palmer v marion county

In which we get press, well anyway blog coverage.
This just in from votelaw.com/blog Indiana: suit against "voting license" system filed

Joell Palmer, the plaintiff in Palmer v. Marion County posts his entire complaint on a new blog. It begins: 1. Introduction: This is an action to enjoin a threat to the integrity of the election process. Time is of the essence. Defendants are attempting to engage in voter fraud, by preventing voters without a voting license from voting. The result will be that the winners of the upcoming elections cannot be determined, because an unknown number of eligible voters will be prevented from voting. Without duly elected government officials, the government will lack legitimacy. The open door law claim provides a basis for statutory entitlement to an accelerated docket. A motion for a TRO and preliminary injunction is filed herewith, to prevent irreparable harm. -- palmer v marion county

Thanks to the Arbitrary Aardvark for the tip.
This entry was posted by Edward at 07:44 PM | Comments (0) | TrackBack (0) | Add to del.icio.us | Categories: Voter qualification
btw, while this blog is called joellpalmer.blogspot.com, short for joell palmer v marion county, i'm not joell, just his lawyer in the case. more lawyers are needed!
also accepting guns and money.

comic.

In addition to the legal documents, I'll include some press coverage.
here's the town's main paper endorsing joell's opponent.

IndyStar.com Opinion
October 20, 2006

Endorsement
Indiana House, District 100: Rep. John Day

John Day has been affectionately dubbed "our Don Quixote" by fellow Democrats for doggedly challenging powerful vested interests on behalf of his low- and moderate-income constituents.

But it's not as if the Eastside representative doesn't win some. It just typically takes a while. First elected in 1976, he won an increase in the state minimum wage in 1998. He's trying for another.
Meanwhile, he's pushing for increased funding for two programs he brought about for low-income families: the state Earned Income Tax Credit, and individual development asset accounts that can be used to save for homeownership, tuition or business startups.
The quiet, driven House veteran has transcended ideology and partisanship with his agenda of grass-roots investment. He wants to fight blight and crime by toughening state laws against neglect of property by absentee owners. He believes legislative perks would be better spent on needy constituents.
With all respect to his opponents, Republican John Warren and Libertarian Joell Palmer, he is an asset to be held on to.

Copyright 2006 IndyStar.com.

firstpost
This post contains the litigation documents filed friday in Palmer v Marion County, a suit about voter ID.

In the Superior Court for Marion County Indiana

Joell Palmer,

Plaintiff,



v. Cause Number _________

Judge _______________

Marion County, State of Indiana, J. Bradley

King, Todd Rokita, Kristi Robertson, Doris

Ann Sadler, John Doe #1-4,

Jane Doe 1-3, Securatex, Jack Cottey,

Defendants.



COMPLAINT FOR INJUNCTION, DAMAGES, AND DECLARATORY RELIEF

Comes now Plaintiff Joell Palmer by counsel and for his first complaint for damages, injunctive and declaratory relief states as follows.

1. Introduction: This is an action to enjoin a threat to the integrity of the election process. Time is of the essence. Defendants are attempting to engage in voter fraud, by preventing voters without a voting license from voting. The result will be that the winners of the upcoming elections cannot be determined, because an unknown number of eligible voters will be prevented from voting. Without duly elected government officials, the government will lack legitimacy. The open door law claim provides a basis for statutory entitlement to an accelerated docket. A motion for a TRO and preliminary injunction is filed herewith, to prevent irreparable harm.

2. The voting license scheme is challenged on a number of state and federal constitutional grounds as well as several statutory grounds. Additionally, plaintiff seeks ballot access or write-in status, seeks access to city hall, and seeks relief from threats of campaign finance enforcement against him. The statute violates Article I sections 1, 9, 11,12, 31, Article II sections 1 and 2, the First, 4th , 13th, 14th, 15th, and 24th Amendments, the Privacy Act of 1974, and the Padrone Act.

3. Jurisdiction: This court has general jurisdiction over claims arising under Indiana statutes and constitution, and federal statutes and constitution. Venue is proper in Marion County, where Plaintiff resides, where defendants have their offices, and where the actions in question took place or are to take place.
3. Parties: Plaintiff is Joell Palmer, a voter in the tenth ward, seventh precinct of Center Township in Marion County, Indiana. He is the duly nominated candidate of the Libertarian Party for the 100th state representative district.

4. Defendant Marion County is a municipality and is the seat of government for Indiana. The State of Indiana is a co-equal sovereign entity in the United States federal system. Todd Rokita is the secretary of state. J. Bradley King and Kristi Robertson are co-directors of the Indiana Election commission who advise and coordinate, but do not directly control, the election processes of the 92 county clerks. Doris Ann Sadler is the Marion County clerk. She is not a candidate for reelection. John Doe #1-4 are employees of the Secretary of State's office who conspired with Rokita to suppress voting by communicating the voter licensing program to potential voters. Jane Doe 1-3 are precinct officials in Ward 10, precinct 7 who prevented Palmer from voting in the spring election and intend to prevent him from voting in the fall election. Securatex is a company which conducts warrantless suspicionless searches of people who try to enter the county clerk's office in the City-County building (city hall) in order to cast provisional votes, or for any other reason. Jack Cottey is a supervisory employee of Securatex responsible for the City-County building searches. The government officials named above are named in both official capacity, for the purposes of prospective injunctive and declaratory relief, and in personal capacity for damages. As to the federal claims, they may enjoy some degree of absolute or qualified immunity. The official capacity claim against Rokita is based in part on his expenditure of federal HAVA funds to promote the voter ID program.
State Claims.

Count I.

5. The voter licensing scheme violates the right to free elections under the Free and Equal Elections clause, Article II Section I of the Indiana Constitution.

6. The following statement of facts is common to each count, and is incorporated by reference in each count below.

7. The facts are as stipulated by the parties in Indiana Democratic Party, NAACP, et al. v Rokita, http://moritzlaw.osu.edu/electionlaw/litigation/indy-dems.php . At oral argument October 17 at the 7th Circuit, Judge Posner mentioned that he did not expect a decision before the election.
8. Briefly, the legislature has passed a set of statutes requiring government-issued voter photo identification, in order to cast one's vote. Senate Enrolled Act No. 483, codified at Ind. Code §§ 3-5-2-40.5; 3-10-1-7.2; 3-10-8-25; scattered sections of Ind. Code ch. 3-11-8; several sections of Ind. Code art. 3-11.7; and Ind. Code § 9-24-16-10.
9. Plaintiff Joell Palmer was prevented from voting at the spring primary and expects to be prevented from voting in the fall election.
10. Palmer is not eligible to vote absentee. He is under 65 and present in the county.
He believes that the fall election will be invalid, unless this court acts to prevent the irreparable harm.
11. Palmer is the candidate of the Libertarian Party for the 100th state representative seat.
12. Palmer is a person who does not consent to a search, and does not waive his rights under the federal and Indiana constitutions.
13. He seeks to be able to cast his vote in the election without being subjected to an unwarranted search.
14. Palmer wants to cast a write in vote for himself, if this court does not order his name placed on the ballot.
15. If he cannot cast his vote, he is injured.
16. If his votes are not counted, he is injured.
17. Shortly before the spring election, Palmer went to the Bureau of Motor Vehicles (BMV) to see if he could get a free ID to vote with. He was told that he is not eligible for a free ID, since he already has a driver's license.

18. For most voters, the driver's license would serve as their voting license. Palmer's driver's license contains personal information which he does not want to share and which is not needed to verify that he is who he says he is.

19. He does not consent to a search, unless it is authorized by a valid warrant, or the search arises under exigent circumstances with some degree of probable cause.

20. His right to not consent to a search was affirmed by the United States Supreme Court in Indianapolis v. Edmond, Palmer, et al. (_ U.S. _ 2001.) The warrant requirement is well-established law than any government official should be aware of.

21. Precinct officials are less than part time, serving not more than one day a year, with minimal training, and should not be held to the same expert standards as the other government officials.

22. Palmer is personally known to the precinct officials, and there was no threat of voter fraud if he has been allowed to vote without a license. He is a registered voter who has been voting there for about 5 years, and has been a candidate. By denying him the vote, the precinct officials engaged in voter fraud, with the result that the announced election results were off by at least one vote, his. In one recent election in Palmer's district, three votes decided the election. None of the spring races was close enough to be within the margin of litigation.

23. Voters in Marion County, by precinct, whose provisional votes were refused on the basis of failure to display a voting license include: Ellswick, James 14-6, Emmitt, Catherine WS 37, Hardley, Joyce 13-10 Harty, Douglas PE 83 Kimmick, Roberta 21-19 Palmer, Joell 10-7 Porter, Marie 18-1 Stuart, Gladys WS 51 Vann, Thomas WS 75 Walton, Kenneth 7-2 Wiggs, Augusta WS 40.

24. Not every unwarranted search is unreasonable. However, neither the Indiana nor US Supreme Courts has created an elections exception to the warrant requirement. Absent such action, no lower court or administrative or legislative body has the authority to do so.
25. Palmer, expecting that his right to vote would be denied, videotaped the process.

26. He was offered, and cast, a provisional ballot. His provisional ballot was never counted, for two reasons. First, he would have had to consent to the search of his voting license, which he is unwilling do, absent a valid warrant.

