palmer v marion county

2011-12-13T20:41:00.001-08:00

“ACLU Files Lawsuit Challenging Wisconsin’s Unconstitutional Voter ID Law”
Posted on December 13, 2011 9:11 am by Rick Hasen
http://www.blogger.com/img/blank.gif
See this press release. See this related blog post/video.

this suit is important because it cleanly raises the 24th a issue.

2010-12-08T15:15:00.000-08:00

the county, which is representing both defendants, has removed the case to federal court, and has requested a month's delay in filing an answer. i wrote today to a couple of local lawyers seeking representation. based on how the last couple rounds went, i believe that getting a lawyer is an essential prerequisite to winning or settling the case.

2010-12-06T16:13:00.000-08:00

Here is the text of my recently filed voter ID lawsuit.

IN THE SUPERIOR COURT FOR MARION COUNTY

Robbin Stewart,

Plaintiff

vs. Case number: ____________________

Marion County Board of Elections and

Linda Proffitt

COMPLAINT
Count I

1.This is an action concerning the denial of my right to vote at the 2008 general election. The
facts in Paragraphs 1-10 are re-alleged as to each count.
2.I am a registered voter in Marion County, in precinct 10-4.

3.I went to vote in person.
4.Linda Proffitt, 812 N Rural St,Indianapolis, IN 46201-2474, was in charge of the voting at the precinct. Her title might be inspector or judge.
5.I was asked to show a state ID.
6.I declined to do so, and stated that I had right to vote under the state constitution.
7.Proffitt refused to allow me to vote.
8.I asked her to give me something in writing, showing that I has been there and tried to vote, and was refused, but she would not do so. We spoke for about 5 minutes.
9.An observer from the Obama campaign provided me with an affidavit, which I filled out and returned to him. I believe it was forwarded to the Marion County Democratic Party offices.
10.Profitt's duty, under the statutes, was to either provide me with a regular ballot, or with a provisional ballot. She did not do so.
11.There are related cases. In Crawford v Marion County, consolidated with Rokita v Democratic Party, the US Supreme Court denied a facial challenge to the voter ID statute. I was an amicus in that case.
12. In League of Women Voters v Rokita, the Indiana Supreme Court, overruling the Court of Appeals, denied a facial challenge to the statute, while leaving room for future as-applied challenges. The Court denied my motion to consolidate LVW with Stewart v Marion County.
13.In Stewart v Marion County, I sued concerning the denial of my vote, for reason of voter ID, in the 2006 and 2007 elections,and the the 2008 primary. The case was removed to federal court. Judge McKinney denied a motion to amend or supplement the complaint to add the 2008 general election facts. Therefor there has no opportunity to fully litigate the facts of this new suit, and this suit is not barred by preclusion. Judge McKinney later dismissed the federal claims in the prior suit.
14.Refusing to let me cast a ballot violated my right to vote under the First and 14th Amendments.
Count II
15.The denial of my vote violated my right to procedural due process under the 14th Amendment, as I should have been given at least a provisional ballot.
Count III
16.The denial of my vote violated my right to due course of law under Article I section 12.
Count IV
17.The denial of my vote violated my right to free and equal elections under article II section 1.
Count V
18.Proffitt's denial of my vote was negligence. She had voluntarily assumed a duty of reasonable care, under which every voter's vote should have been cast and counted. Her refusal to let me vote at least a provisional ballot was a breach of this duty of care.
19.As her employer, Marion County is liable for her negligence.
Count VI
20.Marion County showed deliberate indifference to my clearly established constitutional right to vote, by failing to adequately train and supervise Profitt.
Relief sought:
As to each count, I seek damages as determined by a jury,
court costs and reasonable legal fees,
appointment of counsel,
a permanent injunction against Marion County and its precinct officials from denying me the opportunity to cast a ballot for reason of voter ID in future elections,
and such other relief as is in the interests of justice.
Robbin Stewart
Box 29164 Indianapolis IN 46229-0164
317.375.0931
gtbear@gmail.com

2010-06-24T14:45:00.000-07:00

I missed the deadline for filing my appeal with the 7th circuit.
So the federal part of this lawsuit is finished.
I have not yet filed anything new with the state court.
This does not mean that I have given up on the federal issues - I will be continuing to file lawsuits about Indiana's voter ID until I either get a resolution I like or get turned down by the Supreme Court. Each election cycle gives me standing again.
I will be checking with the state court to see where things stand, and then maybe filing a motion for a temporary injunction.
I might or might not resubmit my amicus brief to the Indiana Supreme Court in the LWV case, since they have not yet ruled. My brief was turned down by the clerk because I didnt specify whether certain parties were served in person or by mail. How the Indiana court rules in LWV will be the major factor in my state suit.
My next suit, which I have to file before november, will be about how I was denied the vote in the 2008 general election. I was not even given a provisional ballot, so they didn't follow their own rules, even if voter ID is upheld generally. This does not mean that I am certain to get damages - the state had some theories that even if my rights were violated no damages are due. But it's the kind of thing I'm willing to litigate.

2010-05-04T17:57:00.000-07:00

voted provisional today. i won my gop primary, unopposed with 831 votes or so, but my dem opponent got 1100, so i have no chance in the fall.

2010-05-03T15:51:00.000-07:00

http://electionlawblog.org/archives/stewart.pdf

Judge McKinney granted summary judgment to defendants, and remanded the state claims back to state court.
While this is a (wholly expected) setback, it actually puts the case in a good procedural posture. It splits the case in two, so that there is a second bite at the apple. Also, to sustain summary judgment, the seventh circuit (and supreme court) will have to assume the facts as plead, so our discussion will be about the law.
I expect that when I go to vote tomorrow I will again be refused.
What I need to do next:
file a pro forma motion for reconsideration.

2010-03-27T12:25:00.000-07:00

My reply to the defendants' motion for summary judgment is here
http://joellpalmer.blogspot.com/2005/03/in-united-states-district-court.html

2010-03-08T21:12:00.001-08:00

ID Card for Workers Is at Center of Immigration Plan

By LAURA MECKLER

Lawmakers working to craft a new comprehensive immigration bill have settled on a way to prevent employers from hiring illegal immigrants: a national biometric identification card all American workers would eventually be required to obtain.

Under the potentially controversial plan still taking shape in the Senate, all legal U.S. workers, including citizens and immigrants, would be issued an ID card with embedded information, such as fingerprints, to tie the card to the worker.

The ID card plan is one of several steps advocates of an immigration overhaul are taking to address concerns that have defeated similar bills in the past.

The uphill effort to pass a bill is being led by Sens. Chuck Schumer (D., N.Y.) and Lindsey Graham (R., S.C.), who plan to meet with President Barack Obama as soon as this week to update him on their work. An administration official said the White House had no position on the biometric card.

"It's the nub of solving the immigration dilemma politically speaking," Mr. Schumer said in an interview. The card, he said, would directly answer concerns that after legislation is signed, another wave of illegal immigrants would arrive. "If you say they can't get a job when they come here, you'll stop it."
Revolving Door: Immigration Legislation

View Interactive

See attempts at reform and statistics on immigrants removed from the U.S. over the past six decades.

The biggest objections to the biometric cards may come from privacy advocates, who fear they would become de facto national ID cards that enable the government to track citizens.

"It is fundamentally a massive invasion of people's privacy," said Chris Calabrese, legislative counsel for the American Civil Liberties Union. "We're not only talking about fingerprinting every American, treating ordinary Americans like criminals in order to work. We're also talking about a card that would quickly spread from work to voting to travel to pretty much every aspect of American life that requires identification."

Mr. Graham says he respects those concerns but disagrees. "We've all got Social Security cards," he said. "They're just easily tampered with. Make them tamper-proof. That's all I'm saying."

U.S. employers now have the option of using an online system called E-Verify to check whether potential employees are in the U.S. legally. Many Republicans have pressed to make the system mandatory. But others, including Mr. Schumer, complain that the existing system is ineffective.

Last year, White House aides said they expected to push immigration legislation in 2010. But with health care and unemployment dominating his attention, the president has given little indication the issue is a priority.

Rather, Mr. Obama has said he wanted to see bipartisan support in Congress first. So far, Mr. Graham is the only Republican to voice interest publicly, and he wants at least one other GOP co-sponsor to launch the effort.

An immigration overhaul has long proven a complicated political task. The Latino community is pressing for action and will be angry if it is put off again. But many Americans oppose any measure that resembles amnesty for people who came here illegally.

Under the legislation envisioned by Messrs. Graham and Schumer, the estimated 10.8 million people living illegally in the U.S. would be offered a path to citizenship, though they would have to register, pay taxes, pay a fine and wait in line. A guest-worker program would let a set number of new foreigners come to the U.S. legally to work.

Most European countries require citizens and foreigners to carry ID cards. The U.K. had been a holdout, but in the early 2000s it considered national cards as a way to stop identify fraud, protect against terrorism and help stop illegal foreign workers. Amid worries about the cost and complaints that the cards infringe on personal privacy, the government said it would make them voluntary for British citizens. They are required for foreign workers and students, and so far about 130,000 cards have been issued.

Mr. Schumer first suggested a biometric-based employer-verification system last summer. Since then, the idea has gained currency and is now a centerpiece of the legislation being developed, aides said.

A person familiar with the legislative planning said the biometric data would likely be either fingerprints or a scan of the veins in the top of the hand. It would be required of all workers, including teenagers, but would be phased in, with current workers needing to obtain the card only when they next changed jobs, the person said.

The card requirement also would be phased in among employers, beginning with industries that typically rely on illegal-immigrant labor.

The U.S. Chamber of Commerce doesn't have a position on the proposal, but it is concerned that employers would find it expensive and complicated to properly check the biometrics.

Mr. Schumer said employers would be able to buy a scanner to check the IDs for as much as $800. Small employers, he said, could take their applicants to a government office to like the Department of Motor Vehicles and have their hands scanned there.
—Alistair MacDonald contributed to this article.

Write to Laura Meckler at laura.meckler@wsj.com

2010-03-05T03:32:00.000-08:00

http://www.indystar.com/article/20100304/NEWS05/3040471
voter ID hearing article

2010-03-04T08:07:00.000-08:00

I attended oral argument in LWV v Rokita this morning. Packed house. Tough questioning towards both sides. Karen Horseman-Celestino did a great job. Based on the questions, the justices are taking the case seriously and understand the issues. It seemed likely that the court could rule for the league on the article II claim. The court had questions about standing and whether this was a facial challenge. The court will probably rule on the merits, but could also just reverse the dismissal and require a trial so that there's more of a record. Video should be up shortly. https://mycourts.in.gov/arguments/default.aspx?court=sup

2010-02-27T14:32:00.000-08:00

The defendants' joint motion for summary judgment is here:
http://joellpalmer.blogspot.com/2007/02/this-is-defendants-motion-for-summary.html

2010-02-09T10:07:00.000-08:00

The brief in support of summary judgment is here
http://joellpalmer.blogspot.com/2005_02_01_archive.html

2010-02-09T00:03:00.000-08:00

filed the motion for summary judgment and brief today, and a motion for stay.
the state requested another extension.
i might put up a link to the brief tomorrow.
IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

ROBBIN STEWART, )
)
Plaintiff, )
)
v. ) CASE No: 1:08-cv-586-LJM-TAB
)
MARION COUNTY, et al. )
)
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 (Crawford _ U.S at ); that that policy is still continuing (Rolita letter 2009 url); that plaintiff is a person who is unwilling to show ID as a precondition of voting (affidavit p 1.); that my provisional ballots have not been counted and I have cast no counted vote since 2005 (id.), although I wish to vote and have tried to do so (id.); that the announced results in 2006 (Crawford, slip op at p._ ) and the 2008 (Michael Pitts article) 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. (affidavit p1 see also deposition.) There has been 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, I have 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 counting 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 of Article I section 9,
D) under the right to be free of unreasonable searches and seizures of Article I section 11,
E) under the right to due course of law of 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 for reason of ID.
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.
Exhibits 1-5, filed separately as hardcopy.

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.
Respectfully submitted,
Robbin Stewart.

2010-02-05T10:50:00.000-08:00

draft only do not file
caption
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.
@certifications

2010-01-26T22:04:00.000-08:00

draft do not file
IN THE INDIANA SUPREME COURT
T. ROKITA,
Defendant-appellant

vs 49A02-0901-CV-40

LEAGUE OF WOMEN VOTERS
Plaintiff-appellee and cross-appellant

Brief of Amicus Curiae Robbin Stewart

TOC
Interest of Amicus

Table of Authorities
Summary of Argument
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
Cases:
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,
Lochner
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,
Michigan
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
Preamble
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:
http://wordnetweb.princeton.edu/perl/webwn?s=qualification.
http://en.wiktionary.org/wiki/qualification
http://www.thefreedictionary.com/qualification.
http://dictionary.reference.com/browse/qualification.
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.

Argument.

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.

2010-01-26T10:22:00.001-08:00

IN THE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBBIN STEWART, )
)
Plaintiff, )
)
v. ) CASE NUMBER: 1:08-cv-586-LJM-TAB
)
MARION COUNTY, et al. )
)
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.

@sigblock..

outlion of brief in support

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

toc
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.

Facts
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.
Under 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
Gershoffer.
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

2010-01-19T20:09:00.001-08:00

1
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION
ROBBIN STEWART, ) ) Plaintiff, ) ) v. ) CASE No: 1:08-cv-586-LJM-TAB ) MARION COUNTY, et al. ) ) Defendants. )
MOTION FOR ENLARGEMENT OF TIME TO FILE DISPOSITIVE MOTIONS
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
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

2010-01-19T16:31:00.001-08:00

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.

2009-12-03T18:33:00.000-08:00

ENTRY denying [62] Motion to Stay - The motion to stay filed by the intervening defendant State of Indiana (dkt 62) and joined in by the defendants is denied without prejudice because the State fails to associate its pragmatic reasons for a stay in this case with an established legal doctrine, application of which would yield the result sought in the motion. Signed by Judge Larry J. McKinney on 12/2/2009. (TRG)

The motion to stay has been pretty much moot anyway for awhile, because judge McKinney ruled on the motion for injunction (denying it) and judge William Lawrence ruled on the motion for certification (denying it). Still, it's nice to see the state lose a round re its frivolous motions.

I am currently making some notes for a brief to the Indiana Supreme Court for Rokita. Dependin g on whether my motion to intervene is granted or rejected, I might file a brief as a party or as an amicus.

2009-11-27T21:11:00.000-08:00

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

IN THE INDIANA SUPREME COURT

T. ROKITA,

Defendant-appellant

vs 49A02-0901-CV-40

LEAGUE OF WOMEN VOTERS

Plaintiff-appellee and cross-appellant

vs

ROBBIN STEWART,

Intervenor

MOTION TO INTERVENE
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.” http://joellpalmer.blogspot.com/2009/10/united-states-district-court-southern_2383.html .

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.

http://moritzlaw.osu.edu/electionlaw/litigation/documents/RokitaBriefamicuscuriaeofCyberPrivacy.pdf
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

WILLIAM R. GROTH

Fillenwarth Dennerline Groth & Towe, LLP

GREGORY F. ZOELLER

Attorney General of Indiana
Indianapolis, Indiana
THOMAS M. FISHER
Solicitor General

KAREN CELESTINO-HORSEMAN
Austin & Jones, P.C.
Indianapolis, Indiana

THOMAS N. AUSTIN

HEATHER L. HAGAN
BRUCE G. JONES

ASHLEY E. TATMAN

Deputies Attorney General

Robbin Stewart

2009-11-27T21:04:00.000-08:00

This is a pre-editing version of a motion to intervene i wrote and printed but have not yet filed.
Ideally it'll be replaced by the actual document later - I'm using a mac away from the office and have limited blogging ability.

In the Indiana Supreme Court

Rokita
v
League of Women Voters

MOTION TO INTERVENE

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, CASE NUMBER: 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. (DWH)

This is a case which was filed in state court in order to obtain an authoritative ruling on matter 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. 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 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 rulings were erroneous, there were not appealled.
In Crawford, 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 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 plaintiffs 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 I 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 consistent with precedent.
I ask the court to grant intervention.

Respectfully submitted,
Robbin Stewart.

http://joellpalmer.blogspot.com/2009/10/united-states-district-court-southern_2383.htmlhttp://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefamicuscuriaeofCyberPrivacy.pdf,
BRIEF OF AMICI CURIAE CYBER PRIVACY
PROJECT, PRIVACY JOURNAL, PRIVACY
ACTIVISM, LIBERTY COALITION, U.S. BILL OF
RIGHTS FOUNDATION, ROBBIN STEWART AND
JOELL PALMER IN SUPPORT OF
PETITIONERS.
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). cite
http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rotika-opinion-9-17-09.pdf
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
WILLIAM R. GROTH GREGORY F. ZOELLER
Fillenwarth Dennerline Groth & Towe, LLP Attorney General of Indiana
Indianapolis, Indiana
THOMAS M. FISHER
Solicitor General
KAREN CELESTINO-HORSEMAN
THOMAS N. AUSTIN HEATHER L. HAGAN
BRUCE G. JONES Deputy Attorney General
Austin & Jones, P.C.
Indianapolis, Indiana ASHLEY E. TATMAN

2009-11-20T11:19:00.000-08:00

to do next

motion to intervene
new lawsuits
notice of tort claims
continue response to state

2009-11-20T11:00:00.001-08:00

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. (DWH)
(who is william t lawrence? i mean i know he's one of the judges, but why is the ruling from him instead of larry mckinney)

2009-11-13T20:58:00.001-08:00

Docket Text:
ENTRY Directing Further Proceedings - The intervenor defendant, State of Indiana, shall have through November 20, 2009, in which to supplement its motion for stay by explaining the effect implementation of the decision of the Indiana Court of Appeals in League of Women Voters of Indiana v. Rokita, 2009 WL 2973120 (Ind. Ct. App. Sept. 17, 2009), would have on plaintiff's claims federal and statein this case. Signed by Judge Larry J. McKinney on 11/13/2009.(TRG)

2009-10-28T11:34:00.001-07:00

On Wed, Oct 28, 2009 at 10:21 AM, Michael Hoskins wrote:
> Your reaction to that?
A bit disappointed, not shocked. It presents an opportunity for a
second appeal to the 7th circuit, and could even be appealed to the
supreme court. The Supreme Court rarely hears interlocutory appeals.
I probably wont pursue the appeals unless I get a donation to cover
the filing fees.

If I am denied the vote again in November, as it looks that I will be,
I can file a new case, which would have the advantage of re-opening
discovery.
- Show quoted text -

2009-10-27T16:16:00.000-07:00

Judge McKinney has denied an injunction about the use of voter ID in the November election. Marion county voters will vote on whether to increase funding for the Health and Hospital Corporation. No interlocutory appeal will be filed, just because I don't have the money for the filing fee. The basis for the renewed motion for injunction is that voter ID has been struck down as unconstitutional by the state courts, in a case which is not yet final.

"Entry Discussing Second Motion for Preliminary Injunction
The plaintiff’s second motion for preliminary injunction (dkt 60), which would block
enforcement of the Indiana Voter I.D. Law, Senate Enrolled Act No. 483, codified at various
sections of the Indiana Code, at the elections to be held on November 3, 2009, is denied.
The reason for this ruling is that, as discussed in the court’s ruling on the plaintiff’s previous
motion for temporary injunctive relief, the plaintiff has not shown a reasonable likelihood
of success on the merits of his currently pending claims. The same conclusion dictates the
denial of the second motion for preliminary injunction.
IT IS SO ORDERED.
Date:
Distribution:"

2009-10-21T15:29:00.000-07:00

Welcome electionlawblog.org readers. Stewart v Marion is a case, removed to federal court and currently before Judge McKinney, which claims that voter ID is unconstitutional. I am pro se and need counsel, meanwhile I'd doing the best I can.
I'm an Indiana voter who hasn't been allowed to vote since 2005. My recent filings in this case include
response on how LWV v Rokita affects my case
motion for temporary injunction and TRO
motion for certification to the Indiana Supreme Court on questions of Indiana law
motion to amend the complaint to add an article I section 23 claim
opposition to state's motion to stay
opposition to county's motion to stay.

2009-10-21T14:11:00.000-07:00

Both sides in the League of Women Voters v Rokita case have appealed.
The Indiana Law Blog has the filings.

2009-10-21T11:38:00.001-07:00

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )
Defendants, )
)
STATE OF INDIANA, )
Intervenor. )

MOTION FOR LEAVE TO AMEND COMPLAINT
Comes now Plaintiff and for his motion to amend the complaint states as follows.
D1. I move to amend the complaint to add a new count under Article I section 23.
D2. In LWV v Rokita, the Indiana Court of Appeals held that the voter ID Act violates Article I section 23, the equal privileges clause.
D3. New Count:
This count incorporates by reference the fact paragraphs as stated in the First Amended Complaint and in the pending Supplement to the Complaint.
D4. When I was prevented from voting in the 2006 and 2008 primary and general elections, and I am faced with not being allowed to vote in the 2009 special election and all future elections, my right to vote is treated unequally in violation of section 23.
D5. The election statutes create different classes of potential voters, which are treated differently. One class is those who are over 65, and are allowed to vote either in person or by absentee ballot.
D6. Because I am not 65, and am not handicapped and am not ordinarily out of state on election day, I am not eligible to vote absentee, and am subjected to voter ID, and prevented from voting, abridging my fundamental right to vote.
D7. For those who cast their ballots in person, the election statutes create two classes of potential voters, those who are willing to waive their fundamental right to be free from unwarranted causeless search or seizure, and those who are not. Those who waive their search rights are permitted to vote, those who do not are denied the vote. Both classes are denied a fundamental right, but the classes are not treated equally. I belong to the second class.
D8. I experience distress each time I am denied the right to vote. I experience distress each time I am subjected to search without cause, or kept from going somewhere I want to go because it would involve being subjected to an unwarranted search.
D9. Voting is especially important to me. I have worked in political campaigns since I was 10, have held appointed office in four states, have run for office four times, and go out of my way to vote. I have won election cases on two previous occasions. I wrote my Master of Laws thesis on voting rights under state constitutions. Elections are as important to me as basketball is to the average Indiana resident. When I am kept from voting, I am harmed.
Relief sought: I seek to have Indiana’s voter ID act and practices temporarily and permanently enjoined, to get declaratory relief that the act as practiced violates section 23, to be awarded damages as determined by a jury, to be able to have my votes cast and counted, to be awarded costs and fees, and for all other relief as is in the interests of justice.
Respectfully submitted,
/s/Robbin Stewart

2009-10-21T11:33:00.000-07:00

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )
Defendants, )
)
STATE OF INDIANA, )
Intervenor. )

RENEWED MOTION FOR CERTIFICATION TO INDIANA SUPREME COURT
Comes now plaintiff and for his motion to certify questions of state law to the Indiana Supreme Court states as follows.
I move to certify the state constitutional claims in this case to the Indiana Supreme Court, or order to give that court an opportunity to consolidate this case with League of Women Voters v Rokita. My case presents a concrete example of how voting rights are abridged by voter ID, and offers alternative texts on which to anchor a decision.
The text of the certified question could be, “Does the Voter ID act violate Article II sections 1 or 2, or Article I sections 1, 9, 11, 12, 23, or 31.”
This is a case which was filed in state court in order to obtain an authoritative ruling on matter of state constitutional law. Under Indiana law there is no analog of 42 USC 1983 and 1985, so federal claims were included as well, as a basis for seeking legal fees in order to try to attract counsel.
Indiana state courts have jurisdiction to authoritatively construe matters of state law. Opinions of federal court are at best advisory. In Crawford, the district and circuit courts erroneously applied a deferential standard as to both federal and state questions. The Crawford courts erred in finding that voter ID does not violate the Indiana constitution. In Crawford I submitted an amicus brief at the en banc stage, urging certification of state law questions and criticizing the erroneous standard of review. The motion to file the amicus was denied by Judge Posner. The 7th circuit is unique in disfavoring amici. I then filed an amicus brief before the United States Supreme Court.
This court erred, in its ruling denying a preliminary injunction, by applying a deferential standard, and finding no likelihood of success under the Indiana Constitution (and also erred in finding that I wouldn’t be irreparably harmed when my vote was denied.)
In my one previous case before this court, Majors v Abell, this court erred in not submitting the question it had certified to the Indiana Supreme Court, and then, after abusing its discretion by not ruling for several years, erred again in dismissing the case in a ruling that misinterpreted Indiana law, made three errors in finding the case moot, and erred in not declaring plaintiffs to be a prevailing party. The Seventh Circuit reversed the dismissal, and certified a question of state law to the Indiana Supreme Court, which not only reversed on the state law question, but also unexpectedly created a “less than 100 signs” exception to the statute which resulted in plaintiff Majors’ conduct being protected. The 7th circuit then erroneously dismissed the case based on misconstruing McConnell v FEC. See discussion of Majors in ACLU v Heller (9th cir.)
The point is that this court does not always know what the Indiana courts will do. This court apparently did not anticipate that the Indiana Court of Appeals would declare the voter ID act unconstitutional. I had mentioned this possibility in an earlier filing.
The Missouri Supreme Court, construing a free and open elections clause modeled after Indiana’s, found voter ID unconstitutional. Several Georgia courts have found voter ID to be a poll tax and an equal protection problem and unconstitutional under the state constitution. The results so far have been repeal and re-enactment of the statute, reversal on other procedural grounds in the state supreme court, expenditure of about a million dollars in compliance costs, and litigation which is still continuing. The Michigan Supreme Court permitted voter ID, on the grounds that Michigan’s universal absentee balloting is a minimally burdensome alternative available to every voter. (Indiana does not have this. A bill to offer universal absentee balloting did not pass last session.) The experience of other states suggests that voter ID raises serious issues going to the merits, which vary based on the legislation and on the state constitutions, and are best resolved in and by state courts. Certification would be appropriate here.
Respectfully submitted,
/s/Robbin Stewart
_______________
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com ....

