Tuesday, February 27, 2007

this is the defendant's motion for summary judgment.
I would welcome feedback, I have to file a response in a couple weeks.

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 1 of 29


Plaintiff, )
CASE NUMBER: 1:08-cv-586-LJM-TAB
Defendants, )

Intervenor. )


I. Introduction
Plaintiff Robbin Stewart seeks relief against the statutory requirement
that a person appearing at the polls to vote on election day present
government-issued photographic identification. He has a driver’s license but
objects to presenting it in order to cast his vote.
The statute requiring identification was enacted in 2005. P.L. 2005-109.
Plaintiff sought and this court denied a preliminary injunction prior to
the 2008 fall general election.
In its order, the court summarized Indiana’s
voter identification law as follows:

In general terms, the Voter ID Law requires citizens voting in-
person at precinct polling places on election day to present election
officials with valid photo identification issued by the United States or the
State of Indiana. Ind. Code § 3-11-8-25.1. The photo identification must
contain the following information and meet the following conditions:

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(1) A photograph of the individual to whom the “proof of
identification” was issued;
(2) The name of the individual to whom the document was issued,
which “conforms to the name in the individual’s voter registration
(3) An expiration date;
(4) The identification must be current or have expired after the date
of the most recent general election; and
(5) The “proof of identification” must have been “issued by the
United States or the [S]tate of Indiana.”
Ind. Code § 3-5-2-40.5.

An individual denied the right to vote due to lack of photographic
identification can sign an affidavit attesting to the citizen’s right to vote
in that precinct, which gives the individual the right to cast a provisional
ballot. Ind. Code § 3-11-8-25.1(e).

Plaintiff claims that his vote was denied in 2006 and that during
the primary held in May 2008, he tried to vote but was refused the
opportunity without valid photographic identification. Plaintiff proceeded
to fill out an affidavit and submitted a provisional ballot. According to
Plaintiff, that provisional ballot has not been counted. Plaintiff claims
many other voters’ provisional ballots have not been counted for the
same reason. Additionally, Plaintiff claims that he will not be able to vote
in the upcoming general election due to the Voter ID Law. Plaintiff
currently has a valid, Indiana-issued photographic identification.

Order on plaintiff’s motion for temporary injunctive relief, docket no. 34, pp. 1

2 (footnote omitted). As the court observed in a footnote, the law was
discussed at length in Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775
(S.D. Ind. 2006).
II. Claims in the Petition
Plaintiff claims that the statute violates Article II, §§ 1 and 2 of the
Indiana Constitution by adding qualifications to vote and making elections
other than free and equal, the 24th Amendment to the federal Constitution
because the identification requirement is a poll tax, the 1st Amendment

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because the right to petition government is impinged, the 4th Amendment and
also Article I, § 11 of the Indiana Constitution because the requirement
constitutes an unlawful search and the 14th Amendment because equal
protection and both substantive and procedural due process are denied.
The plaintiff seeks declaratory relief, an injunction against the Voter ID
Law and damages.

Defendants (which includes the intervenor State of Indiana for purposes
of this motion) are entitled to summary judgment in their favor because the law
is constitutional in all things.1 All of plaintiff’s federal claims have been
resolved against him in Crawford v. Marion County Election Bd., 128 S.Ct. 1610
(2008), Crawford v. Marion County Election Bd., 472 F.3d 949, 951 (7th Cir.
2007), and Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D. Ind.
2006). His state law claims do not withstand scrutiny, and even if they did
they would not entitle him to damages. Therefore, summary judgment should
be entered in favor of all defendants.

1 The Indiana Court of Appeals recently held the ID requirement
unconstitutional under the state constitution. League of Women Voters of
Indiana, Inc. v. Rokita, 915 N.E.2d 151 (Ind. Ct. App. 1009). However, the Indiana
Supreme Court has granted transfer, which vacates the lower court’s opinion. Ind.
Appellate Rule 58(A). That decision was based on the Indiana constitution, Article I,
Section 23, a claim not made by the plaintiff in his complaint. He tried to add a claim
under that provision but was denied leave to amend after so much had happened in the

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III. Designation of Evidence Relied Upon
The defendants designate and rely upon the complaint and supplement
and upon the plaintiff’s deposition taken January 12, 2009 (hereafter “Dep.”).
The deposition is filed with this memorandum.

IV. Statement of Material Facts Not in Dispute
1. Plaintiff was not allowed to vote in the 2006 primary and general
elections because he refused to display acceptable identification. Dep., p. 10 l.
19 – p. 11 l. 7; p. 16, l. 24 – p. 17, l. 12.
2. Plaintiff had an Indiana driver’s license in his possession at that
time. Dep., p. 15, ll. 17-21.
3. Plaintiff has a driver’s license. Dep., p. 8, ll. 11-17; p. 28, ll. 5-9.
4. Plaintiff’s driver’s license does not have his social security number
on it. Dep., p. 8, ll. 16-19.
5. Plaintiff owns more than one vehicle. Dep. p. 8, ll. 1-6.
6. Plaintiff drives to his post office box in Cumberland when he does
not ride the bus. Dep., p. 6, ll. 15-17; p. 7, ll. 8-11.
7. Plaintiff was not allowed to vote in the 2008 elections because he
refused to display acceptable identification. Dep., p. 18, ll. 15-24; p. 19, ll. 1113,
p. 21, ll. 6-17; p. 48, l. 5 – p. 49, l. 5.
8. Plaintiff’s refusal to display acceptable identification in order to
vote is not based on his religion. Dep., p. 35, ll. 9-14.
9. Plaintiff will decline to show acceptable identification to be allowed
to vote for the rest of his life. Dep., p. 50, ll. 10-12.

