Wednesday, April 30, 2008
Judge Miller has denied the TRO and not set a date for a hearing, so it doesn't look like any action before the primary election.
The Supreme Court has announced Crawford. pdf.
The decision is 6-3, with 3 saying uphold under Burdick, 3 dissenters saying overrule, and the Court's opinion by Stevens joined by the Chief Justice and Kennedy says this facial challenge hasn't met its burden. So my case is now even more important, as the first (or second) as-applied challenge.
The Supreme Court has announced Crawford. pdf.
The decision is 6-3, with 3 saying uphold under Burdick, 3 dissenters saying overrule, and the Court's opinion by Stevens joined by the Chief Justice and Kennedy says this facial challenge hasn't met its burden. So my case is now even more important, as the first (or second) as-applied challenge.
Saturday, April 19, 2008
Yesterday
I filed a new case, since Palmer v Marion was dismissed on procedural grounds awhile back.
stewart v marion 49D05 08 04 CT 017641
Hon. Gary Miller (GOP)
Marion Superior Court, Civil 5
City-County Building, W-507
West Wing, 5th Floor
Elected: 1-Jan-1991
---------
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )
COMPLAINT
Comes now Plaintiff Robbin Stewart pro se and for his complaint for injunctive and declaratory relief and damages, states as follows.
1. Introduction: This is an action to stop a threat to the integrity of the election process.
2. Time is of the essence. The primary is set for May 6, 2008. Plaintiff wishes to vote in the Republican Primary and in the school board elections, and to have his vote counted.
3. Defendants are attempting to engage in voter fraud by preventing registered voters who do not show a voting license, from voting.
4. The result could be that the winners of the upcoming elections cannot be determined, because an unknown number of eligible voters will be prevented from voting.
5. A motion for a TRO and preliminary injunction has been filed to prevent irreparable harm.
6. The voting license program is challenged on a number of state and federal constitutional grounds as well as several statutory grounds.
7. The voter ID program violates the Indiana Constitution, Article I sections 1, 9, 11, 12, 31, Article II sections 1 and 2, the First, 4th, 14th, 15th, and 24th Amendments, and the Privacy Act of 1974.
8. This action is directed at the 2008 city/county primary and general election.
9. Jurisdiction: This court has general jurisdiction over claims arising under Indiana statutes and constitution, and federal statutes and constitution.
10. 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.
11. Parties: Plaintiff is Robbin Stewart, a voter in the tenth ward, seventh precinct of Center Township in Marion County, Indiana.
12. Defendant Marion County is a municipality and is the seat of government for Indiana. All defendants are named as to all counts.
13. Beth White is the Marion County Clerk. She is named in her official capacity.
14. Jane Doe 1-3 are precinct officials in Ward 10, precinct 7 who prevented Stewart from voting in the spring and fall elections in 2006 and/or intend to interfere with his right to vote in the 2008 elections. They are named in their individual and official capacities.
State Claims.
Count I
15. The voter licensing program violates the right to free elections under the Free Elections clause, Article II Section I of the Indiana Constitution.
16. The following statement of facts, Ps 17-44, is common to each count, and is incorporated by reference in each count below.
17. Following the disputed 2000 election, a coalition of Republican activists began promoting voter licensing proposals.
18. Numerous states passed some version, typically allowing a wide variety of documents, such as a utility bill.
19. Following passage of the voter ID statutes, the Democratic Party and the ACLU brought suits to enjoin the program. Those suits have been consolidated and argued before the United States Supreme Court, but no decision is expected by the primary election. It is also possible that the court will decline to reach the merits in a facial challenge. In several recent cases the court has expressed a preference for as-applied challenges. This action is an as-applied as well as facial challenge to the program, by a voter whose votes have not been counted based on failure to show voter ID. No motion for a temporary injunction or stay was made to the Supreme Court.
20. The complaint in 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 and is incorporated by reference herein. A paper copy of the pleadings in Rokita will be provided to the court if requested.
Plaintiff’s amicus brief in Rokita is at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefamicuscuriaeofCyberPrivacy.pdf
21. 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.
