Wednesday, September 30, 2009
Entry Directing Further Proceedings
The plaintiff shall report within ten days what effect, of any, the effect of the
decision in League of Women Voters of Indiana v. Rokita, 2009 WL 2973120 (Ind. Ct. App.
Sept. 17, 2009), has on his claims in this case or how the case should now proceed from
his perspective.
IT IS SO ORDERED.
Here's a first draft of my thoughts in response. This is not a filed document or a finished document.
The court, appropriately, has asked me to explain how LWV affects this case.
A. Currently pending is my motion to amend or supplement the complaint, to add the facts which resulted when the injunction was denied and I was prohibited from voting, and many voters’ votes weren’t counted. I seek to amend my complaint again, to add an Article I section 23 claim, in order to more directly invoke the authority of LWV.
B. I renew my motion for certification to the Indiana Supreme Court. Unless transfer is denied, which seems unlikely, the Court will be hearing LWV on an appeal by the state or cross-appeals. (I believe the LWV court erred in its analysis of Article II section II, and the plaintiffs may cross-appeal on that point.) It would be appropriate to certify and then consolidate the two cases. This is desirable for at least two reasons, the facts and the law. LWV, like Crawford, is a facial challenge without a lot of facts. My case is an as-applied as well as facial challenge, and involves actual elections at which I was actually denied the vote, and provides concrete illustration of how voter ID does and doesn’t work. The record in my case is thin, because the court ended discovery before it had hardly begun, denying me a full and fair opportunity to litigate the merits, but is still more fact-based than LWV.
My case raises an Article II section 1 claim, which would provide the Court an alternative text in which to examine equality and voter ID, in light of the tension between LWV and Collins v. Day in interpreting Article I section 23.
Of course, the Court would be free to decline to accept the certification.
C. Unlike LWV, I have sought injunctive relief, so that I would be able to cast a vote in the 2008 elections, and so that all of the votes would be counted. The election has now passed, but it would still be possible to allow me to vote, and to order the provisional votes to be counted, and the published vote counts to be corrected. In Marion County, there are enough provisional votes at issue that the secrecy of the ballot would not be affected. I would be satisfied with having this done in Marion County only, rather than state-wide. I leave that issue to the discretion of the court. Since the state has intervened as a party, statewide relief would be an appropriate remedy. But the smaller the county, the greater the chance that counting these votes now would impact the secrecy of the ballot. Perhaps this stage could wait until LWV becomes final. On the other hand, the sooner the better. The irreparable harm continues each day my vote remains uncast and the provisional votes remain uncounted. Of course, I have no objection to a financial settlement as an alternative to casting my vote and having the votes counted, even though this would be contrary to the public interest.
D. Even if the court declines to revisit the 2008 election, it should issue a temporary injunction to prevent voter ID from being used in the near term, for example in any special elections which come up, and prevent voter ID from being advertized, promoted, or in other ways used to threaten voters with disenfranchisement. An injunction should issue which is temporary, and expires once the Indiana Supreme Court rules on the merits. The Court’s previous ruling denying injunction was filled with errors. Now that, as a matter of Indiana law, the voter ID act is unconstitutional and is null and void, my likelihood of success on the merits – the most important of the four factors - is significantly stronger. There is no public interest or state interest in enforcing an unconstitutional statute. I am experiencing irreparable harm. At the moment, I am being treated as a second class citizen. Since 2005, I have not been allowed to vote. Felons have greater voting rights in Indiana than I do. It will not burden the county to conduct free and open elections. As the county said in its brief to the Supreme Court in Crawford, elections will be more secure and reliable without voter ID than with it. It is by no means certain that LWV section 23 ruling will survive appeal. But an injunction can issue based on “serious concerns going to the merits”, and there is at least that much here. (It is interesting to note that every Republican judge, except Justice Souter, has found voter ID constitutional, while every Democratic judge, except the panel in Stewart v Marion County, has found voter ID unconstitutional. The Indiana Supreme Court has a Democratic majority.)
E. Among other relief, I have sought damages. Since it has now been determined that voter ID as enacted is unconstitutional and void, it cannot have been a valid basis for denying me the right to vote and denying to every Indiana citizen the right to a free and equal election. My rights, including my First Amendment rights and my voting rights under the state constitution, were violated. I am seeking a jury trial on the amount of damages. Of course, if the defendants were willing to stipulate to a reasonable figure for such damages, and both sides could agree on a reasonable discount for whatever probability there is that both LWV will be overturned on appeal and I won’t succeed an any of my claims, then we could settle this case now for a dollar amount. However, I do not expect that either the county or the state will be willing to settle, and I expect that we will continue to litigate.
