Tuesday, January 26, 2010

draft do not file

vs 49A02-0901-CV-40

Plaintiff-appellee and cross-appellant

Brief of Amicus Curiae Robbin Stewart

Interest of Amicus

Table of Authorities
Summary of Argument

Interest of Amicus

My circumstances illustrate the several ways in which the voter ID program, as practiced, interferes with free and open elections. On some occasions, I cast a provisional vote that was not counted. This has happened to at least 1000 people. One time, I was, like the Terre Haute nuns discussed in the Court of Appeals opinion, turned away from the polls without being allowed to cast even a provisional vote. Most recently, I was deterred from even trying to vote because I know that my vote would not be counted. Because the class of people who have been denied the vote by operation of the statute has not been heard from in this litigation, and has been denied the opportunity to intervene, I am writing this amicus brief.
I have been unable to vote since 2005. In 2006, my provisional votes in the primary and general election were not counted. I am a person who does not waive my right to be free of unwarranted searches. I do not show ID to government officials in the absence of a warrant or probable cause or special circumstances such as operating an automobile. While both being searched without cause or warrant, and being denied the vote, are severe burdens on my rights, being denied the vote is the lesser burden.
Along with another voter, I filed suit. Palmer et al. v Marion County, 49D04-06 10-CT-044113, 49A02-0611-CV-00977 . A Marion County county court denied injunctive relief, and this court denied transfer of the appeal November 3 2006. That suit was dismissed on procedural grounds.
In 2007 my provisional vote in the primary was not counted.
I participated in Crawford v Marion County, first by submitting an amicus to the 7th circuit during the consideration of motion for rehearing en banc. http://joellpalmer.blogspot.com/2006_02_01_archive.html. The state opposed my motion to file an amicus, and Judge Posner denied it. In that brief, I argued that the 7th circuit should certify the state constitutional questions to here, since the district court in Crawford has applied the wrong standard of review under article II and the panel opinion had not even mentioned the state constitutional claims. The circuit split closely in denying rehearing. I like to think that my brief might have made a difference if it had been allowed. I then joined the Cyber Privacy Project's amicus when Crawford was heard at the U S Supreme Court. http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefamicuscuriaeofCyberPrivacy.pdf. By that point, the state constitutional claims were no longer preserved for review. In Crawford, the district and circuit court opinions were strongly influenced by the lack of an individual plaintiff. If I had foreseen how that would play out, I would have sought to intervene.
The Supreme Court's ruling in Crawford was not on the merits, but was on a procedural point that Crawford had filed a facial challenge while admitting that the statute was constitutional in most applications. Prior to Crawford, the Supreme Court had allowed facial challenges more liberally in the First Amendment context.
In 2008 I again filed suit in state court, on state and federal constitutional grounds. This suit was removed to federal court. The federal court refused to remand the state constitutional claims, and denied certification to this court. I believe that federal court is not the most appropriate venue to decide whether Indiana's voter ID violates Article II.
In 2008 in the primary I cast a provisional early vote at the clerk's office, which was not counted. In the general election, I went to vote at my precinct, 10-4 in Center Township, but was not allowed not cast even a provisional ballot. The district court had denied my motion for injunction, and the Seventh Circuit upheld that denial without opinion. In 2009, after voter ID had been declared unconstitutional and void by the Court of Appeals, the county continued to deny the vote to those who do not show ID. After my renewed motion for inunction was denied, I did not attempt to vote, knowing that it would be futile.
My motion for intervention in this suit was denied.

Table of authorities
Crawford v Marion County Election Bd, 458 F. Supp. 2d 775 (SD Ind. 2006), 472 F. 3d 949,
128 S.Ct. 1610 (2008)
Andrew v. Kern, 49C01-9806-MI-1372, 9/22/1998.
Term Limits v Thornton.
Collins v Day
Slaughterhouse Cases, 16 Wall. 36 (1873)
McDonald v Chicago,
Buckley v Valeo,
Buckley v ACLF,
McIntyre v Ohio, 514 U.S 334 (1995)
Term Limits v Thornton,
Wisconsin Right to Life v FEC II, 127 S. Ct. 2652 (2007)
Citizens United (_U.S._ 2010)
Anderson v Celebrezze, 460 U.S. 780, 790
Norman v Reed, 502 U.S. 279 (1992)
Burdick v Takushi, 504 U.S. 428 (1992)
Price v Indiana,
Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006)
Lake v Perdue
Purcell 127 S.Ct. 5, 549 U.S.__ (2006)
Harman v Forsennius, 380 U.S. 528 (1965)
Harper v Virginia Board, 383 U.S. 663 (1966)
Constitution and statutes:
Indiana Constitution
Article I
Article I section 1
section 3
section 9
section 11
section 12
section 23
section 31
Article II.
Article II section 1,
article II section 2,
artilce II section 14
article III
US constitution
First Amendment
14th Amendment, privileges and immunities
14th Amendment. due process.
14th Amendment, equal protection
24th Amendment
Other Authorities:
Catch-22., Joseph Heller.

Summary of argument

Voter ID attempts to add a qualification to those set out in article II section 2, and is thus unconstitutional.

Voter ID provides for unequal treatment of a fundamental right, and comes into conflict with section 23. The Court of Appeals opinion is compatible with Collins v Day, but this court could use this case to clarify what degree of deference to the legislature is appropriate in a case which involves fundamental rights and involves the process by which the members of the legislature are selected.

That voter ID violates the text of the Indiana constitution is supported when that document is read as a whole. Article II section 2 and Article I section 23 can be read and interpreted in harmony with the rest of the constitution. Cases on voter ID from other states support the League's position, as do federal cases.


