Saturday, February 18, 2006
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 AMICI CURIAE IN SUPPORT OF EN BANC REVIEW
Robbin Stewart
Stewart & Associates #17147-53
POB 29164 Cumberland IN 46229-0164
317.917.8002
Gtbear at gmail.com
Rule 26.1 Disclosure Statement
(1) The full name of every party that the attorney represents in the case
___Joell Palmer__________________________________________________________
___Douglas Page______________________________________________________
___Robbin Stewart________________________________________________________
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
_Robbin Stewart, esq., Stewart and Associates.________________________________
(3) If the party or amicus is a corporation: No.
Table of Contents
Rule 26.1 Disclosure Statement 2
Table of Authorities 3
Interests of the Parties 4
Argument 6
Statement of the case 6
The case is of great public importance, meriting close review of the panel’s erroneous decision. 7
The panel erred in applying lax review. 8
The panel erred in failing to address the state constitutional claim. 9
The panel erred in failing to certify the state claim to the Indiana Supreme Court. 10
The panel erred in its conclusion regarding the state claim. 11
Conclusion 12
Certifications 13
Table of Authorities
ACLU of New Mexico v. Santillanes, No. CIV 05-1136 (D. N.Mex. 2/12/2007) 8
Anderson v Celebrezze, 460 U.S. 780 (1983), 8, 9
Board of Elections Commissioners v Knight, 117 NE 565, 650 (1917). 11-12 Brewer v McClelland, 32 NE 299 (1892). 12
Brownsburg Area PAC v Baldwin, 137 F.3d 503, 510 (7th Cir. 1998) 10
Buckley v Valeo, 424 U.S. 1 (1976) 9
Burdick v Takushi, 504 U.S. 428 (1992) 6, 7, 8
Burson v Freeman, 504 U.S. 191 (1992) 9
Bush v Gore, 531 U.S. 98 (2000) 7
Common Cause/Ga. v. Billups, 439 F.Supp. 2d 1294, 1345-50 (N.D. Ga. 2006) 7
Common Cause/Georgia v Cox, No. 05-15784 (2/9/2006)
Edmond, Palmer v. Goldsmith, 183 F. 3d 659, 661 (CA7 1999), upheld as Indianapolis v Edmond, Palmer, 531 U.S. 32 (2000) 4
Fritch v State, 155 NE 257 (1927) 11
Horseman v Keller, 41 N.E.2d 164, 168 (Ind. 2006). 6
Indiana ex rel McGonigan v Madison Circuit Court, 193 NE2d 242 (1963) 11
Jackson County v Missouri, see Weinshenk v Missouri, 7
Jenness v Fortson, 403 U.S. 431 (1971) 6
Lake v Purdue, No. CV119207 (Fulton Cty., Ga. July 7, 2006) available at. http://moritzlaw.osu.edu/electionlaw/litigation/documents/westmoreland.pdf 7,12
Majors v Abell I, 317 F.3d 719 (7th Cir. 2003), Election L.J. 2: 315 (2003). 9, 10
Majors v Abell III, 361 F.3d 349 (7th Cir.2004) 9
McConnell v. FEC, 540 U.S. 93 (2003) 9
Morris v Powell, 25 NE 221 (1890), 11
Mosely v Board of Commissioners, 165 NE 241 (1929) 11
Norman v Reed, 502 U.S. 279 (1992) 8
State v Shanks, 99 NE 481 (1912) 11
Stewart v Taylor, 953 F. Supp. 1047, 1053-56 (S.D. Ind. 1997). 5
Timmons v. Twin Cities Area New Party, 520 U.S. 351 6
Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006). 7
First Amendment, 7
14th Amendment, 7
24th Amendment, 7
Voting Rights Act, 7
Article II, sections 1 and 2, Indiana Constitution. 7, 10
BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS, Richard A. Posner. Princeton, 2001. 7
Http://Papersplease.org 6
IDENTITY, INTEREST AND AUTHORITY TO FILE AS AMICI
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 Seventh 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 to ask that his provisional vote be counted, because he does not consent to a search, and those who do not consent to be searched are not allowed into the building.
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, 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. 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 at the clerk’s office 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 in 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.
E.g. 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, 41 N.E.2d 164, 168 (Ind. 2006). Palmer believes that the voter ID rules prevent us from knowing who actually wins the elections in close cases, and that democracy is thereby undermined and severely burdened. 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, and some civil liberties groups, against a Republican administration alleging unlawful voter suppression tactics. The legislature, following a walkout by the Democratic minority, passed a bill 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, if they haven’t retained the original, although they can’t buy a birth certificate if they don’t already have a voting license. Most citizens already have voting licenses, which double as drinking licenses and driving licenses and flying licenses and working licenses and court building entry passes, and many of the other functions of an internal passport. Http://Papersplease.org.