22. Plaintiff Robbin Stewart was prevented from voting at the 2006 spring primary and fall general elections and expects to be challenged from voting in the 2008 elections.
23. [Omitted.]
24. He believes that the election will be invalid, unless this court acts to prevent the irreparable harm.
24. Plaintiff is a person who does not consent to a search, and does not waive his rights under the federal and Indiana constitutions.
25. He seeks to be able to cast his vote in the election without being subjected to an unwarranted search.
26. If he cannot cast his vote, he is injured.
27. Alternatively, if he submits to an unwarranted search in order to vote, he is injured.
28. For most voters, the driver's license would serve as their voting license.
29. Plaintiff'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. He does not have a current passport or other government issued photo ID.
30. 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.
31. He has a consistent practice of refusing to waive his constitutional rights.
32. 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.
33. Plaintiff is personally known to or recognized by one or more of the precinct officials.
34. There was no threat of voter fraud if he had been allowed to vote without a license.
35. He is a registered voter who has been voting there for about 8 years, and has been a candidate.
36. By denying him the vote unless and until he waives his right to be free from search,, the precinct officials will be engaging in voter fraud.
37 In a recent city council election in Plaintiff's district, three votes decided the election.
38. Many Ward Ten residents do not have drivers licenses or passports or state college ID’s or other state-issued ID’s. Many do not drive, travel internationally, or attend college. Others drive without licenses.
39. 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.
40. Plaintiff was offered, and cast, a provisional ballot in the 2006 primary and general elections.
41 His provisional ballot was never counted. At the primary, he went to the city clerk’s office and asked that his vote be counted, but was refused. He would have had to consent to the search of his voting license, which he is unwilling to do, absent a valid warrant. In the general election, he was told by phone that his vote would not be counted.
42. By denying the vote to Plaintiff, 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 rights under the equal elections clause of Article II section 1.
43. An election is equal where everyone's vote counts the same, and everyone's vote is counted.
44. Plaintiff insists, as a voter and citizen, not only that he be allowed to vote, but that others be allowed to for or against the candidates of his party with whom he associates politically.
Count II
45. 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.
46. His right to vote was and will be violated when he was and will be denied a regular ballot unless he submits to a search.
Count III
47. Plaintiff's right to be free from unreasonable search under Article I section 11 was and will be violated when and if, in retaliation for his refusal to consent to a search, he was and will be denied the vote.
Count IV
48. 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….
49. Plaintiff asserts that his Article I Section 9 rights were and will be violated when and if he is refused a regular ballot and his vote not counted, or if he is only allowed to vote after submitting to an unwarranted search.
50. Voting is an exercise of interchange of thought and opinion. The requirement that a duly registered voter and citizen obtain a license from the government in order to vote restrains the free interchange of opinion.
51. 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 VI
52. Article I Section 9, the speak freely clause, is another one of the Indiana Constitution's protections of free speech.
53. 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.
54. 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.
55. 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.
56. Plaintiff’s section 9 rights were and will be violated when and if he is prevented from voting unless and until he submits to a search of his voting license.
Count V
57. Article I section 1 protects the right of the people to alter or abolish the government.
58. Generally, free and equal elections are the method by which such alterations can be accomplished in a calm and orderly manner.
59. When Plaintiff was prevented from voting, and from having his votes counted, his rights under this section were infringed, even if he retains other means by which he can alter or abolish.
60. Section 1 also grants a right of liberty, which is infringed here.
61. Section 1 when read in harmony with the rest of the Indiana constitution supports Plaintiff’s claim that the voter ID program is unlawful.
Count VI
63. 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.
64. Section 12 also states that the courts shall be open and provide a remedy for wrongs.
65. The voting license program violates due course of law.
66. When Plaintiff was prevented from voting for failure to submit to a search of his voting license, his rights under this section were violated.
67. Currently, issuance of voting licenses is handled by the Bureau of Motor Vehicles (BMV.)
68. 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. This has happened to Plaintiff.
69. This failure constitutes a deprivation of due course of law.
70. Plaintiff is injured when those with whom he is in political association with are unable to obtain voting licenses from the BMV, and are left with no recourse.