I - Article II

Voter ID attempts to add a qualification to those set out in article II section 2, and is thus unconstitutional. There are no prior cases from this court about voter ID, because Indiana got along fine without it from 1816 to 2005. There are cases which uphold voter registration as not adding qualifications to those set out in article II section 2. The court below found that voter ID was sort of like voter registration, and allowed it under section 2, which gets thing exactly backwards. "Because of similarities in voter registration and the voter ID law, we find no reason why the similar conclusion would not apply here." But voter ID is not like voter registration, because the Indiana Constitution has not been amended to allow voter ID, but has been amended to allow voter registration. It is a crucial difference.
It is important to protect the voting process from fraud. Fraud can happen when some voters get to vote twice, or when some voter's votes are not counted even once. The voter ID program has been engaged in fraud in the name of preventing it. Voter registration is the process which the constitution authorizes for anti-fraud purposes. Is someone a citizen? The right to time to have that inquiry is to allow only citizens to register, and having registered voter lists that can be checked for citizenship. Checking passports at the voting booth is the wrong way to do this, and is not a procedure authorized by the constitution.

Is the person registering who they claim to be? Documents can be checked when a person first registers. Once the list of registered voters is made, anyone fraudulently claiming to be someone they are not and voting in person runs a high risk of discovery, since polls are generally run by by long time neighborhood residents, and signatures are checked. Perhaps a more limited ID requirement at the Clerks office or the proposed regional voting centers would pass muster. While currently no police and prosecutorial resources are earmarked for voter fraud, the resources currently used in promoting voter ID, which have included millions of dollars, could be redeployed to police and prosecute violations, if any, using techniques such as rewards and searches supported by probable cause.
Voter registrations happens once in a lifetime, or when changing address, and does so at a time when there is no time pressure. Once registered, according to regulations adopted by the legislature pursuant to section 14, the right to vote under section 2 becomes vested, and the legislature has no authority to add additional qualifications.
The statutory requirement that a voter show ID before being allowed to vote is a qualification. It is not merely a time place and manner restriction. There is no time at which a person who does not have ID or will not show ID is allowed to vote. There is no place at which a person who does not have or show ID is allowed to vote. There is no manner in which a person who does not have or will not show ID can vote, except few narrow exceptions that don't apply to me or to most people.
The indigency exception and the religious exception don't apply to me. I may or may not be indigent under the statute; the term is left undefined and there is a threat of prosecution for a wrong guess. But indigency isn't why I don't show ID. I have religious objections to waiving the rights that the Indiana constitution says are a gift of nature and nature's god. But I don't have a religious objection to being photographed. I don't qualify for absentee voting, since I am under 65 and not physically handicapped.
Qualification: an attribute that must be met or complied with and that fits a person for something. http://wordnetweb.princeton.edu/perl/webwn?s=qualification.
An added condition. http://en.wiktionary.org/wiki/qualification
A condition or circumstance that must be met or complied with: fulfilled the qualifications for registering to vote in the presidential election. http://www.thefreedictionary.com/qualification.
a circumstance or condition required by law or custom for getting, having, or exercising a right, holding an office, or the like. http://dictionary.reference.com/browse/qualification.
According to these real world definitions, found via Google.com, voter ID is a qualification.

The defendant in this case is Secretary of State Todd Rokita, who has been the head cheerleader of the voter ID statute and program. I first met Mr. Rokita when he was counsel for the Secretary of State in Andrew v. Kern. Andrew was trying to remove Kern from the ballot for congress on the grounds that some voters knew him by a different name, Hildago or Hildago-Kern.
Rokita argued that the US constitution sets out specific qualifications for who can run for congress, such as age and citizenship. Rokita argued that no additional qualifications can be added, citing Term Limits v Thornton. The judge agreed, and Kern stayed on the ballot.
Rokita was right. Where the constitution sets out qualifications, the legislature may not add to them, except by amending the constitution. Term Limits v. Thornton is not controlling here; it construed a different constitution and a different fact pattern. But it should be persuasive.

Voter ID is a qualification under the natural language meaning of that term.
What the court of appeals tried to do was discern from some older opinions of this court what this court would have done. I think the Court of Appeals erred, and misapplied those older opinions to these facts. But this court has a different task. It is not bound by prior opinions that are not quite on point, but can look to the text of the constitution and make its own decision.
The constitution specifically authorizes voter registration, and the more specific text governs over the more general text of section 2. But there is no comparable text which authorizes the additional qualification of voter ID. ID's expire. The right to vote does not expire, until the citizen does. Whether voter ID violates section 23 under Collins v Day is a hard case, which could go either way. But that voter ID violates section 2 is an easy case. This court should reverse the Court of Appeals, and find the statute void under section 2. If it does so, it need not reach the section 23 claim.

II - Article I

Section 23 is the equal privileges clause of the Indiana Constitution. Collins v Day was a case about unemployment compensation. Collins held that in evaluating section 23 claims, courts should show deference to the legislature. Deference is appropriate in dealing with unemployment compensation, because the legislature has a degree of expertize in economic regulation which the courts do not have.
In the Slaughterhouse Cases, the U S Supreme Court upheld regulation of slaughterhouses in New Orleans against a Privileges and Immunities claim under the 14th Amendment. While the decision was correct as to slaughterhouses in New Orleans, the decision used sweeping language which has had the effect of reading the P&I clause out of the constitution, and litigants rarely or never cite to it. Currently before the US Supreme Court is McDonald v Chicago, where one of the issues is whether a firearms ban violates the P&I clause. The case will probably be decided on due process grounds. Collins v Day has had a similar history. Before Collins, section 23 was treated as roughly equivalent to federal equal protection. Collins was intended to create a new line of case law, and stand as an adequate and independent ground for decisions. Instead, there has been a new calm for the Indiana Bill of Rights, and the adequate and independent grounds are rarely cited, briefed and argued. Section 23 has become largely a dead letter. When I drafted the complaint in my voter ID case, I did not include any section 23 claim, and made my equality arguments under Article II section 1, the right to free and equal elections.
But I have re-read Collins v Day, and some of the few cases that have upheld section 23 claims post-Collins. I have come to understand that the deference to the legislature under the Collins test is not absolute, and the analysis of the court of appeals can be sustained.
However, this case presents a useful opportunity for the court to re-explain how it understands section 23.

