Sunday, January 22, 2006
Amicus draft
In Crawford v Marion County, plaintiffs have moved for rehearing or rehearing en banc at the Seventh Circuit.
I am trying to draft an amicus in suport of rehearing.
I'd like to work with anyone else so inclined.
please contact me gtbear at gmail.
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 06-2218:
)
)
WILLIAM CRAWFORD, et al., )
) Appeal from the United States
Plaintiffs-Appellants, ) District Court for the Southern
) District of Indiana, Indianapolis
v. ) Division
)
MARION COUNTY ELECTION ) Cause below: No. 1:05-CV-634
BOARD, et al. , )
)
Defendant-Appellee. ) Hon. Sarah Evans Barker, Judge
--------------------------------------------------
No. 06-2317: )
)
INDIANA DEMOCRATIC PARTY, )
et al., ) Appeal from the United States
) District Court for the Southern
Plaintiffs-Appellants, ) District of Indiana, Indianapolis
) Division
v. )
) Cause below: No. 1:05-CV-634
TODD ROKITA, et al., )
)
Defendants-Appellees. ) Hon. Sarah Evans Barker, Judge
________________________________________________________________________
Brief of Joell Palmer, Douglas Page, Robbin Stewart, @ as yet unspecified others as amici curiae in support of en banc review
Robbin Stewart
Stewart & Associates
POB 29164 Cumberland IN 46229-0164
317.917.8002
Gtbear at gmail.com
Rule 26.1 Disclosure Statement @ [needs form]
Joell Palmer, Douglas Page and Robbin Stewart are individuals.
Stewart and Associates
Others if any.
Table of Contents
Rule 26.1 Disclosure Statement
Table of Authorities
Interests of the Parties
Summary of Argument
Argument
Statement of the case
Summary of argument
The case is of great public importance, meriting close review of the panel’s decision.
The panel erred in applying lax review.
The panel erred in failing to address the state constitutional claim.
The panel erred in failing to certify the state claim to the Indiana Supreme Court, since there is no controlling authority in support of the district court’s rulings on the state claims.
The panel erred in its conclusion regarding the state claim, and consequently reached the wrong conclusion in the case.
Conclusion
Table of Authorities
Anderson v Celebrezze, 460 U.S. 780 (1983),
Brownsburg Area PAC v Baldwin 137 F.3d 503, 510 (7th Cir. 1998)
Buckley v Valeo 424 U.S. 1 (1976)
Burdick v Takushi, 504 U.S. 428 (1992)
Burson v Freeman. 504 U.S. 191 (1992)
Bush v Gore, 531 U.S. 98 (2000)
Common Cause/Georgia v Cox, No. 05-15784 (2/9/2006)
Jackson County v Missouri, see Weinshenk v Missouri
Jenness v Fortson, 403 U.S. 431 (1971)
Lake v Purdue
Majors v Abell I, 317 F.3d 719 (7th Cir. 2003), Election L.J. 2: 315 (2003).
Majors v Abell III , 361 F.3d 349 (7th Cir.2004)
McConnell v. FEC. 540 U.S. 93 (2003)
Norman v Reed. 502 U.S. 279 (1992)
Timmons v. Twin Cities Area New Party, 520 U.S. 351
Weinshenk v Missouri
First Amendment,
14th A,
24th A,
Voting rights act,
Article II, sections 1 and 2, Indiana Constitution.
BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS, Richard A. Posner. Princeton, 2001.
IDENTITY, INTEREST AND AUTHORITY TO FILE AS AMICI
With the @@@@ consent of all parties and @@@@ pursuant to F.R.A.P. 29(a), Palmer Page and Stewart respectfully submit this brief as amici curiae in support of rehearing or en banc review by the full 7th circuit, of the decision by the panel.
Joell Palmer is a registered voter who was denied his right to vote at the spring primary because he declined to show a voter’s license, absent a warrant or some indicia of probable cause. His provisional vote was not counted. He was not able to enter the Marion county election board office because he does not consent to a search.