71. Section 12 requires and authorizes this court to provide a remedy as to the issues raised.
Count VII
72. Article I Section 31, Petition and assembly, was violated when Plaintiff is prevented from voting.
73. Plaintiff’s section 31 rights were violated when he and others similarly situated were prevented or deterred or interfered with in attempting to vote in the 2006 elections and will be violated when he is prevented from voting in the 2008 elections.
Federal Claims
Count VIII
74. Plaintiff's right to vote under the First Amendment was violated when he was prevented from voting for lawfully refusing to consent to a search of his voting license.
75. 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.
76. 42 USC 1988 provides for the award of reasonable legal fees and costs.
Count IX
77. The voting license program violates the right of privacy implicit in the First and Fourteenth Amendments of plaintiff and similarly situated voters.
Count X
78. The voting license program violates the right of Plaintiff and other voters to be free from unwarranted unreasonable searches and seizures under the Fourth Amendment.
79. When he was asked to produce ID prior to voting, he asked to see the official's warrant authorizing such a search. No warrant had been applied for.
Count XI
80. Plaintiff'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 XII
81. Plaintiff'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.
Count XIII
82. The right to vote in federal elections is one of the privileges and immunities of federal citizenship protected by the Fourteenth Amendment.
83. Plaintiff's right to vote in a federal election was violated in the 2006 elections.
84. His right to vote in a federal election under the Privileges and Immunities clause will be infringed in the 2008 elections, if not remedied.
85. 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.
86. At a minimum, such licensing greatly enhances the risk of identity theft, raising real and perceived costs of voting.
87. With 900 precincts to staff, the county clerk is unable to screen all election workers to eliminate the possibility that an election worker would be engaged in identify theft.
Count XIV
88. 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.
89. 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.
90. 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 XV
91. 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.
92. The constitution prohibits poll taxes, whether for the rich or the poor; an indigency exception is no defense to a poll tax allegation.
93. The voting license program, unlike the 1950s era poll taxes, does not explicitly require a cash payment, and does not burden every voter.
94. But for some voters, the documents required to obtain a voting license come with a price tag. Most voters spend at least $20 to obtain a voting license.
95. Additionally, the program is replete with catch-22s that make it difficult or impossible to obtain the documents.
96. When Plaintiff went to get a replacement for a misplaced driver’s license, he was told that 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. For over a year he had no license. He was denied a hearing by the BMV. He eventually hired a lawyer, at significant expense, to obtain a birth certificate so that he could get a new copy of his driver’s license.
97. While Plaintiff already has such a voter's license, he has political association interests to raise this concern, so that voters can cast their votes for the candidates he supports.
Count XVI
98. The voter licensing program violates the Privacy Act of 1974, 5 USC 552a note 7.
99. Many potential voters have a social security number displayed on their driver's license. Not all do; it is optional. Disclosure to the agency of one’s ssn is required to obtain the voter license.
100. Many of these potential voters have no other acceptable government issued identification.
101. 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.
102. 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.
103. The voter licensing program doesn't do any of this.
104. Marion County and the State of Indiana tend to be lax about compliance with the Privacy Act.
105. Plaintiff can raise the issue because it infringes his right of association, whether or not his own voting license displays a social security number.
106. 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. In 2004 Plaintiff was told by a precinct worker that he must provide his ssn in order to vote. After he objected, a more senior precinct worker allowed him to vote without disclosing ssn.
107. The current system extends and formalizes this invasion of privacy.
108. 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.'
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, Plaintiff 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.
He seeks a temporary restraining order so that the election can take place undisturbed.
He seeks temporary and permanent injunctive relief.
He seeks a declaratory judgment resolving each of the questions of law presented above.
He seeks costs and fees, including reasonable attorney's fees and expert witness fees.
He seeks appointment of counsel.
He asks for all other relief as is in the interests of justice.
Respectfully Submitted,
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
.317.917.8002.
gtbear@gmail.com
-----------------------
I aver that the facts in the complaint are true to the best of my knowledge.
___________________
I hereby certify that on or by April ___, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.
attn: Ian Stewart , James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204
attn: Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204
Robbin Stewart.