2009-10-21T11:32:00.002-07:00

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
MARION COUNTY, et al. )
Defendants, )
)
STATE OF INDIANA, )
Intervenor.
PLAINTIFF’S SECOND MOTION FOR TEMPORARY INJUNCTIVE RELIEF AND TRO
Comes now plaintiff and for his second motion for temporary injunction relief and temporary restraining order states as follows.
Recently Indiana’s voter ID practices have been found to be unconstitutional, in an Indiana Court of Appeals decision which is not yet final but for now is the best authority on the state constitutional claims which are at the heart of this suit. This ruling calls for a new look at whether temporary injunctive relief is appropriate in this case.
Ordinary legislation comes cloaked with a presumption of constitutionality, and is often reviewed under a deferential rational basis standard. See, e.g., Gov’t Suppliers Consolidating Serv., Inc. v. Bayh, 734 F. Supp. 853, 862. In the context of elections, however, this presumption is reversed, and election regulations are subjected to close and exacting scrutiny. See Buckley v Valeo, Williams v Rhodes, Anderson v Celebrezze, Norman v Reed, Harper v Virginia Board, Crawford v Marion County, Harman v. Forsennius.
The danger to be guarded against is that a faction of the legislature might pass legislation designed to insulate themselves from being replaced in free and equal elections. Such elections are preservative of all other rights. Yick Wo v Hopkins. In a system characterized by judicial review and separation of powers, the usual deference to legislative and regulatory judgments is inapplicable and is contrary to Supreme Court precedents. In Crawford, the Supreme Court overruled the district and circuit court’s application of a permissive Burdick v Takushi standard, and instead applied the four-factor Anderson v Celebrezze test. In other cases, including Williams v Rhodes, Norman v Reed, Wisconsin Right to Life v FEC, and Harper v Virginia Board, the court has applied strict scrutiny. In Harman v Forsennius, the court seems to be treating the 24th Amendment as an absolute bar, rather than allowing any state interests to override what the constitution prohibits. In Colleen Price v State, regulation of political speech is given strict scrutiny under Article I section 9, while non-political speech receives a laxer standard of scrutiny. Presumably elections are political speech under Price.
Here, it is unclear whether the appropriate standard is Anderson’s 4-factor test, or a stricter scrutiny. What we do know is that this court must not repeat the error in Crawford made by the district and circuit courts, and overruled by the Supreme Court, of overly deferring to the other branches and shirking the court’s role as a guardian of the rights of voters and citizens.
In resolving constitutional challenges to a state's election laws, a court must
1) first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.
2) It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule.
3) In passing judgment, the Court must not only determine the legitimacy and strength of each of these interests,
4) it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the court in a position to decide whether the challenged provision is unconstitutional. Anderson v Celebrezze, 103 S Ct. 1564, 1568-1570.
Here, the County was asked in an interrogatory to state all of the interests it was asserting in support of voter ID. Its only response was “an interest in enforcing the law.” The statutes to which it referred are now void, and there is nothing left on the County’s side of the balancing equation. Under the Anderson test, the court may not make up or presume state interests – only those actually claimed by the state are admissible in balancing. Granted, the State of Indiana, intervenor here, was not served with this interrogatory. At about the same time the court allowed the state to intervene, it prematurely cut off discovery, so these questions remain unasked and unanswered.
In assessing whether a preliminary injunction is warranted, the Court considers
whether the movant has demonstrated that:
(1) that movant has a reasonable likelihood of success on the merits;
(2) the movant has no adequate remedy at law;
(3) the movant will suffer irreparable harm if preliminary relief is denied;
(4) the irreparable harm the movant will suffer without injunctive relief is greater
than the harm the opposing party will suffer if the preliminary relief is granted; and
(5) the preliminary injunction will not harm the public interest.
Of these, likelihood of success is the most important.
Here, where the statute has been determined by a court of competent jurisdiction to be unconstitutional and void, plaintiff has a reasonable likelihood of success on the merits.
Defendants’ best hope is that the Indiana Supreme Court will accept transfer, overrule the court of appeals on the section 23 claim, and not find any other basis to invalidate the statutes.
Conceivably each of these things could happen. This possible outcome, for now, is just speculation. At least once before, the Indiana Supreme Court has declined to hear a voter ID case, in Palmer et al. v Marion in 2006. A movant is not required to demonstrate certainty; a reasonable likelihood is enough.
Movant has no adequate remedy at law. I can be compensated financially for the harm to me both by not letting me vote and by not conducting a free and open election. The county denies that my injury, if any, is compensable, but the county is wrong under Monell. But this is a case that affects every citizen, by damaging the integrity of the elections process. Voter ID rules have already cost over 1000 people their votes in the 2008 election cycle, hundreds in the 2006 election cycle, have forced others to try to cope with the dreaded BMV, and have discouraged some people from even trying to vote, while others like me were turned away when trying to vote. Hundreds or thousands more will be affected as long as this unconstitutional program continues. No amount of money paid to plaintiff would fix that. There is no adequate remedy at law.
I have been and am suffering irreparable harm by being prevented from voting. My votes from 2006 have yet to be counted. My votes from 2008 have yet to be counted. I am acutely aware of my status as a non-person, not allowed to vote, taxed but not represented. Elrod v Burns holds that this denial of my First Amendment rights constitutes irreparable harm authorizing injunctive relief. The 1000 voters whose votes have yet to be counted are experiencing continuing irreparable harm. The citizens who are living under government which was not the result of a free and equal election are experiencing irreparable harm. Most cases involving the federal courts are disputes between 2 or more people, and are often just about money. This case, in contrast, is about the public interest. Injunctive relief is the proper method to partially redress the harms.
The next election is November 3. It is an election about some referendum questions, and is not a candidate election. I want to vote at it, but am scared that I will again be ejected from the polls without being allowed to vote. I wish to vote against the bonds for the Health and Hospital corporation. I feel very strongly about this. H&H tore down my house at 201 Eastern Avenue without proper notice, tore down my garage in the 100 block of Tacoma Avenue without proper notice, has tried to have me jailed, has tried to have me found in contempt of court, and in other ways has made my life miserable, and has damaged me financially and emotionally. The least I can do in return is to go cast a vote against it.
The court previously, in denying injunctive relief, stated that I would not be irreparably harmed. The court’s ruling was ambiguous. It wasn’t clear whether it misunderstood the facts, or the law. I knew that I believed I had a right, under the federal and state constitutions, to cast my vote without being subjected to a search or being required to show proof of having paid a tax. I knew that if the injunction didn’t issue, I would be denied the vote. It didn’t. I was denied the vote. The court’s ruling was ambiguous about whether it thought that I would be allowed to vote, or whether I would be denied the vote, but that that wouldn’t matter and wouldn’t be a deprivation of any rights. The exact manner in which I wasn’t allowed to vote was unexpected. Instead of being a given a provisional ballot which then wouldn’t be counted, I was simply turned away from the polling place and refused the opportunity to cast any ballot at all.
If the Indiana Court of Appeals was right that the voter ID rules are and were unconstitutional, then even this court will be able to understand that I was irreparably harmed when I was refused the ballot for refusing to comply with the unconstitutional voter ID demands. If the voter ID rules are unconstitutional and void today, they were unconstitutional and void in 2005 when enacted and during 2006 and 2008. This harm continues today, and will continue until my provisional ballots are counted and the vote total adjusted and republished, and until the state and county stop threatening me with the continued denial of my vote, by publishing and distributing voter ID demands. E.g. http://www.in.gov/sos/elections/2401.htm, visited October 2, 2009.
It will not burden the county of state to stop enforcing an unconstitutional policy. I am severely burdened when I am not allowed to vote. The balance favors the movant.
No long string of citations is required to show that the there is no public interest in the enforcement of an unconstitutional statute. American Civil Liberties Union of Georgia v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997).
Here, there is a likelihood of success on the merits, there is irreparable harm, the balance of burdens favors the movant, and the public interest requires issuance of injunctive relief. Injunction should issue, from today until the Indiana Supreme Court rules. At that time, a status conference or further briefing could be held whether to make the injunction permanent, dissolve it, modify it, or other action as needed. At a minimum, the injunction should enjoin any further enforcement of voter ID, especially as the November 3rd election. Optimally, it should direct the County to open and count my as-yet uncounted provisional ballot, count all the 2008 ID-related provisional ballots, and allow me to finally cast a vote in the 2008 general election, and publish the new results. Whether to do so state-wide is within the discretion of the court.
The 2009 November election, and the preparation for it, are imminent if not already in progress. The court should immediately issue a TRO enjoining voter ID at that election, so that the defendants do not stall or delay in responding to this filing. I am available for a hearing on this on one day’s actual notice if the court finds it necessary. Respectfully submitted,
/s/Robbin Stewart
_______________
Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com

I hereby certify that on or by October _9____, 2009, a copy of the foregoing was sent via electronic filing, to the following....

2009-10-21T11:32:00.001-07:00

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )

PLAINTIFF’S RESPONSE TO ENTRY DIRECTING FURTHER PROCEEDINGS

Comes now plaintiff and for his response to the entry directing further proceedings states as follows. The Court has ordered:
Entry Directing Further Proceedings. The plaintiff shall report within ten days what effect, of any, the effect of the decision in League of Women Voters of Indiana v. Rokita, 2009 WL 2973120 (Ind. Ct. App. Sept. 17, 2009), [“LWV”] has on his claims in this case or how the case should now proceed from his perspective. IT IS SO ORDERED.
The court, appropriately, has asked me to explain how LWV,
http://www.state.in.us/judiciary/opinions/pdf/09170901par.pdf, affects this case.
I would like for the court to grant the pending motion to supplement the complaint, to allow a further amendment to add a section 23 claim, to grant a temporary injunction and TRO to prevent the voter ID program from being used next month’s election, to certify the state law questions in this case to the Indiana Supreme Court so that that court can consolidate the two cases if it chooses to do so, and to ask defendants if they have any interest in attending a settlement conference. Motions on these issues will follow shortly.
A. Currently pending is my motion to amend or supplement the complaint, to add the facts which resulted when the injunction was denied and I was prohibited from voting, and many voters’ votes weren’t counted. I seek to amend my complaint again, to add an Article I section 23 claim, in order to more directly invoke the authority of LWV.
B. I renew my motion for certification to the Indiana Supreme Court. Unless transfer is denied, which seems unlikely, the Court will be hearing LWV on an appeal by the state or cross-appeals. (I believe the LWV court erred in its analysis of Article II section II, and that the plaintiffs may cross-appeal on that point.) It would be appropriate to certify and then consolidate the two cases. This is desirable for at least two reasons, the facts and the law. LWV, like Crawford, is a facial challenge without a lot of facts. My case is an as-applied as well as facial challenge, and involves actual elections at which I was actually denied the vote, and provides concrete illustration of how voter ID does and doesn’t work. The record in my case is thin, because the court ended discovery before it had hardly begun, denying me a full and fair opportunity to litigate the merits, but is still more fact-based than LWV.
My case raises an Article II section 1 claim, which would provide the Court an alternative text in which to examine equality and voter ID, in light of the tension between LWV and Collins v. Day in interpreting Article I section 23.
Of course, the Court would be free to decline to accept the certification.
C. Unlike LWV, I have sought injunctive relief, so that I would be able to cast a vote in the 2008 elections, and so that all of the votes would be counted. The election has now passed, but it would still be possible to allow me to vote, and to order the provisional votes to be counted, and the published vote counts to be corrected. In Marion County, there are enough provisional votes at issue that the secrecy of the ballot would not be affected. I would be satisfied with having this done in Marion County only, rather than state-wide. I leave that issue to the discretion of the court. Since the state has intervened as a party, statewide relief would be an appropriate remedy. But the smaller the county, the greater the chance that counting these votes now would impact the secrecy of the ballot. Perhaps this stage could wait until LWV becomes final. On the other hand, the sooner the better. The irreparable harm continues each day my vote remains uncast and the provisional votes remain uncounted. Of course, I have no objection to a financial settlement as an alternative to casting my vote and having the votes counted, even though this would not satisfy the public interest concerns.
D. Even if the court declines to revisit the 2008 election, it should issue a temporary injunction to prevent voter ID from being used in the near term, for example in the fall 2009 election and any special elections which come up, and prevent voter ID from being advertized, promoted, or in other ways used to threaten voters with disenfranchisement. An injunction should issue which is temporary, and expires once the Indiana Supreme Court rules on the merits. The Court’s previous ruling denying injunction was filled with errors. Now that, as a matter of Indiana law, the voter ID act is unconstitutional and is null and void, my likelihood of success on the merits – the most important of the four factors - is significantly stronger. There is no public interest or state interest in enforcing an unconstitutional statute. I am experiencing irreparable harm. At the moment, I am being treated as a second class citizen. Since 2005, I have not been allowed to vote. Felons have greater voting rights in Indiana than I do. It will not burden the county to conduct free and open elections. As the county said in its reply brief to the Supreme Court in Crawford, elections will be more secure and reliable without voter ID than with it. It is by no means certain that the LWV section 23 ruling will survive appeal. But an injunction can issue based on “serious concerns going to the merits”, and there is at least that much here. (It is interesting to note that every Republican judge, except Justice Souter, has found voter ID constitutional, while every Democratic judge, except the panel in Stewart v Marion County, has found voter ID unconstitutional. The Indiana Supreme Court has a 7-2 Democratic majority.)
E. Among other relief, I have sought damages. Since it has now been determined that voter ID as enacted is unconstitutional and void, it cannot have been a valid basis for denying me the right to vote and denying to every Indiana citizen the right to a free and equal election. My rights, including my First Amendment rights and my voting rights under the state constitution, were violated. This is distinguishable from Crawford, which assumed without deciding that the voter ID act was not void under the state constitution. I am seeking a jury trial on the amount of damages. Of course, if the defendants were willing to stipulate to a reasonable figure for such damages, and both sides could agree on a reasonable discount for whatever probability there is that both LWV will be overturned on appeal and I won’t succeed an any of my claims, then we could settle this case now for a dollar amount. However, I do not expect that either the county or the state will be willing to settle, and I expect that we will continue to litigate.
F. In League of Women Voters v Rokita, (Ind. Ct. App. Sept. 17, 2009), (LWV), Indiana’s voter ID scheme was found to violate the state constitution. LVW is not final, and will be appealed to the Indiana Supreme Court, where the outcome is uncertain. But for now, voter ID is unconstitutional as a matter of Indiana law, of which this court should take notice.
Stewart v Marion County is a case which was filed in state court raising state claims, with the intent of obtaining a ruling from the Indiana Supreme Court. LWV was a facial challenge by plaintiffs with deep pockets and counsel, who could afford the luxury of a bifurcated case. In contrast, my case is an as applied as well as facial challenge, which raises both federal and state claims, in part in order to invoke 42 USC 1983 and 1985, in order to try to attract counsel, which so far has been unsuccessful. Federal claims would have been waived if not plead. Defendants, as was their right, removed to federal court.
I believe that the court abused its discretion in first refusing to remand the state issues back to state court, and then denying certification. This is a reprise of an error made in my previous visit to this court, when the court improperly dismissed Majors v Abell in a series of errors that included a mis-construction of the statute.
The court may also have abused its discretion in denying injunctive relief. If, as LWV has ruled, the voter ID act is unconstitutional, and thus void, I was irreparably harmed when the court allowed defendants to deny my vote in the 2008 election, and to deny a free and equal election at which all the votes would be counted. Approximately 900 votes in Indiana have not been counted for reason of voter ID from the 2008 general election. It does not appear that these votes were dispositive in any election. In one race there was a tie, in an election with 8 provisional votes, but I am not aware that any of these were ID-related provisional ballots. In the 26th Representative district, the margin of victory was less than 25 votes. In the presidential race, the margin of victory was about 5000 votes. In the 2008 primary election in Grant County, one race turned on whether a provisional ID ballot was counted. In the past in Marion County, races have turned on as few as 5 votes. Horseman v Keller. That the votes were probably not outcome-determinative does not mean that no harm occurred. The denial of a lawful vote is a violation of the First Amendment and of the Indiana Constitution article II. Where there was irreparable harm under an unconstitutional statute, it was an error of law and abuse of discretion to deny the injunction.
On the other hand, LWV succeeded on their Article I section 23 claim, while my complaint, as filed, contained no section 23 claim. Both my case and LWV raise equality of voting arguments, but mine are under Article II section 1, the right to free and equal elections. Whether Indiana’s voter ID is unconstitutional under the free and equal elections clause has yet to be ruled on by an Indiana court. LWV did not raise any section 1 claim. The LWV court found that voter ID unconstitutionally creates unequal elections, but this is not a ruling on section 1, just as the Crawford opinions are not a ruling on my 24th Amendment claim.
Courts, especially Article III federal courts, rule only on the issues before them. It is conceivable that the injunction was properly denied, if every one of my then claims fails. But now the landscape has changed, because the voter ID act is, at least for now, null and void, and there is no basis for the state or county to be able to claim any right to enforce it against me or others. LVW sought only declaratory prospective relief. In contrast, I sought injunctive and declaratory relief and damages.
G. Other authorities: One of the claims in the case is that voter ID violates the privileges and immunities clause of the 14th Amendment. There is some authority for the proposition that voting in a federal election is a privilege or immunity of federal citizenship. It is worth noting that in McDonald v City of Chicago, the Supreme Court has accepted cert. on the privileges and immunities claim. The ruling, when it comes, may affect the instant case.
Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
Several recent articles are of note.
David Schultz 2009, “Wealth v. Democracy: The Unfulfilled Promise of the Twenty-Fourth Amendment”, http://works.bepress.com/david_schultz/,
Allison Hayward. 2008. "What Is an Unconstitutional "Other Tax" on Voting? Construing the Twenty-Fourth Amendment", http://works.bepress.com/allison_hayward/6 .
Michael Pitts, Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465529 .
To summarize, the court should do the following:
It should rule to grant my currently pending motion to amend or supplement the complaint, and allow a further amendment to add a section 23 claim.
It should certify the state constitutional questions to the Indiana Supreme Court, to provide the Indiana Supreme Court the opportunity to consolidate the two cases, so that it can adjudicate whether voter ID violates Art. 1 section 23 or Art. II sections 1 or 2.
It should temporarily enjoin the voter ID act, including any advertisement or written threats of enforcement.
It should direct the county or the county and the state, to allow me to cast a ballot, to count the as-yet uncounted provisional ballots from 2008, to publish the new vote totals, but not to re-open the outcome of the 2008 elections.
It might want to schedule a settlement conference, if there is any willingness of the defendants to participate.
The state should be given a reasonable time to respond to these filings, except as to a TRO, which should enter forthwith.
Respectfully submitted,
/s/Robbin Stewart
_______________
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com

I hereby certify that on or by October ______, 2009, a copy of the foregoing was sent via electronic filing, to the following.
David A. Arthur
INDIANA OFFICE OF THE ATTORNEY GENERAL
David.Arthur@atg.in.gov
Eric James Beaver
INDIANA OFFICE OF THE ATTORNEY GENERAL
eric.beaver@atg.in.gov
Jonathan Lamont Mayes
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
jmayes@indygov.org
Richard G. McDermott
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL

2009-10-21T11:20:00.000-07:00

Here's the opposition to a stay filed three days ago.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)
)
MARION COUNTY, et al. )

OPPOSITION TO MOTION TO STAY
Justice delayed can be justice denied. Here the state seeks to subvert justice by urging the court to delay action on the pending motions until such time as the motions would be moot and ineffective. The state cites no cases, points to no rule requiring a stay, and makes no persuasive policy arguments . Perhaps the state is simply hoping to appeal to an anti-plaintiff bias by the court.
Plaintiff has several pending motions: a motion for injunction, to preserve the integrity of the upcoming November election and avoid additional further irreparable harm to plaintiff and the public; a motion to certify; and a motion to amend the complaint.
A stay of the motion for injunction, past the time of the election, would effectively deny the injunction. If this court is going to deny the injunction, it should do so on the merits.
Similarly, the state asks the court to delay acting on the motion to certify, until the Indiana court has already ruled on the issues the certification is relevant to. The point of the renewed motion to certify is to provide the Indiana Supreme Court with an opportunity to consolidate the two voter ID cases. In Purcell v Gonzalez and in Crawford v Marion County/Democratic Party v Rokita, the United States Supreme Court discussed problems with pre-enforcement challenges, and stated that cases are more ripe for decision when there are actual facts of how the statutes work out in practice. My case is fact-laden, in ways that could be helpful to the Indiana Supreme Court, facts that were not before the Crawford Court.
These include, but are not limited to, that in 2006 my provisional ballot was not counted, although I was known to the poll worker. It includes that when my wallet was stolen, I couldn’t get a birth certificate because I didn’t have a drivers license, and couldn’t get a driver’s license without a birth certificate, so I drove 1000 miles to find a loophole, but was still turned away at the BMV before eventually getting my license back. It includes that in 2008, after this court denied injunctive relief, I was turned away at the polls without even being allowed to cast a provisional ballot. It includes that I have a strong personal desire to vote in the upcoming election, but am at risk of again being disenfranchised. It includes that in 2008 one election turned on whether or not a single provisional vote was counted. It includes that in the 2008 election over 1000 votes were not counted for reason of voter ID, but zero fraudulent in-person votes were detected. In contrast, the League of Women Voters case is a pre-enforcement facial challenge without individual disenfranchised plaintiffs.
In addition, my case presents important issues of law which could be helpful to the Indiana Supreme Court if the case is certified and consolidated. The LVW case, at the appellate level, was won on a Section 23 claim. While LWV is entirely compatible with Collins v Day, the Indiana Court’s leading precedent on Section 23, there is some tension between the two decisions. My case offers the court several alternative bases on which it could rest a decision. These include Article II section 1, the free and equal elections clauses, and Article I section 9. The standard of review under Section 23 is deferential under Collins v Day, although we do not yet know if deference applies in cases where fundamental voting rights are at issue (see Caroline Products note 4.) Article I section 9, on the other hand, has a standard more like strict scrutiny, in cases involving political speech, under Price v State, the landmark Section 9 case. Price has been narrowed but never overruled.
Rule 1 of the federal rules of civil procedure urges “just, speedy, and inexpensive determination of every action and proceeding.” Providing the Indiana Court with the opportunity to consolidate the two cases is in harmony with the rule. It would be possible for this court to delay certification in this case until after LWV. That would not only needlessly delay, but would double the workload of the Indiana Court, if they accepted certification. LWV is ably represented by William Groth, who also represented plaintiffs in Democratic Party v Rokita. In contrast, I’m a pro se litigant just trying to vote, and have limited resources. If the case is certified and the cases are consolidated, I could probably participate via brief and leave the argument to Groth, unless the Court prefers otherwise.
The Indiana Court is under no obligation either to take the case, if it is certified, or to consolidate the two cases, if it does accept certification. But interests of judicial economy and comity and justice weigh in favor of offering it the opportunity to do so. It would be a mistake to stay a ruling on certification until after the Court rules in LWV. Perhaps this court will deny certification, bumping that decision up to the Seventh Circuit, as happened in Majors. But if it does so, it should do so on the merits, not on the basis of the state’s current motion.
The state also urges that this court delay action on the motion to amend the complaint to add a Section 23 claim, until after LWV. Doing so will not do any particular harm, but also will confer no benefit. That a section 23 claim is now pending in this case is relevant to the motion for injunction. If the Indiana Court accepts LWV and reverses on Section 23, then the new count will ultimately fail; conversely if LWV is upheld or allowed to become final, it would be abuse of discretion not to allow the new count which would then prevail.
It is not essential to plaintiff’s case to include a Section 23 claim, now that the current state of Indiana law is the voter ID is unconstitutional under Section 23. If the statutes on which the state (and county) were relying is now void and gone, plaintiff’s First Amendment and other interests are sufficient to override the state’s interest in enforcing an unauthorized policy. But it makes sense to include the claim so that the cases are more congruent.
The state, in its Paragraph 6, says that my request for injunction is based on state law. While this is true, it is misleadingly incomplete. The injunctive request is based on both federal and state law. In its prior rejection of an injunction, the court accorded a strong presumption of validity to the statutes which were the basis for the state and county’s policy. Now that there has been an authoritative, if not yet final, finding by the state court that the statutes are unconstitutional as a matter of state law, the balancing test under Anderson and Crawford comes out differently. Similarly, the likelihood of success and the four factors for injunctive relief need to be re-evaluated. The LWV would probably have been granted an injunction if they had asked for it, but they did not, just as the Crawford and Democratic Party plaintiffs did not. This case began seeking an injunction while Crawford had not yet been decided. The procedural posture here is similar.
In summary, the state’s motion is an unwarranted attempt at an end run around the merits of the motions. Perhaps it thinks that its prospects on the merits no longer look as good as before. The state cites no controlling or persuasive authority, but seems to appeal to the possible bias of the court. The motion is contrary to the spirit and letter of rule one; it argues that the court should be slow, unjust, and inefficient. The motion should be denied.
Respectfully submitted,
/s/ Robbin Stewart.
_______________
P.O.Box 29164
Cumberland IN 46229-0164
317.375.0931
gtbear@gmail.com

I hereby certify that on or by October 19, 2009, a copy of the foregoing was sent via electronic filing, to the following.
David A. Arthur
INDIANA OFFICE OF THE ATTORNEY GENERAL
David.Arthur@atg.in.gov
Eric James Beaver
INDIANA OFFICE OF THE ATTORNEY GENERAL
eric.beaver@atg.in.gov
Jonathan Lamont Mayes
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
jmayes@indygov.org
Richard G. McDermott
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
/s/ Robbin Stewart