In Crawford, the Supreme Court used the case to clarify that the standard of review in election cases is the Anderson test, not the deferential Takushi test. That holding will have a long term effect after voter ID has come and gone.

In Collins, this court properly rejected the tiers-of-scrutiny method which is used in federal equal protection. In the post-Lochner era, the US Supreme Court generally gives rational basis scrutiny to general or economic legislation, strict scrutiny to cases involving racial discrimination or fundamental rights, and intermediate scrutiny to another set of cases, such as sex discrimination or expressive conduct. This court does not need to adopt that approach.
In the context of elections, the US Court is appropriately skeptical of legislation which infringes on the right to vote. It recognizes that every politician has a built in conflict of interest. The natural tendency, once elected, is to vote for bills which will make it harder for challengers to unseat them. For this reason, courts are instructed to give "close" "exacting" or "strict" scrutiny to restrictions on voting and campaigning. Buckley v Valeo, Buckley v ACLF, McIntyre v Ohio, Term Limits v Thornton,Wisconsin Right to Life v FEC, and Citizens United (_US_ 2010) are among these cases. At the same time, there needs to be some regulation of elections. In the ballot access cases, the Court has, over time, worked out a sliding scale balancing test, in Anderson v Celebrezze, Norman v Reed, and Burdick v Takushi. The Court looks at the extent to which voters' rights are burdened. The greater the burden, the stricter the scrutiny.
Severe burdens are given strict scrutiny under Norman. Minimal burdens receive deferential scrutiny under Burdick. Most of the cases fall in the middle under Anderson, and the burden on voters is balanced against the state interests, and the degree of fitness between those interests and the remedy. In Crawford, for the first time the Court used this framework outside of ballot access and applied it to voter ID. Crawford found that the courts below had erred in applying deferential Burdick v Takushi scrutiny, and should have used the Anderson test instead.
Crawford did not really reach the merits, because of procedural problems with the lawsuit. We do not know how the U S Supreme court would or will rule in an as-applied challenge by an actual voter.
Anderson, or the Anderson-Burdick-Norman framework, is not a perfect system. It leaves a great deal up to the personal preferences of those doing the judging. Perhaps this is unavoidable.
But, assuming this court reaches the section 23 claim, and explains how the Collins v Day framework works in the context of a case where a partisan faction of the legislature was trying to interfere with the fundamental right to vote and the need for free and equal elections, it might give some thought to the Anderson test, whether to adopt it or distinguish it. Some kind of explicit standard of review, and a process rather than just a result, would be very helpful for those of us interested in trying to reclaim the Indiana constitution as a source of rights and liberties in practice and not just in theory. In elections cases, Collins deference is inappropriate under the separations of powers set out in Article III of the constitution.

III - The Indiana constitution as a whole, and cases from other jurisdictions.

That voter ID violates the text of the Indiana constitution is supported when that document is read as a whole. Article II section 2 and Article I section 23 can be read and interpreted in harmony with the rest of the constitution, notably Article II sections 1 and 14, Article I sections 1, 3, 9, 11, 12, and 31.
Cases on voter ID from other states support the League's position, as do federal cases.
"WE, the People of the State of Indiana, grateful to ALMIGHTY GOD for the free exercise of the right to choose our own form of government, do ordain this Constitution."
The preamble is not itself legally operative. But it sets the tone. It assumes free exercise of the right to choose our officials. Under the voting licensing regime set out by the voter ID statutes, elections are no longer free. Not free as in speech, or free as in beer. The state wants us to display a passport, previously used only for international travel. These contain a microchip so that they can be read at a short distance. Some people have taken to wrapping their passports in foil or cooking them for a few seconds in a microwave, to avoid their identities being stolen by a passing info-surfer. Passports costs about $100. and up. Alternatively, the state wants us to use what is still quaintly called a "driver's license", but is increasingly becoming an internal passport, needed to go to a bar or bank or courthouse or airport or to walk down the street. Alternatively, those few who not have driver's licenses can use what are mistakenly called "free" ID's. But to get these you first need to buy a birth certificate. So they are not free. But wait. To get a birth certificate, you need a driver's license. Catch-22. Loopholes exist: the most recent time I needed to replace my birth certificate, all I had to do was drive 1200 miles round trip to my birth county, bring along my legally blind 80 year old mother and her ID, pay a $10 fee, not for the birth certificate, but for the opportunity to ask for it. They had it, I got it, I drove home, and only three trips to the BMV later I had my replacement driver's license, for only $5 more. Too late to get my provisional ballot counted within the ten day window.
[A]ll power is inherent in the People; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the People have, at all times, an indefeasible right to alter and reform their government.
Here, instead, the government has altered and reformed the voters. Where previously all registered voters got to vote, now only those with voting licenses are allowed to participate.
Section 3. No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.
Voting, one hopes, involves the conscience. Perhaps, though, this case is not included in "any case whatsoever".
Section 9. No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.
Voting involves the interchange of thought and opinion,and involves writing and speaking.
Under Price v Indiana, restrictions on political speech require the state to carry the burden of justifying their regulations. Price traced the history of the 1816 constitution as a Jacksonian victory of the small farmer and common man over those who sought to establish themselves as a small ruling elite. That spirit weights against voter licensing.
Section 11. The right of the people to be secure in their persons..., papers, and effects, against unreasonable search or seizure, shall not be violated.
The voter ID regime involves an unwarranted search of millions of people, a search that is more intrusive that it needs to be. Rarely have so many been searched with so little result. The effect of voter ID is to ratchet down the civilian population's reasonable expectation of privacy, paving the way for passports and IDs to be used in brave new circumstances in the future.
Section 12: every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.
Voter ID leaves the decision about who gets to vote in the hands of the BMV. If one is refused a voting license by the BMV, as I have been, there is no appeal process. This violates both procedural and substantive due course of law.
Section 31. Right of assemblage and petition
No law shall restrain any of the inhabitants of the State from assembling together in a peaceable manner, to consult for their common good; nor from instructing their representatives; nor from applying to the General Assembly for redress of grievances.
Voter licensing restrains the most important way citizens instruct their representatives - by voting for or against them.
Section 1. All elections shall be free and equal.
These clauses of the Indiana constitution are not directly at issue in this case.
However, when the court rules on the meaning of section 2 and section 23, it can keep these other sections in mind and attempt to rule in a way that is harmonious with the constitution as a whole. From my point of view, that means ruling for the plaintiffs on both issues.

