Wednesday, October 21, 2009


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

I hereby certify that on or by October _9____, 2009, a copy of the foregoing was sent via electronic filing, to the following....

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