____________________
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
)
Defendants. )
MOTION FOR A TRO AND PRELIMINARY INJUNCTION
Comes now plaintiff and for his motion for a preliminary restraining order and temporary injunction states as follows.
The complaint seeks to permanently enjoin the requirement that registered voters produce a government-issued photo ID in order to cast their votes.
Plaintiff will be irreparably harmed if his vote is not counted. He was irreparably harmed when his provisional vote was not counted in the 2006 primary and general elections. Plaintiff will be irreparably harmed if the votes of others are not counted in free and equal elections.
Plaintiff has some likelihood of success on the merits. The issue of whether Indiana’s voter ID program violates the First Amendment or the Fourteenth Amendment is currently awaiting decision by the United States Supreme Court, case 07-25. A divided panel of the 7th circuit upheld the program, erroneously applying the lowest Burdick v Takushi standard of review. A divided 7th circuit declined en banc review. Plaintiff Stewart’s amicus brief is one of twenty in support of the plaintiffs in the federal case. http://moritzlaw.osu.edu/electionlaw/litigation/indy-dems.php.
The Supreme Court has a recent record of reversing 75% of the time in cases from circuit courts.
There is some indication from recent cases that the Supreme Court may decline to address the merits because the case was a pre-enforcement facial challenge. See Purcell, Wisconsin Right to Life v. FEC. This case, in contrast, is an as-applied challenge by a person with standing whose votes were not counted in 2006, who was deterred from trying to vote in 2007 because his votes aren’t being counted, and who is threatened with again not having his votes counted in 2008.
To obtain a TRO or preliminary injunction, a plaintiff need not show a certainty of success on the merits, or even a preponderance of evidence. It is enough to raise serious questions going to the merits. The purpose of a preliminary injunction is to prevent irreparable harm while the case proceeds. The purpose of a TRO is to prevent irreparable harm until a hearing is held on the preliminary injunction.
In addition to the First and Fourteenth Amendment claims which are at issue in both this and the federal suit, plaintiff raises other federal claims and novel state claims which have not been litigated in Indiana courts. He has some likelihood of success as to each claim. In order to not eventually prevail on the merits, he would have to lose on each and every claim.
Denying plaintiff the vote, and denying plaintiff a free and equal election, severely burdens his core free expression rights under both the state and federal constitution.
In its response brief to the United States Supreme Court, Marion County admits that the voter ID program doesn’t accomplish much of anything, doesn’t prevent in person ballot fraud, and confuses or deters voters from participating in elections. http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefofrespondentMarionCountyElectionBoard12-4-07.pdf .
The public interest is in holding free and equal elections, and in preventing threats to the integrity of the elections process. There may or may not be an actual problem of in person fraudulent voting in Marion County. The legislature may or may not have been actually motivated to address this possible problem, rather than just motivated by a desire to suppress voting. But the cure is worse than the disease. The harm done by preventing plaintiff and others from having their votes counted outweighs whatever benefit is produced by requiring fraudulent voters, if any, to do so by absentee ballots instead of in person.
Where, as here, irreparable harm is threatened, there has been some showing of likelihood on the merits, and the burden on the plaintiff outweighs the burden on defendants, and the public interest supports injunctive relief, a TRO and preliminary injunction should issue.
I will be working out of state from April 20 to 26th, and am available for a hearing anytime after that. The best way to reach me is via gtbear@gmail.com.
Respectfully Submitted,
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.917.8002.
gtbear@gmail.com
I hereby certify that on or by April ___, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.
attn: Ian Stewart , James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204
attn: Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204
Robbin Stewart.
____________________
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )
ORDER
Defendants Marion County and Marion County Clerk Beth White are temporarily restrained from failing to count provisional ballots for the reason that no photo ID is provided, until further order of this court.
Nothing in this order prevents defendants from obtaining a search warrant to request photo ID before counting provisional votes, in cases where there is actual probable cause to suspect voter fraud.
A hearing is set for __________________ .
_________________________________ Date: ________________
distribution:
Corporation Counsel
Attorney General
Robbin Stewart
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )
ORDER
Defendants Marion County and Marion County Clerk Beth White are temporarily enjoined from failing to count provisional ballots in the 2008 primary and school board election for the reason that no photo ID is provided, pending final judgment in this case or further order of the court.