Several other states have looked at voter ID rules and their state constitutions.
In Michigan, voter ID was upheld on the basis that universal absentee balloting was available as an alternative. In Indiana, it isn't. Indiana and Georgia have the most onerous voter ID rules in the country. In Missouri, voter ID was found to violate the 'free and open elections" clause of the suffrage article. Weinshenck v State. Missouri's constitution, like Oregon's, is closely modeled on Indiana's.
In Georgia, a state court in Lake v Perdue found that voter ID was a prohibited poll tax and equal protection violation. On appeal, that judgment was overruled on the basis that plaintiffs, who had not themselves been denied the vote, lacked standing. This issue is being re-litigated based on the standing analysis of Crawford, but I do not think there has been any decision yet.

Federal cases, when on point, can often be instructive if never controlling.
I have discussed Term Limits v Thornton above. Two cases involving voter ID have been heard by the US Supreme Court, Purcell and Crawford, but both cases turned on procedural issues rather than on the merits. In Crawford a concurrence provides arguments for the merits, two dissents provide arguments against. (The Crawford concurrence was based on a belief that every Indiana voter can obtain a free ID. That is factually mistaken. At most 20% of the voter qualify for the "free" ID's, which are not free.)
We do not yet know how the full court would rule in a case that had a properly formed as-applied challenge, relying on either or both the First or Twenty-Fourth Amendments.
Harman v Forsennius and Harper v Virginia Board involved cases where voters were having to pay a fee or obtain extra paperwork as a condition of voting. Both cases found these practices unconstitutional. One did so under the Twenty-Fourth Amendment, the other under the equal protection clause under strict scrutiny. Both are persuasive precedents that this court could follow, while applying different constitutional texts.
This is not one of those state constitutional cases where plaintiffs have lost on the merits in federal court,and turn to state constitutions to try to find a loophole. This is a controversy where there are serious undecided issues at both the federal and state level. Overall, federal cases and cases from other states favor the plaintiffs here.
The text, the history, the plain meaning, this court's prior case law, the constitution as a whole, and the case law of other states and federal cases, all go to support the plaintiff' position on both issues, with the Article II claim being the strongest.

Respectfully submitted, Robbin Stewart.


Plaintiff, )
v. ) CASE NUMBER: 1:08-cv-586-LJM-TAB
Defendants. )
MOTION FOR partial summary judgment

Plaintiff Robbin Stewart moves the court for partial summary judgment as motions as follows:

The parties do not agree on every fact in the case. But I think that they agree on certain core facts which are sufficient to frame the issues for decision.
These include: that in 2005 the county and state adopted a policy of requiring ID as a precondition to voting;
that that policy is still continuing;
that plaintiff is a person who is unwilling to show ID as a precondition of voting;
that my provisional ballots have not been counted and I have cast no counted vote since 2005, although I wish to vote and have tried to do so;
that the announced results in 2006 and the 2008 primary did not include provisional ballots where no ID was shown and did not include votes of people who were not allowed to vote for reason of voter ID.
I am a registered voter and have previously voted at that precinct and in Marion County. There is no contention that I am not who I say I am, or that my signature does not match the signature in the poll book.
The continued denial of my vote in 2008 and 2009 elections are not before the court at this time, because the court has not allowed the complaint to be supplemented with the new facts that have arisen as a consequence of the court's denial of preliminary injunctive relief as this case proceeds. There is a live controversy, plaintiff has standing,and the issues are ripe for decision, and can be decided as a matter of law.

The contested legal issues in the case include whether plaintiff had a right to vote without ID, and a right to free elections including the votes of people without ID,
A) under the free and equal elections clauses of article II section 1,
B) under the right to vote of article II section 2,
C) under the right of free speech under Article I section 9,
D) under the right to be free of unreasonable searches and seizures under Article I section 11
E) under the right to due course of law under Article I section 12
F) under the 24th Amendment to the US constitution
G) under the First Amendment
H) under the 4th Amendment
I) under the equal protection clause of the 14th Amendment.
G) under the due process clause of the 14th Amendment.
Claims under Article I section 31 (right to petition) are not addressed herein.
Claims under the Privileges and Immunities clause of the 14th Amendment are not addressed in this motion, as they are better deferred until the Supreme Court rules in McDonald v Chicago. Claims under the 15th Amendment are not addressed herein.
The law is with the plaintiff and against the defendants in this case.
Accordingly, the court should rule that plaintiff's rights were violated by the defendants conduct at issue, and set a jury trial as to matter of damages,and permanently enjoin defendants from again denying plaintiff the right to vote.
The court should order that his provisional ballots be counted.

