Wednesday, October 28, 2009
On Wed, Oct 28, 2009 at 10:21 AM, Michael Hoskins wrote:
> Your reaction to that?
A bit disappointed, not shocked. It presents an opportunity for a
second appeal to the 7th circuit, and could even be appealed to the
supreme court. The Supreme Court rarely hears interlocutory appeals.
I probably wont pursue the appeals unless I get a donation to cover
the filing fees.
If I am denied the vote again in November, as it looks that I will be,
I can file a new case, which would have the advantage of re-opening
discovery.
- Show quoted text -
> Your reaction to that?
A bit disappointed, not shocked. It presents an opportunity for a
second appeal to the 7th circuit, and could even be appealed to the
supreme court. The Supreme Court rarely hears interlocutory appeals.
I probably wont pursue the appeals unless I get a donation to cover
the filing fees.
If I am denied the vote again in November, as it looks that I will be,
I can file a new case, which would have the advantage of re-opening
discovery.
- Show quoted text -
Tuesday, October 27, 2009
Judge McKinney has denied an injunction about the use of voter ID in the November election. Marion county voters will vote on whether to increase funding for the Health and Hospital Corporation. No interlocutory appeal will be filed, just because I don't have the money for the filing fee. The basis for the renewed motion for injunction is that voter ID has been struck down as unconstitutional by the state courts, in a case which is not yet final.
"Entry Discussing Second Motion for Preliminary Injunction
The plaintiff’s second motion for preliminary injunction (dkt 60), which would block
enforcement of the Indiana Voter I.D. Law, Senate Enrolled Act No. 483, codified at various
sections of the Indiana Code, at the elections to be held on November 3, 2009, is denied.
The reason for this ruling is that, as discussed in the court’s ruling on the plaintiff’s previous
motion for temporary injunctive relief, the plaintiff has not shown a reasonable likelihood
of success on the merits of his currently pending claims. The same conclusion dictates the
denial of the second motion for preliminary injunction.
IT IS SO ORDERED.
Date:
Distribution:"
"Entry Discussing Second Motion for Preliminary Injunction
The plaintiff’s second motion for preliminary injunction (dkt 60), which would block
enforcement of the Indiana Voter I.D. Law, Senate Enrolled Act No. 483, codified at various
sections of the Indiana Code, at the elections to be held on November 3, 2009, is denied.
The reason for this ruling is that, as discussed in the court’s ruling on the plaintiff’s previous
motion for temporary injunctive relief, the plaintiff has not shown a reasonable likelihood
of success on the merits of his currently pending claims. The same conclusion dictates the
denial of the second motion for preliminary injunction.
IT IS SO ORDERED.
Date:
Distribution:"
Wednesday, October 21, 2009
Welcome electionlawblog.org readers. Stewart v Marion is a case, removed to federal court and currently before Judge McKinney, which claims that voter ID is unconstitutional. I am pro se and need counsel, meanwhile I'd doing the best I can.
I'm an Indiana voter who hasn't been allowed to vote since 2005. My recent filings in this case include
response on how LWV v Rokita affects my case
motion for temporary injunction and TRO
motion for certification to the Indiana Supreme Court on questions of Indiana law
motion to amend the complaint to add an article I section 23 claim
opposition to state's motion to stay
opposition to county's motion to stay.
I'm an Indiana voter who hasn't been allowed to vote since 2005. My recent filings in this case include
response on how LWV v Rokita affects my case
motion for temporary injunction and TRO
motion for certification to the Indiana Supreme Court on questions of Indiana law
motion to amend the complaint to add an article I section 23 claim
opposition to state's motion to stay
opposition to county's motion to stay.
Both sides in the League of Women Voters v Rokita case have appealed.
The Indiana Law Blog has the filings.
The Indiana Law Blog has the filings.
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. )
MOTION FOR LEAVE TO AMEND COMPLAINT
Comes now Plaintiff and for his motion to amend the complaint states as follows.
D1. I move to amend the complaint to add a new count under Article I section 23.
D2. In LWV v Rokita, the Indiana Court of Appeals held that the voter ID Act violates Article I section 23, the equal privileges clause.
D3. New Count:
This count incorporates by reference the fact paragraphs as stated in the First Amended Complaint and in the pending Supplement to the Complaint.
D4. When I was prevented from voting in the 2006 and 2008 primary and general elections, and I am faced with not being allowed to vote in the 2009 special election and all future elections, my right to vote is treated unequally in violation of section 23.
D5. The election statutes create different classes of potential voters, which are treated differently. One class is those who are over 65, and are allowed to vote either in person or by absentee ballot.
D6. Because I am not 65, and am not handicapped and am not ordinarily out of state on election day, I am not eligible to vote absentee, and am subjected to voter ID, and prevented from voting, abridging my fundamental right to vote.
D7. For those who cast their ballots in person, the election statutes create two classes of potential voters, those who are willing to waive their fundamental right to be free from unwarranted causeless search or seizure, and those who are not. Those who waive their search rights are permitted to vote, those who do not are denied the vote. Both classes are denied a fundamental right, but the classes are not treated equally. I belong to the second class.
D8. I experience distress each time I am denied the right to vote. I experience distress each time I am subjected to search without cause, or kept from going somewhere I want to go because it would involve being subjected to an unwarranted search.
D9. Voting is especially important to me. I have worked in political campaigns since I was 10, have held appointed office in four states, have run for office four times, and go out of my way to vote. I have won election cases on two previous occasions. I wrote my Master of Laws thesis on voting rights under state constitutions. Elections are as important to me as basketball is to the average Indiana resident. When I am kept from voting, I am harmed.
Relief sought: I seek to have Indiana’s voter ID act and practices temporarily and permanently enjoined, to get declaratory relief that the act as practiced violates section 23, to be awarded damages as determined by a jury, to be able to have my votes cast and counted, to be awarded costs and fees, and for all other relief as is in the interests of justice.
Respectfully submitted,
/s/Robbin Stewart
ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )
Defendants, )
)
STATE OF INDIANA, )
Intervenor. )
MOTION FOR LEAVE TO AMEND COMPLAINT
Comes now Plaintiff and for his motion to amend the complaint states as follows.
D1. I move to amend the complaint to add a new count under Article I section 23.
D2. In LWV v Rokita, the Indiana Court of Appeals held that the voter ID Act violates Article I section 23, the equal privileges clause.
D3. New Count:
This count incorporates by reference the fact paragraphs as stated in the First Amended Complaint and in the pending Supplement to the Complaint.
D4. When I was prevented from voting in the 2006 and 2008 primary and general elections, and I am faced with not being allowed to vote in the 2009 special election and all future elections, my right to vote is treated unequally in violation of section 23.
D5. The election statutes create different classes of potential voters, which are treated differently. One class is those who are over 65, and are allowed to vote either in person or by absentee ballot.
D6. Because I am not 65, and am not handicapped and am not ordinarily out of state on election day, I am not eligible to vote absentee, and am subjected to voter ID, and prevented from voting, abridging my fundamental right to vote.
D7. For those who cast their ballots in person, the election statutes create two classes of potential voters, those who are willing to waive their fundamental right to be free from unwarranted causeless search or seizure, and those who are not. Those who waive their search rights are permitted to vote, those who do not are denied the vote. Both classes are denied a fundamental right, but the classes are not treated equally. I belong to the second class.
D8. I experience distress each time I am denied the right to vote. I experience distress each time I am subjected to search without cause, or kept from going somewhere I want to go because it would involve being subjected to an unwarranted search.