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V. Legal Standard under Rule 56.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is proper only if a moving party demonstrates that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of
law. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986); Anderson v.
Liberty Lobby Inc., 477 U.S. 242 (1986); Certain Underwriters of Lloyd's v.
General Accident Ins. Co. of America, 909 F.2d 228, 231 (7th Cir. 1990); Walter

v. Fiorenzo, 840 F.2d 427 (7th Cir. 1988); Roman v. U.S. Postal Services, 821
F.2d 382 (7th Cir. 1987). “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247-48. The substantive law underlying
the claim will identify which facts are material, and “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id. at 248.
The party opposing a properly supported motion for summary judgment
cannot rely upon the mere allegation or denials of his pleadings. If he would
bear the burden at trial on the matter that forms the basis of the motion, the
opposing party must set forth specific facts showing that there is a genuine
issue for trial. Rule 56(e), Fed.R.Civ.P.; Lujan v. National Wildlife Federation,
497 U.S. 871, 874 (1990). “[T]here is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that
party. . . . If the evidence is merely colorable, . . . or is not significantly


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probative, . . . summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted); see Harbor House Condominium Ass'n v.
Massachusetts Bay Ins. Co., 915 F.2d 316, 320 (7th Cir. 1990); Hines v. British
Steel Corp., 907 F.2d 726, 728 (7th Cir. 1990). If the nonmoving party fails to
establish the existence of an essential element of its case on which it bears the
burden of proof at trial, summary judgment is appropriate. “In such a
situation, there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S.
at 322-23; see Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256
(7th Cir. 1990); Tatalovich v. City of Superior, 904 F.2d 1135, 1142 (7th Cir.
1990). A nonmoving party who fails to establish an essential element of her
case may not survive summary judgment because all other facts are
necessarily immaterial. Celotex, 477 U.S. at 322-23.

VI. Defendants are Entitled to Judgment as a Matter of Law
A. Lack of standing
Plaintiff lists multiple theories of recovery, which will be addressed
individually. But there is first an issue of standing. As defendants argued in
response to the request for a preliminary injunction, and as the court observed
in denying temporary relief, plaintiff makes grandiose complaints that have
nothing to do with the facts of his case. For example, he complains that people
should not have to display their social security numbers in order to vote, but
the undisputed facts, above, show that there is no social security number

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showing on plaintiff's driver’s license. His complaints about having to get a
driver’s license at all are equally hollow. He has a driver’s license and uses it to
drive and owns multiple vehicles. Therefore, he has no standing to make
complaints about getting a driver’s license in order to be able to vote or about
having to display his social security number at the polls.

This is not a class action, nor could it be. Although the plaintiff has
been an attorney in the past, he is not currently an attorney in Indiana,
according to the online Roll of Attorneys. And he’s never asked for class action
status in any event.

This plaintiff lacks standing to complain about the request for or display
of social security numbers to vote.
At the core of the standing doctrine is the requirement
that a plaintiff "allege personal injury fairly traceable to
the defendant's allegedly unlawful conduct and likely to
be redressed by the requested relief. Allen v. Wright,
468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d
556 (1984), citing Valley Forge Christian College v.
Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).
County of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991). No claim of
personal injury to the plaintiff is made in this case as it relates to social
security numbers. Because the plaintiff’s social security number is not on his
driver’s license, that issue is not before this court.

Standing is not merely a rule of convenience, it is a constitutional
requirement for establishing the jurisdiction of this court. There is no standing

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as to claims relating to display of a social security number. Therefore, that
much of the complaint should be dismissed.

B. The Voter ID Law Does Not Violate
Article II the Indiana Constitution
Article 2, § 2 of the Indiana Constitution provides that every “citizen of
the United States who is at least eighteen years of age and who has been a
resident of a precinct thirty days immediately preceding such election, shall be
entitled to vote in that precinct[.]” Plaintiff claims the State’s Voter ID Law
violates this provision by creating an additional qualification to vote. The Voter
ID Law is a regulation of election procedures designed to protect fair elections,
not an alteration of voter qualifications, and Indiana Supreme Court doctrine
forecloses this challenge. Therefore, defendants are entitled to judgment in
their favor as a matter of law.

