Friday, March 24, 2006
First Amended.
This blog post contains the text of the first amended complaint, filed january 8th, 2007.
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Joell Palmer, )
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Plaintiff, )
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)
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v. ) Cause No. 49D04-06 10-CT-044113
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) Judge Cynthia Ayers
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Marion County, State of )
Indiana, J. Bradley King, )
Todd Rokita, Kristi Robertson,)
Doris Anne Sadler, Beth White,)
John Doe #1-4,Jane Doe 1-3, )
Securatex, Jack Cottey, )
)
Defendants. )
FIRST AMENDED COMPLAINT
Comes now Plaintiff Joell Palmer by counsel and for his first amended complaint for damages, injunctive and declaratory relief states as follows.
1. Suit was filed October 27, 2006. Defense counsel moved, and the court ordered, for a more definitive statement. This first amended complaint is in response to that order. The first section restates the original complaint. A second section, paragraphs 242 et seq., updates events in light of the occurrence of the election.
2. Introduction: This is an action to stop a threat to the integrity of the election process.
3. Time is of the essence.
4. Defendants are attempting to engage in voter fraud, by preventing registered voters without a voting license from voting.
5. 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.
6. The open door law claim, IC 5-14-1.5-7(g) and the rules of court including TR40(A), provide a statutory basis for expedited handling.
7. A motion for a TRO and preliminary injunction has been filed to prevent irreparable harm.
8. The voting license program is challenged on a number of state and federal constitutional grounds as well as several statutory grounds.
9. Additionally, plaintiff seeks ballot access or write-in status, seeks access to the city-county building, and seeks relief from threats of campaign finance enforcement against him.
10. The voter ID program violates Article I sections 1, 9, 11, 12, 31, Article II sections 1 and 2, the First, 4th, 13th, 14th, 15th, and 24th Amendments, and the Privacy Act of 1974.
11. Jurisdiction: This court has general jurisdiction over claims arising under Indiana statutes and constitution, and federal statutes and constitution.
12. 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.
13. Parties: Plaintiff is Joell Palmer, a voter in the tenth ward, seventh precinct of Center Township in Marion County, Indiana.
14. He is the duly nominated candidate of the Libertarian Party for the 100th state representative district.
15. Defendant Marion County is a municipality and is the seat of government for Indiana.
16. The county is named as to all counts.
17. The State of Indiana is one of the 50 states in the United States federal system.
18. It is named for prospective declaratory and injunctive relief and for damages, only to the extent that it is not immune from suit based on sovereign immunity.
19. It is named on all counts, except those involving access to city hall.
20. Todd Rokita is the secretary of state.
21. He is named on all counts except those involving access to city hall.
22. The official capacity claim against Rokita is based in part on his expenditure of federal HAVA funds to promote the voter ID program.
23. 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.
13. Doris Anne Sadler is the Marion County clerk.
14. She is not a candidate for reelection. Her term expires 1/1/2007.
15. 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.
16. Jane Doe 1-3 are precinct officials in Ward 10, precinct 7 who prevented Palmer from voting in the spring election and intend to interfere with his right to vote in the fall election.
17. Securatex is a company which conducts arbitrary warrantless suspicionless searches of people who try to enter the City-County building (“city hall”) in order to cast provisional votes, or for any other reason.
18 It is headquartered in Illinois and maintains an office in Marion County at 239 E. Ohio Street.
19 Jack Cottey is an employee or agent of Securatex with expertise concerning the City-County building searches.
20. 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, for willful violations of established rights.
21. Securatex and Cottey are named only as to Counts @@@ for damages and injunctive and declaratory relief.
State Claims.
Count I
22. The voter licensing program violates the right to free elections under the Free Elections clause, Article II Section I of the Indiana Constitution.
23. The following statement of facts, paragraphs 23 to 93, is common to each count, and is incorporated by reference in each count below.
24. Following the disputed 2000 election, a coalition of Republican activists began promoting voter licensing proposals.
25. Numerous states passed some version, typically allowing a wide variety of documents, such as a utility bill.
26. Indiana, along with Georgia and Missouri, enacted highly restrictive versions, requiring state-issued documents with photos.
27. Each of these was challenged in court.
29. The Georgia and Missouri programs were enjoined as violating both state and federal constitutions.
30. The Missouri program was enjoined by the Cole County court. The injunction was upheld by the Missouri Supreme Court. A federal lawsuit remains pending.
31. The Georgia program was enjoined by a federal court. That decision was upheld by the 11th circuit. A county court also enjoined the program on state grounds.
32. The Indiana lawsuit was decided adversely 1/4/07, with a dissent by Judge Evans to an opinion by Judge Posner. The case is not yet final.
33. Indiana Democratic Party, NAACP, et al. v Rokita, http://moritzlaw.osu.edu/electionlaw/litigation/indy-dems.php, contains useful background on the facts and some of the legal issues.
34. The federal district court had denied injunctive relief.
35. A paper copy of the pleadings in Rokita will be provided to the court if requested.
36. At oral argument October 17 at the 7th Circuit, Judge Posner mentioned that he did not expect a decision before the election.
37. The Indiana 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.
38. Plaintiff Joell Palmer was prevented from voting at the spring primary and expects to be challenged from voting in the fall election.
39. Palmer is not eligible to vote absentee.
40. He is under 65 and present in the county.
41. He believes that the fall election will be invalid, unless this court acts to prevent the irreparable harm.
42. Palmer is the candidate of the Libertarian Party for the 100th state representative seat.
43. Palmer is a person who does not consent to a search, and does not waive his rights under the federal and Indiana constitutions.
44. He seeks to be able to cast his vote in the election without being subjected to an unwarranted search.
45. Palmer wants to cast a write in vote for himself, if this court does not order his name placed on the ballot.
46. If he cannot cast his vote, he is injured.
47. If votes for him are not counted, he is injured.
48. 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.
49. He was told that he is not eligible for a free ID, since he already has a driver's license.
50. For most voters, the driver's license would serve as their voting license.
51. 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.
52. He does not consent to a search, although he will cooperate with a search authorized by a valid warrant, or a search arising under exigent circumstances with probable cause.
53. He has a consistent practice of refusing to waive his constitutional rights.
54. He is a veteran of the US Army.
55. When he joined the military, he took an oath to uphold and protect the constitution against its enemies, foreign and domestic.
