palmer v marion county

October 29, 2008
Publication: Indiana Lawyer (Indianapolis, IN)
Section: IBA News
Page: 15

Judge won't halt voter ID law

- Michael W. Hoskins

Less than two weeks before the Nov. 4 general election, a federal judge in Indianapolis decided he won't interfere with the state law requiring voters to show photo identification at the polls. On Oct. 21, U.S. District Judge Larry McKinney denied a temporary injunction request from a Cumberland attorney and resident who is challenging Indiana's three-year-old voter ID law that's been upheld by the Supreme Court of the United States.

Plaintiff Robbin G. Stewart filed the suit in April in Marion County, though it was later removed to the Southern District of Indiana to resolve the multiple federal and state constitutional claims. In September, Stewart asked the judge for one of three potential relief options: that he be allowed to vote without showing the required photo ID; that the state and county be required to count all provisional ballots cast by those not showing photo ID; or that the state not be allowed to enforce the voter ID law during the Nov. 4 general election.

Judge McKinney heard arguments on the issue on Oct. 14 and took the matter under advisement for a week before issuing his decision.

In his 10-page ruling, Judge McKinney rejected each of Stewart's arguments, finding that he didn't represent a class of any similarly situated Hoosier voters and that he didn't adequately show any hardship in obtaining a photo ID. The court referenced how Stewart himself had obtained a valid license, and that meant he can vote and wouldn't suffer any irreparable injury by the injunction denial.

Turning to the landmark ruling issued earlier this year in Crawford v. Marion County Election Board, 128 S.Ct. 1610 (2008), Judge McKinney noted that the reasoning in that facial challenge case applies to Stewart, even though he'd asserted this as an as-applied challenge that survives the Crawford scrutiny.

"Plaintiff has not designated any evidence to demonstrate a burden that, on balance, outweighs the State's interest in protecting against voter fraud," the judge wrote.

Judge McKinney also rejected Stewart's federal constitutional claims that the state law violates the First and 21st Amendments, finding that the 7th Circuit Court of Appeals in Chicago had explicitly held in Crawford that the law isn't a poll tax and that all courts had decided it didn't violate the First Amendment.

On a claim that the law violates the Fourth Amendment on search and seizures, the judge pointed out that Stewart did not cite a single case holding that poll workers must have probable cause before requiring voters to produce a valid photo ID, and as a result he didn't show he could win on that claim.

The judge also rejected Stewart's state constitutional claims, finding that he didn't cite adequate legal authority and has not demonstrated any likelihood of success on the merits.

"I'm disappointed but not shocked," Stewart said about the judge's ruling. "The case is still alive, it's not like he dismissed it or anything. The next step is to take this to the 7th Circuit for some preliminary relief."

Stewart said he plans to vote on Nov. 4, but he won't show the state-required photo identification and is skeptical whether his vote will be counted.

"I'll try without any ID, and will do a provisional ballot that probably won't count " he said "We'll see "

Judge McKinney today turned down my request for injunction in Stewart v Marion.
Let's see if I can grab the text from the pdf.
Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION


ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)

MARION COUNTY, et al. )
Defendants, )
)
STATE OF INDIANA, )
Intervenor. )


ORDER ON PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTIVE RELIEF

This matter is before the Court on Plaintiff’s, Robbin Stewart (“Plaintiff”), Motion for
Temporary Injunctive Relief. Plaintiff initiated this action against Marion County, et al,
(“Defendants”), asserting several federal and state constitutional claims attacking the validity of
Indiana’s “Voter ID Law,” Senate Enrolled Act No. 498, codified at various sections of the Indiana
Code. The State of Indiana (the “State”) (Defendants and the State collectively, the “Government”),
intervened in this matter. The Court has considered the parties’ arguments and, for the following
reasons, DENIES Plaintiff’s Motion for Temporary Injunctive Relief.

I. BACKGROUND1
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

1 Having considered Plaintiff’s brief in reply, the Court hereby GRANTS Plaintiff’s
Motion for Leave to File Supplemental Brief.


Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 2 of 10

United States or the sState of Indiana. Ind. Code § 3-11-8-25.1. The photo identification must
contain the following information and meet the following conditions:

(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 record;”
(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).2
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.
Plaintiff seeks injunctive relief in one or all of the following three ways: (1) an order to
require the Government to count his vote in the primary and fall election without showing

2For a more extensive discussion of the Voter ID Law, see Indiana Democratic Party v.
Rokita, 458 F. Supp. 2d 775 (S.D. Ind. 2006).

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Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 3 of 10

photographic identification; (2) an order to require the Defendants to count all provisional ballots
cast as a direct result of citizens’ failure to show valid photographic identification; and (3) an order
to enjoin the enforcement of the Voter ID Law for the 2008 election cycle.

II. STANDARD
When a party seeks to enjoin the application of a statute on the grounds that the statute is
unconstitutional, the moving party must overcome the strong presumption that the statute is
constitutional. See, e.g., Gov’t Suppliers Consolidating Serv., Inc. v. Bayh, 734 F. Supp. 853, 862

(S.D. Ind. 1990).In assessing whether a preliminary injunction is warranted, the Court considers
whether the movant has demonstrated that:
(1) that movant has a reasonable likelihood of success on the merits;
(2) the movant has no adequate remedy at law;
(3) the movant will suffer irreparable harm if preliminary relief is denied;
(4) the irreparable harm the movant will suffer without injunctive relief is greater
than the harm the opposing party will suffer if the preliminary relief is granted; and
(5) the preliminary injunction will not harm the public interest.
See St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007).
III. DISCUSSION
As an initial matter, the Court notes that Plaintiff does not represent a class of similarly
situated Indiana voters such that he can rely on others’ voting experiences in support of his Motion.
Additionally, Plaintiff has not offered any evidence of the alleged difficulties in getting a free state


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Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 4 of 10

issued photographic identification from the Bureau of Motor Vehicles. Plaintiff must rely upon, and
will be limited to, his own facts, especially the fact that he currently possesses a valid, state-issued
photographic identification. With this in mind, the Court turns to Plaintiff’s arguments.

Plaintiff’s Complaint includes the following claims under:(1) the Voter ID Law violates
Article II, §§ 1 and 2 of the Indiana Constitution by adding qualifications to vote and making
elections other than free and equal; (2) the Voter ID Law violates the Twenty-Fourth Amendment
to the Federal Constitution because the identification requirement is a poll tax; (3) the Voter ID Law
violates the First Amendment because it impinges the right to petition the; (4) the Voter ID Law
violates the Fourth Amendment, and also Article I, § 11 of the Indiana because it constitutes an
unlawful search and seizure; (5) the Voter ID Law violates the Fourteenth Amendment because it
denies equal protection and both substantive and procedural due process; and (6) the Voter ID Law
violates various other provisions in the Indiana Constitution.

The Court first considers the validity of Plaintiff’s claims after the decision in Crawford v.
Marion County Election Bd., 128 S.Ct. 1610 (2008). Next, the Court considers Plaintiff’s arguments
that survive Crawford, as well as Plaintiff’s claims under the Indiana Constitution to determine
whether Plaintiff has a reasonable likelihood of success on the merits.

A. CRAWFORD
In Crawford, the Supreme Court considered the constitutional validity of the Voter ID Law
under the Equal Protection Clause of the Fourteenth Amendment. Although the Justices disagreed
as to the standard of review to be applied to the Voter ID Law, a majority of the Court held that the
Voter ID Law did not violate the Equal Protection Clause on its face because, among other reasons,

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Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 5 of 10

the alleged burden imposed on voters that lacked photographic identification were outweighed by
the State’s interest in protecting the integrity of the election process against voter fraud. Crawford,
at 1623. Specifically, the Court concluded that the Plaintiffs in Crawford had not presented evidence
to demonstrate a severe enough burden on voters.