1. The Voter ID Law advances the Indiana Constitution’s
guarantee of “free and equal” elections
The General Assembly’s power to regulate elections and voting is
grounded in the Indiana Constitution and is implicit in other accepted
regulations. The power of the General Assembly to regulate election
procedures arises not only from its general police power, but also from Article
2, § 1 of the Constitution, which provides that “All elections shall be free and
equal,” and Article 2, § 14, which provides that “the General Assembly . . . shall
provide for the registration of all persons entitled to vote.”

It is said elections are free when the voters are subject to no intimidation
or improper influence, and when every voter is allowed to cast his ballot
as his own judgment and conscience dictate. That they are equal when
the vote of every elector is equal in its influence upon the result to the

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vote of every other elector; when each ballot is as effective as every other

Blue v. State ex rel. Brown, 206 Ind. 98, 188 N.E. 583, 589 (1934) (overruled on
other grounds).

Article II § 1 notwithstanding, the Indiana General Assembly has wide
latitude to adopt reasonable voting regulations. Indeed, “[i]t is for the
Legislature to furnish a reasonable regulation under which the right to vote is
to be exercised, and it is uniformly held that it may adopt registration laws if
they merely regulate in a reasonable and uniform manner how the privilege of
voting shall be exercised.” Id. The Indiana Supreme Court has held that these
clauses serve as grants of power to the General Assembly to promulgate
election laws to regulate and uphold the legitimacy of elections in the state.
Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14, 18 (1922). Inherent in the
requirement of holding “free and equal” elections lies the power of the state to
protect the rights of citizens to a fair and reliable electoral system in which
their individual votes are not diluted by the fraudulently cast votes of others.
“When the ballot box becomes the receptacle of fraudulent votes, the freedom
and equality of elections are destroyed.” Id.

The Voter ID Law directly advances the constitutional guarantee of “free
and equal” elections articulated in Article 2, § 1 of the Indiana Constitution.
By preventing voter fraud, the identification requirement ensures compliance
with the Article 2, § 1 mandate that each vote equally influence the result of an
election. Each fraudulently cast vote dilutes the influence that each

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legitimately cast vote has on the election’s outcome. “[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.” Reynolds
v. Sims, 377 U.S. 533, 555 (1964). The Voter ID Law prevents fraudulently
cast votes and thereby protects each citizen’s individual rights under Article 2,
§ 1 of the Indiana Constitution.
2. The Voter ID Law is not a voter “qualification”
The Voter ID Law is not an “additional qualification” for voting as plaintiff
claims. It is merely a method of verifying the identity of a registered voter—the
most fundamental, pre-existing voter-eligibility criterion. The framers of the
United States Constitution themselves understood a distinction between laws
establishing voter qualifications and those that merely regulate election
procedure. Alexander Hamilton, discussing Article 1, Section 4 of the
Constitution (known as the Elections Clause), distinguished between “[t]he
qualifications of the persons who may choose,” which are “defined and fixed in
the Constitution, and are unalterable by the legislature,” and authority over
“the manner of elections,” where States have primacy. The Federalist No. 60,
at 394 (Alexander Hamilton) (Modern Library Coll. ed. 1937).

In the same way, the United States Supreme Court has distinguished
voter qualification laws, which are suspect and often subjected to strict
scrutiny, from fraud-prevention procedures, which are permissible and
subjected to much lighter scrutiny. See, e.g., Rosario v. Rockefeller, 410 U.S.
752, 757 (1973) (upholding advance voter registration requirement); Marston v.

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Lewis, 410 U.S. 679, 680 (1973) (upholding Arizona’s 50-day voter registration
and residency requirements and stating that “[s]tates have valid and sufficient
interests in providing for some period of time—prior to an election—in order to
prepare adequate voter records and protect [their] electoral processes from
possible frauds”). In Rosario, the Court described qualification laws as those
laws that “totally denied the electoral franchise to a particular class of
residents, and there was no way in which the members of that class could have
made themselves eligible to vote.” Rosario, 410 U.S. at 757. But with
procedural rules, responsibility lies with voters: “[I]f their plight can be
characterized as disenfranchisement at all, it was not caused by [the law], but
by their own failure to take timely steps to effect their enrollment.” Id. at 758.
The Voter ID Law falls squarely into the latter category.

The two opinions upholding the Voter ID Law in Crawford v. Marion
County Election Board, 128 S.Ct. 1610 (2008), each embraced the notion that
the Voter ID Law is a procedural election regulation and not a substantive voter
qualification. In finding the Voter ID Law valid, Justice Stevens (writing for
himself, the Chief Justice, and Justice Kennedy) and Justice Scalia (writing for
himself and Justices Thomas and Alito) both describe the Voter ID Law as a
“neutral” or “generally applicable nondiscriminatory regulation of voting
procedure.” Crawford, 128 S.Ct. at 1623, 1625. Not even Justices Souter and
Breyer, who dissented in Crawford, could bring themselves to subject the Voter
ID to strict scrutiny—the standard generally applicable to voter qualification
laws. See id. at 1628, 1643.
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The Voter ID Law is no more an “additional qualification” than requiring
voters to register, to vote in person, or to identify themselves by any method at
all. Surely all would agree that some identification requirement at the polls is
necessary, and no principled distinction separates the Voter ID Law from the
identification requirements—including announcing one’s name and providing
one’s signature on the poll book—that existed prior to its enactment.
Nonetheless, under the plaintiff’s theory, these formerly utilized identification
requirements should be viewed as impermissible “qualifications” as well.
Taking the plaintiff’s argument to its logical conclusion, therefore, a voter
should be able to walk into a polling place, request a ballot and vote without
having to identify himself in any way.