His last visit to the 7th circuit concerned his unlawful search at a drug roadblock. Edmond, Palmer v. Goldsmith, 183 F. 3d 659, 661 (CA7 1999), upheld as Indianapolis v Edmond, Palmer et al. 531 U.S. 32 (2000). Palmer, who was a candidate for office in the 2006 election, and received 322 votes, was required to show a voter’s license as a condition of voting in the fall election, which he believes violated his search and seizure rights under the 4th amendment and the Indiana Constitution, and severely burdened his voting rights under the federal and state constitutions.
Page is a registered voter who was deterred from voting because he believed he would not be allowed to vote because he lacked voter ID. He has a history of voting in Indiana.
He was, at the time of the fall election, homeless, and jobless. He has a drinking problem. His ID had been stolen, and he had not been able to obtain a replacement ID in time for the election. He did not know about a possible option of voting absentee. Stewart, pro se here, was prevented from voting at the spring and fall elections, because he would not consent to a search of a voting license, absent a warrant or some showing of probable cause. His provisional vote was not counted after he requested that it be counted, but again declined to show a voting license. He had sought to vote for Palmer. Stewart has a history of voting almost every election since turning 18, is a former candidate, has held appointed government offices, has worked on a variety of political campaigns from 1970-2001, is a lawyer with a practice concentrating to election law, wrote his LLM thesis on the free and equal elections clause, and does not take the denial of his right to vote lightly. He has had an ongoing problem in Marion County of being searched and seized without warrant, of having his election speech censored or subjected to retaliation*, and of having his personal and real property seized and taken without due compensation.
* Stewart v Taylor, 953 F. Supp. 1047, 1053-56 (S.D. Ind. 1997)
These three represent their own interests and those of similarly situated persons, people who either were deterred from voting or who were subjected to unreasonable and unwarranted searches as a condition of voting. Palmer represents the class of candidates who have not had all of their votes counted because of the voter licensing requirements.
The voter ID rules were not outcome determinative in his race.
In Palmer’s city council district, the last election was determined by three votes. Horseman v Keller. Palmer believes that the voter ID rules prevent us from knowing who actually wins the elections, and that democracy is thereby undermined. At least four Indiana 2006 elections were close enough that the outcome could not be fairly counted due to the voter suppression activities of defendants. Palmer, Page and Stewart politically associate together to promote their viewpoints, sometimes via the Libertarian Party, and believe that the voter ID program is a content-specific form of discrimination against those who are unwilling to waive their rights under the state constitution, and that this discrimination dilutes the votes they wish to cast. Amici don’t care whether the Republicans win or the Democrats win. They do care that democracy prevails, and free and equal elections are held. Each has been severely burdened.
Short statement of the case.
This is a case by a Democratic faction against a Republican administration alleging unlawful voter suppression tactics.
The legislature, following a walkout by the Democratic minority, passed a bill supported by Thor Hearn, to require that citizens who want to cast votes must first obtain a voting license from a state agency, or buy a passport, or have joined the military. In order to obtain a voting license, one must first buy a birth certificate, although you can’t buy a birth certificate if you don’t already have a voting license. Most citizens already have voting licenses, which double as drinking license and driving licenses and flying licenses and working licenses and court building entry passes, and many of the other functions of an internal passport. Papersplease.org.
The district court, applying the lax review standard of Burdick v Takushi, Jenness v Fortson, and Timmons v. Twin Cities Area New Party, upheld the regulations against challenges under the First Amendment, 24th A, 14th A, voting rights act, and two state constitutional claims under article II, sections 1 and 2.
Only the First Amendment claim, Voting Rights Act claim, and Section 2 claim were preserved on appeal. A divided panel upheld the use of the Burdick standard, tossed of the state claim without substantive opinion, and upheld the court below.
The election took place, and things went calmly, although in a few races the outcome could not be fairly determined because the voter suppression effects were greater than the margin of victory.
Argument
The case is of great public importance, meriting close review of the panel’s decision.
Following the contested 2002 election, Republicans sought legislative enactment of restrictions on who can vote. Bush v Gore, 531 U.S. 98 (2000), Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, Richard A. Posner. Princeton, 2001.