F. Appointment of counsel: I am a pro se plaintiff. I am indigent. Not in the sense of being absolutely penniless, but in the sense that I do not have enough liquid capital to afford to hire competent counsel for this case. I do not even have funds to buy a copy of defendants’ deposition of me. Every dollar I have for this case is earmarked for filing fees and printing costs, which I estimate will run between $1000-2000 before the case is over. I had initially expected, given the public importance of the case, that I would have little trouble finding pro bono counsel, but I haven’t been able to. Because this case is of significant public importance, and I recognize my own limitations in being able to adequately pursue it, I ask the court to consider appointing counsel. The strongest counter-argument to this request is that I am a former member of the bar, and even once appeared in this court as counsel. But I felt that I should ask.
G. In League of Women Voters v Rokita, (Ind. Ct. App. Sept. 17, 2009), (LWV), Indiana’s voter ID scheme was found to violate the state constitution.
LVW is not final, and will be appealed to the Indiana Supreme Court, where the outcome is uncertain. But for now, voter ID is unconstitutional as a matter of Indiana law, of which this court should take notice.
Stewart v Marion is a case which was filed in state court raising state claims, with the intent of obtaining a ruling from the Indiana Supreme Court. LWV was a facial challenge by plaintiffs with deep pockets and counsel, who could afford the luxury of a bifurcated case. In contrast, my case is an as applied as well as facial challenge, which raises both federal and state claims, in part in order to invoke 42 USC 1983 and 1985, in order to try to attract counsel, which so far has been unsuccessful. Federal claims would have been waived if not plead. Defendants, as was their right, removed to federal court.
I believe that the court abused its discretion in first refusing to remand the state issues back to state court, and then denying certification. This is a reprise of an error made in my previous visit to this court, when the court improperly dismissed Majors v Abell in a series of errors that included a mis-construction of the statute.
The court may also have abused its discretion in denying injunctive relief. If, as LWV has ruled, the voter ID act is unconstitutional, and thus void, I was irreparably harmed when the court allowed defendants to deny my vote in the 2008 election, and to deny a free and equal election at which all the votes would be counted. Approximately 1000 votes in Indiana have not been counted for reason of voter ID from the 2008 election. It does not appear that these votes were dispositive in any election. In one race in there was a tie, in an election with 8 provisional votes, but I am not aware that any of these were ID-related provisional ballots. In the 26th Representative district, the margin of victory was less than 25 votes. In the presidential race, the margin of victory was about 5000 votes. In the 2008 primary election, one race turned on whether a provisional ID ballot was counted. In the past in Marion County, races have turned on as few as 5 votes. Horseman v Keller. That the votes were probably not outcome-determinative does not mean that no harm occurred. The denial of a lawful vote is a violation of the First Amendment and of the Indiana Constitution article II. Where there was irreparable harm under an unconstitutional statute, it was an error of law and abuse of discretion to deny the injunction.
On the other hand, LWV succeeded on their Article I section 23 claim, while my complaint, as filed, contained no section 23 claim. Both my case and LWV raise equality of voting arguments, but mine are under Article II section 1, the right to free and equal elections. Whether Indiana’s voter ID is unconstitutional under the free and equal elections clause has yet to be ruled on by an Indiana court. LWV did not raise any section 1 claim. The LWV court found that voter ID unconstitutionally creates unequal elections, but this is not a ruling on section 1, just as the Crawford opinions are not a ruling on my 24th Amendment claim.
Courts, especially federal courts, rule only on the issues before them. It is conceivable that the injunction was properly denied, if every one of my then claims fails. But now the landscape has changed, because the voter ID act is now, at least for now, null and void, and there is no basis for the state or county to be able to claim any right to enforce it against me or others. LVW sought only declaratory prospective relief. In contrast, I sought injunctive and declaratory relief and damages.
To summarize, the court should do the following:
It should rule to grant my currently pending motion to amend or supplement the complaint, and allow a further amendment to add a section 23 claim.
It should certify the state constitutional questions to the Indiana Supreme Court, to provide the Indiana Supreme Court the opportunity to consolidate the two cases, so that it can adjudicate whether voter ID violates Art. 1 section 23 or Art. II sections 1 or 2.
It should temporarily enjoin the voter ID act, including any advertisement or written threats of enforcement.
It should direct the county or the county and the state, to allow me to cast a ballot, to count the as-yet uncounted provisional ballots from 2008, to publish the new vote totals, but not to re-open the outcome of the 2008 elections.
It might want to schedule a settlement conference, if there is any willingness of the defendants to participate.
The state should be given a reasonable time to respond to these filings.