27. Secondly, he was unable to access the Marion County Election Board's office on the first floor of the City-County building, because Securatex denies access to those like Palmer who do not consent to a search. Palmer has been unable to access the city-county building since before 2001. The unwarranted search of those who want to enter city hall is claimed to have been in response to the Oklahoma City bombing.

28. Certain warrantless searches concerning entry to certain government buildings have been upheld as either reasonable, if reasonable, or consent-based, if there is consent.

29. The Securatex screening of those who want to enter city hall has some of the characteristics of those reasonable searches, but has other characteristics which establish that it is unreasonable, and is not consent-based.

30. The screening is less invasive than a full search. Citizens are asked to remove items from their pockets which are then x-rayed. Citizens then pass through a metal detector, and may be wanded. The seizure of the person usually last less than a minute, and almost always lasts less than five minutes. There is a video monitor which partially explains the process. People are free to leave if they object in time. Before permanently seizing objects, a person is warned that the object will be taken, and they can leave.

31. A major purpose of the screening is to detect people who are bearing arms pursuant to Article I section 32: The people shall have a right to bear arms, for the defense of themselves and the State. A secondary purpose is law enforcement, to seize contraband, such as drugs or arms, as evidence for prosecution. A third purpose is to serve the heightened public safety requirements of the criminal courts, a legitimate and compelling interest to which the search is not narrowly tailored.

32. The searches are conducted in a capricious and arbitrary manner, by surly employees who lack adequate training. Sometimes one's wallet, coat, and belt are seized and searched, sometimes not. Employees feel authorized to seize anything that might be used as a weapon or to conceal a weapon – that is, anything and everything. There is no recourse once an item is seized, at which point it will be destroyed. When asked, employees are unable or unwilling to provide any written authority or standards for the searches.

33. A memo outlining Securatex search procedures will be filed as an exhibit.

34. Plaintiff has no objection to these search procedures as to the East wing of the building that houses the criminal courts, recognizing the heightened security needs for these areas, and the existence of a proper judicial order authorizing those searches. He objects to the 2000 expansion of the search to include the rest of the building, 25 floors of offices including the Election Board and the Council chambers where nominally-public meetings are held.

Count II.

35. By denying the vote to Palmer, to others who do not consent to a search, and to those who cannot get or cannot afford the documents needed to obtain a voting license, defendants violate his right to an equal election. An election is equal where everyone's vote counts the same, and everyone's vote is counted. His vote has not been counted, as to the spring election, and will not be counted in the fall, unless the Court acts.

36. Palmer has standing, as a voter, citizen, and candidate, not only to insist that he be allowed to vote, but that others be allowed to vote for or against him, and for or against the candidates of his party which whom he associates politically. His claim is justiciable, fully ripe and would not be mooted by passage of the election.

Count III
37. Plaintiff, and each other Indiana voter who is properly registered, has a vested right of registered voter to vote per Art. II sect. 2. His right to vote was violated when he was denied a regular ballot and his provisional ballot was not counted.

Count IV
38. Palmer's right to be free from unreasonable search under Art. I section 11 was violated when, in retaliation for his refusal to consent to a search, he was denied the vote.

Count V

39. Palmer's right to be free from unreasonable seizure was violated when, at the point at which he refused to display a voting license, he was prevented from proceeding forward to the voting booth to cast his ballot. Art. I section 11.

40. Usually a seizure of the person involves a person being prevented from going anywhere. Sometimes, as here, a person is seized, within the meaning of section 11, when they are prevented from going somewhere where they have a right to go. Here, he had a right to proceed forward to the polling place to cast his vote, but was detained from doing so.
Count VI

41. Art I section 9, the free interchange of opinion clause, is one of the Indiana Constitution's protections of free speech. While it is well established that voting is speech protected by the first amendment, it may be a case of first impression whether voting is speech of the sort protected by section 9. We know that section 9 provides for heightened protection of political speech, such as what Colleen Price said to the police officer. Plaintiff asserts that his section 9 rights were violated when he was refused a regular ballot and his vote not counted.
Count VII.

42. Art. I section 1 protects the right of the people to alter or abolish the government. Generally, free and equal elections are the method by which such alterations can be accomplished in a calm and orderly manner. Palmer has the right to attempt to oust Rokita and his ilk from the government by voting, and by running for office. When Palmer is prevented from voting, and from having his votes counted, his rights under this section are infringed, even if he retains other means by which he can alter or abolish. Section 1 also grants a right of liberty, which is infringed here. Section 1 should be read in harmony with the rest of the Indiana constitution. The whole may be more than the sum of the parts.
Count VIII

43. Art I section 12 protects due course of law, a concept similar but not identical to due process found in the 5th and 14th Amendments, which have been found to protect voting rights.

44. Section 12 also states that the courts shall be open and provide a remedy for wrongs. This disposes of claims that the rights enumerated under the Indiana Constitution are not self-enforcing or are unenforceable as political questions.
Count IX

45. Art. I Section 31, Petition and assembly, was violated when Palmer was prevented from voting.
Count X.

46. Article I Section. 37 prevents involuntary servitude. A similar clause in the federal constitution has been held to prevent badges of slavery. Jones v Meyer. Some Indiana residents, rightly or wrongly, perceive driver's licenses, aka voter licenses, as indicating consent to be pervasively regulated, to the extent of constituting involuntary servitude. For these reasons they decline to obtain or display voting licenses, which they regard as badges of slavery. Some of these people already do not vote, but others will be deterred from voting if a badge of slavery is required. Palmer believes this is a content-specific invidious discrimination against his most likely block of voters – those who are aware of, and value, Indiana's heritage of liberty.
Count XI

47. Palmer, above, has expressed his objection to being denied access to the City-County Building. In addition to wanting to be able to cast his vote, he wants to have access to the City-County building in order to attend public hearings at the City Council and other boards, such as the election board. The Open Door law, IC 5-14-1.5, may provide him a right of access to such meetings, which is violated when he is denied access to the building as retaliation for refusal to consent to a search. The Open Door law is somewhat ambiguous on this point, and would require interpretation from the court. If the statute does not open the doors of city hall to Palmer and others, it is misnamed.

Count XII.

48. Palmer was nominated by the Libertarian Party as its nominee for state representative district 100. He was not personally present at the state convention to be nominated by the convention, so he was, without objection, designated by the state chairman shortly thereafter. His paperwork was submitted to the election division before a June 30th deadline. On or about July 3rd, the election division disqualified Palmer and about 10 other candidates, for the stated reason that the party chair has neglected to file a notice of intent to nominate ten days before the deadline. This requirement is new, has never before been enforced, and applies only to Palmer's party. Palmer and the party had constructive notice, but no actual notice. The requirement, so far as we know, serves no legitimate, strong, compelling, or overriding state purpose. While, had Palmer had actual notice, the burden of this regulation might have been minimal, under these circumstances it severely burdens his ballot access and voting rights and associative rights.

49. That was July; this is October. Perhaps his ballot access claim is time-barred by laches. At a minumum, the lateness of the hour supports a finding that the burden on defendants, to revise the ballots or hold a new election, is greater than it would have been had Plaintiff come to court sooner. Plaintiff is neither completely indigent, nor wealthy enough to afford paid counsel. He is relying on pro bono efforts, once his party had exhausted the available funds and decided not to litigate the issue themselves.

50. The timing of the voter licensing part of the case is due in part to the informal announcement by Judge Posner, at oral argument in Democratic Party v Rokita, that no decision is likely before the election. Plaintiff had hoped that the Rokita litigation would provide relief in time for the fall election. In each other state, GA, MO, AZ, where voter licenses were tried, courts have acted promptly to enjoin such regulations, but see Purcell v Gonzales (10/20/2006).

Count XIII The State and County intend to refuse to count write-in votes for Palmer. If Palmer's name does not appear on the ballot, one or more people intend to write in his name. He wants those votes counted. The refusal to count his votes is arbitrary and capricious, without legitimate or compelling state interests, and disenfranshises voters.
Count XIV

51. Palmer is the nominee of his party in a state representative race, even though the state Election Division refuses to allow him on the ballot and refuses to allow his write-in votes to be counted. Ordinarily we refer to a nominee as a "candidate." However, for the purposes of enforcement of the Indiana Campaign Finance Act, IC 3-9, "candidate" is a term of art defined by statute, IC 3-5-2-6 (b.) "Candidate"

(b) As used in IC 3-9, an individual becomes a "candidate" when

the individual, the candidate's committee, or a person acting with the

consent of the individual:

(1) receives more than one hundred dollars ($100) in contributions; or

(2) makes more than one hundred dollars ($100) in expenditures.

52. Based on his past experience of being threatened with large fines under the act, at a time when he has not raised or spent $100 to become a candidate within the meaning of the act, and on past experience of his associates being fined when they did not appear on the ballot, see Becky Majors et al v. IEC, he is experiencing the chilling effects of fearing he may again be threatened with fines for which he has no legal liability. This count names defendants solely in their official capacity for prospective declaratory relief.

