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.

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