Thursday, July 10, 2008

Here's the memo I'll be filing tomorrow:

Robbin Stewart )
Plaintiff, )
vs. ) Cause No. 1:08-cv-566-LJM
Marion County, Beth White, )
Defendants. )

Plaintiff’s response to entry of 6/16/2008

New Facts
Comment on affirmative defenses.

I. Short and plain statement that the litigation survives Crawford v. Marion County:
The court has directed plaintiff to respond again as to whether and which claims survive Crawford v Marion County. The answer is still, all of them, but generally these fall into two categories: claims not addressed at all in Crawford, and claims that are affected by but survive Crawford.
In light of Crawford, each count of the complaint continues to state a cause of action under which the voter ID statutes as applied to him are unconstitutional, or in the case of Count XVI, violative of the Privacy Act.
Crawford rejected only a facial challenge based on a specific theory of law supported by a particular record; Crawford did not foreclose as-applied challenges or hold that voter ID is always and categorically constitutional.
We are, however, persuaded that the District Court and the Court of Appeals correctly concluded that the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute, and thus affirm. Crawford v. Marion County, 128 S. Ct 1610 (2008).

II Analysis of Crawford v Marion County as it applies to this case.

The complaint sets out 17 separate legal bases for the relief it seeks. These are,

Count I, free and equal elections Article II section 1
Count II, vested right of registered voter to vote, Article II section II.
Count III, unwarranted search, Article I section 11
Count IV, free interchange of opinion clause, Article I section 9
Count VI (sic, hereinafter 4.5), right to speak freely clause, Article I section 9
Count V, the right to alter government, Article I section 1
Count VI, due course of law, Article I section 12
Count VII petition and assembly, Article I section 31.

Count VIII, voting rights, First Amendment
Count IX, privacy rights, First Amendment
Count X, unwarranted search, Fourth Amendment
Count XI due process, Fourteenth Amendment
Count XII equal protection, Fourteenth Amendment,
Count XIII privileges and immunities, Fourteenth Amendment
Count XIV knowing racial disparity, Fifteenth Amendment
Count XV poll tax or equivalent, Twenty-Fourth Amendment
Count XVI Privacy Act claim.

Crawford expresses no opinion on whether the voter ID program does or does not violate the Indiana Constitution. Indiana gives its constitution independent construction, and cases like Crawford may persuade but cannot control. Counts I through XIII survive.
Of these, the strongest is Count II, since the Indiana Supreme Court has issued controlling precedents establishing the vested right of the registered voter to vote without further qualifications; the other claims are of first impression. Board of Election Commissioners of Indianapolis v Knight 117 NE 565 (1917), Morris v Powell 125 Ind 281, 25 NE 221 (1890), Indiana ex rel. McGonicle v. Madison, 193 NE2d 242 (1963).
Crawford’s question presented dealt only with the First and Fourteenth Amendments.
So Crawford expresses no opinion on the Fourth, Fifteenth, Twenty-Fourth, and Privacy Act claims in Counts X, XIV, XV, and XVI.
Of these, the strongest is the 24th Amendment claim, since the Supreme Court has issued controlling precedent preventing not only poll taxes, but voting impediments that resemble poll taxes. Harman v. Forsennius. 380 U.S. 528 (1965).
Writing for three of the six justices in the majority, Stevens invited would-be voters to renew their challenge to Indiana‘s law once they could show – in very concrete terms – that they had been unjustifiably excluded from the ballot box. The next time around, litigants should put the Twenty-fourth Amendment at the very center of their case. Canonizing the Civil Rights Revolution: The People and the Poll Tax, Ackerman and Nou, 103 Northwestern Law Review __ (forthcoming Jan. 2009),

