Friday, November 27, 2009

Ok, here's a cleaned-up version of previous post - printed but not yet filed.
To do: email copies of filing to amici and counsel. Note to self: 6 copies to the court




vs 49A02-0901-CV-40


Plaintiff-appellee and cross-appellant




Comes now intervenor Robbin Stewart and for his motion to intervene states as follows.

I am a plaintiff in a related case, Stewart v Marion County et al, 1:08-cv-586, in the United States District Court Southern District of Indiana Indianapolis Division.
On November 19 2009 Judge William T. Lawrence denied my motion to
certify state questions, which could have allowed the cases to be consolidated. I had moved for certification as follows.

"I move to certify the state constitutional claims in this case to the Indiana Supreme Court, in 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.” .

The court's response was:

Entry Discussing Renewed Motion for Certification to the Indiana
Supreme Court: Having reviewed the plaintiff's renewed motion for
certification to the Indiana Supreme Court [61], the claims in this
case, and what it understands to be Indiana law, the court now DENIED
the motion. The certification procedure sought by the plaintiff, while
authorized in certain circumstances, is rarely invoked and is not
warranted by the circumstances present here. If cases already pending
in the Indiana courts tilt favorably to the plaintiff's position here,
state law will be clear on the matters he presents, while the opposite
is equally true. In either event, the standard for certification has
not been met. Signed by Judge William T. Lawrence on 11/19/2009.

This is a case which was filed in state court in order to obtain an authoritative ruling on matters of state constitutional law. In Stewart v Marion County et al., I had filed for an injunction with reference to the 2008 primary elections. A TRO was denied by the state judge. The case was then removed to federal court. A motion to remand state claims back to the state court was denied. Motions for injunctions covering the general election in 2008 and the referendum in 2009 were denied.

In Joell Palmer and Robbin Stewart v. Marion County, in 2006, the Indiana Supreme Court declined transfer over an interlocutory appeal of the denial of a TRO and temporary injunction about voter ID. The Indiana Court of Appeals denied the appeal on procedural grounds, and the trial judge dismissed the case on procedural grounds. While these two rulings were erroneous, there were not appealed.
In Crawford v Marion County, I had participated first by submitting an amicus brief to the 7th circuit, which was denied by Judge Posner. I then submitted an amicus brief in Crawford before the U. S. Supreme Court in conjunction with the Cyber Privacy Project.
Participation as an amicus in this case would be insufficient, as the facts and claims in my case go beyond the record in LWV v Rokita.
On September 17, 2009, the Indiana Court of Appeals handed down its decision in League of Women Voters v. Rokita, 2009 WL 2973120 (Ind.Ct. App. Sept. 17, 2009). The Indiana Court of Appeals held: Therefore, we must reverse and remand, with instructions to the trial court that it enter an order declaring the Voter I.D. Law void. A motion for transfer was promptly filed by the state, and the plaintiff cross-appealed the denial of the Article II section [2] claim. Ordinarily motions to intervene would be timely if filed within 30 days of the cross-appeal. Here, I have waited until the federal court ruled on my motion to certify, which if granted would have allowed this Court to consolidate the cases, so my motion is either timely or excusably untimely.
Having made and lost a good faith effort to have the cases consolidated, I am now moving to intervene.
My grounds for intervention are based on both the facts and law. The facts include that I have been denied the vote in 2006, 2007, 2008, and 2009, because I am unwilling to show ID as a condition of voting, out of a belief that the ID requirement is unconstitutional and is an undue burden. During some of this time, I have been without ID due to the arbitrary and capricious practices of the BMV, as further detailed in the Stewart v Marion complaints.
I am a person to whom voting is highly important, having been politically active since 1970, having run for office and having served in appointed office. I have been actually damaged by the repeated denial of my vote - my case is concrete rather than hypothetical.
My case is legally distinct in that it challenges Indiana's voter ID on alternative sections of the Indiana Constitution. The court below ruled based on Article I section 23. I expect that the state will concentrate its argument on Collins v Day. My case provides alternative texts on which the court could base or supplement its decision, notably Article I section 1, the free and equal elections clause. These arguments were not heard in the court below, but because the court below reached its decision on section 23 grounds, it would not have needed to discuss these other grounds, so the state is not prejudiced by their introduction now.
I would join the briefs of the plaintiff-respondent on their Article II section 2 argument. It should prevail, and has already been competently briefed. I would plan to argue that the section 23 claim can be upheld consistently with precedent.
I ask the court to grant intervention.
Respectfully submitted,


Robbin Stewart.

I certify that I have sent a copy of this filing by first class mail on __________ 2009 to


Fillenwarth Dennerline Groth & Towe, LLP


Attorney General of Indiana
Indianapolis, Indiana
Solicitor General

Austin & Jones, P.C.
Indianapolis, Indiana




Deputies Attorney General

Robbin Stewart

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