The district court, applying the deferential lax review standard of Burdick v Takushi, 504 U.S. 428 (1992), Jenness v Fortson, 403 U.S. 431 (1971), and Timmons v. Twin Cities Area New Party, 520 U.S. 351, upheld the regulations against challenges under the First Amendment, 24th Amendment, 14th Amendment, 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. Amici express no opinion as the Voting Rights Act claim. A divided panel upheld the use of the Burdick standard, rejected 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.
The case is of great public importance, meriting close review of the panel’s decision.
Following the contested 2000 election, Republicans sought legislative enactment of restrictions on who can vote. See 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 of the voter ID movement 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 have 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, No. CV119207 (Fulton Cty., Ga. July 7, 2006), Common Cause/Georgia v. Billup, 439 F.Supp. 2d 1294, 1345-50 (N.D. Ga. 2006), Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006).
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. The most recent case, ACLU of New Mexico v. Santillanes, No. CIV 05-1136 ,(D. N.Mex. 2/12/2007), http://moritzlaw.osu.edu/electionlaw/litigation/documents/Chavez-OrdergrantingSJinpart.pdf, applied the 4 factor Anderson standard and concluded that the city’s voter ID regulations were unconstitutional.
* John Fitzgerald was expelled from Congress in 1922 for voter fraud. His grandson JFK
was alleged to have conspired with the Teamsters in Chicago to steal the 1960 election. LBJ was elected to the Senate as the result of vote fraud in precinct 13 in Jim Wells County. Clinton was impeached and disbarred.
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 split is between the panel of the 7th circuit, and every other court in the country which has reached the merits of voter ID.
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, 504 U.S. 428 (1992), intermediate review under Anderson v Celebrezze, 460 U.S. 780 (1983), or strict scrutiny under Norman v Reed, 502 U.S. 279 (1992).
[A Court] 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 (1983).
There are a few variants, such as the “exacting scrutiny” standard of Buckley v Valeo, 424 U.S. 1 (1976), or the balancing of competing interests tests of Burson v Freeman, 504 U.S. 191 (1992). Unfortunately, the Supreme 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, 540 U.S. 93 (2003). “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 in choosing a standard of review, 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. 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.
In Brownsburg Area PAC v. Baldwin, 137 F.3d 503, 510 (7th Cir. 1998), 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.
Consequently it 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 standards 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 Section 2 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.
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.
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 2660 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,
___________
Robbin Stewart
Stewart & Associates
POB 29164 Cumberland IN 46229-0164
317.917.8002
Gtbear at gmail.com
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 mail upon the
Clerk of the Seventh Circuit Court of Appeals and United States first class mail or hand delivery 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
______________
Robbin Stewart
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
MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE
Amici Joell Palmer, Douglas Page and Robbin Stewart move for leave to file the accompanying brief as amici curiae in support of the position of the plaintiffs, who have moved for rehearing or rehearing en banc in this case. The parties' consent has been requested and is awaiting response. Time is of the essence.
Palmer Page and Stewart are registered voters who have been denied the vote due to the voter ID regulations at issue in the case. Palmer was denied the vote at the spring primary election, and believes his rights were violated when he was compelled to produce ID at the fall general election. Palmer was a candidate who lost votes from one or more of his supporters due to the voter ID regulations. Palmer’s vote was diluted when like-minded voters were prevented or deterred from voting. Page was deterred from voting after his ID was stolen and he was unable to obtain a replacement in time to vote. Stewart, here pro se and as amicus counsel for Page and Palmer, was prevented from voting in the spring and fall elections. Palmer and Stewart have both previously been plaintiffs before the 7th circuit in cases of rights violations by these defendants. In Indianapolis v Edmond, the United States Supreme Court upheld the 7th Circuit’s injunction of the drug roadblock at which Palmer was assaulted and searched and seized without warrant. Edmond, Palmer v. Goldsmith, 183 F. 3d 659, 661 (CA7 1999), upheld as Indianapolis v Edmond, Palmer, 531 U.S. 32 (2000). Here Palmer again objects to an unwarranted search and seizure, this time at the voting booth.
Stewart has been counsel before the 7th circuit and has detailed knowledge of both the facts and the law of the case. Amici represent a perspective different than that of the Democratic Party plaintiffs. The discussion of the state constitutional claim raises issues not addressed in the briefing by the parties, and is intended to aid the court in its decision as to whether to rehear the case.
They believe their perspective will assist the court in understanding the public importance of the case, the errors in the panel opinion, and the compelling need for rehearing en banc. They thus seek leave to file the accompanying amicus curiae brief.