Nothing in this order prevents defendants from obtaining a search warrant to request photo ID before counting provisional votes, in cases where there is actual probable cause to suspect voter fraud.
_________________________________ Date: ______________
distribution:
Corporation Counsel
Attorney General
Robbin Stewart
I filed a new case, since Palmer v Marion was dismissed on procedural grounds awhile back.
stewart v marion 49D05 08 04 CT 017641
Hon. Gary Miller (GOP)
Marion Superior Court, Civil 5
City-County Building, W-507
West Wing, 5th Floor
Elected: 1-Jan-1991
---------
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )
COMPLAINT
Comes now Plaintiff Robbin Stewart pro se and for his complaint for injunctive and declaratory relief and damages, states as follows.
1. Introduction: This is an action to stop a threat to the integrity of the election process.
2. Time is of the essence. The primary is set for May 6, 2008. Plaintiff wishes to vote in the Republican Primary and in the school board elections, and to have his vote counted.
3. Defendants are attempting to engage in voter fraud by preventing registered voters who do not show a voting license, from voting.
4. The result could be that the winners of the upcoming elections cannot be determined, because an unknown number of eligible voters will be prevented from voting.
5. A motion for a TRO and preliminary injunction has been filed to prevent irreparable harm.
6. The voting license program is challenged on a number of state and federal constitutional grounds as well as several statutory grounds.
7. The voter ID program violates the Indiana Constitution, Article I sections 1, 9, 11, 12, 31, Article II sections 1 and 2, the First, 4th, 14th, 15th, and 24th Amendments, and the Privacy Act of 1974.
8. This action is directed at the 2008 city/county primary and general election.
9. Jurisdiction: This court has general jurisdiction over claims arising under Indiana statutes and constitution, and federal statutes and constitution.
10. 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.
11. Parties: Plaintiff is Robbin Stewart, a voter in the tenth ward, seventh precinct of Center Township in Marion County, Indiana.
12. Defendant Marion County is a municipality and is the seat of government for Indiana. All defendants are named as to all counts.
13. Beth White is the Marion County Clerk. She is named in her official capacity.
14. Jane Doe 1-3 are precinct officials in Ward 10, precinct 7 who prevented Stewart from voting in the spring and fall elections in 2006 and/or intend to interfere with his right to vote in the 2008 elections. They are named in their individual and official capacities.
State Claims.
Count I
15. The voter licensing program violates the right to free elections under the Free Elections clause, Article II Section I of the Indiana Constitution.
16. The following statement of facts, Ps 17-44, is common to each count, and is incorporated by reference in each count below.
17. Following the disputed 2000 election, a coalition of Republican activists began promoting voter licensing proposals.
18. Numerous states passed some version, typically allowing a wide variety of documents, such as a utility bill.
19. Following passage of the voter ID statutes, the Democratic Party and the ACLU brought suits to enjoin the program. Those suits have been consolidated and argued before the United States Supreme Court, but no decision is expected by the primary election. It is also possible that the court will decline to reach the merits in a facial challenge. In several recent cases the court has expressed a preference for as-applied challenges. This action is an as-applied as well as facial challenge to the program, by a voter whose votes have not been counted based on failure to show voter ID. No motion for a temporary injunction or stay was made to the Supreme Court.
20. The complaint in 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 and is incorporated by reference herein. A paper copy of the pleadings in Rokita will be provided to the court if requested.
Plaintiff’s amicus brief in Rokita is at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefamicuscuriaeofCyberPrivacy.pdf
21. 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.
22. Plaintiff Robbin Stewart was prevented from voting at the 2006 spring primary and fall general elections and expects to be challenged from voting in the 2008 elections.
23. [Omitted.]
24. He believes that the election will be invalid, unless this court acts to prevent the irreparable harm.
24. Plaintiff is a person who does not consent to a search, and does not waive his rights under the federal and Indiana constitutions.