This case is a voting impediment similar to a poll tax, because defendants won’t let plaintiff vote unless and until I display a document for which I paid a total of $35 (issuance fee $20, replacement fee $5, birth certificate fee $10) in addition to other costs.
Crawford affects, but is not dispositive of, Counts VII, IX, XI, XII, and XIII, claims under the First and Fourteenth Amendments.
Crawford was a facial challenge which sought to completely invalidate the statutory program, on the basis that it discriminated against the poor, the elderly, and generally those inclined to vote Democrat. Crawford by counsel conceded that the voter ID program was constitutional as to most of the people most of the time. The general rule is that for a facial challenge to succeed, it must be shown that a statute has no applications which are constitutional. This rule was traditionally waived in the First Amendment context, but the Roberts court has recently been strictly construing this rule, and disfavoring facial challenges. In Washington State Grange v Republican Party, _ U.S. _, (3/18/2008), the court rejected a facial challenge to a blanket-type primary.
Respondents object to I–872 not in the context of an actual election, but in a facial challenge. Under United States v. Salerno, 481 U S 739 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e., that the law is unconstitutional in all of its applications. Id., at 745. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a plainly legitimate sweep. Washington’s primary system survives under either standard, as we explain below. In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about “hypothetical” or “imaginary” cases.

See also Purcell and McConnell v FEC. Crawford explicitly leaves the door open for as-applied challenges such as this one. WRTL v. FEC I did the same, and in WRTL v. FEC II, plaintiffs prevailed as-applied where they had lost facially in McConnell v FEC.
The national legal director of the American Civil Liberties Union says the opinions signal a basic shift in litigating constitutional claims. “It’s important to understand this is a fundamental departure from what the court has done over the past four decades to protect civil and constitutional rights,” says Steven R. Shapiro of New York City. “About Face: A tool of the civil rights movement is increasingly unwelcome in the high court”, ABA Journal,July 2008 , David Savage
In Crawford, the controlling opinion applied the four-factor balancing test of Anderson v Celbrezze, rather than the lax scrutiny of Burdick v Takushi, as was used below and as preferred by the concurring opinion.
Anderson is a form of strict scrutiny in which there is always a compelling state interest in election integrity, so it becomes necessary to balance the burden of the regulation against the purported state interests.
It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. …The results of this evaluation will not be automatic; as we have recognized, there is "no substitute for the hard judgments that must be made." Anderson v Celebrezze, 460 U.S. 780, 790.
Crawford implicitly limited or overruled Harper v Virginia, which had applied strict scrutiny in striking down a barrier to voting on equal protection grounds. The Court did not discuss or overrule Harmon v. Forennius, because the Twenty-Fourth Amendment issue was not before it.
The state interests the Court recognized in Crawford were 1) deterring and detecting voter impersonation. 2) dealing with an inflated voter roll 3) public perception.
Since this is a new case, the county is free to come up with additional interests or rationalizations. The county’s reply brief in Crawford tells the real story – that voter ID does more harm than good to Marion County’s election procedures.
Here, there is no specific deterrence or detection issue – it is probably undisputed that I am who I say I am and that that’s my ballot sitting uncounted in their warehouse. Counting my vote, and letting me vote in the fall, will not embolden or enable voter impersonators. Similarly, there is probably no serious dispute that I appear once and once only on the voting rolls. It is difficult to see how the public would be more confident of voting integrity if they know my vote, legitimately cast, is not being counted.
Similarly, there has been plenty of time in which to investigate whether any of the provisional ballots cast in the primary were fraudulent. So far, all the evidence is that the signatures match and there have been no prosecutions for voter impersonation. The court can order that these votes be counted, and that provisional votes in the fall be presumed valid in the absence of any contrary evidence. This is how provisional voting is supposed to work under HAVA, the Help America Vote Act.
In Crawford, plaintiffs conceded that the statute has a legitimate sweep, and so a facial attack must fail under the Salerno standard. The argument in Crawford was that the program would disproportionately impact the poor, the elderly, the homeless, and African Americans. As in Ayotte, the Court did not find a good fit between resolving the problems of a small number of Amish voters or homeless voters or people with BVM problems, and the proposed remedy of entirely enjoining the statute. The Court, and the courts below, found that the case was somewhat hypothetical, with insufficient facts in the record to carry the burden of persuasion.
In contrast, in this case plaintiff contends the statute has no legitimate sweep, because it authorizes a massive roadblock, a suspicionless search of every voter. Plaintiff is a white guy, and was trying to vote in the Republican primary. I am poor but probably not indigent under the undefined terms of the statute, and anyway the indigency affidavit exception does not apply in my circumstances. My theory of the case is not premised on the disparate impact on the poor and elderly.
Plaintiff has been actually denied the vote, both in 2006 and 2008, was deterred from trying to vote during 2007, and will be again denied the vote in November if the courts do not act in time. There is nothing speculative or imaginary about this real case. There is nothing frivolous or defective about any of the counts. Plaintiff’s burden of persuasion is high as to some counts, such as the P&I claim and the 15th Amendment claim, and low as to others, such as the 24th Amendment claim and the Article II section 2 claim, but in each instance plaintiff can cite to existing precedent or make a good faith argument that the precedents should be extended to cover this case. Plaintiff’s position that Crawford does not foreclose further litigation is supported by virtually all of the scholarship on the case, of which only a few representative articles are cited here.
