24th Amendment issue is governed by the holding in Harman v Forsennius, not dicta in an overturned analysis in Crawford. The issue is not whether voter ID is a poll tax, but whether it survives strict scrutiny as an impediment to voting. The re-registration requirement in Harman was not a poll tax, but it was held to violate the 24th Amendment.
D. First Amendment, Article I section 9. . Judge Barker's opinion was superceded by Crawford, which is a distinguishable as an ill-formed facial challenge. The First Amendment is not dispositive of a section 9 analysis under Price v State, where the state has the burden of proof and persuasion, if voting is political speech. The state seems to be unaware that Crawford was a First Amendment decision. The question presented was whether voter ID facially violates the First or Fourteenth Amendments. Anderson was a First Amendment case as well. The state is wrong when it claims that Crawford's outcome is dispositive in this case, any more than McConnell v FEC was dispositive of the later as-applied challenge in WRTL I and II. This court has already ruled that this case survives Crawford.
Where as here there is an individually wronged plaintiff, either Norman v Reed strict scrutiny applies, or the test is still Anderson, but the fulcrum of the balance shifts. As distinct from Crawford, plaintiffs' interests are stronger,and the state and county's interests are weaker, and there has been more opportunity to see how the program does and does not work in practice. Here, the state no longer asserts any interest in inflated voter rolls or the public perception. We know that the program has yet to detect any voter fraud. We do not know if any voter fraud was deterred (or merely inconvenienced), but we do know that at least 1000 ballots have gone so far uncounted. Pitts. I have requested the names and addresses of each uncounted ID-related provisional voter in Marion County, but the county is refusing to provide this discovery, even given this court's order that it provide the requested discovery.
The only interest the county has asserted is that of following the statute. But, unless the Indiana Supreme Court decides adversely on both issues or otherwise invalidated the decision below, the Court of Appeals finding that the statute is void, will become final. The Anderson balance would then weigh the fundamental rights of plaintiff and voters against the administrative inconvenience of following the program once its statute is gone.
The state asserts that a First Amendment ruling in its favor would be dispositive of the section 9 claim. This is contrary to the holding of the landmark section 9 case, Price v State. Colleen Price lost on First Amendment grounds but won under section 9. The court established a standard to be followed in section 9 cases. If speech is political, there is a presumption that it may not be regulated, and the burden shifts to the state to justify its regulation. It is reasonable to construe voting as political speech under section 9. The state here has failed to meet its burden of persuasion and to overcome the presumption. By failing to present an independent state constitutional analysis, it can be said to have waived its claim that it should prevail on summary judgment.
E. 4th Amendment, section 11, p.18. The state's argument here is that voter ID is not a search. This argument is clearly erroneous, and is easier to disprove than the trickier question of whether the search is reasonable. A request for voluntary production of ID is not a search; a demand for ID is. A police office, using his own First Amendment rights, can engage in conversation; so can a polling place official. But when a demand for ID results in arrest, or the denial of the fundamental right to vote, it has gone beyond conversation and constitutes state action. In Hiibel, the degree of suspicion required was that of the Terry-stop, a reasonable articulable suspicion, more than a hunch or whim. The Rodriguez case cited by the state is not applicable here. Denial of the vote for failure to provide one's papers and effects is a search. Under Gerhsoffer and section 11, the standard is different. Roadblocks are OK if they are conducted in programmatic and uniform manner. In my four attempts at voting under the program, I have been treated differently each time; the county is not even following its own rules. The Court of Appeals used the example of the nuns in Terre Haute who were turned away without being given even provisional ballots. Section 11 is an issue for trial, not for summary judgment.
F. 14th Amendment. Because of vote dilution and political association interests, I have a live controversy to challenge whether the BMV can arbitrarily decide who does and does not get to vote in Indiana, with no hearing or recourse. The equal protection claim, liberally construed as it must be, is not about whether voter ID is a poll tax, but is about whether it violates equal protection under the Crawford-Anderson test or the Harper v Virginia Board test and Reynolds v Simms, especially given that the statute has been found both unequal and void, in the LWV ruling that will be soon upheld or reversed or decided on other grounds. The state has not presented argument or citation to cases or evidence which would justify summary judgment on the equal protection claim.
The state does not seek summary judgment as to my Privileges and Immunities claim.
G. Article I section 1. p.20 My claim in not based on article I section 1 standing alone, but as it functions within the Indiana Constitution as a whole, in harmony with Article II and with article I sections 12 and 9 and 11, which serve as enactment clauses for the policies expressed in section 1, which may or may not be justiciable standing alone. This case does not present this court an opportunity to remove section I from the Indiana constitution, should it be inclined to do so. The Indiana constitution is designed as a mechanism for self-government by the people. Article I sets out a general theory, Article II section one applies that to election, section two sets out the specific and exhaustive set of voter qualifications,and section 14 sets out a narrow exception to section 2. The constitution proceeds from the general to the specific. If there is some ambiguity in what article II means, it can be resolved by interpreting it to accomplish the goals of Article I section 1, in which the people retain the right to alter or abolish the government. With voter ID, the government attempts to reserve to itself the right to alter or abolish the people, contrary to Article I section 1.
H. Privacy Act Claim. p.20. The state does not contest (or apparently even understand) the merits of the Privacy act claim, but simply repeats its mistaken arguments about standing. If I lack standing in this court, remand to state court where I filed. But if even one voter is dissuaded from attempting to vote because they don't want to give out their social security number to a neighbor serving as a poll-watcher, the election total changes and I am damaged and have standing. The Privacy Act claim is where my standing and justiciability are the weakest, but it is still sufficient for article II purposes. Each other claim is even stronger. The state does not contend that it is providing the required notifications of how the social security number will be used in regard to voting, as required by the privacy act. While social security numbers are no longer displayed on the drivers license, they are still collected by BMV as a prerequisite to issuance of a license, which is one reason why some Hoosiers choose to go unlicensed.