A charitable view is that this is a sincere if inept attempt to prevent a subset of voter fraud, of the sort associated with Democratic machines such as Tammany and Pendergast, and the appearance of corruption associated with Fitzgerald, Kennedy, Johnson, and Clinton. A more cynical view is that the legislation is deliberate voter suppression, a last ditch effort by the previous administration to retain control.
Courts in Georgia and Missouri blocked these measures as likely violating a number of federal and state constitutional guarantees of free and open elections, including federal claims of First Amendment, Poll Tax, and Equal Protection. Lake v Purdue, Common Cause/Georgia v. Billup, Weinshenk v Missouri. These cases applied strict or exacting scrutiny, since core fundamental rights are involved, there is a risk of legislative self-dealing, and the poll tax amendment specifically forbids these practices.
Because the panel’s decision creates a split in authority over the constitutionality of the voter suppression program, if the Seventh Circuit does not address the matter, Supreme Court review may be needed. The panel’s decision may not reflect the opinions and arguments of the rest of the circuit.
The panel itself was sharply divided.
The public perception may be that the panel’s decision was capricious and arbitrary, based more on the personal preferences of the particular panel, than in formal rules of law. A well reasoned opinion from the full circuit, whether upholding or reversing the decision, would help to combat this perception.
The panel erred in applying deferential and lax review.
The Supreme Court has outlined a framework for analysis of election procedure claims,
in which a court first measures the degree of the burden, and then applies either lax review under Burdick v Takushi, intermediate review under Anderson v Celebrezze, or strict scrutiny under Norman v Reed.
[Courts] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.Anderson, 460 U.S. 780, 790.
There are a few variants, such as the “exacting” standard of Buckley v Valeo or the balancing of competing interests tests of Burson v Freeman. Unfortunately, the court has not set out any workable method of knowing when a burden is severe, so the genre remains fraught with indeterminacy. See Majors v Abell III’s discussion of McConnell v. FEC. “Reluctant, without clearer guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional.” Majors v Abell III, 361 F.3d 349 (7th Cir.2004)
In the interests of brevity and avoiding duplication, this brief will not address the problems with the analysis under the lax scrutiny Burdick standard. Given the initial fatal error, the conclusion of upholding the program is understandable. The panel majority was moved by the lack of identifiable specific people who are being denied their right to vote and can point to a concrete severe burden. Amici are such people, and there are others who for whatever reason do not choose to come forward.
The panel erred in failing to address the state constitutional claim.
Whether or not the panel was right in applying Burdick and brushing off the First Amendment concerns, the panel erred in failing to address the constitutionality of the voter ID program under the state constitution.
Article II Section 2. (a) states: A citizen of the United States who is at least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct at the election.
There is no authority for lax review under section 2 once a voter has vested his voting rights by registering to vote. The Indiana cases distinguish sharply between the legislature’s authority to determine who may register, with their lack of authority to prevent a duly registered voter from casting her vote.
Plaintiffs had properly preserved their appeal of the district court’s erroneous decision on the state grounds, and due process was denied when the panel failed to address that issue.
The panel erred in failing to certify the state claim to the Indiana Supreme Court, since there is no controlling authority in support of the district court’s rulings on the state claims.
Whether the voting license program violates the state constitution is a case of first impression. None of the Indiana rulings on article II, most of which are very old, specifically address the point
@@@ add cases.
In Brownsburg Area PAC v. Baldwin, the 7th circuit determined that it should certify unresolved outcome-determinative questions of state law to the state court, instead of guessing or flipping a coin or ignoring the state law issues.
Although neither party here has requested certification, we are free to certify questions on our own motion. Consequently, due to the breadth of impact of the issue at bar and the important concerns of federalism apparent when a federal court is asked to interpret a state statute, we respectfully certify the following question to the Supreme Court of Indiana. Id.