56. He would consider his participation in the compelled waiving of his rights under the constitution to be a violation of the oath he took.
57. His right to not consent to a search was affirmed by the United States Supreme Court in Indianapolis v. Edmond, Palmer, et al., 531 U.S. 32 (2000).
58. “Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all motorists who had been stopped or were subject to being stopped in the future at the Indianapolis drug checkpoints. 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.” 531 U.S. 32(2000)
59. The warrant requirement, subject to a few exceptions not at issue here, is well-established law that any government official should be aware of, and that citizens rely on in their interactions with government officials.
60. Palmer is personally known to or recognized by one or more of the precinct officials.
61. There was no threat of voter fraud if he had been allowed to vote without a license.
62. He is a registered voter who has been voting there for about 5 years, and has been a candidate.
63. By denying him the vote, the precinct officials engaged in voter fraud, with the result that the announced primary election results were off by at least one vote, his.
64. In one recent election in Palmer's district, three votes decided the election. Horseman v. Keller.
65. None of the spring races was close enough to be within the margin of litigation.
66. Primary 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.
67. Ward Ten, where Palmer has his strongest base of support, is characterized by poverty.
68. Many Ward Ten residents do not have drivers licenses or passports or state college ID”s or other state-issued ID’s.
69. Many do not drive.
70. Others drive without licenses.
71. Some have only forms of ID, such as school ID, bus pass, library card, social security card, utility bill, or voter registration receipt, which are not enough to allow them to vote under the new rules.
72. His major opponent, the incumbent, lives in the wealthiest part of district 100, Woodruff Place, in an area where people are more likely to have government issued ID.
73. Palmer was offered, and cast, a provisional ballot.
74. 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 to do, absent a valid warrant.
75. Secondly, he was unable to access the Marion County Election Board's office on the first floor of the City-County building (“city hall”), because Securatex, acting as an agent of the County, denies access to those like Palmer who do not consent to a search.
76. Palmer has been unable to access the City-County building since before 2001.
77. The unwarranted search of those who want to enter city hall is claimed to have been in response to the Oklahoma City bombing.
78. The screening is less invasive than a maximum full search. Citizens are asked to remove items from their pockets, which are then x-rayed.
79. Citizens then pass through a metal detector, and may be wanded and/or frisked.
80. The seizure of the person usually last less than a minute, and almost always lasts less than five minutes.
81. People are free to leave if they object in time.
82. Before permanently seizing objects, a person is usually warned that the object will be taken, and they can leave.
83. 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.
84. A secondary purpose is law enforcement, to seize contraband, such as drugs or arms, as evidence for prosecution.
85. 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.
86. The searches are conducted in a capricious and arbitrary manner, by sometimes surly employees who lack adequate training.
87. Sometimes one's wallet, coat, and belt are seized and searched, sometimes not.
88. Employees are authorized to seize anything that might be used as a weapon or to conceal a weapon – that is, anything and everything.
89. There is no recourse once an item is seized, at which point it will be destroyed.
90. When asked, employees are unable or unwilling to provide any written authority or standards for the searches and seizures.
91. A memo outlining Securatex search and seizure procedures is filed as an exhibit.
92. 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.
93. 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.
94. 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 under Article II section 1.
95. An election is equal where everyone's vote counts the same, and everyone's vote is counted.
96. His vote has not been counted, as to the spring election, and is at risk of not being counted in the fall, unless the Court acts.
97. Palmer insists, as a voter, citizen, and candidate, not only 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.
Count III
98. Plaintiff, and each other Indiana voter who is properly registered, has a vested right of a registered voter to vote per Article II section 2.
99. His right to vote was violated when he was denied a regular ballot and his provisional ballot was not counted.
100. His section 2 right will be violated if at the fall election he is prevented from voting unless and until he submits to a search and produces a valid voting license.
101. His section 2 rights will be violated if those who wish to vote for him are prevented or deterred from voting by the voting license program.
Count IV
102. Palmer's right to be free from unreasonable search under Article I section 11 was violated when, in retaliation for his refusal to consent to a search, he was denied the vote at the primary.
103. Palmer’s right to be free from unreasonable search under Article I section 11 will be violated at the fall election if he is denied a ballot unless and until he submits to a search of his voting license.
Count V
104. Palmer's right to be free from unreasonable seizure under Article I section 11 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.
105. 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.
106. Palmer's right to be free from unreasonable seizure under Article I section 11 will be violated when and if, at the fall election, he is prevented from proceeding forward to the voting booth to cast his ballot unless he consents to display a voting license.
Count VI
107. Article I section 9, the free interchange of opinion clause, is one of the Indiana Constitution's protections of free speech. It reads, Section 9: No law shall be passed, restraining the free interchange of thought and opinion….
108. Plaintiff asserts that his section 9 rights were violated when he was refused a regular ballot and his vote not counted.
109. Plaintiff asserts that his section 9 rights were violated when other voters were refused or deterred from voting in the spring and fall elections.
110. Voting is an exercise of interchange of thought and opinion.
111. The requirement that a registered voter and citizen obtain a license from the government in order to vote restrains the free interchange of opinion.
112. The requirement that a registered voter, one who is not certain that he meets the undefined indigency requirements under the statute, must pay a fee to the government in order to obtain the documents that constitute the voting license, restrains the free interchange of opinion.
Count VII
113. Article I section 9, the speak freely clause, is another one of the Indiana Constitution's protections of free speech.
114. It reads, Section 9. No law shall be passed … restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.
115. Section 9 is not an absolute bar to enacting and enforcing reasonable election regulations as authorized under article II, but does impose heightened scrutiny of restrictions on political speech.
116. Voting is a form of political expression that is restricted when the state imposes a licensing requirement as to which registered voters are allowed to vote.
117. Voting is at least as much political expression as what Colleen Price said to the police officer in Price v State.
118. Section 9 speech rights are restricted when a non-indigent registered voter must pay document fees to obtain a voting license in order to be able to vote.
119. Palmer’s section 9 rights will be violated if he is prevented from voting unless and until he submits to a search of his voting license.
120. Palmer’s section 9 rights will be violated if his potential voters are prevented or deterred from voting for him because of the voter licensing requirement.