In support of this motion plaintiff relies, as is further set out in the brief in support, on the following documents.
The verified complaint.
Affidavit of plaintiff.
County's response to interrogatories.
County's reply brief in Crawford v Marion.
[Plaintiff's deposition, if submitted into evidence by defendants. (Being indigent, I have been unable to purchase a copy myself, and was not provided with a copy.)]
Additionally, plaintiffs rely on the legal arguments contained in their separately submitted Memorandum of Law.
WHEREFORE, plaintiff requests that this Court grant me partial summary judgment in
this cause and all other proper relief.


outlion of brief in support

table of contents
table of authorities
facts, undisputed.
facts, disputed.
summary of argument.

Facts -
0. The case is framed by Marbury v Madison and Erie Railroad. This court must give full faith and credit to the Indiana Court's having found the statute unconstitutional, which affects the analysis of every claim.
I. Standard of Review -
a) 24th Amendment
b) First Amendment
c) other claims.

II Voter ID violates the state constitution.
a) Article II
b) Article I
III Voter ID violates the 24th Amendment.
a) The birth certificate fee is an "other tax" under the text of the 24th Amendment.
b) The voter ID obstacle to voting is like the reregistration requirements found to violate the 24th Amendment in Harman v Forsennius.
IV Voter ID, on these facts, violates the First Amendment under the Crawford test.
V Voter ID violates the 4th Amendment, in that it is an unwarranted search without reasonable suspicion not falling under any of the current exceptions to the warrant requirement.
VI Voter ID violates the 14th Amendment.

This is a case about whether Indiana's voter ID rules are constitutional,and whether plaintiff has a remedy for being denied the vote because of voter ID.
Plaintiff was denied the vote after being unwilling to show a voter license,
in the general election of 2006,the primary election of 2007 and the primary election of 2008.
The controversy is live because these votes have not yet been counted.
The policy continues in force today. The denial of plaintiff's votes in the 2008 general and 2009 special elections are not at issue here,and are reserved for the next round of this litigation.
On several occasions, plaintiff cast provisional votes, which were then not counted.
The first instance took place at my precinct, 10-4 in Marion County Center Township, in 2006. The second instance took place at the Marion County clerk's office, where early voting is conducted, in 2007. The third instance took place in the Marion County clerks office in 2008, just after I filed this lawsuit.
Over 1000 provisional votes have gone uncounted in Indiana since the policy was adopted in 2005. An unknown number of people have been turned away at the polls without being allowed to cast even provisional votes, or have been prevented from voting because of the policy and did not bother to cast provisional votes that they knew would not be counted. One result has been that the outcome of close elections in Indiana cannot be determined with absolute certainty. Most elections are not close,and most races held since 2005 have had a clear winner.
Plaintiff was a real party in interest in Crawford v Marion County,and the consolidated case of Democratic Party v Rokita, and participated as an amicus. In that case, in 3-3-3 split decision, the Supreme Court denied a facial challenge on the grounds the plaintiffs had stipulated that the policy was constitutional up to 99% of the time. A concurring opinion would have upheld the statute on the merits, and a dissent would have found the statute unconstitutional.
In Crawford, the League of Women Voters was denied intervention. The League filed its own case in state court. On appeal, the Court of Appeals held that the statute was unconstitutional and void under section 23 of the Indiana Bill of Rights, the equal privileges clause. "Based on the foregoing, we conclude that the Voter I.D. law violates Indiana Constitution Article 1, Section 23, and must be declared void because it regulates voters in a manner that is not uniform and impartial." On January 25th, the Indiana Supreme Court accepted transfer of the cross-petitions. The State is appealing the section 23 ruling, while the League is appealing the denial of its Article II section 2 claim. This plaintiff's motion to intervene was denied. This court denied a motion to stay proceedings until LWV becomes final, and set a schedule for dispositive motions,which has been extended to February 9.

eire doctrine
marbury v madison
no statute.

standard of review
anderson v celebreeze aka crawford standard.
norman v reed standard.
harmon v forsennius standard - absolute bar for poll taxes, strict scrutiny for ballot impediments.
The outcome of constitutional challenges often depends on application of the correct standard of review.
In previous rulings on the constitutionality of the Voter ID Act, lower courts have erroneously applied deferential review and upheld the statute. (Crawford, Crawford, this case, LWV.)
Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 784 (S.D. Ind. 2006),

The standard of review is at least that of the Anderson test. Under some authority, the standard is strict scrutiny. Norman v Reed, Harper v Virginia Board, Williams v Rhodes, Harman v Forsennius. However, if the birth certificate fee is found to be a tax pursuant to the 24th Amendment, the state is absolutely barred from continuing to require it as a condition of voting.
examples of absolute bar:
The federal constitution sets out numerous specific requirements, which are intended to be adhered to absolutely. For example, the president is limited to two terms, women are allowed to vote on the same terms as men,and no tax may be made a condition of voting. There are no balancing tests and no degrees of scrutiny, however strict. No state interests, however compelling, permit the president to hold a 3rd or 4th term, permit the government to disenfranchise women, or permit voting to be conditioned on payment of a tax. This is different from more general provisions, such as "freedom of speech" "due process" or "equal protection of the laws" which are necessarily matters of construction and interpretation.
It is possible to agree or disagree that the requirement of fees for birth certificates, drivers licenses or passports constitutes a prohibited "poll tax or other tax." The 7th circuit's mention in dicta of poll taxes in its discredited and vacated
Crawford opinion is not controlling here, because that was in the context of a First Amendment discussion reviewed under a rational basis standard, and was a not a Twenty-fourth Amendment analysis. But the Twenty-fourth Amendment, under the single binding precedent of Harman v Forsennius, goes beyond poll taxes themselves, and looks at barriers to voting. Harman does not explicitly use the term "strict scrutiny", but that appears to be the standard it applied. Certainly the rule for decision was far more exacting than the sort of permissive review the lower courts used in Crawford. In this case, I and other prospective voters have been barred from voting if we don't show proof of purchase of a birth certificate in order to purchase a driver's license. A passport, which costs $100, can be used instead, but in order to get a passport you need a drivers license, and in order to get a drivers license you need a birth certificate. None of these documents are free. There has been a red herring in this case about "free" ID's, but I am not eligible for one, since I have a driver's license,and they are not really free anyway. The 80% of Indiana voters who have driver's licenses are not eligible for "free" IDs. I paid a fee to obtain a birth certificate and another fee to obtain a driver's license. It is the birth certificate fee which functions as a prohibited tax in this case. Whether the voter uses a passport, driver's license, or ID card, each requires the birth certificate, which costs money.
Nor do any of the exceptions under the program, such as religious or indigency exceptions, fit my case, or fit the cases of most of the thousand-plus cases where voters were improperly disenfranchised by the voter ID policy. Whether viewed as a poll tax or other tax and absolutely barred by the 24th Amendment, or merely as barrier to voting subject to strict scrutiny under the 24th Amendment, the voter ID program is an unconstitutional barrier to voting, so that when I was denied the vote for failing to show these documents, my right to vote was denied. When this court on two occasions refused to issue temporary injunctive relief, it violated its duty as an inferior court to follow the binding precedent issued by the United States Supreme Court, Harman v Forsennius. It should not repeat that error a third time.