He relies on the text of the statute, interpreted in light of the constitutional provisions cited above and below.
Federal Claims:

Count XV

53. Palmer's right to vote under the First Amendment is violated when he is prevented from voting for lawfully refusing to consent to a search of his voting license. 54. While the First Amendment is self-enforcing, ala Bivens, 42 USC 1983 et seq. vests this court with jurisdiction and authority to decide this issue, and other federal claims below. 42 USC 1988 provides for the award of reasonable legal fees and costs.
Count XVI

55. The voting license scheme violates the right of privacy implicit in the First and Fourteenth Amendments.
Count XVII
56. The voting license scheme violates the right of Palmer and other voters to be free from unwarranted unreasonable searches and seizures under the Fourth Amendment. When he was asked to produce ID prior to voting, he asked to see the official's warrant authorizing such a search. An unwarranted search is presumed unreasonable, outside of clearly established judicial exceptions not applicable here. Whether or not a magistrate would have granted a general warrant for a suspicionless search of millions of people, in the absence of any articulable probable cause, need not be answered. It is enough here that no warrant was applied for. On a previous occasion when Palmer relied on his Fourth Amendment rights, he was thrown on the hood of a car and told "You have no rights!" Edmond v Indianapolis. On this occasion, the retaliation was less dramatic. He was simply prevented from casting his ballot at the polls, severely burdening his fundamental rights.
Count XVII
57. Palmer's right to due process of law under the Fourteenth Amendment was violated when he was prevented from voting. The Fourteenth Amendment incorporates to the states those rights which are fundamental to ordered liberty. The right to free and equal elections is among these.

Count XVIII

58. Palmer's right to equal protection of the laws was violated by the voter licensing scheme, which is a poll tax of the sort found to violate equal protection. This right is clearly established by Harper v Virginia Board of Elections. We find no case, other than the now vacated Rokita district court decision, which upholds any poll tax or voter licensing scheme.

Count XIX

59. Palmer's right to vote in a federal election may have been violated in the Spring election. (We don't know whether he sought to vote in the congressional primary, or only in the local nonpartisan races. Due to his right to a secret ballot, counsel hasn't asked who he sought to vote for or against.) His right to vote in a federal election will be violated in the Fall election, if not remedied. The right to vote in federal elections is one of the privileges and immunities of federal citizenship protected by the Fourteenth Amendment. Count XX

60. Voting licenses, aka internal passports, aka driver's licenses, aka national identify cards, are a badge of slavery, prohibited by the Thirteenth Amendment and the Padrone Act of 1874, federal legislation which implements the Thirteenth Amendment. At the time of enactment, the Thirteenth Amendment was concerned primarily with slavery by private parties. During the Twentieth century, private sector slavery was reduced, but enslavement by governments became a growing threat. Various identification schemes were used as badges of slavery. In Germany, persons enslaved by government were issued badges such as a yellow star or a pink, black or red triangle, and an identification number tattooed on their arms. In South Africa, a passbook law required non-whites to carry an internal passport at all times, even in the shower. The current trend is towards microchips, either embedded in government ID or under the skin. Whether or not voting licenses really are badges of slavery, they are perceived that way by some citizens, who will refrain from voting if the cost is an infringement on privacy and security. At a minimum, such licensing greatly enhances the risk of identity theft, raising real and perceived costs of voting. With 900 precincts to staff, the county clerks are unable to screen all election workers to eliminate the possibility that an election worker would be engaged in identify theft. This claim is a case of first impression, and is not a clearly established right.

Count XXI

61. The voter licensing scheme is intended to provide a partisan advantage to Republicans, by diluting the votes of Democrats, who, statistically will be burdened more than Republicans. While the Republican faction bears no overt racial animosity, they cannot be unaware that these measures designed to screen out some Democratic voters will have a disparate racial impact. This action with foreknowledge of disparate impact states a claim under the 15th Amendment.
Count XXI

62. The voting license scheme is a poll tax prohibited by the Twenty-fourth Amendment, clause 1. The constitution prohibits poll taxes, whether for the rich or the poor. An indigency exception is no defense to a poll tax allegation. The voting license scheme, unlike the 1950s era poll taxes, does not explicitly require a cash payment. But for some voters, the documents required to obtain a voting license come with a price tag. Additionally, the scheme is replete with catch-22s that make it difficult or impossible to obtain the documents. In order to get a driver's license, one needs a birth certificate, but in order to get a birth certificate, one needs a driver's license.
63. While Palmer already has such a voter's license, he has standing, as a candidate and as an activist in a political party, to raise this concern, so that voters can cast their votes for him and for the Secretary of State candidate he supports. (Hint: not Rokita.)

Count XXII.

64. The voter licensing scheme violates the Privacy Act of 1974, 5 USC 552a note 7. Many potential voters have a social security number displayed on their driver's license. Not all do; it is optional. Many of these potential voters have no other acceptable government issued identification. At the time they obtained their driver's licenses, they were not warned that the license might be later misused as a voting license.

The Privacy Act requires that when a state or local agency demands display of one's social security number, that they will be told what use will be made of the information, and told whether disclosure is mandatory, and by what authority. The voter licensing scheme doesn't do any of this. Marion County and the State of Indiana tend to be lax about compliance with the Privacy Act. As in count XXI, Palmer has standing to raise the issue because it may deter his voters.

65. 5 USC 552a Note 7. reads as follows:




DISCLOSURE OF SOCIAL SECURITY NUMBER




Section 7 of Pub. L. 93-579 provided that:


'(a)(1) It shall be unlawful for any Federal, State or local

government agency to deny to any individual any right, benefit, or

privilege provided by law because of such individual's refusal to


disclose his social security account number.

'(2) the (The) provisions of paragraph (1) of this subsection

shall not apply with respect to -


'(A) any disclosure which is required by Federal statute, or

'(B) the disclosure of a social security number to any Federal,

State, or local agency maintaining a system of records in


existence and operating before January 1, 1975, if such

disclosure was required under statute or regulation adopted prior

to such date to verify the identity of an individual.


'(b) Any Federal, State, or local government agency which

requests an individual to disclose his social security account

number shall inform that individual whether that disclosure is


mandatory or voluntary, by what statutory or other authority such

number is solicited, and what uses will be made of it.'

See Doe v Chao, (_U.S._ 2003)



Relief sought:

He asks that this case be given accelerated handling on the docket, and be heard, at least preliminarily, prior to the election.

For each count above, Palmer seeks damages as awarded by a Jury, including compensatory, consequential and actual damages and punitive damages if a jury finds any plaintiff acted willfully in disregard for the rights of plaintiff and Hoosiers.

As to Kristi Robertson in her personal capacity, he seeks only nominal damages of $1.

He seeks a temporary restraining order so that the election can take place undisturbed.

He seeks temporary and permanent injunctive relief.

He seeks a declaratory judgment resolving each of the questions of law presented above.

He seeks costs and fees, including reasonable attorney's fees and witness fees.

In the event that this case uncovers willful unlawful conduct by state officials or employees, he asks that the court use its discretion to make referrals for criminal or ethical investigatory bodies if appropriate.

He asks for an accounting of any federal HAVA funds used to promote the unlawful voting license scheme, or to promote Rokita's re-election, so that those funds can be returned to the federal treasury.

He asks for all other relief as is in the interests of justice.

Respecfully Submitted,

Robbin Stewart. #47174-53

P.O.Box 164

Cumberland IN 46229-0164

317.650.9698.

gtbear@gmail.com

-----------------------

In the Superior Court for Marion County Indiana





Joell Palmer,

plaintiff,



v. Cause Number _________

Judge _______________

Marion County, State of Indiana, J. Bradley

King, Todd Rokita, Kristi Robertson, Doris

Ann Sadler, John Doe #1-4 (Rokita employees),

Jane Doe 1-3, precinct officials, Securatex,

Jack Cottey, defendants.



MOTION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION,

Comes now Plaintiff Joell Palmer by counsel and for his motion for a temporary restraining order and temporary injunctive relief states as follows.

Palmer seeks to be able to cast his vote without being subjected to the search of having to display a voting license (aka driver's license aka internal passport.) He seeks the same remedy for all Marion County voters, particularly in the 100th representative district where he is running for office.

He also seeks to enjoin defendants from denying him access to city hall, the City County Building, by refusing him entry unless he consents to a search. He does not seek access to the part of the building containing criminal courts.

He seeks to enjoin defendants from printing or using ballots in the 100th state representative district that do not list him as the candidate of the Libertarian party, if it is practically possible to do so in the timeframe.

He also, or alternatively, seeks to enjoin the county and state from certifying or reporting election results which do not include whatever write-in votes he will receive.

He seeks to enjoin the County and State from assessing fines against him under the Campaign Finance Act, unless or until he raises or spends $100, exclusive of the costs and fees of this action.

The standards for a TRO are the same as those for an injunction. There must be a threshold showing of irreparable harm and some degree of likelihood of success on the merits. Then, the court is to balance the extent of the irreparable harm, the degree of likelihood of success on the merits, the relative burden on plaintiff and defendants, and the public interest.

A. The voting license scheme.

Here the preliminary thresholds are easily met. Chilling of protected speech creates immediate irreparable harm. Allowing the defendants' intended voting fraud, by not counting the votes of duly registered voters, Palmer and others, does irreparable harm to the integrity of the election process and to protected speech. Elrod v Burns, McIntyre v Ohio Elections Commission.

State Courts in Missouri and Georgia, and a federal court in Georgia, have enjoined similar voting license proposals. Filings in these cases are collected at http://moritzlaw.osu.edu/electionlaw/litigation/index.php.