Count VIII
121. Article I section 1 protects the right of the people to alter or abolish the government.
122. Generally, free and equal elections are the method by which such alterations can be accomplished in a calm and orderly manner.
123. Palmer has the right to attempt to oust Rokita and his faction from the government by voting, and by running for office.
124. 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.
125. Section 1 also grants a right of liberty, which is infringed here.
126. Section 1 when read in harmony with the rest of the Indiana constitution supports Plaintiff’s claim that the voter ID program is unlawful. The whole may be more than the sum of the parts.
Count IX
127. Article 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 has been found to protect voting rights.
128. Section 12 also states that the courts shall be open and provide a remedy for wrongs.
129. The voting license program violates due course of law.
130. When Palmer was prevented from voting for failure to submit to a search of his voting license, his rights under this section were violated.
131. Currently, issuance of voting licenses is handled by the Bureau of Motor Vehicles (BMV.)
132. When a person is refused a voter license by the BMV, and makes a written application for a hearing and appeal of the denial, the application is denied on the basis that the agency does not provide hearing or appeals for such denials.
133. This failure constitutes a deprivation of due course of law.
134. Palmer is injured when some of his potential voters are unable to obtain voting licenses from the BMV, and are left with no recourse.
135. Section 12 requires and authorizes this court to provide a remedy as to the issues raised.
Count X
136. Article I Section 31, Petition and assembly, was violated when Palmer was prevented from voting.
137. Palmer’s section 31 rights will be violated if he or his supporters are prevented or deterred or interfered with in attempting to vote in the fall election.
Count XI
138. Article I Section 37 prevents involuntary servitude.
139. A similar clause in the federal constitution has been held to prevent badges of slavery. Jones v Meyer.
140. 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.
141. For these reasons they decline to obtain or display voting licenses, which they regard as badges of slavery.
142. Some of these people already do not vote, but others will be deterred from voting if a badge of slavery is required.
143. 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 XII
144. Palmer, above, has expressed his objection to being denied access by Securatex to the City-County Building, unless he consents to an unwarranted arbitrary search and seizure.
145. As a person who had cast a provisional ballot in the primary, which would only be counted if he went to the Clerk’s office in the city-county building, he had a right to enter the building.
146. Palmer is a citizen who wants to be able to enter city hall to do business, pay taxes, obtain records, file documents, attend hearings, and petition the government for redress of grievances.
147. He is blocked from doing so by the requirement that citizens consent to a search in order to enter the building. He does not consent to an unwarranted search.
148. The Securatex searches violate his rights under the Indiana Bill of Rights, Article I of the Indiana Constitution, including section 11, search and seizure, section 1, liberty and the right to alter government, section 12, open courts and due course of law, section 9, free speech, and section 31, petition and assembly.
150. 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.
151. The Open Door law, IC 5-14-1.5, provides 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.
152. Defendant Cottey has participated in the unlawful searches and conspired with Securatex to violate Plaintiff’s right of access.
153. Plaintiff has sought an opinion from the state public access counselor on this issue, triggering the legal fee provisions of the open door statute.
Count XIII
154. Palmer was nominated by the Libertarian Party as its nominee for state representative district 100.
155. 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.
156. His paperwork was submitted to the election division before a June 30th deadline.
157. 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.
158. This requirement is new, has never before been enforced, and applies only to Palmer's party.
159. Palmer and the party had constructive notice, but no actual notice.
160. The requirement, so far as we know, serves no legitimate, strong, compelling, or overriding state purpose.
161. 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.
Count XIV
162. The State and County intend to refuse to count write-in votes for Palmer.
163. If Palmer's name does not appear on the ballot, one or more people intend to write in his name.
164. He wants those votes counted.
165. The refusal to count his votes is arbitrary and capricious, without legitimate or compelling state interests, and disenfranchises voters.
166. The deadline to register as a write in candidate is unconstitutionally early.
167. It violates the free and equal elections clause, article I sections 9, 12, and 31, and the first amendment and the equal protection clause and due process clauses of the 14th Amendment, among others.
168. The need for a write-in campaign often occurs late in the process.
169. For example, here, Palmer only became interested in becoming a write in candidate after he was unexpectedly denied ballot status by the state, after the write-in deadline had run.
Count XV
170. 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."
171. 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.
172. 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 raise or spend funds or 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.
173. He has not raised or spent $100 in the 2006 elections, exclusive of the filing costs of this action.
174. This count names defendants solely in their official capacity for prospective declaratory relief.
175. He relies on the text of the statute, interpreted in light of the constitutional provisions cited above and below.
Federal Claims
Count XVI
176. 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.
177. While the First Amendment is self-enforcing, ala Bivens, 42 USC 1983 et seq. vests this court with concurrent jurisdiction and authority to decide this issue, and other federal claims below. 178. 42 USC 1988 provides for the award of reasonable legal fees and costs.
Count XVII
179. The voting license program violates the right of privacy implicit in the First and Fourteenth Amendments of plaintiff and similarly situated voters.
Count XVIII
180. The voting license program violates the right of Palmer and other voters to be free from unwarranted unreasonable searches and seizures under the Fourth Amendment.
181. When he was asked to produce ID prior to voting, he asked to see the official's warrant authorizing such a search.
182. No warrant had been applied for.
183. On a previous occasion when Palmer relied on his Fourth Amendment rights, he was thrown on the hood of his car and told "You have no rights!"
184. 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 XIV
185. Palmer's right to due process of law under the Fourteenth Amendment was violated when he was prevented from voting and will be violated again if he is challenged from voting.
Count XV
196 Palmer's right to equal protection of the laws was violated by the voter licensing program, which is a poll tax of the sort found to violate equal protection.
197. This right is clearly established by Harper v Virginia Board of Elections.
Count XVI
198. The right to vote in federal elections is one of the privileges and immunities of federal citizenship protected by the Fourteenth Amendment.
199. Palmer's right to vote in a federal election may have been violated in the Spring election.
200. We don't know whether he sought to vote in the congressional primary, or only in the local nonpartisan races.
201. Due to his right to a secret ballot, counsel hasn't asked who he sought to vote for or against.
202. Palmer is politically affiliated with others who did vote, or did attempt to vote, in the federal primary election, and whose privileges and immunities were violated by being subjected to a search of their voter licenses.
203. His right to vote in a federal election under the P&I clause will be infringed in the Fall election, if not remedied.