D9. Voting is especially important to me. I have worked in political campaigns since I was 10, have held appointed office in four states, have run for office four times, and go out of my way to vote. I have won election cases on two previous occasions. I wrote my Master of Laws thesis on voting rights under state constitutions. Elections are as important to me as basketball is to the average Indiana resident. When I am kept from voting, I am harmed.
Relief sought: I seek to have Indiana’s voter ID act and practices temporarily and permanently enjoined, to get declaratory relief that the act as practiced violates section 23, to be awarded damages as determined by a jury, to be able to have my votes cast and counted, to be awarded costs and fees, and for all other relief as is in the interests of justice.
Respectfully submitted,
/s/Robbin Stewart
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. )
RENEWED MOTION FOR CERTIFICATION TO INDIANA SUPREME COURT
Comes now plaintiff and for his motion to certify questions of state law to the Indiana Supreme Court states as follows.
I move to certify the state constitutional claims in this case to the Indiana Supreme Court, or order to give that court an opportunity to consolidate this case with League of Women Voters v Rokita. My case presents a concrete example of how voting rights are abridged by voter ID, and offers alternative texts on which to anchor a decision.
The text of the certified question could be, “Does the Voter ID act violate Article II sections 1 or 2, or Article I sections 1, 9, 11, 12, 23, or 31.”
This is a case which was filed in state court in order to obtain an authoritative ruling on matter of state constitutional law. Under Indiana law there is no analog of 42 USC 1983 and 1985, so federal claims were included as well, as a basis for seeking legal fees in order to try to attract counsel.
Indiana state courts have jurisdiction to authoritatively construe matters of state law. Opinions of federal court are at best advisory. In Crawford, the district and circuit courts erroneously applied a deferential standard as to both federal and state questions. The Crawford courts erred in finding that voter ID does not violate the Indiana constitution. In Crawford I submitted an amicus brief at the en banc stage, urging certification of state law questions and criticizing the erroneous standard of review. The motion to file the amicus was denied by Judge Posner. The 7th circuit is unique in disfavoring amici. I then filed an amicus brief before the United States Supreme Court.
This court erred, in its ruling denying a preliminary injunction, by applying a deferential standard, and finding no likelihood of success under the Indiana Constitution (and also erred in finding that I wouldn’t be irreparably harmed when my vote was denied.)
In my one previous case before this court, Majors v Abell, this court erred in not submitting the question it had certified to the Indiana Supreme Court, and then, after abusing its discretion by not ruling for several years, erred again in dismissing the case in a ruling that misinterpreted Indiana law, made three errors in finding the case moot, and erred in not declaring plaintiffs to be a prevailing party. The Seventh Circuit reversed the dismissal, and certified a question of state law to the Indiana Supreme Court, which not only reversed on the state law question, but also unexpectedly created a “less than 100 signs” exception to the statute which resulted in plaintiff Majors’ conduct being protected. The 7th circuit then erroneously dismissed the case based on misconstruing McConnell v FEC. See discussion of Majors in ACLU v Heller (9th cir.)
The point is that this court does not always know what the Indiana courts will do. This court apparently did not anticipate that the Indiana Court of Appeals would declare the voter ID act unconstitutional. I had mentioned this possibility in an earlier filing.
The Missouri Supreme Court, construing a free and open elections clause modeled after Indiana’s, found voter ID unconstitutional. Several Georgia courts have found voter ID to be a poll tax and an equal protection problem and unconstitutional under the state constitution. The results so far have been repeal and re-enactment of the statute, reversal on other procedural grounds in the state supreme court, expenditure of about a million dollars in compliance costs, and litigation which is still continuing. The Michigan Supreme Court permitted voter ID, on the grounds that Michigan’s universal absentee balloting is a minimally burdensome alternative available to every voter. (Indiana does not have this. A bill to offer universal absentee balloting did not pass last session.) The experience of other states suggests that voter ID raises serious issues going to the merits, which vary based on the legislation and on the state constitutions, and are best resolved in and by state courts. Certification would be appropriate here.
Respectfully submitted,
/s/Robbin Stewart
_______________
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com ....
INDIANAPOLIS DIVISION
ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )
Defendants, )
)
STATE OF INDIANA, )
Intervenor. )
RENEWED MOTION FOR CERTIFICATION TO INDIANA SUPREME COURT
Comes now plaintiff and for his motion to certify questions of state law to the Indiana Supreme Court states as follows.
I move to certify the state constitutional claims in this case to the Indiana Supreme Court, or order to give that court an opportunity to consolidate this case with League of Women Voters v Rokita. My case presents a concrete example of how voting rights are abridged by voter ID, and offers alternative texts on which to anchor a decision.
The text of the certified question could be, “Does the Voter ID act violate Article II sections 1 or 2, or Article I sections 1, 9, 11, 12, 23, or 31.”
This is a case which was filed in state court in order to obtain an authoritative ruling on matter of state constitutional law. Under Indiana law there is no analog of 42 USC 1983 and 1985, so federal claims were included as well, as a basis for seeking legal fees in order to try to attract counsel.
Indiana state courts have jurisdiction to authoritatively construe matters of state law. Opinions of federal court are at best advisory. In Crawford, the district and circuit courts erroneously applied a deferential standard as to both federal and state questions. The Crawford courts erred in finding that voter ID does not violate the Indiana constitution. In Crawford I submitted an amicus brief at the en banc stage, urging certification of state law questions and criticizing the erroneous standard of review. The motion to file the amicus was denied by Judge Posner. The 7th circuit is unique in disfavoring amici. I then filed an amicus brief before the United States Supreme Court.
This court erred, in its ruling denying a preliminary injunction, by applying a deferential standard, and finding no likelihood of success under the Indiana Constitution (and also erred in finding that I wouldn’t be irreparably harmed when my vote was denied.)
In my one previous case before this court, Majors v Abell, this court erred in not submitting the question it had certified to the Indiana Supreme Court, and then, after abusing its discretion by not ruling for several years, erred again in dismissing the case in a ruling that misinterpreted Indiana law, made three errors in finding the case moot, and erred in not declaring plaintiffs to be a prevailing party. The Seventh Circuit reversed the dismissal, and certified a question of state law to the Indiana Supreme Court, which not only reversed on the state law question, but also unexpectedly created a “less than 100 signs” exception to the statute which resulted in plaintiff Majors’ conduct being protected. The 7th circuit then erroneously dismissed the case based on misconstruing McConnell v FEC. See discussion of Majors in ACLU v Heller (9th cir.)
The point is that this court does not always know what the Indiana courts will do. This court apparently did not anticipate that the Indiana Court of Appeals would declare the voter ID act unconstitutional. I had mentioned this possibility in an earlier filing.
The Missouri Supreme Court, construing a free and open elections clause modeled after Indiana’s, found voter ID unconstitutional. Several Georgia courts have found voter ID to be a poll tax and an equal protection problem and unconstitutional under the state constitution. The results so far have been repeal and re-enactment of the statute, reversal on other procedural grounds in the state supreme court, expenditure of about a million dollars in compliance costs, and litigation which is still continuing. The Michigan Supreme Court permitted voter ID, on the grounds that Michigan’s universal absentee balloting is a minimally burdensome alternative available to every voter. (Indiana does not have this. A bill to offer universal absentee balloting did not pass last session.) The experience of other states suggests that voter ID raises serious issues going to the merits, which vary based on the legislation and on the state constitutions, and are best resolved in and by state courts. Certification would be appropriate here.