Lake v. Purdue, Superior Court of Fulton County, Georgia; Common Cause of Georgia v. Billups, Northern District of Georgia, upheld by 11th Circuit. Jackson County v Missouri, Missouri Supreme Court; NAACP v. Carnahan, Western District of Missouri, no ruling yet. Opinion of Michigan Attorney General 6930, 1997, http://www.ag.state.mi.us/opinion/datafiles/1990s/op10001.htm, found a similar statute unconstitutional.

Purdue found that the voter ID system was an equal protection violation and a poll tax. The legislature then amended the statute to remove some but not all fees to obtain the licenses. The court refused to vacate its injunction. In Billups, a court found the scheme unlawful because it violated the state constitutional right of registered voters to vote.

In Jackson County v Missouri, the court found a violation of the state constitution's free and open elections clause, and the state constitutional right of registered voters to vote, and that it was a poll tax.

These cases, showing that other states have enjoined similar systems based on some, but not all, of the claims in the this case, are enough to provide a threshold showing of some likelihood of success on the merits.

Addition support for some likelihood of success is that the last time this plaintiff raised search and seizure claims against unwarranted search by one of these defendants, he prevailed in the 7th circuit and United States Supreme Court, and received a favorable settlement of the state claims. Edmonds v Indianapolis.

We turn now to the balancing of the four factors.

The public interest is the strongest factor. Most lawsuits involve disputes between private parties where the public interest aspects are minor. Here, the stakes are high and involve everyone's rights. Plaintiff insists on his right to a free and equal election. Defendants seek instead to conduct a mock election, in which some animals are more equal than others, retaining the form but not the substance of an election. With some races expected to be close, and no way to measure the number of registered voters who will be deterred from going to the polls because they don't have, or don't want to display, a voting license, the results will not express the will of the people. While a new election can be ordered by this court, a subsequent new election will not fully express the preferences of voters as they were on election day in November. A temporary injunction now will be far less of a burden on the parties and the public than holding a new election would require. Any cash settlement of such claims might adequately compensate Plaintiff, but would deprive the public of a free and equal election.

Balance of Harms:

The voting license regulations require Palmer to choose between casting his vote and being subjected to an unlawful search. In order to mitigate damages, he forgoes his vote, as the lesser burden on his vested rights. While a lesser burden, it remains a severe burden.

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government…. [T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise…. the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs' challenges. Purcell v Gonzales, 459 U.S. _ (2006), http:// supremecourtus.gov/opinions/06pdf/06A375.pdf.



In Democratic Party v. Rokita, a district court denied injunctive relief to a complaint which raised some but not all of the claims included here. Plaintiffs had not identified any specific voters who would disenfranchised, and there were issues as to standing and whether the complaint was merely speculation. Here, there is a real voter, whose vote in the spring has not yet been counted, and who expects to be prevented from voting in November if the court fails to act. Purcell and Rokita are probably defendants' best cases to argue against injunction, but neither is controlling in this case. Purcell involves a dispute between the district court, circuit court, and supreme court, and is not based on the underlying merits of the case.

Rokita, a vacated ruling by a federal district court, in which the circuit court has not yet ruled, is not controlling on this court, even if the facts were not so different. Nor is it persuasive. Rokita applied the wrong standard of review, relying on Burdick v Takushi rather than Anderson v. Celebrezze and Norman v Reed, and used moribund state constitutional cases that are not on point. Within that framework of lax review, the Rokita case is persuasive on some of the finer points of its ruling. We agree, for example, that the gas and time to drive to a BVM branch is not itself a poll tax; the poll tax only comes up in the case of those voters who must purchase documents, such as a birth certificate or passport, in order to obtain a voting license. If at least one voter is subject to a poll tax and declines to vote, all voters are affected.

Palmer already has a voting license, which he is willing to display if shown a valid warrant or if officials establish the requisite degree of individualized suspicion. Otherwise, he is willing to sign the polling place in order to show that his signature matches, and is willing to sign an affidavit saying that he is himself, and is willing to be subject to other less intrusive means such being photographed at the polls (but not in the voting booth, to preserve the secrecy of the ballot,) or to be fingerprinted.

Since he is already personally known to the election officials, none of this is needed.

He would have standing to object to any of these procedures as unwarranted searches, but explicitly waives any such objections for the purposes of this lawsuit. He does not have a passport. His military ID is expired. He is not eligible to vote absentee.

He is not trying to engage in any ballot fraud, and does not wish for any fraudulent votes to be counted toward his total. He believes that if he is again prevented from voting, that that will be voter fraud.

The burden on defendants is difficult to assess. The state has a legitimate interest in protecting the integrity of the election process, but this goal is hindered rather than helped, by requiring voting licenses. The state would burn the global village to cook the pig. No deference should be shown to the legislature as to matters which govern the election of the legislature. Instead, as directed in Buckley v Valeo, the court should impose exacting scrutiny. Dunn v Blumstein, 405 US 330, 336; 92 S Ct 995; 31 L Ed 2d 274 (1972), uses the term close scrutiny. Close scrutiny would be required even without the legislative history where here it can be shown that the legislation was the result of a severe partisan divide, suggesting improper purposes may have been a factor.

The state, at least those parts of it controlled by a Republican faction, has an interest in making it more difficult for non-Republicans to vote, but this is not an interest that the court can give any weight to.

As recently pointed out by the Supreme Court, some voters may "feel" disenfranchised when they think their votes are being diluted by voter fraud. But that is an argument which cuts both ways. When the state officials engage in voter fraud by denying Palmer and others their vote, this voter fraud dilutes the votes of those who support Palmer, or those who oppose the current regime. So that factor is equally balanced on both sides, and cannot be counted in favor of defendants.

The state has a legitimate interest in preventing non-citizens from voting. But this can be fully addressed by investigating the citizenship of those who registered to vote, without any need to impose barriers at the ballot box. There is no claim that Palmer isn't a citizen. He was born in Marion County, is a graduate of Ben Davis High School, is a veteran, and has run for office. Preventing citizens such as Palmer from voting does nothing to advance the goal of preventing vote dilution by aliens.

The state has a legitimate interest in deterring voting by impersonators, by the dead, by gremlins and zombies. That these concerns are largely speculative and unproven does not negate the interest. However, it needs to find methods which, first, do no harm, and are themselves not unlawful violations of vested constitutional rights. Roadblocks at the ballot box are an over-inclusive method. Plaintiffs support lawful methods to prevent voting fraud. Close scrutiny of absentee ballot procedures, avoidance of unproven electronic voting systems from Diebold, poll worker training in how to identify and follow up on incidents of individualized suspicion, and devoting adequate prosecutorial resources to voter fraud cases, might be a good place to start. Blaming the victims of voter fraud is not the solution. Much deference should be shown to the legislature when it uses lawful means to combat voter fraud. It is rarely the case that the courts should micromanage the elections process. However, where, as here, defendants have tossed the constitution out the window and are violating dozens of rights and laws, no deference may be shown, and the court has a duty to act.

Plaintiff need not show a certainty of success on the merits. It is entirely possible, for example that the United States Supreme Court will create an elections exception to the Fourth Amendment, and that the Indiana Supreme Court will create an elections exception to Article I section 11. Until such time as both courts do so, no lower court should assume that they will. The creation of such exceptions is the sole prerogative of the high courts.

Plaintiff only needs to show serious issues going to the merits. He has done so here.

He has identified 8 or more independent grounds, any of which would carry the burden of some likelihood of success on the merits. Additionally, he has identified several theories that, while not strong enough to stand on their own, increase the overall likelihood of prevailing on at least one ground.

This next section details the case law in support of his claims.

Federal:

The right to vote is protected by the First Amendment. Denial of the vote is a severe burden, triggering strict scrutiny, which J. Scalia has called the kiss of death. Reynolds v. Simms, 377 US 533, 562; 84 S Ct 1362; 12 L Ed 2d 506 (1964), Wesberry v Sanders, 376 US 1, 17; 84 S Ct 526; 11 L Ed 2d 481 (1964, Williams v Rhodes, Norman v Reed, Buckley v ACLF, Thomas concurring, McIntyre v Ohio Elections Comm'n., Scalia dissenting.

The federal right to privacy under the First Amendment was established by NAACP v Alabama ex rel. Patterson, Talley v California, and Bates v Little Rock. These cases found a right to political association, and a right to anonymous political campaigns, but did not directly address voter licenses. The exact contours of the right to privacy remain controversial. Roe v Wade.

The right to be free from unreasonable searches, and the principle that an unwarranted search is presumptively invalid, are well established. Indianapolis v. Edmond, Hiibel v Nevada, Terry v Ohio. Hiibel's conviction for refusing to display a pedestrian license was upheld, but only on a showing of Terry individualized suspicion and offer safety concerns. Gilmore v FAA proved that the airlines could not in fact require a plane passenger license, but could use the refusal to show a passenger license in order to justify a magnetometer screening. In Edmond, a prior case involving this plaintiff and one of these defendants, a suspicionless search at a drug roadblock was struck down as unreasonable.

The seizure claim is less well established. It is established that when a person is prevented from going somewhere they have a right to be, that they have been seized, but we are not aware of any case applying this to a voting booth.

In Brown v. Texas, 443 U.S. 47 (1979), a unanimous court invalidated a Texas statute



requiring pedestrian ID.



To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.

However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.

In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it.