crawford analysis
only county interest is following the statute.
state has yet to assert any interests.

unwarranted search is severe burden
impact on this plaintiff is severe burden

fraud detection
no public confidence aspect
what's the third?

factors in the county reply brief.

balance of the burden and the state interest:

outlion of brief in support

eire doctrine
marbury v madison
no statute.

Two landmark cases frame the legal issues in this case, Marbury v Madison and Erie Railroad. Marbury holds that an unconstitutional statute is void and without effect.
Erie hold that federal courts must accept state court construction of state law.
Under current state law, announced by the Indiana Court of Appeals in League of Women Voters v Rokita, the voter ID act of 2005 is unconstitutional. That case is not yet final, but this court has already refused a stay to await any further developments. (Plaintiff initially opposed a stay, when it was directed at interfering with motions for temporary injunctive relief and certification, because a stay of the sort sought would have mooted those motions. After those motions were denied, plaintiff contacted defense counsel offering a joint motion for a stay, but the defense was no longer interested.)
This court may not agree with the state court's finding that the Act is unconstitutional and void. But it is bound by it and lacks jurisdiction to override the Indiana courts' construction of their own statutes and constitution.
The finding by the state court changes the game. The Seventh Circuit opinion in Crawford, which tacitly upheld the state challenges by not discussing them, has been superceded. This court's first ruling denying injunctive relief has been superceded, because that decision relied both on the statute and on a misplaced strong presumption that the statute was valid. This court's second denial of injunction, which relied solely on the reasoning of the first, was in error, because of the way the law had changed between the two rulings. There is no longer any legislative authority for the county's policy of denying the vote to plaintiff and others who do not comply with the voter ID qualification for voting. The county's only rationale for its policy was the interest in following the statute. Defendant's response to interrogatories. @ cite here.

Now, only inertia keeps the policy in place.
The county has admitted that the policy is counterproductive and interferes with the conduct of elections. In its reply brief to the Unites States Supreme Court in Crawford, the county said the following:

The basic fact pattern in this case is that the county and state have been, since 2005, following a policy that was not actually authorized by any valid legislation.
The question becomes whether the policy, unsupported by legislative enactment,
violates the First, Fourth, Fourteenth, and Twenty-Fourth Amendments, and whether it violates the Indiana Constitution, article II section 1 and 2, article I sections 9, 11, and 12. Because there had been a statute, and that statute had been upheld initially, qualified immunity would have probably attached, if there had been any personal capacity claims in this case, but there are none.
Each claim will be discussed in turn below.

Because it is in theory possible that the Indiana Supreme Court could overturn the ruling voiding the statute, there is a also a discussion below, in the alternative, which does not rely on the current finding of voidness. Even if there were no state constitutional problems with the statute, it would still violate the 24th Amendment, and likely also fail the Crawford analysis, and constitute an equal protection violation.

standard of review
anderson v celebreeze aka crawford standard.
norman v reed standard.
harmon v forsennius standard - absolute bar for poll taxes, strict scrutiny for ballot impediments.