25. He seeks to be able to cast his vote in the election without being subjected to an unwarranted search.
26. If he cannot cast his vote, he is injured.
27. Alternatively, if he submits to an unwarranted search in order to vote, he is injured.
28. For most voters, the driver's license would serve as their voting license.
29. Plaintiff'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. He does not have a current passport or other government issued photo ID.
30. 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.
31. He has a consistent practice of refusing to waive his constitutional rights.
32. 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.
33. Plaintiff is personally known to or recognized by one or more of the precinct officials.
34. There was no threat of voter fraud if he had been allowed to vote without a license.
35. He is a registered voter who has been voting there for about 8 years, and has been a candidate.
36. By denying him the vote unless and until he waives his right to be free from search,, the precinct officials will be engaging in voter fraud.
37 In a recent city council election in Plaintiff's district, three votes decided the election.
38. Many Ward Ten residents do not have drivers licenses or passports or state college ID’s or other state-issued ID’s. Many do not drive, travel internationally, or attend college. Others drive without licenses.
39. 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.
40. Plaintiff was offered, and cast, a provisional ballot in the 2006 primary and general elections.
41 His provisional ballot was never counted. At the primary, he went to the city clerk’s office and asked that his vote be counted, but was refused. He would have had to consent to the search of his voting license, which he is unwilling to do, absent a valid warrant. In the general election, he was told by phone that his vote would not be counted.
42. By denying the vote to Plaintiff, 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 rights under the equal elections clause of Article II section 1.
43. An election is equal where everyone's vote counts the same, and everyone's vote is counted.
44. Plaintiff insists, as a voter and citizen, not only that he be allowed to vote, but that others be allowed to for or against the candidates of his party with whom he associates politically.
Count II
45. 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.
46. His right to vote was and will be violated when he was and will be denied a regular ballot unless he submits to a search.
Count III
47. Plaintiff's right to be free from unreasonable search under Article I section 11 was and will be violated when and if, in retaliation for his refusal to consent to a search, he was and will be denied the vote.
Count IV
48. 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….
49. Plaintiff asserts that his Article I Section 9 rights were and will be violated when and if he is refused a regular ballot and his vote not counted, or if he is only allowed to vote after submitting to an unwarranted search.
50. Voting is an exercise of interchange of thought and opinion. The requirement that a duly registered voter and citizen obtain a license from the government in order to vote restrains the free interchange of opinion.
51. 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 VI
52. Article I Section 9, the speak freely clause, is another one of the Indiana Constitution's protections of free speech.
53. 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.
54. 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.
55. 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.
56. Plaintiff’s section 9 rights were and will be violated when and if he is prevented from voting unless and until he submits to a search of his voting license.
Count V
57. Article I section 1 protects the right of the people to alter or abolish the government.
58. Generally, free and equal elections are the method by which such alterations can be accomplished in a calm and orderly manner.
59. When Plaintiff was prevented from voting, and from having his votes counted, his rights under this section were infringed, even if he retains other means by which he can alter or abolish.
60. Section 1 also grants a right of liberty, which is infringed here.
61. Section 1 when read in harmony with the rest of the Indiana constitution supports Plaintiff’s claim that the voter ID program is unlawful.
Count VI
63. 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.
64. Section 12 also states that the courts shall be open and provide a remedy for wrongs.
65. The voting license program violates due course of law.
66. When Plaintiff was prevented from voting for failure to submit to a search of his voting license, his rights under this section were violated.
67. Currently, issuance of voting licenses is handled by the Bureau of Motor Vehicles (BMV.)
68. 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. This has happened to Plaintiff.
69. This failure constitutes a deprivation of due course of law.
70. Plaintiff is injured when those with whom he is in political association with are unable to obtain voting licenses from the BMV, and are left with no recourse.
71. Section 12 requires and authorizes this court to provide a remedy as to the issues raised.
Count VII
72. Article I Section 31, Petition and assembly, was violated when Plaintiff is prevented from voting.
73. Plaintiff’s section 31 rights were violated when he and others similarly situated were prevented or deterred or interfered with in attempting to vote in the 2006 elections and will be violated when he is prevented from voting in the 2008 elections.
