Wednesday, October 21, 2009


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

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 ....

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