2009-10-21T11:17:00.000-07:00

Here is yesterday's filing. I'm going to be posting some of the documents I've filed in the past couple of weeks, which are about how my case s affected by the court of appeals finding that voter ID is unconstitutional.
I've asked for an injunction for November's election, asked that court certify the state constitutional questions,and sought to amend the complaint to add a section 23 claim.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION Robbin Stewart, ) Plaintiff, ) ) vs. ) 1:08-cv-586-LJM-TAB ) ) MARION COUNTY, et al. )
STATEMENT IN RESPONSE TO COUNTY’S MOTION TO JOIN MOTION TO STAY
The County has filed a motion to join the State‟s pending motion to stay. While the county‟s motion to join may be granted, or denied as moot, the motion to stay should be denied, for the reasons addressed in yesterday‟s filing. The County‟s motion adds nothing to that discussion, and cites no case, rule, or policy argument in favor of a stay at this time.
The County‟s motion does contain cases, rules, and policy arguments, but they are not directed to whether a stay should issue. Instead, they would have been relevant in a memo in opposition to granting an injunction. Perhaps this is the County‟s statement concerning the injunction; it isn‟t clear. I briefly discuss below the County‟s arguments, but it is important to remember that they are irrelevant to whether a stay should issue, and instead are only relevant to the merits of the pending motion for injunction.
The County makes two arguments. The first is based on a misconstruction of the word “reliance” in the Indiana rules. The second is based on a false statement of the Eire doctrine. The County says, “under the Erie Doctrine, this Court is only bound by opinions from Indiana‟s
2
highest court.” That this is a false statement of law is supported by the cases the County cites.
LWV is not yet final, and the lack of finality is relevant, but not dispositive, to the court‟s assessment of some likelihood of success on the merits, or a finding that the complaint raises serious questions going to the merits. Rule 65 directs the actions of the parties in a case when that case is not yet final. It does not say anything about an injunction in a separate case in a different court, and in no way constrains the ability and jurisdiction of this court to enjoin the use of voter ID in the election that is now less than a month away.
In, Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992), a federal court relied on a state appellate court decision, following the Eire doctrine.
Farrell, then, is no anomaly in Wisconsin law. It applies well-settled principles in a new context. AVCO's claim that it need not be followed because it is not a decision from Wisconsin's Supreme Court is meritless. In this diversity action, we are constrained to determine the issues presented herein as we believe the Wisconsin courts would under the circumstances. In Affiliated FM Insurance Co. v. Trane Co., 831 F.2d 153, 155 (7th Cir.1987), we stated, "Under the principles of Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court must apply the state law as declared by the highest state court or otherwise by the intermediate appellate court of the state." See also Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir.1987). We see no evidence to suggest that the Supreme Court of Wisconsin disapproves of Farrell 's logic.
The County is making the same argument that the 7th Circuit found meritless.
The County states, “It is only bound by opinions of Indiana‟s intermediate appellate court when „there is no good reason to believe that the state‟s highest court would reject those decisions.‟ Phelps v. Sherwood Medical Industries, 836 F.2d 296, 306 (7th Cir. 1987).” But this is not the rule, and is not what Phelps states or holds. Inserting the word “only” makes a claim that Phelps does not support. Instead, the burden is on Defendants to show that the state supreme court will reject the decisions. The LVW decision is in harmony with a long line of Indiana case protecting the right to vote, as cited in the LWV appellate brief. It is also consistent with Collins
3
v Day, which limits the use of Article I section 23, but does not remove it from the Indiana Constitution. Because the classes at issue in LWV involved fundamental voting rights, and the voter ID program unduly burdened those rights unequally the court found that the usual presumption in favor of legislative enactments was overcome. LWV is the best available evidence of what the Indiana Supreme Court will do on appeal if transfer is granted. Because LWV is not final, it would be inappropriate, for example, to seek a declaratory judgment based on LWV. However, it is completely appropriate in seeking a temporary injunction. Injunction does not require certainty or finality – it is a temporary measure to limit harm while the case proceeds. Here there is no evidence that the Indiana Supreme Court disapproves of LWV. We can speculate. It is an interesting case. But there is as yet no evidence.
What Phelps actual held was, “[w]hile the Indiana Supreme Court has not specifically passed on all the issues discussed in this opinion, there is no good reason to believe that the state's highest court would reject those decisions by the intermediate court, and consequently this Court may treat the Indiana Court of Appeals' decisions cited in this opinion as authoritatively stating the law of Indiana.”
Here, this court may treat the Indiana Court of Appeals‟ decision as authoritatively stating the law in Indiana, at least tentatively for the purposes of issuing a temporary injunction to preserve the status quo against Defendants plans to conduct an illegal election and again violate Plaintiff‟s fundamental voting rights. Frankly, I am surprised that Elizabeth White has allowed her name to be associated with this filing, which misstates the law in an effort to deceive the court, on a topic not even related to what the motion is supposed to be about. Whether or not the Court allows the County to join the motion to stay, the stay should be denied, and the court should rule on the pending motions on their merits. Time is of the essence. The election approaches. It will not
4
burden the County if the TRO and injunction is granted – they need only refrain from doing something illegal under Indiana law. However, the longer it takes the court to reach a decision, the more that imposes a burden on the County, of coordinating the election officials. A last minute decision would be somewhat disruptive. The Court can accommodate that concern by issuing the TRO now, so that election staff will be alerted to the issue and be able to make late changes depending on how the court rules on the injunction.
Respectfully submitted,
/s/ Robbin Stewart.
_______________ P.O.Box 29164 Cumberland IN 46229-0164 317.375.0931 gtbear@gmail.com I hereby certify that on or by October 20, 2009, a copy of the foregoing was sent via electronic filing, to the following.
David A. Arthur INDIANA OFFICE OF THE ATTORNEY GENERAL David.Arthur@atg.in.gov Eric James Beaver INDIANA OFFICE OF THE ATTORNEY GENERAL eric.beaver@atg.in.gov Jonathan Lamont Mayes CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jmayes@indygov.org Richard G. McDermott CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
/s/ Robbin Stewart

2009-09-30T19:03:00.000-07:00

Here's an article on the 24th amendment.
http://works.bepress.com/cgi/viewcontent.cgi?article=1011&context=david_schultz

2009-09-30T00:35:00.002-07:00

Entry Directing Further Proceedings
The plaintiff shall report within ten days what effect, of any, the effect of the
decision in League of Women Voters of Indiana v. Rokita, 2009 WL 2973120 (Ind. Ct. App.
Sept. 17, 2009), has on his claims in this case or how the case should now proceed from
his perspective.
IT IS SO ORDERED.

Here's a first draft of my thoughts in response. This is not a filed document or a finished document.

The court, appropriately, has asked me to explain how LWV affects this case.
A. Currently pending is my motion to amend or supplement the complaint, to add the facts which resulted when the injunction was denied and I was prohibited from voting, and many voters’ votes weren’t counted. I seek to amend my complaint again, to add an Article I section 23 claim, in order to more directly invoke the authority of LWV.
B. I renew my motion for certification to the Indiana Supreme Court. Unless transfer is denied, which seems unlikely, the Court will be hearing LWV on an appeal by the state or cross-appeals. (I believe the LWV court erred in its analysis of Article II section II, and the plaintiffs may cross-appeal on that point.) It would be appropriate to certify and then consolidate the two cases. This is desirable for at least two reasons, the facts and the law. LWV, like Crawford, is a facial challenge without a lot of facts. My case is an as-applied as well as facial challenge, and involves actual elections at which I was actually denied the vote, and provides concrete illustration of how voter ID does and doesn’t work. The record in my case is thin, because the court ended discovery before it had hardly begun, denying me a full and fair opportunity to litigate the merits, but is still more fact-based than LWV.
My case raises an Article II section 1 claim, which would provide the Court an alternative text in which to examine equality and voter ID, in light of the tension between LWV and Collins v. Day in interpreting Article I section 23.
Of course, the Court would be free to decline to accept the certification.
C. Unlike LWV, I have sought injunctive relief, so that I would be able to cast a vote in the 2008 elections, and so that all of the votes would be counted. The election has now passed, but it would still be possible to allow me to vote, and to order the provisional votes to be counted, and the published vote counts to be corrected. In Marion County, there are enough provisional votes at issue that the secrecy of the ballot would not be affected. I would be satisfied with having this done in Marion County only, rather than state-wide. I leave that issue to the discretion of the court. Since the state has intervened as a party, statewide relief would be an appropriate remedy. But the smaller the county, the greater the chance that counting these votes now would impact the secrecy of the ballot. Perhaps this stage could wait until LWV becomes final. On the other hand, the sooner the better. The irreparable harm continues each day my vote remains uncast and the provisional votes remain uncounted. Of course, I have no objection to a financial settlement as an alternative to casting my vote and having the votes counted, even though this would be contrary to the public interest.
D. Even if the court declines to revisit the 2008 election, it should issue a temporary injunction to prevent voter ID from being used in the near term, for example in any special elections which come up, and prevent voter ID from being advertized, promoted, or in other ways used to threaten voters with disenfranchisement. An injunction should issue which is temporary, and expires once the Indiana Supreme Court rules on the merits. The Court’s previous ruling denying injunction was filled with errors. Now that, as a matter of Indiana law, the voter ID act is unconstitutional and is null and void, my likelihood of success on the merits – the most important of the four factors - is significantly stronger. There is no public interest or state interest in enforcing an unconstitutional statute. I am experiencing irreparable harm. At the moment, I am being treated as a second class citizen. Since 2005, I have not been allowed to vote. Felons have greater voting rights in Indiana than I do. It will not burden the county to conduct free and open elections. As the county said in its brief to the Supreme Court in Crawford, elections will be more secure and reliable without voter ID than with it. It is by no means certain that LWV section 23 ruling will survive appeal. But an injunction can issue based on “serious concerns going to the merits”, and there is at least that much here. (It is interesting to note that every Republican judge, except Justice Souter, has found voter ID constitutional, while every Democratic judge, except the panel in Stewart v Marion County, has found voter ID unconstitutional. The Indiana Supreme Court has a Democratic majority.)

E. Among other relief, I have sought damages. Since it has now been determined that voter ID as enacted is unconstitutional and void, it cannot have been a valid basis for denying me the right to vote and denying to every Indiana citizen the right to a free and equal election. My rights, including my First Amendment rights and my voting rights under the state constitution, were violated. I am seeking a jury trial on the amount of damages. Of course, if the defendants were willing to stipulate to a reasonable figure for such damages, and both sides could agree on a reasonable discount for whatever probability there is that both LWV will be overturned on appeal and I won’t succeed an any of my claims, then we could settle this case now for a dollar amount. However, I do not expect that either the county or the state will be willing to settle, and I expect that we will continue to litigate.

F. Appointment of counsel: I am a pro se plaintiff. I am indigent. Not in the sense of being absolutely penniless, but in the sense that I do not have enough liquid capital to afford to hire competent counsel for this case. I do not even have funds to buy a copy of defendants’ deposition of me. Every dollar I have for this case is earmarked for filing fees and printing costs, which I estimate will run between $1000-2000 before the case is over. I had initially expected, given the public importance of the case, that I would have little trouble finding pro bono counsel, but I haven’t been able to. Because this case is of significant public importance, and I recognize my own limitations in being able to adequately pursue it, I ask the court to consider appointing counsel. The strongest counter-argument to this request is that I am a former member of the bar, and even once appeared in this court as counsel. But I felt that I should ask.

G. In League of Women Voters v Rokita, (Ind. Ct. App. Sept. 17, 2009), (LWV), Indiana’s voter ID scheme was found to violate the state constitution.
LVW is not final, and will be appealed to the Indiana Supreme Court, where the outcome is uncertain. But for now, voter ID is unconstitutional as a matter of Indiana law, of which this court should take notice.
Stewart v Marion is a case which was filed in state court raising state claims, with the intent of obtaining a ruling from the Indiana Supreme Court. LWV was a facial challenge by plaintiffs with deep pockets and counsel, who could afford the luxury of a bifurcated case. In contrast, my case is an as applied as well as facial challenge, which raises both federal and state claims, in part in order to invoke 42 USC 1983 and 1985, in order to try to attract counsel, which so far has been unsuccessful. Federal claims would have been waived if not plead. Defendants, as was their right, removed to federal court.
I believe that the court abused its discretion in first refusing to remand the state issues back to state court, and then denying certification. This is a reprise of an error made in my previous visit to this court, when the court improperly dismissed Majors v Abell in a series of errors that included a mis-construction of the statute.

The court may also have abused its discretion in denying injunctive relief. If, as LWV has ruled, the voter ID act is unconstitutional, and thus void, I was irreparably harmed when the court allowed defendants to deny my vote in the 2008 election, and to deny a free and equal election at which all the votes would be counted. Approximately 1000 votes in Indiana have not been counted for reason of voter ID from the 2008 election. It does not appear that these votes were dispositive in any election. In one race in there was a tie, in an election with 8 provisional votes, but I am not aware that any of these were ID-related provisional ballots. In the 26th Representative district, the margin of victory was less than 25 votes. In the presidential race, the margin of victory was about 5000 votes. In the 2008 primary election, one race turned on whether a provisional ID ballot was counted. In the past in Marion County, races have turned on as few as 5 votes. Horseman v Keller. That the votes were probably not outcome-determinative does not mean that no harm occurred. The denial of a lawful vote is a violation of the First Amendment and of the Indiana Constitution article II. Where there was irreparable harm under an unconstitutional statute, it was an error of law and abuse of discretion to deny the injunction.
On the other hand, LWV succeeded on their Article I section 23 claim, while my complaint, as filed, contained no section 23 claim. Both my case and LWV raise equality of voting arguments, but mine are under Article II section 1, the right to free and equal elections. Whether Indiana’s voter ID is unconstitutional under the free and equal elections clause has yet to be ruled on by an Indiana court. LWV did not raise any section 1 claim. The LWV court found that voter ID unconstitutionally creates unequal elections, but this is not a ruling on section 1, just as the Crawford opinions are not a ruling on my 24th Amendment claim.
Courts, especially federal courts, rule only on the issues before them. It is conceivable that the injunction was properly denied, if every one of my then claims fails. But now the landscape has changed, because the voter ID act is now, at least for now, null and void, and there is no basis for the state or county to be able to claim any right to enforce it against me or others. LVW sought only declaratory prospective relief. In contrast, I sought injunctive and declaratory relief and damages.

To summarize, the court should do the following:
It should rule to grant my currently pending motion to amend or supplement the complaint, and allow a further amendment to add a section 23 claim.
It should certify the state constitutional questions to the Indiana Supreme Court, to provide the Indiana Supreme Court the opportunity to consolidate the two cases, so that it can adjudicate whether voter ID violates Art. 1 section 23 or Art. II sections 1 or 2.
It should temporarily enjoin the voter ID act, including any advertisement or written threats of enforcement.
It should direct the county or the county and the state, to allow me to cast a ballot, to count the as-yet uncounted provisional ballots from 2008, to publish the new vote totals, but not to re-open the outcome of the 2008 elections.
It might want to schedule a settlement conference, if there is any willingness of the defendants to participate.
The state should be given a reasonable time to respond to these filings.

Respectfully submitted,
Robbin Stewart

@ Certifications.

2009-09-30T00:35:00.001-07:00

2009-09-18T22:20:00.000-07:00

In a different case than mine, the Indiana Court of Appeals has found voter ID unconstitutional under article I section 23 of the Indiana Constitution. This will now be headed to the Indiana Supreme Court.

2009-09-18T22:19:00.000-07:00

The 7th circuit denied my motion to recall the mandate.

2009-01-13T13:45:00.000-08:00

The interlocutory appeal at the 7th circuit was denied and later dismissed for failure to pay filing fee.

A deposition was held monday 1/12/2009.

I'm currently working on the case management plan.

2008-11-15T20:02:00.000-08:00

I should probably put up a link to the appeal of the denial of the injunction here.
Will do that sometime later.

2008-11-15T11:00:00.000-08:00

Here's the docketing statement at the 7th circuit.

Currently, the outcome of one close state rep race may turn on whether provisional ballots are counted.

UNITED STATES COURT OF APPEALS FOR SEVENTH CIRCUIT
Robbin Stewart ,
)
Plaintiff-Appellant,
)
) No. 08-3788
)
vs.
) Cause No. 1:08-cv-566-LJM-TAB
)
Marion County, Beth White,
)
) Prior cause no. 49D05-0804-CT-017641
Defendants-Appellees
)
)
State of Indiana,
)
Intervenor.
DOCKETING STATEMENT
Plaintiff, pro se, submits this optional Docketing Statement pursuant to the Circuit Court
Rules and the Federal Rules of Appellate Procedure:
1. Court-Location, Docket Number and Judge:
Plaintiff’s interlocutory appeal of the denial of a preliminary injunction concerns Cause
No. 1:08-cv-566-LJM-TAB in the Indianapolis Division of the Southern District of
Indiana, Judge Larry McKinney, in a case removed from the Marion County (Indiana)
courts, formerly 49D05-0804-CT-017641
2. Parties to this Appeal:
Plaintiff-Appellant is Robbin Stewart. Defendant-Apellees are (1) Elizabeth (Beth)
White, who is the Clerk and chief election official of Marion County and (2) Marion
County. The State of Indiana has intervened.
3. Corporate Registration Disclosure: Plaintiff is a natural person and not a
corporation. No corporations are involved.
4. Brief Description of the underlying factual basis giving rise to Petitioner filing the
present cause of action before this Court:
I am a person who wants to vote, but does not want to be subjected to an unwarranted
search of my driver’s license. I have been denied the vote at the spring and fall 2006
elections, being offered only provisional ballots which were then not counted, and was
deterred from trying to vote in 2007. In spring of 2008, after being denied a temporary
restraining order in state court, I was not allowed to cast a regular ballot but only a
provisional vote which has not been counted. I expected that at the fall election I would
again be offered only a provisional ballot which would not be counted. I sought a
Page 2
2
preliminary injunction, which was denied in October. I filed an emergency motion for an
interlocutory appeal of the denial of the injunction, seeking to have my own vote counted,
and seeking to have al other ID-related provisional ballots counted. There are probably
500-1000 of these statewide, estimating from the 399 ID provisional ballots in the
primary, of which 80% were not counted.
An important update is that at the polling place on Tuesday, I was not allowed to vote at
all, so I have no provisional ballot to count. The issues are still live because there are
other provisional votes to count, including that of Joell Palmer, who expects to join this
action as a co-plaintiff, and because my provisional vote at the primary remains
uncounted.
5. Result of Prior Court Proceedings:
A preliminary injunction was denied by the district court.
6. Issues to be presented on Appeal:
Whether the district court erred in applying deferential and cursory review instead of
applying either the Anderson v Celebreeze four-part test or strict scrutiny under Harmon
v Forsennius or Norman v Reed.
Whether dicta about poll taxes in the Seventh Circuit panel’s Crawford opinion is
determinative of the Twenty-Fourth Amendment claim.
Whether the court erred in requiring plaintiff to cite a case finding that probable cause is
required for voter ID, and finding the plaintiff’s cited Fourth Amendment and article 11
cases irrelevant, where this is a case of first impression so that there are no cases on how
the 4
th
Amendment applies to vote ID, and the cited cases set out general principles of
Fourth Amendment law as applied to IDs, elections, and unwarranted searches by Marion
County.
Whether the court erred in its analysis of Article II of the Indiana constitution.
In addition to the denial of preliminary injunction, there have been several other errors by
the district court about which the Circuit court may of may not have jurisdiction to hear
on an interlocutory basis:
The abuse of discretion in failing to remand state law questions to state court, the refusal
to certify state law questions to the Indiana Supreme Court, and the dismissal of 3 Jane
Doe defendants because their names and addresses are not yet known to plaintiff but are
known to defendants,
7. Timeliness of the filing Petition before this Court:
Page 3
3
The action is timely because it was filed shortly after the district court ruled and while the
issues were still live in that the provisional votes have not yet been counted.
7. Jurisdiction for the action brought before this Circuit Court of Appeals: The
jurisdiction of this Court is invoked by the Petitioner pursuant to 28 USC 1292.
8. Oral Argument: The Petitioner waives the opportunity to make oral argument on the
Petition before the Circuit Court because time is of the essence.
Respectfully submitted this 11thday of November by Plaintiff-Appellant.
Certificate of Mailing
I hereby certify that on this ____ day of November I caused the above set forth Docketing
Statement to be sent by hand delivery of first class mail or electronic mail to the
following: (redacted)

2008-10-31T10:10:00.000-07:00

October 29, 2008
Publication: Indiana Lawyer (Indianapolis, IN)
Section: IBA News
Page: 15

Judge won't halt voter ID law

- Michael W. Hoskins

Less than two weeks before the Nov. 4 general election, a federal judge in Indianapolis decided he won't interfere with the state law requiring voters to show photo identification at the polls. On Oct. 21, U.S. District Judge Larry McKinney denied a temporary injunction request from a Cumberland attorney and resident who is challenging Indiana's three-year-old voter ID law that's been upheld by the Supreme Court of the United States.

Plaintiff Robbin G. Stewart filed the suit in April in Marion County, though it was later removed to the Southern District of Indiana to resolve the multiple federal and state constitutional claims. In September, Stewart asked the judge for one of three potential relief options: that he be allowed to vote without showing the required photo ID; that the state and county be required to count all provisional ballots cast by those not showing photo ID; or that the state not be allowed to enforce the voter ID law during the Nov. 4 general election.

Judge McKinney heard arguments on the issue on Oct. 14 and took the matter under advisement for a week before issuing his decision.

In his 10-page ruling, Judge McKinney rejected each of Stewart's arguments, finding that he didn't represent a class of any similarly situated Hoosier voters and that he didn't adequately show any hardship in obtaining a photo ID. The court referenced how Stewart himself had obtained a valid license, and that meant he can vote and wouldn't suffer any irreparable injury by the injunction denial.

Turning to the landmark ruling issued earlier this year in Crawford v. Marion County Election Board, 128 S.Ct. 1610 (2008), Judge McKinney noted that the reasoning in that facial challenge case applies to Stewart, even though he'd asserted this as an as-applied challenge that survives the Crawford scrutiny.

"Plaintiff has not designated any evidence to demonstrate a burden that, on balance, outweighs the State's interest in protecting against voter fraud," the judge wrote.

Judge McKinney also rejected Stewart's federal constitutional claims that the state law violates the First and 21st Amendments, finding that the 7th Circuit Court of Appeals in Chicago had explicitly held in Crawford that the law isn't a poll tax and that all courts had decided it didn't violate the First Amendment.

On a claim that the law violates the Fourth Amendment on search and seizures, the judge pointed out that Stewart did not cite a single case holding that poll workers must have probable cause before requiring voters to produce a valid photo ID, and as a result he didn't show he could win on that claim.

The judge also rejected Stewart's state constitutional claims, finding that he didn't cite adequate legal authority and has not demonstrated any likelihood of success on the merits.

"I'm disappointed but not shocked," Stewart said about the judge's ruling. "The case is still alive, it's not like he dismissed it or anything. The next step is to take this to the 7th Circuit for some preliminary relief."

Stewart said he plans to vote on Nov. 4, but he won't show the state-required photo identification and is skeptical whether his vote will be counted.

"I'll try without any ID, and will do a provisional ballot that probably won't count " he said "We'll see "

2008-10-21T15:03:00.000-07:00

Judge McKinney today turned down my request for injunction in Stewart v Marion.
Let's see if I can grab the text from the pdf.
Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROBBIN STEWART, )
Plaintiff, )
)
vs. ) 1:08-cv-586-LJM-TAB
)

MARION COUNTY, et al. )
Defendants, )
)
STATE OF INDIANA, )
Intervenor. )

ORDER ON PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTIVE RELIEF

This matter is before the Court on Plaintiff’s, Robbin Stewart (“Plaintiff”), Motion for
Temporary Injunctive Relief. Plaintiff initiated this action against Marion County, et al,
(“Defendants”), asserting several federal and state constitutional claims attacking the validity of
Indiana’s “Voter ID Law,” Senate Enrolled Act No. 498, codified at various sections of the Indiana
Code. The State of Indiana (the “State”) (Defendants and the State collectively, the “Government”),
intervened in this matter. The Court has considered the parties’ arguments and, for the following
reasons, DENIES Plaintiff’s Motion for Temporary Injunctive Relief.

I. BACKGROUND1
In general terms, the Voter ID Law requires citizens voting in-person at precinct polling
places on election day to present election officials with valid photo identification issued by the

1 Having considered Plaintiff’s brief in reply, the Court hereby GRANTS Plaintiff’s
Motion for Leave to File Supplemental Brief.

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 2 of 10

United States or the sState of Indiana. Ind. Code § 3-11-8-25.1. The photo identification must
contain the following information and meet the following conditions:

(1) A photograph of the individual to whom the “proof of identification” was issued;
(2) The name of the individual to whom the document was issued, which “conforms
to the name in the individual’s voter registration record;”
(3) An expiration date;
(4) The identification must be current or have expired after the date of the most
recent general election; and
(5) The “proof of identification” must have been “issued by the United States or the
[S]tate of Indiana.”
Ind. Code § 3-5-2-40.5. An individual denied the right to vote due to lack of photographic
identification can sign an affidavit attesting to the citizen’s right to vote in that precinct, which gives
the individual the right to cast a provisional ballot. Ind. Code § 3-11-8-25.1(e).2
Plaintiff claims that his vote was denied in 2006 and that during the primary held in May
2008, he tried to vote but was refused the opportunity without valid photographic identification.
Plaintiff proceeded to fill out an affidavit and submitted a provisional ballot. According to Plaintiff,
that provisional ballot has not been counted. Plaintiff claims many other voters’ provisional ballots
have not been counted for the same reason. Additionally, Plaintiff claims that he will not be able
to vote in the upcoming general election due to the Voter ID Law. Plaintiff currently has a valid,
Indiana-issued photographic identification.
Plaintiff seeks injunctive relief in one or all of the following three ways: (1) an order to
require the Government to count his vote in the primary and fall election without showing

2For a more extensive discussion of the Voter ID Law, see Indiana Democratic Party v.
Rokita, 458 F. Supp. 2d 775 (S.D. Ind. 2006).

2

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 3 of 10

photographic identification; (2) an order to require the Defendants to count all provisional ballots
cast as a direct result of citizens’ failure to show valid photographic identification; and (3) an order
to enjoin the enforcement of the Voter ID Law for the 2008 election cycle.

II. STANDARD
When a party seeks to enjoin the application of a statute on the grounds that the statute is
unconstitutional, the moving party must overcome the strong presumption that the statute is
constitutional. See, e.g., Gov’t Suppliers Consolidating Serv., Inc. v. Bayh, 734 F. Supp. 853, 862

(S.D. Ind. 1990).In assessing whether a preliminary injunction is warranted, the Court considers
whether the movant has demonstrated that:
(1) that movant has a reasonable likelihood of success on the merits;
(2) the movant has no adequate remedy at law;
(3) the movant will suffer irreparable harm if preliminary relief is denied;
(4) the irreparable harm the movant will suffer without injunctive relief is greater
than the harm the opposing party will suffer if the preliminary relief is granted; and
(5) the preliminary injunction will not harm the public interest.
See St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007).
III. DISCUSSION
As an initial matter, the Court notes that Plaintiff does not represent a class of similarly
situated Indiana voters such that he can rely on others’ voting experiences in support of his Motion.
Additionally, Plaintiff has not offered any evidence of the alleged difficulties in getting a free state

3

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 4 of 10

issued photographic identification from the Bureau of Motor Vehicles. Plaintiff must rely upon, and
will be limited to, his own facts, especially the fact that he currently possesses a valid, state-issued
photographic identification. With this in mind, the Court turns to Plaintiff’s arguments.

Plaintiff’s Complaint includes the following claims under:(1) the Voter ID Law violates
Article II, §§ 1 and 2 of the Indiana Constitution by adding qualifications to vote and making
elections other than free and equal; (2) the Voter ID Law violates the Twenty-Fourth Amendment
to the Federal Constitution because the identification requirement is a poll tax; (3) the Voter ID Law
violates the First Amendment because it impinges the right to petition the; (4) the Voter ID Law
violates the Fourth Amendment, and also Article I, § 11 of the Indiana because it constitutes an
unlawful search and seizure; (5) the Voter ID Law violates the Fourteenth Amendment because it
denies equal protection and both substantive and procedural due process; and (6) the Voter ID Law
violates various other provisions in the Indiana Constitution.

The Court first considers the validity of Plaintiff’s claims after the decision in Crawford v.
Marion County Election Bd., 128 S.Ct. 1610 (2008). Next, the Court considers Plaintiff’s arguments
that survive Crawford, as well as Plaintiff’s claims under the Indiana Constitution to determine
whether Plaintiff has a reasonable likelihood of success on the merits.

A. CRAWFORD
In Crawford, the Supreme Court considered the constitutional validity of the Voter ID Law
under the Equal Protection Clause of the Fourteenth Amendment. Although the Justices disagreed
as to the standard of review to be applied to the Voter ID Law, a majority of the Court held that the
Voter ID Law did not violate the Equal Protection Clause on its face because, among other reasons,

4

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 5 of 10

the alleged burden imposed on voters that lacked photographic identification were outweighed by
the State’s interest in protecting the integrity of the election process against voter fraud. Crawford,
at 1623. Specifically, the Court concluded that the Plaintiffs in Crawford had not presented evidence
to demonstrate a severe enough burden on voters.