Plaintiff argues that he still has some likelihood of success even after Crawford for three
reasons: (1) Plaintiff asserts an “as applied’ challenge instead of a facial challenge as in Crawford;

(2) unlike in Crawford, Plaintiff has actually been denied the right to vote; and (3) his Complaint
asserts claims that were not at issue in Crawford. To the extent Plaintiff’s claims were not addressed
in Crawford, the Court agrees with Plaintiff that Crawford does not preclude those claims.
However, the Court concludes that even though Plaintiff asserts an “as applied” challenge
to the Voter ID Law, the reasoning in Crawford still applies to Plaintiff’s claim. Plaintiff has not
designated any evidence to demonstrate a burden that, on balance, outweighs the State’s interest in
protecting against voter fraud. In his briefs, Plaintiff tries to demonstrate that he, and many other
voters, have traveled great distances and paid fees they could not afford in order to get a free, valid
Indiana photographic identification. However, as previously discussed, Plaintiff represents himself
only, and not the rights of other voters. Additionally, Plaintiff succeeded in obtaining valid
identification because he currentlypossessesavalid Indiana photographic identification. Ultimately,
the burden on Plaintiff evidenced here is not significantly distinguishable from that of the plaintiffs
in Crawford. As a result, the State’s interest in protecting against voter fraud is “sufficiently
weighty” to justify its requirement that Plaintiff present photographic identification in order to vote.
Id. at 1616, 1623. Therefore, Plaintiff has not demonstrated a reasonable likelihood of success on
his Fourteenth Amendment claim.

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Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 6 of 10

B. FEDERAL CONSTITUTION CLAIMS
1. Twenty-Fourth Amendment
Plaintiff argues that the Voter ID Law places a “poll tax” on voters. However, the Seventh
Circuit in Crawford v. Marion County Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), explicitly
stated that “[t]he Indiana law is not like a poll tax.” Plaintiff argues that the Seventh Circuit’s
opinion is not valid precedent after the Supreme Court’s decision in the same case. Even assuming
that is true, the Court nonetheless finds the Seventh Circuit opinion persuasive and agrees that the
Voter ID Law is not a poll tax under the Twenty-Fourth Amendment. Therefore, Plaintiff has not
demonstrated a reasonable likelihood of success on his Twenty-Fourth Amendment argument.

2. First Amendment
Plaintiff argues that the Voter ID Law violates the First Amendment. This argument was
flatly rejected by Judge Barker in Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 820-21

(S.D. Ind. 2006). Moreover, although the Seventh Circuit did not consider the First Amendment
argument in its opinion, it nonetheless states, “Regarding the plaintiffs’ other arguments, we have
nothing to add to the discussion by the district judge.” Therefore, it appears to the Court that the
Seventh Circuit agreed with Judge Barker that the Voter ID Law does not violate the First
Amendment. As discussed above, Plaintiff has provided no evidence to distinguish himself from
the voters in Crawford such that the reasoning of the decisions in that case should not apply to him.
As a result, Plaintiff has not demonstrated a reasonable likelihood of success on the merits as to his
First Amendment Claims.
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Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 7 of 10

3. Fourth Amendment
Plaintiff next argues that the Voter ID Law violates his right to be free from unreasonable
search and seizure under the Fourth Amendment. Plaintiff claims that he cannot be asked for
identification in the absence of probable cause that would support a warrant. However, Plaintiff cites
only Terry stop case law to support his assertion. Plaintiff does not cite a single case that holds poll
workers must have probable cause before they can require the voter to produce valid photographic
identification. The Court concludes that the case law Plaintiff cites is not relevant to whether the
State of Indiana may require voters to present valid photographic identification. Therefore, Plaintiff
has failed to demonstrate a reasonable likelihood of success on the merits.

C. INDIANA CONSTITUTION CLAIMS
1. Article II, § 2
Article II, § 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 argues that
the Voter ID Law violates this provision by creating an additional qualification to vote. However,
the Crawford Court viewed the Voter ID Law not as an additional qualification but rather “a
generally applicable, nondiscriminatory voting regulation.” Crawford, 128 S.Ct. at 1623, 1625. The
photographic identification requirement is no more an “additional qualification” than requiring
voters to register or to vote in person. Moreover, Judge Barker held that the Voter ID Law did not
violated Article II, § 2, and the Seventh Circuit affirmed. Rokita, 458 F. Supp. 2d at 843, aff’d 472
F.3d 949 (7th Cir. 2007). The Court agrees with the analysis in Crawford and Rokita and concludes

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Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 8 of 10

that Plaintiff has failed to demonstrate a reasonable likelihood of success on the merits under Article
II, § 2, of the Indiana Constitution.