Respectfully submitted,
Robbin Stewart
@ Certifications.
The plaintiff shall report within ten days what effect, of any, the effect of the
decision in League of Women Voters of Indiana v. Rokita, 2009 WL 2973120 (Ind. Ct. App.
Sept. 17, 2009), has on his claims in this case or how the case should now proceed from
his perspective.
IT IS SO ORDERED.
Here's a first draft of my thoughts in response. This is not a filed document or a finished document.
The court, appropriately, has asked me to explain how LWV affects this case.
A. Currently pending is my motion to amend or supplement the complaint, to add the facts which resulted when the injunction was denied and I was prohibited from voting, and many voters’ votes weren’t counted. I seek to amend my complaint again, to add an Article I section 23 claim, in order to more directly invoke the authority of LWV.
B. I renew my motion for certification to the Indiana Supreme Court. Unless transfer is denied, which seems unlikely, the Court will be hearing LWV on an appeal by the state or cross-appeals. (I believe the LWV court erred in its analysis of Article II section II, and the plaintiffs may cross-appeal on that point.) It would be appropriate to certify and then consolidate the two cases. This is desirable for at least two reasons, the facts and the law. LWV, like Crawford, is a facial challenge without a lot of facts. My case is an as-applied as well as facial challenge, and involves actual elections at which I was actually denied the vote, and provides concrete illustration of how voter ID does and doesn’t work. The record in my case is thin, because the court ended discovery before it had hardly begun, denying me a full and fair opportunity to litigate the merits, but is still more fact-based than LWV.
My case raises an Article II section 1 claim, which would provide the Court an alternative text in which to examine equality and voter ID, in light of the tension between LWV and Collins v. Day in interpreting Article I section 23.
Of course, the Court would be free to decline to accept the certification.
C. Unlike LWV, I have sought injunctive relief, so that I would be able to cast a vote in the 2008 elections, and so that all of the votes would be counted. The election has now passed, but it would still be possible to allow me to vote, and to order the provisional votes to be counted, and the published vote counts to be corrected. In Marion County, there are enough provisional votes at issue that the secrecy of the ballot would not be affected. I would be satisfied with having this done in Marion County only, rather than state-wide. I leave that issue to the discretion of the court. Since the state has intervened as a party, statewide relief would be an appropriate remedy. But the smaller the county, the greater the chance that counting these votes now would impact the secrecy of the ballot. Perhaps this stage could wait until LWV becomes final. On the other hand, the sooner the better. The irreparable harm continues each day my vote remains uncast and the provisional votes remain uncounted. Of course, I have no objection to a financial settlement as an alternative to casting my vote and having the votes counted, even though this would be contrary to the public interest.
D. Even if the court declines to revisit the 2008 election, it should issue a temporary injunction to prevent voter ID from being used in the near term, for example in any special elections which come up, and prevent voter ID from being advertized, promoted, or in other ways used to threaten voters with disenfranchisement. An injunction should issue which is temporary, and expires once the Indiana Supreme Court rules on the merits. The Court’s previous ruling denying injunction was filled with errors. Now that, as a matter of Indiana law, the voter ID act is unconstitutional and is null and void, my likelihood of success on the merits – the most important of the four factors - is significantly stronger. There is no public interest or state interest in enforcing an unconstitutional statute. I am experiencing irreparable harm. At the moment, I am being treated as a second class citizen. Since 2005, I have not been allowed to vote. Felons have greater voting rights in Indiana than I do. It will not burden the county to conduct free and open elections. As the county said in its brief to the Supreme Court in Crawford, elections will be more secure and reliable without voter ID than with it. It is by no means certain that LWV section 23 ruling will survive appeal. But an injunction can issue based on “serious concerns going to the merits”, and there is at least that much here. (It is interesting to note that every Republican judge, except Justice Souter, has found voter ID constitutional, while every Democratic judge, except the panel in Stewart v Marion County, has found voter ID unconstitutional. The Indiana Supreme Court has a Democratic majority.)
E. Among other relief, I have sought damages. Since it has now been determined that voter ID as enacted is unconstitutional and void, it cannot have been a valid basis for denying me the right to vote and denying to every Indiana citizen the right to a free and equal election. My rights, including my First Amendment rights and my voting rights under the state constitution, were violated. I am seeking a jury trial on the amount of damages. Of course, if the defendants were willing to stipulate to a reasonable figure for such damages, and both sides could agree on a reasonable discount for whatever probability there is that both LWV will be overturned on appeal and I won’t succeed an any of my claims, then we could settle this case now for a dollar amount. However, I do not expect that either the county or the state will be willing to settle, and I expect that we will continue to litigate.