The standard of review for the first amendment claim is either the Anderson test, set out in Crawford, or the strict scrutiny test set out in Norman v Reed.
The standard of review under the 24th Amendment claim is either an absolute bar to taxes or fees as a precondition of voting, or is strict scrutiny of procedural barriers to voting, per Harmon v Forsennius.
The standard of review under the Fourth Amendment is that unwarranted searches are presumptively unreasonable, outside of certain narrow exceptions not applicable here.
The standard of review under the equal protection prong of the Fourteenth Amendment is either the Anderson test, following Crawford, or the strict scrutiny test of Harper v Virginia. The facts of this case fall midway between Crawford and Harper.
In Crawford, plaintiffs attempted a facial challenge while conceding that the (former) statute was constitutional up to 99% of the time, and only infringed the rights of a small group. Harper evaluated a poll tax,and struck it down without reference to the 24th Amendment. Here, there is no longer a statute authorizing the program. An Indiana court of competent jurisdiction has declared the statute void.
The program is challenged both facially and as applied to plaintiff. Plaintiff contends the program violates the rights of every Indiana voter and resident.
Probably Harper is the more analogous case,and strict scrutiny should be applied, but plaintiff is entitled to prevail on the equal protection claim regardless of which standard is used.
The standard of review under article II, sections 1 and 2, has not been set out with specificity in any exact formula.
Elections are free when _. Elections are equal when _. Blue v Board.
But the cases have treated these as meaningful restrictions. The district court in Crawford erred in treating section 2 as providing only rational basis review. Rational basis review of legislation is already guaranteed by the due course of law provisions of Article I section 12,and the Indiana constitution is not massively redundant - each provision means something. Sections 1 and 2 are self-enforcing, not merely hortatory. Perhaps the best authority on the standard of review in a section 2 case about voter ID would be League of Women Voters v Rokita ("LWV") But there is an essential difference between the resulting analysis. In LWV, the court began with the section 2 claim, upheld the statute,and went on to consider the section 23 claim, and found the statute unconstitutional under section 23. Our task is different. Now that the statute has been declared void, we need to examine whether the voter ID program, unauthorized by statute, complies with section 2. The result is different.
The standard of review under Article I section 9 is set out in Price v State.
When the state seeks to regulate political speech, it bears the burden of showing that the restrictions are reasonable @@.
The standard of review for search and seizure under article I section 11 is set out in Gershoffer v State.
The standard of review under section 12 of article I, the due course of law clause, is roughly that of the due process clause of the 14th Amendment. Under the 14th Amendment, general or economic legislation is typically given rational basis review, while cases about the exercise of fundamental rights, such as the right to vote, receive more exacting or strict scrutiny. When applying the 14th amendment to the states, courts provide a certain degree of deference due to considerations of comity and federalism, because the state and the federal government are co-equal sovereigns. This deference does not come into play when it is the state rather than the federal constitution at issue. Usually it is state rather than federal courts which interpret state constitutions. Here this court has made clear is it comfortable usurping that role. Erie counsels that this court may not substitute its own preferences, but is to follow the law as expressed by the state courts. The issue is whether a voter ID program, imposed by Rokita and carried out by White and the county, unauthorized by any valid statute, complies with due course of law under section 12.

crawford analysis
The standard of review for the First Amendment claim in this case is either Anderson v Celebrezze or Norman v Reed.
Crawford's controlling minority opinion , the First Amendment analysis requires application of the Anderson test. For this reason, the district and circuit court opinions in Crawford, which erroneously applied the deferential Burdick v Takushi test, and the two prior rulings in this case denying injunction, which erroneously relied on a strong presumption of constitutionality, cannot be relied on in evaluating this motion for summary judgment. Instead, this court is required to follow binding supreme court precedents.
Under Anderson (cite the 4 factors.)
In Crawford, there were no individual plaintiffs, and the concerns that about 1% of the voters would be unable or unlikely to comply with the voter ID barriers to voting was not held to constitute a severe burden.
This case presents different facts and different claims. Here, there is a plaintiff who is directly affected, who has been kept from voting since 2005. I have been prevented from voting because I am unwilling to comply with a procedure I know to be unconstitutional and void, which is a violation of my privacy, a violation of my franchise rights, and an unwarranted search of my person, papers and effects.
My case is not about me alone and my particular circumstances. It is not predicated on the fact that my wallet was stolen after I had submitted a provisional ballot, after being refused a regular ballot because I am unwilling to show ID, or that I had to drive 1200 miles, pay a fee, and then make three visits to the BMV where I paid another fee. My particular circumstances provide examples of the ways in which voters are burdened by the voter ID hurdles, but every Indiana voter has standing to do what I have done; to go try to vote without being subjected to an illegal voter ID program.
I am not alone in having been denied the vote. Over 1000 other cases are known. Other categories of people denied the vote as a result of voter ID include those who, like the nuns in Terre Haute, were turned away when trying to vote and not given provisional ballots. When, immediately after filing this lawsuit, I went over to the early voting desk at the county clerks office and tried to vote, I was initially turned away. It was only when I insisted on casting a provisional ballot that I was allowed to do so. [The facts of the 2008 general election, when I was turned away without being allowed to cast even an uncounted provisional ballot, are not at issue currently because the court has refused to allow the complaint to be supplemented to include the new facts which resulted from the denial of the injunction.]
But these cases, where people went to try to vote and were either turned away or were given provisional ballots that were not counted, are only the tip of the iceberg. For most of the people who either don't have ID or aren't willing to show it, there is no point in fruitlessly going to the poling place only to be turned away or given a ballot that won't be counted. They simply stay home. Not out of apathy, and not voluntarily, but because their right to participate in a free and open election has already been denied,and it would be a futile trip.
I stand in the shoes of every other voter.
It is not only those who were prevented from voting who have standing and are being harmed by the voter ID program. Every person who did cast an in person vote was subjected to an illegal and unconstitutional search and a violation of their right to be free from poll tax type barriers.
Whether or not voter ID is ultimately found to be or not be a violation of the rights of search and seizure, it is a part of the calculation of the burden for the purpose of determining whether there has been a severe burden triggering Norman v Reed strict scrutiny. Under the program, approximately 2 million searches were conducted. The result was that zero cases of attempted voter fraud were discovered. Prior to 2005, there were no prosecutions in Indiana for in person voter fraud. Subsequent to 2005, there have been no prosecutions in Indiana for in person voter fraud. As a means of detecting voter fraud, the program has been a complete failure. In Edmond v Indianapolis, the 7th circuit and supreme court invalidated a search program which had a hit rate of 9%. The voter ID program has a hit rate under 0.0001%.
Perhaps some in person ballot fraud is being deterred. But so many legitimate votes are also being deterred that there is no net gain in the validity of the ballots; instead there is a net loss. Voter ID is security theater; it presents an aura of combating fraud, without actually accomplishing anything useful. Those who are intent on illegally casting fraudulent votes are not prevented from doing so. They need only turn to other methods, such as the already popular absentee ballot method, or buying votes, or bribing polling officials, or hacking voting machine software, or whatever the other tricks are. I am not one of those who says there has never been any in person voter fraud in Indiana. My claim is that voter ID doesn't fix the problem and creates other greater problems.
One of the parts of the test is not only that the state interests outweigh the individual rights at issue, but there must be a good fit between the state's interests and the means used. Here, the program can be shown to have been somewhat effective at deterring voting by registered voters, probably mostly those of the Democratic persuasion. But it has not been shown to have deterred or detected any fraudulent votes. It has made elections less rather than more reliable.
It was at first somewhat successful as security theater, producing a false sense of election security among some members of the public. But currently, when more of the public has come to understand that voter ID was an illegal unconstitutional method for keeping nuns from voting that didn't work to catch fraudulent voters, it is difficult to give this factor much weight.
In Norman v Reed, a statute was construed such that the Harold Washington Party in Chicago needed 50,000 signatures rather than 25,000, to get ballot access.
The court found that the extra 25,000 signatures constituted a severe burden,and therefore that strict scrutiny would be applied. The court did not set out any test for what constitutes a severe burden. Unfortunately, the only known standard is the personal preferences of the judges. But if requiring 25,000 signatures is a severe burden, requiring 25,000 people to go to the BMV to get voter licenses should also be a severe burden. Conducting 2 million unwarranted searches, with the effect of ratcheting downwards the public's reasonable expectations of privacy, is a severe burden. Having the BMV refuse me an ID on 5 occasions, and having to make an in-person pilgrimage to my county of birth to petition for a new copy of my birth certificate, simply to get my already issued driver's license replaced, has been a severe burden. Crawford only considered the burden on some 1% of the voters. My case involves the burden on 100% of the voters, except those who would have voted absentee anyway. (In 2006, there was a 33% jump in absentee voting, suggesting that people were turning to absentee voting to avoid the in-person ID requirement. But most voters aren't eligible to vote absentee, nor am I. I do not have figures for 2008 or 2009.)
Here the better view is that the facts of this case constitute a severe burden,and Norman v Reed strict scrutiny should be applied. But the Anderson test is another way of expressing the same concerns. Here the burden on plaintiff and the voting public is significant, whether or not it meets whatever test the court sets out for "severe". These are to be balanced against the state interests, and then the fitness between the state interests and the action taken is weighed, to see whether the action is necessary. The only interest asserted by the county, that of complying with the statute, has vanished now that the statute has been voided. We do not know what interests the Intervenor state of Indiana will assert. The state's late intervention in this case happened around the same time as the court prematurely ended discovery, so there has been no opportunity to find out the state's position on this issue.