Count XVII
204. Voting licenses, aka internal passports, aka driver's licenses, aka national identity cards, are a badge of slavery, prohibited by the Thirteenth Amendment.
205. At the time of enactment, the Thirteenth Amendment was concerned primarily with slavery by private parties.
206. During the Twentieth century, private sector slavery was reduced, but enslavement by governments became a growing threat.
207. Various identification programs were used as badges of slavery.
208. 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.
209. In South Africa, a passbook law required non-whites to carry an internal passport at all times, even in the shower.
210. The current trend is towards microchips, either embedded in government ID or under the skin.
211. The voting license program does not exist in isolation, but is part of a broad campaign by the current administration to ratchet down society’s reasonable expectations of privacy and to train citizens to routinely waive their basic civil rights.
212. 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.
213. At a minimum, such licensing greatly enhances the risk of identity theft, raising real and perceived costs of voting.
214. 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.
215. This claim is a case of first impression, and is not a clearly established right.
Count XVIII
216. The voter licensing program is intended to provide a partisan advantage to Republicans, by diluting the votes of Democrats, who, statistically will be burdened more than Republicans.
217. 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.
218. This action with foreknowledge of disparate impact states a claim under the 15th Amendment, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Count XIX
219. The voting license program is a poll tax prohibited by the Twenty-fourth Amendment, clause 1. The right of citizens of the United States to vote in any primary or other election … for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
220. The constitution prohibits poll taxes, whether for the rich or the poor.
221. An indigency exception is no defense to a poll tax allegation.
222. The voting license program, unlike the 1950s era poll taxes, does not explicitly require a cash payment, and does not burden every voter.
223. But for some voters, the documents required to obtain a voting license come with a price tag.
224. Additionally, the program is replete with catch-22s that make it difficult or impossible to obtain the documents.
225. 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.
226. While Palmer already has such a voter's license, he has political association interests, 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.
Count XX
227. The voter licensing program violates the Privacy Act of 1974,5 USC 552a note 7.
228. Many potential voters have a social security number displayed on their driver's license. Not all do; it is optional.
229. Many of these potential voters have no other acceptable government issued identification.
230. At the time they obtained their driver's licenses, they were not warned that the license might be later used or misused as a voting license.
231. 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.
232. The voter licensing program doesn't do any of this.
233. Marion County and the State of Indiana tend to be lax about compliance with the Privacy Act.
235. Palmer can raise the issue because it may deter his voters and infringe his right of association, whether or not his own voting license displays a social security number.
236. Prior to the enactment of the current voting license system, Marion County attempted to coerce voters into revealing a social security number as a condition of voting, without complying with the privacy act conditions.
237. The current system extends and formalizes this invasion of privacy.
238. 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.
(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.'
Count XXI
239. The Securatex searches and seizures at city hall violate Palmer’s right to be free from unreasonable search and seizure under the 4th Amendment.
240. They violate his First Amendment right to petition the government for redress of grievances.
241. They violate his First and 14th Amendment right to vote by going to the Clerk’s office to ratify his provisional ballot.
Part II
242. This suit was filed on or about October 27 of 2006.
243. Initially, the court took no action. In November, the court denied the motion for TRO and preliminary injunction.
244. Plaintiff moved for leave to appeal and for findings of fact and law.
245. When the court did not respond to the motion for leave to appeal, plaintiff filed a notice for appeal as of right and filed an appeal with the Court of Appeals, an emergency motion for stay, and an emergency motion for transfer to the Indiana Supreme Court.
246. The Supreme Court declined transfer.
247. On the eve of the election, the Court of Appeals denied the appeal on grounds that it lacked jurisdiction because the trial court had not granted leave to appeal, and because the denial of the motion for TRO and preliminary injunction was not appealable as of right.
248. The Court of Appeals denied a petition for reconsideration.
249. The trial court granted a motion for a more definite statement, hence this filing.
250. The election was held with the voter licensing program in place.
251. Palmer’s name did appear on the ballot. He received 322 votes. Those votes have been certified.
252 Beth White was elected the new Marion County Clerk, and took office as of 1/1/2007. White automatically replaces Sadler as the defendant County Clerk in her official capacity, and is not named in her personal capacity.
253. Palmer, faced with a choice of being unable to cast a vote for himself or having to submit to an unwarranted search, opted to vote, and was searched by having to display his voter license, as he had feared.
253. Some Marion County voters were denied the vote for failure to display voting licenses.
254. Several races were so close that the outcome cannot be determined, because we don’t know how many voters would have cast votes without the voter license requirement.
255. A record high number of voters chose to use the absentee ballot method, which does not require a license, instead of voting in person.
256. Most voters are not eligible to vote absentee.
257. At least one voter, Douglas Page, was deterred from voting because his wallet had been stolen and he had been unable to obtain a replacement by the election.
258. Page is a supporter of Palmer and the candidates Palmer supports, but is not registered in the 100th district.
259. Page has, to date, been unable to obtain counsel to represent his interests.
260. After the filing of the lawsuit, Rokita’s office continued to expend federal funds for advertising the voter suppression program.
261. Approximately $2 Million was spent overall to advertise the program.
262. Palmer expects that he will again seek to vote in Marion County, and again face a decision as to which of his rights will be violated, if the court does not provide relief. He will again seek to support write-in candidates who did not meet a June deadline. He will continue to support and associate with the candidates of his party, and may or may not again be a candidate in some future election.
264. The voter ID information sheet from the Secretary of State’s office included as exhibit A in the original complaint is incorporated by reference herein.
263. The Securatex screening procedures memo included as exhibit B in the original complaint is incorporated by reference herein.
Relief sought:
Plaintiff 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 the public.
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, so that the county election board cannot assess fines they lack jurisdiction to assess,
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 expert 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 program so that those funds can be returned to the federal treasury.
He asks for all other relief as is in the interests of justice.
Respectfully Submitted,
Robbin Stewart. #47174-53
P.O.Box 29164
Cumberland IN 46229-0164
317.650.9698. 317.917.8002.
gtbear@gmail.com
-----------------------
I hereby certify that on or by January 8, 2007, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, and by email, to the following.
Ian Stewart
James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204
Elizabeth Karlson
Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204
Heather Dean
Pumphrey & Manley
450 Barrister Building
155 E Market St
Indianapolis IN 46204
Robbin Stewart.