2. Article II, § 1
Article II, § 1, of the Indiana Constitution provides that “All elections shall be free and
equal[.]” The Indiana Supreme Court, in discussing this provision, has stated:

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 vote of every other elector; when each ballot is as

effective as every other ballot.
Blue v. State ex rel. Brown, 206 Ind. 98, 188 N.E. 583, 589 (1934), overruled on other grounds by
Harrell v. Sullivan, 220 Ind. 108, 40 N.E.2d 115, 120 (1942). Plaintiff argues that the Voter ID Law
violates this provision because not every voter is entitled to vote without intimidation or improper
influence and therefore the elections are not “free and equal.” However, the Indiana Supreme Court
has held that the Indiana Constitution grants 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). Article II, § 1, requires that the legislature ensure that the election process
is not susceptible to fraudulent voting. Id. (“When the ballot box becomes the receptacle of
fraudulent votes, the freedom and equality of elections are destroyed.”). The Voter ID Law is “a
generally applicable, nondiscriminatory voting regulation” that protects Indiana’s electoral process
against fraudulent voting. Crawford, 128 S.Ct. at 1626. The Court concludes that Plaintiff has not
demonstrated some likelihood of success for his Indiana Constitution, Article II, § 1 claim.

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Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 9 of 10

3. Other Claims
Plaintiff asserts multiple remaining claims under the Indiana Constitution but does not cite
to any law to support his argument. In fact, Plaintiff simply states that he asserts several claims
under the Indiana Constitution and that, taken together, because he advances so many claims, his
likelihood of success is increased. However, Plaintiff is required to provide some legal authority that
would demonstrate some likelihood of success on the merits. He has not cited to any legal authority
and, therefore, the Court concludes that Plaintiff has not demonstrated some likelihood of success
on the merits.

D. IRREPARABLE INJURY
Plaintiff has failed to demonstrate some likelihood of success on the merits on any of his
claims. However, the Court must also consider whether Plaintiff has an adequate remedy at law and
whether Plaintiff will suffer irreparable harm if preliminary relief is denied. See St. John’s United
Church of Christ, 502 F.3d at 625. Plaintiff will not suffer irreparable injury if preliminary relief
is denied because he has a valid, state-issued photographic identification. As a result, he can
participate in the election process this year. Therefore, Plaintiff has not satisfied his burden under
Lawson. Id.

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Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 10 of 10

IV. CONCLUSION
For the foregoing reasons, Plaintiff’s, Robbin Stewart, Motion for Temporary Injunctive
Relief is DENIED.

IT IS SO ORDERED this 21st day of October, 2008.

LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution to:

Robbin G. Stewart
STEWART & ASSOCIATES
gtbear@gmail.com

David A. Arthur
INDIANA OFFICE OF THE ATTORNEY GENERAL
David.Arthur@atg.in.gov

Eric James Beaver
INDIANA OFFICE OF THE ATTORNEY GENERAL
eric.beaver@atg.in.gov

Jonathan Lamont Mayes
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
jmayes@indygov.org

Richard G. McDermott
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
rmcdermo@indygov.org

Justin F. Roebel
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
jroebel@indygov.org

A hearing was held Tuesday on whether to have a preliminary injunction in Stewart v Marion County. The arguments mostly restated theses already in the briefs. Maybe a transcript will be available at some future date. Judge McKinney said he will issue a ruling on or by tomorrow, Friday.

Recent activity in the case:
Today:
Hearing set for 10/14 10:00 am.

Filed motion for leave to file supplemental brief in response, and brief.
Filed motion for expedited handling.
9/25
State's brief in opposition to injunction, joined by county.
8/30 my Motion and brief for injunction.
Motion for certification to Indiana Supreme Court
Motion to compel discovery