Wednesday, October 21, 2009


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


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,, 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”,,
Allison Hayward. 2008. "What Is an Unconstitutional "Other Tax" on Voting? Construing the Twenty-Fourth Amendment", .
Michael Pitts, Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election, .
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

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
Eric James Beaver
Jonathan Lamont Mayes
Richard G. McDermott

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