Respectfully submitted,
/s/Robbin Stewart
_______________
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com ....
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.
PLAINTIFF’S SECOND MOTION FOR TEMPORARY INJUNCTIVE RELIEF AND TRO
Comes now plaintiff and for his second motion for temporary injunction relief and temporary restraining order states as follows.
Recently Indiana’s voter ID practices have been found to be unconstitutional, in an Indiana Court of Appeals decision which is not yet final but for now is the best authority on the state constitutional claims which are at the heart of this suit. This ruling calls for a new look at whether temporary injunctive relief is appropriate in this case.
Ordinary legislation comes cloaked with a presumption of constitutionality, and is often reviewed under a deferential rational basis standard. See, e.g., Gov’t Suppliers Consolidating Serv., Inc. v. Bayh, 734 F. Supp. 853, 862. In the context of elections, however, this presumption is reversed, and election regulations are subjected to close and exacting scrutiny. See Buckley v Valeo, Williams v Rhodes, Anderson v Celebrezze, Norman v Reed, Harper v Virginia Board, Crawford v Marion County, Harman v. Forsennius.
The danger to be guarded against is that a faction of the legislature might pass legislation designed to insulate themselves from being replaced in free and equal elections. Such elections are preservative of all other rights. Yick Wo v Hopkins. In a system characterized by judicial review and separation of powers, the usual deference to legislative and regulatory judgments is inapplicable and is contrary to Supreme Court precedents. In Crawford, the Supreme Court overruled the district and circuit court’s application of a permissive Burdick v Takushi standard, and instead applied the four-factor Anderson v Celebrezze test. In other cases, including Williams v Rhodes, Norman v Reed, Wisconsin Right to Life v FEC, and Harper v Virginia Board, the court has applied strict scrutiny. In Harman v Forsennius, the court seems to be treating the 24th Amendment as an absolute bar, rather than allowing any state interests to override what the constitution prohibits. In Colleen Price v State, regulation of political speech is given strict scrutiny under Article I section 9, while non-political speech receives a laxer standard of scrutiny. Presumably elections are political speech under Price.
Here, it is unclear whether the appropriate standard is Anderson’s 4-factor test, or a stricter scrutiny. What we do know is that this court must not repeat the error in Crawford made by the district and circuit courts, and overruled by the Supreme Court, of overly deferring to the other branches and shirking the court’s role as a guardian of the rights of voters and citizens.
In resolving constitutional challenges to a state's election laws, a court must
1) 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.
2) It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule.
3) In passing judgment, the Court must not only determine the legitimacy and strength of each of these interests,
4) it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the court in a position to decide whether the challenged provision is unconstitutional. Anderson v Celebrezze, 103 S Ct. 1564, 1568-1570.
Here, the County was asked in an interrogatory to state all of the interests it was asserting in support of voter ID. Its only response was “an interest in enforcing the law.” The statutes to which it referred are now void, and there is nothing left on the County’s side of the balancing equation. Under the Anderson test, the court may not make up or presume state interests – only those actually claimed by the state are admissible in balancing. Granted, the State of Indiana, intervenor here, was not served with this interrogatory. At about the same time the court allowed the state to intervene, it prematurely cut off discovery, so these questions remain unasked and unanswered.
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.
Of these, likelihood of success is the most important.
Here, where the statute has been determined by a court of competent jurisdiction to be unconstitutional and void, plaintiff has a reasonable likelihood of success on the merits.
Defendants’ best hope is that the Indiana Supreme Court will accept transfer, overrule the court of appeals on the section 23 claim, and not find any other basis to invalidate the statutes.
Conceivably each of these things could happen. This possible outcome, for now, is just speculation. At least once before, the Indiana Supreme Court has declined to hear a voter ID case, in Palmer et al. v Marion in 2006. A movant is not required to demonstrate certainty; a reasonable likelihood is enough.
Movant has no adequate remedy at law. I can be compensated financially for the harm to me both by not letting me vote and by not conducting a free and open election. The county denies that my injury, if any, is compensable, but the county is wrong under Monell. But this is a case that affects every citizen, by damaging the integrity of the elections process. Voter ID rules have already cost over 1000 people their votes in the 2008 election cycle, hundreds in the 2006 election cycle, have forced others to try to cope with the dreaded BMV, and have discouraged some people from even trying to vote, while others like me were turned away when trying to vote. Hundreds or thousands more will be affected as long as this unconstitutional program continues. No amount of money paid to plaintiff would fix that. There is no adequate remedy at law.
I have been and am suffering irreparable harm by being prevented from voting. My votes from 2006 have yet to be counted. My votes from 2008 have yet to be counted. I am acutely aware of my status as a non-person, not allowed to vote, taxed but not represented. Elrod v Burns holds that this denial of my First Amendment rights constitutes irreparable harm authorizing injunctive relief. The 1000 voters whose votes have yet to be counted are experiencing continuing irreparable harm. The citizens who are living under government which was not the result of a free and equal election are experiencing irreparable harm. Most cases involving the federal courts are disputes between 2 or more people, and are often just about money. This case, in contrast, is about the public interest. Injunctive relief is the proper method to partially redress the harms.
The next election is November 3. It is an election about some referendum questions, and is not a candidate election. I want to vote at it, but am scared that I will again be ejected from the polls without being allowed to vote. I wish to vote against the bonds for the Health and Hospital corporation. I feel very strongly about this. H&H tore down my house at 201 Eastern Avenue without proper notice, tore down my garage in the 100 block of Tacoma Avenue without proper notice, has tried to have me jailed, has tried to have me found in contempt of court, and in other ways has made my life miserable, and has damaged me financially and emotionally. The least I can do in return is to go cast a vote against it.
The court previously, in denying injunctive relief, stated that I would not be irreparably harmed. The court’s ruling was ambiguous. It wasn’t clear whether it misunderstood the facts, or the law. I knew that I believed I had a right, under the federal and state constitutions, to cast my vote without being subjected to a search or being required to show proof of having paid a tax. I knew that if the injunction didn’t issue, I would be denied the vote. It didn’t. I was denied the vote. The court’s ruling was ambiguous about whether it thought that I would be allowed to vote, or whether I would be denied the vote, but that that wouldn’t matter and wouldn’t be a deprivation of any rights. The exact manner in which I wasn’t allowed to vote was unexpected. Instead of being a given a provisional ballot which then wouldn’t be counted, I was simply turned away from the polling place and refused the opportunity to cast any ballot at all.
If the Indiana Court of Appeals was right that the voter ID rules are and were unconstitutional, then even this court will be able to understand that I was irreparably harmed when I was refused the ballot for refusing to comply with the unconstitutional voter ID demands. If the voter ID rules are unconstitutional and void today, they were unconstitutional and void in 2005 when enacted and during 2006 and 2008. This harm continues today, and will continue until my provisional ballots are counted and the vote total adjusted and republished, and until the state and county stop threatening me with the continued denial of my vote, by publishing and distributing voter ID demands. E.g. http://www.in.gov/sos/elections/2401.htm, visited October 2, 2009.
It will not burden the county of state to stop enforcing an unconstitutional policy. I am severely burdened when I am not allowed to vote. The balance favors the movant.
No long string of citations is required to show that the there is no public interest in the enforcement of an unconstitutional statute. American Civil Liberties Union of Georgia v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997).