Plaintiff argues that he still has some likelihood of success even after Crawford for three
reasons: (1) Plaintiff asserts an “as applied’ challenge instead of a facial challenge as in Crawford;

(2) unlike in Crawford, Plaintiff has actually been denied the right to vote; and (3) his Complaint
asserts claims that were not at issue in Crawford. To the extent Plaintiff’s claims were not addressed
in Crawford, the Court agrees with Plaintiff that Crawford does not preclude those claims.
However, the Court concludes that even though Plaintiff asserts an “as applied” challenge
to the Voter ID Law, the reasoning in Crawford still applies to Plaintiff’s claim. Plaintiff has not
designated any evidence to demonstrate a burden that, on balance, outweighs the State’s interest in
protecting against voter fraud. In his briefs, Plaintiff tries to demonstrate that he, and many other
voters, have traveled great distances and paid fees they could not afford in order to get a free, valid
Indiana photographic identification. However, as previously discussed, Plaintiff represents himself
only, and not the rights of other voters. Additionally, Plaintiff succeeded in obtaining valid
identification because he currentlypossessesavalid Indiana photographic identification. Ultimately,
the burden on Plaintiff evidenced here is not significantly distinguishable from that of the plaintiffs
in Crawford. As a result, the State’s interest in protecting against voter fraud is “sufficiently
weighty” to justify its requirement that Plaintiff present photographic identification in order to vote.
Id. at 1616, 1623. Therefore, Plaintiff has not demonstrated a reasonable likelihood of success on
his Fourteenth Amendment claim.

5

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 6 of 10

B. FEDERAL CONSTITUTION CLAIMS
1. Twenty-Fourth Amendment
Plaintiff argues that the Voter ID Law places a “poll tax” on voters. However, the Seventh
Circuit in Crawford v. Marion County Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), explicitly
stated that “[t]he Indiana law is not like a poll tax.” Plaintiff argues that the Seventh Circuit’s
opinion is not valid precedent after the Supreme Court’s decision in the same case. Even assuming
that is true, the Court nonetheless finds the Seventh Circuit opinion persuasive and agrees that the
Voter ID Law is not a poll tax under the Twenty-Fourth Amendment. Therefore, Plaintiff has not
demonstrated a reasonable likelihood of success on his Twenty-Fourth Amendment argument.

2. First Amendment
Plaintiff argues that the Voter ID Law violates the First Amendment. This argument was
flatly rejected by Judge Barker in Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 820-21

(S.D. Ind. 2006). Moreover, although the Seventh Circuit did not consider the First Amendment
argument in its opinion, it nonetheless states, “Regarding the plaintiffs’ other arguments, we have
nothing to add to the discussion by the district judge.” Therefore, it appears to the Court that the
Seventh Circuit agreed with Judge Barker that the Voter ID Law does not violate the First
Amendment. As discussed above, Plaintiff has provided no evidence to distinguish himself from
the voters in Crawford such that the reasoning of the decisions in that case should not apply to him.
As a result, Plaintiff has not demonstrated a reasonable likelihood of success on the merits as to his
First Amendment Claims.
6

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 7 of 10

3. Fourth Amendment
Plaintiff next argues that the Voter ID Law violates his right to be free from unreasonable
search and seizure under the Fourth Amendment. Plaintiff claims that he cannot be asked for
identification in the absence of probable cause that would support a warrant. However, Plaintiff cites
only Terry stop case law to support his assertion. Plaintiff does not cite a single case that holds poll
workers must have probable cause before they can require the voter to produce valid photographic
identification. The Court concludes that the case law Plaintiff cites is not relevant to whether the
State of Indiana may require voters to present valid photographic identification. Therefore, Plaintiff
has failed to demonstrate a reasonable likelihood of success on the merits.

C. INDIANA CONSTITUTION CLAIMS
1. Article II, § 2
Article II, § 2, of the Indiana Constitution provides that every “citizen of the United States
who is at least eighteen years of age and who has been a resident of a precinct thirty days
immediately preceding such election, shall be entitled to vote in that precinct[.]” Plaintiff argues that
the Voter ID Law violates this provision by creating an additional qualification to vote. However,
the Crawford Court viewed the Voter ID Law not as an additional qualification but rather “a
generally applicable, nondiscriminatory voting regulation.” Crawford, 128 S.Ct. at 1623, 1625. The
photographic identification requirement is no more an “additional qualification” than requiring
voters to register or to vote in person. Moreover, Judge Barker held that the Voter ID Law did not
violated Article II, § 2, and the Seventh Circuit affirmed. Rokita, 458 F. Supp. 2d at 843, aff’d 472
F.3d 949 (7th Cir. 2007). The Court agrees with the analysis in Crawford and Rokita and concludes

7

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 8 of 10

that Plaintiff has failed to demonstrate a reasonable likelihood of success on the merits under Article
II, § 2, of the Indiana Constitution.

2. Article II, § 1
Article II, § 1, of the Indiana Constitution provides that “All elections shall be free and
equal[.]” The Indiana Supreme Court, in discussing this provision, has stated:

It is said elections are free when the voters are subject to no intimidation or improper

influence, and when every voter is allowed to cast his ballot as his own judgment and

conscience dictate. That they are equal when the vote of every elector is equal in its

influence upon the result to the vote of every other elector; when each ballot is as

effective as every other ballot.
Blue v. State ex rel. Brown, 206 Ind. 98, 188 N.E. 583, 589 (1934), overruled on other grounds by
Harrell v. Sullivan, 220 Ind. 108, 40 N.E.2d 115, 120 (1942). Plaintiff argues that the Voter ID Law
violates this provision because not every voter is entitled to vote without intimidation or improper
influence and therefore the elections are not “free and equal.” However, the Indiana Supreme Court
has held that the Indiana Constitution grants power to the General Assembly to promulgate election
laws to regulate and uphold the legitimacy of elections in the state. Simmons v. Byrd, 192 Ind. 274,
136 N.E. 14, 18 (1922). Article II, § 1, requires that the legislature ensure that the election process
is not susceptible to fraudulent voting. Id. (“When the ballot box becomes the receptacle of
fraudulent votes, the freedom and equality of elections are destroyed.”). The Voter ID Law is “a
generally applicable, nondiscriminatory voting regulation” that protects Indiana’s electoral process
against fraudulent voting. Crawford, 128 S.Ct. at 1626. The Court concludes that Plaintiff has not
demonstrated some likelihood of success for his Indiana Constitution, Article II, § 1 claim.

8

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 9 of 10

3. Other Claims
Plaintiff asserts multiple remaining claims under the Indiana Constitution but does not cite
to any law to support his argument. In fact, Plaintiff simply states that he asserts several claims
under the Indiana Constitution and that, taken together, because he advances so many claims, his
likelihood of success is increased. However, Plaintiff is required to provide some legal authority that
would demonstrate some likelihood of success on the merits. He has not cited to any legal authority
and, therefore, the Court concludes that Plaintiff has not demonstrated some likelihood of success
on the merits.

D. IRREPARABLE INJURY
Plaintiff has failed to demonstrate some likelihood of success on the merits on any of his
claims. However, the Court must also consider whether Plaintiff has an adequate remedy at law and
whether Plaintiff will suffer irreparable harm if preliminary relief is denied. See St. John’s United
Church of Christ, 502 F.3d at 625. Plaintiff will not suffer irreparable injury if preliminary relief
is denied because he has a valid, state-issued photographic identification. As a result, he can
participate in the election process this year. Therefore, Plaintiff has not satisfied his burden under
Lawson. Id.

9

Case 1:08-cv-00586-LJM-TAB Document 34 Filed 10/21/2008 Page 10 of 10

IV. CONCLUSION
For the foregoing reasons, Plaintiff’s, Robbin Stewart, Motion for Temporary Injunctive
Relief is DENIED.

IT IS SO ORDERED this 21st day of October, 2008.

LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution to:

Robbin G. Stewart
STEWART & ASSOCIATES
gtbear@gmail.com

David A. Arthur
INDIANA OFFICE OF THE ATTORNEY GENERAL
David.Arthur@atg.in.gov

Eric James Beaver
INDIANA OFFICE OF THE ATTORNEY GENERAL
eric.beaver@atg.in.gov

Jonathan Lamont Mayes
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
jmayes@indygov.org

Richard G. McDermott
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
rmcdermo@indygov.org

Justin F. Roebel
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
jroebel@indygov.org

2008-10-16T10:56:00.000-07:00

A hearing was held Tuesday on whether to have a preliminary injunction in Stewart v Marion County. The arguments mostly restated theses already in the briefs. Maybe a transcript will be available at some future date. Judge McKinney said he will issue a ruling on or by tomorrow, Friday.

2008-10-01T13:36:00.000-07:00

Recent activity in the case:
Today:
Hearing set for 10/14 10:00 am.

Filed motion for leave to file supplemental brief in response, and brief.
Filed motion for expedited handling.
9/25
State's brief in opposition to injunction, joined by county.
8/30 my Motion and brief for injunction.
Motion for certification to Indiana Supreme Court
Motion to compel discovery

2008-09-13T12:16:00.000-07:00

The county has filed an amended answer, asserting a few new defenses.
I don't have it with me right now, but this post is a placeholder for making a list of the false claims in the defenses. E.g. that the case is moot, that I don't have standing, that sort of thing. I need to do a set of interrogatories to explore the claims they are making.

2008-09-11T18:41:00.000-07:00

The court has granted the Attorney General's motion to intervene. David Arthur will represent the state.

2008-09-09T16:48:00.000-07:00

Recently (9/3/08) I filed a new motion for a preliminary injunction, memo in support, and motions to compel discovery and to certify questions to the Indiana Supreme Court. The text is here. (http://joellpalmer.blogspot.com/2004_09_01_archive.html).

As of today, I haven't received any response from opposing counsel, but there will probably be hard copy waiting for me when I get back to Indiana.

2008-08-26T12:37:00.000-07:00

Recently the court issued two orders, or rather an order and a notice. The court sent a notice to the Indiana Attorney General that he could intervene, to which I respond below. The court also set a schedule for motions for preliminary injunction, which is what I've been working on in longhand this past week at work in Evansville away from a computer. The court did not simply dismiss my complaint out of hand, but I won't count any victories until I see the ruling on the prelim.
(I fixed a few typos - will repost the new version later. right now i'm working on the prelim.)
update 9/13/08 - I didn't file this. The AG moved to intervene and the court granted the untimely intervention. I did a little research in the federal rules digest, while at the Mizzou law library where I used to work, and it seems, as one might expect, that it is within the discretion of the court.
I didn't find anything specifically on whether removal restarts the clock for intervention by the state.
Draft only do not file
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

Robbin Stewart
vs. 1:08-cv-586-LJM-TAB
Marion County, Beth White

COMMENT ON NOTICE AND CERTIFICATION 8/6/2008

This case was filed in April in state court. A copy of the complaint was served on the Indiana Attorney General, who had thirty days to timely intervene as of right under the Indiana Rules. The Attorney General waived his right to intervene, and has not been a party.
The county removed the case to federal district court, which on 08/06/2008 issued a notice and certification pursuant to 28 USC 2403 (b), citing Fed.R.Civ.P 24 (c).
Neither 28 USC 2403, Fed R Civ.P. 24, nor Scholes v. Lehmann discuss the timeliness of a state’s motion to intervene following removal, after the time for the state to intervene has already run according to the applicable state rules.
This concern will be moot if the state continues to choose not to participate, but if it does seek to intervene by 9/6/2008, there will be a concern as to whether such motion is timely.
28 USC 2403 (b): In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.
Rule 24. Intervention
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.(b) Permissive Intervention.(1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. (2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on: (A) a statute or executive order administered by the officer or agency; or (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order. (3) Delay or Prejudice.In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.(c) Notice and Pleading Required.A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.
Federal courts are, or at least ought to be, especially reluctant to invalidate statutes on constitutional grounds by the use of procedural shortcuts, which in this case would involve not only skipping the district court but also denying the Attorney General of Illinois his statutory right to defend the Illinois statute. A district court is required in the case of a challenge to the constitutionality of a state or federal statute to certify the challenge to the state or federal attorney general, respectively, and allow that official an opportunity to intervene and defend the statute. That was not done here, because the constitutional issue was not raised in the district court. We shall not consider it. Scholes v Lehmann, 56 F.3d 750 (7th Cir. 1995), http://www.projectposner.org/case/1995/56F3d750/.
Here, where the Attorney General had notice and an opportunity to defend in April, and waived that right by the end of May, the better view is that a motion to intervene would be considered untimely, and should be addressed under the rules for untimely motions. The court allowed defendants to file their answer out of time, and it is likely that the court would welcome intervention by the state even where as here laches applies and the deadline had long run. I wanted to bring this issue to the court’s attention and note the issue, and state an objection for the record to preserve the matter for review.
My main concern is that time is of the essence, and it is important that a late attempt intervention by the state, if that happens, not be an excuse for delay or to interject procedural obstacles to a prompt resolution of the merits, because public confidence in the election process depends in part of these issues being determined, rather than continuing in limbo. If the court grants preliminary injunctive relief, so that Plaintiff (and perhaps others) can vote in the November election, that will take off some of the time pressure.
Respectfully submitted,
Robbin Stewart
Certifications go here

2008-07-10T15:51:00.000-07:00

Here's the memo I'll be filing tomorrow:

Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. 1:08-cv-566-LJM
)
)
Marion County, Beth White, )
)
Defendants. )

Plaintiff’s response to entry of 6/16/2008

Statement
Analysis
New Facts
Comment on affirmative defenses.

I. Short and plain statement that the litigation survives Crawford v. Marion County:
The court has directed plaintiff to respond again as to whether and which claims survive Crawford v Marion County. The answer is still, all of them, but generally these fall into two categories: claims not addressed at all in Crawford, and claims that are affected by but survive Crawford.
In light of Crawford, each count of the complaint continues to state a cause of action under which the voter ID statutes as applied to him are unconstitutional, or in the case of Count XVI, violative of the Privacy Act.
Crawford rejected only a facial challenge based on a specific theory of law supported by a particular record; Crawford did not foreclose as-applied challenges or hold that voter ID is always and categorically constitutional.
We are, however, persuaded that the District Court and the Court of Appeals correctly concluded that the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute, and thus affirm. Crawford v. Marion County, 128 S. Ct 1610 (2008).

II Analysis of Crawford v Marion County as it applies to this case.

The complaint sets out 17 separate legal bases for the relief it seeks. These are,

Count I, free and equal elections Article II section 1
Count II, vested right of registered voter to vote, Article II section II.
Count III, unwarranted search, Article I section 11
Count IV, free interchange of opinion clause, Article I section 9
Count VI (sic, hereinafter 4.5), right to speak freely clause, Article I section 9
Count V, the right to alter government, Article I section 1
Count VI, due course of law, Article I section 12
Count VII petition and assembly, Article I section 31.

Count VIII, voting rights, First Amendment
Count IX, privacy rights, First Amendment
Count X, unwarranted search, Fourth Amendment
Count XI due process, Fourteenth Amendment
Count XII equal protection, Fourteenth Amendment,
Count XIII privileges and immunities, Fourteenth Amendment
Count XIV knowing racial disparity, Fifteenth Amendment
Count XV poll tax or equivalent, Twenty-Fourth Amendment
Count XVI Privacy Act claim.

Crawford expresses no opinion on whether the voter ID program does or does not violate the Indiana Constitution. Indiana gives its constitution independent construction, and cases like Crawford may persuade but cannot control. Counts I through XIII survive.
Of these, the strongest is Count II, since the Indiana Supreme Court has issued controlling precedents establishing the vested right of the registered voter to vote without further qualifications; the other claims are of first impression. Board of Election Commissioners of Indianapolis v Knight 117 NE 565 (1917), Morris v Powell 125 Ind 281, 25 NE 221 (1890), Indiana ex rel. McGonicle v. Madison, 193 NE2d 242 (1963).
Crawford’s question presented dealt only with the First and Fourteenth Amendments.
So Crawford expresses no opinion on the Fourth, Fifteenth, Twenty-Fourth, and Privacy Act claims in Counts X, XIV, XV, and XVI.
Of these, the strongest is the 24th Amendment claim, since the Supreme Court has issued controlling precedent preventing not only poll taxes, but voting impediments that resemble poll taxes. Harman v. Forsennius. 380 U.S. 528 (1965).
Writing for three of the six justices in the majority, Stevens invited would-be voters to renew their challenge to Indiana‘s law once they could show – in very concrete terms – that they had been unjustifiably excluded from the ballot box. The next time around, litigants should put the Twenty-fourth Amendment at the very center of their case. Canonizing the Civil Rights Revolution: The People and the Poll Tax, Ackerman and Nou, 103 Northwestern Law Review __ (forthcoming Jan. 2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1154242

This case is a voting impediment similar to a poll tax, because defendants won’t let plaintiff vote unless and until I display a document for which I paid a total of $35 (issuance fee $20, replacement fee $5, birth certificate fee $10) in addition to other costs.
Crawford affects, but is not dispositive of, Counts VII, IX, XI, XII, and XIII, claims under the First and Fourteenth Amendments.
Crawford was a facial challenge which sought to completely invalidate the statutory program, on the basis that it discriminated against the poor, the elderly, and generally those inclined to vote Democrat. Crawford by counsel conceded that the voter ID program was constitutional as to most of the people most of the time. The general rule is that for a facial challenge to succeed, it must be shown that a statute has no applications which are constitutional. This rule was traditionally waived in the First Amendment context, but the Roberts court has recently been strictly construing this rule, and disfavoring facial challenges. In Washington State Grange v Republican Party, _ U.S. _, (3/18/2008), the court rejected a facial challenge to a blanket-type primary.
Respondents object to I–872 not in the context of an actual election, but in a facial challenge. Under United States v. Salerno, 481 U S 739 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e., that the law is unconstitutional in all of its applications. Id., at 745. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a plainly legitimate sweep. Washington’s primary system survives under either standard, as we explain below. In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about “hypothetical” or “imaginary” cases.

See also Purcell and McConnell v FEC. Crawford explicitly leaves the door open for as-applied challenges such as this one. WRTL v. FEC I did the same, and in WRTL v. FEC II, plaintiffs prevailed as-applied where they had lost facially in McConnell v FEC.
The national legal director of the American Civil Liberties Union says the opinions signal a basic shift in litigating constitutional claims. “It’s important to understand this is a fundamental departure from what the court has done over the past four decades to protect civil and constitutional rights,” says Steven R. Shapiro of New York City. “About Face: A tool of the civil rights movement is increasingly unwelcome in the high court”, ABA Journal,July 2008 , David Savage http://www.abajournal.com/magazine/about_face/
In Crawford, the controlling opinion applied the four-factor balancing test of Anderson v Celbrezze, rather than the lax scrutiny of Burdick v Takushi, as was used below and as preferred by the concurring opinion.
Anderson is a form of strict scrutiny in which there is always a compelling state interest in election integrity, so it becomes necessary to balance the burden of the regulation against the purported state interests.
It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. …The results of this evaluation will not be automatic; as we have recognized, there is "no substitute for the hard judgments that must be made." Anderson v Celebrezze, 460 U.S. 780, 790.
Crawford implicitly limited or overruled Harper v Virginia, which had applied strict scrutiny in striking down a barrier to voting on equal protection grounds. The Court did not discuss or overrule Harmon v. Forennius, because the Twenty-Fourth Amendment issue was not before it.
The state interests the Court recognized in Crawford were 1) deterring and detecting voter impersonation. 2) dealing with an inflated voter roll 3) public perception.
Since this is a new case, the county is free to come up with additional interests or rationalizations. The county’s reply brief in Crawford tells the real story – that voter ID does more harm than good to Marion County’s election procedures. http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefofrespondentMarionCountyElectionBoard12-4-07.pdf
Here, there is no specific deterrence or detection issue – it is probably undisputed that I am who I say I am and that that’s my ballot sitting uncounted in their warehouse. Counting my vote, and letting me vote in the fall, will not embolden or enable voter impersonators. Similarly, there is probably no serious dispute that I appear once and once only on the voting rolls. It is difficult to see how the public would be more confident of voting integrity if they know my vote, legitimately cast, is not being counted.
Similarly, there has been plenty of time in which to investigate whether any of the provisional ballots cast in the primary were fraudulent. So far, all the evidence is that the signatures match and there have been no prosecutions for voter impersonation. The court can order that these votes be counted, and that provisional votes in the fall be presumed valid in the absence of any contrary evidence. This is how provisional voting is supposed to work under HAVA, the Help America Vote Act.
In Crawford, plaintiffs conceded that the statute has a legitimate sweep, and so a facial attack must fail under the Salerno standard. The argument in Crawford was that the program would disproportionately impact the poor, the elderly, the homeless, and African Americans. As in Ayotte, the Court did not find a good fit between resolving the problems of a small number of Amish voters or homeless voters or people with BVM problems, and the proposed remedy of entirely enjoining the statute. The Court, and the courts below, found that the case was somewhat hypothetical, with insufficient facts in the record to carry the burden of persuasion.
In contrast, in this case plaintiff contends the statute has no legitimate sweep, because it authorizes a massive roadblock, a suspicionless search of every voter. Plaintiff is a white guy, and was trying to vote in the Republican primary. I am poor but probably not indigent under the undefined terms of the statute, and anyway the indigency affidavit exception does not apply in my circumstances. My theory of the case is not premised on the disparate impact on the poor and elderly.
Plaintiff has been actually denied the vote, both in 2006 and 2008, was deterred from trying to vote during 2007, and will be again denied the vote in November if the courts do not act in time. There is nothing speculative or imaginary about this real case. There is nothing frivolous or defective about any of the counts. Plaintiff’s burden of persuasion is high as to some counts, such as the P&I claim and the 15th Amendment claim, and low as to others, such as the 24th Amendment claim and the Article II section 2 claim, but in each instance plaintiff can cite to existing precedent or make a good faith argument that the precedents should be extended to cover this case. Plaintiff’s position that Crawford does not foreclose further litigation is supported by virtually all of the scholarship on the case, of which only a few representative articles are cited here.
“[T]he possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs' challenges.” Purcell v Gonzalez, _ U.S _(2006). In Purcell, an appeal of a pre-enforcement injunction of voter ID, which turned on the interaction of the district and circuit court rather than the merits, Justice Stevens concurring wrote in full:
Allowing the election to proceed without enjoining the statutory provisions at issue will provide the courts with a better record on which to judge their constitutionality. At least two important factual issues remain largely unresolved: the scope of the disenfranchisement that the novel identification requirements will produce, and the prevalence and character of the fraudulent practices that allegedly justify those requirements. Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical facts rather than speculation. Purcell.
Here, as distinct from Crawford, we are able to see the program in action, how plaintiff has been personally burdened, and how the program generally undermines the integrity of close elections in Indiana.
WRTL I and II stand firmly in opposition to the idea that Crawford forecloses this case.
[In McConnell v. FEC, e]ven assuming §203 "inhibit[ed] some constitutionally protected corporate and union speech," the Court concluded that those challenging the law on its face had failed to carry their "heavy burden" of establishing that all enforcement of the law should therefore be prohibited. Id., at 207. Last Term, we reversed a lower court ruling, arising in the same litigation before us now, that our decision in McConnell left "no room" for as-applied challenges to §203. We held on the contrary that "[i]n upholding §203 against a facial challenge, we did not purport to resolve future as-applied challenges." Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U. S. 410, 411-412 (2006) (per curiam) (WRTL I).
We now confront such an as-applied challenge. WRTL II, (6/25/2007)…. the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. WRTL II (6/25/2007).
Another reason this case is distinguishable from Crawford is the range of remedies sought. In Crawford, plaintiffs sought only to enjoin the statute entirely, and rested their case on the narrowest of legal grounds, only the First Amendment claim, rather than preserving their statutory claims.
In Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), the Court unanimously held “that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.”
Here, there is a range of available relief. The court could direct defendants to count plaintiff’s vote, and to allow the vote in November. The court could direct defendants to count each provisional ballot, both from the primary and going forward, except where there is actual evidence a particular vote may be fraudulent or improper. This would bring Indiana into compliance with how HAVA directs that provisional votes be handled.
The court could enjoin the statute only in Marion County. The court could enjoin the statute altogether, or just within the Southern District. The court could award damages under Monell sufficient to deter the county from again violating plaintiff’s voting rights, as it has a habit of doing., e.g. Stewart v Taylor, 934 F. Supp. 1040, 1041 (S. D. Ind.1997), or could award such other relief as is in the interest of justice. Plaintiff prefers that the statute be enjoined and declared unconstitutional, but will benefit from any relief, such as counting my vote.
Another distinguishing aspect of this case is that the key facts are different. “It is axiomatic that a “statute may be invalid as applied to one state of facts and yet valid as applied to another.’ Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921).” Ayotte.
Crawford did not create a bright line showing that voter ID is always constitutional, as Justice Scalia’s concurrence would have held. Under Marks, 430 U.S. at 193, the narrowest opinion governs. “As we have noted, the facts in these cases are hotly contested, and ‘[n]o bright line separates permissible election-related regulation from unconstitutional infringements.’" Purcell v Gonzalez.
The complaint contains direct allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. In addition to recovery, the complaint seeks declaratory and injunctive relief. Under Twombly, the complaint must describe the claim in sufficient detail to give fair notice. Second, it must plausibly suggest plaintiff has a right to relief that is more than speculative. Here, the claims in the complaint are understandable and understood. Defendants are aware that they are being sued for having denied plaintiff the right to vote, under Article II section 1, under Article II section II, and under the provisions of the Indiana Bill of Rights, which is Article I.
They are aware that they are also being sued under the 4th Amendment, for making voting conditional on submitting to an unwarranted suspicionless search, that they are being sued under the 24th Amendment, because they unwilling to let plaintiff vote unless and until he produces proof that he has paid a fee and thereby obtained a voting license aka driver’s license. They are aware that they are being sued for violating the Privacy Act, because they are demanding the driver’s license of those people who have a social security number displayed on it, without having complied with the disclosure requirements the Privacy Act requires in such circumstances, thereby affecting the outcome of the election in a way which harms plaintiff. The complaint readily meets the Twombly standard. The court’s threat of dismissal is problematic and suggests a possibility that plaintiff may not be able to receive a full and fair impartial hearing.
To summarize, factors that distinguish this case from Crawford include but are not limited to:
a. It is an as-applied challenge by a person actually denied the vote.
b. It is a post-enforcement rather than pre-enforcement challenge, so it can be better grounded in actual experience of how the program fails to advance its goals.
c. It includes state and federal claims not at issue in Crawford.
d. Under plaintiff’s theory of the case, every voter is substantially or severely burdened, not just 1%.
e. The range of remedies is broader, so that the court could grant at least partial relief.
III Facts which have occurred after the initial filing of the complaint.