Indeed, if the Voter ID Law—or any identification requirement, for that
matter—is a “qualification,” then any other regulation that may prevent an
eligible voter from casting a ballot and having it counted could also be deemed
an impermissible “qualification” under the League’s theory. For example,
Indiana Code § 3-11-8-11 provides that voters must be in the chute when the
polls close in order to be able to vote. However, while Article 2, § 14 specifies
the day on which elections must be held, it does not limit the hours that polls
must be open. Accordingly, if the line to vote extends beyond the chute at the
time the polls close on election day, an eligible voter standing in that line may
be denied the right to vote by operation of a procedural regulation not
specifically authorized by the Indiana Constitution. Yet surely no one would
question the validity of regulating the hours that polls are open—or even the
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validity of requiring voters to cast their ballots in-person at the polls (rather
than, say, by mail), which also is not specifically authorized by the State

Other procedural regulations that could potentially prevent an eligible
voter from casting a ballot—and that would be constitutionally suspect under
the plaintiff’s theory of this case—include limits on the amount of time a voter
may spend in the polling booth (Ind. Code §§ 3-11-11-10.5, 3-11-13-32.5, 311-
14-26 to -28) and the prohibition against divulging one’s ballot after
marking it but before casting it (Ind. Code §§ 3-11-11-16, 3-11-13-32.8, 3-1114-
29). Surely, however, these long-accepted, reasonable regulations, which
exist to facilitate the administration of free and equal elections, cannot be
considered unlawful simply because they are not specifically authorized by
Section 2 or any other constitutional provision. Just as these laws place no
additional or improper “qualifications” on voters, neither does the Voter ID Law.
Courts have already decided that regulations of voting procedure
do not violate Article 2, § 2 of the Indiana Constitution.
The Supreme Court of Indiana, the United States District Court for the
Southern District of Indiana, and the United States Court of Appeals for the
Seventh Circuit have already rejected the notion that election regulations are
unconstitutional if not specifically enumerated in Article 2, § 2 of the Indiana
Constitution. See Simmons, 136 N.E. at 18 (holding that Indiana voter
registration requirements do not violate Article 2, § 2); Blue, 188 N.E. at 585-86
(holding that lack of registration provision for absentee or sick voters does not
constitute a violation of Article 2, § 2); Ind. Democratic Party v. Rokita, 458 F.
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Supp.2d 775, 843 (S.D. Ind. 2006) (holding that the Indiana Voter ID Law does
not violate Article 2, § 2 of the Indiana Constitution), aff’d, 472 F.3d 949 (7th
Cir. 2007).
The Indiana Supreme Court specifically rejected in Simmons the
plaintiff’s theory in this case. There, the Court upheld the voter registration
requirement against a challenge under Article 2, § 2, holding that Article 2, §
14 and Article 2, § 2 were not in conflict and rejecting the argument that § 2
provided an exhaustive list of possible impediments to voting. Simmons, 136
N.E. at 17-18. In so doing, the Court set a very high standard for challenges to
voting regulations brought on State Constitution grounds: “The legislature has
the power to determine what regulations shall be complied with by a qualified
voter in order that his ballot may be counted, so long as what it requires is not
so grossly unreasonable that compliance therewith is practically impossible.”
Id. at 18. In other words, while the legislature may not place additional
qualifications on voting, it may regulate the way in which the existing
qualifications set forth by Article 2, § 2 are verified and administered. The
enactment of the Voter ID law is an entirely appropriate and constitutionally
permissible exercise of that discretion. It is well within the power of the
General Assembly to require that voters prove their identities before being
permitted to vote.
Indeed, the Voter ID Law is precisely the sort of regulation contemplated
by Simmons and is certainly neither “grossly unreasonable” nor “practically
impossible” to comply with. Today, government-issued photo identification is
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universally accepted as proof of identification. Photo identification is necessary
in order to drive an automobile, board an airplane, enter a federal courthouse,
rent a car, cash a check, open a financial account or engage in any number of
other common daily transactions. In short, photo identification is necessary to
function in society on a daily basis. See Crawford v. Marion County Election
Bd., 472 F.3d 949, 951 (7th Cir. 2007) (“[I]t is exceedingly difficult to maneuver
in today’s America without a photo ID.”). Among all the possible ways to
identify individuals, government-issued photo identification has come to
embody the best balance of cost, prevalence and integrity.