Respectfully submitted,
Robbin Stewart #17147-53
Stewart & Associates
POB 29164 Cumberland IN 46229-0164
317.917.8002
Gtbear at gmail.com
_______________
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 AMICI CURIAE IN SUPPORT OF EN BANC REVIEW
Robbin Stewart
Stewart & Associates #17147-53
POB 29164 Cumberland IN 46229-0164
317.917.8002
Gtbear at gmail.com
Rule 26.1 Disclosure Statement
(1) The full name of every party that the attorney represents in the case
___Joell Palmer__________________________________________________________
___Douglas Page______________________________________________________
___Robbin Stewart________________________________________________________
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
_Robbin Stewart, esq., Stewart and Associates.________________________________
(3) If the party or amicus is a corporation: No.
Table of Contents
Rule 26.1 Disclosure Statement 2
Table of Authorities 3
Interests of the Parties 4
Argument 6
Statement of the case 6
The case is of great public importance, meriting close review of the panel’s erroneous decision. 7
The panel erred in applying lax review. 8
The panel erred in failing to address the state constitutional claim. 9
The panel erred in failing to certify the state claim to the Indiana Supreme Court. 10
The panel erred in its conclusion regarding the state claim. 11
Conclusion 12
Certifications 13
Table of Authorities
ACLU of New Mexico v. Santillanes, No. CIV 05-1136 (D. N.Mex. 2/12/2007) 8
Anderson v Celebrezze, 460 U.S. 780 (1983), 8, 9
Board of Elections Commissioners v Knight, 117 NE 565, 650 (1917). 11-12 Brewer v McClelland, 32 NE 299 (1892). 12
Brownsburg Area PAC v Baldwin, 137 F.3d 503, 510 (7th Cir. 1998) 10
Buckley v Valeo, 424 U.S. 1 (1976) 9
Burdick v Takushi, 504 U.S. 428 (1992) 6, 7, 8
Burson v Freeman, 504 U.S. 191 (1992) 9
Bush v Gore, 531 U.S. 98 (2000) 7
Common Cause/Ga. v. Billups, 439 F.Supp. 2d 1294, 1345-50 (N.D. Ga. 2006) 7
Common Cause/Georgia v Cox, No. 05-15784 (2/9/2006)
Edmond, Palmer v. Goldsmith, 183 F. 3d 659, 661 (CA7 1999), upheld as Indianapolis v Edmond, Palmer, 531 U.S. 32 (2000) 4
Fritch v State, 155 NE 257 (1927) 11
Horseman v Keller, 41 N.E.2d 164, 168 (Ind. 2006). 6
Indiana ex rel McGonigan v Madison Circuit Court, 193 NE2d 242 (1963) 11
Jackson County v Missouri, see Weinshenk v Missouri, 7
Jenness v Fortson, 403 U.S. 431 (1971) 6
Lake v Purdue, No. CV119207 (Fulton Cty., Ga. July 7, 2006) available at. http://moritzlaw.osu.edu/electionlaw/litigation/documents/westmoreland.pdf 7,12
Majors v Abell I, 317 F.3d 719 (7th Cir. 2003), Election L.J. 2: 315 (2003). 9, 10
Majors v Abell III, 361 F.3d 349 (7th Cir.2004) 9
McConnell v. FEC, 540 U.S. 93 (2003) 9
Morris v Powell, 25 NE 221 (1890), 11
Mosely v Board of Commissioners, 165 NE 241 (1929) 11
Norman v Reed, 502 U.S. 279 (1992) 8
State v Shanks, 99 NE 481 (1912) 11
Stewart v Taylor, 953 F. Supp. 1047, 1053-56 (S.D. Ind. 1997). 5
Timmons v. Twin Cities Area New Party, 520 U.S. 351 6
Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006). 7
First Amendment, 7
14th Amendment, 7
24th Amendment, 7
Voting Rights Act, 7
Article II, sections 1 and 2, Indiana Constitution. 7, 10
BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS, Richard A. Posner. Princeton, 2001. 7
Http://Papersplease.org 6
IDENTITY, INTEREST AND AUTHORITY TO FILE AS AMICI
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 Seventh 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 to ask that his provisional vote be counted, because he does not consent to a search, and those who do not consent to be searched are not allowed into the building.
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, 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. 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 at the clerk’s office 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 in 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.
E.g. 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, 41 N.E.2d 164, 168 (Ind. 2006). Palmer believes that the voter ID rules prevent us from knowing who actually wins the elections in close cases, and that democracy is thereby undermined and severely burdened. 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, and some civil liberties groups, against a Republican administration alleging unlawful voter suppression tactics. The legislature, following a walkout by the Democratic minority, passed a bill 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, if they haven’t retained the original, although they can’t buy a birth certificate if they don’t already have a voting license. Most citizens already have voting licenses, which double as drinking licenses and driving licenses and flying licenses and working licenses and court building entry passes, and many of the other functions of an internal passport. Http://Papersplease.org.