On the same date that I filed this case in the Marion County Clerk’s Office, I then walked a few feet to the early voting desk, and attempted to cast my vote in the Republican primary. When I declined to show an ID, I was told that I would not be allowed to vote. I was not offered a provisional ballot. I then asked if I could be given a provisional ballot. I was instructed to go to the election board office in the same room. I met with an official who recognized me from a prior round of my attempting to have my vote counted. He got me a provisional ballot, which I cast. This ballot has not been counted. I want to have this vote counted, as the minimum amount of relief to which I am entitled. Other provisional ballots, made provisional because of voter ID, have not been counted. I want those votes counted, in the absence of any showing of good cause why a particular ballot will not be counted. These votes are not outcome determinative of the election, but they are still important, both to the voters and to the process.
On the night before the last of the ten days for me to go to the clerk’s office and show an ID in order to have my vote counted per the current policy, my wallet was stolen by a pickpocket, near 13th and Illinois Sts. In order to get a new license, I first had to get a birth certificate. I had one somewhere but can’t find it; getting a new one was easier. Generally, you can’t get a birth certificate without a driver’s license, and you can’t get a driver’s license without a birth certificate, but I found an alternative method. This involved driving to Delaware (round trip 1200 miles), getting my mother, finding the Vital Statistics office at its obscure location near Price’s Corner in a suburban area in New Castle County, paying a $10 tax to apply for a birth certificate, and getting my birth certificate, on May 21, 2008. I then returned to Indiana. On May 27, I went to the BMV office on Virginia Avenue to try to get a new license, but there were about 80 people in front of me and it seemed like it would be a long wait, so I went to the Beech Grove office of the BMV. There, I was told that I could not get a driver’s license, because the name on my birth certificate doesn’t match the name on my driver’s license. (My name was changed when I was a minor.) They have a different supervisor there than when I had this same problem several years ago, when it took me a week and hours of meetings at the BMV state headquarters to get it fixed. I then went to the Franklin Road office, where a nice lady gave me my new license, for $5, although she told me that because of the difference in names I won’t be able to renew my license when it expires.
These circumstances are one person’s example of the degree of burden imposed by the ID requirement, in a case in which I was actually known by the election official who gave me the provisional ballot, and go to show the unreasonableness of the ID requirement as applied to me.
Plaintiff moves that the complaint be understood as incorporating these additional new facts, or that alternatively plaintiff be granted leave to file a supplement to the complaint with the above text.
IV Comments on affirmative defenses.
The County’s answer contains a laundry list of affirmative defenses. These include,
1 Failure to state a claim
2 Mootness.
3. Proximate cause.
4. Ripeness
5. Not a custom, policy or practice.
6. Lack of requisite personal involvement.
7. Qualified Immunity
8. Standing
9. Monell
10. Failure to mitigate damages.
11. Plaintiff has photo ID.
12. Barred by Crawford.
13. Statute is not severe and is nondiscriminatory and is based on important regulatory interests.
14. Reserved.

1. The complaint states a claim, 17 of them. If the facts are true, and if the law is as plaintiff claims, then he is entitled to the relief sought. At this stage, the facts must be taken as true.
2. The complaint is not moot, for at least four reasons. My vote in the primary has not yet been counted. My ability to vote in the Fall is at risk. I seek damages. The claims are capable of repetition yet evading review. Roe v Wade, Majors v Abell I.
3. Proximate cause: The County, and White, are enforcing the statutory provisions and have adopted it as their policy, and under that policy are preventing plaintiff from voting, proximately causing his injury in fact.
4. The claims are ripe, and became ripe when I was first denied the vote in 2006, and is continuing.
5. The county has implemented the statutory program, and has adopted it as its custom, policy and practice. There have been enough election cycles since 2006 to establish the practice as a custom, followed at each of 900 precincts, against at least a hundred thousand voters, multiple times. It is their policy and it is their practice. The county can demonstrate that it does not have a policy or practice of requiring voter ID by publicly announcing that it will not require voter ID for the Fall election, and then allowing plaintiff to vote.
6. White, the county clerk and chief election authority, has adopted the voter ID program as her and the county’s policy, although she campaigned against it and expressed reservations in the County’s reply brief in Crawford. Her actions are attributable to the County.
7. The County, a municipality, does not enjoy qualified immunity. White does not enjoy qualified immunity because she has not been sued in her personal capacity, but only her official capacity. The Doe defendants would be in a position to argue QI, but counsel for the county does not represent them, and currently their status is in limbo, as they have been dismissed, but not finally dismissed. The warrant requirement is sufficiently established law to defeat QI as to some claims, but the Does will be able to argue QI as to the First and 14th A claims in light of Crawford, but at this point they have not been identified and served and appeared by counsel or otherwise, and it is too soon to speculate as to what defenses they might raise.
8. As a registered voter whose provisional votes are not being counted, and who expects to be denied the vote again November, I have standing. As a resident who is injured if Marion County is denied free and equal elections, I am injured. As a person who associates politically with the supporters of Ron Paul, in the primary, and the Libertarian Party, in the general election, I am injured by the statutory scheme’s invidious discrimination against those who are aware of and do not waive their rights to be free from an unwarranted suspicionless search, because these tend to be exactly the voters who tend to support Paul and the party.
9. While the complaint does not mention Monell, or any other case, by name, Monell is the basis for plaintiff’s damage claim against the county under 1983; the complaint does state a claim under Monell.
10. Plaintiff is forced by the defendant’s policy to either not be able to vote, or to be subjected to an unwarranted suspicionless search. Either way, his rights are violated, but not voting is the lesser evil and is the means by which he mitigated his damages.
11. Plaintiff admits he has photo identification. This is not an affirmative defense. In the absence of at least Terry type reasonable suspicion and offer safety concerns, plaintiff is under no legal duty to display a driver’s license when not driving, or to display a passport when not crossing a border. Hiibel v Arizona. Perhaps someday the Supreme Court will create a voting booth exception to the Fourth Amendment. It has not done so, not in Crawford, not in Hiibel, not in any other case, and no lower court has the authority to do so. Exceptions to the warrant requirement are rare and narrow and disfavored. Edmond v Indianapolis. Perhaps the court will take this case and use it to create such an exception. Until it does so, the Fourth Amendment applies to the search of ID as a condition of voting. The exercise of one right cannot be made contingent on waiving another.
12. Crawford is discussed supra.
13. The statute is not a law, because it conflicts with the constitution, and is void. The statute is severe as applied to plaintiff, because it is preventing him from voting. It is discriminatory because it singles out those like plaintiff who are unwilling to waive their rights. That is a small minority of Indiana voters, but one is enough. It is discriminatory against the supporters of Paul or the Libertarian Party or other candidates who run on the principles of respect for the constitution and freedom and privacy, because exactly those voters who support such views will be deterred from voting. Chandler v Miller.
14. Defendants properly reserve additional defenses.

Respectfully Submitted,

_______________

Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.917.8002.
gtbear@gmail.com

I hereby certify that on or by July 11, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.

Richard McDermott, et al.
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

Robbin Stewart.

____________________
C:\Documents and Settings\Administrator\My Documents\stewartvmarion071020082.rtf

2008-06-25T08:36:00.000-07:00

article in indiana lawyer about my voter id case.

.... ‘Flipping Crawford on its head’

A point in the League of Women voters suit is what Indianapolis attorney and registered voter Robbin Stewart argues is a main thrust of his lawsuit, filed well before the May primary in state court and since removed to federal court; he hasn’t gotten a resolution and the primary has come and gone.

In the LWV suit, the organization points out that many of its members do possess a driver’s license but philosophically object to “being compelled to produce at the polls the restrictive form of identification” now required.

Stewart said he’s coming at his suit as “one of the 99 percent who do have the required identification.” That’s what makes this different from Crawford, which came at the issue from the perspective of those burdened voters without ID, he said.

“Yes, I do see this as a sequel,” Stewart said, noting that this is an as-applied challenge for which the Crawford court specifically left the door open. “I’ve been turned away from voting, and that’s not right.”

Stewart filed a state suit in Marion County on April 18. He made similar claims as the LWV did, but the defendants – Marion County, Clerk Beth White, and three unnamed “Jane Does” who were the election workers who prevented his voting – moved to remove the case to the Southern District of Indiana and that happened June 16, despite Stewart’s objections. The Indianapolis federal judge also dismissed the claims against the election workers, though allowing him to re-file if he obtains names.

Regarding his lawsuit, Stewart said he has been turned away – not because he doesn’t have a valid, state-issued driver’s license, but because he philosophically opposes being forced to show it to vote. It’s different when going to an airport or driving a car, because those aren’t constitutional rights, he said. When asked casually to show his ID, he hesitates at first but agrees to produce it only because he isn’t being forced to do so.

Though he has an ID, Stewart pointed out he has been burdened by this law in the year that he didn’t have a driver’s license and struggled to get one in the first year the Indiana statute went into effect in 2005. He’d misplaced the license, and said he had to pay to travel to Delaware to get a birth certificate copy from his mother. He then had an issue with the Indiana Bureau of Motor Vehicles after that because he’d legally changed his name when he was young and the records didn’t match, and the branch wouldn’t accept documentation about the name change as confirmation.

“It’s a catch-22 and is more hassle than reasonable,” he said, adding the issue was resolved about a year later. “I vote because it’s important to me, but some would rather stay home than go through this.”

He claims in his suit that election workers and authorities shouldn’t be able to demand his identification for voting without a search warrant, and that violates Fourth Amendment rights against search and seizures. He also contends that due process and other constitutional amendments are being violated by this state law.

“In America, you don’t go around showing your paperwork to everyone when you’re just exercising your right to walk down the street or cast a vote that counts. You should get upset about that,” he said.

Now, those state constitutional arguments have mostly dissolved as the federal questions are considered. The parties have through July and August to file documents with the court to explain how any portion of the suit can proceed post-Crawford.

Stewart worries that his suit could get bogged down with issues that won’t ultimately lead to any adequate resolution.

“Honestly, I assumed the ACLU and the Democrats would win in Crawford,” he said. “Afterward, I saw the hope that we could preserve this possibility for the Indiana courts to consider. I’d still like to see that happen, but if it doesn’t, I intend to get to the merits eventually.” •

2008-05-16T21:10:00.001-07:00

The case number in federal court is 1:08-CV-0586.
Today I wrote and filed a motion in opposition to removal and for remand.
Possible upcoming story in Indiana Lawyer.

2008-05-16T10:04:00.000-07:00

The county has removed the case to federal court. I've drafted a motion to remand back to state court.

2008-04-30T15:46:00.000-07:00

Judge Miller has denied the TRO and not set a date for a hearing, so it doesn't look like any action before the primary election.

The Supreme Court has announced Crawford. pdf.
The decision is 6-3, with 3 saying uphold under Burdick, 3 dissenters saying overrule, and the Court's opinion by Stevens joined by the Chief Justice and Kennedy says this facial challenge hasn't met its burden. So my case is now even more important, as the first (or second) as-applied challenge.

2008-04-19T11:54:00.000-07:00

Yesterday
I filed a new case, since Palmer v Marion was dismissed on procedural grounds awhile back.
stewart v marion 49D05 08 04 CT 017641
Hon. Gary Miller (GOP)

Marion Superior Court, Civil 5
City-County Building, W-507
West Wing, 5th Floor
Elected: 1-Jan-1991
---------
IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA

Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )

COMPLAINT

Comes now Plaintiff Robbin Stewart pro se and for his complaint for injunctive and declaratory relief and damages, states as follows.
1. Introduction: This is an action to stop a threat to the integrity of the election process.
2. Time is of the essence. The primary is set for May 6, 2008. Plaintiff wishes to vote in the Republican Primary and in the school board elections, and to have his vote counted.
3. Defendants are attempting to engage in voter fraud by preventing registered voters who do not show a voting license, from voting.
4. The result could be that the winners of the upcoming elections cannot be determined, because an unknown number of eligible voters will be prevented from voting.
5. A motion for a TRO and preliminary injunction has been filed to prevent irreparable harm.
6. The voting license program is challenged on a number of state and federal constitutional grounds as well as several statutory grounds.
7. The voter ID program violates the Indiana Constitution, Article I sections 1, 9, 11, 12, 31, Article II sections 1 and 2, the First, 4th, 14th, 15th, and 24th Amendments, and the Privacy Act of 1974.
8. This action is directed at the 2008 city/county primary and general election.
9. Jurisdiction: This court has general jurisdiction over claims arising under Indiana statutes and constitution, and federal statutes and constitution.
10. Venue is proper in Marion County, where Plaintiff resides, where defendants have their offices, and where the actions in question took place or are to take place.
11. Parties: Plaintiff is Robbin Stewart, a voter in the tenth ward, seventh precinct of Center Township in Marion County, Indiana.
12. Defendant Marion County is a municipality and is the seat of government for Indiana. All defendants are named as to all counts.
13. Beth White is the Marion County Clerk. She is named in her official capacity.
14. Jane Doe 1-3 are precinct officials in Ward 10, precinct 7 who prevented Stewart from voting in the spring and fall elections in 2006 and/or intend to interfere with his right to vote in the 2008 elections. They are named in their individual and official capacities.
State Claims.
Count I
15. The voter licensing program violates the right to free elections under the Free Elections clause, Article II Section I of the Indiana Constitution.
16. The following statement of facts, Ps 17-44, is common to each count, and is incorporated by reference in each count below.
17. Following the disputed 2000 election, a coalition of Republican activists began promoting voter licensing proposals.
18. Numerous states passed some version, typically allowing a wide variety of documents, such as a utility bill.
19. Following passage of the voter ID statutes, the Democratic Party and the ACLU brought suits to enjoin the program. Those suits have been consolidated and argued before the United States Supreme Court, but no decision is expected by the primary election. It is also possible that the court will decline to reach the merits in a facial challenge. In several recent cases the court has expressed a preference for as-applied challenges. This action is an as-applied as well as facial challenge to the program, by a voter whose votes have not been counted based on failure to show voter ID. No motion for a temporary injunction or stay was made to the Supreme Court.
20. The complaint in Indiana Democratic Party, NAACP, et al. v Rokita, http://moritzlaw.osu.edu/electionlaw/litigation/indy-dems.php, contains useful background on the facts and some of the legal issues and is incorporated by reference herein. A paper copy of the pleadings in Rokita will be provided to the court if requested.
Plaintiff’s amicus brief in Rokita is at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefamicuscuriaeofCyberPrivacy.pdf
21. The Indiana legislature has passed a set of statutes requiring government-issued voter photo identification, in order to cast one's vote. Senate Enrolled Act No. 483, codified at Ind. Code §§ 3-5-2-40.5; 3-10-1-7.2; 3-10-8-25; scattered sections of Ind. Code ch. 3-11-8; several sections of Ind. Code art. 3-11.7; and Ind. Code § 9-24-16-10.
22. Plaintiff Robbin Stewart was prevented from voting at the 2006 spring primary and fall general elections and expects to be challenged from voting in the 2008 elections.
23. [Omitted.]
24. He believes that the election will be invalid, unless this court acts to prevent the irreparable harm.
24. Plaintiff is a person who does not consent to a search, and does not waive his rights under the federal and Indiana constitutions.
25. He seeks to be able to cast his vote in the election without being subjected to an unwarranted search.
26. If he cannot cast his vote, he is injured.
27. Alternatively, if he submits to an unwarranted search in order to vote, he is injured.
28. For most voters, the driver's license would serve as their voting license.
29. Plaintiff's driver's license contains personal information which he does not want to share and which is not needed to verify that he is who he says he is. He does not have a current passport or other government issued photo ID.
30. He does not consent to a search, although he will cooperate with a search authorized by a valid warrant, or a search arising under exigent circumstances with probable cause.
31. He has a consistent practice of refusing to waive his constitutional rights.
32. The warrant requirement, subject to a few exceptions not at issue here, is well-established law that any government official should be aware of, and that citizens rely on in their interactions with government officials.
33. Plaintiff is personally known to or recognized by one or more of the precinct officials.
34. There was no threat of voter fraud if he had been allowed to vote without a license.
35. He is a registered voter who has been voting there for about 8 years, and has been a candidate.
36. By denying him the vote unless and until he waives his right to be free from search,, the precinct officials will be engaging in voter fraud.
37 In a recent city council election in Plaintiff's district, three votes decided the election.
38. Many Ward Ten residents do not have drivers licenses or passports or state college ID’s or other state-issued ID’s. Many do not drive, travel internationally, or attend college. Others drive without licenses.
39. Some have only forms of ID, such as school ID, bus pass, library card, social security card, utility bill, or voter registration receipt, which are not enough to allow them to vote under the new rules.
40. Plaintiff was offered, and cast, a provisional ballot in the 2006 primary and general elections.
41 His provisional ballot was never counted. At the primary, he went to the city clerk’s office and asked that his vote be counted, but was refused. He would have had to consent to the search of his voting license, which he is unwilling to do, absent a valid warrant. In the general election, he was told by phone that his vote would not be counted.
42. By denying the vote to Plaintiff, to others who do not consent to a search, and to those who cannot get or cannot afford the documents needed to obtain a voting license, defendants violate his rights under the equal elections clause of Article II section 1.
43. An election is equal where everyone's vote counts the same, and everyone's vote is counted.
44. Plaintiff insists, as a voter and citizen, not only that he be allowed to vote, but that others be allowed to for or against the candidates of his party with whom he associates politically.
Count II
45. Plaintiff, and each other Indiana voter who is properly registered, has a vested right of a registered voter to vote per Article II section 2.
46. His right to vote was and will be violated when he was and will be denied a regular ballot unless he submits to a search.
Count III
47. Plaintiff's right to be free from unreasonable search under Article I section 11 was and will be violated when and if, in retaliation for his refusal to consent to a search, he was and will be denied the vote.
Count IV
48. Article I section 9, the free interchange of opinion clause, is one of the Indiana Constitution's protections of free speech. It reads, Section 9: No law shall be passed, restraining the free interchange of thought and opinion….
49. Plaintiff asserts that his Article I Section 9 rights were and will be violated when and if he is refused a regular ballot and his vote not counted, or if he is only allowed to vote after submitting to an unwarranted search.
50. Voting is an exercise of interchange of thought and opinion. The requirement that a duly registered voter and citizen obtain a license from the government in order to vote restrains the free interchange of opinion.
51. The requirement that a registered voter, one who is not certain that he meets the undefined indigency requirements under the statute, must pay a fee to the government in order to obtain the documents that constitute the voting license, restrains the free interchange of opinion.
Count VI
52. Article I Section 9, the speak freely clause, is another one of the Indiana Constitution's protections of free speech.
53. It reads, Section 9. No law shall be passed … 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.
54. Voting is a form of political expression that is restricted when the state imposes a licensing requirement as to which registered voters are allowed to vote.
55. Section 9 speech rights are restricted when a non-indigent registered voter must pay document fees to obtain a voting license in order to be able to vote.
56. Plaintiff’s section 9 rights were and will be violated when and if he is prevented from voting unless and until he submits to a search of his voting license.
Count V
57. Article I section 1 protects the right of the people to alter or abolish the government.
58. Generally, free and equal elections are the method by which such alterations can be accomplished in a calm and orderly manner.
59. When Plaintiff was prevented from voting, and from having his votes counted, his rights under this section were infringed, even if he retains other means by which he can alter or abolish.
60. Section 1 also grants a right of liberty, which is infringed here.
61. Section 1 when read in harmony with the rest of the Indiana constitution supports Plaintiff’s claim that the voter ID program is unlawful.
Count VI
63. Article I section 12 protects due course of law, a concept similar but not identical to due process found in the 5th and 14th Amendments, which has been found to protect voting rights.
64. Section 12 also states that the courts shall be open and provide a remedy for wrongs.
65. The voting license program violates due course of law.
66. When Plaintiff was prevented from voting for failure to submit to a search of his voting license, his rights under this section were violated.
67. Currently, issuance of voting licenses is handled by the Bureau of Motor Vehicles (BMV.)
68. When a person is refused a voter license by the BMV, and makes a written application for a hearing and appeal of the denial, the application is denied on the basis that the agency does not provide hearing or appeals for such denials. This has happened to Plaintiff.
69. This failure constitutes a deprivation of due course of law.
70. Plaintiff is injured when those with whom he is in political association with are unable to obtain voting licenses from the BMV, and are left with no recourse.
71. Section 12 requires and authorizes this court to provide a remedy as to the issues raised.
Count VII
72. Article I Section 31, Petition and assembly, was violated when Plaintiff is prevented from voting.
73. Plaintiff’s section 31 rights were violated when he and others similarly situated were prevented or deterred or interfered with in attempting to vote in the 2006 elections and will be violated when he is prevented from voting in the 2008 elections.
Federal Claims
Count VIII
74. Plaintiff's right to vote under the First Amendment was violated when he was prevented from voting for lawfully refusing to consent to a search of his voting license.
75. While the First Amendment is self-enforcing, ala Bivens, 42 USC 1983 et seq. vests this court with concurrent jurisdiction and authority to decide this issue, and other federal claims below.
76. 42 USC 1988 provides for the award of reasonable legal fees and costs.
Count IX
77. The voting license program violates the right of privacy implicit in the First and Fourteenth Amendments of plaintiff and similarly situated voters.
Count X
78. The voting license program violates the right of Plaintiff and other voters to be free from unwarranted unreasonable searches and seizures under the Fourth Amendment.
79. When he was asked to produce ID prior to voting, he asked to see the official's warrant authorizing such a search. No warrant had been applied for.
Count XI
80. Plaintiff's right to due process of law under the Fourteenth Amendment was violated when he was prevented from voting and will be violated again if he is challenged from voting.
Count XII
81. Plaintiff's right to equal protection of the laws was violated by the voter licensing program, which is a poll tax of the sort found to violate equal protection.
Count XIII
82. The right to vote in federal elections is one of the privileges and immunities of federal citizenship protected by the Fourteenth Amendment.
83. Plaintiff's right to vote in a federal election was violated in the 2006 elections.
84. His right to vote in a federal election under the Privileges and Immunities clause will be infringed in the 2008 elections, if not remedied.
85. The voting license program does not exist in isolation, but is part of a broad campaign by the current administration to ratchet down society’s reasonable expectations of privacy and to train citizens to routinely waive their basic civil rights.
86. At a minimum, such licensing greatly enhances the risk of identity theft, raising real and perceived costs of voting.
87. With 900 precincts to staff, the county clerk is unable to screen all election workers to eliminate the possibility that an election worker would be engaged in identify theft.
Count XIV
88. The voter licensing program is intended to provide a partisan advantage to Republicans, by diluting the votes of Democrats, who, statistically will be burdened more than Republicans.
89. While the Republican faction bears no overt racial animosity, they cannot be unaware that these measures designed to screen out some Democratic voters will have a disparate racial impact.
90. This action with foreknowledge of disparate impact states a claim under the 15th Amendment, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Count XV
91. The voting license program is a poll tax prohibited by the Twenty-fourth Amendment, clause 1. The right of citizens of the United States to vote in any primary or other election … for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
92. The constitution prohibits poll taxes, whether for the rich or the poor; an indigency exception is no defense to a poll tax allegation.
93. The voting license program, unlike the 1950s era poll taxes, does not explicitly require a cash payment, and does not burden every voter.
94. But for some voters, the documents required to obtain a voting license come with a price tag. Most voters spend at least $20 to obtain a voting license.
95. Additionally, the program is replete with catch-22s that make it difficult or impossible to obtain the documents.
96. When Plaintiff went to get a replacement for a misplaced driver’s license, he was told that in order to get a driver's license, one needs a birth certificate, but in order to get a birth certificate, one needs a driver's license. For over a year he had no license. He was denied a hearing by the BMV. He eventually hired a lawyer, at significant expense, to obtain a birth certificate so that he could get a new copy of his driver’s license.
97. While Plaintiff already has such a voter's license, he has political association interests to raise this concern, so that voters can cast their votes for the candidates he supports.
Count XVI
98. The voter licensing program violates the Privacy Act of 1974, 5 USC 552a note 7.
99. Many potential voters have a social security number displayed on their driver's license. Not all do; it is optional. Disclosure to the agency of one’s ssn is required to obtain the voter license.
100. Many of these potential voters have no other acceptable government issued identification.
101. At the time they obtained their driver's licenses, they were not warned that the license might be later used or misused as a voting license.
102. The Privacy Act requires that when a state or local agency demands display of one's social security number, that they will be told what use will be made of the information, and told whether disclosure is mandatory, and by what authority.
103. The voter licensing program doesn't do any of this.
104. Marion County and the State of Indiana tend to be lax about compliance with the Privacy Act.
105. Plaintiff can raise the issue because it infringes his right of association, whether or not his own voting license displays a social security number.
106. Prior to the enactment of the current voting license system, Marion County attempted to coerce voters into revealing a social security number as a condition of voting, without complying with the privacy act conditions. In 2004 Plaintiff was told by a precinct worker that he must provide his ssn in order to vote. After he objected, a more senior precinct worker allowed him to vote without disclosing ssn.
107. The current system extends and formalizes this invasion of privacy.
108. 5 USC 552a Note 7. reads as follows:
DISCLOSURE OF SOCIAL SECURITY NUMBER
Section 7 of Pub. L. 93-579 provided that:
(a)(1) It shall be unlawful for any Federal, State or local
government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.
(b) Any Federal, State, or local government agency which
requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.'
Relief sought:
Plaintiff asks that this case be given accelerated handling on the docket, and be heard, at least preliminarily, prior to the election.
For each count above, Plaintiff seeks damages as awarded by a Jury, including compensatory, consequential and actual damages and punitive damages if a jury finds any plaintiff acted willfully in disregard for the rights of plaintiff and the public.
He seeks a temporary restraining order so that the election can take place undisturbed.
He seeks temporary and permanent injunctive relief.
He seeks a declaratory judgment resolving each of the questions of law presented above.
He seeks costs and fees, including reasonable attorney's fees and expert witness fees.
He seeks appointment of counsel.
He asks for all other relief as is in the interests of justice.
Respectfully Submitted,

Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
.317.917.8002.
gtbear@gmail.com
-----------------------
I aver that the facts in the complaint are true to the best of my knowledge.
___________________

I hereby certify that on or by April ___, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.

attn: Ian Stewart , James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

attn: Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204

Robbin Stewart.
____________________

IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA

Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
)
Defendants. )

MOTION FOR A TRO AND PRELIMINARY INJUNCTION

Comes now plaintiff and for his motion for a preliminary restraining order and temporary injunction states as follows.
The complaint seeks to permanently enjoin the requirement that registered voters produce a government-issued photo ID in order to cast their votes.
Plaintiff will be irreparably harmed if his vote is not counted. He was irreparably harmed when his provisional vote was not counted in the 2006 primary and general elections. Plaintiff will be irreparably harmed if the votes of others are not counted in free and equal elections.
Plaintiff has some likelihood of success on the merits. The issue of whether Indiana’s voter ID program violates the First Amendment or the Fourteenth Amendment is currently awaiting decision by the United States Supreme Court, case 07-25. A divided panel of the 7th circuit upheld the program, erroneously applying the lowest Burdick v Takushi standard of review. A divided 7th circuit declined en banc review. Plaintiff Stewart’s amicus brief is one of twenty in support of the plaintiffs in the federal case. http://moritzlaw.osu.edu/electionlaw/litigation/indy-dems.php.
The Supreme Court has a recent record of reversing 75% of the time in cases from circuit courts.
There is some indication from recent cases that the Supreme Court may decline to address the merits because the case was a pre-enforcement facial challenge. See Purcell, Wisconsin Right to Life v. FEC. This case, in contrast, is an as-applied challenge by a person with standing whose votes were not counted in 2006, who was deterred from trying to vote in 2007 because his votes aren’t being counted, and who is threatened with again not having his votes counted in 2008.
To obtain a TRO or preliminary injunction, a plaintiff need not show a certainty of success on the merits, or even a preponderance of evidence. It is enough to raise serious questions going to the merits. The purpose of a preliminary injunction is to prevent irreparable harm while the case proceeds. The purpose of a TRO is to prevent irreparable harm until a hearing is held on the preliminary injunction.
In addition to the First and Fourteenth Amendment claims which are at issue in both this and the federal suit, plaintiff raises other federal claims and novel state claims which have not been litigated in Indiana courts. He has some likelihood of success as to each claim. In order to not eventually prevail on the merits, he would have to lose on each and every claim.
Denying plaintiff the vote, and denying plaintiff a free and equal election, severely burdens his core free expression rights under both the state and federal constitution.
In its response brief to the United States Supreme Court, Marion County admits that the voter ID program doesn’t accomplish much of anything, doesn’t prevent in person ballot fraud, and confuses or deters voters from participating in elections. http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefofrespondentMarionCountyElectionBoard12-4-07.pdf .
The public interest is in holding free and equal elections, and in preventing threats to the integrity of the elections process. There may or may not be an actual problem of in person fraudulent voting in Marion County. The legislature may or may not have been actually motivated to address this possible problem, rather than just motivated by a desire to suppress voting. But the cure is worse than the disease. The harm done by preventing plaintiff and others from having their votes counted outweighs whatever benefit is produced by requiring fraudulent voters, if any, to do so by absentee ballots instead of in person.
Where, as here, irreparable harm is threatened, there has been some showing of likelihood on the merits, and the burden on the plaintiff outweighs the burden on defendants, and the public interest supports injunctive relief, a TRO and preliminary injunction should issue.
I will be working out of state from April 20 to 26th, and am available for a hearing anytime after that. The best way to reach me is via gtbear@gmail.com.
Respectfully Submitted,

Robbin Stewart.
P.O.Box 29164
Cumberland IN 46229-0164
317.917.8002.
gtbear@gmail.com

I hereby certify that on or by April ___, 2008, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following.

attn: Ian Stewart , James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

attn: Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204

Robbin Stewart.
____________________

IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA

Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )

ORDER

Defendants Marion County and Marion County Clerk Beth White are temporarily restrained from failing to count provisional ballots for the reason that no photo ID is provided, until further order of this court.
Nothing in this order prevents defendants from obtaining a search warrant to request photo ID before counting provisional votes, in cases where there is actual probable cause to suspect voter fraud.
A hearing is set for __________________ .