F. Appointment of counsel: I am a pro se plaintiff. I am indigent. Not in the sense of being absolutely penniless, but in the sense that I do not have enough liquid capital to afford to hire competent counsel for this case. I do not even have funds to buy a copy of defendants’ deposition of me. Every dollar I have for this case is earmarked for filing fees and printing costs, which I estimate will run between $1000-2000 before the case is over. I had initially expected, given the public importance of the case, that I would have little trouble finding pro bono counsel, but I haven’t been able to. Because this case is of significant public importance, and I recognize my own limitations in being able to adequately pursue it, I ask the court to consider appointing counsel. The strongest counter-argument to this request is that I am a former member of the bar, and even once appeared in this court as counsel. But I felt that I should ask.
G. In League of Women Voters v Rokita, (Ind. Ct. App. Sept. 17, 2009), (LWV), Indiana’s voter ID scheme was found to violate the state constitution.
LVW is not final, and will be appealed to the Indiana Supreme Court, where the outcome is uncertain. But for now, voter ID is unconstitutional as a matter of Indiana law, of which this court should take notice.
Stewart v Marion is a case which was filed in state court raising state claims, with the intent of obtaining a ruling from the Indiana Supreme Court. LWV was a facial challenge by plaintiffs with deep pockets and counsel, who could afford the luxury of a bifurcated case. In contrast, my case is an as applied as well as facial challenge, which raises both federal and state claims, in part in order to invoke 42 USC 1983 and 1985, in order to try to attract counsel, which so far has been unsuccessful. Federal claims would have been waived if not plead. Defendants, as was their right, removed to federal court.
I believe that the court abused its discretion in first refusing to remand the state issues back to state court, and then denying certification. This is a reprise of an error made in my previous visit to this court, when the court improperly dismissed Majors v Abell in a series of errors that included a mis-construction of the statute.
The court may also have abused its discretion in denying injunctive relief. If, as LWV has ruled, the voter ID act is unconstitutional, and thus void, I was irreparably harmed when the court allowed defendants to deny my vote in the 2008 election, and to deny a free and equal election at which all the votes would be counted. Approximately 1000 votes in Indiana have not been counted for reason of voter ID from the 2008 election. It does not appear that these votes were dispositive in any election. In one race in there was a tie, in an election with 8 provisional votes, but I am not aware that any of these were ID-related provisional ballots. In the 26th Representative district, the margin of victory was less than 25 votes. In the presidential race, the margin of victory was about 5000 votes. In the 2008 primary election, one race turned on whether a provisional ID ballot was counted. In the past in Marion County, races have turned on as few as 5 votes. Horseman v Keller. That the votes were probably not outcome-determinative does not mean that no harm occurred. The denial of a lawful vote is a violation of the First Amendment and of the Indiana Constitution article II. Where there was irreparable harm under an unconstitutional statute, it was an error of law and abuse of discretion to deny the injunction.
On the other hand, LWV succeeded on their Article I section 23 claim, while my complaint, as filed, contained no section 23 claim. Both my case and LWV raise equality of voting arguments, but mine are under Article II section 1, the right to free and equal elections. Whether Indiana’s voter ID is unconstitutional under the free and equal elections clause has yet to be ruled on by an Indiana court. LWV did not raise any section 1 claim. The LWV court found that voter ID unconstitutionally creates unequal elections, but this is not a ruling on section 1, just as the Crawford opinions are not a ruling on my 24th Amendment claim.
Courts, especially federal courts, rule only on the issues before them. It is conceivable that the injunction was properly denied, if every one of my then claims fails. But now the landscape has changed, because the voter ID act is now, at least for now, null and void, and there is no basis for the state or county to be able to claim any right to enforce it against me or others. LVW sought only declaratory prospective relief. In contrast, I sought injunctive and declaratory relief and damages.
To summarize, the court should do the following:
It should rule to grant my currently pending motion to amend or supplement the complaint, and allow a further amendment to add a section 23 claim.
It should certify the state constitutional questions to the Indiana Supreme Court, to provide the Indiana Supreme Court the opportunity to consolidate the two cases, so that it can adjudicate whether voter ID violates Art. 1 section 23 or Art. II sections 1 or 2.
It should temporarily enjoin the voter ID act, including any advertisement or written threats of enforcement.
It should direct the county or the county and the state, to allow me to cast a ballot, to count the as-yet uncounted provisional ballots from 2008, to publish the new vote totals, but not to re-open the outcome of the 2008 elections.
It might want to schedule a settlement conference, if there is any willingness of the defendants to participate.
The state should be given a reasonable time to respond to these filings.
Respectfully submitted,
Robbin Stewart
@ Certifications.