“[T]he possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs' challenges.” Purcell v Gonzalez, _ U.S _(2006). In Purcell, an appeal of a pre-enforcement injunction of voter ID, which turned on the interaction of the district and circuit court rather than the merits, Justice Stevens concurring wrote in full:
Allowing the election to proceed without enjoining the statutory provisions at issue will provide the courts with a better record on which to judge their constitutionality. At least two important factual issues remain largely unresolved: the scope of the disenfranchisement that the novel identification requirements will produce, and the prevalence and character of the fraudulent practices that allegedly justify those requirements. Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical facts rather than speculation. Purcell.
Here, as distinct from Crawford, we are able to see the program in action, how plaintiff has been personally burdened, and how the program generally undermines the integrity of close elections in Indiana.
WRTL I and II stand firmly in opposition to the idea that Crawford forecloses this case.
[In McConnell v. FEC, e]ven assuming §203 "inhibit[ed] some constitutionally protected corporate and union speech," the Court concluded that those challenging the law on its face had failed to carry their "heavy burden" of establishing that all enforcement of the law should therefore be prohibited. Id., at 207. Last Term, we reversed a lower court ruling, arising in the same litigation before us now, that our decision in McConnell left "no room" for as-applied challenges to §203. We held on the contrary that "[i]n upholding §203 against a facial challenge, we did not purport to resolve future as-applied challenges." Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U. S. 410, 411-412 (2006) (per curiam) (WRTL I).
We now confront such an as-applied challenge. WRTL II, (6/25/2007)…. the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. WRTL II (6/25/2007).
Another reason this case is distinguishable from Crawford is the range of remedies sought. In Crawford, plaintiffs sought only to enjoin the statute entirely, and rested their case on the narrowest of legal grounds, only the First Amendment claim, rather than preserving their statutory claims.
In Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), the Court unanimously held “that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.”
Here, there is a range of available relief. The court could direct defendants to count plaintiff’s vote, and to allow the vote in November. The court could direct defendants to count each provisional ballot, both from the primary and going forward, except where there is actual evidence a particular vote may be fraudulent or improper. This would bring Indiana into compliance with how HAVA directs that provisional votes be handled.
The court could enjoin the statute only in Marion County. The court could enjoin the statute altogether, or just within the Southern District. The court could award damages under Monell sufficient to deter the county from again violating plaintiff’s voting rights, as it has a habit of doing., e.g. Stewart v Taylor, 934 F. Supp. 1040, 1041 (S. D. Ind.1997), or could award such other relief as is in the interest of justice. Plaintiff prefers that the statute be enjoined and declared unconstitutional, but will benefit from any relief, such as counting my vote.
Another distinguishing aspect of this case is that the key facts are different. “It is axiomatic that a “statute may be invalid as applied to one state of facts and yet valid as applied to another.’ Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921).” Ayotte.
Crawford did not create a bright line showing that voter ID is always constitutional, as Justice Scalia’s concurrence would have held. Under Marks, 430 U.S. at 193, the narrowest opinion governs. “As we have noted, the facts in these cases are hotly contested, and ‘[n]o bright line separates permissible election-related regulation from unconstitutional infringements.’" Purcell v Gonzalez.
The complaint contains direct allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. In addition to recovery, the complaint seeks declaratory and injunctive relief. Under Twombly, the complaint must describe the claim in sufficient detail to give fair notice. Second, it must plausibly suggest plaintiff has a right to relief that is more than speculative. Here, the claims in the complaint are understandable and understood. Defendants are aware that they are being sued for having denied plaintiff the right to vote, under Article II section 1, under Article II section II, and under the provisions of the Indiana Bill of Rights, which is Article I.
They are aware that they are also being sued under the 4th Amendment, for making voting conditional on submitting to an unwarranted suspicionless search, that they are being sued under the 24th Amendment, because they unwilling to let plaintiff vote unless and until he produces proof that he has paid a fee and thereby obtained a voting license aka driver’s license. They are aware that they are being sued for violating the Privacy Act, because they are demanding the driver’s license of those people who have a social security number displayed on it, without having complied with the disclosure requirements the Privacy Act requires in such circumstances, thereby affecting the outcome of the election in a way which harms plaintiff. The complaint readily meets the Twombly standard. The court’s threat of dismissal is problematic and suggests a possibility that plaintiff may not be able to receive a full and fair impartial hearing.
To summarize, factors that distinguish this case from Crawford include but are not limited to:
a. It is an as-applied challenge by a person actually denied the vote.
b. It is a post-enforcement rather than pre-enforcement challenge, so it can be better grounded in actual experience of how the program fails to advance its goals.
c. It includes state and federal claims not at issue in Crawford.
d. Under plaintiff’s theory of the case, every voter is substantially or severely burdened, not just 1%.
e. The range of remedies is broader, so that the court could grant at least partial relief.
III Facts which have occurred after the initial filing of the complaint.