____________________
This blog post contains the text of the first amended complaint, filed january 8th, 2007.
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Joell Palmer, )
)
Plaintiff, )
)
)
)
v. ) Cause No. 49D04-06 10-CT-044113
)
) Judge Cynthia Ayers
)
Marion County, State of )
Indiana, J. Bradley King, )
Todd Rokita, Kristi Robertson,)
Doris Anne Sadler, Beth White,)
John Doe #1-4,Jane Doe 1-3, )
Securatex, Jack Cottey, )
)
Defendants. )
FIRST AMENDED COMPLAINT
Comes now Plaintiff Joell Palmer by counsel and for his first amended complaint for damages, injunctive and declaratory relief states as follows.
1. Suit was filed October 27, 2006. Defense counsel moved, and the court ordered, for a more definitive statement. This first amended complaint is in response to that order. The first section restates the original complaint. A second section, paragraphs 242 et seq., updates events in light of the occurrence of the election.
2. Introduction: This is an action to stop a threat to the integrity of the election process.
3. Time is of the essence.
4. Defendants are attempting to engage in voter fraud, by preventing registered voters without a voting license from voting.
5. 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.
6. The open door law claim, IC 5-14-1.5-7(g) and the rules of court including TR40(A), provide a statutory basis for expedited handling.
7. A motion for a TRO and preliminary injunction has been filed to prevent irreparable harm.
8. The voting license program is challenged on a number of state and federal constitutional grounds as well as several statutory grounds.
9. Additionally, plaintiff seeks ballot access or write-in status, seeks access to the city-county building, and seeks relief from threats of campaign finance enforcement against him.
10. The voter ID program violates Article I sections 1, 9, 11, 12, 31, Article II sections 1 and 2, the First, 4th, 13th, 14th, 15th, and 24th Amendments, and the Privacy Act of 1974.
11. Jurisdiction: This court has general jurisdiction over claims arising under Indiana statutes and constitution, and federal statutes and constitution.
12. 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.
13. Parties: Plaintiff is Joell Palmer, a voter in the tenth ward, seventh precinct of Center Township in Marion County, Indiana.
14. He is the duly nominated candidate of the Libertarian Party for the 100th state representative district.
15. Defendant Marion County is a municipality and is the seat of government for Indiana.
16. The county is named as to all counts.
17. The State of Indiana is one of the 50 states in the United States federal system.
18. It is named for prospective declaratory and injunctive relief and for damages, only to the extent that it is not immune from suit based on sovereign immunity.
19. It is named on all counts, except those involving access to city hall.
20. Todd Rokita is the secretary of state.
21. He is named on all counts except those involving access to city hall.
22. The official capacity claim against Rokita is based in part on his expenditure of federal HAVA funds to promote the voter ID program.
23. 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.
13. Doris Anne Sadler is the Marion County clerk.
14. She is not a candidate for reelection. Her term expires 1/1/2007.
15. 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.
16. Jane Doe 1-3 are precinct officials in Ward 10, precinct 7 who prevented Palmer from voting in the spring election and intend to interfere with his right to vote in the fall election.
17. Securatex is a company which conducts arbitrary warrantless suspicionless searches of people who try to enter the City-County building (“city hall”) in order to cast provisional votes, or for any other reason.
18 It is headquartered in Illinois and maintains an office in Marion County at 239 E. Ohio Street.
19 Jack Cottey is an employee or agent of Securatex with expertise concerning the City-County building searches.
20. 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, for willful violations of established rights.
21. Securatex and Cottey are named only as to Counts @@@ for damages and injunctive and declaratory relief.
State Claims.
Count I
22. The voter licensing program violates the right to free elections under the Free Elections clause, Article II Section I of the Indiana Constitution.
23. The following statement of facts, paragraphs 23 to 93, is common to each count, and is incorporated by reference in each count below.
24. Following the disputed 2000 election, a coalition of Republican activists began promoting voter licensing proposals.
25. Numerous states passed some version, typically allowing a wide variety of documents, such as a utility bill.
26. Indiana, along with Georgia and Missouri, enacted highly restrictive versions, requiring state-issued documents with photos.
27. Each of these was challenged in court.
29. The Georgia and Missouri programs were enjoined as violating both state and federal constitutions.
30. The Missouri program was enjoined by the Cole County court. The injunction was upheld by the Missouri Supreme Court. A federal lawsuit remains pending.
31. The Georgia program was enjoined by a federal court. That decision was upheld by the 11th circuit. A county court also enjoined the program on state grounds.
32. The Indiana lawsuit was decided adversely 1/4/07, with a dissent by Judge Evans to an opinion by Judge Posner. The case is not yet final.
33. Indiana Democratic Party, NAACP, et al. v Rokita, http://moritzlaw.osu.edu/electionlaw/litigation/indy-dems.php, contains useful background on the facts and some of the legal issues.
34. The federal district court had denied injunctive relief.
35. A paper copy of the pleadings in Rokita will be provided to the court if requested.
36. At oral argument October 17 at the 7th Circuit, Judge Posner mentioned that he did not expect a decision before the election.
37. The Indiana 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.
38. Plaintiff Joell Palmer was prevented from voting at the spring primary and expects to be challenged from voting in the fall election.
39. Palmer is not eligible to vote absentee.
40. He is under 65 and present in the county.
41. He believes that the fall election will be invalid, unless this court acts to prevent the irreparable harm.
42. Palmer is the candidate of the Libertarian Party for the 100th state representative seat.
43. Palmer is a person who does not consent to a search, and does not waive his rights under the federal and Indiana constitutions.
44. He seeks to be able to cast his vote in the election without being subjected to an unwarranted search.
45. Palmer wants to cast a write in vote for himself, if this court does not order his name placed on the ballot.
46. If he cannot cast his vote, he is injured.
47. If votes for him are not counted, he is injured.
48. 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.
49. He was told that he is not eligible for a free ID, since he already has a driver's license.
50. For most voters, the driver's license would serve as their voting license.
51. 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.
52. He does not consent to a search, although he will cooperate with a search authorized by a valid warrant, or a search arising under exigent circumstances with probable cause.
53. He has a consistent practice of refusing to waive his constitutional rights.
54. He is a veteran of the US Army.
55. When he joined the military, he took an oath to uphold and protect the constitution against its enemies, foreign and domestic.