Here, there is a likelihood of success on the merits, there is irreparable harm, the balance of burdens favors the movant, and the public interest requires issuance of injunctive relief. Injunction should issue, from today until the Indiana Supreme Court rules. At that time, a status conference or further briefing could be held whether to make the injunction permanent, dissolve it, modify it, or other action as needed. At a minimum, the injunction should enjoin any further enforcement of voter ID, especially as the November 3rd election. Optimally, it should direct the County to open and count my as-yet uncounted provisional ballot, count all the 2008 ID-related provisional ballots, and allow me to finally cast a vote in the 2008 general election, and publish the new results. Whether to do so state-wide is within the discretion of the court.
The 2009 November election, and the preparation for it, are imminent if not already in progress. The court should immediately issue a TRO enjoining voter ID at that election, so that the defendants do not stall or delay in responding to this filing. I am available for a hearing on this on one day’s actual notice if the court finds it necessary. Respectfully submitted,
/s/Robbin Stewart
_______________
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com
I hereby certify that on or by October _9____, 2009, a copy of the foregoing was sent via electronic filing, to the following....
INDIANAPOLIS DIVISION
ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
MARION COUNTY, et al. )
Defendants, )
)
STATE OF INDIANA, )
Intervenor.
PLAINTIFF’S SECOND MOTION FOR TEMPORARY INJUNCTIVE RELIEF AND TRO
Comes now plaintiff and for his second motion for temporary injunction relief and temporary restraining order states as follows.
Recently Indiana’s voter ID practices have been found to be unconstitutional, in an Indiana Court of Appeals decision which is not yet final but for now is the best authority on the state constitutional claims which are at the heart of this suit. This ruling calls for a new look at whether temporary injunctive relief is appropriate in this case.
Ordinary legislation comes cloaked with a presumption of constitutionality, and is often reviewed under a deferential rational basis standard. See, e.g., Gov’t Suppliers Consolidating Serv., Inc. v. Bayh, 734 F. Supp. 853, 862. In the context of elections, however, this presumption is reversed, and election regulations are subjected to close and exacting scrutiny. See Buckley v Valeo, Williams v Rhodes, Anderson v Celebrezze, Norman v Reed, Harper v Virginia Board, Crawford v Marion County, Harman v. Forsennius.
The danger to be guarded against is that a faction of the legislature might pass legislation designed to insulate themselves from being replaced in free and equal elections. Such elections are preservative of all other rights. Yick Wo v Hopkins. In a system characterized by judicial review and separation of powers, the usual deference to legislative and regulatory judgments is inapplicable and is contrary to Supreme Court precedents. In Crawford, the Supreme Court overruled the district and circuit court’s application of a permissive Burdick v Takushi standard, and instead applied the four-factor Anderson v Celebrezze test. In other cases, including Williams v Rhodes, Norman v Reed, Wisconsin Right to Life v FEC, and Harper v Virginia Board, the court has applied strict scrutiny. In Harman v Forsennius, the court seems to be treating the 24th Amendment as an absolute bar, rather than allowing any state interests to override what the constitution prohibits. In Colleen Price v State, regulation of political speech is given strict scrutiny under Article I section 9, while non-political speech receives a laxer standard of scrutiny. Presumably elections are political speech under Price.
Here, it is unclear whether the appropriate standard is Anderson’s 4-factor test, or a stricter scrutiny. What we do know is that this court must not repeat the error in Crawford made by the district and circuit courts, and overruled by the Supreme Court, of overly deferring to the other branches and shirking the court’s role as a guardian of the rights of voters and citizens.
In resolving constitutional challenges to a state's election laws, a court must
1) 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.
2) It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule.
3) In passing judgment, the Court must not only determine the legitimacy and strength of each of these interests,
4) it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the court in a position to decide whether the challenged provision is unconstitutional. Anderson v Celebrezze, 103 S Ct. 1564, 1568-1570.
Here, the County was asked in an interrogatory to state all of the interests it was asserting in support of voter ID. Its only response was “an interest in enforcing the law.” The statutes to which it referred are now void, and there is nothing left on the County’s side of the balancing equation. Under the Anderson test, the court may not make up or presume state interests – only those actually claimed by the state are admissible in balancing. Granted, the State of Indiana, intervenor here, was not served with this interrogatory. At about the same time the court allowed the state to intervene, it prematurely cut off discovery, so these questions remain unasked and unanswered.
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.
Of these, likelihood of success is the most important.
Here, where the statute has been determined by a court of competent jurisdiction to be unconstitutional and void, plaintiff has a reasonable likelihood of success on the merits.
Defendants’ best hope is that the Indiana Supreme Court will accept transfer, overrule the court of appeals on the section 23 claim, and not find any other basis to invalidate the statutes.
Conceivably each of these things could happen. This possible outcome, for now, is just speculation. At least once before, the Indiana Supreme Court has declined to hear a voter ID case, in Palmer et al. v Marion in 2006. A movant is not required to demonstrate certainty; a reasonable likelihood is enough.
Movant has no adequate remedy at law. I can be compensated financially for the harm to me both by not letting me vote and by not conducting a free and open election. The county denies that my injury, if any, is compensable, but the county is wrong under Monell. But this is a case that affects every citizen, by damaging the integrity of the elections process. Voter ID rules have already cost over 1000 people their votes in the 2008 election cycle, hundreds in the 2006 election cycle, have forced others to try to cope with the dreaded BMV, and have discouraged some people from even trying to vote, while others like me were turned away when trying to vote. Hundreds or thousands more will be affected as long as this unconstitutional program continues. No amount of money paid to plaintiff would fix that. There is no adequate remedy at law.
I have been and am suffering irreparable harm by being prevented from voting. My votes from 2006 have yet to be counted. My votes from 2008 have yet to be counted. I am acutely aware of my status as a non-person, not allowed to vote, taxed but not represented. Elrod v Burns holds that this denial of my First Amendment rights constitutes irreparable harm authorizing injunctive relief. The 1000 voters whose votes have yet to be counted are experiencing continuing irreparable harm. The citizens who are living under government which was not the result of a free and equal election are experiencing irreparable harm. Most cases involving the federal courts are disputes between 2 or more people, and are often just about money. This case, in contrast, is about the public interest. Injunctive relief is the proper method to partially redress the harms.
The next election is November 3. It is an election about some referendum questions, and is not a candidate election. I want to vote at it, but am scared that I will again be ejected from the polls without being allowed to vote. I wish to vote against the bonds for the Health and Hospital corporation. I feel very strongly about this. H&H tore down my house at 201 Eastern Avenue without proper notice, tore down my garage in the 100 block of Tacoma Avenue without proper notice, has tried to have me jailed, has tried to have me found in contempt of court, and in other ways has made my life miserable, and has damaged me financially and emotionally. The least I can do in return is to go cast a vote against it.
The court previously, in denying injunctive relief, stated that I would not be irreparably harmed. The court’s ruling was ambiguous. It wasn’t clear whether it misunderstood the facts, or the law. I knew that I believed I had a right, under the federal and state constitutions, to cast my vote without being subjected to a search or being required to show proof of having paid a tax. I knew that if the injunction didn’t issue, I would be denied the vote. It didn’t. I was denied the vote. The court’s ruling was ambiguous about whether it thought that I would be allowed to vote, or whether I would be denied the vote, but that that wouldn’t matter and wouldn’t be a deprivation of any rights. The exact manner in which I wasn’t allowed to vote was unexpected. Instead of being a given a provisional ballot which then wouldn’t be counted, I was simply turned away from the polling place and refused the opportunity to cast any ballot at all.