Equal protection: It is clearly established that the right of equal protection prevents poll taxes. Harper v Virginia Board of Elections, 383 US 663, 670; 86 S Ct 1079; 16 L Ed 2d 169 (1966). The poll tax in that case was a universal one, while here only a relatively small number of people have to pay a fee in order to obtain a voting license. Some of those people might be able to use an indigency affidavit to avoid needing a voting license. Georgia and Missouri courts, in persuasive opinions, have found that Harper controls here, that voter licensing schemes which require some voters to pay a fee to obtain a voter license violate equal protection. See also Op. Michigan Att. Gen. 6930, http://www.ag.state.mi.us/opinion/datafiles/1990s/op10001.htm.

Privileges and Immunities: After the Slaughter-House Cases, 16 Wall. 36 (1873), which found that the Privileges and Immunities clause does not confer a general right of economic and personal freedom, the P&I clause is rarely cited. But Twining v New Jersey, 211 U.S. 78, 97 (1908), citing the right to vote for national officers (Ex parte Yarbrough, 110 U.S. 651 , 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Wiley v. Sinkler, 179 U.S. 58 , 45 L. ed. 84, 21 Sup. Ct. Rep.17, reminds us that voting in a federal election is one of the recognized privileges. What standard of review to apply is unclear, and whether a voting license scheme poses an undue burden of the privilege is likely a case of first impression. The election at issue is a federal election.

The badges of slavery claim and the related Padrone Act claim are cases of first impression, with little indication that they will succeed. Their likelihood of success is less than a preponderance, but more than zero. Similarly, the 15th Amendment claim is uncertain of success, whether plaintiffs concede defendants are not motivated by racial animosity, but are aware the regulations will have a disparate racial impact. The Republicans aren't trying to keep blacks per se from voting. It's just that being black happens to be correlated with voting Democrat, and the Republicans are trying to keep Democrats from voting. The result is that innocent bystanders like Plaintiff get their voting rights removed as well. The state is aware that the regulation will have disparate impact on minorities. When fundamental rights are severely burdened in a way that has a disparate racial impact, heightened scrutiny should be applied under the 15th Amendment, but the outcome of such a case is less certain than where invidious racial discrimination can be proved.

It is unclear what the standard of review is under the 24th Amendment, which prohibits a person from being denied the vote for failure to pay any tax. Such cases are rarely litigated because the Amendment is so rarely violated. Here, courts in Missouri and Georgia have concluded that voting license schemes that require payment of a fee to obtain underlying documents, do implicate 24th Amendment concerns. These are well-reasoned cases on very similar facts and should be given significant weight, although they are not controlling in this jurisdiction.
Privacy Act claim: Indiana and Marion County have a pattern of ignoring the requirements of the privacy act as regards the use and abuse of the social security number. Many Indiana citizens have a social security number displayed on their driver's licenses, often a decision made years ago when they were unaware of the dangers of identify theft and data mining. Many of these have no other valid state ID to use as a voting license. Libertarian Party of Kentucky v. Ehrler, 776 F.Supp.1200 (E.D.Ky., 1991), held that it violates the Privacy Act for a state to require social security numbers on nomination petitions. See also Doe v. Chao, 540 U.S. 614 (2004), for recent Supreme Court interpretation of the Privacy Act. The Privacy Act requires a statement of how the social security number will be used. No such statement is provided. Many Indiana citizens would be surprised to learn that the number they give the voter registration office ends up in the data bank of Aristotle, Inc, which then matches the information with other databases to build a profile of the voter, which can then be used to tailor campaign ads and activities. Identity theft has grown as this sort of data gets out into the wild and can be used by the unscrupulous. The Privacy Act claim is itself enough of a basis to enjoin the regulation.

State claims:
1. Free elections claim. Art. II section 1.

Brewer v McClelland 32 NE 299 (1892), Horseman v. Keller, ___ N.E.2d ___ (Ind. Jan. 31, 2006), Indiana Election Board v Bartolemei, 434 NE2d 74 (1982), Oviatte v Behme, 147 NE2d 897 (1959), Simmons v Byrd, 136 NE 14. In interpreting the state constitution, we look to the text, the history, the case law, and the law of other jurisdictions. Price v. Indiana. "Elections are 'free' when voters are subject to no intimidation nor improper influence and every voter is allowed to cast his ballot as his judgment and conscience dictate and elections are 'equal' when the vote of every elector is equal in its influence upon the result to the vote of any other elector." Blue v Indiana ex rel Brown, 188 NE2d 583 (1934), And see Oviatte v Behme, 147 NE2d 897 (1959).
2. Equal elections claim. Art. II section 1. See above.
3. Right of registered voter to vote. Art. II sect. 2. Term Limits, Inc. v. Thornton, 514 US 779 (1995). Lake v. Purdue, Superior Court of Fulton County, Georgia; Jackson County v Missouri, Missouri Supreme Court.

"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).
4. Search and seizure claim. Art. I section 11.

Chandler v. Miller, 520 U. S. 305, 308 (1997); Edmond v. Goldsmith, 183 F. 3d 659, 661 (CA7 1999), affirmed as Indianapolis v. Edmond, Palmer, et al, _ US _ (2000), Hiibel v Nevada.

The Indiana constitution is not less protective than the federal constitution of suspiconless searches and seizures. "The protection provided by the Fourth Amendment is the minimum amount of protection a state may provide for its citizens. States are permitted to provide additional protection based on their state constitution." State v Gerschoffer 763 NE2d 960, 965 (Ind. 2002) "The Indiana Constitution has unique vitality even where its words parallel federal language." Trimble v State, 816 NE2d 83, 91 ( Ind.App 2004).

"Searches or seizures have violated the Indiana Constitution when they did not violate the federal constitution. See e.g. State v Stamper 788 NE2d 862 (Ind.Capp.2003). It is the state's burden to demonstrate the constitutionality of a search. Article I section 11 must be liberally construed to protect Hoosiers from unreasonable police activity in their private lives." Trimble, Id.
"When an officer undertakes to act as his own magistrate, he ought to be in apposition to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant." Trimble, 816 NE2d 83, 93.
"The dual protections of both constitutions put the burden on the state to establish a valid warrant or prove a warrant exception…. The citizens of Indiana enjoy a distinct and higher level of protection than … the federal constitution." Bell v State, 818 NE2d 481, 484 (Ind App 2004). "Searches conducted without a warrant are per se unreasonable subject to a few well-delineated exceptions." Bell v State, id.

5. Free speech claim. Art I section 9, free interchange of opinion clause. Price v. Indiana 622 N.E.2d 954, 960 (Ind. 1993)
6. Alter or abolish claim. Art. I section 1.
7. Due course of law claim. Art I section 12. Villegas v. Silverman, 832 N.E.2d 598, 610 (Ind. Ct. App. 2005) detailed some of the due process concerns of those who try to obtain voter licenses from the BMV.
8. Petition and assembly claim. Art. sec. 31.
9. Badges of Slavery claim. Art I sec. 37.

Prior to Reynolds v Simms, federal courts usually abstained from state election law controversies, and state constitutional provisions such as the free and equal elections clause were the main source of voting rights.

Federal jurisprudence in this area has become incoherent, with few bright line standards and much recourse to the personal preferences of judges. Burdick v Takushi, Twin Cities Area New Party, and McConnell v FEC are some of the cases that reduce predictability in federal election law. This has led to a rediscovery of the state constitutions as a source of authority. While the federal constitutional text tends to be vague on some issues, e.g. free speech, due process, equal protection, privileges and immunities, the state constitutions are often more explicit about detailed protection of voting processes. Indiana is no exception. Even where the terms are vague, case law has resulted in some provisions being given a different or stronger reading than their federal analogs.

Georgia found that its constitution provides the legislature wide latitude in how to register a voter, but that once registered, a voter has a vested right to vote that is infringed by a license requirement, which the legislature has no authority to overrule. Indiana has the same vested right, in article II section II. In Rokita, the judge confused the legislature's discretion about registration and assumed the legislature had the same discretion as to voting, but this is against the weight of the case law.

Article II section I, free and equal elections, is the main textual protection of voting in Indiana. See http://umkcthesis.blogspot.com for an article analyzing this clause. Missouri, interpreting a similar "free and open elections" clause, found it would be violated by voter licensing. Indiana has no case directly on point. The legislature never before has had the audacity to try to violate the clause in this particular way.

@ need to add notes from Indiana cases here.

But there is plenty of case law setting out the general idea of what this clause means, from which it can be applied to the facts of this case.

Elections are free when everybody duly registered gets to vote, and elections are equal when everyone's vote counts the same. When some people are barred from voting for failure to have or display a voter license, the resulting election is neither free nor equal.

The equal elections clause is usually interpreted as being similar to the federal equal protection clause as applied in the election context. This is largely true because federal courts borrowed from state precedents in developing their understanding. The equal elections clause should not be confused with the equal privileges clause of Article I section 23, which, in Collins v Day, has been effectively read out of the Indiana constitution, in all but a few odd circumstances. If the federal equal protection clause prevented a poll tax in Harper, then a claim that, for some people, the voting license requires payment of a tax, and violates the equal elections clause, should be taken seriously enough to justify temporary injunctive relief to preserve the status quo while the case goes forward.