On the same date that I filed this case in the Marion County Clerk’s Office, I then walked a few feet to the early voting desk, and attempted to cast my vote in the Republican primary. When I declined to show an ID, I was told that I would not be allowed to vote. I was not offered a provisional ballot. I then asked if I could be given a provisional ballot. I was instructed to go to the election board office in the same room. I met with an official who recognized me from a prior round of my attempting to have my vote counted. He got me a provisional ballot, which I cast. This ballot has not been counted. I want to have this vote counted, as the minimum amount of relief to which I am entitled. Other provisional ballots, made provisional because of voter ID, have not been counted. I want those votes counted, in the absence of any showing of good cause why a particular ballot will not be counted. These votes are not outcome determinative of the election, but they are still important, both to the voters and to the process.
On the night before the last of the ten days for me to go to the clerk’s office and show an ID in order to have my vote counted per the current policy, my wallet was stolen by a pickpocket, near 13th and Illinois Sts. In order to get a new license, I first had to get a birth certificate. I had one somewhere but can’t find it; getting a new one was easier. Generally, you can’t get a birth certificate without a driver’s license, and you can’t get a driver’s license without a birth certificate, but I found an alternative method. This involved driving to Delaware (round trip 1200 miles), getting my mother, finding the Vital Statistics office at its obscure location near Price’s Corner in a suburban area in New Castle County, paying a $10 tax to apply for a birth certificate, and getting my birth certificate, on May 21, 2008. I then returned to Indiana. On May 27, I went to the BMV office on Virginia Avenue to try to get a new license, but there were about 80 people in front of me and it seemed like it would be a long wait, so I went to the Beech Grove office of the BMV. There, I was told that I could not get a driver’s license, because the name on my birth certificate doesn’t match the name on my driver’s license. (My name was changed when I was a minor.) They have a different supervisor there than when I had this same problem several years ago, when it took me a week and hours of meetings at the BMV state headquarters to get it fixed. I then went to the Franklin Road office, where a nice lady gave me my new license, for $5, although she told me that because of the difference in names I won’t be able to renew my license when it expires.
These circumstances are one person’s example of the degree of burden imposed by the ID requirement, in a case in which I was actually known by the election official who gave me the provisional ballot, and go to show the unreasonableness of the ID requirement as applied to me.
Plaintiff moves that the complaint be understood as incorporating these additional new facts, or that alternatively plaintiff be granted leave to file a supplement to the complaint with the above text.
IV Comments on affirmative defenses.
The County’s answer contains a laundry list of affirmative defenses. These include,
1 Failure to state a claim
2 Mootness.
3. Proximate cause.
4. Ripeness
5. Not a custom, policy or practice.
6. Lack of requisite personal involvement.
7. Qualified Immunity
8. Standing
9. Monell
10. Failure to mitigate damages.
11. Plaintiff has photo ID.
12. Barred by Crawford.
13. Statute is not severe and is nondiscriminatory and is based on important regulatory interests.
14. Reserved.