If the Indiana Court of Appeals was right that the voter ID rules are and were unconstitutional, then even this court will be able to understand that I was irreparably harmed when I was refused the ballot for refusing to comply with the unconstitutional voter ID demands. If the voter ID rules are unconstitutional and void today, they were unconstitutional and void in 2005 when enacted and during 2006 and 2008. This harm continues today, and will continue until my provisional ballots are counted and the vote total adjusted and republished, and until the state and county stop threatening me with the continued denial of my vote, by publishing and distributing voter ID demands. E.g. http://www.in.gov/sos/elections/2401.htm, visited October 2, 2009.
It will not burden the county of state to stop enforcing an unconstitutional policy. I am severely burdened when I am not allowed to vote. The balance favors the movant.
No long string of citations is required to show that the there is no public interest in the enforcement of an unconstitutional statute. American Civil Liberties Union of Georgia v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997).
Here, there is a likelihood of success on the merits, there is irreparable harm, the balance of burdens favors the movant, and the public interest requires issuance of injunctive relief. Injunction should issue, from today until the Indiana Supreme Court rules. At that time, a status conference or further briefing could be held whether to make the injunction permanent, dissolve it, modify it, or other action as needed. At a minimum, the injunction should enjoin any further enforcement of voter ID, especially as the November 3rd election. Optimally, it should direct the County to open and count my as-yet uncounted provisional ballot, count all the 2008 ID-related provisional ballots, and allow me to finally cast a vote in the 2008 general election, and publish the new results. Whether to do so state-wide is within the discretion of the court.
The 2009 November election, and the preparation for it, are imminent if not already in progress. The court should immediately issue a TRO enjoining voter ID at that election, so that the defendants do not stall or delay in responding to this filing. I am available for a hearing on this on one day’s actual notice if the court finds it necessary. Respectfully submitted,
/s/Robbin Stewart
_______________
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com
I hereby certify that on or by October _9____, 2009, a copy of the foregoing was sent via electronic filing, to the following....
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )
PLAINTIFF’S RESPONSE TO ENTRY DIRECTING FURTHER PROCEEDINGS
Comes now plaintiff and for his response to the entry directing further proceedings states as follows. The Court has ordered:
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), [“LWV”] has on his claims in this case or how the case should now proceed from his perspective. IT IS SO ORDERED.
The court, appropriately, has asked me to explain how LWV,
http://www.state.in.us/judiciary/opinions/pdf/09170901par.pdf, affects this case.
I would like for the court to grant the pending motion to supplement the complaint, to allow a further amendment to add a section 23 claim, to grant a temporary injunction and TRO to prevent the voter ID program from being used next month’s election, to certify the state law questions in this case to the Indiana Supreme Court so that that court can consolidate the two cases if it chooses to do so, and to ask defendants if they have any interest in attending a settlement conference. Motions on these issues will follow shortly.
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 that 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 not satisfy the public interest concerns.
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 the fall 2009 election and 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 reply 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 the 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 7-2 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. This is distinguishable from Crawford, which assumed without deciding that the voter ID act was not void under the state constitution. 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. 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 County 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 900 votes in Indiana have not been counted for reason of voter ID from the 2008 general election. It does not appear that these votes were dispositive in any election. In one race 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 in Grant County, 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 Article III 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, 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.
G. Other authorities: One of the claims in the case is that voter ID violates the privileges and immunities clause of the 14th Amendment. There is some authority for the proposition that voting in a federal election is a privilege or immunity of federal citizenship. It is worth noting that in McDonald v City of Chicago, the Supreme Court has accepted cert. on the privileges and immunities claim. The ruling, when it comes, may affect the instant case.
Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
Several recent articles are of note.
David Schultz 2009, “Wealth v. Democracy: The Unfulfilled Promise of the Twenty-Fourth Amendment”, http://works.bepress.com/david_schultz/,
Allison Hayward. 2008. "What Is an Unconstitutional "Other Tax" on Voting? Construing the Twenty-Fourth Amendment", http://works.bepress.com/allison_hayward/6 .
Michael Pitts, Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465529 .
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, except as to a TRO, which should enter forthwith.
Respectfully submitted,
/s/Robbin Stewart
_______________
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com
I hereby certify that on or by October ______, 2009, a copy of the foregoing was sent via electronic filing, to the following.
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
INDIANAPOLIS DIVISION
ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )
PLAINTIFF’S RESPONSE TO ENTRY DIRECTING FURTHER PROCEEDINGS
Comes now plaintiff and for his response to the entry directing further proceedings states as follows. The Court has ordered:
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), [“LWV”] has on his claims in this case or how the case should now proceed from his perspective. IT IS SO ORDERED.
The court, appropriately, has asked me to explain how LWV,
http://www.state.in.us/judiciary/opinions/pdf/09170901par.pdf, affects this case.
I would like for the court to grant the pending motion to supplement the complaint, to allow a further amendment to add a section 23 claim, to grant a temporary injunction and TRO to prevent the voter ID program from being used next month’s election, to certify the state law questions in this case to the Indiana Supreme Court so that that court can consolidate the two cases if it chooses to do so, and to ask defendants if they have any interest in attending a settlement conference. Motions on these issues will follow shortly.
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 that 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 not satisfy the public interest concerns.
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 the fall 2009 election and 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 reply 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 the 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 7-2 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. This is distinguishable from Crawford, which assumed without deciding that the voter ID act was not void under the state constitution. 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. 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 County 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 900 votes in Indiana have not been counted for reason of voter ID from the 2008 general election. It does not appear that these votes were dispositive in any election. In one race 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 in Grant County, 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 Article III 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, 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.
G. Other authorities: One of the claims in the case is that voter ID violates the privileges and immunities clause of the 14th Amendment. There is some authority for the proposition that voting in a federal election is a privilege or immunity of federal citizenship. It is worth noting that in McDonald v City of Chicago, the Supreme Court has accepted cert. on the privileges and immunities claim. The ruling, when it comes, may affect the instant case.
Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
Several recent articles are of note.
David Schultz 2009, “Wealth v. Democracy: The Unfulfilled Promise of the Twenty-Fourth Amendment”, http://works.bepress.com/david_schultz/,
Allison Hayward. 2008. "What Is an Unconstitutional "Other Tax" on Voting? Construing the Twenty-Fourth Amendment", http://works.bepress.com/allison_hayward/6 .
Michael Pitts, Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465529 .
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, except as to a TRO, which should enter forthwith.
Respectfully submitted,
/s/Robbin Stewart
_______________
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com
I hereby certify that on or by October ______, 2009, a copy of the foregoing was sent via electronic filing, to the following.
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
Here's the opposition to a stay filed three days ago.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )
OPPOSITION TO MOTION TO STAY
Justice delayed can be justice denied. Here the state seeks to subvert justice by urging the court to delay action on the pending motions until such time as the motions would be moot and ineffective. The state cites no cases, points to no rule requiring a stay, and makes no persuasive policy arguments . Perhaps the state is simply hoping to appeal to an anti-plaintiff bias by the court.
Plaintiff has several pending motions: a motion for injunction, to preserve the integrity of the upcoming November election and avoid additional further irreparable harm to plaintiff and the public; a motion to certify; and a motion to amend the complaint.
A stay of the motion for injunction, past the time of the election, would effectively deny the injunction. If this court is going to deny the injunction, it should do so on the merits.