56. He would consider his participation in the compelled waiving of his rights under the constitution to be a violation of the oath he took.
57. His right to not consent to a search was affirmed by the United States Supreme Court in Indianapolis v. Edmond, Palmer, et al., 531 U.S. 32 (2000).
58. “Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all motorists who had been stopped or were subject to being stopped in the future at the Indianapolis drug checkpoints. 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.” 531 U.S. 32(2000)
59. The warrant requirement, subject to a few exceptions not at issue here, is well-established law that any government official should be aware of, and that citizens rely on in their interactions with government officials.
60. Palmer is personally known to or recognized by one or more of the precinct officials.
61. There was no threat of voter fraud if he had been allowed to vote without a license.
62. He is a registered voter who has been voting there for about 5 years, and has been a candidate.
63. By denying him the vote, the precinct officials engaged in voter fraud, with the result that the announced primary election results were off by at least one vote, his.
64. In one recent election in Palmer's district, three votes decided the election. Horseman v. Keller.
65. None of the spring races was close enough to be within the margin of litigation.
66. Primary 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.
67. Ward Ten, where Palmer has his strongest base of support, is characterized by poverty.
68. Many Ward Ten residents do not have drivers licenses or passports or state college ID”s or other state-issued ID’s.
69. Many do not drive.
70. Others drive without licenses.
71. Some have only forms of ID, such as school ID, bus pass, library card, social security card, utility bill, or voter registration receipt, which are not enough to allow them to vote under the new rules.
72. His major opponent, the incumbent, lives in the wealthiest part of district 100, Woodruff Place, in an area where people are more likely to have government issued ID.
73. Palmer was offered, and cast, a provisional ballot.
74. 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 to do, absent a valid warrant.
75. Secondly, he was unable to access the Marion County Election Board's office on the first floor of the City-County building (“city hall”), because Securatex, acting as an agent of the County, denies access to those like Palmer who do not consent to a search.
76. Palmer has been unable to access the City-County building since before 2001.
77. The unwarranted search of those who want to enter city hall is claimed to have been in response to the Oklahoma City bombing.
78. The screening is less invasive than a maximum full search. Citizens are asked to remove items from their pockets, which are then x-rayed.
79. Citizens then pass through a metal detector, and may be wanded and/or frisked.
80. The seizure of the person usually last less than a minute, and almost always lasts less than five minutes.
81. People are free to leave if they object in time.
82. Before permanently seizing objects, a person is usually warned that the object will be taken, and they can leave.
83. 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.
84. A secondary purpose is law enforcement, to seize contraband, such as drugs or arms, as evidence for prosecution.
85. 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.
86. The searches are conducted in a capricious and arbitrary manner, by sometimes surly employees who lack adequate training.
87. Sometimes one's wallet, coat, and belt are seized and searched, sometimes not.
88. Employees are authorized to seize anything that might be used as a weapon or to conceal a weapon – that is, anything and everything.
89. There is no recourse once an item is seized, at which point it will be destroyed.
90. When asked, employees are unable or unwilling to provide any written authority or standards for the searches and seizures.
91. A memo outlining Securatex search and seizure procedures is filed as an exhibit.
92. 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.
93. 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.
94. 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 under Article II section 1.
95. An election is equal where everyone's vote counts the same, and everyone's vote is counted.
96. His vote has not been counted, as to the spring election, and is at risk of not being counted in the fall, unless the Court acts.
97. Palmer insists, as a voter, citizen, and candidate, not only 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.
Count III
98. Plaintiff, and each other Indiana voter who is properly registered, has a vested right of a registered voter to vote per Article II section 2.
99. His right to vote was violated when he was denied a regular ballot and his provisional ballot was not counted.
100. His section 2 right will be violated if at the fall election he is prevented from voting unless and until he submits to a search and produces a valid voting license.
101. His section 2 rights will be violated if those who wish to vote for him are prevented or deterred from voting by the voting license program.
Count IV
102. Palmer's right to be free from unreasonable search under Article I section 11 was violated when, in retaliation for his refusal to consent to a search, he was denied the vote at the primary.
103. Palmer’s right to be free from unreasonable search under Article I section 11 will be violated at the fall election if he is denied a ballot unless and until he submits to a search of his voting license.
Count V
104. Palmer's right to be free from unreasonable seizure under Article I section 11 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.
105. 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.
106. Palmer's right to be free from unreasonable seizure under Article I section 11 will be violated when and if, at the fall election, he is prevented from proceeding forward to the voting booth to cast his ballot unless he consents to display a voting license.
Count VI
107. Article I section 9, the free interchange of opinion clause, is one of the Indiana Constitution's protections of free speech. It reads, Section 9: No law shall be passed, restraining the free interchange of thought and opinion….
108. Plaintiff asserts that his section 9 rights were violated when he was refused a regular ballot and his vote not counted.
109. Plaintiff asserts that his section 9 rights were violated when other voters were refused or deterred from voting in the spring and fall elections.
110. Voting is an exercise of interchange of thought and opinion.
111. The requirement that a registered voter and citizen obtain a license from the government in order to vote restrains the free interchange of opinion.
112. The requirement that a registered voter, one who is not certain that he meets the undefined indigency requirements under the statute, must pay a fee to the government in order to obtain the documents that constitute the voting license, restrains the free interchange of opinion.
Count VII
113. Article I section 9, the speak freely clause, is another one of the Indiana Constitution's protections of free speech.
114. It reads, Section 9. No law shall be passed … restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.
115. Section 9 is not an absolute bar to enacting and enforcing reasonable election regulations as authorized under article II, but does impose heightened scrutiny of restrictions on political speech.
116. Voting is a form of political expression that is restricted when the state imposes a licensing requirement as to which registered voters are allowed to vote.
117. Voting is at least as much political expression as what Colleen Price said to the police officer in Price v State.
118. Section 9 speech rights are restricted when a non-indigent registered voter must pay document fees to obtain a voting license in order to be able to vote.
119. Palmer’s section 9 rights will be violated if he is prevented from voting unless and until he submits to a search of his voting license.
120. Palmer’s section 9 rights will be violated if his potential voters are prevented or deterred from voting for him because of the voter licensing requirement.
Count VIII
121. Article I section 1 protects the right of the people to alter or abolish the government.
122. Generally, free and equal elections are the method by which such alterations can be accomplished in a calm and orderly manner.