In Majors v Abell I, 317 F.3d 719 (7th Cir. 2003), Election L.J. 2: 315 (2003),
the court again referred a question of state law to the state court, where the district court had improperly dismissed the case based on an implausible set of assumptions including an erroneous reading of state law. Due respect for dual sovereignty and comity requires that the state claim be addressed and resolved instead of ignored. Certification is probably the best way to proceed. In the two other states which have addressed the issue of the constitutionality of similar voter ID proposals, state courts blocked the program on state constitutional grounds. Because the panel failed to meaningfully resolve the state claim, rehearing should be granted.
The panel erred in its conclusion regarding the state claim, and consequently reached the wrong conclusion in the case.
Had it carefully reviewed the state claim, the panel should have noticed that the district court below was in error. There is a long line of cases under article II section 2 which sets out a framework in which the legislature has authority to establish standard for voting registration, but that once a voter is registered, her right to vote becomes vested, and the legislature lacks authority to prevent a registered voter from casting a vote and having it counted.
"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, except as such limitation upon the privilege is authorized by other provisions in the constitution." 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 of Elections Commissioners v Knight 117 NE 565, 650 (1917). And see Mosely v Board of Commissioners, 165 NE 241 (1929), Brewer v McClelland 32 NE 299 (1892).
@@
In Lake v. Purdue, http://moritzlaw.osu.edu/electionlaw/litigation/documents/westmoreland.pdf, a Georgia court construed a similar provision of the Georgia Constitution to prohibit the addition of a licensing requirement. The Georgia Supreme Court declined to stay the injunction. An appeal to the Georgia Supreme Court is in progress. Id. p.3.
The state “cannot unduly burden the paramount right to vote. The power to regulate elections does not justify the abridgement of the right to vote…Where the right of suffrage is fixed in the Constitution it cannot be restricted by the legislature, but only by the people through an amendment to the Constitution.” Id.
The exact standard to use in an article II claim is unclear, but Burdick lax scrutiny would have the effect of making article II meaningless and unenforceable. Indiana has a strong and living tradition of finding rights in its state constitution above and beyond the federal floor. @ Second Wind for the Indiana Bill of Rights, Randall Shepard.
Because the panel is wrong on the merits of the state claim, failed to analyze and resolve the state claim, and failed to certify the open question of whether the voting license program is constitutional under article II, the full seventh circuit should rehear the case, or the panel should amend its opinion to address the Article II claim.
Conclusion.
If the panel declines to address the determinative state claim, the full court should rehear the case to attempt to resolve the split in authorities, and either find the voter ID program unconstitutional, or determine an appropriate standard of review and remand to the district court, and/or certify the state claim to the Indiana Supreme Court.
Respectfully etc.
CERTIFICATE OF COMPLIANCE WITH
TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,
AND TYPE STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains @@@ words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and,
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief
has been prepared in a proportionally spaced typeface using Word in 12 point Times New Roman font.
Respectfully Submitted,
@
CERTIFICATE OF SERVICE
This is to certify that on @@ , I have this day caused a true and correct
copy of the foregoing brief to be served via United States first class priority mail upon the
Clerk of the Seventh Circuit Court of Appeals and United States first class mail upon the
following:
Ken Falk, Esq.
Indiana Civil Liberties Union
1031 E. Washington Street
Indianapolis, IN 46202
Thomas M. Fisher, Esq.
Douglas J. Webber, Esq.
Indiana Attorney General’s Office
302 W. Washington street
IGCS - 5th Floor
Indianapolis, IN 46204
James B. Osborn, Esq.
Office of Corporation Counsel
1601 City-County Building
200 E. Washington Street
Indianapolis, IN 46204
William R. Groth
Geoff Lohman
FILLENWARTH DENNERLINE
GROTH & TOWE
1213 North Arlington Avenue, Suite 204
Indianapolis, IN 46219
@@
Rough notes toward an amicus brief in favor of en banc review of Democratic Party v Rokita/Crawford v Marion County Election Board. Begin 1/20/2007 3:00 PM, end 1/20/2007 5:40 PM resume 1/21/2007 7:36 PM end 10:45 1/20/07 resume 1/22/2007 4:17 PM
srosdeitcher@paulweiss.com wrote the brennan center amicus
Anderson test:
It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. 460 U.S. 780, 790.