only county interest is following the statute.
state has yet to assert any interests.

unwarranted search is severe burden
impact on this plaintiff is severe burden

fraud detection
no public confidence aspect
what's the third?

factors in the county reply brief.

balance of the burden and the state interest:

article II claims
article I claims
Price v state
need a case for section 12.
4th a claim.
substantive due process/equal protection.
yick wo v hopkins
harper v virginia
citizens united - quote the stuff about you don't need a campaign finance lawyer.
find a good quote for "arbitrary"

“All regulations of the elective franchise, however, must be reasonable, uniform, and impartial; they must not have for their purpose directly or indirectly to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; if they do, they must be declared void.” Blue at 111, 188 N.E. at 588.
Here, the purpose of the program is to indirectly deny and abridge the constitutional right to vote of those who either do not consent to a search or who are unable to comply with the search. Voter ID unnecessarily impedes the exercise of the right to vote. We know that is unnecessary because elections were conducted in Indiana, between 1819 and 2005, without the use of voter ID. Even those who contend voter ID is desirable should admit that it is not necessary.

Additionally, the Blue court stated: “It is for the
Legislature to furnish a reasonable regulation under which the right to vote is to be exercised, and it is uniformly held that it may adopt registration laws if they merely regulate in a reasonable and uniform manner how the privilege of voting shall be exercised.” Id. at 107, 188 N.E. at 586.

Article II Section 14 authorizes the legislature to enact reasonable rules for voter registration, in order to deter and prevent fraud. But section 14 does not authorize election officals to impose rules in the absence of valid legislation, and what it allows is registration, not additional layers of qualifications and licenses beyond the registration process.

posted by gt @ 6:57 PM

Tuesday, January 19, 2010

ROBBIN STEWART, ) ) Plaintiff, ) ) v. ) CASE No: 1:08-cv-586-LJM-TAB ) MARION COUNTY, et al. ) ) Defendants. )
Plaintiff Robbin Stewart moves the court for an extension of time in which to file dispositive motions as follows: 1. Pursuant to an entry for December 15, 2009 (docket no. 74), the court set the deadline for January 19, 2010. 2. Plaintiff intends to file a motion for partial summary judgment. 3. The state and county have requested an extension of time, which plaintiff does not oppose. 4. The requested brief delay will not prejudice either party or harm the public interest. 5. It is requested that the time be enlarged to and including February 9, 2010. WHEREFORE, plaintiff urges the court to enlarge the time within which to file dispositive motions, that the time be enlarged to February 9, 2010, and that the court grant it all other just and proper relief. Respectfully submitted, Robbin Stewart s/Robbin Stewart. Case 1:08-cv-00586-LJM-TAB Document 76 Filed 01/19/10 Page 1 of 2
gtbear@gmail.com Box 29164, Cumberland IN 46229-0164. CERTIFICATE OF SERVICE I hereby certify that on January 19, 2010, a copy of the foregoing motion was filed electronically. Notice of this filing will be sent to the following parties by operation of the Court’s electronic filing system. David A. Arthur
David.Arthur@atg.in.gov Jonathan L. Mayes Office of Corporation Counsel jmayes@indygov.org Richard G. McDermott Office of Corporation Counsel rmcdermo@indygov.org Justin F. Roebel jroebel@indygov.org Robbin Stewart s/Robbin Stewart

Recent developments:
the Indiana Supreme Court denied my motion to intervene.
Both sides in my case have requested a short extension of time for filing motions for summary judgment.

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