Wednesday, October 21, 2009

Here's the opposition to a stay filed three days ago.


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

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

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
Eric James Beaver
Jonathan Lamont Mayes
Richard G. McDermott
/s/ Robbin Stewart

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