Section 2. (a) A citizen of the United States who is at least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct at the election.
-----------------------
Caption
Rule 26.1 Disclosure Statement
TOC
Table of Authorities
Interests of the Parties
Statement of the case
Statement of facts
Summary of Argument
Argument
Conclusion
In Crawford v Marion County, plaintiffs have moved for rehearing or rehearing en banc at the Seventh Circuit.
I am trying to draft an amicus in suport of rehearing.
I'd like to work with anyone else so inclined.
please contact me gtbear at gmail.
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 06-2218:
)
)
WILLIAM CRAWFORD, et al., )
) Appeal from the United States
Plaintiffs-Appellants, ) District Court for the Southern
) District of Indiana, Indianapolis
v. ) Division
)
MARION COUNTY ELECTION ) Cause below: No. 1:05-CV-634
BOARD, et al. , )
)
Defendant-Appellee. ) Hon. Sarah Evans Barker, Judge
--------------------------------------------------
No. 06-2317: )
)
INDIANA DEMOCRATIC PARTY, )
et al., ) Appeal from the United States
) District Court for the Southern
Plaintiffs-Appellants, ) District of Indiana, Indianapolis
) Division
v. )
) Cause below: No. 1:05-CV-634
TODD ROKITA, et al., )
)
Defendants-Appellees. ) Hon. Sarah Evans Barker, Judge
________________________________________________________________________
Brief of Joell Palmer, Douglas Page, Robbin Stewart, @ as yet unspecified others as amici curiae in support of en banc review
Robbin Stewart
Stewart & Associates
POB 29164 Cumberland IN 46229-0164
317.917.8002
Gtbear at gmail.com
Rule 26.1 Disclosure Statement @ [needs form]
Joell Palmer, Douglas Page and Robbin Stewart are individuals.
Stewart and Associates
Others if any.
Table of Contents
Rule 26.1 Disclosure Statement
Table of Authorities
Interests of the Parties
Summary of Argument
Argument
Statement of the case
Summary of argument
The case is of great public importance, meriting close review of the panel’s decision.
The panel erred in applying lax review.
The panel erred in failing to address the state constitutional claim.
The panel erred in failing to certify the state claim to the Indiana Supreme Court, since there is no controlling authority in support of the district court’s rulings on the state claims.
The panel erred in its conclusion regarding the state claim, and consequently reached the wrong conclusion in the case.
Conclusion
Table of Authorities
Anderson v Celebrezze, 460 U.S. 780 (1983),
Brownsburg Area PAC v Baldwin 137 F.3d 503, 510 (7th Cir. 1998)
Buckley v Valeo 424 U.S. 1 (1976)
Burdick v Takushi, 504 U.S. 428 (1992)
Burson v Freeman. 504 U.S. 191 (1992)
Bush v Gore, 531 U.S. 98 (2000)
Common Cause/Georgia v Cox, No. 05-15784 (2/9/2006)
Jackson County v Missouri, see Weinshenk v Missouri
Jenness v Fortson, 403 U.S. 431 (1971)
Lake v Purdue
Majors v Abell I, 317 F.3d 719 (7th Cir. 2003), Election L.J. 2: 315 (2003).
Majors v Abell III , 361 F.3d 349 (7th Cir.2004)
McConnell v. FEC. 540 U.S. 93 (2003)
Norman v Reed. 502 U.S. 279 (1992)
Timmons v. Twin Cities Area New Party, 520 U.S. 351
Weinshenk v Missouri
First Amendment,
14th A,
24th A,
Voting rights act,
Article II, sections 1 and 2, Indiana Constitution.
BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS, Richard A. Posner. Princeton, 2001.
IDENTITY, INTEREST AND AUTHORITY TO FILE AS AMICI
With the @@@@ consent of all parties and @@@@ pursuant to F.R.A.P. 29(a), Palmer Page and Stewart respectfully submit this brief as amici curiae in support of rehearing or en banc review by the full 7th circuit, of the decision by the panel.
Joell Palmer is a registered voter who was denied his right to vote at the spring primary because he declined to show a voter’s license, absent a warrant or some indicia of probable cause. His provisional vote was not counted. He was not able to enter the Marion county election board office because he does not consent to a search.