_________________________________ Date: ________________

distribution:
Corporation Counsel
Attorney General
Robbin Stewart

IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA

Robbin Stewart )
Plaintiff, )
)
)
vs. ) Cause No. _________
)
)
Marion County, Beth White, )
Jane Doe 1-3 )
Defendants. )

ORDER

Defendants Marion County and Marion County Clerk Beth White are temporarily enjoined from failing to count provisional ballots in the 2008 primary and school board election for the reason that no photo ID is provided, pending final judgment in this case or further order of the court.
Nothing in this order prevents defendants from obtaining a search warrant to request photo ID before counting provisional votes, in cases where there is actual probable cause to suspect voter fraud.

_________________________________ Date: ______________
distribution:
Corporation Counsel
Attorney General
Robbin Stewart

2007-11-16T11:52:00.000-08:00

Oral argument in Crawford will be January 9th.

2007-11-13T22:41:00.000-08:00

Amicus briefs in Crawford, the Indiana voter ID case, are here at the Brennan Center.
The one that Joell and I are signed onto is the Cyber Privacy Project one.
The count so far is 20 on our side, 1 neutral, zero for the other side. But I think the other side gets a later deadline, or maybe the Brennan center isn't listing them.

2007-10-01T08:18:00.000-07:00

crossposted from ballots.blogspot.com
Saturday, September 29, 2007
voter id thoughts

The case before the US Supreme Court about the Indiana voter license rules raises a narrow issue and a broader one. The narrow issue is whether the First Amendment allows duly registered voters to vote without having to display a government-issued voting license. The broader issue is what standard courts should use in deciding such issues.

I have a dog in this fight, several even. I am one of the voters in Indiana whose vote hasn't been counted, because I don't choose to submit to a search of my voting license without a warrant supported by some degree of probable cause. Suspicionless warrantless searches are disfavored under the state and federal constitution, and it burdens, perhaps severely, my voting rights to make me pass through a roadblock to get to the ballot box. In addition to being an affected registered voter, I've been a lawyer for a guy whose vote wasn't counted. http://joellpalmer.blogspot.com.
That suit was recently dismissed as being overly argumentative, but it can be refiled because the same defendants plan to do the same thing to my plaintiff in November.

More generally, I've had a long term interest in the standard the courts use in deciding voting rights cases. In 1993, a court in Missouri said the standard is strict scrutiny, in a case I brought when then-Secretary of State Roy Blunt illegally kept my friend Laura from running for sheriff. Missouri ex rel. Coker-Garcia v Blunt.
The next year, I wrote an article, unpublished, about the standardlessness of the standards set out by the Supreme Court in the landmark trio of Anderson v Celebrezze, Norman v Reed, and Burdick v Takushi. http://umkcthesis.blogspot.com . More recently, Chris E_ [citation needed] has written a useful article on the Takushi/Norman framework. In my article, I went on to suggest that, given the indeterminacy under the federal standards, we should look to state constitutions as a source of voting rights, particularly the "free and equal elections" clause found in most state constitutions. Davis Schultz has recently written an article [citation needed] which also discusses the Takushi/Norman indeterminacy problem, in relation to the Indiana case. He also concludes that plaintiffs can make their cases stronger by citing to state constitutions. Not only can it provide a second bite of the apple but the two approaches are mutually supportive. A state interest is not compelling if it is an interest that is banned by the state constitution. A burden is not minimal if it infringes rights that are express or fundamental under the state constitution. Conversely, many courts will interpret their state constitutions closely lonmg the lines of what the US Supreme Court holds, even when the text and history is different.

The ACLU for the plaintiffs is relying on a slender reed, preserving only the First Amendment claim, and on a rather bare-bones set of facts, since this was a pre-enforcement challenge. See Purcell.
That might not bode well for the Indiana voters, but it sets this case up as a possible landmark. The court may finally have to tell us how to tell when a burden is severe, triggering strict scrutiny and its kiss of death. Currently, the standard is one of the personal preferences of the particular judges, and it turns out that Republican judges see the world a bit differently than the rest of us do.
Alternatively, the court could just decide that Posner got it wrong, without changing the framework. Possibly, the court could make this another Twin Cities/Jenness/Munro cases, endorsing an anything-goes lax review standard. I do not expect that this will be a unanimous case. If the court can find consensus on any issue, my guess is that would be to remand with instructions to use Anderson rather than Takushi. But that's an unlikely outcome. A 5-4 or 6-3 split is more likley. I am too close to the issue to objectively assess the odds - I think they favor my side, but we won't know for awhile.

But what if the Court upholds Posner? Does that end the issue? No. We have a recent example of how these disputes can play out. In McConnell v FEC, Jim Bopp lost a round. Bopp is tenatious.. ten... determined, effective, funded, and not in a hurry. Having lost his pre-enforcement facial challenge, he went on to bring one as-applied challenge after another, until three years later the Court effectively reversed its earlier decision. If ACLU v Rokita loses, there are a series of as-applied challenges that can be brought and won. The grandmother who has to buy a birth certificate for $10 to get a voting license can bring a 24th Amendment poll tax claim. Her neighbor, who is told that without a voting license she can't get a birth certificate, and vice versa, and who is denied a hearing by the BMV, can bring a procedural due process claim. Each voter who is searched for ID can bring a bivens claim, or a section 1983 action, or file a notice of tort claims under the state constitution,and bring the action in small claims if she can't find a lawyer.
Meanwhile, in 2006, when these statutes were passed by the GOP dominated Indiana house, the voters got riled and threw the bastards out, putting in a new and Democratic set of bastards. The new legislature hasn't yet done anything to repeal the act,and the new Democratic county clerk is enforcing the same unconstitutional policies she ran against, but it continues to be a hot campaign topic.
Funding these suits makes sense, just from the campaigns' PR budgets, whether or not they win, and can keep the GOP on the defensive until it agrees to more reasonable anti-fraud efforts, such as rewards and prosecutorial staff for those who actually do engage in in person voting fraud.

I used to work at the mall, where there's always a concern about shoplifting. A general rule there is that for ever dollar of stuff swiped by a shoplifter, eight dollars of stuff falls off a truck or walks out the back door, due to theft by employees. It's the same when it comes to voting fraud. The threat is not from the guy who tries to vote in the name of his deceased grandfather. It's the guy who counts the votes, or the guy who makes the rules about whose votes get to be counted.

Well, this turned into a rant. I'll look at it tomorrow to see if there's stuff I can cut. But this has been in my head for a few days so I wanted to get it on paper.

# posted by gt @ 5:53 PM

2007-10-01T07:55:00.000-07:00

That's significant because the high court typically overturns three rulings for every one it upholds. article
This factoid suggests that Posner is more likely to be overruled than sustained.

2007-09-30T20:48:00.000-07:00

- the U S Supreme Court has accepted cert in the Rokita case. I'll try to find someone to work with me on doing an amicus in the case - probably won't happen but might.
- met last night with client joell palmer, discussed whether or not to refile the case, didn't reach any firm conclusions.

2007-09-14T07:59:00.001-07:00

The case has been involuntarily dismissed as of 8/10/07. No appeal was filed.
When I filed this, based on representations by Howard Dean and others, I expected that the Democrats or somebody would provide counsel or funds. That didn't happen, and I didn't have the resources to do an adequate job myself. The issues are still live, and I have other potential plaintiffs, so if counsel could be found, a similar case could be refiled. gtbear@gmail.com.

2007-07-05T12:18:00.000-07:00

The Democratic Party v Rokita/Crawford v Marion County case is before the Supreme Court. Nearly identical cert petitions here and here.
http://electionlawblog.org/archives/crawford-cert.pdf
http://www.aclu-in.org/upload/newsletters/certpetition-FINAL.pdf

2007-03-02T17:03:00.000-08:00

My po box was full tonight with new filings by opposing counsel, but I havetn gone through them yet. I expect they are answers or further motions to dismiss.
Meanwhile, the Texas GOP is embracing voter ID. Article.

2007-02-27T14:27:00.000-08:00

this is the defendant's motion for summary judgment.
I would welcome feedback, I have to file a response in a couple weeks.

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 1 of 29

IN THE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROBBIN STEWART, )
Plaintiff, )
v.
CASE NUMBER: 1:08-cv-586-LJM-TAB
MARION COUNTY, et al. )
Defendants, )

STATE OF INDIANA, )
Intervenor. )

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I. Introduction
Plaintiff Robbin Stewart seeks relief against the statutory requirement
that a person appearing at the polls to vote on election day present
government-issued photographic identification. He has a driver’s license but
objects to presenting it in order to cast his vote.
The statute requiring identification was enacted in 2005. P.L. 2005-109.
Plaintiff sought and this court denied a preliminary injunction prior to
the 2008 fall general election.
In its order, the court summarized Indiana’s
voter identification law as follows:

In general terms, the Voter ID Law requires citizens voting in-
person at precinct polling places on election day to present election
officials with valid photo identification issued by the United States or the
State of Indiana. Ind. Code § 3-11-8-25.1. The photo identification must
contain the following information and meet the following conditions:

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 2 of 29

(1) A photograph of the individual to whom the “proof of
identification” was issued;
(2) The name of the individual to whom the document was issued,
which “conforms to the name in the individual’s voter registration
record;”
(3) An expiration date;
(4) The identification must be current or have expired after the date
of the most recent general election; and
(5) The “proof of identification” must have been “issued by the
United States or the [S]tate of Indiana.”
Ind. Code § 3-5-2-40.5.

An individual denied the right to vote due to lack of photographic
identification can sign an affidavit attesting to the citizen’s right to vote
in that precinct, which gives the individual the right to cast a provisional
ballot. Ind. Code § 3-11-8-25.1(e).

Plaintiff claims that his vote was denied in 2006 and that during
the primary held in May 2008, he tried to vote but was refused the
opportunity without valid photographic identification. Plaintiff proceeded
to fill out an affidavit and submitted a provisional ballot. According to
Plaintiff, that provisional ballot has not been counted. Plaintiff claims
many other voters’ provisional ballots have not been counted for the
same reason. Additionally, Plaintiff claims that he will not be able to vote
in the upcoming general election due to the Voter ID Law. Plaintiff
currently has a valid, Indiana-issued photographic identification.

Order on plaintiff’s motion for temporary injunctive relief, docket no. 34, pp. 1

2 (footnote omitted). As the court observed in a footnote, the law was
discussed at length in Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775
(S.D. Ind. 2006).
II. Claims in the Petition
Plaintiff claims that the statute violates Article II, §§ 1 and 2 of the
Indiana Constitution by adding qualifications to vote and making elections
other than free and equal, the 24th Amendment to the federal Constitution
because the identification requirement is a poll tax, the 1st Amendment
2

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 3 of 29

because the right to petition government is impinged, the 4th Amendment and
also Article I, § 11 of the Indiana Constitution because the requirement
constitutes an unlawful search and the 14th Amendment because equal
protection and both substantive and procedural due process are denied.
The plaintiff seeks declaratory relief, an injunction against the Voter ID
Law and damages.

Defendants (which includes the intervenor State of Indiana for purposes
of this motion) are entitled to summary judgment in their favor because the law
is constitutional in all things.1 All of plaintiff’s federal claims have been
resolved against him in Crawford v. Marion County Election Bd., 128 S.Ct. 1610
(2008), Crawford v. Marion County Election Bd., 472 F.3d 949, 951 (7th Cir.
2007), and Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D. Ind.
2006). His state law claims do not withstand scrutiny, and even if they did
they would not entitle him to damages. Therefore, summary judgment should
be entered in favor of all defendants.

1 The Indiana Court of Appeals recently held the ID requirement
unconstitutional under the state constitution. League of Women Voters of
Indiana, Inc. v. Rokita, 915 N.E.2d 151 (Ind. Ct. App. 1009). However, the Indiana
Supreme Court has granted transfer, which vacates the lower court’s opinion. Ind.
Appellate Rule 58(A). That decision was based on the Indiana constitution, Article I,
Section 23, a claim not made by the plaintiff in his complaint. He tried to add a claim
under that provision but was denied leave to amend after so much had happened in the
case.

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 4 of 29

III. Designation of Evidence Relied Upon
The defendants designate and rely upon the complaint and supplement
and upon the plaintiff’s deposition taken January 12, 2009 (hereafter “Dep.”).
The deposition is filed with this memorandum.

IV. Statement of Material Facts Not in Dispute
1. Plaintiff was not allowed to vote in the 2006 primary and general
elections because he refused to display acceptable identification. Dep., p. 10 l.
19 – p. 11 l. 7; p. 16, l. 24 – p. 17, l. 12.
2. Plaintiff had an Indiana driver’s license in his possession at that
time. Dep., p. 15, ll. 17-21.
3. Plaintiff has a driver’s license. Dep., p. 8, ll. 11-17; p. 28, ll. 5-9.
4. Plaintiff’s driver’s license does not have his social security number
on it. Dep., p. 8, ll. 16-19.
5. Plaintiff owns more than one vehicle. Dep. p. 8, ll. 1-6.
6. Plaintiff drives to his post office box in Cumberland when he does
not ride the bus. Dep., p. 6, ll. 15-17; p. 7, ll. 8-11.
7. Plaintiff was not allowed to vote in the 2008 elections because he
refused to display acceptable identification. Dep., p. 18, ll. 15-24; p. 19, ll. 1113,
p. 21, ll. 6-17; p. 48, l. 5 – p. 49, l. 5.
8. Plaintiff’s refusal to display acceptable identification in order to
vote is not based on his religion. Dep., p. 35, ll. 9-14.
9. Plaintiff will decline to show acceptable identification to be allowed
to vote for the rest of his life. Dep., p. 50, ll. 10-12.

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 5 of 29

V. Legal Standard under Rule 56.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is proper only if a moving party demonstrates that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of
law. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986); Anderson v.
Liberty Lobby Inc., 477 U.S. 242 (1986); Certain Underwriters of Lloyd's v.
General Accident Ins. Co. of America, 909 F.2d 228, 231 (7th Cir. 1990); Walter

v. Fiorenzo, 840 F.2d 427 (7th Cir. 1988); Roman v. U.S. Postal Services, 821
F.2d 382 (7th Cir. 1987). “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247-48. The substantive law underlying
the claim will identify which facts are material, and “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id. at 248.
The party opposing a properly supported motion for summary judgment
cannot rely upon the mere allegation or denials of his pleadings. If he would
bear the burden at trial on the matter that forms the basis of the motion, the
opposing party must set forth specific facts showing that there is a genuine
issue for trial. Rule 56(e), Fed.R.Civ.P.; Lujan v. National Wildlife Federation,
497 U.S. 871, 874 (1990). “[T]here is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that
party. . . . If the evidence is merely colorable, . . . or is not significantly

5

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 6 of 29

probative, . . . summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted); see Harbor House Condominium Ass'n v.
Massachusetts Bay Ins. Co., 915 F.2d 316, 320 (7th Cir. 1990); Hines v. British
Steel Corp., 907 F.2d 726, 728 (7th Cir. 1990). If the nonmoving party fails to
establish the existence of an essential element of its case on which it bears the
burden of proof at trial, summary judgment is appropriate. “In such a
situation, there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S.
at 322-23; see Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256
(7th Cir. 1990); Tatalovich v. City of Superior, 904 F.2d 1135, 1142 (7th Cir.
1990). A nonmoving party who fails to establish an essential element of her
case may not survive summary judgment because all other facts are
necessarily immaterial. Celotex, 477 U.S. at 322-23.

VI. Defendants are Entitled to Judgment as a Matter of Law
A. Lack of standing
Plaintiff lists multiple theories of recovery, which will be addressed
individually. But there is first an issue of standing. As defendants argued in
response to the request for a preliminary injunction, and as the court observed
in denying temporary relief, plaintiff makes grandiose complaints that have
nothing to do with the facts of his case. For example, he complains that people
should not have to display their social security numbers in order to vote, but
the undisputed facts, above, show that there is no social security number

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 7 of 29

showing on plaintiff's driver’s license. His complaints about having to get a
driver’s license at all are equally hollow. He has a driver’s license and uses it to
drive and owns multiple vehicles. Therefore, he has no standing to make
complaints about getting a driver’s license in order to be able to vote or about
having to display his social security number at the polls.

This is not a class action, nor could it be. Although the plaintiff has
been an attorney in the past, he is not currently an attorney in Indiana,
according to the online Roll of Attorneys. And he’s never asked for class action
status in any event.

This plaintiff lacks standing to complain about the request for or display
of social security numbers to vote.
At the core of the standing doctrine is the requirement
that a plaintiff "allege personal injury fairly traceable to
the defendant's allegedly unlawful conduct and likely to
be redressed by the requested relief. Allen v. Wright,
468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d
556 (1984), citing Valley Forge Christian College v.
Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).
County of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991). No claim of
personal injury to the plaintiff is made in this case as it relates to social
security numbers. Because the plaintiff’s social security number is not on his
driver’s license, that issue is not before this court.

Standing is not merely a rule of convenience, it is a constitutional
requirement for establishing the jurisdiction of this court. There is no standing

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 8 of 29

as to claims relating to display of a social security number. Therefore, that
much of the complaint should be dismissed.

B. The Voter ID Law Does Not Violate
Article II the Indiana Constitution
Article 2, § 2 of the Indiana Constitution provides that every “citizen of
the United States who is at least eighteen years of age and who has been a
resident of a precinct thirty days immediately preceding such election, shall be
entitled to vote in that precinct[.]” Plaintiff claims the State’s Voter ID Law
violates this provision by creating an additional qualification to vote. The Voter
ID Law is a regulation of election procedures designed to protect fair elections,
not an alteration of voter qualifications, and Indiana Supreme Court doctrine
forecloses this challenge. Therefore, defendants are entitled to judgment in
their favor as a matter of law.

1. The Voter ID Law advances the Indiana Constitution’s
guarantee of “free and equal” elections
The General Assembly’s power to regulate elections and voting is
grounded in the Indiana Constitution and is implicit in other accepted
regulations. The power of the General Assembly to regulate election
procedures arises not only from its general police power, but also from Article
2, § 1 of the Constitution, which provides that “All elections shall be free and
equal,” and Article 2, § 14, which provides that “the General Assembly . . . shall
provide for the registration of all persons entitled to vote.”

It is said elections are free when the voters are subject to no intimidation
or improper influence, and when every voter is allowed to cast his ballot
as his own judgment and conscience dictate. That they are equal when
the vote of every elector is equal in its influence upon the result to the

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 9 of 29

vote of every other elector; when each ballot is as effective as every other
ballot.

Blue v. State ex rel. Brown, 206 Ind. 98, 188 N.E. 583, 589 (1934) (overruled on
other grounds).

Article II § 1 notwithstanding, the Indiana General Assembly has wide
latitude to adopt reasonable voting regulations. Indeed, “[i]t 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. The Indiana Supreme Court has held that these
clauses serve as grants of power to the General Assembly to promulgate
election laws to regulate and uphold the legitimacy of elections in the state.
Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14, 18 (1922). Inherent in the
requirement of holding “free and equal” elections lies the power of the state to
protect the rights of citizens to a fair and reliable electoral system in which
their individual votes are not diluted by the fraudulently cast votes of others.
“When the ballot box becomes the receptacle of fraudulent votes, the freedom
and equality of elections are destroyed.” Id.

The Voter ID Law directly advances the constitutional guarantee of “free
and equal” elections articulated in Article 2, § 1 of the Indiana Constitution.
By preventing voter fraud, the identification requirement ensures compliance
with the Article 2, § 1 mandate that each vote equally influence the result of an
election. Each fraudulently cast vote dilutes the influence that each

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 10 of 29

legitimately cast vote has on the election’s outcome. “[T]he right of suffrage can
be denied by a debasement or dilution of the weight of a citizen’s vote just as
effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds
v. Sims, 377 U.S. 533, 555 (1964). The Voter ID Law prevents fraudulently
cast votes and thereby protects each citizen’s individual rights under Article 2,
§ 1 of the Indiana Constitution.
2. The Voter ID Law is not a voter “qualification”
The Voter ID Law is not an “additional qualification” for voting as plaintiff
claims. It is merely a method of verifying the identity of a registered voter—the
most fundamental, pre-existing voter-eligibility criterion. The framers of the
United States Constitution themselves understood a distinction between laws
establishing voter qualifications and those that merely regulate election
procedure. Alexander Hamilton, discussing Article 1, Section 4 of the
Constitution (known as the Elections Clause), distinguished between “[t]he
qualifications of the persons who may choose,” which are “defined and fixed in
the Constitution, and are unalterable by the legislature,” and authority over
“the manner of elections,” where States have primacy. The Federalist No. 60,
at 394 (Alexander Hamilton) (Modern Library Coll. ed. 1937).

In the same way, the United States Supreme Court has distinguished
voter qualification laws, which are suspect and often subjected to strict
scrutiny, from fraud-prevention procedures, which are permissible and
subjected to much lighter scrutiny. See, e.g., Rosario v. Rockefeller, 410 U.S.
752, 757 (1973) (upholding advance voter registration requirement); Marston v.

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 11 of 29

Lewis, 410 U.S. 679, 680 (1973) (upholding Arizona’s 50-day voter registration
and residency requirements and stating that “[s]tates have valid and sufficient
interests in providing for some period of time—prior to an election—in order to
prepare adequate voter records and protect [their] electoral processes from
possible frauds”). In Rosario, the Court described qualification laws as those
laws that “totally denied the electoral franchise to a particular class of
residents, and there was no way in which the members of that class could have
made themselves eligible to vote.” Rosario, 410 U.S. at 757. But with
procedural rules, responsibility lies with voters: “[I]f their plight can be
characterized as disenfranchisement at all, it was not caused by [the law], but
by their own failure to take timely steps to effect their enrollment.” Id. at 758.
The Voter ID Law falls squarely into the latter category.

The two opinions upholding the Voter ID Law in Crawford v. Marion
County Election Board, 128 S.Ct. 1610 (2008), each embraced the notion that
the Voter ID Law is a procedural election regulation and not a substantive voter
qualification. In finding the Voter ID Law valid, Justice Stevens (writing for
himself, the Chief Justice, and Justice Kennedy) and Justice Scalia (writing for
himself and Justices Thomas and Alito) both describe the Voter ID Law as a
“neutral” or “generally applicable nondiscriminatory regulation of voting
procedure.” Crawford, 128 S.Ct. at 1623, 1625. Not even Justices Souter and
Breyer, who dissented in Crawford, could bring themselves to subject the Voter
ID to strict scrutiny—the standard generally applicable to voter qualification
laws. See id. at 1628, 1643.
11
Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 12 of 29

The Voter ID Law is no more an “additional qualification” than requiring
voters to register, to vote in person, or to identify themselves by any method at
all. Surely all would agree that some identification requirement at the polls is
necessary, and no principled distinction separates the Voter ID Law from the
identification requirements—including announcing one’s name and providing
one’s signature on the poll book—that existed prior to its enactment.
Nonetheless, under the plaintiff’s theory, these formerly utilized identification
requirements should be viewed as impermissible “qualifications” as well.
Taking the plaintiff’s argument to its logical conclusion, therefore, a voter
should be able to walk into a polling place, request a ballot and vote without
having to identify himself in any way.

Indeed, if the Voter ID Law—or any identification requirement, for that
matter—is a “qualification,” then any other regulation that may prevent an
eligible voter from casting a ballot and having it counted could also be deemed
an impermissible “qualification” under the League’s theory. For example,
Indiana Code § 3-11-8-11 provides that voters must be in the chute when the
polls close in order to be able to vote. However, while Article 2, § 14 specifies
the day on which elections must be held, it does not limit the hours that polls
must be open. Accordingly, if the line to vote extends beyond the chute at the
time the polls close on election day, an eligible voter standing in that line may
be denied the right to vote by operation of a procedural regulation not
specifically authorized by the Indiana Constitution. Yet surely no one would
question the validity of regulating the hours that polls are open—or even the
12
Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 13 of 29

validity of requiring voters to cast their ballots in-person at the polls (rather
than, say, by mail), which also is not specifically authorized by the State
Constitution.