Similarly, the state asks the court to delay acting on the motion to certify, until the Indiana court has already ruled on the issues the certification is relevant to. The point of the renewed motion to certify is to provide the Indiana Supreme Court with an opportunity to consolidate the two voter ID cases. In Purcell v Gonzalez and in Crawford v Marion County/Democratic Party v Rokita, the United States Supreme Court discussed problems with pre-enforcement challenges, and stated that cases are more ripe for decision when there are actual facts of how the statutes work out in practice. My case is fact-laden, in ways that could be helpful to the Indiana Supreme Court, facts that were not before the Crawford Court.
These include, but are not limited to, that in 2006 my provisional ballot was not counted, although I was known to the poll worker. It includes that when my wallet was stolen, I couldn’t get a birth certificate because I didn’t have a drivers license, and couldn’t get a driver’s license without a birth certificate, so I drove 1000 miles to find a loophole, but was still turned away at the BMV before eventually getting my license back. It includes that in 2008, after this court denied injunctive relief, I was turned away at the polls without even being allowed to cast a provisional ballot. It includes that I have a strong personal desire to vote in the upcoming election, but am at risk of again being disenfranchised. It includes that in 2008 one election turned on whether or not a single provisional vote was counted. It includes that in the 2008 election over 1000 votes were not counted for reason of voter ID, but zero fraudulent in-person votes were detected. In contrast, the League of Women Voters case is a pre-enforcement facial challenge without individual disenfranchised plaintiffs.
In addition, my case presents important issues of law which could be helpful to the Indiana Supreme Court if the case is certified and consolidated. The LVW case, at the appellate level, was won on a Section 23 claim. While LWV is entirely compatible with Collins v Day, the Indiana Court’s leading precedent on Section 23, there is some tension between the two decisions. My case offers the court several alternative bases on which it could rest a decision. These include Article II section 1, the free and equal elections clauses, and Article I section 9. The standard of review under Section 23 is deferential under Collins v Day, although we do not yet know if deference applies in cases where fundamental voting rights are at issue (see Caroline Products note 4.) Article I section 9, on the other hand, has a standard more like strict scrutiny, in cases involving political speech, under Price v State, the landmark Section 9 case. Price has been narrowed but never overruled.
Rule 1 of the federal rules of civil procedure urges “just, speedy, and inexpensive determination of every action and proceeding.” Providing the Indiana Court with the opportunity to consolidate the two cases is in harmony with the rule. It would be possible for this court to delay certification in this case until after LWV. That would not only needlessly delay, but would double the workload of the Indiana Court, if they accepted certification. LWV is ably represented by William Groth, who also represented plaintiffs in Democratic Party v Rokita. In contrast, I’m a pro se litigant just trying to vote, and have limited resources. If the case is certified and the cases are consolidated, I could probably participate via brief and leave the argument to Groth, unless the Court prefers otherwise.
The Indiana Court is under no obligation either to take the case, if it is certified, or to consolidate the two cases, if it does accept certification. But interests of judicial economy and comity and justice weigh in favor of offering it the opportunity to do so. It would be a mistake to stay a ruling on certification until after the Court rules in LWV. Perhaps this court will deny certification, bumping that decision up to the Seventh Circuit, as happened in Majors. But if it does so, it should do so on the merits, not on the basis of the state’s current motion.
The state also urges that this court delay action on the motion to amend the complaint to add a Section 23 claim, until after LWV. Doing so will not do any particular harm, but also will confer no benefit. That a section 23 claim is now pending in this case is relevant to the motion for injunction. If the Indiana Court accepts LWV and reverses on Section 23, then the new count will ultimately fail; conversely if LWV is upheld or allowed to become final, it would be abuse of discretion not to allow the new count which would then prevail.
It is not essential to plaintiff’s case to include a Section 23 claim, now that the current state of Indiana law is the voter ID is unconstitutional under Section 23. If the statutes on which the state (and county) were relying is now void and gone, plaintiff’s First Amendment and other interests are sufficient to override the state’s interest in enforcing an unauthorized policy. But it makes sense to include the claim so that the cases are more congruent.
The state, in its Paragraph 6, says that my request for injunction is based on state law. While this is true, it is misleadingly incomplete. The injunctive request is based on both federal and state law. In its prior rejection of an injunction, the court accorded a strong presumption of validity to the statutes which were the basis for the state and county’s policy. Now that there has been an authoritative, if not yet final, finding by the state court that the statutes are unconstitutional as a matter of state law, the balancing test under Anderson and Crawford comes out differently. Similarly, the likelihood of success and the four factors for injunctive relief need to be re-evaluated. The LWV would probably have been granted an injunction if they had asked for it, but they did not, just as the Crawford and Democratic Party plaintiffs did not. This case began seeking an injunction while Crawford had not yet been decided. The procedural posture here is similar.
In summary, the state’s motion is an unwarranted attempt at an end run around the merits of the motions. Perhaps it thinks that its prospects on the merits no longer look as good as before. The state cites no controlling or persuasive authority, but seems to appeal to the possible bias of the court. The motion is contrary to the spirit and letter of rule one; it argues that the court should be slow, unjust, and inefficient. The motion should be denied.
Respectfully submitted,
/s/ Robbin Stewart.
_______________
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com
I hereby certify that on or by October 19, 2009, a copy of the foregoing was sent via electronic filing, to the following.
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
/s/ Robbin Stewart
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )
OPPOSITION TO MOTION TO STAY
Justice delayed can be justice denied. Here the state seeks to subvert justice by urging the court to delay action on the pending motions until such time as the motions would be moot and ineffective. The state cites no cases, points to no rule requiring a stay, and makes no persuasive policy arguments . Perhaps the state is simply hoping to appeal to an anti-plaintiff bias by the court.
Plaintiff has several pending motions: a motion for injunction, to preserve the integrity of the upcoming November election and avoid additional further irreparable harm to plaintiff and the public; a motion to certify; and a motion to amend the complaint.
A stay of the motion for injunction, past the time of the election, would effectively deny the injunction. If this court is going to deny the injunction, it should do so on the merits.
Similarly, the state asks the court to delay acting on the motion to certify, until the Indiana court has already ruled on the issues the certification is relevant to. The point of the renewed motion to certify is to provide the Indiana Supreme Court with an opportunity to consolidate the two voter ID cases. In Purcell v Gonzalez and in Crawford v Marion County/Democratic Party v Rokita, the United States Supreme Court discussed problems with pre-enforcement challenges, and stated that cases are more ripe for decision when there are actual facts of how the statutes work out in practice. My case is fact-laden, in ways that could be helpful to the Indiana Supreme Court, facts that were not before the Crawford Court.
These include, but are not limited to, that in 2006 my provisional ballot was not counted, although I was known to the poll worker. It includes that when my wallet was stolen, I couldn’t get a birth certificate because I didn’t have a drivers license, and couldn’t get a driver’s license without a birth certificate, so I drove 1000 miles to find a loophole, but was still turned away at the BMV before eventually getting my license back. It includes that in 2008, after this court denied injunctive relief, I was turned away at the polls without even being allowed to cast a provisional ballot. It includes that I have a strong personal desire to vote in the upcoming election, but am at risk of again being disenfranchised. It includes that in 2008 one election turned on whether or not a single provisional vote was counted. It includes that in the 2008 election over 1000 votes were not counted for reason of voter ID, but zero fraudulent in-person votes were detected. In contrast, the League of Women Voters case is a pre-enforcement facial challenge without individual disenfranchised plaintiffs.