His last visit to the 7th circuit concerned his unlawful search at a drug roadblock. Edmond, Palmer v. Goldsmith, 183 F. 3d 659, 661 (CA7 1999), upheld as Indianapolis v Edmond, Palmer et al. 531 U.S. 32 (2000). Palmer, who was a candidate for office in the 2006 election, and received 322 votes, was required to show a voter’s license as a condition of voting in the fall election, which he believes violated his search and seizure rights under the 4th amendment and the Indiana Constitution, and severely burdened his voting rights under the federal and state constitutions.
Page is a registered voter who was deterred from voting because he believed he would not be allowed to vote because he lacked voter ID. He has a history of voting in Indiana.
He was, at the time of the fall election, homeless, and jobless. He has a drinking problem. His ID had been stolen, and he had not been able to obtain a replacement ID in time for the election. He did not know about a possible option of voting absentee. Stewart, pro se here, was prevented from voting at the spring and fall elections, because he would not consent to a search of a voting license, absent a warrant or some showing of probable cause. His provisional vote was not counted after he requested that it be counted, but again declined to show a voting license. He had sought to vote for Palmer. Stewart has a history of voting almost every election since turning 18, is a former candidate, has held appointed government offices, has worked on a variety of political campaigns from 1970-2001, is a lawyer with a practice concentrating to election law, wrote his LLM thesis on the free and equal elections clause, and does not take the denial of his right to vote lightly. He has had an ongoing problem in Marion County of being searched and seized without warrant, of having his election speech censored or subjected to retaliation*, and of having his personal and real property seized and taken without due compensation.
* Stewart v Taylor, 953 F. Supp. 1047, 1053-56 (S.D. Ind. 1997)
These three represent their own interests and those of similarly situated persons, people who either were deterred from voting or who were subjected to unreasonable and unwarranted searches as a condition of voting. Palmer represents the class of candidates who have not had all of their votes counted because of the voter licensing requirements.
The voter ID rules were not outcome determinative in his race.
In Palmer’s city council district, the last election was determined by three votes. Horseman v Keller. Palmer believes that the voter ID rules prevent us from knowing who actually wins the elections, and that democracy is thereby undermined. At least four Indiana 2006 elections were close enough that the outcome could not be fairly counted due to the voter suppression activities of defendants. Palmer, Page and Stewart politically associate together to promote their viewpoints, sometimes via the Libertarian Party, and believe that the voter ID program is a content-specific form of discrimination against those who are unwilling to waive their rights under the state constitution, and that this discrimination dilutes the votes they wish to cast. Amici don’t care whether the Republicans win or the Democrats win. They do care that democracy prevails, and free and equal elections are held. Each has been severely burdened.
Short statement of the case.
This is a case by a Democratic faction against a Republican administration alleging unlawful voter suppression tactics.
The legislature, following a walkout by the Democratic minority, passed a bill supported by Thor Hearn, to require that citizens who want to cast votes must first obtain a voting license from a state agency, or buy a passport, or have joined the military. In order to obtain a voting license, one must first buy a birth certificate, although you can’t buy a birth certificate if you don’t already have a voting license. Most citizens already have voting licenses, which double as drinking license and driving licenses and flying licenses and working licenses and court building entry passes, and many of the other functions of an internal passport. Papersplease.org.
The district court, applying the lax review standard of Burdick v Takushi, Jenness v Fortson, and Timmons v. Twin Cities Area New Party, upheld the regulations against challenges under the First Amendment, 24th A, 14th A, voting rights act, and two state constitutional claims under article II, sections 1 and 2.
Only the First Amendment claim, Voting Rights Act claim, and Section 2 claim were preserved on appeal. A divided panel upheld the use of the Burdick standard, tossed of the state claim without substantive opinion, and upheld the court below.
The election took place, and things went calmly, although in a few races the outcome could not be fairly determined because the voter suppression effects were greater than the margin of victory.
Argument
The case is of great public importance, meriting close review of the panel’s decision.