Accordingly, rather than creating an entirely new system of identification,
the legislature, through the Voter ID Law, sought to improve fraud prevention
by relying on a system already in place—standard, government-issued photo
identification. The vast majority of voters, including the plaintiff, already
possess such identification and thus comply with the Voter ID Law without
even trying. See id. at 950 (“The new law’s requirement . . . is no problem for
those who have [a driver’s license or a passport], as most people do”); see also
Indiana Democratic Party, F.Supp.2d at 807. Those who do not already possess
the necessary identification may obtain a free non-license photo identification
card from the BMV. Ind. Code § 9-24-16-10. Plaintiff chose, for reasons that
can have nothing to do with voting, to get a driver’s license. When he was
without a license, he could have gotten a free identification card upon proof of
who he is. He was interested, it appears, in driving, and decided to get a
driver’s license that also is acceptable as identification at the polls.
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Even then, a voter who is unable to obtain the required identification
prior to election day or simply forgets to bring his photo ID to the polling place
may sign an affidavit attesting to his right to vote in that precinct, sign the poll
book, and cast a provisional ballot. Ind. Code § 3-11-8-25.1(d). Plaintiff says
he has done so in the past. A voter who casts a provisional ballot may appear
before the circuit court clerk or county election board by noon ten days
following the election and prove the voter’s identity. Ind. Code § 3-11.7-5-1. If
by that time the voter provides acceptable photo identification and executes an
affidavit that the voter is the same individual who cast the provisional ballot,
then the voter’s provisional ballot will be opened, processed, and counted so
long as there are no other non-identification challenges. Ind. Code §§ 3-11.7-51;
3-11.7-5-2.5. Voters may also validate their provisional ballots by executing
an affidavit that the person is the same person who cast the provisional ballot
and either (1) the person is indigent and is “unable to obtain proof of
identification without payment of a fee;” or (2) has a religious objection to being
photographed. Ind. Code §§ 3-11.7-5-1; 3-11.7-5-2.5(c).

Thus, the Voter ID Law simply requires voters to produce a form of
identification that (1) most of them, including this plaintiff, already possess
and (2) is easily obtainable by those who do not. Even those voters who cannot
comply with the law on the day of the election are given the opportunity to cast
a provisional ballot, which they are then given a generous amount of time to
validate. Accordingly, the Voter ID law is in no way “grossly unreasonable” and
compliance with its requirements is certainly not “practically impossible.” It is
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instead a valid and reasonable means of enforcing the requirements for voting
set forth by Article 2, § 2.

C. The Voter ID Law is not a
Poll Tax Prohibited by the 24th Amendment
The claim that the Voter ID Law is an invalid poll tax was soundly and
thoroughly rejected in Crawford, supra. The Court held that the Voter ID Law
is not a tax and passes constitutional review because a free voter identification
card is available. The Seventh Circuit was even more clear and concise on this
point: “The Indiana law is not like a poll tax.” Crawford, 472 F.3d at 952. The
Voter ID Law is no more a poll tax than is the cost of getting to the polls or to
the Clerk’s Office to vote absentee.

D. The Voter ID Law does not Violate the First
Amendment or Article I, § 11 of the Indiana Constitution
Plaintiff claims that the Voter ID Law violates the First Amendment. The
contention that there is a First Amendment violation was flatly rejected by
Judge Barker. Indiana Democratic Party v. Rokita, 458 F.Supp.2d 775, 820-21
(S.D.Ind. 2006). The Seventh Circuit stated that as to the matters it did not
address directly, “Regarding the plaintiffs' other arguments, we have nothing to
add to the discussion by the district judge.” 472 F.3d at 954. Therefore, that
court endorsed the conclusion by Judge Barker that there is no First
Amendment infirmity in the voter ID Law. The same logic that shows there is
no First Amendment violation shows that there is no violation under Article 1,
Section 9 of the Indiana Constitution, which addresses free thought, speech


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and opinion. No valid claim is present and the defendants should be granted
summary judgment..

The Voter ID Law does not Violate the Fourth Amendment
or Article I, § 11 of the Indiana Constitution
Plaintiff claims that he cannot be asked for identification in the absence
of probable cause that would support a warrant. That is incorrect. A routine
request for identification is not a “seizure” for Fourth Amendment purposes.
See United States v. Rodriguez, 69 F.3d 136, 141-42 (7th Cir. 1995).

The plaintiff is not objecting to having to provide his name or his
address, both common requests when presenting to vote. Both are necessary
to make sure that the person in the polling place is not stealing someone else’s
vote. In the usual polling place, both name and address are presented multiple
times. Plaintiff’s complaint is only about having to produce a government-
issued photo identification, not about having to identify himself. Once one
concedes that the plaintiff can be required to identify himself in order to vote,
the argument is about the form of identification and not the requirement of
identification itself. The need for identification of some form is conceded,
compelling and reasonable. There is no “seizure” and there is no “search;”
there is merely a reasonable requirement of proving that you are eligible to vote
and that you are the one who is casting or has cast the ballot. The production
of a driver’s license or free voter identification card is merely the means to the
legitimate end and is not a seizure or a search.