Article II contains, in section 8, a prohibition from arrest at the polls. This is not literally violated by the voting license scheme, but it shows the founders had a policy to make sure there was no official interference when the people went to the polls. This policy becomes law via the equal elections clause of section I, the due course of law clause of Article I section 12, the free expression clause of section 9, and the petition clause, section 31.

Whether section 9 protects the right to vote, in the way that the First Amendment protects the right to vote, is not clearly established, but would be reasonable. If section 9 applies at all, we know from Price v Indiana that the rights under section 9 can be more extensive than those of the First Amendment. The First amendment protects the "freedom of speech" rather than all speech. Section 9, the free expression clause, states, Section 9. No law shall be passed, restraining the free interchange of thought and opinion. Granted, cases like Burdick make the valid point that not every regulation of elections is an unconstitutional infringement on speech. There has to be some order and structure to the process to make it work. The same point comes up repeatedly in the free and equal election cases. However, when regulation prevents voters from voting, it goes too far, and this point too is reflected in the case law on the free election clause, and would be a reasonable interpretation of the free expression clause. Similarly with the petition clause of section 31. The clause has been held not to apply to picketing, in a set of circumstances where picketing was intermingled with threats of violence, ala Burson v. Freeman. But it should apply in cases of peaceful assembly and petition, as here, where Palmer simply wants to go to his polling place and cast his ballot.

One of his strongest arguments against having to display a voter license is that it is an unwarranted search. Under the Indiana constitution and its case law, the text of section 11 means something over and above what the same text means in the Fourth Amendment. Here, it need only be as strong as the Fourth Amendment. Absent certain well-established exceptions not at issue here, a warrant is required before the state can search Mr. Palmer's papers and effects. Requiring a person to produce papers in order to be able to engage in a vested right, casting one's ballot, is a search. Not every unwarranted search is unreasonable. Here the search has much in common with cases in which courts have found special needs exceptions to the warrant requirement. It is, for most, a minimally intrusive screening, for an administrative rather than law enforcement purpose. For others, it is a more invasive procedure, involving revealing personal documents to the Bureau of Motor Vehicles, waiting in line in the presence of an armed officer, having a mug shot taken, and waiting again while the voting license is prepared. It may require travel outside one's county. The waiting and travel is not itself a poll tax, but is a search and seizure.

If the BVM isn't satisfied, there is no recourse, no hearing or process to resolve the problem. For others, it is an endless loop of being told that you can't get a birth certificate without an ID and can't get an ID without a birth certificate. Further, the voter is expected to jump through these hoops again every four years. It is unclear why one's right to vote would ever expire, or why an expired ID would fail to accomplish the state's purported goal of preventing voter fraud.

Respondents claimed that the roadblocks violated the Fourth Amendment of the United States Constitution and the search and seizure provision of the Indiana Constitution. Respondents requested declaratory and injunctive relief for the class, as well as damages and attorney's fees for themselves ....The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U. S. 305, 308 (1997).
And see Edmond v. Goldsmith, 183 F. 3d 659, 661 (CA7 1999).

Indianpolis v Edmond



As to the voter licensing claim, plaintiff has identified serious concerns going to the merits, as to his rights under the First, Fourth, Fourteenth (due process, equal protection, and privileges and immunites clauses), and Twenty-Fourth Amendments, and the Privacy Act, 7 distinct grounds each by itself adequate justification for injunctive relief. The state must win on every one of these claims to ultimately prevail on the merits. Additonally, 13th and 15th Amendment claims are raised.

Under the state constitution, plaintiff asserts claims under Article II, sections 1 and 2, and Article I sections 1, 9, 11, and12, which find support in the case law, and no controlling adverse authority. Plaintiff has a sufficient likelihood of success on the merits such that failure to issue preliminary injunctive relief would be an abuse of discretion and error of law. A Temporary Restraining Order and preliminary injunction should issue.

B. Plaintiff's ballot access and write-in vote claims.

Plaintiff Palmer has been duly nominated by the Libertarian Party, a ballot-qualified minor party, for the 100th Legislative District. Defendant co-directors of the Indiana Election Division have refused him his place on the ballot, arguing that a new paperwork requirement, of which Palmer had no actual knowledge, and which has never been applied before and applies only to his party and no others, was not filed in time by the state chairman of the party. Additionally, they claim that he cannot run as a write-in candidate, because the deadline for that was before they took him off the ballot. Plaintiff has continued to run, and instructs his supporters to cast write in votes if his name does not appear on the ballot.

Plaintiff contends that the co-directors' action is arbitrary and capricious, that the deadline to be a write-in candidate is unconstitutionally early as applied to him, that the write-in and 10 day notice statutes are directory rather than mandatory, and that he is being denied a free and equal election. Had he had unlimited funds, as the state does, he might have been able to file this action sooner. Because by now the ballots have been printed, it may be that that the burden on defendants to add Palmer's name at this late date would be a greater burden than the severe burden on Palmer's rights. It will not burden Defendants to count his write-in votes. Failure to count his write-in votes would be voter fraud, of the sort that supposedly justifies the identification requirements discussed above. The public interest is in having every vote counted, and every vote count. The right in Indiana to a write in vote was established by Paul v Indiana Election Board, 743 F.Supp. 616 (S.D Ind. 1990). The instant case is readily distinguishable from Burdick v. Takushi, in which a person wanted to cast a write-in vote for an unknown person, where ballot access was readily available as an alternative. Here, Palmer is the nominee of a recognized party, who has been denied his place on the ballot for highly questionable reasons. The standard of review is that of Anderson v Celebrezze, unless a stricter standard applies under Article II section 1. If his votes are not counted, irreparable harm ensues. The public interest is in a free and equal election, at which all votes are counted. The state, when asked, could not identify any state interests furthered by not counting his votes. The burden on plaintiff is severe, while the burden on defendants is minimal. This court should order that any write in votes for Palmer be counted, or rather, that no official vote totals for the 100th district which do not include Palmer's votes be published. A proposed order is attached.

Respectfully submitted,

Robbin Stewart. #47174-53

P.O.Box 164

Cumberland IN 46229-0164

317.650.9698.

gtbear at gmail dot com



In the Superior Court for Marion County Indiana





Joell Palmer,

plaintiff,



v. Cause Number _________

Judge _______________

Marion County, et al., defendants.



TEMPORARY RESTRAINING ORDER



1. Plaintiff has filed suit to enjoin election officials from searching his government issued identification without a warrant as a condition of casting his vote.

2. He raises substantial questions going to the merits on each of the following federal claims: First Amendment right to vote and privacy, Fourth Amendment, Due Process, Equal Protection, Privileges and Immunities, Twenty-Fourth Amendment, and Privacy Act.

3. He raises substantial questions going to the merits on each of the following state claims: Article II sections 1 and 2, Article I section 1, 9, 11, 12, and 31.

4. The compelling public interest is in a free and equal election in which all eligible voters can vote and have their votes counted, and no ineligible person may vote. There is no public interest in the enforcement of an unconstitutional regulation. The identification requirement has the risk of creating more voter fraud than it cures, and is not narrowly tailored to the state's interest in election integrity. The state's legitimate interest in administrative convenience cannot override plaintiff's vested fundamental rights, which are severely burdened.

5. The State's planned interference with the integrity of the election process and plans to prevent plaintiff from voting, creates irreparable harm, justifying injunctive relief.

6. Given irreparable harm, a severe burden to plaintiff, a showing of some likelihood of success on the merits, and a compelling public interest in free elections, Plaintiff is entitled to temporary injunctive relief.

7. Defendants Marion County and State of Indiana are restrained from requiring any voter, including plaintiff Joell Palmer, in the November general election to show government issued identification as a condition of voting, absent a search warrant.

8. A hearing shall be held ______________________ in which Defendants shall show cause why this order should not continue during the litigation..



So Ordered



____________



____________



In the Superior Court for Marion County Indiana





Joell Palmer,

plaintiff,



v. Cause Number _________

Judge _______________

Marion County, et al., defendants.



TEMPORARY RESTRAINING ORDER



For cause shown, defendants shall not prevent write-in votes being cast in the 100th state representative district, and no vote totals that do not include these votes shall be published, unless by further order of this court.



So Ordered.

_____________



______________

(Alternative Order)

In the Superior Court for Marion County Indiana





Joell Palmer,

plaintiff,



v. Cause Number _________

Judge _______________

Marion County, et al., defendants.



TEMPORARY RESTRAINING ORDER



For cause shown, defendants shall not require government-issued identification as a precondition for voting, unless pursuant to a valid warrant or by further order of this court.



A hearing is set for _____________________



So Ordered.

_____________



______________
IN THE _____Marion Superior____ COURT



)

Joell Palmer

v.

Marion County et al. ) Case Number:

) (To be supplied by Clerk when case is filed.)




APPEARANCE BY ATTORNEY IN CIVIL CASE



Party Classification: Initiating __X__ Responding ____ Intervening ____



1. The undersigned attorney and all attorneys listed on this form now appear in this case for the following party members: Plaintiff Joell Palmer__________________________



2. Applicable attorney information for service as required by Trial Rule 5(B)(2) and for case information as required by Trial Rules 3.1 and 77(B) is as follows:

Name: ___Robbin Stewart____________ Atty Number: 47174-53_____________________

Address: POB 164, Cumberland In 46229_________ Phone: ___317.650.9698______________

FAX: ______________________________

Email Address: __gtbear@gmail.com____________________

3. There are other party members: Yes____ No __X__ (If yes, list on continuation page.)



4. If first initiating party filing this case, the Clerk is requested to assign this case the following Case Type under Administrative Rule 8(b)(3): _____Constitutional Tort____________________





5. I will accept service by FAX at the above noted number: Yes ____ No _X___





6. This case involves support issues. Yes ____ No __X__ (If yes, supply social security numbers for all family members on a separately attached page using light green paper. See form below.)





