Friday, February 05, 2010

draft only do not file
Motion for stay.

1. The court has set a timetable for dispositive motions. Both sides intend to file motions for summary judgment.
2. Last week the Indiana Supreme Court accepted transfer of the cross-petitions for review in League of Women Voters v Rokita. The Court of Appeals had found voter ID unconstitutional.
The Court has not set a date for oral argument, and of course we do not know how soon it will rule.
3. The Court will review two issues:
1. Whether voter ID is a qualification for voting not authorized by Article II section 2, which states that the only qualifications are citizenship, age, and residency.
2. Whether voter ID involves unequal treatment of voters under section 23 of Article I.
It is the practice of the Indiana court to accept transfer in cases whether a staute has been found unconstitutional. The court's acceptance of transfer does not foreshadow a ruling one way or the other. It may be significant that the Court accepted plaintiff-appellees cross-appeal, but the case is of such public importance, and it had already decided to hear some aspect of the case, that this does not need to be taken a sign that it will necessarily overrule the Court of Appeals on that issue. (The merits of the article II claim, rather than anything procedural, are the best indication that the Court is likely to overrule denial of the Article II claim.)

4. The Indiana courts have jurisdiction to decide issues of state law, including whether voter ID is unconstitutional under the state constitution. Under the Eire doctrine, this federal court is bound by the state courts' determinations of state law.

5. How the Indiana Supreme Court rules will have a major effect on this court's analysis of plaintiff's claims and defendants' counterarguments. A premature ruling from this court would not be genuinely dispositive, and would involve second-guessing the state court and reinventing the wheel.

6. Rule 1 promotes speedy determination of cases as well as judicial economy and justice.
A rush to judgment here is not in the interest of speedy determination, because it would simply require the case to be reopened if its decision is incompatible with how the state court rules.
Judicial economy would be served by finding out what the law of the state is, before applying it to the federal and state claims at issue herein.

7 A major part of the arguments I am making in my motion for summary judgment is that the county and state's policy is ultra vires and arbitrary, because the apparent authority, the voter ID act, has been found unconstitutional and void. How the Indiana Supreme Court rules on this issue is highly relevant.

8. A possible way out of this problem would be if the state concedes that the voter ID act is unconstitutional, but argues that there is some other defect in the lawsuit that prevents it from proceeding. So far in its filings the state has made no such concession, nor should it be expected to.
Similarly, regardless of how the Indiana Court rules, voter ID is a tax prohibited by the 24th Amendment under the binding precedent of Harman, and the Court could rule in my favor without further delay on this or other federal grounds. So far, it seems disinclined to do so. It is unlikely that such a decision would become final in time to moot the state court case, but it could be seen as inappropriate interference with the state's determination of its own law.

9. Previously, the state moved for a stay of all proceedings until LWV is decided. I opposed the motion, and the court denied it. But the reason for my opposition was that the state was seeking to stay preliminary injunctive relief, and my motion to certify the state claims in this case so that the Indiana Court would have the opportunity to consolidate the cases if it chose to do so, both of which would have become moot if stayed. The court ruled adversely to both motions, and then denied the stay. I did not object to a stay to the extent that it was not directed at preliminary motions.

10. The state declined the opportunity to join this motion.

11 . In the interests of judicial economy and interests of comity and federalism, this court should stay decisions on motions for summary judgment until the Indiana Supreme Court rules.

Respectfully submitted,
Robbin Stewart.

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