Following the contested 2002 election, Republicans sought legislative enactment of restrictions on who can vote. Bush v Gore, 531 U.S. 98 (2000), Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, Richard A. Posner. Princeton, 2001.
A charitable view is that this is a sincere if inept attempt to prevent a subset of voter fraud, of the sort associated with Democratic machines such as Tammany and Pendergast, and the appearance of corruption associated with Fitzgerald, Kennedy, Johnson, and Clinton. A more cynical view is that the legislation is deliberate voter suppression, a last ditch effort by the previous administration to retain control.
Courts in Georgia and Missouri blocked these measures as likely violating a number of federal and state constitutional guarantees of free and open elections, including federal claims of First Amendment, Poll Tax, and Equal Protection. Lake v Purdue, Common Cause/Georgia v. Billup, Weinshenk v Missouri. These cases applied strict or exacting scrutiny, since core fundamental rights are involved, there is a risk of legislative self-dealing, and the poll tax amendment specifically forbids these practices.
Because the panel’s decision creates a split in authority over the constitutionality of the voter suppression program, if the Seventh Circuit does not address the matter, Supreme Court review may be needed. The panel’s decision may not reflect the opinions and arguments of the rest of the circuit.
The panel itself was sharply divided.
The public perception may be that the panel’s decision was capricious and arbitrary, based more on the personal preferences of the particular panel, than in formal rules of law. A well reasoned opinion from the full circuit, whether upholding or reversing the decision, would help to combat this perception.
The panel erred in applying deferential and lax review.
The Supreme Court has outlined a framework for analysis of election procedure claims,
in which a court first measures the degree of the burden, and then applies either lax review under Burdick v Takushi, intermediate review under Anderson v Celebrezze, or strict scrutiny under Norman v Reed.
[Courts] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.Anderson, 460 U.S. 780, 790.
There are a few variants, such as the “exacting” standard of Buckley v Valeo or the balancing of competing interests tests of Burson v Freeman. Unfortunately, the court has not set out any workable method of knowing when a burden is severe, so the genre remains fraught with indeterminacy. See Majors v Abell III’s discussion of McConnell v. FEC. “Reluctant, without clearer guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional.” Majors v Abell III, 361 F.3d 349 (7th Cir.2004)
In the interests of brevity and avoiding duplication, this brief will not address the problems with the analysis under the lax scrutiny Burdick standard. Given the initial fatal error, the conclusion of upholding the program is understandable. The panel majority was moved by the lack of identifiable specific people who are being denied their right to vote and can point to a concrete severe burden. Amici are such people, and there are others who for whatever reason do not choose to come forward.
The panel erred in failing to address the state constitutional claim.
Whether or not the panel was right in applying Burdick and brushing off the First Amendment concerns, the panel erred in failing to address the constitutionality of the voter ID program under the state constitution.
Article II Section 2. (a) states: A citizen of the United States who is at least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct at the election.
There is no authority for lax review under section 2 once a voter has vested his voting rights by registering to vote. The Indiana cases distinguish sharply between the legislature’s authority to determine who may register, with their lack of authority to prevent a duly registered voter from casting her vote.
Plaintiffs had properly preserved their appeal of the district court’s erroneous decision on the state grounds, and due process was denied when the panel failed to address that issue.
The panel erred in failing to certify the state claim to the Indiana Supreme Court, since there is no controlling authority in support of the district court’s rulings on the state claims.
Whether the voting license program violates the state constitution is a case of first impression. None of the Indiana rulings on article II, most of which are very old, specifically address the point
@@@ add cases.
In Brownsburg Area PAC v. Baldwin, the 7th circuit determined that it should certify unresolved outcome-determinative questions of state law to the state court, instead of guessing or flipping a coin or ignoring the state law issues.
Although neither party here has requested certification, we are free to certify questions on our own motion. Consequently, due to the breadth of impact of the issue at bar and the important concerns of federalism apparent when a federal court is asked to interpret a state statute, we respectfully certify the following question to the Supreme Court of Indiana. Id.