7. There are related cases: Yes ____ No __X__ (If yes, list on continuation page.)



8. This form has been served on all other parties and Certificate of Service is attached:

Yes___ No__X_



________Robbin Stewart_________

Attorney-at-Law

(Attorney information shown above.)





Appearance Format for Use by Attorneys in Civil Cases; 1/1/2005 Revised

__________________

In the Superior Court for Marion County Indiana





Joell Palmer,

Plaintiff,



v. Cause Number _________

Judge _______________

Marion County, State of Indiana, J. Bradley

King, Todd Rokita, Kristi Robertson, Doris

Ann Sadler, John Doe #1-4,

Jane Doe 1-3, Securatex, Jack Cottey,

Defendants.



MEMO IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION,

Filed herewith is a complaint and a motion for TRO and temporary injunction. This filing provides more detail on plaintiff's arguments in support of a TRO.

A. The voting license scheme.

Indiana is one of several states that have attempted to require that registered voters provide government issued photo ID as a condition of in person voting. The voter ID regime in Indiana is similar to the ones that have been enjoined in Georgia and Missouri, and found enforceable. A voter ID program in Arizona is less burdensome because it allows other forms of ID, such as a utility bill. In Florida, a voter who does not wish to show ID can sign an affidavit instead. In Ohio, suit has been filed over inconsistent county standards of how to implement voter ID. A TRO issued this morning in that case. Indiana's is the most severe in the country which has yet to be enjoined.

Plaintiff has a voting license, but is unwilling to display it without a warrant or some degree of individualized suspicion; he believes he has no legal duty to waive his rights or consent to a search in order to vote. He was denied the vote at the Spring election, and expects to be again denied the vote at the Fall general election. He has contacted the Secretary of State and been unable to resolve his concerns or get his vote counted. He is also being denied ballot access, as the Libertarian Party's nominee for the 100th legislative district, and has been told that write-in votes for him will not be counted.

Initially, Plaintiff expected to obtain relief from voter ID due to a pair of lawsuits in federal court, consolidated as Democratic Party v Rokita. But injunctive relief was denied by the district court, in an erroneous opinion that applied the wrong standard of review under the state and federal constitutions. http://www.insd.uscourts.gov/News/05-cv-00634-SEB-VSS.pdf. While that case has been appealed to the 7th circuit, and oral argument heard, there was no motion for an injunction pending appeal, and at argument Judge Posner announced that no ruling should be expected before the election. Oral argument audio is online at http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=06-2218&submit=showdkt&yr=06&num=2218 . Rokita does not raise the search and seizure issues that are the core of this action, and does not involve plaintiffs who themselves were denied the vote.

State Courts in Missouri and Georgia, and a federal court in Georgia, have enjoined similar voting license proposals. Filings in these cases are collected at http://moritzlaw.osu.edu/electionlaw/litigation/index.php.

Lake v. Purdue, Superior Court of Fulton County, Georgia; Common Cause of Georgia v. Billups, Northern District of Georgia, upheld by 11th Circuit. Jackson County v Missouri, Missouri Supreme Court; NAACP v. Carnahan, Western District of Missouri, no ruling yet.

Purdue found that the voter ID system were an equal protection violation and a poll tax. The legislature then amended the statute to remove some but not all fees to obtain the licenses. The court refused to vacate its injunction. In Billups, a court found the scheme unlawful because it violated the state constitutional right of registered voters to vote, under a provision similar to Article II section 2.

In Jackson County v Missouri, the court found a violation of the state constitution's free and open elections clause, and the state constitutional right of registered voters to vote, and that it was a poll tax.

The motion for a TRO discusses the balancing of the four factors, and concludes that each factor weighs in support of injunctive relief. The threatened harm is severe and irreparable, threatening compelling public interests in election integrity. There is no public interest in enforcing an unconstitutional regulation. The burden to Palmer includes that he won't be able to vote, and that his supporters cannot vote for him without giving up their rights, which neither he nor they want, and that he will be denied a democratic government resulting from a free and equal election. He is also burdened by the failure to include his name on the ballot, and by the refusal to count his write-in votes.

This next section details the case law in support of each of his claims.

Federal:

The right to vote is protected by the First Amendment. Denial of the vote is a severe burden, triggering strict scrutiny, which J. Scalia has called the kiss of death. Reynolds v Simms, Williams v Rhodes, Norman v Reed, Buckley v ACLF, Thomas concurring, McIntyre v Ohio Elections Comm'n., Scalia dissenting.

The federal right to privacy under the First Amendment was established by NAACP v Alabama ex rel. Patterson, Talley v California, and Bates v Little Rock. These cases found a right to political association, and a right to anonymous political campaigns, but did not directly address voter licenses. The exact contours of the right to privacy remain controversial. Roe v Wade. His right to privacy is violated by a requirement that he display a license that does more than identify him. It lists his age, weight, driver's license number, organ donor status, and may contain his social security number, thus enabling identity theft. Patterson and Bates were about a political association not having to reveal their membership lists to the state. As a member of an unpopular political minority, he is alert to the possibility of harassment and retaliation. Buckley v Valeo and McConnell v FEC were unsuccessful attempts to protect the privacy of Libertarian Party office seekers. Chandler v Miller was a successful attempt by a Libertarian to resist an unwarranted search in the election context.

The right to be free from unreasonable searches, and the principle that an unwarranted search is presumptively invalid, are well established. Indianapolis v. Edmond, Hiibel v Nevada, Terry v Ohio. Hiibel's conviction for refusing to display a pedestrian license was upheld, but only on a showing of Terry individualized suspicion and officer safety concerns not present here. Gilmore v FAA proved that the airlines could not in fact require a plane passenger license, but could use the refusal to show a passenger license in order to justify a magnetometer screening. In Edmond, a prior case involving this plaintiff and one of these defendants, a suspicionless search at a drug roadblock was struck down as unreasonable.
Joell Palmer Says No to Being Searched by Amy Martinez 99-1030 Indianapolis v. Edmond, 4/20/2004, Medill News Service http://docket.medill.northwestern.edu/archives/000096.php

"I told [the police], I don't give up my right to privacy, and they said 'I didn't have any rights,'" Joell Palmer says. "I said 'no' to the search. Why should I be stopped and be forced to get out of my car to let them go through my stuff?"

Palmer speaks passionately about the fall 1998 evening he was stopped at a roadblock set up by the Indianapolis police to stop drug trafficking. He says that even though he repeatedly refused to give up his rights to privacy, he was forced out of his 1979 Trans-Am to allow a police dog to circle and enter his vehicle.

"I remember thinking, 'Why am I being stopped? I'm a normal citizen,'" recounts Palmer. "What they did was totally wrong."… But Palmer maintains that the police officers abused their authoritative power thus violating the rights of the public they are supposed to be serving and protecting.

Frustrated with government agencies, Palmer is proud that his case has spurred people to re-examine the role of government."Most people think we should crack down on drug dealers, get them off the streets, and throw them in jail forever," Palmer says. "But after I explain that they are losing their rights in the process, they open up to questioning the government. That's what we need. If we don't stand up for our rights, what's next?"

The seizure claim is less well established. It is established that when a person is prevented from going somewhere they have a right to be, that they have been seized, but we are not aware of any case applying this to a voting booth. In Brown v. Texas, 443 U.S. 47 (1979), a unanimous court invalidated a Texas statute requiring pedestrian ID:

To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.
In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. Id.



Equal protection: It is clearly established that the right of equal protection prevents poll taxes. Harper v Virginia Board of Elections. The poll tax in that case was a universal one, while here only a relatively small number of people have to pay a fee in order to obtain a voting license. Some of those people might be able to use an indigency affidavit to avoid needing a voting license. Georgia and Missouri courts, in persuasive opinions, have found that Harper controls here, that voter licensing schemes which require some voters to pay a fee to obtain a voter license violate equal protection.

Privileges and Immunities: After the Slaughterhouse cases, 16 Wall. 36 (1873), which found that the Privileges and Immunities clause does not confer a general right of economic and personal freedom, the P&I clause is rarely cited. But Twining v New Jersey, 211 U.S. 78, 97 (1908), citing the right to vote for national officers (Ex parte Yarbrough, 110 U.S. 651 , 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Wiley v. Sinkler, 179 U.S. 58 , 45 L. ed. 84, 21 Sup. Ct. Rep.17, reminds us that voting in a federal election is one of the enumerated privileges. What standard of review to apply is unclear, and whether voting license scheme poses an undue burden of the privilege is likely a case of first impression. The election at issue is a federal election.