The district court, applying the deferential lax review standard of Burdick v Takushi, 504 U.S. 428 (1992), Jenness v Fortson, 403 U.S. 431 (1971), and Timmons v. Twin Cities Area New Party, 520 U.S. 351, upheld the regulations against challenges under the First Amendment, 24th Amendment, 14th Amendment, 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. Amici express no opinion as the Voting Rights Act claim. A divided panel upheld the use of the Burdick standard, rejected 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.
The case is of great public importance, meriting close review of the panel’s decision.
Following the contested 2000 election, Republicans sought legislative enactment of restrictions on who can vote. See 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 of the voter ID movement 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 have 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, No. CV119207 (Fulton Cty., Ga. July 7, 2006), Common Cause/Georgia v. Billup, 439 F.Supp. 2d 1294, 1345-50 (N.D. Ga. 2006), Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006).
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. The most recent case, ACLU of New Mexico v. Santillanes, No. CIV 05-1136 ,(D. N.Mex. 2/12/2007), http://moritzlaw.osu.edu/electionlaw/litigation/documents/Chavez-OrdergrantingSJinpart.pdf, applied the 4 factor Anderson standard and concluded that the city’s voter ID regulations were unconstitutional.
* John Fitzgerald was expelled from Congress in 1922 for voter fraud. His grandson JFK
was alleged to have conspired with the Teamsters in Chicago to steal the 1960 election. LBJ was elected to the Senate as the result of vote fraud in precinct 13 in Jim Wells County. Clinton was impeached and disbarred.
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 split is between the panel of the 7th circuit, and every other court in the country which has reached the merits of voter ID.
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, 504 U.S. 428 (1992), intermediate review under Anderson v Celebrezze, 460 U.S. 780 (1983), or strict scrutiny under Norman v Reed, 502 U.S. 279 (1992).
[A Court] 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 (1983).
There are a few variants, such as the “exacting scrutiny” standard of Buckley v Valeo, 424 U.S. 1 (1976), or the balancing of competing interests tests of Burson v Freeman, 504 U.S. 191 (1992). Unfortunately, the Supreme 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, 540 U.S. 93 (2003). “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 in choosing a standard of review, 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. 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.
In Brownsburg Area PAC v. Baldwin, 137 F.3d 503, 510 (7th Cir. 1998), 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.
Consequently it 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 standards 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 Section 2 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.
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.
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 2660 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,
___________
Robbin Stewart
Stewart & Associates
POB 29164 Cumberland IN 46229-0164
317.917.8002
Gtbear at gmail.com
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 mail upon the
Clerk of the Seventh Circuit Court of Appeals and United States first class mail or hand delivery 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
______________
Robbin Stewart
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
MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE
Amici Joell Palmer, Douglas Page and Robbin Stewart move for leave to file the accompanying brief as amici curiae in support of the position of the plaintiffs, who have moved for rehearing or rehearing en banc in this case. The parties' consent has been requested and is awaiting response. Time is of the essence.
Palmer Page and Stewart are registered voters who have been denied the vote due to the voter ID regulations at issue in the case. Palmer was denied the vote at the spring primary election, and believes his rights were violated when he was compelled to produce ID at the fall general election. Palmer was a candidate who lost votes from one or more of his supporters due to the voter ID regulations. Palmer’s vote was diluted when like-minded voters were prevented or deterred from voting. Page was deterred from voting after his ID was stolen and he was unable to obtain a replacement in time to vote. Stewart, here pro se and as amicus counsel for Page and Palmer, was prevented from voting in the spring and fall elections. Palmer and Stewart have both previously been plaintiffs before the 7th circuit in cases of rights violations by these defendants. In Indianapolis v Edmond, the United States Supreme Court upheld the 7th Circuit’s injunction of the drug roadblock at which Palmer was assaulted and searched and seized without warrant. Edmond, Palmer v. Goldsmith, 183 F. 3d 659, 661 (CA7 1999), upheld as Indianapolis v Edmond, Palmer, 531 U.S. 32 (2000). Here Palmer again objects to an unwarranted search and seizure, this time at the voting booth.
Stewart has been counsel before the 7th circuit and has detailed knowledge of both the facts and the law of the case. Amici represent a perspective different than that of the Democratic Party plaintiffs. The discussion of the state constitutional claim raises issues not addressed in the briefing by the parties, and is intended to aid the court in its decision as to whether to rehear the case.
They believe their perspective will assist the court in understanding the public importance of the case, the errors in the panel opinion, and the compelling need for rehearing en banc. They thus seek leave to file the accompanying amicus curiae brief.
Respectfully submitted,
Robbin Stewart #17147-53
Stewart & Associates
POB 29164 Cumberland IN 46229-0164
317.917.8002
Gtbear at gmail.com
_______________