There is no seizure or search and therefore no Fourth Amendment issue
or issue under the Indiana Constitution. The requirement of identifying oneself


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is reasonable, so the statute passes scrutiny under the Indiana Constitution.
There is no likelihood of success and the preliminary injunction should be

F. The Voter ID Law does not Violate the Fourteenth Amendment
Plaintiff next claims that the Voter ID Law violates due process and equal
protection. Again, he is incorrect.

The due process claim focuses on the facts that some potential voters
allegedly have trouble getting a voter ID card issued on the first trip to the BMV
and his own journey to get a replacement identification. Those points are all
moot as to the plaintiff because he has a driver’s license that he can use to be
identified at the polls. And plaintiff lacks standing to raise claims for others.

The same is true about the claim that some older driver’s licenses still
have social security numbers on them—there is no claim that the plaintiff’s
recently issued license has a social security number on it and he confirms in
his deposition that it does not.

The equal protection claim, found in paragraph 81 of the complaint, is
that the requirement constitutes “a poll tax of the sort found to violate equal
protection.” That is simply wrong, for the reasons stated above. The Voter ID
Law is not a poll tax at all, let alone a poll tax that violates the equal protection
clause. As the Supreme Court held in Crawford, the Indiana Voter ID Law is
an even-handed rule protecting the right to vote and providing for orderly
administration of elections and accurate recordkeeping. As the Seventh Circuit
also held in Crawford, the Indiana law is not like a poll tax. Because it is


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“even-handed” and “not like a poll tax,” the law does not discriminate and there
is no violation of equal protection.

G. Article 1, Section 1 of the Indiana
Constitution provides no enforceable right
Lastly, plaintiff relies on Article 1, Section 1, of the Indiana Constitution,
which addresses Natural Rights.

The Indiana Supreme Court cast serious doubt that Section 1 is a self-
executing provision capable of judicial enforcement rather than an
unenforceable expression of the general principles that animate our
Constitution. See Doe v. O’Connor, 790 N.E.2d 985, 989-91 (Ind. 2003). In
Doe, the Court called Section 1’s enforceability into question and compared
Section 1 to similar provisions in other states’ constitutions that have been
deemed not to create any judicially enforceable rights. Id. Because there is no
enforceable right under Section 1, the defendants are entitled to summary
judgment on this issue as well.

H. There is no violation of the Privacy Act of 1974
Plaintiff’s claims that the Voter ID Law violates the Privacy Act of 1974, 5

U.S.C. § 552a, relates to the claim that “many potential voters have a social
security number displayed on their driver’s license.” Complaint, ¶ 99.
Requiring those voters to show their social-security-displaying license in order
to vote is allegedly a violation of the Privacy Act. Complaint, ¶¶ 98-108.
Assuming but not conceding that requiring a person to show a document that
may or may not have a social security number on it would violate the Privacy
Act as to someone, that statute is irrelevant as to plaintiff because, as shown in

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the uncontested facts, above, his driver’s license does not carry his social
security number. Therefore, he has no valid complaint and the defendants are
entitled to judgment in their favor as a matter of law.

I. Damages are not available
1. Defendants Marion County and Beth White
Are Immune From Plaintiff’s Federal Claims Because
They Were Acting as an Instrumentality of the State of Indiana

Defendants Marion County and Beth White are immune from Plaintiff’s
claims that the Indiana Voter Identification Law violated federal law because
the Defendants were acting as instruments of the state. Suits against a state
are barred by the Eleventh Amendment of the United States Constitution
unless the state consents to the suit or Congress uses its powers under the
Fourteenth Amendment to abrogate the state’s immunity. See Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985). Similarly, suits against state
officials in their official capacity are barred in the same manner as such suits
are considered to be against the state. See Kentucky v. Graham, 473 U.S. 159,
169 (1985).

When a municipal officer is performing state functions, they are clothed
in the state’s sovereign immunity. See Scott, 975 F.2d at 372 (Illinois sheriff
acts for state when serving judicial writ of assistance); see also Carter v. City of
Philadelphia, 181 F.3d 339, 353 (3rd Cir. 1999) (“municipal law enforcement
officials may be State officials when they prosecute crimes or otherwise carry
out policies established by the State, but serve as local policy makers when
they manage or administer their own offices.”). An “understanding of the


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actual function of a governmental official, in a particular area, will necessarily
be dependent on the definition of the official’s functions under relevant state
law.” McMillian v. Monroe County, 520 U.S. 781, 786 (1997).

In Indiana, the counties and county election officials act as arms of the
state when they oversee elections. Indiana elections laws are administered by
the Indiana Election Commission. Ind. Code § 3-6-4.1-14(a)(1). That duty
includes the responsibility to “exercise supervision over local election and
registration officers.” I.C. § 3-6-4.1-14(a)(4). Additionally, state law requires
the creation of the county election boards and instructs them to “[c]onduct all
elections and administer the election law within the county [with an exception
for town elections].” I.C. § 3-6-5-14(a)(2). State law also requires the circuit
court clerk to act as the clerk of the election board. I.C. §§ 3-6-5-18, 3-6-5-19.
The county election board is required to investigate violations of Indiana
election law. I.C. § 3-6-5-31. If the election board fails to follow and enforce
the state election law, courts are required to force adherence through an
injunction or other order. See I.C. § 3-6-5-32 (emphasis added). Thus, the
county through its election board and the county clerk are mere instruments of
the state, bound to adhere to state election laws.