Federal Claims
Count VIII
74. Plaintiff's right to vote under the First Amendment was violated when he was prevented from voting for lawfully refusing to consent to a search of his voting license.
75. 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.
76. 42 USC 1988 provides for the award of reasonable legal fees and costs.
Count IX
77. The voting license program violates the right of privacy implicit in the First and Fourteenth Amendments of plaintiff and similarly situated voters.
Count X
78. The voting license program violates the right of Plaintiff and other voters to be free from unwarranted unreasonable searches and seizures under the Fourth Amendment.
79. When he was asked to produce ID prior to voting, he asked to see the official's warrant authorizing such a search. No warrant had been applied for.
Count XI
80. Plaintiff'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 XII
81. Plaintiff'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.
Count XIII
82. The right to vote in federal elections is one of the privileges and immunities of federal citizenship protected by the Fourteenth Amendment.
83. Plaintiff's right to vote in a federal election was violated in the 2006 elections.
84. His right to vote in a federal election under the Privileges and Immunities clause will be infringed in the 2008 elections, if not remedied.
85. 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.
86. At a minimum, such licensing greatly enhances the risk of identity theft, raising real and perceived costs of voting.
87. With 900 precincts to staff, the county clerk is unable to screen all election workers to eliminate the possibility that an election worker would be engaged in identify theft.
Count XIV
88. 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.
89. 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.
90. 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 XV
91. 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.
92. The constitution prohibits poll taxes, whether for the rich or the poor; an indigency exception is no defense to a poll tax allegation.
93. The voting license program, unlike the 1950s era poll taxes, does not explicitly require a cash payment, and does not burden every voter.
94. But for some voters, the documents required to obtain a voting license come with a price tag. Most voters spend at least $20 to obtain a voting license.
95. Additionally, the program is replete with catch-22s that make it difficult or impossible to obtain the documents.
96. When Plaintiff went to get a replacement for a misplaced driver’s license, he was told that 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. For over a year he had no license. He was denied a hearing by the BMV. He eventually hired a lawyer, at significant expense, to obtain a birth certificate so that he could get a new copy of his driver’s license.
97. While Plaintiff already has such a voter's license, he has political association interests to raise this concern, so that voters can cast their votes for the candidates he supports.
Count XVI
98. The voter licensing program violates the Privacy Act of 1974, 5 USC 552a note 7.
99. Many potential voters have a social security number displayed on their driver's license. Not all do; it is optional. Disclosure to the agency of one’s ssn is required to obtain the voter license.
100. Many of these potential voters have no other acceptable government issued identification.
101. 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.
102. 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.
103. The voter licensing program doesn't do any of this.
104. Marion County and the State of Indiana tend to be lax about compliance with the Privacy Act.
105. Plaintiff can raise the issue because it infringes his right of association, whether or not his own voting license displays a social security number.
106. 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. In 2004 Plaintiff was told by a precinct worker that he must provide his ssn in order to vote. After he objected, a more senior precinct worker allowed him to vote without disclosing ssn.
107. The current system extends and formalizes this invasion of privacy.
108. 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.'
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, Plaintiff 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.
He seeks a temporary restraining order so that the election can take place undisturbed.
He seeks temporary and permanent injunctive relief.
He seeks a declaratory judgment resolving each of the questions of law presented above.
He seeks costs and fees, including reasonable attorney's fees and expert witness fees.
He seeks appointment of counsel.
He asks for all other relief as is in the interests of justice.
Respectfully Submitted,
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
.317.917.8002.
gtbear@gmail.com
-----------------------
I aver that the facts in the complaint are true to the best of my knowledge.
___________________
I hereby certify that on or by April ___, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.
attn: Ian Stewart , James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204
attn: Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204
Robbin Stewart.
____________________
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
)
Defendants. )
MOTION FOR A TRO AND PRELIMINARY INJUNCTION
Comes now plaintiff and for his motion for a preliminary restraining order and temporary injunction states as follows.
The complaint seeks to permanently enjoin the requirement that registered voters produce a government-issued photo ID in order to cast their votes.
