Saturday, November 15, 2008
Here's the docketing statement at the 7th circuit.
Currently, the outcome of one close state rep race may turn on whether provisional ballots are counted.
UNITED STATES COURT OF APPEALS FOR SEVENTH CIRCUIT
Robbin Stewart ,
)
Plaintiff-Appellant,
)
) No. 08-3788
)
vs.
) Cause No. 1:08-cv-566-LJM-TAB
)
Marion County, Beth White,
)
) Prior cause no. 49D05-0804-CT-017641
Defendants-Appellees
)
)
State of Indiana,
)
Intervenor.
DOCKETING STATEMENT
Plaintiff, pro se, submits this optional Docketing Statement pursuant to the Circuit Court
Rules and the Federal Rules of Appellate Procedure:
1. Court-Location, Docket Number and Judge:
Plaintiff’s interlocutory appeal of the denial of a preliminary injunction concerns Cause
No. 1:08-cv-566-LJM-TAB in the Indianapolis Division of the Southern District of
Indiana, Judge Larry McKinney, in a case removed from the Marion County (Indiana)
courts, formerly 49D05-0804-CT-017641
2. Parties to this Appeal:
Plaintiff-Appellant is Robbin Stewart. Defendant-Apellees are (1) Elizabeth (Beth)
White, who is the Clerk and chief election official of Marion County and (2) Marion
County. The State of Indiana has intervened.
3. Corporate Registration Disclosure: Plaintiff is a natural person and not a
corporation. No corporations are involved.
4. Brief Description of the underlying factual basis giving rise to Petitioner filing the
present cause of action before this Court:
I am a person who wants to vote, but does not want to be subjected to an unwarranted
search of my driver’s license. I have been denied the vote at the spring and fall 2006
elections, being offered only provisional ballots which were then not counted, and was
deterred from trying to vote in 2007. In spring of 2008, after being denied a temporary
restraining order in state court, I was not allowed to cast a regular ballot but only a
provisional vote which has not been counted. I expected that at the fall election I would
again be offered only a provisional ballot which would not be counted. I sought a
Page 2
2
preliminary injunction, which was denied in October. I filed an emergency motion for an
interlocutory appeal of the denial of the injunction, seeking to have my own vote counted,
and seeking to have al other ID-related provisional ballots counted. There are probably
500-1000 of these statewide, estimating from the 399 ID provisional ballots in the
primary, of which 80% were not counted.
An important update is that at the polling place on Tuesday, I was not allowed to vote at
all, so I have no provisional ballot to count. The issues are still live because there are
other provisional votes to count, including that of Joell Palmer, who expects to join this
action as a co-plaintiff, and because my provisional vote at the primary remains
uncounted.
5. Result of Prior Court Proceedings:
A preliminary injunction was denied by the district court.
6. Issues to be presented on Appeal:
Whether the district court erred in applying deferential and cursory review instead of
applying either the Anderson v Celebreeze four-part test or strict scrutiny under Harmon
v Forsennius or Norman v Reed.
Whether dicta about poll taxes in the Seventh Circuit panel’s Crawford opinion is
determinative of the Twenty-Fourth Amendment claim.
Whether the court erred in requiring plaintiff to cite a case finding that probable cause is
required for voter ID, and finding the plaintiff’s cited Fourth Amendment and article 11
cases irrelevant, where this is a case of first impression so that there are no cases on how
the 4
th
Amendment applies to vote ID, and the cited cases set out general principles of
Fourth Amendment law as applied to IDs, elections, and unwarranted searches by Marion
County.
Whether the court erred in its analysis of Article II of the Indiana constitution.
In addition to the denial of preliminary injunction, there have been several other errors by
the district court about which the Circuit court may of may not have jurisdiction to hear
on an interlocutory basis:
The abuse of discretion in failing to remand state law questions to state court, the refusal
to certify state law questions to the Indiana Supreme Court, and the dismissal of 3 Jane
Doe defendants because their names and addresses are not yet known to plaintiff but are
known to defendants,
7. Timeliness of the filing Petition before this Court:
Page 3
3
The action is timely because it was filed shortly after the district court ruled and while the
issues were still live in that the provisional votes have not yet been counted.
7. Jurisdiction for the action brought before this Circuit Court of Appeals: The
jurisdiction of this Court is invoked by the Petitioner pursuant to 28 USC 1292.
8. Oral Argument: The Petitioner waives the opportunity to make oral argument on the
Petition before the Circuit Court because time is of the essence.
Respectfully submitted this 11thday of November by Plaintiff-Appellant.
Certificate of Mailing
I hereby certify that on this ____ day of November I caused the above set forth Docketing
Statement to be sent by hand delivery of first class mail or electronic mail to the
following: (redacted)
Currently, the outcome of one close state rep race may turn on whether provisional ballots are counted.