I Immunity from damages:
The defendants argue that when the county acts at the direction of the legislature, it is wholly immune from damages under both the state and federal constitutions. It contends that if it chooses to engage in torture, piracy, random executions, germ warfare, or the reinstitution of slavery, for example, there is no recourse for damages under civil law, and hence no deterrent. This is troubling.
11th Amendment. In their answer in Rokita, the state asserted an 11th Amendment defense. It can be presumed that this failed, since the case continued to the circuit and supreme courts. If, however, the state is correct that the 11th Amendment is a bar to hearing this case in federal court, remand to state court is the appropriate remedy. It was defendants who chose the federal forum over the objection of plaintiff. They have waived whatever 11th Amendment objection might have been possible.
Bethesda exception to Monell. The Bethesda Lutheran case, http://www.projectposner.org/case/1998/154F3d716, is a weird outlier to American jurisprudence. It is distinguishable here; in Bethesda it was federal regulations rather than state statutes at issue. I do not know whether it is followed in the Seventh Circuit. I do know it is not followed anywhere else. It conflicts with Monell,and the intent of congress, and would license the worst abuses of totalitarianism, and is contrary to public policy. But if it is the law of the 7th circuit, it should be followed by this court, so that I can seek en banc review.
Bethesda relies on Quinones v Evanston, http://openjurist.org/58/f3d/275/quinones-v-city-of-evanston-illinois. Nothing in Quinones holds that a municipality may avoid 1983 liability if its policy is the result of a statute. Bethesda appears to be an outlier case not followed anywhere else. See e.g.
Smith v. City of Dayton, 68 F. Supp.2d 911, 918 (S.D. Ohio 1999), Kallstrom v. City of Columbus, 136
F.3d 1055 (6th . 1998). v. Dillon, 403 F.3d 1208, 1222-(11th . 2005), Davis v. City of Camden, 657 F. Supp. 396 (D.N.J.1987), Conroy v. City of Philadelphia, 421 F. Supp.2d 879, 886 (E.D.Pa. 2006), Health Care Ass’n. v. , 69 F. Supp.2d 463, 475 (S.D.NY 1999), Thomas v. City of Talent, 2006 WL 2252594 (D.Ore. 2006). Cf. v. of Illinois, 69 F.3d 167, 169 (7th . 1995). Caminero v. Rand, 882 F.Supp. 1319, 1324-1325 (S.D.NY 1995).
Surplus store does not help defendants. In Surplus store, the officer's actions were not pursuant to any formal county policy; here the county has adopted and implemented the voter ID policy as its own.
No damages under the Indiana Constitution. The state deliberately again misrepresents Cantrell, and also relies on some unreported cases accessible via Lexis, which I do not have access to and it has not provided me with. Whether the Indiana Constitution allows for damages is an open and crucial question, raised but not decided by Cantrell. The Cantrell court was right to certify the question to the Indiana Supreme Court, which then ducked, deciding a much narrower question and not resolving the issue of whether there are damages available to remedy violations or section 9. It would be wrong for this court to usurp the Indiana Courts' role. See Majors v Abell, BAPAC v Baldwin, Pullman. If it were already clearly established that damages can never be obtained under the Indiana Constitution, then certification in Cantrell would have been unnecessary and inappropriate. Article I is the Indiana Bill of Rights. The way the American tort law system works, is that for every right there is a wrong when it is violated, and for every wrong there is a tort. If the Indiana Bill of Rights is not self-enforcing a la Bivens, it should be renamed the bill of wishes or hopes. Instead, it is a Bill of Rights. This court has already shown itself hostile to certification. Perhaps remand to state court is the appropriate procedural step.
No actual damages. The state suggests that I could have mitigated damages by requesting an absentee ballot. That is a measure of damages argument, and is not an argument that I have no damages. Perhaps the state does not understand that Indiana does not have universal absentee balloting, like Michigan does,and that to expect thousands of Hoosiers to go into a brief exile in order to vote is an undue burden, best analyzed under Norman v Reed strict scrutiny. I had thought that in order to ask for an absentee ballot, I would have to know that I would be out of state on election day. I have recently learned that I need only be out of county. It would be possible to rent a hotel room or camp out. This would still involve damages. This would also still deter more casual voters and dilute my vote – this is not a case that is just about me. Alternatively, I could lie, request an absentee ballot, and mail it in, without actually leaving. I am unwilling to do this, and it would seem odd if the state is encouraging fraud in the name of anti-fraud. Further, I was intent on attempting to vote in person, as I knew that I had a right to do, in order to be the plaintiff with standing. My case would have been less clear-cut if I had left the county long enough to vote absentee. As it worked out, my votes have not yet been counted. I have been actually damaged. Even if they are counted tomorrow, the delay in counting is itself a damage.
No real party in interest. Beth White as Clerk and the Board and the County are all in privity with each other and are the functional equivalent of each other. White, as the elections executive of the county, will obey whatever declaratory and injunctive relief this court issues. The County and the board share a common fisc; damages and costs or fees if any against the Board would be paid by the county. The county has not moved to implead the Board or its other members. I have no objection to adding these parties if the court deems it necessary.
Conclusion. Summary Judgment for the defendants should be denied.
Respectfully submitted,
s/ Robbin Stewart
Box 29164 Cumberland In 46229-0164.
gtbear at gmail.com
CERTIFICATE OF SERVICE
I hereby certify that on March __, 2010 a copy of the foregoing response
memorandum 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. (names omitted)