In addition, my case presents important issues of law which could be helpful to the Indiana Supreme Court if the case is certified and consolidated. The LVW case, at the appellate level, was won on a Section 23 claim. While LWV is entirely compatible with Collins v Day, the Indiana Court’s leading precedent on Section 23, there is some tension between the two decisions. My case offers the court several alternative bases on which it could rest a decision. These include Article II section 1, the free and equal elections clauses, and Article I section 9. The standard of review under Section 23 is deferential under Collins v Day, although we do not yet know if deference applies in cases where fundamental voting rights are at issue (see Caroline Products note 4.) Article I section 9, on the other hand, has a standard more like strict scrutiny, in cases involving political speech, under Price v State, the landmark Section 9 case. Price has been narrowed but never overruled.
Rule 1 of the federal rules of civil procedure urges “just, speedy, and inexpensive determination of every action and proceeding.” Providing the Indiana Court with the opportunity to consolidate the two cases is in harmony with the rule. It would be possible for this court to delay certification in this case until after LWV. That would not only needlessly delay, but would double the workload of the Indiana Court, if they accepted certification. LWV is ably represented by William Groth, who also represented plaintiffs in Democratic Party v Rokita. In contrast, I’m a pro se litigant just trying to vote, and have limited resources. If the case is certified and the cases are consolidated, I could probably participate via brief and leave the argument to Groth, unless the Court prefers otherwise.
The Indiana Court is under no obligation either to take the case, if it is certified, or to consolidate the two cases, if it does accept certification. But interests of judicial economy and comity and justice weigh in favor of offering it the opportunity to do so. It would be a mistake to stay a ruling on certification until after the Court rules in LWV. Perhaps this court will deny certification, bumping that decision up to the Seventh Circuit, as happened in Majors. But if it does so, it should do so on the merits, not on the basis of the state’s current motion.
The state also urges that this court delay action on the motion to amend the complaint to add a Section 23 claim, until after LWV. Doing so will not do any particular harm, but also will confer no benefit. That a section 23 claim is now pending in this case is relevant to the motion for injunction. If the Indiana Court accepts LWV and reverses on Section 23, then the new count will ultimately fail; conversely if LWV is upheld or allowed to become final, it would be abuse of discretion not to allow the new count which would then prevail.
It is not essential to plaintiff’s case to include a Section 23 claim, now that the current state of Indiana law is the voter ID is unconstitutional under Section 23. If the statutes on which the state (and county) were relying is now void and gone, plaintiff’s First Amendment and other interests are sufficient to override the state’s interest in enforcing an unauthorized policy. But it makes sense to include the claim so that the cases are more congruent.
The state, in its Paragraph 6, says that my request for injunction is based on state law. While this is true, it is misleadingly incomplete. The injunctive request is based on both federal and state law. In its prior rejection of an injunction, the court accorded a strong presumption of validity to the statutes which were the basis for the state and county’s policy. Now that there has been an authoritative, if not yet final, finding by the state court that the statutes are unconstitutional as a matter of state law, the balancing test under Anderson and Crawford comes out differently. Similarly, the likelihood of success and the four factors for injunctive relief need to be re-evaluated. The LWV would probably have been granted an injunction if they had asked for it, but they did not, just as the Crawford and Democratic Party plaintiffs did not. This case began seeking an injunction while Crawford had not yet been decided. The procedural posture here is similar.
In summary, the state’s motion is an unwarranted attempt at an end run around the merits of the motions. Perhaps it thinks that its prospects on the merits no longer look as good as before. The state cites no controlling or persuasive authority, but seems to appeal to the possible bias of the court. The motion is contrary to the spirit and letter of rule one; it argues that the court should be slow, unjust, and inefficient. The motion should be denied.
Respectfully submitted,
/s/ Robbin Stewart.
_______________
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com
I hereby certify that on or by October 19, 2009, a copy of the foregoing was sent via electronic filing, to the following.
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
/s/ Robbin Stewart
Here is yesterday's filing. I'm going to be posting some of the documents I've filed in the past couple of weeks, which are about how my case s affected by the court of appeals finding that voter ID is unconstitutional.
I've asked for an injunction for November's election, asked that court certify the state constitutional questions,and sought to amend the complaint to add a section 23 claim.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION Robbin Stewart, ) Plaintiff, ) ) vs. ) 1:08-cv-586-LJM-TAB ) ) MARION COUNTY, et al. )
STATEMENT IN RESPONSE TO COUNTY’S MOTION TO JOIN MOTION TO STAY
The County has filed a motion to join the State‟s pending motion to stay. While the county‟s motion to join may be granted, or denied as moot, the motion to stay should be denied, for the reasons addressed in yesterday‟s filing. The County‟s motion adds nothing to that discussion, and cites no case, rule, or policy argument in favor of a stay at this time.
The County‟s motion does contain cases, rules, and policy arguments, but they are not directed to whether a stay should issue. Instead, they would have been relevant in a memo in opposition to granting an injunction. Perhaps this is the County‟s statement concerning the injunction; it isn‟t clear. I briefly discuss below the County‟s arguments, but it is important to remember that they are irrelevant to whether a stay should issue, and instead are only relevant to the merits of the pending motion for injunction.
The County makes two arguments. The first is based on a misconstruction of the word “reliance” in the Indiana rules. The second is based on a false statement of the Eire doctrine. The County says, “under the Erie Doctrine, this Court is only bound by opinions from Indiana‟s
2
highest court.” That this is a false statement of law is supported by the cases the County cites.
LWV is not yet final, and the lack of finality is relevant, but not dispositive, to the court‟s assessment of some likelihood of success on the merits, or a finding that the complaint raises serious questions going to the merits. Rule 65 directs the actions of the parties in a case when that case is not yet final. It does not say anything about an injunction in a separate case in a different court, and in no way constrains the ability and jurisdiction of this court to enjoin the use of voter ID in the election that is now less than a month away.
In, Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992), a federal court relied on a state appellate court decision, following the Eire doctrine.
Farrell, then, is no anomaly in Wisconsin law. It applies well-settled principles in a new context. AVCO's claim that it need not be followed because it is not a decision from Wisconsin's Supreme Court is meritless. In this diversity action, we are constrained to determine the issues presented herein as we believe the Wisconsin courts would under the circumstances. In Affiliated FM Insurance Co. v. Trane Co., 831 F.2d 153, 155 (7th Cir.1987), we stated, "Under the principles of Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court must apply the state law as declared by the highest state court or otherwise by the intermediate appellate court of the state." See also Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir.1987). We see no evidence to suggest that the Supreme Court of Wisconsin disapproves of Farrell 's logic.
The County is making the same argument that the 7th Circuit found meritless.
The County states, “It is only bound by opinions of Indiana‟s intermediate appellate court when „there is no good reason to believe that the state‟s highest court would reject those decisions.‟ Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir. 1987).” But this is not the rule, and is not what Phelps states or holds. Inserting the word “only” makes a claim that Phelps does not support. Instead, the burden is on Defendants to show that the state supreme court will reject the decisions. The LVW decision is in harmony with a long line of Indiana case protecting the right to vote, as cited in the LWV appellate brief. It is also consistent with Collins
3
v Day, which limits the use of Article I section 23, but does not remove it from the Indiana Constitution. Because the classes at issue in LWV involved fundamental voting rights, and the voter ID program unduly burdened those rights unequally the court found that the usual presumption in favor of legislative enactments was overcome. LWV is the best available evidence of what the Indiana Supreme Court will do on appeal if transfer is granted. Because LWV is not final, it would be inappropriate, for example, to seek a declaratory judgment based on LWV. However, it is completely appropriate in seeking a temporary injunction. Injunction does not require certainty or finality – it is a temporary measure to limit harm while the case proceeds. Here there is no evidence that the Indiana Supreme Court disapproves of LWV. We can speculate. It is an interesting case. But there is as yet no evidence.