UNITED STATES COURT OF APPEALS FOR SEVENTH CIRCUIT
Robbin Stewart ,
)
Plaintiff-Appellant,
)
) No. 08-3788
)
vs.
) Cause No. 1:08-cv-566-LJM-TAB
)
Marion County, Beth White,
)
) Prior cause no. 49D05-0804-CT-017641
Defendants-Appellees
)
)
State of Indiana,
)
Intervenor.
DOCKETING STATEMENT
Plaintiff, pro se, submits this optional Docketing Statement pursuant to the Circuit Court
Rules and the Federal Rules of Appellate Procedure:
1. Court-Location, Docket Number and Judge:
Plaintiff’s interlocutory appeal of the denial of a preliminary injunction concerns Cause
No. 1:08-cv-566-LJM-TAB in the Indianapolis Division of the Southern District of
Indiana, Judge Larry McKinney, in a case removed from the Marion County (Indiana)
courts, formerly 49D05-0804-CT-017641
2. Parties to this Appeal:
Plaintiff-Appellant is Robbin Stewart. Defendant-Apellees are (1) Elizabeth (Beth)
White, who is the Clerk and chief election official of Marion County and (2) Marion
County. The State of Indiana has intervened.
3. Corporate Registration Disclosure: Plaintiff is a natural person and not a
corporation. No corporations are involved.
4. Brief Description of the underlying factual basis giving rise to Petitioner filing the
present cause of action before this Court:
I am a person who wants to vote, but does not want to be subjected to an unwarranted
search of my driver’s license. I have been denied the vote at the spring and fall 2006
elections, being offered only provisional ballots which were then not counted, and was
deterred from trying to vote in 2007. In spring of 2008, after being denied a temporary
restraining order in state court, I was not allowed to cast a regular ballot but only a
provisional vote which has not been counted. I expected that at the fall election I would
again be offered only a provisional ballot which would not be counted. I sought a
Page 2
2
preliminary injunction, which was denied in October. I filed an emergency motion for an
interlocutory appeal of the denial of the injunction, seeking to have my own vote counted,
and seeking to have al other ID-related provisional ballots counted. There are probably
500-1000 of these statewide, estimating from the 399 ID provisional ballots in the
primary, of which 80% were not counted.
An important update is that at the polling place on Tuesday, I was not allowed to vote at
all, so I have no provisional ballot to count. The issues are still live because there are
other provisional votes to count, including that of Joell Palmer, who expects to join this
action as a co-plaintiff, and because my provisional vote at the primary remains
uncounted.
5. Result of Prior Court Proceedings:
A preliminary injunction was denied by the district court.
6. Issues to be presented on Appeal:
Whether the district court erred in applying deferential and cursory review instead of
applying either the Anderson v Celebreeze four-part test or strict scrutiny under Harmon
v Forsennius or Norman v Reed.
Whether dicta about poll taxes in the Seventh Circuit panel’s Crawford opinion is
determinative of the Twenty-Fourth Amendment claim.
Whether the court erred in requiring plaintiff to cite a case finding that probable cause is
required for voter ID, and finding the plaintiff’s cited Fourth Amendment and article 11
cases irrelevant, where this is a case of first impression so that there are no cases on how
the 4
th
Amendment applies to vote ID, and the cited cases set out general principles of
Fourth Amendment law as applied to IDs, elections, and unwarranted searches by Marion
County.
Whether the court erred in its analysis of Article II of the Indiana constitution.
In addition to the denial of preliminary injunction, there have been several other errors by
the district court about which the Circuit court may of may not have jurisdiction to hear
on an interlocutory basis:
The abuse of discretion in failing to remand state law questions to state court, the refusal
to certify state law questions to the Indiana Supreme Court, and the dismissal of 3 Jane
Doe defendants because their names and addresses are not yet known to plaintiff but are
known to defendants,
7. Timeliness of the filing Petition before this Court:
Page 3
3
The action is timely because it was filed shortly after the district court ruled and while the
issues were still live in that the provisional votes have not yet been counted.
7. Jurisdiction for the action brought before this Circuit Court of Appeals: The
jurisdiction of this Court is invoked by the Petitioner pursuant to 28 USC 1292.
8. Oral Argument: The Petitioner waives the opportunity to make oral argument on the
Petition before the Circuit Court because time is of the essence.
Respectfully submitted this 11thday of November by Plaintiff-Appellant.
Certificate of Mailing
I hereby certify that on this ____ day of November I caused the above set forth Docketing
Statement to be sent by hand delivery of first class mail or electronic mail to the
following: (redacted)