Other procedural regulations that could potentially prevent an eligible
voter from casting a ballot—and that would be constitutionally suspect under
the plaintiff’s theory of this case—include limits on the amount of time a voter
may spend in the polling booth (Ind. Code §§ 3-11-11-10.5, 3-11-13-32.5, 311-
14-26 to -28) and the prohibition against divulging one’s ballot after
marking it but before casting it (Ind. Code §§ 3-11-11-16, 3-11-13-32.8, 3-1114-
29). Surely, however, these long-accepted, reasonable regulations, which
exist to facilitate the administration of free and equal elections, cannot be
considered unlawful simply because they are not specifically authorized by
Section 2 or any other constitutional provision. Just as these laws place no
additional or improper “qualifications” on voters, neither does the Voter ID Law.
3.
Courts have already decided that regulations of voting procedure
do not violate Article 2, § 2 of the Indiana Constitution.
The Supreme Court of Indiana, the United States District Court for the
Southern District of Indiana, and the United States Court of Appeals for the
Seventh Circuit have already rejected the notion that election regulations are
unconstitutional if not specifically enumerated in Article 2, § 2 of the Indiana
Constitution. See Simmons, 136 N.E. at 18 (holding that Indiana voter
registration requirements do not violate Article 2, § 2); Blue, 188 N.E. at 585-86
(holding that lack of registration provision for absentee or sick voters does not
constitute a violation of Article 2, § 2); Ind. Democratic Party v. Rokita, 458 F.
13
Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 14 of 29

Supp.2d 775, 843 (S.D. Ind. 2006) (holding that the Indiana Voter ID Law does
not violate Article 2, § 2 of the Indiana Constitution), aff’d, 472 F.3d 949 (7th
Cir. 2007).
The Indiana Supreme Court specifically rejected in Simmons the
plaintiff’s theory in this case. There, the Court upheld the voter registration
requirement against a challenge under Article 2, § 2, holding that Article 2, §
14 and Article 2, § 2 were not in conflict and rejecting the argument that § 2
provided an exhaustive list of possible impediments to voting. Simmons, 136
N.E. at 17-18. In so doing, the Court set a very high standard for challenges to
voting regulations brought on State Constitution grounds: “The legislature has
the power to determine what regulations shall be complied with by a qualified
voter in order that his ballot may be counted, so long as what it requires is not
so grossly unreasonable that compliance therewith is practically impossible.”
Id. at 18. In other words, while the legislature may not place additional
qualifications on voting, it may regulate the way in which the existing
qualifications set forth by Article 2, § 2 are verified and administered. The
enactment of the Voter ID law is an entirely appropriate and constitutionally
permissible exercise of that discretion. It is well within the power of the
General Assembly to require that voters prove their identities before being
permitted to vote.
Indeed, the Voter ID Law is precisely the sort of regulation contemplated
by Simmons and is certainly neither “grossly unreasonable” nor “practically
impossible” to comply with. Today, government-issued photo identification is
14
Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 15 of 29

universally accepted as proof of identification. Photo identification is necessary
in order to drive an automobile, board an airplane, enter a federal courthouse,
rent a car, cash a check, open a financial account or engage in any number of
other common daily transactions. In short, photo identification is necessary to
function in society on a daily basis. See Crawford v. Marion County Election
Bd., 472 F.3d 949, 951 (7th Cir. 2007) (“[I]t is exceedingly difficult to maneuver
in today’s America without a photo ID.”). Among all the possible ways to
identify individuals, government-issued photo identification has come to
embody the best balance of cost, prevalence and integrity.

Accordingly, rather than creating an entirely new system of identification,
the legislature, through the Voter ID Law, sought to improve fraud prevention
by relying on a system already in place—standard, government-issued photo
identification. The vast majority of voters, including the plaintiff, already
possess such identification and thus comply with the Voter ID Law without
even trying. See id. at 950 (“The new law’s requirement . . . is no problem for
those who have [a driver’s license or a passport], as most people do”); see also
Indiana Democratic Party, F.Supp.2d at 807. Those who do not already possess
the necessary identification may obtain a free non-license photo identification
card from the BMV. Ind. Code § 9-24-16-10. Plaintiff chose, for reasons that
can have nothing to do with voting, to get a driver’s license. When he was
without a license, he could have gotten a free identification card upon proof of
who he is. He was interested, it appears, in driving, and decided to get a
driver’s license that also is acceptable as identification at the polls.
15
Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 16 of 29

Even then, a voter who is unable to obtain the required identification
prior to election day or simply forgets to bring his photo ID to the polling place
may sign an affidavit attesting to his right to vote in that precinct, sign the poll
book, and cast a provisional ballot. Ind. Code § 3-11-8-25.1(d). Plaintiff says
he has done so in the past. A voter who casts a provisional ballot may appear
before the circuit court clerk or county election board by noon ten days
following the election and prove the voter’s identity. Ind. Code § 3-11.7-5-1. If
by that time the voter provides acceptable photo identification and executes an
affidavit that the voter is the same individual who cast the provisional ballot,
then the voter’s provisional ballot will be opened, processed, and counted so
long as there are no other non-identification challenges. Ind. Code §§ 3-11.7-51;
3-11.7-5-2.5. Voters may also validate their provisional ballots by executing
an affidavit that the person is the same person who cast the provisional ballot
and either (1) the person is indigent and is “unable to obtain proof of
identification without payment of a fee;” or (2) has a religious objection to being
photographed. Ind. Code §§ 3-11.7-5-1; 3-11.7-5-2.5(c).

Thus, the Voter ID Law simply requires voters to produce a form of
identification that (1) most of them, including this plaintiff, already possess
and (2) is easily obtainable by those who do not. Even those voters who cannot
comply with the law on the day of the election are given the opportunity to cast
a provisional ballot, which they are then given a generous amount of time to
validate. Accordingly, the Voter ID law is in no way “grossly unreasonable” and
compliance with its requirements is certainly not “practically impossible.” It is
16
Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 17 of 29

instead a valid and reasonable means of enforcing the requirements for voting
set forth by Article 2, § 2.

C. The Voter ID Law is not a
Poll Tax Prohibited by the 24th Amendment
The claim that the Voter ID Law is an invalid poll tax was soundly and
thoroughly rejected in Crawford, supra. The Court held that the Voter ID Law
is not a tax and passes constitutional review because a free voter identification
card is available. The Seventh Circuit was even more clear and concise on this
point: “The Indiana law is not like a poll tax.” Crawford, 472 F.3d at 952. The
Voter ID Law is no more a poll tax than is the cost of getting to the polls or to
the Clerk’s Office to vote absentee.

D. The Voter ID Law does not Violate the First
Amendment or Article I, § 11 of the Indiana Constitution
Plaintiff claims that the Voter ID Law violates the First Amendment. The
contention that there is a First Amendment violation was flatly rejected by
Judge Barker. Indiana Democratic Party v. Rokita, 458 F.Supp.2d 775, 820-21
(S.D.Ind. 2006). The Seventh Circuit stated that as to the matters it did not
address directly, “Regarding the plaintiffs' other arguments, we have nothing to
add to the discussion by the district judge.” 472 F.3d at 954. Therefore, that
court endorsed the conclusion by Judge Barker that there is no First
Amendment infirmity in the voter ID Law. The same logic that shows there is
no First Amendment violation shows that there is no violation under Article 1,
Section 9 of the Indiana Constitution, which addresses free thought, speech

17

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 18 of 29

and opinion. No valid claim is present and the defendants should be granted
summary judgment..

E.
The Voter ID Law does not Violate the Fourth Amendment
or Article I, § 11 of the Indiana Constitution
Plaintiff claims that he cannot be asked for identification in the absence
of probable cause that would support a warrant. That is incorrect. A routine
request for identification is not a “seizure” for Fourth Amendment purposes.
See United States v. Rodriguez, 69 F.3d 136, 141-42 (7th Cir. 1995).

The plaintiff is not objecting to having to provide his name or his
address, both common requests when presenting to vote. Both are necessary
to make sure that the person in the polling place is not stealing someone else’s
vote. In the usual polling place, both name and address are presented multiple
times. Plaintiff’s complaint is only about having to produce a government-
issued photo identification, not about having to identify himself. Once one
concedes that the plaintiff can be required to identify himself in order to vote,
the argument is about the form of identification and not the requirement of
identification itself. The need for identification of some form is conceded,
compelling and reasonable. There is no “seizure” and there is no “search;”
there is merely a reasonable requirement of proving that you are eligible to vote
and that you are the one who is casting or has cast the ballot. The production
of a driver’s license or free voter identification card is merely the means to the
legitimate end and is not a seizure or a search.

There is no seizure or search and therefore no Fourth Amendment issue
or issue under the Indiana Constitution. The requirement of identifying oneself

18

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 19 of 29

is reasonable, so the statute passes scrutiny under the Indiana Constitution.
There is no likelihood of success and the preliminary injunction should be
denied.

F. The Voter ID Law does not Violate the Fourteenth Amendment
Plaintiff next claims that the Voter ID Law violates due process and equal
protection. Again, he is incorrect.

The due process claim focuses on the facts that some potential voters
allegedly have trouble getting a voter ID card issued on the first trip to the BMV
and his own journey to get a replacement identification. Those points are all
moot as to the plaintiff because he has a driver’s license that he can use to be
identified at the polls. And plaintiff lacks standing to raise claims for others.

The same is true about the claim that some older driver’s licenses still
have social security numbers on them—there is no claim that the plaintiff’s
recently issued license has a social security number on it and he confirms in
his deposition that it does not.

The equal protection claim, found in paragraph 81 of the complaint, is
that the requirement constitutes “a poll tax of the sort found to violate equal
protection.” That is simply wrong, for the reasons stated above. The Voter ID
Law is not a poll tax at all, let alone a poll tax that violates the equal protection
clause. As the Supreme Court held in Crawford, the Indiana Voter ID Law is
an even-handed rule protecting the right to vote and providing for orderly
administration of elections and accurate recordkeeping. As the Seventh Circuit
also held in Crawford, the Indiana law is not like a poll tax. Because it is

19

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 20 of 29

“even-handed” and “not like a poll tax,” the law does not discriminate and there
is no violation of equal protection.

G. Article 1, Section 1 of the Indiana
Constitution provides no enforceable right
Lastly, plaintiff relies on Article 1, Section 1, of the Indiana Constitution,
which addresses Natural Rights.

The Indiana Supreme Court cast serious doubt that Section 1 is a self-
executing provision capable of judicial enforcement rather than an
unenforceable expression of the general principles that animate our
Constitution. See Doe v. O’Connor, 790 N.E.2d 985, 989-91 (Ind. 2003). In
Doe, the Court called Section 1’s enforceability into question and compared
Section 1 to similar provisions in other states’ constitutions that have been
deemed not to create any judicially enforceable rights. Id. Because there is no
enforceable right under Section 1, the defendants are entitled to summary
judgment on this issue as well.

H. There is no violation of the Privacy Act of 1974
Plaintiff’s claims that the Voter ID Law violates the Privacy Act of 1974, 5

U.S.C. § 552a, relates to the claim that “many potential voters have a social
security number displayed on their driver’s license.” Complaint, ¶ 99.
Requiring those voters to show their social-security-displaying license in order
to vote is allegedly a violation of the Privacy Act. Complaint, ¶¶ 98-108.
Assuming but not conceding that requiring a person to show a document that
may or may not have a social security number on it would violate the Privacy
Act as to someone, that statute is irrelevant as to plaintiff because, as shown in
20

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 21 of 29

the uncontested facts, above, his driver’s license does not carry his social
security number. Therefore, he has no valid complaint and the defendants are
entitled to judgment in their favor as a matter of law.

I. Damages are not available
1. Defendants Marion County and Beth White
Are Immune From Plaintiff’s Federal Claims Because
They Were Acting as an Instrumentality of the State of Indiana

Defendants Marion County and Beth White are immune from Plaintiff’s
claims that the Indiana Voter Identification Law violated federal law because
the Defendants were acting as instruments of the state. Suits against a state
are barred by the Eleventh Amendment of the United States Constitution
unless the state consents to the suit or Congress uses its powers under the
Fourteenth Amendment to abrogate the state’s immunity. See Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985). Similarly, suits against state
officials in their official capacity are barred in the same manner as such suits
are considered to be against the state. See Kentucky v. Graham, 473 U.S. 159,
169 (1985).

When a municipal officer is performing state functions, they are clothed
in the state’s sovereign immunity. See Scott, 975 F.2d at 372 (Illinois sheriff
acts for state when serving judicial writ of assistance); see also Carter v. City of
Philadelphia, 181 F.3d 339, 353 (3rd Cir. 1999) (“municipal law enforcement
officials may be State officials when they prosecute crimes or otherwise carry
out policies established by the State, but serve as local policy makers when
they manage or administer their own offices.”). An “understanding of the

21

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 22 of 29

actual function of a governmental official, in a particular area, will necessarily
be dependent on the definition of the official’s functions under relevant state
law.” McMillian v. Monroe County, 520 U.S. 781, 786 (1997).

In Indiana, the counties and county election officials act as arms of the
state when they oversee elections. Indiana elections laws are administered by
the Indiana Election Commission. Ind. Code § 3-6-4.1-14(a)(1). That duty
includes the responsibility to “exercise supervision over local election and
registration officers.” I.C. § 3-6-4.1-14(a)(4). Additionally, state law requires
the creation of the county election boards and instructs them to “[c]onduct all
elections and administer the election law within the county [with an exception
for town elections].” I.C. § 3-6-5-14(a)(2). State law also requires the circuit
court clerk to act as the clerk of the election board. I.C. §§ 3-6-5-18, 3-6-5-19.
The county election board is required to investigate violations of Indiana
election law. I.C. § 3-6-5-31. If the election board fails to follow and enforce
the state election law, courts are required to force adherence through an
injunction or other order. See I.C. § 3-6-5-32 (emphasis added). Thus, the
county through its election board and the county clerk are mere instruments of
the state, bound to adhere to state election laws.

Plaintiff’s suit alleges that Marion County and the Marion County Clerk,
in her official capacity, violated the federal constitution and other federal laws
in various manners by complying with the state Voter Identification Law. Dkt.
1, Complaint at ¶¶ 13, 74-108. The County and Clerk’s involvement in
elections is mandated by state law and is controlled by state law through Title

22

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 23 of 29

Three of the Indiana Code. All actions undertaken by the County or the
County Clerk to enforce the Voter Identification Law were compelled by state
statute. See I.C. §§ 3-6-5-14, 3-11-8-25.1. One of the election laws imposed
upon the county is the requirement to enforce the statutory requirement that
each voter “shall” present identification. I.C. § 3-11-8-25.1. Failure to comply
with that law would have required a judge to order compliance. See I.C. § 3-65-
32. Therefore, Marion County and the Marion County Clerk were acting as
instruments of the state and are entitled to the state’s Eleventh Amendment
Immunity from these claims.

Defendants recognize that the Defendants’ immunity does not bar
Plaintiff’s request for prospective injunctive relief. “An exception to [Eleventh
Amendment immunity for state actors] is an official-capacity suit for
prospective injunctive relief: a suit ‘to enjoin as unconstitutional a state
official's action is not barred by the Amendment.’” Scott v. O'Grady, 975 F.2d
366, 369 (7th Cir. Ill. 1992) (quoting Papasan v. Allain, 478 U.S. 265, 276 (U.S.
1986)); see also Ex parte Young, 209 U.S. 123, 159-60 (1908). Thus, this
doctrine bars all federal claims except Plaintiff’s requests that Clerk White forgo
future enforcement of the voter identification requirement.

2. Plaintiff Cannot Raise Federal Civil
Rights Claims Against Marion County or the
Marion County Clerk for Actions Compelled by State Law
Neither Marion County nor Marion County Clerk Beth White can be held
liable under 42 U.S.C. section 1983 for enforcing the Indiana’s Voter
Identification Law. In analyzing a civil rights claim against a municipality, the

23

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 24 of 29

first inquiry “under § 1983 is the question whether there is a direct causal link
between a municipal policy or custom and the alleged constitutional
deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v.
New York City Dept. of Social Services, 436 U.S. 658 (1978)). A municipality
can only be found liable under section 1983 “where the municipality itself
causes the constitutional violation at issue.” Id. (emphasis in original). A
municipality cannot be liable for mere enforcement of a state law. Bethesda
Lutheran Homes & Servs. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) (finding a
county “cannot be held liable under section 1983 for acts that it did under the
command of state or federal law”); Surplus Store & Exchange, Inc. v. Delphi, 928
F.2d 788, 791 (7th Cir. 1991).

In Surplus Store & Exchange, the Seventh Circuit explained why a local
governmental unit’s mere adherence to a state law cannot support a Monell
claim:

It is difficult to imagine a municipal policy more innocuous and
constitutionally permissible, and whose causal connection to the
alleged violation is more attenuated, than the "policy" of enforcing
state law. If the language and standards from Monell are not to
become a dead letter, such a "policy" simply cannot be sufficient to
ground liability against a municipality for actions which they were
compelled to perform under state law.

928 F.2d at 791-92.

The policy at issue in the present litigation is a state statute requiring
that each voter “shall” present identification. I.C. § 3-11-8-25.1. This policy
was enacted by the Indiana State Legislature. See Indiana Senate Enrolled Act
No. 483, 2005 Ind. Acts pg. 2005. The Defendants were compelled to comply

24

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 25 of 29

with enforcement of the voter identification requirement. See §§ 3-6-5-14, 3-65-
32, 3-11-8-25.1. Thus, Defendants have no liability under section 1983 as
they were merely enforcing a state law. Surplus Store & Exchange, 928 F.2d at
791-92.

3.
Plaintiff cannot seek monetary damages for alleged violations of the
Indiana Constitution
Plaintiff cannot state a claim for damages under the Indiana
Constitution. Plaintiff purports to allege various violations of the Indiana
Constitution. Complaint ¶¶ 45-73. For relief, Plaintiff asks for damages
“including compensatory, consequential and actual damages and punitive
damages[.]” Complaint at pg. 14. However, no damages are permitted for
violations of the Indiana Constitution.

The Indiana Supreme Court has found that “[t]here is no explicit
language in the Indiana Constitution providing any specific remedy for
violations of constitutional rights.” Cantrell v. Morris, 849 N.E.2d 488, 499
(Ind. 2006). Lower Indiana Courts are even clearer. “No Indiana court has
explicitly recognized a private right of action for monetary damages under the
Indiana Constitution.” Smith v. Ind. Dep’t. of Corr., 871 N.E.2d 975, 985 (Ind.
Ct. App. 2007). The Indiana Constitution itself contains no explicit language
giving rise to a specific remedy for damages for violations to constitutional
rights, and, while a federal constitutional violation is actionable under 42

U.S.C. section 1983, Indiana has no comparable statutory provision creating
25

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 26 of 29

an explicit civil remedy for constitutional violations. Cantrell, 849 N.E.2d at

493.
This Court has previously recognized that a Plaintiff cannot seek
damages under the Indiana Constitution. Fidler v. City of Indianapolis, 428
F.Supp.2d 857, 865 (S.D. Ind. 2006); see also Estate of O’Bryan v. Town of
Sellersburg, 2004 U.S. Dist. LEXIS 10160, *64 (S.D. Ind. 2004); Willits v. Wal-
Mart Stores, Inc., 2001 U.S. Dist. LEXIS 25778, *44-45 (S.D. Ind. 2001); Baker

v. Washington Bd. of Works, 2000 U.S. Dist. LEXIS 21236, *24-28 (S.D. Ind.
2000). Any change in law allowing damages under the Indiana Constitution
must come from “the Indiana courts, not by a federal court whose duty is to
apply existing Indiana law.” Estate of O’Bryan, 2004 U.S.Dist. LEXIS 10160 at
*64. Therefore, Plaintiff’s claims based on alleged violations of the Indiana
Constitution are limited to injunctive relief. See Baker, 2000 U.S. Dist. LEXIS
21236, *27-28.
4. Plaintiff has no Damages
Plaintiff is also not entitled to relief on his civil rights claims because he
has no damages. In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court
established that compensatory damages under 42 U.S.C. section 1983 must be
based on actual injuries. Id. at 255-58. A Plaintiff “can recover compensatory
damages only if he proved actual injury caused by the denial of his
constitutional rights.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307

(U.S. 1986). Where no injury is present, no compensatory damages can be
awarded. Id.
26

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 27 of 29

In his deposition, Plaintiff explained that he was damaged because the
identification requirement violated “certain [unenumerated] rights” in the
“Declaration of Independence and in the Indian Bill of Rights[.]” Dep., p.
34:18-25. Not being allowed to vote without showing his identification caused
Stewart to be “unhappy” and he explained “[v]oting means a lot to me
personally[.]” Dep., p. 50:4-7. Plaintiff admitted that he had a driver’s license
which he could have shown, except for during a short period of time when it
was “lost or misplaced[.]” Dep., p. 7:14-18. Plaintiff also acknowledged that he
knew he could vote without showing identification by filing an absentee ballot,
but he did not because it was a “hassle” and he “shouldn’t have to do that.”
Dep., p. 50:12-18. This testimony shows Plaintiff has no actual damages from
the alleged civil rights violations. Therefore, he is not entitled to relief.

5. Plaintiff Has Not Named a Real Party in Interest as a Defendant
Defendants Marion County and Clerk Beth White are not proper parties
to this suit. Rule Seventeen of the Federal Rules of Civil Procedure requires
that “[e]very action shall be prosecuted in the name of the real party in
interest.” Fed. R. Civ. P. 17(a)(1). Defendants are not a real party in interest
because neither has any legal responsibility for the administration of elections.

Under Indiana Law, the Marion County Election Board has the duty to
conduct all elections and administer election laws in Marion County and is
overseen by the Indiana Election board, not the County government. I.C. §§ 36-
4.1-14(a)(4), 3-6-5-14(a)(2). County elections boards are established under
state law, not by the separate counties. See I.C. § 3-6-5-14. Beth White, in her

27

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 28 of 29

official capacity as Clerk, is a member of the Marion County Election Board.

I.C. § 3-6-5-2. However, official capacity claims go against her employer-the
Marion County Clerk’s Office-not a board she happens to be a member of. See
Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008). Also, her position as
a single member of the three-person county board does not allow her or the
Clerk’s Office to unilaterally dictate Marion County Election Board policy. See
I.C. § 3-6-5-2. Therefore, even if local election officials can somehow be liable
for enforcing the state voter identification law, the present Defendants are still
not real parties in interest for Plaintiff’s claims.
Thus, no damages are available under either the state or federal claims,
and the defendants are entitled to judgment in their favor as a matter of law as
to all of plaintiff’s requests for damages.

CONCLUSION

For the foregoing reasons, it is respectfully urged that summary

judgment be entered in favor of the defendants, including the intervenor.

Respectfully submitted, Respectfully submitted,

s/Justin F. Roebel (with permission) GREGORY F. ZOELLER
Justin F. Roebel (23725-49) Attorney General of Indiana
Assistant Corporation Counsel
Office of Corporation Counsel By: s/David A. Arthur200 E Washington St, Room 1601 David A. Arthur
Indianapolis, IN 46204 Deputy Attorney General
Telephone: (317) 327-4055 Office of Attorney General
Fax: (317) 327-3968 Ind Govt Center South, Fifth Floor
E-Mail: jroebel@indygov.org 302 W. Washington St.

Indianapolis, IN 46204-2770
Attorney for Defendants Marion Telephone: (317) 232-6286
County and Marion County Clerk Beth Fax: (317) 232-7979
White E-Mail: David.Arthur@atg.in.gov

Counsel for State of Indiana

28

Case 1:08-cv-00586-LJM-TAB Document 87 Filed 02/26/10 Page 29 of 29

CERTIFICATE OF SERVICE

2007-02-24T13:38:00.000-08:00

I guess I had failed to post the First Amended Complaint here to the blog.
A link should follow here shortly.
http://joellpalmer.blogspot.com/2006_03_01_archive.html
The current status of the case:
The county has filed a motion to dismiss, around the beginning of February, on the grounds that the First Amended Complaint was non-responsive to the court's order for a more definite statement.
The state, and the lawyer for the Security company, had been granted extensions of time in which to file an answer.

2007-02-18T16:42:00.000-08:00

I have drafted an amicus brief in support of rehearing in the 7th circuit federal court Indiana voter ID case, Democratic Party v Rokita. The link is here:
http://joellpalmer.blogspot.com/2006_02_01_archive.html
I'm waiting to hear from the parties for leave to file it.
I guess I'm ready to go run off 10 or 20 copies and look up Gino Agnelli's address. I'm waiting for my password to upload it to the 7th circuit site.

Update: Judge Posner denied the motion for leave to file on February 21. The County had opposed filing.

2007-02-15T16:24:00.000-08:00

Via Hasen, Still and Moritz, I learn that Albuquerque has had its voter ID rules struck down. Pdf.

2007-01-27T11:26:00.000-08:00

The court has granted defendants a one month extension in which to file an answer.

2007-01-24T18:24:00.000-08:00

http://www.usatoday.com/printedition/news/20070124/a_voterid24.art.htm
USA Today story on voter ID

2007-01-22T15:43:00.000-08:00

Amicus draft

In Crawford v Marion County, plaintiffs have moved for rehearing or rehearing en banc at the Seventh Circuit.
I am trying to draft an amicus in suport of rehearing.
I'd like to work with anyone else so inclined.
please contact me gtbear at gmail.

Click to keep reading.
http://joellpalmer.blogspot.com/2006/01/amicus-draft-in-crawford-v-marion.html

Interests of the Parties
Summary of Argument
Argument
Statement of the case
Summary of argument
The case is of great public importance, meriting close review of the panel’s decision.

The panel erred in applying lax review.

The panel erred in failing to address the state constitutional claim.

The panel erred in failing to certify the state claim to the Indiana Supreme Court, since there is no controlling authority in support of the district court’s rulings on the state claims.

The panel erred in its conclusion regarding the state claim, and consequently reached the wrong conclusion in the case.

2007-01-19T17:49:00.000-08:00

Today, checked pobox, nothing new, emailed client, emailed State rep Wiliam Crawford about the case. This just in from the Indy star.
Plaintiffs seek rehearing on state's voter ID law
Plaintiffs challenging Indiana's voter identification law filed a motion Thursday seeking a rehearing, saying they think a federal appeals court erred when it upheld the law earlier this month.

A three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago upheld the decision by a lower court to keep the law in place. The panel concluded in a 2-1 vote that the measure has not hindered voters.
But the plaintiffs, who include Democrats and civil liberties activists, want the entire 12-judge court to weigh in. They argue there is plenty of evidence showing the law has caused voting problems.
Passed by the Republican-controlled General Assembly in 2005, the law requires voters to present a government-issued photo ID before they can vote.

I've just read the motion for rehearing en banc, and had to go back and read the appeal brief that Posner was responding to.