Plaintiff will be irreparably harmed if his vote is not counted. He was irreparably harmed when his provisional vote was not counted in the 2006 primary and general elections. Plaintiff will be irreparably harmed if the votes of others are not counted in free and equal elections.
Plaintiff has some likelihood of success on the merits. The issue of whether Indiana’s voter ID program violates the First Amendment or the Fourteenth Amendment is currently awaiting decision by the United States Supreme Court, case 07-25. A divided panel of the 7th circuit upheld the program, erroneously applying the lowest Burdick v Takushi standard of review. A divided 7th circuit declined en banc review. Plaintiff Stewart’s amicus brief is one of twenty in support of the plaintiffs in the federal case. http://moritzlaw.osu.edu/electionlaw/litigation/indy-dems.php.
The Supreme Court has a recent record of reversing 75% of the time in cases from circuit courts.
There is some indication from recent cases that the Supreme Court may decline to address the merits because the case was a pre-enforcement facial challenge. See Purcell, Wisconsin Right to Life v. FEC. This case, in contrast, is an as-applied challenge by a person with standing whose votes were not counted in 2006, who was deterred from trying to vote in 2007 because his votes aren’t being counted, and who is threatened with again not having his votes counted in 2008.
To obtain a TRO or preliminary injunction, a plaintiff need not show a certainty of success on the merits, or even a preponderance of evidence. It is enough to raise serious questions going to the merits. The purpose of a preliminary injunction is to prevent irreparable harm while the case proceeds. The purpose of a TRO is to prevent irreparable harm until a hearing is held on the preliminary injunction.
In addition to the First and Fourteenth Amendment claims which are at issue in both this and the federal suit, plaintiff raises other federal claims and novel state claims which have not been litigated in Indiana courts. He has some likelihood of success as to each claim. In order to not eventually prevail on the merits, he would have to lose on each and every claim.
Denying plaintiff the vote, and denying plaintiff a free and equal election, severely burdens his core free expression rights under both the state and federal constitution.
In its response brief to the United States Supreme Court, Marion County admits that the voter ID program doesn’t accomplish much of anything, doesn’t prevent in person ballot fraud, and confuses or deters voters from participating in elections. http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefofrespondentMarionCountyElectionBoard12-4-07.pdf .
The public interest is in holding free and equal elections, and in preventing threats to the integrity of the elections process. There may or may not be an actual problem of in person fraudulent voting in Marion County. The legislature may or may not have been actually motivated to address this possible problem, rather than just motivated by a desire to suppress voting. But the cure is worse than the disease. The harm done by preventing plaintiff and others from having their votes counted outweighs whatever benefit is produced by requiring fraudulent voters, if any, to do so by absentee ballots instead of in person.
Where, as here, irreparable harm is threatened, there has been some showing of likelihood on the merits, and the burden on the plaintiff outweighs the burden on defendants, and the public interest supports injunctive relief, a TRO and preliminary injunction should issue.
I will be working out of state from April 20 to 26th, and am available for a hearing anytime after that. The best way to reach me is via gtbear@gmail.com.
Respectfully Submitted,
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.917.8002.
gtbear@gmail.com
I hereby certify that on or by April ___, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.
attn: Ian Stewart , James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204
attn: Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204
Robbin Stewart.
____________________
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )
ORDER
Defendants Marion County and Marion County Clerk Beth White are temporarily restrained from failing to count provisional ballots for the reason that no photo ID is provided, until further order of this court.
Nothing in this order prevents defendants from obtaining a search warrant to request photo ID before counting provisional votes, in cases where there is actual probable cause to suspect voter fraud.
A hearing is set for __________________ .
_________________________________ Date: ________________
distribution:
Corporation Counsel
Attorney General
Robbin Stewart
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )
ORDER
Defendants Marion County and Marion County Clerk Beth White are temporarily enjoined from failing to count provisional ballots in the 2008 primary and school board election for the reason that no photo ID is provided, pending final judgment in this case or further order of the court.
Nothing in this order prevents defendants from obtaining a search warrant to request photo ID before counting provisional votes, in cases where there is actual probable cause to suspect voter fraud.
_________________________________ Date: ______________
distribution:
Corporation Counsel
Attorney General
Robbin Stewart