1. The complaint states a claim, 17 of them. If the facts are true, and if the law is as plaintiff claims, then he is entitled to the relief sought. At this stage, the facts must be taken as true.
2. The complaint is not moot, for at least four reasons. My vote in the primary has not yet been counted. My ability to vote in the Fall is at risk. I seek damages. The claims are capable of repetition yet evading review. Roe v Wade, Majors v Abell I.
3. Proximate cause: The County, and White, are enforcing the statutory provisions and have adopted it as their policy, and under that policy are preventing plaintiff from voting, proximately causing his injury in fact.
4. The claims are ripe, and became ripe when I was first denied the vote in 2006, and is continuing.
5. The county has implemented the statutory program, and has adopted it as its custom, policy and practice. There have been enough election cycles since 2006 to establish the practice as a custom, followed at each of 900 precincts, against at least a hundred thousand voters, multiple times. It is their policy and it is their practice. The county can demonstrate that it does not have a policy or practice of requiring voter ID by publicly announcing that it will not require voter ID for the Fall election, and then allowing plaintiff to vote.
6. White, the county clerk and chief election authority, has adopted the voter ID program as her and the county’s policy, although she campaigned against it and expressed reservations in the County’s reply brief in Crawford. Her actions are attributable to the County.
7. The County, a municipality, does not enjoy qualified immunity. White does not enjoy qualified immunity because she has not been sued in her personal capacity, but only her official capacity. The Doe defendants would be in a position to argue QI, but counsel for the county does not represent them, and currently their status is in limbo, as they have been dismissed, but not finally dismissed. The warrant requirement is sufficiently established law to defeat QI as to some claims, but the Does will be able to argue QI as to the First and 14th A claims in light of Crawford, but at this point they have not been identified and served and appeared by counsel or otherwise, and it is too soon to speculate as to what defenses they might raise.
8. As a registered voter whose provisional votes are not being counted, and who expects to be denied the vote again November, I have standing. As a resident who is injured if Marion County is denied free and equal elections, I am injured. As a person who associates politically with the supporters of Ron Paul, in the primary, and the Libertarian Party, in the general election, I am injured by the statutory scheme’s invidious discrimination against those who are aware of and do not waive their rights to be free from an unwarranted suspicionless search, because these tend to be exactly the voters who tend to support Paul and the party.
9. While the complaint does not mention Monell, or any other case, by name, Monell is the basis for plaintiff’s damage claim against the county under 1983; the complaint does state a claim under Monell.
10. Plaintiff is forced by the defendant’s policy to either not be able to vote, or to be subjected to an unwarranted suspicionless search. Either way, his rights are violated, but not voting is the lesser evil and is the means by which he mitigated his damages.
11. Plaintiff admits he has photo identification. This is not an affirmative defense. In the absence of at least Terry type reasonable suspicion and offer safety concerns, plaintiff is under no legal duty to display a driver’s license when not driving, or to display a passport when not crossing a border. Hiibel v Arizona. Perhaps someday the Supreme Court will create a voting booth exception to the Fourth Amendment. It has not done so, not in Crawford, not in Hiibel, not in any other case, and no lower court has the authority to do so. Exceptions to the warrant requirement are rare and narrow and disfavored. Edmond v Indianapolis. Perhaps the court will take this case and use it to create such an exception. Until it does so, the Fourth Amendment applies to the search of ID as a condition of voting. The exercise of one right cannot be made contingent on waiving another.
12. Crawford is discussed supra.
13. The statute is not a law, because it conflicts with the constitution, and is void. The statute is severe as applied to plaintiff, because it is preventing him from voting. It is discriminatory because it singles out those like plaintiff who are unwilling to waive their rights. That is a small minority of Indiana voters, but one is enough. It is discriminatory against the supporters of Paul or the Libertarian Party or other candidates who run on the principles of respect for the constitution and freedom and privacy, because exactly those voters who support such views will be deterred from voting. Chandler v Miller.
14. Defendants properly reserve additional defenses.

Respectfully Submitted,


Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164

I hereby certify that on or by July 11, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.

Richard McDermott, et al.
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

Robbin Stewart.

C:\Documents and Settings\Administrator\My Documents\stewartvmarion071020082.rtf

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