Plaintiffs did not preserve their poll tax, equal protection,and free and equal elections claims in the appeal. They relied on a losing voting rights act claim, a series of first amendment arguments, and one of the state constitutional claims, the article II section 2 claim.

So if I do a brief, I can't argue these things that were waived, but I can argue the ones that were preserved. This means my case is even more important then ever - it is the only place where these claims are preserved and can be argued.
I should prepare a memo for the Brennan Center on these points.

More thoughts on the

2007-01-13T14:13:00.000-08:00

The OCR came out a bit iffy, but there might be readable parts here:

OrDER

Plaintiffs motion, filed November 1,2006, for leave for interlocutory appeal of the denial of motion for preliminary injunction and temporary restraining order, is hereby
[~] Granted [ ] Denied

Distribution:
R. Stewart I. Stewart L. Karlson H. Dean
--------------
STATE OF INDIANA )
)SS:
COUNTY OF MARION )
)
JOELL PALMER, )
)
Plaintiff )
)
vs. )
)
MARION COUNTY, STATE OF )
INDIANA, 1. BRADLEY KING, )
TODD ROKIT A, KRIST! )
ROBERTSON, DORIS ANN )
SADLER, JOHN DOE #1-4, JANE )
DOE #1-3, SECURATEX, JACK )
COTTEY, )
)
Defendants. )

IN THE MARION SUPERIOR COURT CAUSE NUMBER 49D04060 1 OCT 44113
@ l?I.l-JE:D
JAN 08 2007

FINDINGS OF FACTS. CONCLUSIONS OF LAW. AND JUDGMENT
I. Findings of Fact
1. Plaintiff, Joell Palmer, is a registered Indiana voter and the nominated candidate of the Libertarian Party for the lOOth District state representative race.
2. Defendant, Marion County, is a municipality in the State of Indiana.
3. Defendant, the State of Indiana, is a co-equal sovereign entity in the United
States federal system.
4. Defendant, Todd Rokita, is the secretary of state for the State of Indiana.

7. Defendants, John Doe #1-4, are employees of the secretary of state's office who communicated the State ofIndiana's voter licensing program to potential
voters.
8. Defendants, Jane Doe # 1- 3 are officials in Plaintiff s precinct.
9. Defendant, Securatex, is a company contracted by Marion County to conduct searches of people trying to enter the City-County building in Marion County. 10. Defendant, Jack Catley, is a supervising employee of Securatex responsible for the City-County building searches.
11. On October 27, 2006, Plaintiff fi,led a Complaint against Defendants for injunctive and declaratory relief, aQ9.:~ought a Preliminar):')njunction and Temporary Restraining Order (TRO) to prevent Defendants, Marion County and the State ofIndiana, from requiring any voter, including Plaintiff, in the November 2006 election to show government issued identification as a condition of voting, absent a search warrant.
12. Also on October 27,2006, Plaintiff filed a Motion for Temporary Restraining Order and Temporary Injunction, along with a Memo in Support of Temporary Restraining Order and Temporary Injunction.
II. Condusions of Law
1. Trial Rule 65(A)(1) does not allow a preliminary injunctiqn to be issued without opportunity for a hearing upon notice to the adyerse party. None of the documents filed with the CO)lrt on October 27, 2006 indicated that notice of the Motion for Temporary Restraining Order and Temporary Injunction had been given to Defendants.

2. Trial Rule 65(B)(2) does not allow a Temporary Restraining Order to be•
notice to the adverse party absent certification in writing by applicant's attorney of the efforts made to give notice and the reasons
supporting a claim that notice should not be•required. Plaintiffs Complaint
did not make such certification, nor did it give reasons supporting that notice
should not be required.
III. Judgment
''f~liiil'titf'§M()tion for Temporary Restraining Order
and Temporary Injunction was denied .. z;;:i.", .
SO ORDERED, ADJUDGED AND DECREED this )? th
[I'll plan to post a cleaned up version of this in a few days. It gives the general idea.]

2007-01-13T13:30:00.000-08:00

2007-01-08T17:29:00.000-08:00

While I was at the court filing the amended complaint, I learned that the Court, today, has granted leave to appeal and issued findings of fact and law as to why the TRO and injunction was denied. Apparently it's because I didn't file a rule 65 B 2 statement. I feel like they could have told me this at the time. I'll be getting the docs in the mail in a few days and hope to get them scanned or keyed in.
Anyway, I have leave to appeal now.. mulling it over.

(B) Temporary restraining order - Notice-Hearing -Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if:

(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and

(2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten [10] days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the whereabouts of the party against whom the order is granted is unknown and cannot be determined by reasonable diligence or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two (2) days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
This part seems relevant:
(3) Assignment of cases - Judge to act promptly. Assignment of cases shall not be affected by the fact that a temporary restraining order or preliminary injunction is sought, but such case shall be assigned promptly and the judge regularly assigned to the case shall act upon and hear all matters relating to temporary restraining orders and preliminary injunctions. The judge shall make himself readily available to consider temporary restraining orders, conduct hearings, fix the manner of giving notice and the time and place for hearings under this rule, and shall act and require the parties to act promptly. If the party seeking relief or his attorney by affidavit establishes that the judge assigned to the case is not available or cannot be found to consider an application for a restraining order, to conduct a hearing, or to fix the manner of giving notice and the time and place for a hearing under this rule, he may apply to any other judge in the circuit who shall take all further action with respect to any temporary restraining order or preliminary injunction. If the affidavit establishes that no other judge in the circuit is available or to be found, he may apply to the judge of any adjoining circuit. Unless an order is entered within ten [10] days after the hearing upon the granting, modifying or dissolving of a temporary or preliminary injunction, the relief sought shall be subject to the provisions of Rule 53.1.
and:
Rule 1. Scope of the rules
Except as otherwise provided, these rules govern the procedure and practice in all courts of the state of Indiana in all suits of a civil nature whether cognizable as cases at law, in equity, or of statutory origin. They shall be construed to secure the just, speedy and inexpensive determination of every action.

2007-01-07T13:07:00.000-08:00

With a couple hours and all day tomorrow to go, I've finished a first amended complaint, as I was ordered by the court to do or face dismissal. It took some work,and made my vacation on maui more complicated - the island doesn't have a lot of free computers, but it's done except for the proofreading printing and filing.

IN THE SUPERIOR COURT FOR MARION COUNTY INDIANA
Joell Palmer,
Plaintiff,
v. Cause No. 49D04-06 10-CT-044113
Judge Cynthia Ayers
Marion County, State of
Indiana, J. Bradley King,
Todd Rokita, Kristi Robertson,
Doris Anne Sadler, Beth White, John Doe
#1-4,Jane Doe 1-3, Securatex,
Jack Cottey,
Defendants.
FIRST AMENDED COMPLAINT
Comes now Plaintiff Joell Palmer by counsel and for his first AMENDED complaint for damages, injunctive and declaratory relief states as follows.
1. Suit was filed October 27, 2006. Defense counsel moved, and the court ordered, for a more definitive statement. This first amended complaint is in response to that order. The first section restates the original complaint. A second section, paragraphs 242 et seq., updates events in light of the occurrence of the election.
2. Introduction: This is an action to stop a threat to the integrity of the election process.
3. Time is of the essence.
4. Defendants are attempting to engage in voter fraud, by preventing registered voters without a voting license from voting.
5. The result will be that the winners of the upcoming elections cannot be determined, because an unknown number of eligible voters will be prevented from voting.
6. The open door law claim, IC 5-14-1.5-7(g) and the rules of court including TR40(A), provide a statutory basis for expedited handling.
7. A motion for a TRO and preliminary injunction has been filed to prevent irreparable harm.

The rest of it will be posted in a moment at the following link.

2007-01-06T20:41:00.000-08:00

The Seventh Circuit, Posner, 2-1, has upheld the Indiana voter ID scheme.
http://mail.google.com/mail/?attid=0.1&disp=vah&view=att&th=10feeed9a7edd3bf
oops that link won't work.
Link to follow.
Dissent by Evans.
http://www.xanga.com/craigc 1/4/7 posting, has the text.
Posner, Circuit Judge.
A google search for this text string should work as well.

A number of candidates for public office, and voters, along with organizations such as the Democratic Party that are active in electoral politics, challenge a new Indiana voting law as an undue burden on the right to vote, a right that the Supreme Court has found latent in the Constitution. E.g., Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979), and cases cited in Igartua-De La Rosa v. United States, 417 F.3d 145, 169-70 (1st Cir.2005). The law requires, with certain exceptions, that persons wanting to vote in person in either a primary or a general election must present at the polling place a government-issued photo ID, unless the person either wants to vote by absentee ballot (and is eligible to do so) or lives in a nursing home.

2006-12-14T09:26:00.000-08:00

A hearing had been scheduled this morning at the trial court, but by agreement of the parties it was continued indefinately. It was a chance to meet 2 of 3 opposing counsel and the judge. The state's opposing counsel is very aggressive on procedural matters,and we disagreed on a series of things. We've tangled before. Counsel for the county is reasonable and likeable. Counsel for Securatex wasn't present and hadn't gotten notice. The judge said she hadn't been aware of the outstanding motion for leave to appeal, so I'll prepare an order on that and see where that leaves us.

The most important thing from this morning was learning that the Court of Appeals has denied, without opinion, my petition for reconsideration.

If the court grants leave for review, and the Court of Appeals wants a second filing fee, a further appeal might be contingent on a donor coming forward with the filing fee. And as always, Plaintiffs continue to have an urgent need for cocounsel in this case. Currently I am up against better lawyers with more resources than I have. Additionally, there's a potential second plaintiff, a Mr. Page, who I would have a conflict in representing, who seeks counsel.

2006-12-13T12:27:00.000-08:00

Rokita has concerns about statehouse gun ban, reports indiana law blog. Hmm.

The state wants to close the tunnels to the statehouse to citizens, install metal detectors and ban guns and pocketknives.
Nobody testified Friday at a hearing on the proposal. Nobody knew about it either.
Sigh. Should write stern letter, not sure I'll get around to it.

2006-12-12T12:05:00.000-08:00

A hearing will be held at the trial court this Thursday at 10:00 am.

The court has ordered that the complaint be relied to comply with trial rules.

2006-11-22T11:41:00.000-08:00

The circumstances are similar in northern Indiana where Republican incumbent Don Lehe of Brookston leads Democrat Myron Sutton by just 26 votes. - some blog.

2006-11-22T11:35:00.000-08:00

plan to file this today:
Case No. 49A02-0611-CV-00977

Joell Palmer, )
Appellant, ) Petition for Rehearing of Denial of Interlocutory Appeal of ) Denial of Temporary Injunction
)
)
v. ) Case No.: 49D04-06 10-CT-044113
)
)
Marion County, State of Indiana, )
J. Bradley King, Todd Rokita, Kristi )
Robertson, Doris Anne Sadler, John )
Doe #1-4, Jane Doe 1-2, Amanda )
Bowling, Securatex, Jack Cottey, )
Defendant-Appellees ) Hon. Cynthia Ayres
_______________________ )
) )

Petition for Rehearing

Robbin Stewart
P.O. Box 164
Cumberland, IN 46229
317.650.9698
gtbear at gmail.com

Attorney for Appellant

Case No. 49A02-0611-CV-00977

Joell Palmer, )
Appellant, ) Petition for Rehearing of Denial of Interlocutory Appeal of ) Denial of Temporary Injunction
)
)
v. ) Case No.: 49D04-06 10-CT-044113
)
)
Marion County, State of Indiana, )
J. Bradley King, Todd Rokita, Kristi )
Robertson, Doris Anne Sadler, John )
Doe #1-4, Jane Doe 1-2, Securatex, )
Jack Cottey, Amanda Bowling )
Defendant-Appellees ) Hon. Cynthia Ayres
_______________________ )
) )

Petition for Rehearing

Robbin Stewart
P.O. Box 164
Cumberland, IN 46229
317.650.9698
gtbear at gmail.com

Attorney for Appellant

Table of Contents

Table of contents 3
Table of Authorities, 3
Statement of Issues, 3
Summary of Argument 3
Argument 4
A. Statement of the case. 4
B. Denial of injunction triggered 14 A 5. 6
C. Case is not moot. 7
Conclusion, 8
word count, and 9
Certificate of service. 9

Table of Authorities
App. Rule 14 A (5).
Statement of Issues:

Whether the court of appeals erred in denying jurisdiction over an appeal of right of the denial of a preliminary injunction.

Summary of Argument

Appeal as of right was improperly denied, when the best reading of the trial court’s ruling of “Denied” in response to a Motion for TRO and Temporary Injunction, is that it was a denial of a preliminary injunction, which may be appealed as of right under Rule 14 A (5). The appeal is not moot, factually or legally.

Argument
This motion is filed to replace a previously filed Motion for Reconsideration in order to comply with the Rules of Appellate Procedure.
A. Statement of the case. The ruling November 6th set out the facts and history of the case as follows.
ORDER

Appellant Joell Palmer by counsel has filed an Emergency Motion for
Stay, a Motion for Interlocutory Appeal and Expedited Review,
exhibits in support of those motions, and a Notice of Appeal.
The underlying facts are as follows. A general election will be
held tomorrow, on November 7, 2006. Indiana have promulgated statutes
requiring each voter to display photographic identification ("photo
ID") at his or her precinct as a condition of voting. Appellant has a
driver's license, but he does not want to display it at the polls out
of concern for his privacy. Shortly before the spring primary
election, Appellant went to the Bureau of Motor Vehicles to see if he
could obtain a free photo ID, but he was told that he is not eligible
for a free voter ID because he already has a driver's license.
Appellant was denied the opportunity to vote during the spring primary
election because he refused to display a photo ID. Instead, Appellant
was offered the opportunity to cast a provisional ballot. Appellant
executed a provisional ballot, but it was never counted. Appellant's
provisional ballot was not counted because Appellant refused to produce
his "voting license," and because Appellant refused to consent to a
search of his person at the City-County Building as a condition of
accessing the Marion County Election Board's office.
Appellant expects to be denied the opportunity to vote tomorrow if he
is not permitted to vote without showing a photo ID.
[page 2]
On October 27, 2006, Appellant filed with the trial court a Motion
for Temporary Restraining Order and Preliminary Injunction, a
Supporting Memo, and a Complaint for Injunction, Damages, and
Declaratory Relief against Marion County, the State of Indiana,
Secretary of State Todd Rokita, the co-directors of the Indiana
Elections Division, the Clerk of the Marion County Courts, unnamed
employees of the Secretary of State's office, unnamed precinct
officials who Appellant alleges prevented him from voting in the
spring, Securatex (which manages the security screening process at the
City-County Building), and Jack Cottey (a Securatex employee who
supervises the security screening process at the City-County
Building). In addition to the voting rights claim discussed above,
Appellant also alleged that the Indiana Election Division wrongfully
refused to place his name on the ballot as a candidate for the Indiana
General Assembly and wrongfully refused to allow him to register as an
official write-in candidate.

On November 1, 2006, the trial court denied Appellant's request for a
temporary restraining order ("TRO") with respect to the requirement
of showing a photo ID at the polls. The trial court did not rule on
Appellant's request for relief with respect to the requirement of
showing a voter ID at the polls. The trial court did not rule on
Appellant's request for relief with respect to his candidacy for
office or his alleged denial of access to the City-County Building. On
November 2, 2006, Appellant filed with the trial court a motion to
certify its November 1, 2006 ruling. The trial court has yet to rule
upon Appellant's motion to certify.
Appellant has filed a notice of appeal as well as a Motion for
Interlocutory Appeal and Expedited Review. Appellant also filed with
the Clerk of this Court a Motion for Emergency Transfer, which the
Indiana Supreme Court denied on Friday, November 3.
Appellant asks the court to stay the trial court's denial of his
request for a temporary restraining order. Appellant also asks the
Court to accept interlocutory jurisdiction over this case and expedite
its review so that an opinion is issued by the evening of November
6th, 2006.
Having reviewed the matter, the court FINDS AND ORDERS AS FOLLOWS:
(1) Appellant's Emergency Motion for Stay is DENIED.
(2) Because the trial court has not yet certified its order of
November 1, 2006, for discretionary interlocutory review, Appellant's
Motion for Interlocutory Review and Expedited Review is DENIED WITHOUT
PREJUDICE as to Appellant's right to request discretionary
interlocutory review if the trial court chooses to certify its order
of November1, 2006 for discretionary interlocutory review.
(3) Because the trial court's November 1, 2006 order was neither a
final judgment nor an interlocutory order appealable as of right
pursuant to Ind. Appellate Rule 14(A), Appellant's Notice of Appeal is
DISMISSED WITHOUT PREJUDICE as to Appellant's right to seek appellate
review after the entry of a final judgment or an interlocutory order
subject to appeal as of right.
(4) The clerk of the court is directed to send copies of this order
to the parties, and certified copies of this order to
The Honorable Cynthia J Ayres
Judge, Marion Superior Court, Civil Division
200 E Washington Street #T-1221
Indianapolis IN 46204
The Honorable Doris Anne Sadler
Clerk of the Marion Circuit and Superior Courts
200 E Washington Street, #W-122
Indianapolis IN 46204

(5) Clerk Sadler is DIRECTED to file a copy of this order under cause
number 49D04-0602-CT-044113 and cause the same to be spread of record.
ORDERED this 6th day of November, 2006.

Patrick D Sullivan, Acting Chief Judge
Baker, Vaidik, J.J., concur.

B. This statement of the facts and history is correct, with the exception of the italicized portion.
The trial court did not rule on
Appellant's request for relief with respect to the requirement of
showing a voter ID at the polls. The trial court did not rule on
Appellant's request for relief with respect to his candidacy for
office or his alleged denial of access to the City-County Building

The trial court’s one word ruling is ambiguous, but is best understood as a denial of the “Motion for Temporary Restraining Order and Preliminary Injunction.” Had it been merely a denial of the proposed order, the court would have set a hearing, as the motion requested. Because the order denied the preliminary injunction, there was nothing further to be heard. That the court denied the injunction without a hearing is relevant to the contention that the trial court abused its discretion. The Court of Appeals’ mistake in this regard is completely understandable in light of how Appellant phrased his appeal, focusing on the denial of the TRO, and in light of the expedited time frame in which the Court reached its decision. A motion for findings of fact and law remains pending in the trial court, which may help resolve this ambiguity. Perhaps the Court of Appeals is correct that the court below has yet to rule on various issues raised in the motion for TRO and injunction. But the best reading of the ambiguous order is that it was a denial of the motion to which it was attached.
If the order denied a preliminary injunction, it is subject to interlocutory appeal under 14 A 5.
Rule 14. Interlocutory Appeals A. Interlocutory Appeals of Right. Appeals from the following interlocutory orders are taken as a matter of right by filing a Notice of Appeal with the trial court clerk within thirty (30) days of the entry of the interlocutory order: (5) Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction;

C.) While the election has passed, the need for a temporary injunction continues and is not moot. Three or more election contests may hinge on whether provisional ballots are counted, and on whether the elections are invalid because more people were unlawfully prevented or deterred from voting by the ID rules. Two of these are state legislative races, and one is for the office of County Clerk of Posey County, where an uncounted provisional vote may decide the election, which was tied in the preliminary results, and currently shows the democrat leading by two votes going into a recount. http://www.courierpress.com/news/2006/nov/10/posey-clerk-race-ends-tie/
http://www.courierpress.com/news/2006/nov/21/posey-countys-new-clerk-wins-two-votes/
In the state representative - 97th district,

07A JON ELROD (REP). . . . . . . 4,446 50.04
07B EDMUND MAHERN (DEM) . . . . . 4,439 49.96

only 7 votes separate the apparent winner from the apparent loser. In this race, there are said to be 4 uncounted provisional ballots and 3 uncounted, but valid, absentee ballots. An election contest has been filed. In the 31st State Rep. district, the Republican is leading by as many as 27 votes. A recount is expected. In that race, there are probably fewer than 27 outstanding provisional ballots, so the issue would be whether it is likely that at least 27 prospective voters were prevented or deterred from voting, and whether it is likely that the outcome cannot now be determined.
Plaintiff contends that no provisional vote may be left uncounted for reason of failure to show ID, unless a warrant has authorized the search of that voter’s ID. Any provisional ballot arrangements that do not come with a presumption of validity deny the right to vote under the dual constitutions.
A second issue, Palmer’s ballot status, is now moot, for the purposes of the interlocutory appeal, because he did appear on the ballot and his approximately 322 votes have been certified, according to the county clerk’s website, www.indygov.org/clerk, visited November 21.
If the court of appeals has jurisdiction, it has authority to issue the emergency stay requested, with the facts updated to reflect the current status. The trial court has continued to withhold ruling on the motion for leave to appeal under 14 B.
Conclusion:
Plaintiff’s appeal as of right under 14 A 5 was improperly denied, perhaps based on a misunderstanding of whether the Court’s order was a ruling on the motion, and not merely a denial of the proposed temporary restraining order, and remains justiciable. The Court should reach the merits, decide whether provisional ballots of registered voters who did not produce ID should be counted, and decide whether elections tainted by voter suppression via voter ID were lawfully held. Plaintiff does not seek to invalidate the entire 2006 election, but only those specific races in which the margin of victory is less than the likely error caused by the voter suppression tactics, such that the will of the people was not expressed. This an extraordinary and disfavored remedy, but may be all that is available due to the failure of the trial, appeal, and supreme courts’ failure to resolve the merits before the election.
Word Count: At 1810 words, this filing is within the allowable length under the rules.
Respectfully Submitted,
Robbin Stewart
_______________
Certificate of Service
I hereby certify that on or by November 2, 2006, a copy of the foregoing was sent via first class mail, postage pre-paid, or hand delivery, to the following, and an electronic copy was sent to Doug Webber's office.

Ian Stewart
James B. Osborn
Office of Corporation Counsel
1601 City County Building
200 East Washington Street
Indianapolis, IN 46204

Doug Webber
Office of the Indiana Attorney General
Fifth Floor, IGC-South
302 W. Washington St.
Indianapolis IN 46204

____________________

Robbin Stewart #17147-53
P.O. Box 164 Cumberland, IN 46229
317.650.9698. gtbear at gmail com.

2006-11-19T17:09:00.000-08:00

Here is the text of the Court of Appeal's possibly erroneous dismisal of the interlocutory appeal November 6th. Typos mine.

ORDER

Appellant Joell Palmer by counsel has filed an Emergency Motion for
Stay, a Motion for Interlocutory Appeal and Expedited Review,
exhibits in support of those motions, and a Notice of Appeal.
The underlying facts are as follows. A general election will be
held tomorrow, on November 7, 2006. Indiana have promulgated statutes
requiring each voter to display photographic identification ("photo
ID") at his or her precinct as a condition of voting. Appellant has a
driver's license, but he does not want to display it at the polls out
of concern for his privacy. Shortly before the spring primary
election, Appellant went to the Bureau of Motor Vehicles to see if he
could obtainb a free photo ID, but he was told tha the is not eligible
for a free voter ID because he already has a driver's license.
Appellant was denied the opportunity to vote during the spring primary
election because he refused to display a photo ID. Instead,, Appellant
was offered the opportunity to cast a provisional ballot. Appellant
executed a provisional ballot, but it was never counted. Appellant's
provisional ballot was not counted because Apellant refused to produce
his "voting license," and because Appellant refused to consent to a
search of his person at the City-County Building as a condition of
accessing the Marion County Election Board's office.
Appellant expects to be denied the opportunity to vote tomorrow if he
is not permitted to vote without showing a photo ID.
[page 2]
On Octoner 27, 2006, Appellant filed with the trial court a Motion
for Temporary Restraining Order and Preliminary Injunction, a
Supporting Memo, and a Complaint for Injunction, Damages, and
Declaratory Relief against Marion County, the State of Indiana,
Secretary of State Todd Rokita, the co-directors of the Indiana
Elections Division, the Clerk of the Marion County Courts, unnamed
employees of the Secretary of State's office, unnamed precinct
officials who Appellant alleges prevented him from voting in the
spring, Securatex (which manages the security screening process at the
City-County Building), and Jack Cottey (a Securatex employee who
supervises the security screening process at the City-County
Building). In addition to the voting rights claim discussed above,
Appellant also alleged that the Indiana Election Division wrongfully
refused to place his name on the ballot as a candidate for the Indiana
General Assembly and wrongfully refused to allow him to register as an
official write-in candidate.

On November 1, 2006, the trial court denied Appellant's request for a
temporary restraining order ("TRO") with respect to the requirement
of showing a photo ID at the polls. The trial court did not rule on
Appellant's request for relief with respect to the requirement of
showing a voter ID at the polls. The trial court did not rule on
Appellant's request for relief with respect to his candidacy for
office or his alleged denial of access to the City-County Building. On
November 2, 2006, Appellant filed with the trial court a motion to
certify its November 1, 2006 ruling. The trial court has yet to rule
upon Appellant's motion to certify.
Appellant has filed a notice of appeal as well as a Motion for
Interlocutory Appeal and Expedited Review. Appellant also filed with
the Clerk of this Court a Motion for Emergency Transfer, which the
Indiana Supreme Court denied on Friday, November 3.
Appellant asks the court to stay the trial court's denial of his
request for a temporary restraining order. Appellant also asks the
Court to accept interlocutory jurisdiction over this case and expedite
its review so that an opinion is issued by the evening of November
6th, 2006.
Having reviewed the matter, the court FINDS AND ORDERS AS FOLLOWS:
(1) Appellant's Emergency Motion for Stay is DENIED.
(2) Because the trial court has not yet certified its order of
November 1, 2006, for discretionary interlocutory review, Appellant's
Motion for Interlocutory Review and Expedited Review is DENIED WITHOUT
PREJUDICE as to Appellant's right to request discretionary
interlocutory review if the trial court chooses to certify its order
of November1, 2006 for discretionary interlocutory review.
(3) Because the trial court's November 1, 2006 order was neither a
final judgment nor an interlocutory order appealable as of right
pursuant to Ind. Appellate Rule 14(A), Appellant's Notice of Appeal is
DISMISSED WITHOUT PREJUDICE as to Appellant's right to seek appellate
review after the entry of a final judgment or an interlocutory order
subject to appeal as of right.
(4) The clerk of the court is directed to send copies of this order
to the parties, and certified copies of this order to
The Honorable Cynthia J Ayres
Judge, marion Superioir Court, Civil Division
200 E Washington Street #T-1221
Indianapolis IN 46204

The Honorable Doris Anne Sadler
Clerk of the Marion Circuit and Superior Courts
200 E Washington Street, #W-122
Indianapolis IN 46204

(5) Clerk Sadler is DIRECTED to file a copy of this order under cause
number 49D04-0602-CT-044113 and cause the same to be spread of record.
ORDERED this 6th day of November, 2006.

Patrick D Sullivan, Acting Chief Judge
Baker, Vaidik, J.J., concur.

2006-11-15T20:04:00.000-08:00

MI supreme court hears voter ID case. Link.