In Majors v Abell I, 317 F.3d 719 (7th Cir. 2003), Election L.J. 2: 315 (2003),
the court again referred a question of state law to the state court, where the district court had improperly dismissed the case based on an implausible set of assumptions including an erroneous reading of state law. Due respect for dual sovereignty and comity requires that the state claim be addressed and resolved instead of ignored. Certification is probably the best way to proceed. In the two other states which have addressed the issue of the constitutionality of similar voter ID proposals, state courts blocked the program on state constitutional grounds. Because the panel failed to meaningfully resolve the state claim, rehearing should be granted.
The panel erred in its conclusion regarding the state claim, and consequently reached the wrong conclusion in the case.
Had it carefully reviewed the state claim, the panel should have noticed that the district court below was in error. There is a long line of cases under article II section 2 which sets out a framework in which the legislature has authority to establish standard for voting registration, but that once a voter is registered, her right to vote becomes vested, and the legislature lacks authority to prevent a registered voter from casting a vote and having it counted.
"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, except as such limitation upon the privilege is authorized by other provisions in the constitution." 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 of Elections Commissioners v Knight 117 NE 565, 650 (1917). And see Mosely v Board of Commissioners, 165 NE 241 (1929), Brewer v McClelland 32 NE 299 (1892).
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In Lake v. Purdue, http://moritzlaw.osu.edu/electionlaw/litigation/documents/westmoreland.pdf, a Georgia court construed a similar provision of the Georgia Constitution to prohibit the addition of a licensing requirement. The Georgia Supreme Court declined to stay the injunction. An appeal to the Georgia Supreme Court is in progress. Id. p.3.
The state “cannot unduly burden the paramount right to vote. The power to regulate elections does not justify the abridgement of the right to vote…Where the right of suffrage is fixed in the Constitution it cannot be restricted by the legislature, but only by the people through an amendment to the Constitution.” Id.
The exact standard to use in an article II claim is unclear, but Burdick lax scrutiny would have the effect of making article II meaningless and unenforceable. Indiana has a strong and living tradition of finding rights in its state constitution above and beyond the federal floor. @ Second Wind for the Indiana Bill of Rights, Randall Shepard.
Because the panel is wrong on the merits of the state claim, failed to analyze and resolve the state claim, and failed to certify the open question of whether the voting license program is constitutional under article II, the full seventh circuit should rehear the case, or the panel should amend its opinion to address the Article II claim.
Conclusion.
If the panel declines to address the determinative state claim, the full court should rehear the case to attempt to resolve the split in authorities, and either find the voter ID program unconstitutional, or determine an appropriate standard of review and remand to the district court, and/or certify the state claim to the Indiana Supreme Court.
Respectfully etc.
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Clerk of the Seventh Circuit Court of Appeals and United States first class mail upon the
following:
Ken Falk, Esq.
Indiana Civil Liberties Union
1031 E. Washington Street
Indianapolis, IN 46202
Thomas M. Fisher, Esq.
Douglas J. Webber, Esq.
Indiana Attorney General’s Office
302 W. Washington street
IGCS - 5th Floor
Indianapolis, IN 46204
James B. Osborn, Esq.
Office of Corporation Counsel
1601 City-County Building
200 E. Washington Street
Indianapolis, IN 46204
William R. Groth
Geoff Lohman
FILLENWARTH DENNERLINE
GROTH & TOWE
1213 North Arlington Avenue, Suite 204
Indianapolis, IN 46219
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Rough notes toward an amicus brief in favor of en banc review of Democratic Party v Rokita/Crawford v Marion County Election Board. Begin 1/20/2007 3:00 PM, end 1/20/2007 5:40 PM resume 1/21/2007 7:36 PM end 10:45 1/20/07 resume 1/22/2007 4:17 PM
srosdeitcher@paulweiss.com wrote the brennan center amicus
Anderson test:
It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. 460 U.S. 780, 790.
Section 2. (a) A citizen of the United States who is at least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct at the election.
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Rule 26.1 Disclosure Statement
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Table of Authorities
Interests of the Parties
Statement of the case
Statement of facts
Summary of Argument
Argument
Conclusion