123. Palmer has the right to attempt to oust Rokita and his faction from the government by voting, and by running for office.
124. 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.
125. Section 1 also grants a right of liberty, which is infringed here.
126. Section 1 when read in harmony with the rest of the Indiana constitution supports Plaintiff’s claim that the voter ID program is unlawful. The whole may be more than the sum of the parts.
Count IX
127. Article 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 has been found to protect voting rights.
128. Section 12 also states that the courts shall be open and provide a remedy for wrongs.
129. The voting license program violates due course of law.
130. When Palmer was prevented from voting for failure to submit to a search of his voting license, his rights under this section were violated.
131. Currently, issuance of voting licenses is handled by the Bureau of Motor Vehicles (BMV.)
132. When a person is refused a voter license by the BMV, and makes a written application for a hearing and appeal of the denial, the application is denied on the basis that the agency does not provide hearing or appeals for such denials.
133. This failure constitutes a deprivation of due course of law.
134. Palmer is injured when some of his potential voters are unable to obtain voting licenses from the BMV, and are left with no recourse.
135. Section 12 requires and authorizes this court to provide a remedy as to the issues raised.
Count X
136. Article I Section 31, Petition and assembly, was violated when Palmer was prevented from voting.
137. Palmer’s section 31 rights will be violated if he or his supporters are prevented or deterred or interfered with in attempting to vote in the fall election.
Count XI
138. Article I Section 37 prevents involuntary servitude.
139. A similar clause in the federal constitution has been held to prevent badges of slavery. Jones v Meyer.
140. 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.
141. For these reasons they decline to obtain or display voting licenses, which they regard as badges of slavery.
142. Some of these people already do not vote, but others will be deterred from voting if a badge of slavery is required.
143. 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 XII
144. Palmer, above, has expressed his objection to being denied access by Securatex to the City-County Building, unless he consents to an unwarranted arbitrary search and seizure.
145. As a person who had cast a provisional ballot in the primary, which would only be counted if he went to the Clerk’s office in the city-county building, he had a right to enter the building.
146. Palmer is a citizen who wants to be able to enter city hall to do business, pay taxes, obtain records, file documents, attend hearings, and petition the government for redress of grievances.
147. He is blocked from doing so by the requirement that citizens consent to a search in order to enter the building. He does not consent to an unwarranted search.
148. The Securatex searches violate his rights under the Indiana Bill of Rights, Article I of the Indiana Constitution, including section 11, search and seizure, section 1, liberty and the right to alter government, section 12, open courts and due course of law, section 9, free speech, and section 31, petition and assembly.
150. 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.
151. The Open Door law, IC 5-14-1.5, provides 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.
152. Defendant Cottey has participated in the unlawful searches and conspired with Securatex to violate Plaintiff’s right of access.
153. Plaintiff has sought an opinion from the state public access counselor on this issue, triggering the legal fee provisions of the open door statute.
Count XIII
154. Palmer was nominated by the Libertarian Party as its nominee for state representative district 100.
155. 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.
156. His paperwork was submitted to the election division before a June 30th deadline.
157. 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.
158. This requirement is new, has never before been enforced, and applies only to Palmer's party.
159. Palmer and the party had constructive notice, but no actual notice.
160. The requirement, so far as we know, serves no legitimate, strong, compelling, or overriding state purpose.
161. 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.
Count XIV
162. The State and County intend to refuse to count write-in votes for Palmer.
163. If Palmer's name does not appear on the ballot, one or more people intend to write in his name.
164. He wants those votes counted.
165. The refusal to count his votes is arbitrary and capricious, without legitimate or compelling state interests, and disenfranchises voters.
166. The deadline to register as a write in candidate is unconstitutionally early.
167. It violates the free and equal elections clause, article I sections 9, 12, and 31, and the first amendment and the equal protection clause and due process clauses of the 14th Amendment, among others.
168. The need for a write-in campaign often occurs late in the process.
169. For example, here, Palmer only became interested in becoming a write in candidate after he was unexpectedly denied ballot status by the state, after the write-in deadline had run.
Count XV
170. 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."
171. 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.
172. 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 raise or spend funds or 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.
173. He has not raised or spent $100 in the 2006 elections, exclusive of the filing costs of this action.
174. This count names defendants solely in their official capacity for prospective declaratory relief.
175. He relies on the text of the statute, interpreted in light of the constitutional provisions cited above and below.
Federal Claims
Count XVI
176. 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.
177. While the First Amendment is self-enforcing, ala Bivens, 42 USC 1983 et seq. vests this court with concurrent jurisdiction and authority to decide this issue, and other federal claims below. 178. 42 USC 1988 provides for the award of reasonable legal fees and costs.
Count XVII
179. The voting license program violates the right of privacy implicit in the First and Fourteenth Amendments of plaintiff and similarly situated voters.
Count XVIII
180. The voting license program violates the right of Palmer and other voters to be free from unwarranted unreasonable searches and seizures under the Fourth Amendment.
181. When he was asked to produce ID prior to voting, he asked to see the official's warrant authorizing such a search.
182. No warrant had been applied for.
183. On a previous occasion when Palmer relied on his Fourth Amendment rights, he was thrown on the hood of his car and told "You have no rights!"
184. 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 XIV
185. Palmer's right to due process of law under the Fourteenth Amendment was violated when he was prevented from voting and will be violated again if he is challenged from voting.
Count XV
196 Palmer's right to equal protection of the laws was violated by the voter licensing program, which is a poll tax of the sort found to violate equal protection.
197. This right is clearly established by Harper v Virginia Board of Elections.
Count XVI
198. The right to vote in federal elections is one of the privileges and immunities of federal citizenship protected by the Fourteenth Amendment.
199. Palmer's right to vote in a federal election may have been violated in the Spring election.
200. We don't know whether he sought to vote in the congressional primary, or only in the local nonpartisan races.
201. Due to his right to a secret ballot, counsel hasn't asked who he sought to vote for or against.
202. Palmer is politically affiliated with others who did vote, or did attempt to vote, in the federal primary election, and whose privileges and immunities were violated by being subjected to a search of their voter licenses.
203. His right to vote in a federal election under the P&I clause will be infringed in the Fall election, if not remedied.