Plaintiff’s suit alleges that Marion County and the Marion County Clerk,
in her official capacity, violated the federal constitution and other federal laws
in various manners by complying with the state Voter Identification Law. Dkt.
1, Complaint at ¶¶ 13, 74-108. The County and Clerk’s involvement in
elections is mandated by state law and is controlled by state law through Title


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Three of the Indiana Code. All actions undertaken by the County or the
County Clerk to enforce the Voter Identification Law were compelled by state
statute. See I.C. §§ 3-6-5-14, 3-11-8-25.1. One of the election laws imposed
upon the county is the requirement to enforce the statutory requirement that
each voter “shall” present identification. I.C. § 3-11-8-25.1. Failure to comply
with that law would have required a judge to order compliance. See I.C. § 3-65-
32. Therefore, Marion County and the Marion County Clerk were acting as
instruments of the state and are entitled to the state’s Eleventh Amendment
Immunity from these claims.

Defendants recognize that the Defendants’ immunity does not bar
Plaintiff’s request for prospective injunctive relief. “An exception to [Eleventh
Amendment immunity for state actors] is an official-capacity suit for
prospective injunctive relief: a suit ‘to enjoin as unconstitutional a state
official's action is not barred by the Amendment.’” Scott v. O'Grady, 975 F.2d
366, 369 (7th Cir. Ill. 1992) (quoting Papasan v. Allain, 478 U.S. 265, 276 (U.S.
1986)); see also Ex parte Young, 209 U.S. 123, 159-60 (1908). Thus, this
doctrine bars all federal claims except Plaintiff’s requests that Clerk White forgo
future enforcement of the voter identification requirement.

2. Plaintiff Cannot Raise Federal Civil
Rights Claims Against Marion County or the
Marion County Clerk for Actions Compelled by State Law
Neither Marion County nor Marion County Clerk Beth White can be held
liable under 42 U.S.C. section 1983 for enforcing the Indiana’s Voter
Identification Law. In analyzing a civil rights claim against a municipality, the


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first inquiry “under § 1983 is the question whether there is a direct causal link
between a municipal policy or custom and the alleged constitutional
deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v.
New York City Dept. of Social Services, 436 U.S. 658 (1978)). A municipality
can only be found liable under section 1983 “where the municipality itself
causes the constitutional violation at issue.” Id. (emphasis in original). A
municipality cannot be liable for mere enforcement of a state law. Bethesda
Lutheran Homes & Servs. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) (finding a
county “cannot be held liable under section 1983 for acts that it did under the
command of state or federal law”); Surplus Store & Exchange, Inc. v. Delphi, 928
F.2d 788, 791 (7th Cir. 1991).

In Surplus Store & Exchange, the Seventh Circuit explained why a local
governmental unit’s mere adherence to a state law cannot support a Monell

It is difficult to imagine a municipal policy more innocuous and
constitutionally permissible, and whose causal connection to the
alleged violation is more attenuated, than the "policy" of enforcing
state law. If the language and standards from Monell are not to
become a dead letter, such a "policy" simply cannot be sufficient to
ground liability against a municipality for actions which they were
compelled to perform under state law.

928 F.2d at 791-92.

The policy at issue in the present litigation is a state statute requiring
that each voter “shall” present identification. I.C. § 3-11-8-25.1. This policy
was enacted by the Indiana State Legislature. See Indiana Senate Enrolled Act
No. 483, 2005 Ind. Acts pg. 2005. The Defendants were compelled to comply


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with enforcement of the voter identification requirement. See §§ 3-6-5-14, 3-65-
32, 3-11-8-25.1. Thus, Defendants have no liability under section 1983 as
they were merely enforcing a state law. Surplus Store & Exchange, 928 F.2d at

Plaintiff cannot seek monetary damages for alleged violations of the
Indiana Constitution
Plaintiff cannot state a claim for damages under the Indiana
Constitution. Plaintiff purports to allege various violations of the Indiana
Constitution. Complaint ¶¶ 45-73. For relief, Plaintiff asks for damages
“including compensatory, consequential and actual damages and punitive
damages[.]” Complaint at pg. 14. However, no damages are permitted for
violations of the Indiana Constitution.