The badges of slavery claim and the related Padrone Act claim are cases of first impression, with little indication that they will succeed. Their likelihood of success is less than a preponderance, but more than zero. Similarly, the 15th Amendment claim is uncertain of success, whether plaintiffs concede defendants are not motivated by racial animosity, but are aware the regulations will have a disparate racial impact. The Republicans aren't trying to keep blacks per se from voting. It's just that being black happens to be correlated with voting Democrat, and the Republicans are trying to keep Democrats from voting. The result is that innocent bystanders like Plaintiff get their voting rights removed as well. The state is aware that the regulation will have disparate impact on minorities. When fundamental rights are severely burdened in a way that has a disparate racial impact, heightened scrutiny should be applied under the 15th Amendment, but the outcome of such a case is less certain than where invidious racial discrimination can be proved.

It is unclear what the standard of review is under the 24th Amendment, which prohibits a person from being denied the vote for failure to pay any tax. Such cases are rarely litigated because the Amendment is so rarely violated. Here, courts in Missouri and Georgia have concluded that voting license schemes that require payment of a fee to obtain underlying documents, do implicate 24th Amendment concerns. These are well-reasoned cases on very similar facts and should be given significant weight, although they are not controlling in this jurisdiction.
Privacy Act claim: Indiana and Marion County have a pattern of ignoring the requirements of the privacy act as regards the use and abuse of the social security number. Many Indiana citizens have a social security number displayed on their driver's licenses, often a decision made years ago when they were unaware of the dangers of identify theft and data mining. Many of these have no other valid state ID to use as a voting license. Libertarian Party of Kentucky v. Ehrler, 776 F.Supp. 1200 (E.D.Ky., 1991), http://www.kentmbrown.com/PDF/LibertarianvEhrler.pdf, held that it violates the Privacy Act for a state to require social security numbers on nomination petitions. See also Buck Doe v. Chao, 540 U.S. 614 (2004), for recent Supreme Court interpretation of the Privacy Act. The Privacy Act requires a statement of how the social security number will be used. No such statement is provided. Many Indiana citizens would be surprised to learn that the number they give the voter registration office ends up in the data bank of Aristotle, Inc, which then matches the information with other databases to build a profile of the voter, which can then be used to tailor campaign ads and activities. Identity theft has grown as this sort of data gets out into the wild and can be used by the unscrupulous.

The Privacy Act claim is itself enough of a basis to enjoin the regulation.

State claims:

Prior to Reynolds v Simms, federal courts usually abstained from state election law controversies, and state constitutional provisions such as the free and equal elections clause were the main source of voting rights.

Federal jurisprudence in this area has become incoherent, with few bright line standards and much recourse to the personal preferences of judges. Burdick v Takushi, 504 U.S. 428 (1992), Twin Cities Area New Party, 520 U.S. 351 (1997), and McConnell v FEC are some of the cases that reduce predictability in federal election law. This has led to a rediscovery of the state constitutions as a source of authority. While the federal constitutional text tends to be vague on some issues, e.g. free speech, due process, equal protection, privileges and immunities, the state constitutions are often more explicit about detailed protection of voting processes. Indiana is no exception. Even where the terms are vague, case law has resulted in some provisions being given a different or stronger reading than their federal analogs.

Georgia found that its constitution provides the legislature wide latitude in how to register a voter, but that once registered, a voter has a vested right to vote that is infringed by a license requirement, which the legislature has no authority to overrule. Indiana has the same vested right, in article II section II. In Rokita, the judge confused the legislature's discretion about registration and assumed the legislature had the same discretion as to voting, but this is against the weight of the case law.

Article II section I, free and equal elections, is the main textual protection of voting in Indiana. See http://umkcthesis.blogspot.com for an article analyzing this clause. Missouri, interpreting a similar "free and open elections" clause, found it would be violated by voter licensing. Indiana has no case directly on point. The legislature never before has had the audacity to try to violate the clause in this particular way.

But there is plenty of case law setting out the general idea of what this clause means, from which it can be applied to the facts of this case.

In interpreting the state constitution, we look to the text, the history, the case law, and the law of other jurisdictions. Price v. Indiana. "Elections are 'free' when voters are subject to no intimidation nor improper influence and every voter is allowed to cast his ballot as his judgment and conscience dictate and elections are 'equal' when the vote of every elector is equal in its influence upon the result to the vote of any other elector." Blue v Indiana ex rel Brown, 188 NE2d 583 (1934).

Elections are free when everybody duly registered gets to vote, and elections are equal when everyone's vote counts the same. When some people are barred from voting for failure to have or display a voter license, the resulting election is neither free nor equal.

The equal elections clause is usually interpreted as being similar to the federal equal protection clause as applied in the election context. This is largely true because federal courts borrowed from state precedents in developing their understanding. The equal elections clause should not be confused with the equal privileges clause of Article I section 23, which, in Collins v Day, has been effectively read out of the Indiana constitution, in all but a few odd circumstances. If the federal equal protection clause prevented a poll tax in Harper, then a claim that, for some people, the voting license requires payment of a tax, and violates the equal elections clause, should be taken seriously enough to justify temporary injunctive relief to preserve the status quo while the case goes forward. By status quo here we mean before passage of the act imposing voter ID.

Article II contains, in section 8, a prohibition from arrest at the polls. This is not literally violated by the voting license scheme, but it shows the founders had a policy to make sure there was no official interference when the people went to the polls. This policy becomes law via the equal elections clause of section I, the due course of law clause of Article I section 12, the free expression clause of section 9, and the petition clause, section 31.

Article II contains a section, section 2, which provides an explicit right of a registered voter to vote in elections. "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).

Whether section 9 protects the right to vote, in the way that the First Amendment protects the right to vote, is not clearly established, but would be reasonable. If section 9 applies at all, we know from Price v Indiana that the rights under section 9 can be more extensive than those of the First Amendment. The First amendment protects the "freedom of speech" rather than all speech. Section 9, the free expression clause, states, No law shall be passed, restraining the free interchange of thought and opinion. Granted, cases like Burdick make the valid point that not every regulations of elections is an unconstitutional infringement on speech. There has to be some order and structure to the process to make it work. The same point comes up repeatedly in the free and equal election cases. However, when regulation prevents voters from voting, it goes too far, and this point too is reflected in the case law on the free election clause, and would be a reasonable interpretation of the free expression clause. Similarly with the petition clause of section 31. The clause has been held not to apply to picketing, in a set of circumstances where picketing was intermingled with threats of violence, ala Burson v. Freeman. But it should apply in cases of peaceful assembly and petition, as here, where Palmer simply wants to go to his polling place and cast his ballot.

One of his strongest arguments against having to display a voter license is that it is an unwarranted search. Under the Indiana constitution and its case law, the text of section 11 means something over and above what the same text means in the Fourth Amendment. Here, it need only be as strong as the Fourth Amendment. Absent certain well-established exceptions not at issue here, a warrant is required before the state can search Mr. Palmer's papers and effects. Requiring a person to produce papers in order to be able to engage in a vested right, casting one's ballot, is a search. Not every unwarranted search is unreasonable. Here the search has much in common with cases in which courts have found special needs exceptions to the warrant requirement. "The third exception is the regulatory search, the objective of which is to protect a specific activity rather than to operate as an adjunct to general criminal law enforcement." Edmond v Goldsmith. Perhaps the Indiana Supreme Court will create an elections exception to Section 11, and perhaps the United States Supreme Court will create an elections exception to the Fourth Amendment. They have not yet done so, and no lower court has that authority. The test of warrantless regulatory searches comes down to one of reasonableness. Here, the regulation is has many unreasonable aspects. Why should a voter license ever expire? Why should a person who does not have a birth certificate be unable to get one without a driver's license, and be unable to get a driver's license without a birth certificate? Why is there no recourse, such as a hearing and right of appeal, for a person who has been arbitrarily denied a voter license by the BMV? While the court might use this case to decide what some future reasonable voter ID arrangement might look like, this isn't it.

The weight of Indiana precedent on search and seizure counsels against waiving the warrant requirement. . "The protection provided by the Fourth Amendment is the minimum amount of protection a state may provide for its citizens. States are permitted to provide additional protection based on their state constitution." State v Gerschoffer 763 NE2d 960, 965 (Ind. 2002) "The Indiana Constitution has unique vitality even where its words parallel federal language." Trimble v State, 816 NE2d 83, 91 ( Ind.App 2004).

"Searches or seizures have violated the Indiana Constitution when they did not violate the federal constitution. See e.g. State v Stamper 788 NE2d 862 (Ind.Capp.2003). It is the state's burden to demonstrate the constitutionality of a search. Article I section 11 must be liberally construed to protect Hoosiers from unreasonable police activity in their private lives." Trimble, Id.
"When an officer undertakes to act as his own magistrate, he ought to be in apposition to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant." Trimble, 816 NE2d 83, 93.
"The dual protections of both constitutions put the burden on the state to establish a valid warrant or prove a warrant exception…. The citizens of Indiana enjoy a distinct and higher level of protection than … the federal constitution." Bell v State, 818 NE2d 481, 484 (Ind App 2004). "Searches conducted without a warrant are per se unreasonable subject to a few well-delineated exceptions." Bell v State, id.

The current voter licensing scheme is an unreasonable unwarranted search, and is a severe burden on the core of protected speech, violates the Privacy Act, is, for some, a prohibited poll tax, fails to survive strict scrutiny under the equal protection clause, and violates the Article II right of registered voters to vote. It must be enjoined, at least temporarily.

Respecfully submitted,

Robbin Stewart. #47174-53

P.O.Box 164

Cumberland IN 46229-0164

317.650.9698.

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