What Phelps actual held was, “[w]hile the Indiana Supreme Court has not specifically passed on all the issues discussed in this opinion, there is no good reason to believe that the state's highest court would reject those decisions by the intermediate court, and consequently this Court may treat the Indiana Court of Appeals' decisions cited in this opinion as authoritatively stating the law of Indiana.”
Here, this court may treat the Indiana Court of Appeals‟ decision as authoritatively stating the law in Indiana, at least tentatively for the purposes of issuing a temporary injunction to preserve the status quo against Defendants plans to conduct an illegal election and again violate Plaintiff‟s fundamental voting rights. Frankly, I am surprised that Elizabeth White has allowed her name to be associated with this filing, which misstates the law in an effort to deceive the court, on a topic not even related to what the motion is supposed to be about. Whether or not the Court allows the County to join the motion to stay, the stay should be denied, and the court should rule on the pending motions on their merits. Time is of the essence. The election approaches. It will not
4
burden the County if the TRO and injunction is granted – they need only refrain from doing something illegal under Indiana law. However, the longer it takes the court to reach a decision, the more that imposes a burden on the County, of coordinating the election officials. A last minute decision would be somewhat disruptive. The Court can accommodate that concern by issuing the TRO now, so that election staff will be alerted to the issue and be able to make late changes depending on how the court rules on the injunction.
Respectfully submitted,
/s/ Robbin Stewart.
_______________ P.O.Box 29164 Cumberland IN 46229-0164 317.375.0931 gtbear@gmail.com I hereby certify that on or by October 20, 2009, a copy of the foregoing was sent via electronic filing, to the following.
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
/s/ Robbin Stewart
I've asked for an injunction for November's election, asked that court certify the state constitutional questions,and sought to amend the complaint to add a section 23 claim.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION Robbin Stewart, ) Plaintiff, ) ) vs. ) 1:08-cv-586-LJM-TAB ) ) MARION COUNTY, et al. )
STATEMENT IN RESPONSE TO COUNTY’S MOTION TO JOIN MOTION TO STAY
The County has filed a motion to join the State‟s pending motion to stay. While the county‟s motion to join may be granted, or denied as moot, the motion to stay should be denied, for the reasons addressed in yesterday‟s filing. The County‟s motion adds nothing to that discussion, and cites no case, rule, or policy argument in favor of a stay at this time.
The County‟s motion does contain cases, rules, and policy arguments, but they are not directed to whether a stay should issue. Instead, they would have been relevant in a memo in opposition to granting an injunction. Perhaps this is the County‟s statement concerning the injunction; it isn‟t clear. I briefly discuss below the County‟s arguments, but it is important to remember that they are irrelevant to whether a stay should issue, and instead are only relevant to the merits of the pending motion for injunction.
The County makes two arguments. The first is based on a misconstruction of the word “reliance” in the Indiana rules. The second is based on a false statement of the Eire doctrine. The County says, “under the Erie Doctrine, this Court is only bound by opinions from Indiana‟s
2
highest court.” That this is a false statement of law is supported by the cases the County cites.
LWV is not yet final, and the lack of finality is relevant, but not dispositive, to the court‟s assessment of some likelihood of success on the merits, or a finding that the complaint raises serious questions going to the merits. Rule 65 directs the actions of the parties in a case when that case is not yet final. It does not say anything about an injunction in a separate case in a different court, and in no way constrains the ability and jurisdiction of this court to enjoin the use of voter ID in the election that is now less than a month away.
In, Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992), a federal court relied on a state appellate court decision, following the Eire doctrine.
Farrell, then, is no anomaly in Wisconsin law. It applies well-settled principles in a new context. AVCO's claim that it need not be followed because it is not a decision from Wisconsin's Supreme Court is meritless. In this diversity action, we are constrained to determine the issues presented herein as we believe the Wisconsin courts would under the circumstances. In Affiliated FM Insurance Co. v. Trane Co., 831 F.2d 153, 155 (7th Cir.1987), we stated, "Under the principles of Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court must apply the state law as declared by the highest state court or otherwise by the intermediate appellate court of the state." See also Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir.1987). We see no evidence to suggest that the Supreme Court of Wisconsin disapproves of Farrell 's logic.
The County is making the same argument that the 7th Circuit found meritless.
The County states, “It is only bound by opinions of Indiana‟s intermediate appellate court when „there is no good reason to believe that the state‟s highest court would reject those decisions.‟ Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir. 1987).” But this is not the rule, and is not what Phelps states or holds. Inserting the word “only” makes a claim that Phelps does not support. Instead, the burden is on Defendants to show that the state supreme court will reject the decisions. The LVW decision is in harmony with a long line of Indiana case protecting the right to vote, as cited in the LWV appellate brief. It is also consistent with Collins
3
v Day, which limits the use of Article I section 23, but does not remove it from the Indiana Constitution. Because the classes at issue in LWV involved fundamental voting rights, and the voter ID program unduly burdened those rights unequally the court found that the usual presumption in favor of legislative enactments was overcome. LWV is the best available evidence of what the Indiana Supreme Court will do on appeal if transfer is granted. Because LWV is not final, it would be inappropriate, for example, to seek a declaratory judgment based on LWV. However, it is completely appropriate in seeking a temporary injunction. Injunction does not require certainty or finality – it is a temporary measure to limit harm while the case proceeds. Here there is no evidence that the Indiana Supreme Court disapproves of LWV. We can speculate. It is an interesting case. But there is as yet no evidence.
What Phelps actual held was, “[w]hile the Indiana Supreme Court has not specifically passed on all the issues discussed in this opinion, there is no good reason to believe that the state's highest court would reject those decisions by the intermediate court, and consequently this Court may treat the Indiana Court of Appeals' decisions cited in this opinion as authoritatively stating the law of Indiana.”
Here, this court may treat the Indiana Court of Appeals‟ decision as authoritatively stating the law in Indiana, at least tentatively for the purposes of issuing a temporary injunction to preserve the status quo against Defendants plans to conduct an illegal election and again violate Plaintiff‟s fundamental voting rights. Frankly, I am surprised that Elizabeth White has allowed her name to be associated with this filing, which misstates the law in an effort to deceive the court, on a topic not even related to what the motion is supposed to be about. Whether or not the Court allows the County to join the motion to stay, the stay should be denied, and the court should rule on the pending motions on their merits. Time is of the essence. The election approaches. It will not
4
burden the County if the TRO and injunction is granted – they need only refrain from doing something illegal under Indiana law. However, the longer it takes the court to reach a decision, the more that imposes a burden on the County, of coordinating the election officials. A last minute decision would be somewhat disruptive. The Court can accommodate that concern by issuing the TRO now, so that election staff will be alerted to the issue and be able to make late changes depending on how the court rules on the injunction.
Respectfully submitted,
/s/ Robbin Stewart.
_______________ P.O.Box 29164 Cumberland IN 46229-0164 317.375.0931 gtbear@gmail.com I hereby certify that on or by October 20, 2009, a copy of the foregoing was sent via electronic filing, to the following.
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
/s/ Robbin Stewart