The Indiana Supreme Court has found that “[t]here is no explicit
language in the Indiana Constitution providing any specific remedy for
violations of constitutional rights.” Cantrell v. Morris, 849 N.E.2d 488, 499
(Ind. 2006). Lower Indiana Courts are even clearer. “No Indiana court has
explicitly recognized a private right of action for monetary damages under the
Indiana Constitution.” Smith v. Ind. Dep’t. of Corr., 871 N.E.2d 975, 985 (Ind.
Ct. App. 2007). The Indiana Constitution itself contains no explicit language
giving rise to a specific remedy for damages for violations to constitutional
rights, and, while a federal constitutional violation is actionable under 42

U.S.C. section 1983, Indiana has no comparable statutory provision creating

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an explicit civil remedy for constitutional violations. Cantrell, 849 N.E.2d at

This Court has previously recognized that a Plaintiff cannot seek
damages under the Indiana Constitution. Fidler v. City of Indianapolis, 428
F.Supp.2d 857, 865 (S.D. Ind. 2006); see also Estate of O’Bryan v. Town of
Sellersburg, 2004 U.S. Dist. LEXIS 10160, *64 (S.D. Ind. 2004); Willits v. Wal-
Mart Stores, Inc., 2001 U.S. Dist. LEXIS 25778, *44-45 (S.D. Ind. 2001); Baker

v. Washington Bd. of Works, 2000 U.S. Dist. LEXIS 21236, *24-28 (S.D. Ind.
2000). Any change in law allowing damages under the Indiana Constitution
must come from “the Indiana courts, not by a federal court whose duty is to
apply existing Indiana law.” Estate of O’Bryan, 2004 U.S.Dist. LEXIS 10160 at
*64. Therefore, Plaintiff’s claims based on alleged violations of the Indiana
Constitution are limited to injunctive relief. See Baker, 2000 U.S. Dist. LEXIS
21236, *27-28.
4. Plaintiff has no Damages
Plaintiff is also not entitled to relief on his civil rights claims because he
has no damages. In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court
established that compensatory damages under 42 U.S.C. section 1983 must be
based on actual injuries. Id. at 255-58. A Plaintiff “can recover compensatory
damages only if he proved actual injury caused by the denial of his
constitutional rights.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307

(U.S. 1986). Where no injury is present, no compensatory damages can be
awarded. Id.

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In his deposition, Plaintiff explained that he was damaged because the
identification requirement violated “certain [unenumerated] rights” in the
“Declaration of Independence and in the Indian Bill of Rights[.]” Dep., p.
34:18-25. Not being allowed to vote without showing his identification caused
Stewart to be “unhappy” and he explained “[v]oting means a lot to me
personally[.]” Dep., p. 50:4-7. Plaintiff admitted that he had a driver’s license
which he could have shown, except for during a short period of time when it
was “lost or misplaced[.]” Dep., p. 7:14-18. Plaintiff also acknowledged that he
knew he could vote without showing identification by filing an absentee ballot,
but he did not because it was a “hassle” and he “shouldn’t have to do that.”
Dep., p. 50:12-18. This testimony shows Plaintiff has no actual damages from
the alleged civil rights violations. Therefore, he is not entitled to relief.

5. Plaintiff Has Not Named a Real Party in Interest as a Defendant
Defendants Marion County and Clerk Beth White are not proper parties
to this suit. Rule Seventeen of the Federal Rules of Civil Procedure requires
that “[e]very action shall be prosecuted in the name of the real party in
interest.” Fed. R. Civ. P. 17(a)(1). Defendants are not a real party in interest
because neither has any legal responsibility for the administration of elections.

Under Indiana Law, the Marion County Election Board has the duty to
conduct all elections and administer election laws in Marion County and is
overseen by the Indiana Election board, not the County government. I.C. §§ 36-
4.1-14(a)(4), 3-6-5-14(a)(2). County elections boards are established under
state law, not by the separate counties. See I.C. § 3-6-5-14. Beth White, in her


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official capacity as Clerk, is a member of the Marion County Election Board.

I.C. § 3-6-5-2. However, official capacity claims go against her employer-the
Marion County Clerk’s Office-not a board she happens to be a member of. See
Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008). Also, her position as
a single member of the three-person county board does not allow her or the
Clerk’s Office to unilaterally dictate Marion County Election Board policy. See
I.C. § 3-6-5-2. Therefore, even if local election officials can somehow be liable
for enforcing the state voter identification law, the present Defendants are still
not real parties in interest for Plaintiff’s claims.
Thus, no damages are available under either the state or federal claims,
and the defendants are entitled to judgment in their favor as a matter of law as
to all of plaintiff’s requests for damages.


For the foregoing reasons, it is respectfully urged that summary

judgment be entered in favor of the defendants, including the intervenor.

Respectfully submitted, Respectfully submitted,

s/Justin F. Roebel (with permission) GREGORY F. ZOELLER
Justin F. Roebel (23725-49) Attorney General of Indiana
Assistant Corporation Counsel
Office of Corporation Counsel By: s/David A. Arthur200 E Washington St, Room 1601 David A. Arthur
Indianapolis, IN 46204 Deputy Attorney General
Telephone: (317) 327-4055 Office of Attorney General
Fax: (317) 327-3968 Ind Govt Center South, Fifth Floor
E-Mail: jroebel@indygov.org 302 W. Washington St.

Indianapolis, IN 46204-2770
Attorney for Defendants Marion Telephone: (317) 232-6286
County and Marion County Clerk Beth Fax: (317) 232-7979
White E-Mail: David.Arthur@atg.in.gov

Counsel for State of Indiana


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