Count XVII
204. Voting licenses, aka internal passports, aka driver's licenses, aka national identity cards, are a badge of slavery, prohibited by the Thirteenth Amendment.
205. At the time of enactment, the Thirteenth Amendment was concerned primarily with slavery by private parties.
206. During the Twentieth century, private sector slavery was reduced, but enslavement by governments became a growing threat.
207. Various identification programs were used as badges of slavery.
208. 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.
209. In South Africa, a passbook law required non-whites to carry an internal passport at all times, even in the shower.
210. The current trend is towards microchips, either embedded in government ID or under the skin.
211. The voting license program does not exist in isolation, but is part of a broad campaign by the current administration to ratchet down society’s reasonable expectations of privacy and to train citizens to routinely waive their basic civil rights.
212. 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.
213. At a minimum, such licensing greatly enhances the risk of identity theft, raising real and perceived costs of voting.
214. 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.
215. This claim is a case of first impression, and is not a clearly established right.
Count XVIII
216. The voter licensing program is intended to provide a partisan advantage to Republicans, by diluting the votes of Democrats, who, statistically will be burdened more than Republicans.
217. 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.
218. This action with foreknowledge of disparate impact states a claim under the 15th Amendment, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Count XIX
219. The voting license program is a poll tax prohibited by the Twenty-fourth Amendment, clause 1. The right of citizens of the United States to vote in any primary or other election … for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
220. The constitution prohibits poll taxes, whether for the rich or the poor.
221. An indigency exception is no defense to a poll tax allegation.
222. The voting license program, unlike the 1950s era poll taxes, does not explicitly require a cash payment, and does not burden every voter.
223. But for some voters, the documents required to obtain a voting license come with a price tag.
224. Additionally, the program is replete with catch-22s that make it difficult or impossible to obtain the documents.
225. 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.
226. While Palmer already has such a voter's license, he has political association interests, 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.
Count XX
227. The voter licensing program violates the Privacy Act of 1974,5 USC 552a note 7.
228. Many potential voters have a social security number displayed on their driver's license. Not all do; it is optional.
229. Many of these potential voters have no other acceptable government issued identification.
230. At the time they obtained their driver's licenses, they were not warned that the license might be later used or misused as a voting license.
231. 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.
232. The voter licensing program doesn't do any of this.
233. Marion County and the State of Indiana tend to be lax about compliance with the Privacy Act.
235. Palmer can raise the issue because it may deter his voters and infringe his right of association, whether or not his own voting license displays a social security number.
236. Prior to the enactment of the current voting license system, Marion County attempted to coerce voters into revealing a social security number as a condition of voting, without complying with the privacy act conditions.
237. The current system extends and formalizes this invasion of privacy.
238. 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.
(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.'
Count XXI
239. The Securatex searches and seizures at city hall violate Palmer’s right to be free from unreasonable search and seizure under the 4th Amendment.
240. They violate his First Amendment right to petition the government for redress of grievances.
241. They violate his First and 14th Amendment right to vote by going to the Clerk’s office to ratify his provisional ballot.
Part II
242. This suit was filed on or about October 27 of 2006.
243. Initially, the court took no action. In November, the court denied the motion for TRO and preliminary injunction.
244. Plaintiff moved for leave to appeal and for findings of fact and law.
245. When the court did not respond to the motion for leave to appeal, plaintiff filed a notice for appeal as of right and filed an appeal with the Court of Appeals, an emergency motion for stay, and an emergency motion for transfer to the Indiana Supreme Court.
246. The Supreme Court declined transfer.
247. On the eve of the election, the Court of Appeals denied the appeal on grounds that it lacked jurisdiction because the trial court had not granted leave to appeal, and because the denial of the motion for TRO and preliminary injunction was not appealable as of right.
248. The Court of Appeals denied a petition for reconsideration.
249. The trial court granted a motion for a more definite statement, hence this filing.
250. The election was held with the voter licensing program in place.
251. Palmer’s name did appear on the ballot. He received 322 votes. Those votes have been certified.
252 Beth White was elected the new Marion County Clerk, and took office as of 1/1/2007. White automatically replaces Sadler as the defendant County Clerk in her official capacity, and is not named in her personal capacity.
253. Palmer, faced with a choice of being unable to cast a vote for himself or having to submit to an unwarranted search, opted to vote, and was searched by having to display his voter license, as he had feared.
253. Some Marion County voters were denied the vote for failure to display voting licenses.
254. Several races were so close that the outcome cannot be determined, because we don’t know how many voters would have cast votes without the voter license requirement.
255. A record high number of voters chose to use the absentee ballot method, which does not require a license, instead of voting in person.
256. Most voters are not eligible to vote absentee.
257. At least one voter, Douglas Page, was deterred from voting because his wallet had been stolen and he had been unable to obtain a replacement by the election.
258. Page is a supporter of Palmer and the candidates Palmer supports, but is not registered in the 100th district.
259. Page has, to date, been unable to obtain counsel to represent his interests.
260. After the filing of the lawsuit, Rokita’s office continued to expend federal funds for advertising the voter suppression program.
261. Approximately $2 Million was spent overall to advertise the program.
262. Palmer expects that he will again seek to vote in Marion County, and again face a decision as to which of his rights will be violated, if the court does not provide relief. He will again seek to support write-in candidates who did not meet a June deadline. He will continue to support and associate with the candidates of his party, and may or may not again be a candidate in some future election.
264. The voter ID information sheet from the Secretary of State’s office included as exhibit A in the original complaint is incorporated by reference herein.
263. The Securatex screening procedures memo included as exhibit B in the original complaint is incorporated by reference herein.
Relief sought:
Plaintiff 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 the public.
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, so that the county election board cannot assess fines they lack jurisdiction to assess,
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 expert 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 program so that those funds can be returned to the federal treasury.
He asks for all other relief as is in the interests of justice.
Respectfully Submitted,
Robbin Stewart. #47174-53
P.O.Box 29164
Cumberland IN 46229-0164
317.650.9698. 317.917.8002.
gtbear@gmail.com
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I hereby certify that on or by January 8, 2007, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, and by email, to the following.
Ian Stewart
James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204
Elizabeth Karlson
Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204
Heather Dean
Pumphrey & Manley
450 Barrister Building
155 E Market St
Indianapolis IN 46204
Robbin Stewart.
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